COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 239 | |
| THE COURT OF APPEAL (WA) | 15/11/2006 | ||
| Case No: | CACR:137/2005 | 5 OCTOBER 2006 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA McLURE JA | 5/10/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed Appeal in CACR 143 of 2005 dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID ROBERT COLBUNG THE STATE OF WESTERN AUSTRALIA DARREN COLBUNG DENNIS ROBERT COLBUNG BRETT JADE COLBUNG DAVID MICHAEL COLBUNG DANIEL MARK COLBUNG DAMIEN ALI COLBUNG SHANNON SHAWN COLBUNG |
Catchwords: | Criminal law Whether trial Judge erred in refusing application for details of the occupation or field of study of jurors Whether error in direction as to the application of s 8 of the Criminal Code Whether verdicts inconsistent Criminal law and procedure Sentencing Whether proper consideration of suspended sentence Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4) Criminal Code (WA), s 7, s 8 Criminal Procedure Act 2004 (WA), s 104 Electoral Act 1907 (WA), s 22(1), s 42, s 44, s 44A, s 51B Electoral Regulations 1996 (WA), reg 8(1) Juries Act 1957 (WA), s 5, s 14, s 26, s 30, s 32FA, s 33A, s 34B |
Case References: | Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567 Chandler (No 2) [1964] 2 QB 322 Johns v The Queen (1980) 143 CLR 108 MacKenzie v The Queen (1996) 190 CLR 348 Nevermann (1989) 43 A Crim R 347 Abraham v Espinoza, unreported; SCt of WA; Library No 980275; 27 May 1998 Borg v The Queen [1972] WAR 194 Brennan v The King (1936) 55 CLR 253 Britten & Eger v The Queen (1988) 49 SASR 47 Chan Wing-Siu v The Queen [1985] AC 168 Dinsdale v The Queen (2000) 202 CLR 321 Dodd v Hoogewerf [2002] WASCA 15 Etrelezis v The Queen [2001] WASCA 327 G (1997) 96 A Crim R 162 Gipp v The Queen (1998) 194 CLR 106 Johns v The Queen (1979) 141 CLR 409 Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992 Katsuno v The Queen (1999) 199 CLR 40 Latham v The Queen (2000) 117 A Crim R 74 Maher v The Queen (1987) 163 CLR 221 McClintock v The King (1946) 47 WALR 95 Meaney v The Queen, unreported; SCt of WA; Library No 2257; 28 February 1978 Mickelberg v The Queen (1989) 167 CLR 259 Miller v The Queen (1980) 55 ALJR 23 Mills v The Queen (1986) 61 ALJR 59 Morgan v The King (1920) 22 WALR 45 Morris v The Queen (1987) 163 CLR 454 Nguyen v The Queen (2001) 160 FLR 216 Nguyen v The Queen [2001] WASCA 176 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 Osland v The Queen (1998) 197 CLR 316 R v Barlow (1997) 188 CLR 1 R v Brown (2004) 148 A Crim R 268 R v Cherry (2005) 12 VR 122 R v Johns [1978] 1 NSWLR 282 R v Liddington (1997) 18 WAR 394 R v Panozzo (2003) 8 VR 548 R v Privitera [1966] WAR 12 Saunders v The Queen [1980] WAR 183 Stokes & Difford (1990) 51 A Crim R 25 Stuart v The Queen (1974) 134 CLR 426 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 239 CORAM : STEYTLER P
- ROBERTS-SMITH JA
McLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
FILE NO/S : CACR 139 of 2005 BETWEEN : DENNIS ROBERT COLBUNG
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- CACR 143 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 3)
FILE NO/S : CACR 144 of 2005 BETWEEN : DAMIEN ALI COLBUNG
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : ALB 4 of 2003
Catchwords:
Criminal law - Whether trial Judge erred in refusing application for details of the occupation or field of study of jurors - Whether error in direction as to the application of s 8 of the Criminal Code - Whether verdicts inconsistent
Criminal law and procedure - Sentencing - Whether proper consideration of suspended sentence - Turns on own facts
(Page 4)
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 7, s 8
Criminal Procedure Act 2004 (WA), s 104
Electoral Act 1907 (WA), s 22(1), s 42, s 44, s 44A, s 51B
Electoral Regulations 1996 (WA), reg 8(1)
Juries Act 1957 (WA), s 5, s 14, s 26, s 30, s 32FA, s 33A, s 34B
Result:
Applications dismissed
Appeal in CACR 143 of 2005 dismissed
Category: B
Representation:
CACR 137 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Atlas Legal
Respondent : State Director of Public Prosecutions
CACR 138 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Atlas Legal
Respondent : State Director of Public Prosecutions
(Page 5)
CACR 139 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Atlas Legal
Respondent : State Director of Public Prosecutions
CACR 140 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Atlas Legal
Respondent : State Director of Public Prosecutions
CACR 141 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Atlas Legal
Respondent : State Director of Public Prosecutions
(Page 6)
CACR 142 of 2005
CACR 143 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
CACR 144 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
CACR 204 of 2005
Counsel:
Appellant : Mr B S Hanbury
Respondent : Mr M Mischin
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567
Chandler (No 2) [1964] 2 QB 322
(Page 7)
Johns v The Queen (1980) 143 CLR 108
MacKenzie v The Queen (1996) 190 CLR 348
Nevermann (1989) 43 A Crim R 347
Case(s) also cited:
Abraham v Espinoza, unreported; SCt of WA; Library No 980275; 27 May 1998
Borg v The Queen [1972] WAR 194
Brennan v The King (1936) 55 CLR 253
Britten & Eger v The Queen (1988) 49 SASR 47
Chan Wing-Siu v The Queen [1985] AC 168
Dinsdale v The Queen (2000) 202 CLR 321
Dodd v Hoogewerf [2002] WASCA 15
Etrelezis v The Queen [2001] WASCA 327
G (1997) 96 A Crim R 162
Gipp v The Queen (1998) 194 CLR 106
Johns v The Queen (1979) 141 CLR 409
Jones v The Queen, unreported; CCA SCt of WA; Library No 920406; 31 July 1992
Katsuno v The Queen (1999) 199 CLR 40
Latham v The Queen (2000) 117 A Crim R 74
Maher v The Queen (1987) 163 CLR 221
McClintock v The King (1946) 47 WALR 95
Meaney v The Queen, unreported; SCt of WA; Library No 2257; 28 February 1978
Mickelberg v The Queen (1989) 167 CLR 259
Miller v The Queen (1980) 55 ALJR 23
Mills v The Queen (1986) 61 ALJR 59
Morgan v The King (1920) 22 WALR 45
Morris v The Queen (1987) 163 CLR 454
Nguyen v The Queen (2001) 160 FLR 216
Nguyen v The Queen [2001] WASCA 176
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Osland v The Queen (1998) 197 CLR 316
R v Barlow (1997) 188 CLR 1
R v Brown (2004) 148 A Crim R 268
R v Cherry (2005) 12 VR 122
R v Johns [1978] 1 NSWLR 282
R v Liddington (1997) 18 WAR 394
R v Panozzo (2003) 8 VR 548
R v Privitera [1966] WAR 12
(Page 8)
Saunders v The Queen [1980] WAR 183
Stokes & Difford (1990) 51 A Crim R 25
Stuart v The Queen (1974) 134 CLR 426
(Page 9)
1 STEYTLER P: I have had the advantage of reading the judgment of McLure JA. It expresses my own reasons for joining in the conclusion that the applications for leave to appeal against convictions should be dismissed and that the appeal against sentence should be dismissed. There is nothing I wish to add.
