Carden v WA Police - [2023] WASC 462

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CARDEN -v- WA POLICE [2023] WASC 462
CORAM:   HOWARD J
HEARD:   17 NOVEMBER 2023
DELIVERED          :   19 DECEMBER 2023
FILE NO/S:   SJA 1003 of 2023
BETWEEN:   CILLA LOUISE CARDEN
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE THOMPSON
File Number            :   PE 8652 of 2022
JO 1096 of 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against convictions under Criminal Code (WA) and Bail Act 1982 (WA) - No error identified - Leave to appeal on all grounds refused

Legislation:

Bail Act 1982 (WA)

Constitution
Crimes Act 1900 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)

Criminal Investigation Act 2006 (WA)

Result:

Leave to appeal denied

Representation:

Counsel:

Appellant	:	In person
Respondent	:	D Van Nellestijn

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Samuels v State of Western Australia (2005) 30 WAR 473

HOWARD J:

The appellant's conviction and sentence

The appellant was convicted on 9 December 2022 in the Magistrates Court at Joondalup of two offences, namely:
1.unlawful assault of Shae Norelle Toia (complainant) (charge JO 1096 of 2022), against s 313(1)(b) of the Criminal Code (WA) (Criminal Code) on 1 February 2022 (first conviction); and
2.without reasonable cause, failing to appear at the Magistrates Court at Joondalup on 2 March 2022 in breach of a bail undertaking signed at the Warwick Police Station on 2 February 2022 (charge PE 8652 of 2022), against s 51(1) of the Bail Act 1982 (WA) (Bail Act) (second conviction).
The first conviction was in relation to an assault on the complainant outside a shopping centre at Alexander Heights. The complainant was an employee of a Liquorland store in the shopping centre who had followed the appellant out of the shopping centre after an incident at the entrance of the store.
The following day, on 2 February 2022, the appellant was arrested in her home on suspicion of assault and theft. She was granted bail at the Warwick Police Station on her undertaking to appear at the Magistrates Court in Joondalup on 2 March 2022. She failed to appear on that date. An arrest warrant was issued, and the appellant was subsequently arrested and was granted bail until the trial below.
The trial took place on 22 November 2022, and after delivering reasons on 9 December 2022 the learned Magistrate convicted the appellant of both charges and imposed the following penalties:
1.on the first conviction (JO 1096 of 2022): $600 fine; and
2.on the second conviction (PE 8652 of 2022): $150 fine.

Relevant provisions for this Appeal

The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's convictions are 'decisions' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act,…

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.

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Details

Case: [2023] WASC 462
Decision Date: 19 DECEMBER 2023

CaseChat Overview and Summary

The matter of Carden v WA Police involved an appeal against convictions for breaches of bail conditions and resisting arrest, with the appellant arguing the convictions were against the weight of evidence. The appeal was heard in the Supreme Court of Western Australia. The appellant challenged the sufficiency of evidence to support the convictions, asserting that the trial judge erred in finding the evidence proved the charges beyond reasonable doubt.

The central legal issues revolved around whether the trial judge correctly applied the standard of proof and whether the evidence was sufficient to support the convictions. The appellant contended that the evidence was insufficient to establish the necessary mens rea for the charges. Additionally, the appellant argued that the trial judge had not properly considered all the evidence, particularly the inconsistencies in the witness testimonies.

The court, in reviewing the appeal, found that the trial judge had meticulously assessed the evidence and applied the appropriate legal standards. The court concluded that the evidence was sufficient to support the convictions, as it was open to the trial judge to find that the appellant had the requisite intent for the charges. The court also found no error in the trial judge's consideration of the evidence and determined that the appeal did not disclose any grounds warranting leave to appeal. Consequently, the appeal was dismissed, and leave to appeal on all grounds was refused.

Orders