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Li v Skala

Li v Skala

Case [2018] WASC 353 16 November 2018

Spent Conviction Orders

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LI -v- SKALA [2018] WASC 353
CORAM:   PRITCHARD J
HEARD:   29 OCTOBER 2018
DELIVERED          :   29 OCTOBER 2018
PUBLISHED           :   16 NOVEMBER 2018
FILE NO/S:   SJA 1040 of 2018
BETWEEN:   SHIZHEN LI
Appellant
AND
ISABELLE SKALA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B GLUESTEIN
File Number             :   FRE 7260/2017

Catchwords:

Criminal law - Appeal against conviction - Whether miscarriage of justice - Where self-represented accused gave evidence - Where accused wanted to call witnesses to adduce evidence about matters not relevant to the issues at trial

Criminal law - Appeal against conviction - Apprehended bias - Where magistrate assisted self-represented accused to give evidence-in-chief

Criminal law - Appeal against conviction - Whether error of law - Provocation

Criminal law - Appeal against sentence - Totality principle - Aggravated common assault

Criminal law - Appeal against sentence - Spent conviction orders - Employment

Appeals - Application to adduce further evidence on appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 313(1)(a)
Sentencing Act 1995 (WA), s 45

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr J Carroll

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office (WA)

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

Brewer v Bayans [2002] WASCA 271
Duncan v The State of Western Australia [2018] WASCA 154
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
O'Connell v The State of Western Australia [2012] WASCA 96
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rodi v The State of Western Australia [2017] WASCA 81
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Williams v Pennuto [2016] WASC 28
Wilson v The State of Western Australia [2010] WASCA 82

PRITCHARD J:

(These reasons were delivered extemporaneously on 29 October 2018 at have been edited from the transcript.)

On 10 April 2018, Mr Li was convicted in the Magistrates Court at Fremantle of a charge that on 3 August 2017 at Langford he unlawfully assaulted Yuxia Wu in circumstances of aggravation, namely that the parties involved were in a domestic relationship contrary to s 313(1)(a) of the Criminal Code. Mr Li was fined $2000, which was ordered to be paid to Ms Wu, and ordered to pay costs of $100.
By an amended notice of appeal, Mr Li appeals against both his conviction and his sentence. In the course of the appeal, I permitted Mr Li to amend his grounds of appeal to add grounds 7…

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 Li v Skala

Details

AGLC: Li v Skala [2018] WASC 353
Case: [2018] WASC 353
Decision Date: 16 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Li v Skala, the appellant was convicted of aggravated common assault and was subsequently sentenced. The appeal was against both the conviction and the sentence imposed by the Magistrates Court of Victoria. The appellant, Li, was self-represented during the trial and elected to give evidence. The primary issues before the court were whether a miscarriage of justice had occurred due to the appellant's self-representation, whether there was an apprehended bias on the part of the magistrate, and if there were any errors of law in the application of provocation as a mitigating factor.

The court addressed the issue of self-representation and the potential for a miscarriage of justice, noting that Li was aware of the risks associated with representing himself and had been advised of the potential difficulties. The court held that there was no miscarriage of justice as Li had been afforded procedural fairness and the evidence presented was sufficient for the magistrate to reach a guilty verdict. The court also considered whether the magistrate's assistance to Li in giving evidence constituted apprehended bias, finding that there was no basis for such a claim as the magistrate's actions were appropriate and did not prejudice the trial. Regarding the application of provocation, the court found no error in law and upheld the conviction.

The court further examined the sentence imposed, considering the totality principle and the nature of the offence. The appellant argued that the sentence was excessive, but the court determined that the sentence was proportionate to the gravity of the offence. Finally, the court rejected the argument regarding the spent conviction orders and their impact on employment, finding that there was no basis for the appellant to adduce further evidence on appeal. The appeal against the conviction and sentence was dismissed.

Orders