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Evans v Kelly

Evans v Kelly

Case [2012] WASC 148 4 May 2012

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: EVANS -v- KELLY [2012] WASC 148

CORAM: HALL J

HEARD: 21 FEBRUARY 2012

DELIVERED : 4 MAY 2012

FILE NO/S: SJA 1107 of 2011

BETWEEN: CLINTON JAMES EVANS
Appellant
AND
BRENDAN FRANCIS KELLY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :MI 10411 of 2010

Catchwords:

Criminal law - Indecent assault - Appeal against conviction - Whether guilty verdict unreasonable or could not be supported having regard to the evidence - Whether it was open on the evidence for the magistrate to be satisfied beyond reasonable doubt - Need to review whole of the evidence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(2)
Criminal Code (WA), s 323

Result:

Extension of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms A S Rogers
Respondent: Ms C A Fletcher

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

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

Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Grubisic v State of WA [2011] WASCA 147
Harvey v Matthews [1999] WASCA 58
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lovell v Fulman [2011] WASC 312
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morgan v The State of Western Australia [2011] WASCA 185
Rasoolifard v Nicol [2001] WASCA 180
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
Smart v Albuquerque [2011] WASCA 231
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

HALL J:

Introduction

On 29 April 2011 the appellant was convicted in the Midland Magistrates Court of one count of indecent assault contrary to s 323 of the Criminal Code (WA). That conviction followed a hearing which took place on 17 and 18 February 2011. He now seeks leave to appeal against his conviction.
The appeal notice was filed on 12 October 2011. That was some four and a half months out of time. An application for an extension of time was filed, supported by an affidavit from the appellant's solicitor. The reason given for the delay is that the appellant had difficulties in obtaining funds to retain lawyers to act for him on the appeal. The nature of those difficulties is not detailed in the affidavit.
An extension of time may be granted where the delay is not adequately explained if there are…

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 Kelly

Details

AGLC: Evans v Kelly [2012] WASC 148
Case: [2012] WASC 148
Decision Date: 4 MAY 2012

CaseChat Overview and Summary

Evans and Kelly were before the court in an appeal against a conviction for indecent assault. The case arose from an incident where the accused, Kelly, was found guilty of indecent assault by a magistrate, who was subsequently appealed by the accused on the basis that the guilty verdict was unreasonable and could not be supported by the evidence. The appeal was heard by the court, which was required to determine whether the verdict was unreasonable or whether it was open on the evidence for the magistrate to be satisfied beyond reasonable doubt.

The court considered the entirety of the evidence presented at the trial to assess whether the magistrate could have reasonably reached the guilty verdict. The court noted that in reviewing the verdict, it was essential to consider the evidence as a whole and determine if it was open to the magistrate to be satisfied beyond reasonable doubt. The court emphasised the importance of reviewing the entire evidence, as the appeal turned on the unique facts of this case. The court held that the magistrate's decision was open to them based on the evidence presented, and therefore, the appeal was dismissed.

In conclusion, the court upheld the magistrate's decision, finding that the evidence was sufficient to support the guilty verdict. The court emphasised that in reviewing the verdict, it was essential to consider the evidence as a whole and determine if it was open to the magistrate to be satisfied beyond reasonable doubt. The court found that the evidence was sufficient for the magistrate to be satisfied beyond reasonable doubt, and the appeal was dismissed. The final order of the court was that the appeal was dismissed, and the conviction of the accused for indecent assault was upheld.

Orders