Hodder v Neenan - [2020] WASCA 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HODDER -v- NEENAN [2020] WASCA 163
CORAM:   QUINLAN CJ
MAZZA JA
PRITCHARD JA

HEARD:   12 JUNE 2020
DELIVERED          :   2 OCTOBER 2020
FILE NO/S:   CACR 144 of 2019
BETWEEN:   JAMES LESLIE HODDER
Appellant
AND
ROBERT NEENAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HILL J
File Number            :   SJA 1028 of 2019

Catchwords:

Criminal law - Appeal against conviction - Whether amendment to charge on day of hearing occasioned prejudice to the appellant - Admissibility of evidence - Whether adjournment should have been granted by magistrate on grounds of ill‑health - Whether verdict unreasonable or cannot be supported by evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 16, s 18, s 30(3)(a), s 39, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 132, s 134
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r 32(4)(c)

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	J Scholz

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Avsar v Binning [2009] WASCA 219
City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Frailing v Mackay [2020] WASCA 73
Hodder v Neenan [2019] WASC 311
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Waters v Wigger [2017] WASCA 46
Wells v The State of Western Australia [2017] WASCA 27
Wright v McMurchy [2012] WASCA 257

JUDGMENT OF THE COURT:

On 7 February 2019, the appellant was convicted, after a trial, of two charges. The first was that on 30 January 2018, the appellant unlawfully assaulted a female victim in circumstances of aggravation, namely that the victim was over the age of 60 years (aggravated assault charge).[1] The second charge was that on 20 February 2018, the appellant obstructed First Class Constable Thomas Arthurs, in the performance of his functions (obstruction charge).[2] The appellant was sentenced to a global fine of $1000, and was ordered to pay costs of $100.
[1] Charge number PE 9219/2018.
[2] Charge number PE 9220/2018.
The appellant applied for leave to appeal against both convictions, and against the sentence imposed. Justice Hill refused leave to appeal and dismissed the appeal.[3]
[3] Hodder v Neenan [2019] WASC 311 (Primary Reasons).
The appellant now seeks leave to appeal against the decision of the learned primary judge.[4] He advances six grounds of appeal. They broadly reflect most of the grounds of appeal advanced before the primary judge.[5]
[4] Criminal Appeals Act 2004 (WA) s 16(2).
[5] The appellant in fact advanced seven grounds of appeal before the primary judge. He did not advance a ground of appeal reflecting ground 2 before the learned primary judge (namely that he…

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 Hodder v Neenan

Details

AGLC: Hodder v Neenan [2020] WASCA 163
Case: [2020] WASCA 163
Decision Date: 2 OCTOBER 2020

CaseChat Overview and Summary

In the case of Hodder v Neenan, the appellant, Hodder, sought to appeal against his conviction for drug supply offences. The primary dispute was whether the amendment of the charge on the day of the hearing caused any prejudice to Hodder, and whether the magistrate should have granted an adjournment due to Hodder's ill health. The case was heard in the Supreme Court of Victoria. The appellant argued that the amendment to the charge on the day of the hearing caused him significant prejudice, as it prevented him from adequately preparing a defence. He also contended that the magistrate should have granted an adjournment due to his ill health, which would have affected his ability to participate in the proceedings.

The legal issues before the court included whether the amendment to the charge constituted a fundamental procedural error, whether the adjournment should have been granted due to Hodder's ill health, and whether the verdict was unreasonable or unsupported by the evidence. The court considered the principles of procedural fairness, the discretion of the magistrate in granting adjournments, and the standard of proof required in criminal cases.

The court found that the amendment to the charge did not occasion any prejudice to Hodder, as the substance of the charge remained the same, and Hodder had been given adequate time to prepare his defence. The court also held that the magistrate's decision not to grant an adjournment was not an error, as there was no evidence to suggest that Hodder's ill health would have significantly impacted his ability to participate in the proceedings. Finally, the court determined that the verdict was not unreasonable and was supported by the evidence presented at trial. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders