ON APPEAL FROM:
For File No               :  SJA 1042 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :WY 371 of 2008, KR 1867 of 2008
For File No               :  SJA 1043 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :KR 1924 of 2008

Catchwords:

Criminal law - Appeals against conviction - Appeals against sentences - Aboriginal man - Two convictions for aggravated assault occasioning bodily harm - Criminal Code s 317(1) - - One conviction for aggravated common assault - Principal prosecution witness declared hostile - Verification by witness of contents of out of court statement to police - Failure of accused to give evidence - Weissensteiner inferences - Whether convictions unsafe or unsatisfactory - Whether third sentence should be cumulative

Legislation:

Criminal Code, s 313, s 317
Evidence Act 1906 (WA)
Sentencing Act 1995 (WA), s 6, s 39(2), s 88(3)

Result:

Appeals against conviction dismissed
Appeals against sentences in SJA 1042 of 2010 dismissed
Appeal against sentence in SJA 1043 of 2010 allowed to extent that sentence ordered to be partly concurrent with other sentences to the extent of 6 months and cumulative to the extent of 3 months

Category: B

Representation:

SJA 1042 of 2010

Counsel:

Appellant:     Mr S Corish
First Respondent           :     Mr A E H Putt
Second Respondent       :     Mr A E H Putt

Solicitors:

Appellant:     Aboriginal Legal Service (WA)
First Respondent           :     Director of Public Prosecutions (WA)
Second Respondent       :     Director of Public Prosecutions (WA)

SJA 1043 of 2010

Counsel:

Appellant: Mr S Corish
Respondent: Mr A E H Putt

Solicitors:

Appellant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)

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

Birkett v A F Little Pty Ltd [1962] NSWR 492
Blewitt v The Queen [1988] HCA 43; (1988) 80 ALR 353
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Chan v The Queen (1989) 38 A Crim R 337
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Johnson v Hayter [2001] WASCA 118
Kilner v The Queen [1999] WASCA 189
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63;

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 Morgan v Kazandzis

Details

AGLC: Morgan v Kazandzis [2010] WASC 377
Case: [2010] WASC 377
Decision Date: 10 DECEMBER 2010

CaseChat Overview and Summary

In the case of Morgan v Kazandzis, the appellant was convicted of two counts of aggravated assault occasioning bodily harm and one count of aggravated common assault. The appellant appealed against his convictions and sentences, which were imposed consecutively. The legal issues before the court were whether the convictions were unsafe and unsatisfactory, and whether the third sentence was cumulative. The court had to consider the impact of the principal prosecution witness declaring themselves hostile, the verification of the contents of an out-of-court statement, and the failure of the accused to give evidence.

The court held that the convictions were safe and satisfactory. The principal prosecution witness's declaration of hostility did not necessarily render their evidence inadmissible or unreliable, as the witness had already verified the contents of their out-of-court statement to the police. Furthermore, the failure of the accused to give evidence did not necessarily lead to an inference that they were guilty, as the accused had a right to remain silent. The court rejected the argument that the third sentence was cumulative, as it was for a separate offence that occurred on a different occasion. The court found that the sentences were appropriate and not manifestly excessive.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The convictions and sentences were affirmed, and the appellant was ordered to serve the sentences imposed by the trial judge. The court held that the appellant's convictions were safe and satisfactory, and that the sentences were appropriate and not manifestly excessive. The court rejected the argument that the third sentence was cumulative, as it was for a separate offence that occurred on a different occasion.

Orders