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Lawless v Turner

Lawless v Turner

Case [2007] WASCA 2 5 January 2007

Appeal

Refusal of Judge to allow substitution of new ground

Reasonable prospect of succeeding on appeal

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAWLESS -v- TURNER [2007] WASCA 2

CORAM: ROBERTS-SMITH JA

HEARD: 22 NOVEMBER 2006

DELIVERED : 5 JANUARY 2007

FILE NO/S: CACR 234 of 2005

BETWEEN: KEVIN GERARD LAWLESS
Appellant
AND
MATTHEW DAVID TURNER
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :LAWLESS -v- TURNER [2005] WASC 254
File No  :SJA 1082 of 2002

Catchwords:

Appeal - Criminal law and procedure - Leave to appeal to Court of Appeal from decision of single Judge of Supreme Court sitting in General Division on appeal from decision of Magistrate - Refusal of Judge to allow substitution of new ground relying on additional evidence not before Magistrate - Whether reasonable prospect of succeeding on appeal to Court of Appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 4, s 8, s 9, s 11, s 14, s 18

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: State Solicitor

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

CDJ v VAJ (1998) 197 CLR 172
de la Espriella‑Velasco v The Queen (2006) 31 WAR 291
Lawless v Turner [2005] WASC 254
Samuels v Western Australia (2005) 30 WAR 473

Case(s) also cited:

Nil

ROBERTS-SMITH JA: This is an appeal from a decision of a single Judge of the Supreme Court sitting in its General Division (the subject appeal) dismissing an appeal by the appellant from a decision of his Honour Mr P Nicholls SM, sitting in the Court of Petty Sessions at Midland on 6 June 2002 ("the primary decision").
The appellant was convicted after trial before the Court of Petty Sessions, of one offence of possessing an iron bar with the intention of using it to cause fear, contrary to s 8(1)(b) of the Weapons Act 1999 (WA) and one count of damaging a door, contrary to s 80 of the Police Act 1892 (WA).
His appeal to the single Judge was heard by Le Miere J on 2 September 2005. His Honour's reasons dismissing that appeal were delivered on 18 November 2005 (Lawless v Turner [2005] WASC 254).
It is apposite to explain the statutory provisions which apply here.
The Criminal Appeals Act 2004 (WA) (No 60 of 2004) is an Act about appeals in criminal cases and related matters. It came into operation on 2 May 2005. Part 2 of that Act deals with appeals to a single Judge of the Supreme Court sitting in its General Division, from decisions of courts of summary jurisdiction (now called the Magistrates' Court - see Magistrates Court Act 2004 (WA), s 4 and s 11(4)). By s 8(1), an appeal may be made under Div 2 of Pt 2 of the Act on one or more of the following grounds:
"(a)That the [Magistrates Court] -
(i)made an error of law or fact, or of both law…

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 Lawless v Turner

Details

AGLC: Lawless v Turner [2007] WASCA 2
Case: [2007] WASCA 2
Decision Date: 5 JANUARY 2007

CaseChat Overview and Summary

The appellant, Lawless, was found guilty of an offence by a magistrate and subsequently appealed to a single judge of the Supreme Court, who dismissed the appeal. Lawless then sought leave to appeal to the Court of Appeal, relying on a new ground that was not presented to the magistrate or the single judge. The judge refused to allow the substitution of this new ground, which was based on additional evidence not previously considered. The Court of Appeal was asked to determine whether the judge's refusal was appropriate and if there was a reasonable prospect of success on appeal.

The central issue before the Court of Appeal was whether the single judge's refusal to permit the substitution of a new ground of appeal was correct. The appellant argued that the new ground, supported by additional evidence, provided a reasonable prospect of success on appeal. The Court needed to assess whether the new evidence was material and whether the refusal to consider it was a proper exercise of the judge's discretion. Furthermore, the Court had to determine if the new ground presented a substantial question of law or fact that warranted further appellate review.

The Court of Appeal held that the single judge's decision to refuse the substitution of the new ground was appropriate. The Court found that the new evidence did not significantly alter the overall context of the case and did not present a substantial question of law or fact that had not already been considered. The Court emphasised the importance of maintaining the integrity of the appellate process and preventing unnecessary delays. It was concluded that the refusal to allow the new ground was within the judge's discretion and that there was no reasonable prospect of success on appeal. Consequently, the application for leave to appeal was dismissed.

The Court of Appeal dismissed the application for leave to appeal, affirming the single judge's decision. The refusal to allow the substitution of the new ground of appeal was upheld as a proper exercise of the judge's discretion. No further appeal was permitted, and the original conviction remained in place.

Orders