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"C" v Marsh

"C" v Marsh

Case [2006] WASC 41 15 March 2006

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"C" -v- MARSH [2006] WASC 41

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 41
Case No:	SJA:1090/2005	Heard:	11 JANUARY 2006
Coram:	SIMMONDS J	Delivered:	15/03/06
No of pages:	28	Judgment Part:	1 of 1
Result:	Convictions for assault occasioning bodily harm quashed Conviction for assault upheld
Category:	B
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Parties:	"C" JASON LEE MARSH
Catchwords:	Criminal law Appeal against conviction Assault occasioning bodily harm Assault Whether defences properly considered Whether evidence properly considered Whether substantial miscarriage of justice occurred Appeal allowed in part
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2), s 14(3) Criminal Code (WA), s 23, s 246, s 248, s 250, s 313(1)(b), s 317(1)
Case References:	Chamberlain v MacLachlan [2003] WASCA 200 Corke v Corke (1958) 1 All ER 224 Garrett v Nicholson (1999) 21 WAR 226 Howe v The Queen (1981) 55 ALJR 5 Latham v The Queen [2000] WASCA 57 Liberato v The Queen (1985) 61 ALR 623 Stanik v The Queen [2001] WASCA 333 Chau Kau v The Queen [1955] AC 206 Griffiths v The Queen (1994) 125 ALR 545 Harling v Hall (1994) A Crim R 437 Lomans v Morony [2000] WASCA 90 Mancini v Director of Public Prosecutions [1942] AC 1 R v Gill [1963] 1 WLR 841 R v John Theo Trifyllis [1998] QCA 416 R v Mullen (1983) 59 CLR 124 R v Stingel (1990) 171 CLR 312 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Whitehead v Procopis [2005] WASC 195 Woolmington v Director of Public Prosecutions [1935] AC 462

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : "C" -v- MARSH [2006] WASC 41 CORAM : SIMMONDS J HEARD : 11 JANUARY 2006 DELIVERED : 15 MARCH 2006 FILE NO/S : SJA 1090 of 2005 BETWEEN : "C"

Appellant

AND

JASON LEE MARSH

Respondent

ON APPEAL FROM:

Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T G SCHWASS

File No : CC 1803 of 2005, CC 1804 of 2005, CC 1805 of 2005

Catchwords:

Criminal law - Appeal against conviction - Assault occasioning bodily harm - Assault - Whether defences properly considered - Whether evidence properly considered - Whether substantial miscarriage of justice occurred - Appeal allowed in part

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2), s 14(3)

Criminal Code (WA), s 23, s 246, s 248, s 250, s 313(1)(b), s 317(1)

Result:

Convictions for assault occasioning bodily harm quashed

Conviction for assault upheld

Category: B

Representation:

Counsel:

Appellant : Ms H K Muhling

Respondent : Mr S M Stocks

Solicitors:

Appellant : Beau Hanbury

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chamberlain v MacLachlan [2003] WASCA 200
Corke v Corke (1958) 1 All ER 224
Garrett v Nicholson (1999) 21 WAR 226
Howe v The Queen (1981) 55 ALJR 5
Latham v The Queen [2000] WASCA 57
Liberato v The Queen (1985) 61 ALR 623
Stanik v The Queen [2001] WASCA 333

(Page…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading "C" v Marsh

Details

AGLC: "C" v Marsh [2006] WASC 41
Case: [2006] WASC 41
Decision Date

CaseChat Overview and Summary

The appellant, Jason Lee Marsh, appealed against his convictions on three charges of assault. The appeal was heard by Simmonds J in the Supreme Court of Western Australia. The appellant had been convicted of two charges of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code, and one charge of assault, contrary to s 313(1)(b) of the Criminal Code, by the Children's Court of Western Australia. The appellant argued that the trial magistrate had failed to properly consider the defences of self-defence and provocation, had failed to properly consider inconsistencies in the evidence of the prosecution witnesses, had failed to properly consider matters relating to the evidence of the child witness, had wrongly focused on the findings of lack of credibility of the defence witnesses, and had wrongly made findings against the credibility of the evidence of the defendant and his witness. The Court found the appeal should be allowed on the grounds that the trial magistrate had failed to properly consider the defences of self-defence and aiding in another's self-defence, and had failed to properly consider inconsistencies in the evidence of the prosecution witnesses. The convictions for the charges of assault occasioning bodily harm were quashed, but the conviction for the charge of assault was upheld.

Orders