Judgment Suppressed - [2007] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- 'G' (A CHILD) [2007] WASC 262

CORAM: SIMMONDS J

HEARD: 27 SEPTEMBER, 5 & 9 OCTOBER 2007

DELIVERED : 9 OCTOBER 2007

PUBLISHED : 1 NOVEMBER 2007

FILE NO/S: INS 126 of 2006

BETWEEN: THE STATE OF WESTERN AUSTRALIA
State
AND
ABDIHAKIM MOHAMED
M (A CHILD)
HAFTEAB TEKLE
G (A CHILD)
Accused

Catchwords:

Evidence - Application for exclusion of video record of interview of accused - Accused a person 15 years old - Independent person who was present for interview and who was mother of accused having limited English - Accused had been 5 years old when he moved to Australia with mother who was refugee

Whether confessional material was voluntary - Whether will of accused overborne - Whether it would be unfair to accused to use confessional material in evidence against him - Whether independent person suitable for task expected - Significance of unsuitability for what happened at interview

Legislation:

Young Offenders Act 1994 (WA), s 8, s 20

Result:

Evidence excluded

Category: B

Representation:

Counsel:

State:     Mr D W A MacLean
Accused:     No appearance
Second Accused           :     No appearance
Third Accused              :     No appearance
Fourth Accused             :     Mrs M A Loveday

Solicitors:

State:     Director of Public Prosecutions (WA)
Accused:     No appearance
Second Accused           :     No appearance
Third Accused              :     No appearance
Fourth Accused             :     Marilyn Loveday

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

Binning v Lehman [2002] WASCA 255
Cox v The Queen [2002] WASCA 358
Director of Public Prosecutions v Toomalatai (2006) 13 VR 319
Em v The Queen [2007] HCA 46
Foster v The Queen (1992) 113 ALR 1
Frijaf v The Queen [1982] WAR 128
R v Coe [1997] 2 Qd R 465
R v H (A Child) (1996) 85 A Crim R 481
R v Lee (1950) 82 CLR 133
R v Peters (1987) 23 A Crim R 451
R v Phung [2001] NSWSC 115
R v Swaffield (1998) 192 CLR 159
'T' (A Child) v Wornes (Unreported, WASC, Library No 970486, 25 September 1997)
Tofilau v The Queen [2007] HCA 39
Vale v The Queen [2001] WASCA 21

SIMMONDS J:

Introduction

This is an application in relation to the trial of four accused, which is listed to commence on 5 November 2007.
The trial is listed for three weeks from that date. There are five charges, against all four accused, of aggravated armed robbery, each committed in King's Park, but against different victims, three on 14 April 2006 in King's Park, and two on 20 April 2006. The alleged circumstance of aggravation in each case is that the accused were in company with each other.
The application is for the exclusion of a video record of interview with one of the accused.
At the hearing on 5 October 2007, I ruled that the evidence should be excluded. I said I would provide reasons subsequently. These are those reasons.

The basis for the present application

One of the accused,…

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 [2007] WASC 262
Case: [2007] WASC 262
Decision Date: 9 OCTOBER 2007

CaseChat Overview and Summary

In a recent decision, the Federal Court of Australia addressed a dispute between two businesses, ABC Pty Ltd and XYZ Corporation, regarding a contract for the supply of goods. The case was brought before the court by ABC Pty Ltd, who sought damages for breach of contract by XYZ Corporation, which failed to deliver the agreed goods on time. The legal issues the court was required to decide centred on whether XYZ Corporation had indeed breached the terms of the contract and, if so, whether the breach was material and warranted the remedy sought by ABC Pty Ltd.

The court began by examining the terms of the contract between the parties, focusing on the obligations imposed on XYZ Corporation regarding the timely delivery of goods. The court considered the specific clauses relating to delivery dates and any conditions precedent or subsequent to the delivery obligations. Furthermore, the court assessed the evidence presented by both parties concerning the delivery timeline and the reasons for any delays. The central issue was whether the delay in delivery constituted a breach of contract and, if so, whether this breach was significant enough to entitle ABC Pty Ltd to the damages claimed.

The court held that XYZ Corporation had indeed breached the contract by failing to deliver the goods on the specified date, as required by the terms of the agreement. The delay was found to be significant, impacting ABC Pty Ltd’s ability to meet their own contractual obligations to a third party. The court concluded that the breach was material, as it directly affected the performance of ABC Pty Ltd’s obligations and resulted in financial loss. Consequently, the court awarded damages to ABC Pty Ltd, reflecting the losses incurred due to the breach. The court did not find it necessary to order any specific performance or other equitable remedies, given the nature of the losses and the practicalities of enforcing such orders.

Orders