KAMALJIT -v- KENNEDY [2014] WASC 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 184
Case No:	SJA:1087/2013	Heard:	21 NOVEMBER 2013
Coram:	LE MIERE J	Delivered:	28/05/14
No of pages:	9	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	KAMALJIT JASON KENNEDY
Catchwords:	Appeal Leave to appeal against conviction of unlawful assault Application to adduce fresh evidence No error of law or fact No miscarriage of justice Magistrate gave proper or adequate reasons for decision No grounds of appeal have reasonable prospect of success
Legislation:	Criminal Appeals Act 2004 (WA), s 39(1), s 39(4), s 40(1)(e) Criminal Code (WA), s 313(1)(b) Magistrates Court Act 2004 (WA), s 31(1) Sentencing Act 1995 (WA), s 45
Case References:	Ascic v Bedworth [2013] WASCA 174 DPJB v The State of Western Australia [2010] WASCA 12 Liberato v The Queen (1985) 159 CLR 507 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 600 Ska v The Queen (2011) 243 CLR 400 The State of Western Australia v Rayney [2013] WASCA 219 Weiss v The Queen (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : KAMALJIT -v- KENNEDY [2014] WASC 184 CORAM : LE MIERE J HEARD : 21 NOVEMBER 2013 DELIVERED : 28 MAY 2014 FILE NO/S : SJA 1087 of 2013 BETWEEN : KAMALJIT

Appellant

AND

JASON KENNEDY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B A LANE

File No : CI 36 of 2013

Catchwords:

Appeal - Leave to appeal against conviction of unlawful assault - Application to adduce fresh evidence - No error of law or fact - No miscarriage of justice - Magistrate gave proper or adequate reasons for decision - No grounds of appeal have reasonable prospect of success

Legislation:

Criminal Appeals Act 2004 (WA), s 39(1), s 39(4), s 40(1)(e)

Criminal Code (WA), s 313(1)(b)
Magistrates Court Act 2004 (WA), s 31(1)
Sentencing Act 1995 (WA), s 45

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms S J Oliver

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (Cth)

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

Ascic v Bedworth [2013] WASCA 174
DPJB v The State of Western Australia [2010] WASCA 12
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 600
Ska v The Queen (2011) 243 CLR 400
The State of Western Australia v Rayney [2013] WASCA 219
Weiss v The Queen (2005) 224 CLR 300

1 LE MIERE J: The appellant was convicted after a trial in the Magistrates Court of the offence that at the Christmas Island Resort at about 11.00 pm on 14 March 2013 he unlawfully assaulted Kristine Norrie contrary to s 313(1)(b) of the Criminal Code (WA) was fined $300 and granted a spent conviction order under s…

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 KAMALJIT v Kennedy

Details

AGLC: KAMALJIT v Kennedy [2014] WASC 184
Case: [2014] WASC 184
Decision Date: 28 MAY 2014

CaseChat Overview and Summary

The case of Kamaljit v Kennedy involved an appeal by the applicant against his conviction for an unlawful assault. The applicant sought leave to appeal, arguing that there was an error in the magistrate's decision that led to the conviction. The applicant also sought to adduce fresh evidence that, he claimed, would have altered the outcome of the case. The matter was heard in the Supreme Court of Queensland, where the primary focus was on the sufficiency of the grounds for appeal and the potential impact of the fresh evidence.

The court was required to determine whether the grounds of appeal presented by the applicant were sufficient to warrant leave to appeal. Specifically, the court had to assess whether there was an error of law or fact, or whether a miscarriage of justice had occurred. The applicant argued that the magistrate had not adequately considered his evidence or had made an error in assessing the credibility of witnesses. Additionally, the court had to consider the relevance and admissibility of the fresh evidence the applicant wished to present.

The court found that the grounds of appeal did not demonstrate any error of law or fact. It was concluded that the magistrate had given proper and adequate reasons for the decision, and that there was no miscarriage of justice. The magistrate's assessment of the evidence was found to be thorough and appropriate, and the fresh evidence presented by the applicant did not have the potential to change the outcome of the case. Consequently, the court ruled that the grounds of appeal did not have a reasonable prospect of success. Therefore, the application for leave to appeal was refused.

In light of the findings, the Supreme Court of Queensland dismissed the application for leave to appeal against the conviction. The court held that there was no basis for the appeal to proceed, as the grounds presented did not meet the required threshold for such an application. The final order was that leave to appeal was refused, and the original conviction stood.

Orders

Orders of the court

Leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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