JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HS -v- LAWFORD [2018] WASC 257
CORAM: JENKINS J
HEARD: 4 MAY 2018
DELIVERED : 24 AUGUST 2018
FILE NO/S: SJA 1070 of 2017
BETWEEN: HS
Appellant
AND
JASMIN RENEE LAWFORD
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T G SCHWASS
File Number : FR 258 & 259 of 2017
Catchwords:
Criminal law - Appeal against conviction - Sexual penetration of a child under the age of 13 - Capacity - Good character - Whether magistrate gave adequate reasons - Whether prosecution evidence capable of proving the offences
Legislation:
Criminal Code (WA), s 320(2)
Result:
Leave to appeal granted on grounds 1 and 3
Leave to appeal refused on grounds 2 and 4
Appeal allowed on ground 3
Convictions set aside and retrial ordered before a different magistrate
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Mark Andrews Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bentley v Greaney [2016] WASC 227
C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1
Hayman v Cartwright [2018] WASCA 116
Manonai v Burns [2011] WASCA 165
Melbourne v The Queen (1999) 198 CLR 1
R v F; Ex parte Attorney‑General [1998] QCA 97; [1999] 2 Qd R 157
Strahan v Brennan [2014] WASC 190
The Queen v CRH (Unreported, NSWCCA, 18 December 1996)
JENKINS J:
This is an appeal from the decision of a magistrate in the Children's Court at Perth on 13 December 2017 to convict the appellant of two charges of sexually penetrating a child under the age of 13 years contrary to the Criminal Code (WA) s 320(2).[1]
[1] As the appellant and the complainant are children, neither of them are identified by name in these reasons and other information which may identify them has been anonymised.
Grounds of appeal
The grounds of appeal are:[2]
[2] The grounds of appeal which were included in the appellant's written submissions filed 10 January 2018 are differently worded but their effect is the same.
Ground 1
The learned Magistrate erred in law when he failed to properly direct himself in relation to section 29 of the Criminal Code;
Particulars:
1.1The evidence adduced by the prosecution did not establish the appellant had legal capacity.
Ground 2
The learned Magistrate erred in law when he failed to direct himself as to evidence of good character adduced by the appellant.
Ground 3
The learned Magistrate erred in law when he delivered reasons that were so inadequate and/or devoid of any analysis that they do not reveal the intellectual process the Court followed to find the appellant guilty;
Particulars:
3.1The reasons do not adequately reveal his Honour properly considered the evidence adduced by the defence;
3.2The reasons…
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- HS v Lawford [2018] WASC 257
- Case
- [2018] WASC 257
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the sufficiency of the prosecution evidence to establish the offences beyond reasonable doubt. The appellant contended that the magistrate had not adequately addressed the question of capacity and good character. The court had to determine whether the evidence provided was sufficient to prove the offences and whether the magistrate's reasons were adequate and appropriate. The court also considered the relevance of the appellant's good character and the importance of ensuring that the jury is properly directed on this issue.
The court found that the evidence, including the testimony of the child, was sufficient to establish the offences beyond reasonable doubt. The magistrate had considered the issue of capacity and good character, although not in detail, but this was not fatal to the conviction. The court held that the magistrate had not erred in their assessment of the evidence and that the reasons provided were adequate. The appeal was dismissed, and the conviction and sentence were upheld. The court emphasised the importance of proper jury directions regarding good character and capacity but found that, in this case, the errors were not such as to vitiate the conviction.
Orders
Orders of the court
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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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