Conquista v Pennuto - [2021] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CONQUISTA -v- PENNUTO [2021] WASC 73
CORAM:   MCGRATH J
HEARD:   12 OCTOBER 2020
DELIVERED          :   19 MARCH 2021
FILE NO/S:   SJA 1096 of 2019
BETWEEN:   RENATO DICIERTO CONQUISTA
Appellant
AND
TARYN LEIGH PENNUTO
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE TAVENER
File Number            :   MI 6095 of 2018

Catchwords:

Criminal law - Magistrates Court - Appeal against conviction - Whether Magistrate erred in fact by excluding possibility of secondary transfer of DNA material - Whether appellant prejudiced by failure of prosecution to call a witness

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9
Criminal Code (WA), s 323

Result:

Leave to appeal not granted on grounds 1 and 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr F P Merenda
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	Director of Public Prosecutions (WA)

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

Nguyen v The Queen [2020] HCA 23
R v Apostilides (1984) 154 CLR 563
Richardson v The Queen (1974) 131 CLR 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shepherd v The Queen (1990) 170 CLR 573
Walsh v The State of Western Australia [2011] WASCA 119
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

MCGRATH J:

On 26 June 2019, the appellant was convicted, after trial in the Magistrates Court, of one offence of unlawful and indecent assault contrary to s 323 of the Criminal Code (WA).
The appellant appeals the conviction on two grounds. First, the appellant contends that there has been a miscarriage of justice in the conduct of the trial arising from the failure of the prosecution to call a witness. Second, that the learned magistrate made an express error in his reasoning in respect of the DNA evidence by not properly determining whether there was a secondary transference of the forensic material.
For the following reasons, I have determined that leave to appeal should not be granted and that the appeal should be dismissed.
In these reasons for decision I will consider the following:
1.The Magistrates Court proceedings.
2.The grounds of appeal.
3.The evidence received at trial.
4.An assessment of the merits of the appeal.

Magistrates Court proceedings

On 10 May 2018 the appellant was charged that on 15 January 2018 he unlawfully and indecently assaulted a 17‑year‑old female (the Complainant), contrary to s 323 of the Criminal Code.[1]
[1] Prosecution Notice charge number MI 6095/2018.
The prosecution's case was that the Complainant was employed as a shop attendant. The appellant, the father of the manager of the retail business, approached the Complainant at the shop and put his open hand on her right thigh. The appellant then moved his hand up her leg and touched the Complainant's vagina for a few seconds. The appellant then used the Filipino word for delicious and asked the Complainant if…

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 Conquista v Pennuto

Details

AGLC: Conquista v Pennuto [2021] WASC 73
Case: [2021] WASC 73
Decision Date

CaseChat Overview and Summary

Renato Dicierto Conquista has appealed against his conviction by the Magistrates Court of Western Australia for the offence of unlawful and indecent assault contrary to s 323 of the Criminal Code (WA). Conquista raises two grounds of appeal. First, he contends that there has been a miscarriage of justice in the conduct of the trial arising from the failure of the prosecution to call a witness. Second, he argues that the learned magistrate made an express error in his reasoning in respect of the DNA evidence by not properly determining whether there was a secondary transference of the forensic material. In these reasons for decision, I will consider: 1. The Magistrates Court proceedings.2. The grounds of appeal.3. The evidence received at trial.4. An assessment of the merits of the appeal.The appellant's first ground of appeal is without merit. In considering the evidence of the witness Ms Massey, the appellant's daughter, it is clear that the prosecution had determined that her evidence was inadmissible. This determination was made on the basis that Ms Massey's evidence would have been hearsay. The trial judge accepted that the prosecutor was entitled to form that view. The evidence of Ms Massey was not favourable to the prosecution's case. Ms Massey had declined to assist the police investigation. She gave evidence that she was not present during the incident and that after asking the appellant one question she stated that 'I didn't continue asking my dad, I know he didn't do it'. There is strong merit in the respondent's contention that Ms Massey's statement was clearly an attempt to provide an explanation as to how the appellant's DNA might have been transferred to the front crotch area of the Complainant's leggings. It was open to a reasonable prosecutor to form the view that Ms Massey had aligned herself with her father and was unwilling to assist the police investigation. When viewed against the conduct of this trial as a whole, it is not possible to find that the failure to call Ms Massey occasioned a miscarriage of justice.The appellant's second ground of appeal is also without merit. The learned magistrate was not required to expressly consider each and every possible means of secondary transfer. The learned magistrate expressly considered this issue by accepting that 'there's always the possibility of mishandling' and then stated that 'the possibility of transfer always arises and I've considered that'. The learned magistrate stated that 'I don't accept it came from her sitting on the kitchen, on a cushion, and I don't accept it was due to transfer'. The learned magistrate did consider secondary transfer by other means. Accordingly, leave is not granted on grounds 1 and 2 and the appeal is dismissed.

Orders