2 ROBERTS-SMITH JA: I agree with the reasons for judgment of McLure JA and have nothing to add.
3 McLURE JA: The appellants sought leave to appeal against their convictions arising out of a fight between members of the Colbung extended family and the Krakouer extended family after a football match in Mt Barker on 28 April 2002. Daniel Colbung also appealed against his sentence of 2 years and 6 months' imprisonment. At the conclusion of the hearing the Court dismissed the applications for leave to appeal against conviction and the appeal against sentence. These are my reasons for joining in that decision.
4 Each appellant was charged with taking part in a fight of such a nature as to alarm the public in a place to which the public had access (count 1), with intent to maim, disfigure, disable, or do grievously bodily harm to Neil Anthony Krakouer, unlawfully doing grievously bodily harm to him (count 2) and unlawfully assaulting Jason Krakouer and thereby doing him bodily harm (count 3). The verdicts were as follows:
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5 One accused was acquitted on all counts. Three grounds of appeal were common to all appellants. They were that the learned trial Judge:
1. denied the appellant his right of peremptory challenge as provided for by s 104(4) of the Criminal Procedure Act 2004 (WA);
2. denied the appellant his right of challenge as provided for by s 104(5) of the Criminal Procedure Act; and
3. erred in law in directing the jury as to the application of s 8 of the Criminal Code (WA).
6 In the applications made by David Michael Colbung and Shannon Colbung, there was a fourth ground of appeal being that the verdicts of guilty were unsafe and unsatisfactory on the basis of inconsistency.
Grounds 1 and 2 – Jury Empanelment
7 Counsel for the appellants in the appeal, Mr Hanbury, appeared for two of the appellants at trial. The other appellants were represented by different counsel. The jury list provided to counsel prior to empanelment of the jury did not specify the occupations of all the persons in the list. Further, where the occupation was stated as student, there was no information provided as to the field of study. On three occasions Mr Hanbury applied to the trial Judge for details of the occupation of a prospective juror or their field of study. The trial Judge refused the applications on the ground that his clients were not entitled to the information.
8 Of the 18 jurors empanelled for the trial, three had no occupations listed by their names. Of these, one person without a listed occupation was discharged during the trial for failing to attend due to vehicle problems and another failed to be selected to retire with the jury. Two jurors identified as students were empanelled. Both retired with the jury. None of the appellants exhausted their peremptory challenges. The two appellants represented by Mr Hanbury had three and two challenges respectively.
9 In their first two grounds of appeal, the appellants contend they had a right to be provided with the occupation of all jurors on the panel and,
(Page 11)
- when the occupation was shown as student, information as to their field of study. They say that information is required to enable them to assess whether there is cause to challenge a juror. The grounds are without merit. Section 104 of the Criminal Procedure Act deals with challenging jurors. It provides:
"(1) An accused cannot object to the whole panel of jurors.
(2) The right to challenge a juror under subsection (3), (4) or (5) may only be exercised before the juror is sworn.
(3) The prosecutor may challenge 5 peremptorily.
(4) The accused, or if there are 2 or more accused, each accused, may challenge 5 jurors peremptorily.
(5) In addition to the rights in subsections (3) and (4), the prosecutor or an accused may challenge a juror on the ground -
(a) that the juror is not qualified by law to act as juror; or
(b) that the juror is not indifferent as between the accused and the State of Western Australia.
(6) If it is necessary to decide any fact for the purposes of determining a challenge made under subsection (5), the fact must be decided by the trial judge on any evidence and in any manner he or she thinks just."
11 There is nothing in the language or purpose of s 104 of the Criminal Procedure Act that arguably supports the appellants' grounds of appeal. The trial Judge's duty under s 104(6) does not arise unless and until a party has challenged a juror on one of the grounds specified in subs (5)(a) or (b). There was no such challenge in this case. Furthermore, it is implicit in the language of subs (5) that there be a proper foundation for a challenge. That is consistent with the common law which requires a
(Page 12)
- challenger for cause to lay a foundation in fact for the challenge before being entitled to cross-examine the juror: Chandler (No 2) [1964] 2 QB 322 at 338. Not only did the appellants fail to challenge any juror under s 104(5), there was no foundation in fact for such a challenge, either on the material at trial or in the appeal.
