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MSB v WA Police

MSB v WA Police

Case [2024] WASC 286 17 September 2024

Appeal

Trespass

Admissibility of Evidence

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MSB -v- WA POLICE [2024] WASC 286
CORAM:   FORRESTER J
HEARD:   3 MAY 2024
DELIVERED          :   17 SEPTEMBER 2024
FILE NO/S:   SJA 1064 of 2023
BETWEEN:   MSB
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1064 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE C CRAWFORD
File Number            :   PE 32888 of 2022

Catchwords:

Criminal Law - Single judge appeal - Appeal against conviction - Trespass - Whether evidence relied upon by prosecution was inadmissible - Whether lack of consent or licence proved - Whether magistrate erred in using alleged lie as consciousness of guilt - Whether magistrate erred in failing to consider s 22 and s 24 of the Criminal Code (WA) - Whether verdict unreasonable and unsupported by evidence - Whether substantial miscarriage of justice - Appeal against sentence - Whether sentence was excessive

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Dividing Fences Act 1961 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on all other grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr C Payne

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office (WA)

Cases referred to in decision:

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338
Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v WA Police [2024] WASC 24
Holmes v The State of Western Australia [2023] WASCA 26
Hunt v Russell [2019] WASC 284
Lance v Weston [2014] WASCA 62
LBC v The State of Western Australia [2011] WASCA 201
M v The Queen (1994) 181 CLR 487
Martincic v The State of Western Australia [2019] WASCA 134
Michael v The State of Western Australia [2007] WASCA 100
Molina z Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Morgan v Cramer [2019] WASC 68
NYL v The State of Western Australia [2022] WASCA 41
Police v Slobodian [2008] SASC 69
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Reynolds v Rayney [2023] WASCA 144
Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Strahan v Brennan [2014] WASC 190
Walden v Hensler (1987) 163 CLR 561
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilson v McDonald [2009] WASCA 39; (2009) 253 ALR 560
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

FORRESTER J:

On 12 July…

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 MSB v WA Police

Details

AGLC: MSB v WA Police [2024] WASC 286
Case: [2024] WASC 286
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

MSB appealed against his conviction and sentence for trespass, arguing that the evidence was inadmissible, that there was no proof of lack of consent or licence, and that the magistrate erred in using an alleged lie as consciousness of guilt. WA Police opposed the appeal, arguing that the conviction and sentence were appropriate. The appeal was heard in the Court of Appeal of Western Australia.

The court considered whether the evidence relied upon by the prosecution was inadmissible, whether the lack of consent or licence was proved, whether the magistrate erred in using an alleged lie as consciousness of guilt, whether the magistrate erred in failing to consider sections 22 and 24 of the Criminal Code (WA), whether the verdict was unreasonable and unsupported by evidence, and whether a substantial miscarriage of justice occurred. The court also considered whether the sentence was excessive.

The court found that the evidence relied upon by the prosecution was admissible and that there was proof of lack of consent or licence. The court held that the magistrate did not err in using an alleged lie as consciousness of guilt and that the magistrate did not err in failing to consider sections 22 and 24 of the Criminal Code (WA). The court held that the verdict was not unreasonable or unsupported by evidence and that there was no substantial miscarriage of justice. The court held that the sentence was not excessive. Therefore, the appeal against conviction and sentence was dismissed. However, leave to appeal was granted on ground 5. The appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Leave to appeal is granted on ground 5.

2. Leave to appeal is refused on all other grounds.

3. The appeal against conviction is dismissed.

4. The appeal against sentence is dismissed.

5. The appellant pay the respondent's costs to be taxed if not agreed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

MSB v WA Police [2024] WASC 286

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 27 of 27 shown

Snook v Magistrate Trevor Darge [No 2]
[2024] WASC 91 Para 11

…rt of the appellant in an earlier hearing does not and cannot demonstrate actual or apprehended bias.[33] [33] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91.…
Evans v WA Police
[2024] WASC 24 Para 9

…J summarised the well‑known legal principles in relation to apprehended bias as they apply in the summary jurisdiction.[31] [30] Evans v WA Police [2024] WASC 24 [73] ‑ [81]. [31] See also Reynolds v Rayney [2023] WASCA 144[28] ‑ [34].…
Prichard v M 6:8 Legal Pty Ltd
[2024] WASCA 4 Para 10

…e required to decide.[32] [32] Evans v WA Police [73]; Michael v The State of Western Australia [2007] WASCA 100 [56]; Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [24].…
Reynolds v Rayney
[2023] WASCA 144 Para 9

