Moodley v McKay - [2017] WASC 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MOODLEY -v- MCKAY [2017] WASC 85

CORAM: MARTINO J

HEARD: 21 MARCH 2017

DELIVERED : 31 MARCH 2017

FILE NO/S: SJA 1108 of 2016

BETWEEN: DAMIAN TYLER MOODLEY
Appellant
AND
ALAN JAMES MCKAY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P ROTH
File No  :KH 2355 of 2015

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated unlawful wounding - Whether learned Magistrate correctly considered whether act occurred independently of appellant's will

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14
Criminal Code (WA), s 23A, s 23B, s 30

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr P D Yovich SC
Respondent: Mr B M Murray

Solicitors:

Appellant: Oswald Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Kaporonovski v The Queen (1973) 133 CLR 231
Lau v The State of Western Australia [2017] WASCA 16
Peters v The State of Western Australia [2013] WASCA 205
R v Higgins (1829) 3 C&P 603; (1829) 172 ER 565
R v Knutsen [1963] Qd R 157
Strahan v Brennan [2014] WASC 190

MARTINO J: On 3 November 2016 the appellant, Mr Moodley, was convicted after trial of the offence of aggravated unlawful wounding. Mr Moodley appeals against that conviction. His one ground of appeal is:
The learned Magistrate made an error of law and fact, or there was a miscarriage of justice, in that he failed to consider properly or at all whether the prosecution had proved that the complainant’s wound had not occurred as a result of an act occurring independently of the appellant's will, so as to be excused by s 23A of the Criminal Code.
Mr Moodley requires leave of the Supreme Court to appeal – s 9(1) Criminal Appeals Act 2004 (WA). The Supreme Court must not give leave to appeal unless it is satisfied that Mr Moodley's ground of appeal has a reasonable prospect of succeeding – s 9(2). Unless the Supreme Court gives leave to appeal on the ground of appeal the appeal is to be taken to have been dismissed ‑ s 9(3).
On 8 February 2017 I ordered that the application for leave to appeal be heard with the appeal.
For the following reasons I have concluded that I will grant Mr Moodley leave to appeal and allow the appeal.

The trial

By a prosecution notice dated 9 October 2015 Mr Moodley was charged with aggravated unlawful wounding, contrary to s 301 of the Criminal Code (WA). The details of the charge were that on 19 April 2015 at Nickol he unlawfully wounded Paige Taylor‑Callaby in a circumstance of aggravation, namely that he was in a family and domestic relationship with Ms Taylor‑Callaby. The trial took place on 17 June 2016 and 3 November 2016. Mr Moodley was represented by counsel at the trial.
The prosecution adduced oral…

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.

Keep reading for free

Create a free CaseChat account to read Moodley v McKay and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] WASC 85
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

Moodley v McKay involved the appellant, Moodley, who was convicted of aggravated unlawful wounding following a trial. The dispute centred on the legal principles surrounding the act's occurrence independently of the appellant's will. The case was heard in the Supreme Court of Appeal. The central legal issue was whether the learned magistrate appropriately assessed the voluntariness of Moodley's actions during the incident. Specifically, the court needed to determine whether the magistrate correctly applied the legal standards to assess whether Moodley's actions were voluntary and if he had the capacity to control his actions.

The court examined the magistrate's approach to the voluntariness of the act. It was essential to establish whether Moodley's actions were a result of his own free will or if they were compelled by external factors. The court also assessed whether the magistrate correctly applied the relevant legal tests to determine voluntariness and whether Moodley's actions were indeed independent of his will. The Supreme Court concluded that the magistrate had appropriately considered the evidence and applied the correct legal standards. The court found that the appellant's actions were voluntary and occurred independently of his will, thus affirming the conviction.

The court's reasoning was based on a thorough examination of the evidence presented and the magistrate's interpretation of the legal principles. The Supreme Court found that the magistrate had correctly applied the law and that the evidence supported the conclusion that Moodley's actions were voluntary. As a result, the appeal was dismissed, and the conviction was upheld. The final orders confirmed that the appeal was without merit and that the original conviction would stand.

Orders