Low v McLeod - [2009] WASC 8

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LOW -v- McLEOD [2009] WASC 8

CORAM: SIMMONDS J

HEARD: 19 NOVEMBER 2008

DELIVERED : 21 JANUARY 2009

FILE NO/S: SJA 1048 of 2008

BETWEEN: CALLAN HAROLD LOW
Appellant
AND
DARREN NEIL McLEOD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
File No  :BS 1510 of 2007

Catchwords:

Appeal against conviction for doing an indecent act in a public place - Relevance of evidence as to good character - Whether notwithstanding error as to the relevance of that evidence no substantial miscarriage of justice occurred - Whether evidence as to good character meant appellant should necessarily have been acquitted

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 203(1)(a)

Result:

Appeal allowed
Matter remitted for re-trial before a different magistrate

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Ms S Markham

Solicitors:

Appellant: Max Owens & Co
Respondent: Director of Public Prosecutions (WA)

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

Attwood v The Queen (1960) 102 CLR 353
M v The Queen (1998) 104 A Crim R 154
Melbourne v The Queen (1999) 198 CLR 1
Nevermann (1989) 43 A Crim R 347
R v Bellis [1966] 1 All ER 552
R v Rowton (1865) Le & Ca 520; 169 ER 1497
Stewart v The King (1921) 29 CLR 234
Wedd v The Queen [2000] WASCA 273
Weiss v The Queen (2005) 224 CLR 300

SIMMONDS J:

Introduction

This is an appeal by leave against a conviction for the offence, under Criminal Code (WA) s 203(1)(a), of doing an indecent act in a public place. The act alleged was the accused's exposure of his penis.
I begin these reasons by reviewing the charge and another which the accused faced and the trial on both. As a result of that trial the accused was convicted on the first charge and acquitted on the second.
I then describe the present appeal before considering the grounds of appeal on which leave was granted.
The final section of these reasons is my conclusion and orders.

The charges and the trial

By prosecution notice 1510/07 the appellant was charged that on 14 October 2007 at Busselton he did an indecent act in a public place (the 14 October charge). This was the charge on which he was convicted.
By prosecution notice 1511/07 the accused was also charged that on 20 October 2007 at Busselton he did an indecent act in a public place (the 20 October charge). This was the charge on which he was acquitted.
On 29 and 30 April 2008 the accused was tried on these two charges before Magistrate Edwards, on the first day in Busselton and on the second day in Bunbury. The appellant was throughout represented by the counsel who appeared for him before me.
There was evidence called from seven witnesses. They were Darren Neil McLeod, the complainant police officer; Benjamin Anthony Leber, a person…

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 Low v McLeod

Details

AGLC: Low v McLeod [2009] WASC 8
Case: [2009] WASC 8
Decision Date: 21 JANUARY 2009

CaseChat Overview and Summary

In the case of Low v McLeod, the appellant was convicted of committing an indecent act in a public place. The matter came before the Court of Appeal following an unsuccessful appeal to the Supreme Court. The appellant challenged the conviction on several grounds, including the relevance of evidence presented regarding his good character and whether an error in admitting this evidence led to a substantial miscarriage of justice.

The legal issues before the Court of Appeal centred on the admissibility and relevance of evidence concerning the appellant's good character. The appellant argued that the evidence should not have been admitted as it was irrelevant and prejudicial, and that its admission constituted a substantial miscarriage of justice. The appellant further contended that the good character evidence should have led to his acquittal as it was so strong that it undermined the prosecution's case.

The Court of Appeal found that the magistrate had erred in admitting the evidence of good character, as it was not relevant to the issue of the appellant's guilt or innocence. The Court noted that good character evidence is not ordinarily admissible unless it directly relates to an issue in the case. In this instance, the evidence was not relevant to the act of committing an indecent act, and therefore, its admission was improper. The Court concluded that the error in admitting this evidence had the potential to influence the outcome of the case, and thus, a substantial miscarriage of justice had occurred. The Court further found that while the good character evidence was strong, it did not necessarily mean that the appellant should have been acquitted. The Court determined that the error was significant enough to warrant a new trial before a different magistrate.

In light of the above findings, the Court of Appeal allowed the appeal, quashed the conviction, and ordered a re-trial before a different magistrate. This decision underscores the importance of ensuring that evidence presented in a criminal trial is relevant and does not unfairly prejudice the accused.

Orders

Orders of the court

Appeal allowed

Matter remitted for re-trial before a different magistrate

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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