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Ingham v McKenzie

Ingham v McKenzie

Case [2009] WASC 351 30 November 2009

Criminal Liability

Admissibility of Evidence

Res Judicata

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: INGHAM -v- McKENZIE [2009] WASC 351

CORAM: HASLUCK J

HEARD: 29 SEPTEMBER & 15 OCTOBER 2009

DELIVERED : 30 NOVEMBER 2009

FILE NO/S: SJA 1026 of 2009

BETWEEN: RAYMOND MARK INGHAM
Appellant
AND
DAVID HUGH McKENZIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 63390 of 2007, PE 63391 of 2007

Catchwords:

Criminal law - Charges of giving false testimony to Corruption and Crime Commission - Charges dismissed after submission of no case to answer upheld by magistrate - Contention by defence counsel that the statutory body named in the charges and in the key questions did not exist and therefore the respondent's evidence was not false or misleading - Whether the meaning of the subject words was conditioned by the context and the background against which the utterance was made - Whether sufficient to plead the effect or impression produced by the assertion said to have been falsely made - Principles to be applied in response to a submission of no case to answer - Whether it was open to the magistrate to find that the words in question given in evidence were false and that the respondent knew them to be false - Whether respondent was prejudiced or embarrassed in any substantive way in the preparation of his defence - Finding that magistrate erred in law by failing to take account of the whole of the evidence before him in determining what was meant by the key questions, having regard to the context and the respondent's state of knowledge

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 168
Criminal Appeals Act 2004 (WA), s 14(1)(e)
Criminal Procedure Act 2004 (WA), s 21, s 23, sch 1 cl 5, cl 6

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr S W O'Sullivan
Respondent: Mr R W Richardson & Mr S Vandongen

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: R W Richardson

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

Bronston v United States 409 U.S. 352 (1973)
Devries v Australian National Railways Commission (1993) 177 CLR 472
Doney v The Queen (1990) 171 CLR 207
Farris v The Queen (1965) 50 D.L.R. (2d) 689
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Jago v District Court of New South Wales (1989) 168 CLR 23
John L Pty Ltd v Attorney‑General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Ayres [1984] AC 447
R v S [2000] 1 Qd R 445
R v Sharrock [1948] 1 All ER 145
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skerritt v O'Keefe [1999] WASCA 183
State of Western Australia v Tilbrook [2007] WASCA 4
United States v DeZarn 157 F.3d 1042 (1998)

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 Ingham v McKenzie

Details

AGLC: Ingham v McKenzie [2009] WASC 351
Case: [2009] WASC 351
Decision Date: 30 NOVEMBER 2009

CaseChat Overview and Summary

In the matter of Ingham v McKenzie, the respondent was charged with providing false testimony to the Corruption and Crime Commission. The charges were subsequently dismissed following a successful submission of no case to answer upheld by a magistrate. The crux of the defence counsel's argument was that the statutory body mentioned in both the charges and the questions posed during the investigation did not exist, and therefore, the respondent's testimony could not be considered false or misleading. The central legal issue was whether the meaning of the key terms was contextually determined and if the context and the background against which the statements were made should influence the interpretation of the respondent's evidence.

The court examined the principles applicable to a submission of no case to answer, considering whether it was open to the magistrate to find that the words in question were false and that the respondent was aware of their falsity. The court also explored whether the respondent was prejudiced or embarrassed in any significant way during the preparation of his defence. The critical question was whether the magistrate erred in law by not fully considering the evidence, particularly the context and the respondent's state of knowledge, in determining the meaning of the key questions.

The court found that the magistrate had indeed erred in law by not taking into account the entire body of evidence before him, including the context and the respondent's state of knowledge, when determining the meaning of the key questions. This oversight led to a flawed assessment of whether the respondent's evidence was false or misleading. Consequently, the magistrate's decision was set aside, and the charges against the respondent were dismissed.

Orders