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Evans v Halliday

Evans v Halliday

Case [2021] WASC 85 1 April 2021

Appeal

Admissibility of Evidence

Expert Evidence

Causation

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   EVANS -v- HALLIDAY [2021] WASC 85
CORAM:   HILL J
HEARD:   3 MARCH 2021
DELIVERED          :   1 APRIL 2021
FILE NO/S:   SJA 1083 of 2020
BETWEEN:   ROBERT PHILIP EVANS
Appellant
AND
EMILY PIA HALLIDAY
Respondent

ON APPEAL FROM:
For File No:   SJA 1083 of 2020
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R BAYLY
MAGISTRATE R YOUNG

File Number : PE 5156 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appeal against refusal to admit expert evidence on CCTV footage - Whether expert evidence admissible

Criminal law - Appeal against conviction - Appeal against admission of photographic evidence - Whether expert evidence required on appearance of complainant in photographs - Whether expert medical evidence required

Legislation:

Criminal Code Act Compilation Act 1913 (WA) s 222, s 313

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr D B Cox
Respondent	:	Mr M I Olds & Ms R C Panetta

Solicitors:

Appellant	:	Mr D B Cox
Respondent	:	State Solicitor's Office

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

Angel v Hawkesbury City Council [2008] NSWCA 130
Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157, (2007) 162 FCR 234
Blacktown City Council v Hocking [2008] NSWCA 144
C. Van Der Lely NV v Bamfords Ltd [1963] RPC 61
Dye v The State of Western Australia [2005] WASCA 239
Goode v Angland [2017] NSWCA 311; (2017) 96 NSWLR 503
Grubisic v The State of Western Australia [2011] WASCA 147; (2011) 41 WAR 524
Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
QBE v Orcher [2013[ NSWCA 478
R v LM [2004] QCA 192
RST v The State of Western Australia [2016] WASCA 59
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v R [2001] HCA 50; (2001) 206 CLR 650
Townsend v O'Donnell [2016] NSWCA 288; (2016) 78 MVR 283

HILL J:

On 21 September 2020, the appellant was convicted after trial of the unlawful assault of Ms Lisa Jarvis‑Branco on 14 December 2018.
The learned magistrate found that during a dispute between them which occurred at the arcade where both were tenants, the appellant's head connected with the complainant's left cheek. As a consequence, the appellant was convicted of unlawful assault, fined $1,000 (which was payable to the complainant) and ordered to pay costs of $205.30.
The appellant seeks leave to appeal against his conviction on two grounds. First, that Magistrate Young, at a voir dire held prior to the trial, erred in excluding an expert report of Dr Andrew Short. Second, that Magistrate Bayly erred in making certain factual findings from photographs tendered at trial without the benefit of expert evidence.
For the reasons…

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 Evans v Halliday

Details

AGLC: Evans v Halliday [2021] WASC 85
Case: [2021] WASC 85
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appellant, Robert Philip Evans, sought leave to appeal against his conviction of unlawful assault of Ms Lisa Jarvis-Branco. The appellant was convicted after a trial in the Magistrates Court of Western Australia before Magistrate Bayly. The appellant raises two grounds of appeal. The first is that the learned magistrate erred in excluding an expert report of Dr Andrew Short. The second is that the learned magistrate erred in making certain factual findings from photographs tendered at trial without the benefit of expert evidence.

The Court considered that the first ground of appeal should be refused. The Short Report was not relevant to any fact in issue in the proceedings. The conclusions in the Short Report were based on the same material available to the learned magistrate and not on the expert's biomechanical expertise. Moreover, the determination of whether the appellant's head moved forwards at the same time that the complainant's head moved back and whether their heads were in contact with each other was not assisted by knowing that another person had been unable to conclude based on the CCTV footage whether this occurred.

The Court also considered that the second ground of appeal should be refused. The learned magistrate did not err in rejecting the submission that rosacea or another skin condition was the cause of the redness shown in the photographs. These matters were not raised on the evidence, and accordingly, the prosecution was not obliged to negate these matters. The learned magistrate accepted the evidence of the prosecution's witnesses, which he was entitled to do; the photographs corroborated this evidence. The photographs were not used to make findings of fact unsupported by evidence.

Accordingly, leave to appeal should be refused on both grounds and the appeal dismissed.

Orders