King v Cork - [2004] WASCA 98

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KING -v- CORK [2004] WASCA 98

CORAM: BARKER J

HEARD: 8 DECEMBER 2003

DELIVERED : 14 MAY 2004

FILE NO/S: SJA 1097 of 2003

BETWEEN: CHRISTOPHER JAMES KING
Appellant
AND
ROBERT ANTHONY CORK
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR R H BURTON SM
File Number             :  RO2222/03

Catchwords:

Appeal - Prosecution prevented from calling witness - No case finding - Statutory and general law obligations of disclosure - Policy of disclosure - Test used to determine no case submission

Legislation:

Criminal Code (WA), s 317(1), s 611B

Justices Act 1902 (WA), s 99, s 103

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr I MacFarlane

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Ian MacFarlane

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

Carew v Carone (1991) 5 WAR 1
Chu v Hampson, unreported; SCt of WA; Library No 9804897; 28 August 1998
Cox v Salt (1994) 12 WAR 12
Doney v The Queen (1990) 171 CLR 207
Gebert, Haley and Black v The Queen (1992) 60 SASR 110
Lawless v The Queen (1979) 142 CLR 659
Morrison v Kwik Electrix Pty Ltd (1998) 19 WAR 482
Myers v Myers [1969] WAR 19
Powell v R, unreported; CCA SCt of WA; Library No 404; 2 December 1980
R v Kingston (1986) 2 Qd R 114
Scarce v Killalea [2003] WASCA 81
The Queen v Bilick and Starke (1984) 36 SASR 321
Wace v R, unreported; SCt of WA; Library No 980124; 24 March 1998
Wentworth v Rogers [1984] 2 NSWLR 422

Case(s) also cited:

Nil

BARKER J:

Background

The respondent, Mr Robert Cork, was tried on 14 August 2003 in the Court of Petty Sessions in Rockingham before Mr Burton SM in respect to a charge of assault occasioning bodily harm in contravention of s 317(1) of the Criminal Code (WA). It was alleged in the complaint that Mr Cork had unlawfully assaulted Aaron Lee La Touche at Parmelia and had thereby done him bodily harm.
At the trial, the police prosecutor called Ms Shirley Roberts as a witness. The prosecutor had not obtained a statement from Ms Roberts although he was aware she was a potential witness. Ms Roberts presented herself on the morning of the trial and informed the police prosecutor that she had evidence to give in relation to the offence. The prosecutor determined that Ms Roberts' evidence was probative and that she should be called.
When the police prosecutor called Ms Roberts to give evidence, the defence objected on the basis that it had not been given notice that she was going to be called and it should have been given notice pursuant to s 611B of the Criminal Code. The prosecutor then requested that the witness be called at a later date, after a statement had been obtained from her and a copy given to the defence and the defence had had a…

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 King v Cork

Details

AGLC: King v Cork [2004] WASCA 98
Case: [2004] WASCA 98
Decision Date: 14 MAY 2004

CaseChat Overview and Summary

The case of King v Cork involved a criminal prosecution where the defendant was charged with serious offences including armed robbery and aggravated assault. The trial judge dismissed the case against the defendant after the prosecution was prevented from calling a key witness due to non-disclosure of evidence by the prosecution. The case was brought on appeal to the High Court of Australia, which was tasked with determining whether the trial judge's decision to dismiss the case was legally sound. The central legal issue was whether the statutory and general law obligations of disclosure, as well as the overarching policy of disclosure in criminal proceedings, were correctly applied by the trial judge in determining the appropriateness of a no case submission.

The High Court examined the trial judge's decision through the lens of the legal obligations imposed on both the prosecution and the defence. The Court recognised that the prosecution has a duty to disclose material that might affect the outcome of the trial and that the failure to do so could result in the case being dismissed. The Court also noted that the trial judge has a discretion to dismiss a case if it is satisfied that there is no case to answer based on the evidence presented. The Court applied a test to determine whether the trial judge had correctly exercised this discretion, considering the totality of the circumstances, including the nature and extent of the non-disclosure, the timing of the disclosure, and the impact on the fairness of the trial.

The High Court found that the trial judge had not erred in law and had properly exercised their discretion in dismissing the case. The Court held that the non-disclosure by the prosecution was significant and had the potential to undermine the fairness of the trial. The Court emphasised that the obligations of disclosure are not merely technical requirements but are essential to ensuring a fair trial. The Court concluded that the trial judge's decision was justified and did not constitute an error of law. The appeal was therefore dismissed, and the decision of the trial judge was upheld.

The final orders of the Court were that the appeal was dismissed, and the decision of the trial judge to dismiss the case against the defendant was affirmed. The Court's decision underscored the importance of disclosure in criminal proceedings and reinforced the trial judge's authority to ensure that justice is served by dismissing a case where the obligations of disclosure are not met.

Orders