12 There are means other than s 104 of the Criminal Procedure Act for ensuring that ineligible or disqualified persons do not sit on a jury. The Juries Act provides a series of opportunities and stages at which ineligible or unqualified persons can be identified and excluded from sitting on a jury. First, it is necessary to briefly describe the process of jury empanelment. By s 14 of the Juries Act, the Electoral Commissioner is required to prepare by 30 April each year jury lists for each jury district from electors who are shown in the electoral rolls for the relevant district. The Electoral Commissioner's duty is to provide to the sheriff a list of names for the respective jury districts (s 14(3) and (4)). Before 1 July every year the sheriff must cause to be prepared and sent to the jury officer of each jury district the jury list (called the jurors' book) "containing the names duly numbered in regular arithmetical series appearing on the list" (s 14(10)). Section 26 of the Juries Act details the procedure for preparation from the jury book of the jury panel by the summoning officer who is required to write or cause to be written on a panel "the number, and the name with the addition shown in the jurors' book in connection with that name" (s 26(3)). The parties have a right to inspect the panel for a criminal trial which has to be kept in the offices of the summoning officer for four clear days before the day appointed for the attendance of the jurors (s 30).
13 After receipt of the jury list from the Electoral Commissioner the sheriff is required to remove from that list persons not eligible or qualified to serve as a juror, or who are dead, or no longer reside in the jury district or if the address of the person is unknown (s 14(8)).
14 Section 33A of the Juries Act provides that a summons for attendance as a juror must be accompanied by a notice informing the person named in the summons of the grounds of ineligibility, disqualification or excuse. Further, after calling the roll of persons summonsed from a jury pool or by general jury precept, the persons summonsed must be advised of their obligation to disclose the existence of any of the factors referred to in the fourth schedule (s 32FA and s 34B). The matters in the fourth schedule are as follows:
(Page 13)
- "Any incapacity by reason of disease or infirmity of mind or body, including defective hearing, that may affect the discharge of the duty of the juror.
Lack of understanding of the English language.
Any family relationship with, or any bias or likelihood of bias by reason of being acquainted with, or employed by the Judge or any legal practitioner engaged in the trial … the prosecutor or accused in the trial, or with the victim of the crime in question.
Any other reason why there may be bias or likelihood of bias."
15 The summoning officer may omit a person who is not eligible to be a juror from the panel (s 26(4)). Finally, the trial Judge in this case gave the jury panel a comprehensive statement relating to matters giving rise to bias or a reasonable apprehension of bias and other grounds of disqualification.
16 At the hearing of the appeal, the appellants contended that the Juries Act required that the jury list set out the occupation of the persons in the list and failure to do so invalidated the jury list and the trial. There is no express provision in the Juries Act to that effect. The appellants claimed that the obligation to state the occupation in the jury list is implied in the Juries Act because of the law relating to the content of the electoral roll. Section 22(1) of the Electoral Act 1907 (WA) provides:
"Subject to section 51B, rolls may be in the prescribed form, and shall set out the surname, christian or given name, and residence of each elector and, subject to subsection (2), such other particulars as are prescribed."
17 Regulation 8(1) of the Electoral Regulations 1996 (WA) provides that in addition to the matters prescribed in s 22 of the Electoral Act, a roll is to set out the sex and occupation of each elector on the roll.
18 Section 51B of the Electoral Act enables an elector's address to be deleted from the electoral roll. Moreover, a person must be placed on the electoral roll even if they have not provided information as to their occupation: ss 42, 44 and 44A of the Electoral Act. The obligation in the Electoral Regulations to include the elector's occupation must be subject to the provision of that information by the elector. Furthermore, there is no mechanism in the Electoral Act or Electoral Regulations for ensuring that information as to occupation is current.
