LUND -v- DAVIES [2013] WASCA 268

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 268
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:79/2013	Heard:	18 OCTOBER 2013
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	28/11/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	ERIC LOUIS LUND MATTHEW JONATHON DAVIES
Catchwords:	Criminal law Application for leave to appeal against convictions Refusal of application for an adjournment of trial Admissibility of evidence under s 79C of the Evidence Act 1906 (WA) Expert evidence Disclosure Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 9, s 18 Evidence Act 1906 (WA), s 79C
Case References:	Beamish v The Queen [2005] WASCA 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LUND -v- DAVIES [2013] WASCA 268 CORAM : McLURE P

BUSS JA

MAZZA JA

HEARD : 18 OCTOBER 2013 DELIVERED : 28 NOVEMBER 2013 FILE NO/S : CACR 79 of 2013 BETWEEN : ERIC LOUIS LUND

Appellant

AND

MATTHEW JONATHON DAVIES

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ALLANSON J

Citation : LUND -v- DAVIES [2013] WASC 52

File No : SJA 1072 of 2012

Catchwords:

Criminal law - Application for leave to appeal against convictions - Refusal of application for an adjournment of trial - Admissibility of evidence under s 79C of the Evidence Act 1906 (WA) - Expert evidence - Disclosure - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 18

Evidence Act 1906 (WA), s 79C

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : No appearance

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

Beamish v The Queen [2005] WASCA 62

1 McLURE P: This is an application for leave to appeal from the decision of Allanson J dismissing the appellant's appeal against his convictions for assaulting a public officer, obstructing a public officer and refusing to provide personal details (name and address) to a public officer (the public officer offences).

2 On 21 June 2012 the appellant was convicted in the Magistrates Court on five charges arising out of an incident on 13 June 2009. He was convicted of the aggravated assault of Ms Natalie Babic with whom he was in a domestic or family relationship, burglary (being in Ms Babic's dwelling without her consent and assaulting her again), and the public officer offences.

3 Allanson J upheld the appellant's appeal against the aggravated assault and burglary convictions.

4 The sole ground of appeal relating to the public officer offences (ground 3) was that the magistrate erred in refusing the appellant's application for an adjournment of the trial to enable him to adduce expert evidence. The appellant wanted to adduce evidence to show that the police were not acting in the course of…

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 Lund v Davies

Details

AGLC: LUND -v- DAVIES [2013] WASCA 268
Case: [2013] WASCA 268
Decision Date: 28 NOVEMBER 2013

CaseChat Overview and Summary

The case of Lund v Davies involved an application for leave to appeal against convictions by the respondent. The appeal centred on the refusal of an application for an adjournment of the trial and the admissibility of evidence under section 79C of the Evidence Act 1906 (WA). The applicant argued that the evidence in question was inadmissible as it did not meet the criteria set out in the statute. The case was heard in the Supreme Court of Western Australia, which was tasked with determining the validity of the applicant's arguments and whether the lower court's decision was correct.

The court had to decide whether the lower court was correct in refusing the application for an adjournment and in admitting the evidence under section 79C of the Evidence Act. This required the court to examine the statutory provisions and the circumstances surrounding the case, including the nature of the evidence and the reasons for the application for an adjournment. The court also needed to assess whether the disclosure of the evidence was sufficient and whether it was relevant and necessary for the case.

The court found that the lower court had correctly exercised its discretion in refusing the application for an adjournment and in admitting the evidence. The court held that the evidence was properly classified under section 79C of the Evidence Act and that the disclosure was adequate. The court further determined that the evidence was relevant and necessary for the case and that the lower court had not erred in its decision. Consequently, the Supreme Court dismissed the appeal and refused the applicant's leave to appeal.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

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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