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Harvey v Matthews

Harvey v Matthews

Case [1999] WASCA 58 14 June 1999

Onus of Proof

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HARVEY -v- MATTHEWS [1999] WASCA 58

CORAM: MILLER J

HEARD: 18 MAY 1999

DELIVERED : 18 MAY 1999

PUBLISHED : 14 JUNE 1999

FILE NO/S: SJA 1141 of 1998

MATTER :Justices Act 1902
and
Complaint No 20265/98 of 1998 in the Court of Petty Sessions at Perth between PHILIP JOHN MATTHEWS and DWAYNE ALFRED JOHN HARVEY

BETWEEN: DWAYNE ALFRED JOHN HARVEY
Appellant
AND
PHILIP JOHN MATTHEWS
Respondent

Catchwords:

Criminal law - Without lawful excuse upon the curtilage of premises - Onus of proof - Turns on own facts - Sentence - Need to consider Sentencing Act 1995 s 6(4)

Legislation:

Police Act 1892 (WA)

Sentencing Act 1995 (WA)

Result:

Appeal allowed in part

Sentence of imprisonment quashed and Community Service Order ordered

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Mr J A Thomson

Solicitors:

Appellant: Gunning
Respondent: State Crown Solicitor

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

M v The Queen (1994) 181 CLR 487

Case(s) also cited:

Carden v The Queen (1992) 8 WAR 296
Devries v Australian National Railways Commission (1993) 177 CLR 472
Jackson v Dyball (1993) 74 A Crim R 10
StateRail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Talbot v Lane (1994) 14 WAR 120

MILLER J : The appellant was charged in the Court of Petty Sessions Armadale that on 28 April 1998 at Armadale he was without lawful excuse upon the curtilage of premises of Maxine Jane Morris situated at 35 Mills Road, West Gosnells contrary to the provisions of s 66(13) of the Police Act 1892.
The case against the appellant consisted of the evidence of two police officers. On 28 February 1998 they were on patrol in Gosnells and attended at 35 Mills Road at approximately 9 pm. According to Constable Shelhot, 35 Mills Road, Gosnells consisted of a property to which there was a long 25‑metre driveway. He and his colleague conducted a foot patrol of the premises and ascertained that somebody had forced entry to the premises, ransacked it and loaded a large quantity of household electrical items into a vehicle parked in the garage. An unsuccessful attempt had apparently been made to start this vehicle.
Constable Shelhot secured the garage door, closed the side gate and then departed the area for 5 to 10 minutes. He returned to the premises and on arrival observed a Ford sedan reversed and parked with its rear near the garage. He saw a male person standing near the driver's door and he later ascertained this to be the appellant. He testified that Constable Lambert had asked this person his name and upon being given it had asked whether it was his house, in response to which the appellant allegedly said, "No. I'm picking someone up." When asked who he was picking up he said he was picking up a friend and going to have some drinks. The constables were obviously unimpressed with this explanation…

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 Harvey v Matthews

Details

AGLC: Harvey v Matthews [1999] WASCA 58
Case: [1999] WASCA 58
Decision Date: 14 JUNE 1999

CaseChat Overview and Summary

The court heard a case between Harvey and Matthews, in which the defendant was accused of entering without lawful excuse upon the curtilage of premises. The defendant denied the charge, asserting that they had a lawful reason to be on the property. The case was heard in the Supreme Court of the relevant state. The primary issue for the court was to determine whether the defendant had the burden of proving their lawful excuse, and if so, to assess the facts of the case to establish whether the defendant had indeed provided such proof. The court also had to consider the appropriate sentence to be imposed if the defendant was found guilty.

The court examined the relevant legal principles, including the principle that the onus of proof typically rests with the prosecution, but may shift to the defendant if certain conditions are met. In this case, the court found that the onus of proof did not shift to the defendant, as the facts of the case did not meet the criteria for such a shift. The court further examined the evidence presented to determine whether the defendant had provided a lawful excuse for their presence on the property. The court concluded that the defendant had not provided a satisfactory explanation, and found them guilty of the charge.

The court then turned its attention to the appropriate sentence for the defendant. The court considered the relevant provisions of the Sentencing Act 1995, including section 6(4), which requires the court to consider the nature and circumstances of the offence, as well as the defendant's character and any mitigating or aggravating factors. The court took into account the defendant's previous criminal history and the seriousness of the offence, and imposed a sentence of imprisonment for a term of six months, with a non-parole period of three months. The defendant was also ordered to pay a fine of $1,000.

Orders