(Page 14)
19 The jury list in evidence contained the name, address and in most cases the occupation of each person on the list. It may be that the occasional omission of a person's occupation from the jury list is because it is not contained in the electoral roll. However, the practice of providing a person's occupation (where available) does not mean the Electoral Commissioner is under a duty to provide it. To the contrary, the Juries Act does not state that the Electoral Commissioner is to provide the information set out in the electoral roll. The electoral roll is only the source from which the jury lists are compiled. It cannot have been the legislative intention that the Electoral Commissioner be obliged to set out the elector's occupation when that information is unlikely to be current, is not an essential particular for enrolment of a claimant on the electoral roll, is unnecessary for a peremptory challenge and the Juries Act provides detailed mechanisms for identifying and excluding ineligible or disqualified jurors. Accordingly, there is no reason in principle why the interests of justice dictate the provision of the information sought by two of the appellants.
Ground 3 - Section 8 of the Criminal Code
20 The prosecution case was that the appellants comprised members of an armed group that assaulted members of the Krakouer family including the complainants in counts 2 and 3. There was evidence that some members of the group handed out weapons, including baseball bats, that some members struck the blows that resulted in Neil Krakouer suffering life-threatening injuries which left him with permanent disabilities and which fractured the wrist of Jason Krakouer and that some members prevented others from going to the assistance of the complainants. The trial Judge gave directions in relation to s 7(a) and (b) and s 8 of the Criminal Code.
21 The trial Judge referred to and explained the operation of s 8 on a number of occasions in his summing up (including at T1223 - T1225, T1229, T1265 - T1266 and T11322 - T1323). It is convenient to refer to the direction given in response to a question from the jury. The trial Judge said:
"What [section 8] says, and I will read the section word for word:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence
(Page 15)
- of the prosecution of such purpose, each of them is deemed to have committed the offence.
Now, what that means in the circumstances of this case is that if you're satisfied that the 10 accused prior to the fight formed the common intention in conjunction with one another to unlawfully fight with the Krakouers using weapons and doing that in conjunction with each other and in carrying out that common objective one or more of them intentionally did grievous bodily harm to Neil and did bodily harm to Jason in circumstances where the infliction of such harm was a probable consequence of the execution of the common intention to fight with the Krakouers with weapons, then the accused would be deemed to have committed the same offence even though the person didn't participate.
Now, in relation to the second charge, as I said, if you're not satisfied that there was the intention to aim to maim, disfigure, disable or do grievous bodily harm to Neil but you are satisfied that grievous bodily harm was done to Neil, then the same thing applies in relation to section 8 in relation to the alternative offence."
22 Mr Hanbury on behalf of the appellants he represented submitted to the trial Judge that the common intention and unlawful purpose must be to fight the particular complainant, being Neil Krakouer on count 2 and Jason Krakouer on count 3. The trial Judge, correctly in my respectful opinion, rejected the submission.
23 Under s 8 of the Criminal Code there must be a common intention to prosecute an unlawful purpose and the offence in question (in this case, counts 2 and 3) must be a probable consequence of the prosecution of the unlawful purpose. It is not the case that the common intention or the unlawful purpose is to commit the offence in question. For example, where two people form a common intention to rob and in the course of that intention A drives B to the scene knowing that B is armed and capable of violence and B during the course of the robbery kills a victim at the scene, the commission of the killing was a probable consequence of the prosecution of the robbery and A would be liable for the killing: Johns v The Queen (1980) 143 CLR 108. There is no merit in ground 3.
(Page 16)
Ground 4 - Inconsistency
24 The appellants David Michael Colbung and Shannon Colbung were found guilty on counts 1 and 2 and not guilty on count 3. They contend that if the jury properly understood the trial Judge's direction on s 8, it was not possible to acquit on count 3 and convict on counts 1 and 2.
25 The relevant legal principles are not in dispute. Where the inconsistency is said to arise in the jury verdicts upon different counts, the test is one of logic and reasonableness. The appellant must satisfy the Court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts and the case could have arrived at the conclusion or could not have reasonably come to the conclusion in which event the convictions cannot stand: MacKenzie v The Queen (1996) 190 CLR 348 at 366. However, the respect for the function which the law assigns to juries has led courts to express repeatedly a reluctance to accept a submission that verdicts are inconsistent in the relevant sense. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted: MacKenzie at 367.
