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HS v Lawford

HS v Lawford

Case [2018] WASC 257 24 August 2018

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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
DL v The Queen [2018] HCA 26
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
RP v The Queen [2016] HCA 53
Strahan v Brennan [2014] WASC 190
The Queen v CRH (Unreported, NSWCCA, 18 December 1996)
WS v Gardin [2015] WASC 97

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…

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 HS v Lawford

Details

AGLC: HS v Lawford [2018] WASC 257
Case: [2018] WASC 257
Decision Date: 24 AUGUST 2018

CaseChat Overview and Summary

The case of HS v Lawford involves an appeal against a conviction for sexual penetration of a child under the age of 13. The respondent was found guilty by a magistrate and sentenced to imprisonment. The appeal was brought before the Supreme Court of South Australia. The appellant contested the sufficiency of the evidence and argued that the magistrate failed to provide adequate reasons for the conviction, particularly regarding the issue of capacity and good character.

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