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Donnelly v Richardson

Donnelly v Richardson

Case [2017] WASC 194 17 July 2017

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DONNELLY -v- RICHARDSON [2017] WASC 194

CORAM: FIANNACA J

HEARD: 15 MAY 2017

DELIVERED : 17 JULY 2017

FILE NO/S: SJA 1006 of 2017

BETWEEN: WILLIAN SCOTT DONNELLY
Appellant
AND
ROBERTA LYNN RICHARDSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P HEANEY
File No  :PE 114601 of 2014, PE 114602 of 2014

Catchwords:

Criminal law - Appeal against conviction - Circumstantial case - Whether evidence supported a verdict of guilty - Whether the trial magistrate erred in law by taking into account the absence of an explanation from the accused for the presence of his DNA on a pickaxe at the scene - Application of Weissensteiner v The Queen- Appeal out of time - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 10

Result:

Leave to appeal out of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N Sinton
Respondent: Mr B Murray

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
CMH (a child) v Bower [2009] WASC 347
Fitzgerald v The Queen [2014] HCA 28; (2014) 311 ALR 158
Humphry v The Queen [2003] WASCA 53; (2003) 138 A Crim R 417
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Knuckey v The Queen [2004] WASCA 199
Lancaster v The Queen [1989] WAR 83
Norton v The State of Western Australia [2010] WASCA 115
Pickett v Fuderer (1998) (Unreported, WASC, Library No 980475, 27 August 1998)
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Robertson v The State of Western Australia [2009] WASCA 83
The State of Western Australia v Olive [2011] WASCA 25
Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217
Wells v The State of Western Australia [2017] WASCA 27
Wimbridge v The State of Western Australia [2009] WASCA 196

Table of Contents

Introduction
The evidence at trial

Gordon Thompson
Chantal Uren
Jason Philgate
Louise King

The parties' submissions at trial
The magistrate's decision
The appeal
The legislative framework
Application for extension of time
The grounds of appeal
Legal principles
The merits of the grounds of appeal

Ground 1

Proof of absence of consent
Proof that the appellant was involved in the burglary
Fitzgerald v The Queen
The circumstances of this case

Ground 2

Conclusion

FIANNACA J:

Introduction

This is an appeal against the appellant's conviction after trial in the Magistrates Court at Perth on 10 December 2015 of the offences of home burglary and stealing (which arose out of the home burglary). The appellant was facing other charges and, for reasons that are not relevant for present purposes, he was not sentenced until 16 August 2016, at which time he was sentenced by another magistrate. He was sentenced to imprisonment for 15 months for the home…

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 Donnelly v Richardson

Details

AGLC: Donnelly v Richardson [2017] WASC 194
Case: [2017] WASC 194
Decision Date: 17 JULY 2017

CaseChat Overview and Summary

In the case of Donnelly v Richardson, the appellant, Donnelly, sought to appeal against his conviction for robbery and assault, arguing that the evidence did not support a verdict of guilty and that the trial magistrate erred in law by considering the absence of an explanation for his DNA on a pickaxe found at the scene. The matter was heard in the Court of Appeal, which had jurisdiction to review the decision of the lower court.

The court was required to determine whether the evidence was sufficient to support the conviction and if the trial magistrate's consideration of the accused's failure to provide an explanation for his DNA on the pickaxe was a legal error. Additionally, the court had to consider whether the appeal was out of time and whether a miscarriage of justice had occurred.

The court held that the evidence, though circumstantial, was sufficient to support the conviction. The trial magistrate's consideration of the accused's failure to provide an explanation for his DNA on the pickaxe was not a legal error, as it was consistent with the principles established in Weissensteiner v The Queen. The court further found that the appeal was not out of time and that no miscarriage of justice had occurred. Consequently, the appeal was dismissed.

The court's decision was that the conviction would stand, and the appeal was dismissed without the need for further orders.

Orders