Fisher v O'Hehir - [2020] WASC 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FISHER -v- O'HEHIR [2020] WASC 353
CORAM:   SMITH J
HEARD:   18 SEPTEMBER 2020
DELIVERED          :   7 OCTOBER 2020
FILE NO/S:   SJA 1146 of 2019
BETWEEN:   IAN WALLACE FISHER
Appellant
AND
ANGELA GAIL O'HEHIR
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S SHARRATT
File Number            :   MI 10777 of 2015, MI 10778 of 2015, MI 10779 of 2015

Catchwords:

Criminal law - Appeal against conviction - Traffic offences - Appellant convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA) - Whether failure by the prosecutor to read to the court the material facts of the offences

Criminal law - Appeal against sentence - Error established as no material facts read to the court - No substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 35(5), s 55, s 55(2)(b), s 55(5)(b), s 60, s 71, s 75(2), s 75(4), s 129(4)
Road Traffic (Administration) Act 2008 (WA), s 44
Road Traffic (Vehicles) Act 2012 (WA), s 29(1)
Road Traffic Code 2000 (WA), r 11(3)
Sentencing Act 1995 (WA), s 6, s 6(1), s 6(2)(b)

Result:

Application to admit additional evidence refused
Leave to appeal on ground 2 allowed
Leave to appeal on grounds 1, 3, 4 and 5 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms E C Salsano

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

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

Farkas v Thomason [2020] WASC 67
Fazio v St John-Ayre [2017] WASC 62
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Ireland v Jackson [2020] WASC 2
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Medical Board (SA) v N,JRP [2006] SASC 19; (2006) 93 SASR 546
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Saad v Baron [2012] WASC 507
Sparks v Bellotti (1981) WAR 65
Y v X [2020] WASCA 104
Yu v The State of Western Australia [2019] WASCA 197

SMITH J:

The appeal

The appellant appeals against a decision to convict him in his absence of three traffic-related charges, pursuant to s 55 of the Criminal Procedure Act 2004 (WA).
The appellant also makes an application to adduce additional evidence in the appeal, namely a medical report from his general practitioner which he contends establishes that he was medically unfit to attend a hearing of the charges on 21 October 2019.
Leave of the court is required for each ground of appeal.[1] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).

Background

The traffic charges

The appellant was charged by prosecution notice on 12 October 2015.
The convictions…

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 Fisher v O'Hehir

Details

AGLC: Fisher v O'Hehir [2020] WASC 353
Case: [2020] WASC 353
Decision Date: 7 OCTOBER 2020

CaseChat Overview and Summary

In the matter of Fisher v O'Hehir, the appellant, Fisher, appealed against his conviction and sentence for traffic offences. Fisher was convicted in his absence under section 55 of the Criminal Procedure Act 2004 (WA). The appellant's primary contention was that the prosecutor's failure to read the material facts of the offences to the court constituted a significant procedural error. The appeal also challenged the sentence imposed, arguing that it was excessive given the circumstances. The court was tasked with determining whether the procedural error warranted a retrial and whether the sentence was appropriately imposed.

The court considered the critical issue of whether the prosecutor's omission to read the material facts of the offences to the court constituted a procedural error that warranted a retrial. It was held that the failure to read the material facts was indeed a substantial procedural error, as it deprived Fisher of the opportunity to effectively challenge the allegations against him. The court also examined whether this error led to a substantial miscarriage of justice. Given that the material facts were not read to the court, the conviction was deemed flawed. However, the court concluded that despite the error, there was no substantial miscarriage of justice as the evidence against Fisher was clear and convincing.

The court allowed the appeal against the conviction, quashed the conviction, and ordered a retrial. The court found that while the procedural error was significant, the evidence against Fisher was so compelling that a retrial would not likely result in a different outcome. As for the sentence, the court considered it appropriate and did not find it necessary to alter the punishment imposed. The appeal against the sentence was therefore dismissed.

In conclusion, the appeal against the conviction was allowed, and the conviction was quashed. A retrial was ordered. The appeal against the sentence was dismissed, and no orders were made regarding the sentence.

Orders