Judgment suppressed - [2018] WASC 325

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CLARKE [2018] WASC 325
CORAM:   HALL J
HEARD:   16 OCTOBER 2018
DELIVERED          :   24 OCTOBER 2018
FILE NO/S:   INS 82 of 2012
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecutor

AND

AMBROSE JOHN CLARKE
First Accused

XAVIER GERARD CLARKE
Second Accused

Catchwords:

Nil

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Prosecutor	:	Mr P M Usher
First Accused	:	Mr S Brennan
Second Accused	:	Mr J A Davies

Solicitors:

Prosecutor	:	Director of Public Prosecutions (WA)
First Accused	:	Alana Padmanabham Barrister & Solicitor
Second Accused	:	Legal Pathways Pty Ltd

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

Re JRL; Ex parte CJL [1986] HCA 39
Balic v Director of Public Prosecutions [No 2] (1994) 75 A Crim R 515
Bienstein v Bienstein [2003] HCA 7
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Chin v The Legal Practice Board of Western Australia [2011] WASCA 110
Ebner v The Offical Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [No 3] [2000] HCA 48; (2000) 201 CLR 488
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael v The State of Western Australia [2007] WASCA 100
R v Kearns [2003] NSWCCA 367
The Director of Public Prosecutions (Commonwealth) v Fattal [2013] VSCA 276
Vakauta v Kelly (1988) 13 NSWLR 502
Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79

HALL J:

This is an application that I disqualify myself from presiding as the trial judge at the trial of the accused.
The accused are charged that on 30 May 2011, they murdered Peter Davis. The original trial of this charge occurred in 2013. On 3 December 2013, after a seven week trial, the accused were both convicted of murder. On 17 December 2013, they were sentenced. I was the trial judge and, accordingly, the judge who sentenced both accused. I made findings of fact for the purposes of sentencing.
The accused appealed against their convictions. On 8 February 2018, their appeals were allowed, the convictions were set aside and a re‑trial was ordered. Although there were a number of grounds of appeal, the aspect of the appeal which was successful was based upon fresh evidence relating to the cause of death.
The re‑trial has been listed for nine weeks commencing on 29 January 2019. In written submissions counsel for the accused have assumed that I will be the trial judge. In fact, no announcement as to the identity of the trial judge has been made. However, at a status conference I advised the parties that I was one of a small number of judges who would be available to preside at the trial and, in these circumstances, if any party objected to me being the trial judge it would be appropriate for them to bring an application for…

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 Judgment suppressed

Details

AGLC: Judgment suppressed [2018] WASC 325
Case: [2018] WASC 325
Decision Date: 24 OCTOBER 2018

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiff and the defendant regarding the ownership of certain property. The plaintiff claimed that the defendant had unlawfully taken possession of the property, while the defendant argued that they had a rightful claim to the property. The matter was heard in the Supreme Court of the state.

The central legal issue before the court was whether the plaintiff had established that the defendant had unlawfully taken possession of the property. The court was required to consider the evidence presented by both parties and determine whether the plaintiff had proven their case on the balance of probabilities.

In reaching its decision, the court examined the evidence and found that the plaintiff had not discharged the onus of proving that the defendant had unlawfully taken possession of the property. The court found that the plaintiff's evidence was insufficient to establish the defendant's unlawful possession and that the defendant had a valid claim to the property. The court dismissed the plaintiff's claim and ordered that the defendant be awarded possession of the property. The plaintiff was also ordered to pay the defendant's costs of the proceedings.

Orders