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Lawless v Turner

Lawless v Turner

Case [2005] WASC 254 18 November 2005

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LAWLESS -v- TURNER [2005] WASC 254

Link to Appeal :

[2007] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 254
Case No:	SJA:1082/2002	Heard:	2 SEPTEMBER 2005
Coram:	LE MIERE J	Delivered:	18/11/05
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	KEVIN GERARD LAWLESS MATTHEW DAVID TURNER
Catchwords:	Appeal Criminal law Credibility Findings of fact by Magistrate Power of appellate court to set aside findings Fresh evidence New evidence
Legislation:	Criminal Appeals Act 2004 (WA), s 9, s 40 Police Act 1892 (WA), s 80 Weapons Act 1999 (WA), s 8
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Beamish v The Queen [2005] WASCA 62 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Button v The Queen [2002] WASCA 35; 25 WAR 382 DeVries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson [1999] 21 WAR 226 Kiama Constructions Pty Ltd v Davey (1996) NSWLR 639 Lawless v The Queen (1979) 142 CLR 659 Magenta Nominees Pty Ltd v Webb, unreported; SCt of WA; Library No 980622; 29 October 1998 Ratten v The Queen (1974) 131 CLR 510 State Rail Authority of New South Wales v Herculine Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Canale v Bayens [2001] WASCA 383 CDJ v VAJ (No 1) (1998) 197 CLR 172 Domican v The Queen (1990) 173 CLR 555 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 Fox v Percy (2003) 214 CLR 118 Frichot v Zalmstra, unreported; SCt of WA; Library No 980291; 13 May 1998 Kelly v The Queen (2002) 129 A Crim R 363 Mallard v The Queen [2003] WASCA 296; 28 WAR 1 Mickelberg v The Queen [2004] WASCA 145; 29 WAR 13 Mifsud v Campbell (1991) 21 NSWLR 725 R v Easterday (2003) 143 A Crim R 154 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Underwood & Ors v Gayfer [1999] WASCA 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LAWLESS -v- TURNER [2005] WASC 254 CORAM : LE MIERE J HEARD : 2 SEPTEMBER 2005 DELIVERED : 18 NOVEMBER 2005 FILE NO/S : SJA 1082 of 2002 BETWEEN : KEVIN GERARD LAWLESS

Applicant

AND

MATTHEW DAVID TURNER

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR P NICHOLLS SM

File No : NO 1609 of 2001, NO 1610 of 2001

Result : Convicted

Catchwords:

Appeal - Criminal law - Credibility - Findings of fact by Magistrate - Power of appellate court to set aside findings - Fresh evidence - New evidence

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 40

Police Act 1892 (WA), s 80
Weapons Act 1999 (WA), s 8

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Mr J A Davies & Ms A N Blackburn

Respondent : Ms…

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 [2005] WASC 254
Case: [2005] WASC 254
Decision Date

CaseChat Overview and Summary

Kevin Gerard Lawless appeals against his conviction and sentence in the Court of Petty Sessions for possessing an iron bar with the intention of using it to cause fear and damaging a door. The appeal is heard in the Supreme Court of Western Australia. Matthew David Turner is the respondent. The respondent submits that the appeal should be dismissed. The primary issue for the court to determine is whether the Magistrate erred in convicting the appellant. The court finds that the Magistrate did not err. The appellant had the onus of proving that he was not at the complainant's house at the relevant time. The court found that the appellant failed to do so. The court also found that the Magistrate did not err in accepting the evidence of the complainant and the complainant's son. The court also found that the proposed new evidence does not have any merit. The appeal is dismissed.

Orders