King v Bishop

[2024] ACTSC 114

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

King v Bishop

Citation:

[2024] ACTSC 114

Hearing Date:

30 June 2023

DecisionDate:

22 April 2024

Before:

McCallum CJ

Decision:

The appeal is dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against finding of guilt by magistrate – consideration of logical order for dealing with grounds of appeal – whether finding of guilt was unreasonable and cannot be supported by the evidence – whether magistrate erred in applying the Murray direction – whether Magistrate erred in admitting a document as a business record – consideration as to who bears onus of proof of any factual precondition to the application of s 69(3) of the Evidence Act – whether magistrate erred in allowing into evidence the opinions of a police officer

Legislation Cited:

Crimes Act 1900 (ACT), s 24

Criminal Appeal Act 1912 (NSW), s 6
Evidence Act 2011 (ACT), ss 38, 69, 78, 142, 161(1)(b)
Magistrates Court Act 1930 (ACT), s 214
Public Health Act 1997 (ACT)

Supreme Court Act 1933 (ACT), s 37O(2)

Cases Cited:

Alexander v Bakes [2023] ACTCA 49

Averkin v Insurance Australia Ltd [2016] NSWCA 122
Hendricks v El-Dik (No 2) [2015] ACTSC 351
Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352
McFarlane v Van Eyle [2022] ACTCA 68
R v Catena [2012] WASC 144; 222 A Crim R 573
Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984

Smale v R [2007] NSWCCA 328

Parties:

Wayde William King ( Appellant)

Andrew Bishop ( Respondent)

Representation:

Counsel

E Chen ( Appellant)

M Howe ( Respondent)

Solicitors

Legal Aid ACT ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

SCA 21 of 2023

Decision Under Appeal:

Court/Tribunal:           ACT Magistrates Court

Before:  Magistrate Cook

Date of Decision:       31 March 2023

Case Title:                  Bishop v King

Charge Number:        CAN11115/2021

McCALLUM CJ:

1. Wayde King was charged in the Magistrates Court with an offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT).

1. The offence was alleged to have been committed between 9 and 20 October 2021 against Mr King’s on-again, off-again domestic partner, Nicole Francis.  During that time, Mr King was on bail on condition that he undertake a residential drug rehabilitation program.  However, he had been discharged from that program and, contrary to the conditions of his bail, had not immediately presented himself to the court. 

1. There was no question that Ms Francis had been assaulted at some point between the dates charged.  The issue at the hearing was whether it was Mr King who assaulted her.  An email sent from her email address at 2:07am on 30 October 2021 recorded that he had come to her house and tried to kill her.  The email stated that she had been “hit hard more than once and suffocated repeditly (sic)”; that he had “sliced with a razor across [her] face” and that she was scared and had a lot of injuries.  The email asked police to…