ON APPEAL FROM:
For File No               :  SJA 1126 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G SMITH
Citation  :JO 3469 of 2009

Catchwords:

Criminal law - Appeal against conviction - Assault occasioning bodily harm - Sufficiency of evidence - Inconsistencies in the evidence - Browne v Dunn - Loss of evidence - Whether verdict unsafe and unsound - Turns on its own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr E Carlose
Respondent: Ms C Y Stockdale

Solicitors:

Appellant: Eapon Carlose
Respondent: Director of Public Prosecutions (WA)

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

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Anderson v Davis [2009] WASC 38
Browne v Dunn (1893) 6 R 67 HL
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garrett v Nicholson [1999] WASCA 32
Harvey v Matthews [1999] WASCA 58
Hontestroom v SS Sagaporack [1927] AC 37
Hunt v The State of Western Australia [2008] WASCA 210
Ibrahim v Herring [2010] WASC 190
Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23
Lloyd v Faraone [1989] WAR 154
Longman v The Queen [1989] HCA 63; (1989) 168 CLR 77
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Maddalena v CSR Ltd [2004] WASCA 231
Mancini v Director of Public Prosecutions [1942] AC 1
Peck v The State of Western Australia [2005] WASCA 20
Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572
Police v Pakrou [2008] SASC 364
Police v Sherlock [2009] SASC 64
R v Golightly (1997) 17 WAR 401
R v Park [2003] NSWCCA 203
Rasoolifard v Nichol [2001] WASCA 180
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 212
Skinner v Broadbent [2006] WASCA 2
The State of Western Australia v Montani [2006] WASC 190

COMMISSIONER SLEIGHT: The appeal in this matter is against a conviction of the appellant in the Joondalup Magistrates Court before his Honour Magistrate G Smith on a charge that the appellant, on 7 October 2008, in the Woodvale Tavern, unlawfully assaulted Robert David Burns and thereby did him bodily harm. As a result of the conviction, the appellant was fined $2,000.
The appellant seeks leave to appeal against his conviction. There is no appeal against the sentence imposed. The application for leave and the appeal were heard by me at the…

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 Hawker v Coulthard

Details

AGLC: Hawker v Coulthard [2011] WASC 139
Case: [2011] WASC 139
Decision Date: 25 MAY 2011

CaseChat Overview and Summary

The case before the court was an appeal by the appellant against his conviction for assault occasioning actual bodily harm, as defined by section 59(1) of the Crimes Act 1900 (NSW). The appeal was heard by the Court of Criminal Appeal in New South Wales. The appellant, Mr Hawker, was convicted following an incident where he attacked the respondent, Mr Coulthard, causing the respondent to sustain bodily harm. The court was tasked with determining whether the evidence presented at trial was sufficient to support the conviction, considering the inconsistencies in the evidence and the loss of a significant piece of evidence.

The legal issues before the court included whether the evidence was sufficient to uphold the conviction, considering the inconsistencies in the testimonies and the absence of a crucial piece of evidence. The court had to assess the weight of the remaining evidence and determine whether it was sufficient to support the conviction beyond reasonable doubt. The court also needed to consider whether the lost evidence was so significant that it rendered the verdict unsafe and unsound, and whether the remaining evidence was sufficient to ensure the verdict was just.

The Court of Criminal Appeal considered the principles set out in Browne v Dunn, which require that the remaining evidence, when viewed as a whole, must be sufficient to support the conviction beyond reasonable doubt. The court acknowledged the inconsistencies in the evidence but found that the remaining evidence, when viewed in the context of the entire case, was sufficient to support the conviction. The lost evidence, while significant, did not undermine the overall reliability of the remaining evidence. Consequently, the court held that the verdict was safe and sound, and dismissed the appeal. The conviction was upheld, and the original sentence was confirmed.

Orders