Kennedy v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KENNEDY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 344

CORAM: McKECHNIE J

HEARD: 19 OCTOBER 2009

DELIVERED : 25 NOVEMBER 2009

FILE NO/S: SJA 1082 of 2009

BETWEEN: ARRON SCOTT KENNEDY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M M FLYNN
File No  :JO 8422 of 2007

Catchwords:

Criminal law - Identification - Whether direction and analysis accurate - Sentence - Whether immediate imprisonment open

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J A Davies
Respondent: No appearance

Solicitors:

Appellant: Chris Baker & Associates
Respondent: No appearance

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

Cranssen v The Queen (1936) 55 CLR 509
Mills v State of Western Australia [2008] WASCA 219
Winmar v State of Western Australia [2007] WASCA 244; 35 WAR 159

McKECHNIE J:

What this case is about

On 16 December 2006 a couple of drunken brothers, Rhys and Dion Jones, were attacked near the Grand Boulevard Tavern in Joondalup. Each was hit with a piece of wood. Dion lost consciousness for some minutes. Mr Fraser saw the attack on Dion and identified Mr Kennedy as the attacker. The magistrate believed him. He convicted Mr Kennedy and sentenced him to 6 months and 1 day gaol for assault occasioning bodily harm. He did not suspend the sentence.
Mr Kennedy wants to challenge his conviction and sentence. He must establish that each ground of appeal has reasonable prospects of success. He cannot do so. Leave to appeal is refused. The conviction and sentence stand.

The issue of identification

Although there were a number of witnesses to the assault only Mr Fraser identified Mr Kennedy. Other witnesses either could not make an identification or identified someone different on the digiboard.
The magistrate had to be very careful before accepting Mr Fraser's evidence. He was. The magistrate reminded himself of what the Court of Appeal said in Mills v State of Western Australia [2008] WASCA 219 and Winmar v State of Western Australia [2007] WASCA 244; 35 WAR 159. Not only did he do that, he applied the principles to the facts before him.
Mr Kennedy's first ground complains that the magistrate erred in failing to give him the benefit of a doubt inherent in the ambiguity of the words spoken by Mr Fraser during the identification.
What Mr Fraser said was: 'It's not a very good likeness but number 8 was involved'.
The magistrate noted the ambiguity but accepted Mr Fraser's evidence that he understood precisely what he signed. Mr Fraser resolved the ambiguity in a way that satisfied the magistrate. The magistrate further explained that Mr Fraser made a confident choice and impressed him with his recall of details. It was open for the magistrate to be satisfied that the ambiguity was resolved. The ground has no reasonable prospects of success.
Mr Kennedy complains that the magistrate failed to have sufficient regard to other dangers in the digiboard identification process and points in particular to the possibility of a relative identification and the two week delay before the identification was made. But the magistrate was aware of those matters and took them into account. As against them he weighed other matters. Mr Fraser observed Mr Kennedy for minutes in good visibility and he was concentrating. This ground has no reasonable prospects of success.
Finally, Mr Kennedy asserts that the magistrate failed to have regard to the variations in description by other witnesses suggesting unreliability by Mr Fraser. It asserted that the magistrate should not have dismissed the evidence of another witness, Ms Karaka, who did not identify Mr Kennedy on a digiboard.
This fact does not lessen the reliability of Mr Fraser's evidence. Ms Karaka's description of the attacker wearing a red shirt is different from the colour of shirt which the magistrate saw on the footage taken by Mr Fraser on his phone. It was open for the magistrate to decide that Ms Karaka was mistaken.
Dion Jones said: 'I think No 1' on a digiboard he was shown. This was not a photograph of Mr Kennedy. In fact, his photograph was not on any digiboard shown to Mr Jones. In evidence Mr Jones said he was not 100% sure about his identification.
Ms Wynyard identified someone other than Mr Kennedy on a digiboard.
Mr Tepuia could not identify anyone from the digiboard.
The magistrate referred to all the relevant evidence in his reasons. The variations in description, the non‑identification or the identification of someone else might have raised a reasonable doubt. In this case they did not. The magistrate adequately explained why Mr Fraser's evidence satisfied him.
There is no reasonable prospect of success on this appeal.

Sentence appeal

The first ground contends that the magistrate failed to properly consider another sentence or other order. The second really complains that the sentence was not suspended.
The difficulty for Mr Kennedy is that the magistrate again very carefully went through the options. He had a pre‑sentence report, references and a comprehensive address by counsel. He took into account all the matters particularised in ground 2.
After deciding that imprisonment should be imposed, he revisited everything to decide whether the sentence should be suspended.
He concluded that the use of a weapon on a vulnerable person rendering them unconscious for some minutes was very serious, especially as Mr Kennedy had been warned before delivering the blow and had an opportunity for reflection.
The magistrate took general deterrence seriously: 'People need to get a message that violence of this type must stop'.
A magistrate is well placed to decide if particular offences in the local community are prevalent and require sentences emphasising general deterrence: Cranssen v The Queen (1936) 55 CLR 509 at 520. There was no error of approach by the magistrate and a sentence of immediate imprisonment was open.
The grounds have no reasonable prospects of success and leave is refused.

The Court of Appeal heard an appeal by the applicant, Kennedy, against his conviction and sentence imposed by the Supreme Court of Western Australia. The applicant had been found guilty of multiple counts of burglary and theft, and was sentenced to imprisonment. Kennedy argued that the trial judge's direction to the jury regarding eyewitness identification was flawed and that the sentence imposed was excessive. The State of Western Australia defended the conviction and sentence, arguing that the trial judge's direction was appropriate and that the sentence was justified.

The legal issues before the court were whether the trial judge's direction to the jury regarding eyewitness identification was accurate and whether the sentence imposed was appropriate. The court considered whether the direction given to the jury was sufficient to ensure a fair trial and whether the sentence imposed was excessive. The court also considered whether the identification evidence was reliable and whether the sentence imposed was proportionate to the offence.

The Court of Appeal held that the trial judge's direction to the jury regarding eyewitness identification was accurate and that the sentence imposed was not excessive. The court found that the direction given to the jury was sufficient to ensure a fair trial and that the identification evidence was reliable. The court also found that the sentence imposed was proportionate to the offence and that there were no grounds for interfering with the sentence. The appeal was therefore dismissed.

No further orders were made by the Court of Appeal. The conviction and sentence imposed by the Supreme Court of Western Australia were upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established