Ha v Forrest

Case [2019] WASC 26

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   HA -v- FORREST [2019] WASC 26

CORAM:   ACTING JUSTICE STRK

HEARD:   29 NOVEMBER 2018

DELIVERED          :   11 FEBRUARY 2019

FILE NO/S:   SJA 1075 of 2018

BETWEEN:   HA

Appellant

AND

CHRISTOPHER ANDREW FORREST

Respondent

ON APPEAL FROM:

For File No:   SJA 1075 of 2018

Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE S M DE MAIO

File Number            :   CC KAL 254 of 2017, CC KAL 256 of 2017, CC KAL 257 of 2017


Catchwords:

Criminal law - Appeal against conviction - Propensity evidence - Whether properly admitted - Whether a miscarriage of justice for unsafe and unsatisfactory conviction - No miscarriage of justice - Magistrate's findings reasonable in all circumstances

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b), s 9(1), s 9(2), s 9(3), s 10(3), pt 2
Criminal Code (WA), s 417(1)
Evidence Act 1906 (WA), s 31A

Result:

Leave to appeal granted for both grounds
Appeal dismissed on both grounds

Category:    B

Representation:

Counsel:

Appellant : A D Sullivan
Respondent : G N Beggs

Solicitors:

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

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Briggs v Houlihan [2018] WASC 301

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

DKA v The State of Western Australia [2017] WASCA 44

Gibbs v The State of Western Australia [2018] WASCA 68

Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565

JJS v The State of Western Australia [2014] WASCA 136

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453

Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347

R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308

RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67

Robertson v The State of Western Australia [2009] WASCA 83

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

The State of Western Australia v Olive [2011] WASCA 25

Wimbridge v The State of Western Australia [2009] WASCA 196

ACTING JUSTICE STRK:

  1. This is an appeal against convictions in the Kalgoorlie Children's Court.  The appellant appeared in the Kalgoorlie Children's Court on nine charges.  Pleas of guilty were entered in July 2017 in relation to three of the nine charges before the trial magistrate.  The trial for the remaining charges took place on 4 January 2018.  Of the remaining charges the subject of not guilty pleas, the appellant was convicted of three offences.  The judgments of conviction from those charges were entered on 12 January…

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Details
AGLC
Ha v Forrest [2018] WASC 301
Case
[2019] WASC 26
Decision Date

CaseChat Overview and Summary

The appeal in Ha v Forrest involved the appellant, Ha, contesting his conviction and sentence. The appellant had been found guilty of a criminal offence and sought to appeal the decision on the grounds that the trial magistrate had erred in admitting propensity evidence and that his conviction was unsafe and unsatisfactory. The appeal was heard in the Supreme Court of Western Australia, Court of Appeal.

The primary legal issues for the court to determine were whether the trial magistrate had erred in admitting propensity evidence and whether the conviction was unsafe and unsatisfactory, potentially resulting in a miscarriage of justice. The court had to examine the admissibility of the propensity evidence under the Evidence Act 1906 (WA), section 31A, and assess whether the evidence had significant probative value and whether its admission could lead to an unfair trial. Additionally, the court needed to consider if the appellant's conviction was indeed unsafe and unsatisfactory, leading to a miscarriage of justice.

The court found that the trial magistrate's decision to admit the propensity evidence was not erroneous, as the evidence did have significant probative value and its admission did not unduly prejudice the fairness of the trial. The court held that the magistrate's findings were reasonable in all circumstances, and the probative value of the evidence outweighed the risk of an unfair trial. Furthermore, the court concluded that there was no miscarriage of justice, as the evidence was sufficient to support the appellant's conviction. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

The final orders of the court were that the appeal against the conviction and sentence was dismissed, and the appellant's application for an extension of time was granted. The original conviction and sentence were confirmed, and the decision of the trial magistrate was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Whilst leave to appeal is granted on both grounds, and the appellant's application for an extension of time is granted, the appeal must be dismissed.Schedule A – Evidence Act 1906 (WA), section 31A31A.Propensity and relationship evidence(1)In this section ‑propensity evidence means ‑(a)similar fact evidence or other evidence of the conduct of the accused person; or(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers ‑(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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