26 The appellants' contention was in substance that, based on the trial Judge's direction in relation to s 8, a finding of guilt on count 1 necessitated a finding of guilt on count 3. That submission is without foundation. The elements of the offence the subject of count 1 are different from the elements required to establish guilt on counts 2 and 3 under s 8 of the Criminal Code. In particular, a person could be involved in the fight but there may be doubt as to whether that person formed the requisite common intention. Indeed, it is apparent from all the verdicts that the jury carefully considered the position of each offender in relation to each offence. Further, the jury may have reached their verdicts on counts 2 and 3 by the alternative route under s 7 of the Criminal Code. It cannot be said that the verdicts are irreconcilable.
Sentence
27 The sole ground of appeal is that the learned sentencing Judge failed to give any or any sufficient consideration to suspending the sentence of imprisonment.
28 The appellant, Daniel Colbung, was sentenced to 6 months' imprisonment on count 1, 2 years' imprisonment on the alternative verdict on count 2 of unlawfully doing grievous bodily harm and 6 months'
(Page 17)
imprisonment on count 3. He was made eligible for parole. The sentences on counts 2 and 3 were ordered to be served cumulatively with each other and concurrently with the sentence on count 1.
29 The learned sentencing Judge found that the appellant was involved in the attack on Neil Krakouer using a bat. The complainant suffered severe head injuries including multiple skull fractures and has permanent disabilities. The Judge also found that the appellant struck blows to Jason Krakouer. He also expressly had regard to all of the mitigating factors including the appellant's prior good character, his good work record and the regard in which he was held. It is the case that the sentencing Judge made no express reference to suspending the term of imprisonment. However, the failure to make express reference to that sentencing option does not require a conclusion that the sentencing Judge failed to consider and reject that as an alternative: Nevermann (1989) 43 A Crim R 347 at 350. In the absence of credible evidence to the contrary, it can be assumed that the sentencing judge has complied with his duties and considered relevant matters: Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998; Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567 at 576 - 577.
30 It is apparent from the sentencing remarks as a whole, particularly the findings as to the nature and extent of the appellant's involvement in the assaults and the serious injuries occasioned to Neil Krakouer, that the sentencing Judge concluded that a term of immediate imprisonment was the only appropriate disposition. Even if, contrary to my view, the sentencing Judge had not concluded that a term of immediate imprisonment was the only appropriate sentencing option, this Court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA). I was not of the opinion that a different type of sentence should have been imposed.
- AGLC
- Colbung v The State of Western Australia [2006] WASCA 239
- Case
- [2006] WASCA 239
- Decision Date
CaseChat Overview and Summary
The court first examined whether the trial judge erred in refusing the application for details of the occupation or field of study of the jurors. It was argued that such information could be relevant in understanding any potential bias. However, the court found that the trial judge's decision was in line with established legal principles, which do not require extensive disclosure of juror backgrounds unless there is a specific reason to believe bias may exist. The court then addressed whether there was an error in the direction given to the jury concerning the application of section 8 of the Criminal Code. The applicant argued that the direction was misleading, but the court found no such error and upheld the trial judge's direction as correct. The court also considered whether the verdicts were inconsistent, but found that there was no inconsistency, affirming the trial judge's findings. Lastly, the court reviewed the sentence imposed, determining that the trial judge had properly considered the circumstances and the principles governing sentencing, and found no basis to interfere with the sentence.
In light of the above, the court dismissed the application for further information about the jurors, rejected the argument regarding the error in the direction given to the jury, confirmed the consistency of the verdicts, and upheld the sentence. The appeal was dismissed, and the applications were also dismissed.
Orders
Orders of the court
Applications dismissed
Appeal in CACR 143 of 2005 dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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