May v The State of Western Australia

Case [2018] WASCA 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MAY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 24

CORAM:   BUSS P

MAZZA JA
CHANEY J

HEARD:   16 NOVEMBER 2017

DELIVERED          :   1 MARCH 2018

FILE NO/S:   CACR 164 of 2017

BETWEEN:   JOSEPH BENEDICT JAMES MAY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEVENSON DCJ

File No  :IND KAR 25 of 2016

Catchwords:

Criminal law - Appeal against conviction - Aggravated home burglary and stealing - Identification evidence - Whether miscarriage of justice by reason of single photograph being shown to victim - Whether miscarriage of justice by reason of trial judge's identification direction - Domican warning - Whether miscarriage of justice by reason of evidence said to be hearsay and speculation - Whether verdict of guilty unreasonable or not supported by evidence - Proviso

Legislation:

Nil

Result:

Extension of time to appeal granted
Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on grounds 3 and 4
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms S King

Respondent:     Mr L M Fox

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395

Davies v The King [1937] HCA 27; (1937) 57 CLR 170

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

LBC v The State of Western Australia [2011] WASCA 201

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329

Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403

R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308

R v Christie [1914] AC 545

R v Hallam (1985) 42 SASR 126; (1985) 18 A Crim R 221

Ritchie v The State of Western Australia [2016] WASCA 134

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

  1. JUDGMENT OF THE COURT: The appellant seeks an extension of time to appeal, and, if granted, leave to appeal against his conviction in the District Court of one offence of aggravated home burglary contrary to s 401(2)(b) of the Criminal Code (WA) (the Code).

  2. The appeal was filed approximately two months out of time.  The delay has been explained in the affidavit of the appellant's lawyer, Sarah Helen King, sworn 11 August 2017.  Having regard to the contents of that affidavit, we would grant the extension of time. 

The charge, verdict and sentence

  1. The appellant was charged as follows:

    On 11 December 2015 at Nickol [the appellant], while in the place of…

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May v The State of Western Australia [2018] WASCA 24
Case
[2018] WASCA 24
Decision Date

CaseChat Overview and Summary

The appellant in this case sought an extension of time to appeal, and if granted, leave to appeal against his conviction in the District Court for one offence of aggravated home burglary. The appellant was charged with stealing three mobile phones and a wallet from Gary Smith's home while in the place without consent. The appellant was convicted and sentenced to 2 years and 3 months' imprisonment. The appellant now appeals on four grounds, primarily challenging the identification evidence, the trial judge's direction on identification, and the admissibility of hearsay evidence and speculation.

The legal issues before the court included whether the trial judge erred in admitting the complainant's identification of the appellant from a CCTV still, whether the judge's direction on identification was inadequate, whether the admission of hearsay evidence and speculation led to a miscarriage of justice, and whether the conviction was supported by the evidence. The appellant argued that the identification evidence was flawed due to the single photograph shown to the victim, and the direction given by the trial judge on identification was inadequate. Additionally, the appellant contended that the evidence regarding the timing of the CCTV footage was hearsay and speculative, which was crucial to the conviction, and that the conviction was not supported by the evidence.

The court considered the grounds of appeal and found that the admission of the single photograph and the direction given by the trial judge did not occasion a miscarriage of justice. The court held that the identification evidence was reliable and that the trial judge's direction was adequate. Regarding the hearsay and speculation, the court found that the evidence was not inadmissible and did not lead to a miscarriage of justice. The court also concluded that the conviction was supported by the evidence, particularly the CCTV footage and the appellant's presence at the crime scene. Therefore, the appeal was dismissed.

The court dismissed the appeal and affirmed the conviction and sentence of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant seeks an extension of time to appeal, and, if granted, leave to appeal against his conviction in the District Court of one offence of aggravated home burglary contrary to s 401(2)(b) of the Criminal Code (WA) (the Code). The appeal was filed approximately two months out of time. The delay has been explained in the affidavit of the appellant's lawyer, Sarah Helen King, sworn 11 August 2017. Having regard to the contents of that affidavit, we would grant the extension of time. The appellant was charged as follows:On 11 December 2015 at Nickol [the appellant], while in the place of Gary Smith without his consent, stole three mobile phones and a wallet containing money and sundry cards.AND that the place was ordinarily used for human habitation.[1][1] The indictment which appears at blue green AB 1 was amended by order of Bowden DCJ on 28 April 2017, to delete a circumstance of aggravation, ts 29. On 11 May 2017, the appellant was convicted of this charge after a trial before Stevenson DCJ and a jury. He was sentenced to 2 years 3 months' immediate imprisonment backdated to commence on 29 April 2017. He was made eligible for parole.[2][2] Blue green AB 3. The appellant relies on four grounds of appeal. As amended at the hearing, they are as follows:1.The learned trial judge erred in law by failing to exclude from evidence the complainant's identification of the appellant in a still from CCTV footage on a mobile telephone at the crime scene, alternatively, the admission of the evidence occasioned a miscarriage of justice.2.In the alternative to ground 1, his Honour erred by giving an inadequate direction with respect to the identification of the appellant by the complainant from viewing a photograph taken from the CCTV footage at the crime scene.3.Hearsay evidence and speculation were wrongly adduced at trial, occasioning a miscarriage of justice.Particulars(a)Constable Netterfield's evidence that the reason he knew that the CCTV footage of the appellant that he viewed and recorded on his mobile telephone was recorded at 7.01 pm, was based on hearsay and speculation.(b)The time that the CCTV footage was originally recorded, and viewed and then recorded by Constable Netterfield's mobile telephone was of crucial importance to the conviction of the appellant, thus [its] admission into evidence occasioned a miscarriage of justice.4.The conviction was not supported by the evidence.Particulars(a)This is when particular regard is had to the fact that the State based the prosecution case on the CCTV footage of the appellant running near the complainant's house, being recorded and then being viewed at times which were impossible on the examination of the evidence.(b)The time that the CCTV footage was originally recorded and viewed and the recorded [sic] by Constable Netterfield's mobile telephone was of crucial importance to the conviction of the appellant as it was asserted at trial that the footage was contemporaneous to the burglary.[3][3] The amendments to the grounds of appeal at the hearing were in respect of grounds 1 and 2. See appeal ts 6 and ts 10.

Ratio Decidendi

Legal Principle Established

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