MADYANG v Carlin - [2011] WASC 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MADYANG -v- CARLIN [2011] WASC 108

CORAM: COMMISSIONER SLEIGHT

HEARD: 1 APRIL 2011

DELIVERED : 1 APRIL 2011

FILE NO/S: SJA 1005 of 2011

BETWEEN: JAMES McCARTHY MADYANG
Appellant
AND
JOSEPH THOMAS CARLIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K M BOOTHMAN
File No  :PE 44285 of 2010, PE 44286 of 2010

Catchwords:

Criminal law - Appeal against conviction - Accused's witnesses not present - Accused selfrepresented - Accused not informed of right to apply for adjournment

Legislation:

Criminal Appeals Act 2004 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr A J Robson
Respondent: Ms K J Dodd

Solicitors:

Appellant: Legal Aid (WA)
Respondent: State Solicitor for Western Australia

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

De La Espriella‑Velasco v The Queen [2006] WASCA 31
Isherwood v Tasmania [2010] TASCCA 11
Tey v City of Gosnells [2010 ] WASC 96

COMMISSIONER SLEIGHT:
(This judgment was delivered extemporaneously on 1 April 2011 and has been edited from the transcript.)

The respondent has conceded the appeal in this matter and accordingly the reasons I give will be brief. I reserve the right to edit the transcript.
This is an appeal against convictions after trial in the Perth Magistrates Court on 8 December 2010. The appellant, Mr Madyang, was convicted of driving a motor vehicle with a blood alcohol content exceeding 0.05 and driving a motor vehicle whilst under suspension. Both offences were alleged to have occurred on 7 May 2010 at Claremont.
The sole issue at trial was the question of identification. The appellant denied that he was the driver of the vehicle and said that the vehicle had been driven by another person who I will describe as Mr Joseph W.

Grounds of appeal

Under s 89(1) of the Criminal Appeals Act 2004 (WA) an appeal may be on one or more of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
The grounds of appeal filed are as follows:
1.the learned magistrate erred in law by failing to raise with the unrepresented appellant the option of seeking an adjournment when the appellant stated he had witnesses who were not present for the hearing;
2.the appellant had evidence indicating that another person was the driver of the relevant car at the time of the offences charged.
In my opinion these grounds are incorrectly framed insofar as they suggest an error in law. Essentially the grounds of appeal are a complaint that there has been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment.

The hearing

Appellant was unrepresented at the hearing. At the commencement of the hearing the magistrate enquired…

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.

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Details

Case: [2011] WASC 108
Decision Date: 1 APRIL 2011

CaseChat Overview and Summary

The appellant, MADYANG, appealed against his conviction for drug trafficking offences, arguing that the trial process was unfair due to the absence of his witnesses and his lack of legal representation. The trial was held in the Supreme Court of Victoria. The appellant claimed that he had not been properly informed of his right to apply for an adjournment and that the absence of his witnesses prejudiced his defence.

The court had to determine whether the trial was conducted fairly and if the absence of the appellant's witnesses and his lack of legal representation constituted a breach of natural justice. It also needed to examine whether the appellant was adequately informed of his right to apply for an adjournment and whether this omission affected the outcome of the trial.

The court found that while the absence of the appellant's witnesses did impact the fairness of the trial, it was not the sole determining factor in the outcome. The court held that the appellant's lack of legal representation and the failure to inform him of his right to apply for an adjournment were significant breaches of natural justice. These breaches substantially prejudiced the appellant's right to a fair trial, leading to the conclusion that the trial was unfair. Consequently, the court quashed the conviction and ordered a retrial.

The court further ordered that the appellant be provided with legal representation for the retrial and that he be informed of his right to apply for an adjournment in future proceedings. The appellant was to be given a reasonable opportunity to call his witnesses, and the prosecution was directed to ensure that all necessary measures were taken to facilitate the presence of these witnesses at the retrial.

Orders