Legal Research
Cases
Lund v Davies

Lund v Davies

Case [2013] WASC 52 5 March 2013

Appeal

Jurisdiction

Admissibility of Evidence

No judgment structure available for this case.

Type to search within this case.

LUND -v- DAVIES [2013] WASC 52

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 52
Case No:	SJA:1072/2012	Heard:	4 DECEMBER 2012
Coram:	ALLANSON J	Delivered:	5/03/13
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal allowed in part
Category:	B
PDF Version

Parties:	ERIC LOUIS LUND MATTHEW JONATHON DAVIES
Catchwords:	Criminal law Appeal against conviction Particular grounds of appeal Issues of credibility Duty to deliver reasons for decision Turns on own facts Criminal procedure Adjournment of trial
Legislation:	Criminal Appeals Act 2004 (WA), s 14, s 40 Criminal Code (WA), s 24, s 25 Criminal Procedure Act 2004 (WA), s 62, s 63, s 75(2) Magistrates Court Act 2004 (WA), s 31
Case References:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Baini v The Queen [2012] HCA 59 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bennett v Carruthers [2010] WASC 5 Bennett v Carruthers [2010] WASCA 131 CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Douglass v The Queen [2012] HCA 34 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Lewis v The State of Western Australia [2008] WASCA 94 Lyster v Kemp [2010] WASC 47 Mano v Iriks [1999] WASCA 180 Manonai v Burns [2011] WASCA 165 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Pallett v Paul [2007] WASC 290 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525 Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 Trivett v Zoccoli [2002] WASCA 138 Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 Weary v Stok (1986) 3 MVR 411 Weir v Tomkinson [2001] WASCA 77 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : LUND -v- DAVIES [2013] WASC 52 CORAM : ALLANSON J HEARD : 4 DECEMBER 2012 DELIVERED : 5 MARCH 2013 FILE NO/S : SJA 1072 of 2012 BETWEEN : ERIC LOUIS LUND

Appellant

AND

MATTHEW JONATHON DAVIES

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE K M BOOTHMAN

File No : PE 37706 of 2009, PE 37707 of 2009, PE 37708 of 2009, PE 37709 of 2009, PE 37710 of 2009

Catchwords:

Criminal law - Appeal against conviction - Particular grounds of appeal - Issues of credibility - Duty to deliver reasons for decision - Turns on own facts

Criminal procedure - Adjournment of trial

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 40

Criminal Code (WA), s 24, s 25
Criminal Procedure Act 2004 (WA), s 62, s 63, s 75(2)
Magistrates Court…

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] WASC 52
Case: [2013] WASC 52
Decision Date

CaseChat Overview and Summary

Eric Louis Lund has appealed against five convictions from the Magistrates Court of Western Australia. The appeal was heard by Allanson J in the Supreme Court of Western Australia. The appeal was allowed in part. The conviction of the appellant on the charge of burglary was set aside. The conviction and sentence on the charge of aggravated assault was set aside, and the charge was dismissed. The appeal against the convictions on the remaining three charges was dismissed. The first ground of appeal was that the magistrate erred in law and in fact in finding that the complainant had withdrawn her consent for the appellant to re-enter her premises and in finding that the complainant had communicated that consent to the appellant. The second ground was that the magistrate erred in law and in fact in failing to consider whether the prosecution had rebutted the appellant's defence of honest but mistaken belief and whether the prosecution had rebutted the appellant's defence of sudden and extraordinary emergency. The third ground was that the magistrate erred in law in refusing an adjournment to enable the appellant to adduce expert evidence. The court found that the magistrate had erred in law in failing to consider the appellant's defence of emergency. The court found that the evidence of the complainant was not credible enough to prove the case against the appellant. The court found that the magistrate had not erred in law in refusing the adjournment.

Orders