JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2006
DATE OF JUDGMENT:	14 August 2006
CASE MAY BE CITED AS:	DPP v Woodward
MEDIUM NEUTRAL CITATION:	[2006] VSC 299

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Appeal from Magistrates’ Court on a question of law – Charge of aggravated burglary – Aggravation alleged to be constituted by having an “offensive weapon” – Accused carrying pocket knife in his shorts during a burglary – Pocket knife not an “offensive weapon” in itself – Accused acquitted – Disputed interpretation of Magistrate’s reasons for acquittal – Whether Magistrate imposed a requirement (alleged to be unnecessary) to prove that the carrying of the weapon was for the purpose of the burglary – Whether Magistrate merely (or also) made a finding, based on the accused’s intention, that the pocket knife was not an “offensive weapon” in the circumstances – Onus on appellant to demonstrate that Magistrate reasoned in the way complained of and that the alleged error vitiated the decision – Onus not discharged – Alleged question of law not arising – Appeal dismissed – Crimes Act 1958 s 77 – Magistrates’ Court Act 1989 s 92.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Office of Public Prosecutions
For the Respondent	Mr M E Regan	Dowling McGregor Thomas

HIS HONOUR:

Introduction

Shortly before 9.00 am on 7 April 2005 the respondent, Mr Woodward, drove to Barrington Street, Kew in a car he had stolen about a week earlier. Intent on further theft, he entered a house in that street by kicking in a window. He had with him a pocket knife and a screwdriver. Both were contained within his shorts. He did not encounter anyone in the house. He found and took away a laptop computer and within the hour he had sold it for money. He was arrested by police that same morning and interviewed at some length. He told the police that he always carried the pocket knife with him, not only when he was committing a burglary. He said that he carried it “just in case something happens … someone attacked me or assaulted me or something like that”. He denied emphatically that he would produce the knife if confronted by a person in a house he was burgling.

Mr Woodward was charged with a series of offences. The charges were later amended and supplemented. Ultimately, on 25 August 2005, Mr Woodward faced eight charges at the Melbourne Magistrates’ Court. They included burglary, theft and possessing a controlled weapon (the pocket knife) and going equipped to steal. In addition he was charged with aggravated burglary, contrary to s 77(1) of the Crimes Act 1958 (“Crimes Act”). The circumstance…

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 DPP v Woodward

Details

AGLC: Director of Public Prosecutions v Woodward [2006] VSC 299
Case: [2006] VSC 299
Decision Date: 14 August 2006

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions appealed against the decision of a magistrate to acquit the appellant, Woodward, of the offence of aggravated burglary. The alleged aggravating factor was the carrying of an "offensive weapon". Woodward was carrying a pocket knife in his shorts during the commission of the burglary. The magistrate held that the pocket knife was not an "offensive weapon" in the circumstances, and therefore, the accused was not guilty of aggravated burglary.

The court was required to determine whether the magistrate had imposed an additional requirement that the accused needed to prove the carrying of the weapon was for the purpose of the burglary, or whether the magistrate had made a finding based on the accused's intention that the pocket knife was not an "offensive weapon" in the circumstances. The court considered the burden of proof was on the appellant to demonstrate that the magistrate had reasoned in the way complained of and that the alleged error had vitiated the decision.

The court found that the magistrate had made a finding based on the accused's intention that the pocket knife was not an "offensive weapon" in the circumstances. The court held that the appellant had not discharged the onus of demonstrating that the magistrate had reasoned in the way complained of and that the alleged error had vitiated the decision. The court held that the alleged question of law did not arise and dismissed the appeal.

The court made no orders as to costs.

Orders