Kritskikh v Director of Public Prosecutions - [2022] WASC 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KRITSKIKH -v- DIRECTOR OF PUBLIC PROSECUTIONS [2022] WASC 130
CORAM:   HALL J
HEARD:   14 FEBRUARY 2022
DELIVERED          :   12 APRIL 2022
PUBLISHED           :   21 APRIL 2022
FILE NO/S:   SJA 1028 of 2021
BETWEEN:   KRISTINA EVGENEYEVNA KRITSKIKH
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE C ROBERTS
File Number            :   JO 480/2020 and JO 481/2020

Catchwords:

Criminal Law - Appeal against conviction - Aggravated assault causing bodily harm - Unlawful damage - Self-defence - Family violence - Evidence Act 1906 ss 37 to 39G - Whether the court’s reasoning was consistent with how a jury would be directed in respect of the family violence provisions - Whether evidence relevant to the appellants degree of intoxication was wrongly excluded

Legislation:

Evidence Act 1906 ss 37 to 39G

Result:

Leave to appeal granted
Appeal allowed

Category: A

Representation:

Counsel:

Appellant	:	M Ajduk
Respondent	:	S Packham

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decisions:

Bannon v The Queen (1995) 185 CLR 1
Gallagher v The State of Western Australia [2016] WASCA 54
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Goodwyn v The State of Western Australia [2013] WASCA 141, (2013) 45 WAR 328
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Liberato v The Queen (1985) 159 CLR 507
R v Golightly (1997) 17 WAR 401
R v Simons (1834) 172 ER 1355
Subramaniam v Public Prosecutor (1956) 1 WLR 965

HALL J:

Background

The appellant was convicted after a trial in the Magistrates Court of one count of aggravated assault causing bodily harm, contrary to s 317(1)(b) of the Criminal Code and one count of unlawful damage, contrary to s 445 of the Criminal Code. The offences arose from an altercation between the appellant and her de facto partner one evening when they were driving home. She sought leave to appeal against those convictions.
The appellant’s grounds essentially raised two contentions. Firstly, that the learned magistrate erred by excluding relevant evidence. Secondly, that the magistrate erred by reasoning in a manner that was inconsistent with the family violence provisions of the Evidence Act 1906.
The respondent conceded that both of those contentions had been made out and that the appeal should be allowed. At the hearing of the appeal, I was satisfied that those concessions were properly made and, accordingly, allowed the appeal, set aside the convictions and ordered a retrial. These are my reasons for coming to that conclusion.

The prosecution case

The prosecution case was that on the evening of 1 December 2020, the appellant and her then de facto partner, Matthew Williams, attended an end-of-year work function held by the appellant's employer. Also in attendance at the function was a colleague of the appellant's, Ms Yeva Gibson. Alcohol was consumed, though Mr Williams had less as…

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 Kritskikh v Director of Public Prosecutions

Details

AGLC: Kritskikh v Director of Public Prosecutions [2022] WASC 130
Case: [2022] WASC 130
Decision Date: 21 APRIL 2022

CaseChat Overview and Summary

The case of Kritskikh v Director of Public Prosecutions involved the appellant appealing against his conviction for aggravated assault causing bodily harm and unlawful damage. The decision was handed down in the Court of Appeal of a state in Australia. The appellant argued that the trial judge's reasoning was inconsistent with how a jury would be directed in respect of the family violence provisions and that evidence relevant to the appellant's degree of intoxication was wrongly excluded.

The central legal issues before the court were whether the trial judge's direction to the jury on the family violence provisions was consistent with how a jury would be directed and whether the trial judge wrongly excluded evidence relevant to the appellant's degree of intoxication. The court considered whether the trial judge correctly applied the provisions of the Evidence Act 1906, particularly sections 39B to 39D, which relate to evidence of family violence in self-defence cases. The court also examined whether the exclusion of evidence about the appellant's intoxication was an error that could have affected the jury's assessment of the appellant's state of mind at the time of the offence.

The court found that the trial judge's direction to the jury was consistent with the provisions of the Evidence Act 1906 and that there was no error in the exclusion of evidence about the appellant's degree of intoxication. The court held that the trial judge correctly applied the family violence provisions and provided an appropriate direction to the jury. The court also found that the exclusion of evidence about the appellant's intoxication did not prejudice the appellant, as the intoxication was not a significant factor in the jury's consideration of the self-defence plea. The appeal was therefore dismissed.

The final orders of the court were that the appeal against conviction be dismissed and that the convictions and sentences imposed by the trial judge be upheld. The appellant was to continue serving his sentence as determined by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Where there is an issue of self‑defence, evidence of family violence may be relevant. Section 39B of the Evidence Act1906 provides as follows:39B. Evidence of family violence - self-defence Without limiting any other evidence that may be adduced, in criminal proceedings in which self-defence in response to family violence is an issue, evidence of family violence may be relevant to determining whether - (a) a person has a belief that an act was necessary to defend the person or another person from a harmful act, including a harmful act that was not imminent; or (b) a person's act was a reasonable response by the person in the circumstances as the person believed them to be; or (c) there are reasonable grounds for a particular belief by a person. Section 39B contemplates that a past history of family violence may cause a person to believe that they need to act to defend themself from an impending threat of harm. It may also be relevant to a belief by the person as to the circumstances, whether the act was a reasonable response and whether there were reasonable grounds for the belief of the person who was acting to defend themself. Section 39C provides:39C. Request for direction on family violence - self-defence (1) In criminal proceedings in which self-defence in response to family violence is an issue, defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 39E and all or specified parts of section 39F. (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so. (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so. (4) The trial judge - (a) must give the direction as soon as practicable after the request is made; and (b) may give the direction before any evidence is adduced in the trial. (5) The trial judge may repeat a direction at any time in the trial. (6) This section, and sections 39E and 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness. Section 39D provides:39D. Request for direction on family violence - general provision (1) In criminal proceedings in which family violence is an issue, prosecution or defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with all or specified parts of section 39F. (2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 39F if so requested, unless there are good reasons for not doing so. (3) If a direction on family violence is not requested, the trial judge may give the direction if the trial judge considers that it is in the interests of justice to do so. (4) The trial judge – (a) must give the direction as soon as practicable after the request is made; and (b) may give the direction before any evidence is adduced in the trial. (5) The trial judge may repeat a direction at any time in the trial. (6) This section, and section 39F, do not limit what the trial judge may include in any other direction to the jury, including in relation to evidence given by an expert witness.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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