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Lavaring v Forbes

Lavaring v Forbes

Case [2009] WASC 88 9 April 2009

Admissibility of Evidence

Infringement of Legal Principles

Appeal

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LAVARING -v- FORBES [2009] WASC 88

CORAM: SIMMONDS J

HEARD: 19 JANUARY 2009

DELIVERED : 9 APRIL 2009

FILE NO/S: SJA 1064 of 2008

BETWEEN: LEISA MICHELLE LAVARING
Appellant
AND
ALEISHA JAYDE FORBES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT MANDURAH
Coram  :MAGISTRATE T J McINTYRE
File No  :RO 2404 of 2008, RO 2406 of 2008, RO 2407 of 2008, RO 2408 of 2008

Catchwords:

Criminal law and procedure - Admissibility of text messages downloaded from mobile phone and put to accused in video recorded interview - Infringement of the principle in Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 - Infringement of the principle in Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 - When following allowance of appeal and quashing of convictions appeal court should substitute a decision of acquittal rather than remit for a new trial

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 409(1)(a)

Result:

Appeal allowed
Convictions quashed
Decision substituted of acquittal on all charges faced

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Mr B M Hollingsworth

Solicitors:

Appellant: Belinda J Lonsdale
Respondent: Director of Public Prosecutions (WA)

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

Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Reid v The Queen [1980] AC 343

SIMMONDS J:

Introduction

This is an appeal by leave against convictions in the Magistrates Court in Mandurah for four offences. There were eight grounds of appeal for which leave was granted.
At the hearing of the appeal, counsel for the respondent confirmed that the appeal should be allowed on at least some of the grounds, although counsel put to me that some of the grounds on which the appeal should be allowed required amendment. Counsel for the respondent accepted that the convictions should be quashed, but submitted that the case should be remitted to the Magistrates Court to be dealt with again by a different magistrate. Counsel for the appellant, for her part, submitted that the appeal should be allowed on all of the grounds and that the appropriate order was for me to return a judgment of acquittal on all charges. After I gave counsel an opportunity to make further submissions on the matter of remitting the case to the Magistrates Court or substituting my decision for that appealed against, the differences between the parties on that matter fell away.
In these reasons I provide a background to the appeal before describing it in more detail. I then turn to consider the submissions as to…

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 Lavaring v Forbes

Details

AGLC: Lavaring v Forbes [2009] WASC 88
Case: [2009] WASC 88
Decision Date: 9 APRIL 2009

CaseChat Overview and Summary

In the case of Lavaring v Forbes, the respondent, Lavaring, appealed against his conviction for various criminal offences, including extortion, assault, and deprivation of liberty. The primary issue before the court was the admissibility of text messages that were downloaded from Lavaring's mobile phone and subsequently presented to him during a video-recorded police interview. The respondent argued that the process by which these text messages were obtained and presented to him constituted a breach of legal principles established in prior High Court decisions, namely Azzopardi v The Queen and Liberato v The Queen. These principles pertain to the admissibility of evidence obtained in ways that infringe upon an accused person's right to a fair trial.

The court examined whether the procedures employed by law enforcement in this instance adhered to the aforementioned legal precedents. It was established that the text messages were improperly obtained and presented to Lavaring in a manner that compromised the fairness of the trial process. Specifically, the court found that the method of presenting the text messages to Lavaring during the video-recorded interview constituted a violation of the principles set out in Azzopardi and Liberato. These principles mandate that the process by which evidence is obtained and presented must not unfairly prejudice the accused or undermine the integrity of the trial.

Given the infringement of these established legal principles, the court concluded that Lavaring's right to a fair trial had been compromised. Consequently, the appeal was allowed, and the convictions were quashed. The court determined that, in accordance with the principles established in previous High Court decisions, the appropriate remedy in this case was to substitute a decision of acquittal rather than remit the matter for a new trial. This approach ensures that the respondent's right to a fair trial is upheld and that the legal principles governing the admissibility of evidence are respected.

Orders