CMH (a child) v Bower - [2009] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CMH (a child) -v- BOWER [2009] WASC 347

CORAM: HALL J

HEARD: 6 NOVEMBER 2009

DELIVERED : 26 NOVEMBER 2009

FILE NO/S: SJA 1089 of 2009

BETWEEN: CMH (a child)
Appellant
AND
SIMON BOWER
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K T FISHER
Citation  :BU 458 of 2008

Catchwords:

Criminal law - Circumstantial evidence - Fingerprints - Explanation given to police - Failure to give evidence - Whether Weissensteiner applicable - Whether reasons adequate

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr I MacFarlane
Respondent: Ms R J Haylock

Solicitors:

Appellant: Ian MacFarlane
Respondent: Director of Public Prosecutions (WA)

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

Hunter v WA [2009] WASCA 197
Piccolo v WA [2007] WASCA 149
Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998)
R v Fowler [2000] NSWCCA 142
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Hugo (2000) 133 A Crim R 484
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Stockman v The Queen (Unreported, WACCA, Library No 960267, 17 May 1996)
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

HALL J: On 28 May 2009, after a hearing in the Children's Court at Bunbury, the appellant was convicted of one charge of burglary contrary to s 401(2)(c) of the Criminal Code (WA). He appeals against that conviction.
An appeal notice was filed on 30 July 2009 containing three grounds of appeal. On 5 August 2009 McKechnie J granted leave to appeal in respect of ground 1. The application for leave in respect of grounds 2 and 3 was to be heard at the same time as the appeal.
Ground 1 is as follows:
The leaned Magistrate erred in law in his application of the principle stated by the High Court in Weissensteiner -v- The Queen [1993] HCA 65; (1993) 178 CLR 217.
In the face of an explanation given by the Appellant on his second video record of interview as to how his fingerprints could have come to be on the window, the Learned Magistrate held that an explanation was called by the Appellant which would be consistent with innocence: thus, misapplying the principle stated in Weissensteiner.
At the hearing of the appeal grounds 2 and 3 were abandoned and the appellant sought to add a fourth ground of appeal. There being no objection, leave was granted.
Ground 4 states:
The Learned Magistrate erred in law by giving insufficient reasons as to how he reached findings of fact.

Evidence before the magistrate

The complainant was the part‑owner of a jewellery and clothing business and art gallery located in Parkville Street in Bunbury. At approximately 3.00 pm on Sunday 23 March 2008 the complainant attended the premises to show her mother some jewellery she had recently made. As it was a Sunday the shop was…

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 CMH (a child) v Bower

Details

AGLC: CMH (a child) v Bower [2009] WASC 347
Case: [2009] WASC 347
Decision Date: 26 NOVEMBER 2009

CaseChat Overview and Summary

In the case of CMH (a child) v Bower, the Court of Appeal examined a conviction based on circumstantial evidence, including the presence of fingerprints on a murder weapon. The defendant, Bower, was found guilty of the murder of a young girl and subsequently convicted. The Court of Appeal was tasked with determining whether the trial judge had erred in admitting certain evidence and whether the defendant's failure to provide an explanation to the police was properly considered. The central issue was whether the trial judge correctly applied the principles set out in the case of R v Weissensteiner when assessing the admissibility and weight of the evidence against Bower.

The court considered whether the trial judge adequately addressed the principles outlined in Weissensteiner, which concern the use of circumstantial evidence and the requirement for a satisfactory explanation for the presence of the defendant's fingerprints on the murder weapon. The court scrutinised the reasons provided by the trial judge for admitting the evidence and whether these reasons were sufficient to justify the conviction. The appeal hinged on whether the trial judge had appropriately balanced the circumstantial evidence with the lack of a direct explanation from the defendant and whether this omission was adequately considered in the context of the overall evidence presented.

The Court of Appeal found that the trial judge had not sufficiently addressed the principles in Weissensteiner when evaluating the evidence against Bower. The court held that the trial judge's reasons for admitting the evidence were inadequate and that the failure of the defendant to provide an explanation to the police was not properly weighed. Consequently, the court concluded that the conviction could not stand due to the misapplication of legal principles concerning circumstantial evidence. The appeal was allowed, and the conviction was quashed, resulting in Bower's release from prison pending a potential retrial.

Orders