Humes v Soden
[1999] WASCA 230
•4 OCTOBER 1999
HUMES -v- SODEN [1999] WASCA 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 230 | |
| Case No: | SJA:1157/1999 | 4 OCTOBER 1999 | |
| Coram: | STEYTLER J | 4/10/99 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed | ||
| PDF Version |
| Parties: | KEVIN JOHN HUMES DAVID SODEN |
Catchwords: | Criminal law Evidence Matters relating to proof Turns on own facts |
Legislation: | Nil |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
DAVID SODEN
Respondent
Catchwords:
Criminal law - Evidence - Matters relating to proof - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Conviction quashed
(Page 2)
Representation:
Counsel:
Applicant : Mr P F Collins
Respondent : Mr P D Quinlan
Solicitors:
Applicant : Aboriginal Legal Service
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER J: This is an application for leave to appeal against the decision of a Magistrate given in a Court of Petty Sessions. By consent of the parties the matter will be dealt with in such a way as to hear the application for leave to appeal and the appeal together pursuant to the provisions of s 190 of the Justices Act 1902.
2 The applicant was convicted on a charge of assault by a Magistrate in the Court of Petty Sessions. The grounds of appeal are only two. They are that, firstly, the learned Magistrate erred in law by allowing into evidence evidence of an alleged admission made by the applicant when he had not been cautioned and that in finding beyond reasonable doubt that the applicant committed the assault when the only evidence as to the applicant's actions were equivocal answers to leading questions under the influence of intoxication the learned Magistrate erred again.
3 The evidence led before the learned Magistrate came only, so far as the Crown was concerned, from a senior constable stationed at the Mandurah police station. He gave evidence that on Monday, 19 April he attended at the alleged scene of the crime.
4 He said that upon arrival he spoke to a female person who is Susan Jane Walley. He said that he had a conversation with her and that not too far away was another gentleman with whom he also had a conversation. That gentleman was the applicant, Mr Kevin John Humes.
5 Constable Douglas asked the applicant whether he had hit Susan Walley and then went on to explain that he did so by saying, "Why did you hit Susan?" He said that the applicant responded by saying, "She's my missus." Constable Douglas then said, "You can't hit your missus," and the applicant then said, "We had a fight."
6 This evidence was, as the applicant contends, somewhat equivocal and when the appellant himself gave evidence, Miss Walley not having given evidence at the hearing, he denied that he had hit her and denied also that he had made any admission that he hit her. He told the court on oath that he had had an argument with Miss Walley but that she had been hit by some other person with whom she had been involved in an argument.
7 The learned Magistrate in his reasons for decision plainly did not accept the evidence of the applicant and relied upon the admission to which I have referred. In doing so the learned Magistrate said the following:
(Page 4)
- "So the court has clear evidence that Miss Walley was hit, that there was some animosity of some sort between them. The defendant admits arguing at least and having a disagreement with her, in court. He has not satisfied me that someone else hit her but in saying so he acknowledges she was hit and I would have to accept beyond reasonable doubt that he did hit her and the charge is proved."
8 It seems to me, with due respect to the learned Magistrate, that there was no clear evidence that Miss Walley was hit by the applicant. All there was was the somewhat equivocal admission made by the applicant himself in the absence of any evidence at all from Miss Walley, taken together with the applicant's evidence on oath that he had not hit her.
9 Moreover, in saying that he was not satisfied by the applicant that someone else had hit Miss Walley the learned Magistrate appears to have reversed the onus of proof. It was essentially for these reasons that counsel for the respondent conceded that the appeal should be allowed and the conviction quashed.
10 I am satisfied that that concession is rightly made and that that result should follow. Consequently, I propose to quash the conviction of the learned Magistrate and of course to allow the appeal for that purpose.
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