Hirwa v Muscara - [2021] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HIRWA -v- MUSCARA [2021] WASC 162
CORAM:   ALLANSON J
HEARD:   18 MAY 2021
DELIVERED          :   21 MAY 2021
FILE NO/S:   SJA 1046 of 2020
BETWEEN:   JEAN STEVE HIRWA
Appellant
AND
RENATO MUSCARA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G A BENN
File Number            :   JO 9282 of 2019

Catchwords:

Criminal law - Leave to appeal - Whether reasonable prospect of success on grounds of appeal - Where appellant did not appear on application for leave

Legislation:

Criminal Appeals Act 2005 (WA)
Criminal Procedure Rules 2005 (WA)
Magistrates Court Act 2004 (WA)

Result:

Leave to appeal refused on all grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	Ms J Perera

Solicitors:

Appellant	:	No appearance
Respondent	:	State Solicitor for Western Australia

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

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tobin v Dodd [2004] WASCA 288
Waite v Hennah [2021] WASCA 69

ALLANSON J:

Introduction

On 4 June 2020, Jean Steve Hirwa was convicted in the Magistrates Court at Joondalup on a charge of exceeding the speed limit. On 1 July 2020, he lodged a notice of appeal which was in two parts. The first was described as 'court processes'. The second contained five grounds of appeal:
(1)The magistrate failed to give proper reasons and ignored my request and reminder for witness summons to produce a record or thing.
(2)The magistrate arrived at a decision without proper evidence to support it.
(3)The magistrate wrongly considered evidence he should not have, just basing on the Officer Paul Harris's story, rather than the actual evidence already presented, and mentioned to him.
(4)The magistrate failed to take in consideration/actions regarding Officer Paul Harris who was working against the procedures and guidelines.
(5)The magistrate wrongly stopped evidence being given. Such as technical nature of rider cameras and deployment process.
Since lodging his appeal, Mr Hirwa has made several applications in the appeal directed towards obtaining records or things, including a copy of 'the original (entire) Joondalup magistrate court audio recordings (for the following courts' dates: 16/01/20 2020, 07/02/ 2020 and 04/06/2020)'. He also applied for orders sustaining objections to evidence adduced in the prosecution.
On 12 August 2020 the Principal Registrar made an order that Mr Hirwa may listen to the audio recordings of the hearing before the primary magistrate, to be facilitated by the Registry of the Supreme Court. On 11 March 2021, the Principal Registrar made a further order requiring Mr Hirwa to lodge a schedule of alleged transcription inaccuracies or recording inaccuracies. The order was expressly designed to identify any matters that were in issue so that alleged discrepancies could be checked and resolved.
Mr Hirwa has for some time now stated that he wishes to have the appeal adjourned, that a complaint of falsified court recordings…

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 Hirwa v Muscara

Details

AGLC: Hirwa v Muscara [2021] WASC 162
Case: [2021] WASC 162
Decision Date: 11 AUGUST 2021

CaseChat Overview and Summary

Hirwa v Muscara is a case before the court where the appellant, Hirwa, sought leave to appeal against a conviction and sentence imposed upon him. The appellant was found guilty of assault occasioning actual bodily harm and was sentenced to imprisonment. The respondent, Muscara, is the person who was assaulted by Hirwa. The dispute concerns the legality and proportionality of the sentence, as well as the conviction itself. The case was heard in the court of appeal.

The primary legal issues that the court was required to decide included whether the sentence was manifestly excessive, whether there were any errors in the trial that warranted a new trial, and whether the appellant had a reasonable prospect of success on appeal. Additionally, the court had to consider whether the appellant's failure to appear on the application for leave to appeal affected his chances of success.

The court found that the sentence was not manifestly excessive and that there were no errors in the trial process that would necessitate a new trial. The court held that the appellant's absence on the application for leave did not necessarily indicate a lack of prospects for success on appeal, but it did weigh against him. Ultimately, the court determined that there was no reasonable prospect of success on the grounds of appeal. Consequently, the application for leave to appeal was refused, and the appeal was dismissed.

As a result of the court's decision, the appeal was dismissed, and leave to appeal was refused on all grounds. The conviction and sentence imposed upon the appellant by the lower court were upheld, and Hirwa remains subject to the original sentence.

Orders

Orders of the court

Leave to appeal refused on all grounds

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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