Hunt v Russell

Case [2019] WASC 284


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   HUNT -v- RUSSELL [2019] WASC 284

CORAM:   SMITH J

HEARD:   24 JUNE 2019

DELIVERED          :   9 AUGUST 2019

FILE NO/S:   SJA 1120 of 2018

BETWEEN:   MARCUS ALEXANDER HUNT

Appellant

AND

MICHAEL FREDERICK RUSSELL

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE R JOHNSTON

File Number             :   AL 2051 of 2017


Catchwords:

Criminal law - Appeal against conviction - Particulars and duplicity, general observations - Latent duplicity - Liquor Control Act 1988 (WA) - Failure to leave premises - Whether appellant was convicted of offence that was not the event particularised by the prosecution - Whether multiple events part of one offence

Miscarriage of justice - Whether procedural unfairness in the carriage of the investigation by arresting officer - Failure to take statements of particular persons - Whether departure from essential requirements of a fair trial - Whether the prosecution sought to change their case during the course of the trial - Whether, in all of the circumstances, there was a miscarriage of justice in that the appellant was the subject of an unfair trial

Bias - Appeal ground raises apprehended bias of primary judicial officer - Apprehended bias, general observations - Where arresting officer who is a witness appears before presiding judicial officer on previous occasions in professional capacity - Waiver - Whether appellant can appeal on grounds of bias after judicial officer brought apprehended bias to attention of parties but no application made

Legislation:

Criminal Procedure Act 2004 (WA)
Licensing Act 1932 (SA)
Liquor Control Act 1988 (WA), s 3, s 3A, s 5(2), s 13, s 114, s 115

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr T Jardine
Respondent : Mr E Fearis

Solicitors:

Appellant : Premier Compensation Lawyers
Respondent : State Solicitor for Western Australia

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

Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431

Bauerhuit v Dean [2011] WASC 253

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283

Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537

CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126

Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Green v The State of Western Australia [No 2] [2014] WASCA 53

Ingham v McKenzie [2009] WASC 351

John L Pty Ltd v Attorney‑General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 567

Long v Mayger [2004] WASCA 41; (2004) 142 A Crim R 289

McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 13

Nudd v The Queen [2006] HCA 9; (2006) 225…

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Hunt v Russell [2019] WASC 284
Case
[2019] WASC 284
Decision Date

CaseChat Overview and Summary

In the case of Hunt v Russell, the appellant sought to appeal against his conviction for an offence under the Liquor Control Act 1988 (WA) for failing to leave the premises. The appeal raised several significant legal issues, including whether the appellant was convicted of an offence that was not the event particularised by the prosecution, the potential for latent duplicity in the charge, and whether multiple events were part of one offence. Additionally, the appeal argued for a miscarriage of justice, claiming procedural unfairness in the investigation and trial process, including the failure to take statements of certain persons and a perceived departure from the essential requirements of a fair trial.

The court considered these issues in light of the evidence and submissions presented. It examined whether the appellant was indeed convicted of an offence that was not the event particularised by the prosecution, and if the charge contained latent duplicity. The court also evaluated whether the prosecution attempted to alter their case during the trial and if this constituted a miscarriage of justice. Furthermore, the court analysed whether the trial was procedurally unfair due to the alleged procedural missteps and if these amounted to a departure from the essential requirements of a fair trial. The appeal also raised the issue of apprehended bias of the primary judicial officer, which was addressed by considering the judicial officer's prior professional interactions with the arresting officer who was also a witness.

The court concluded that the appellant's conviction should be upheld, finding no latent duplicity in the charge and no miscarriage of justice. The court found that the procedural issues raised did not constitute a departure from the essential requirements of a fair trial. Additionally, the court determined that there was no apprehended bias, as the judicial officer had brought the potential bias to the attention of the parties and no application was made. The appeal was therefore dismissed.

Orders

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Background

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Decision

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