…pprehended bias as they apply in the summary jurisdiction.[31] [30] Evans v WA Police [2024] WASC 24 [73] ‑ [81]. [31] See also Reynolds v Rayney [2023] WASCA 144[28] ‑ [34].…
Holmes v The State of Western Australia
[2023] WASCA 26 Para 6

…etion bears the onus of establishing, on the balance of probabilities, that they should be excluded.[47] [47] Holmes v The State of Western Australia [2023] WASCA 26 [201] ‑ [204].…
NYL v The State of Western Australia
[2022] WASCA 41 Para 2

…ict is unreasonable and unsupported by the evidence are well settled.[94] [94] M v The Queen (1994) 181 CLR 487; NYL v The State of Western Australia [2022] WASCA 41.…
Roy v O'Neill
[2020] HCA 45 Para 2

…the police alike, albeit that the business which they may have with the occupier or those present on the premises may differ.[35] [35] Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291 [11].…
Martincic v The State of Western Australia
[2019] WASCA 134 Para 5

…if correct, would legally entitle the person to do to the property that which he or she did.[84] [84] Martincic v The State of Western Australia [2019] WASCA 134 [52] ‑ [54] (citations omitted).…
Hunt v Russell
[2019] WASC 284 Para 2

…evidence. [28] CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 [119]; see also Hunt v Russell [2019] WASC 284 [11] (Smith J).…
Morgan v Cramer
[2019] WASC 68 Para 3

…to the decision to acquit. Secondly, if this court is satisfied on a review of the evidence that an acquittal was inevitable. [105] Morgan v Cramer [2019] WASC 68 [45] - [46], [49]. [106] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] ‑ [242]. [107] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; A…
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support
[2017] WASC 126 Para 2

…in overturning a finding of guilt based on new evidence. [28] CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 [119]; see also Hunt v Russell [2019] WASC 284 [11] (Smith J).…
WS v Gardin
[2015] WASC 97 Para 3

…s satisfied on a review of the evidence that an acquittal was inevitable. [105] Morgan v Cramer [2019] WASC 68 [45] - [46], [49]. [106] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] ‑ [242]. [107] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (20…
Strahan v Brennan
[2014] WASC 190 Para 4

…eenly attuned to the identification of error'[93] and that error should not be readily inferred from infelicity of language. [93] Strahan v Brennan [2014] WASC 190 [89] - [90].…
Lance v Weston
[2014] WASCA 62

…3) 178 CLR 193 Evans v WA Police [2024] WASC 24 Holmes v The State of Western Australia [2023] WASCA 26 Hunt v Russell [2019] WASC 284 Lance v Weston [2014] WASCA 62 LBC v The State of Western Australia [2011] WASCA 201 M v The Queen (1994) 181 CLR 487 Martincic v The State of Western Australia [2019] WASCA 134 Mi…
LBC v The State of Western Australia
[2011] WASCA 201 Para 1

…as such, the issue is whether a miscarriage of justice was occasioned by the admission of the evidence.[34] [34] LBC v The State of Western Australia [2011] WASCA 201 [10].…
Wilson v McDonald
[2009] WASCA 39 Para 8

…erly taken into account, and its significance may depend entirely upon the facts and circumstances of the particular case.[97] [96] Wilson v McDonald [2009] WASCA 39; (2009) 253 ALR 560 [53]. [97] Wilson [62].…
AK v Western Australia
[2008] HCA 8 Para 3

…15] WASC 97; (2015) 48 WAR 494 [219] ‑ [242]. [107] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.…
Police v Slobodian
[2008] SASC 69 Para 2

…ight in that he honestly believed he was entitled to re‑enter the premises to collect documents belonging to his partner. [79] Police v Slobodian [2008] SASC 69.…
Carr v Western Australia
[2007] HCA 47 Para 6

…ent of admissibility that a suspect consent before their statements made in an interview are recorded.[39] [39] Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 [63] ‑ [73].…
Michael v The State of Western Australia
[2007] WASCA 100 Para 10

…judiced mind to the resolution of the question they are required to decide.[32] [32] Evans v WA Police [73]; Michael v The State of Western Australia [2007] WASCA 100 [56]; Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [24].…
Weiss v The Queen
[2005] HCA 81 Para 3

…105] Morgan v Cramer [2019] WASC 68 [45] - [46], [49]. [106] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] ‑ [242]. [107] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.…
Samuels v The State of Western Australia
[2005] WASCA 193 Para 2

…is granted on at least one ground, the appeal is taken to have been dismissed.[25] [23] CA Act s 9(2). [24] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. [25] CA Act s 9(3).…
Molina v Zaknich
[2001] WASCA 337 Para 3

…itute an answer to the offence charged.[80] [80] Police v Slobodian [35]; Walden v Hensler (1987) 163 CLR 561 (Deane J) 580 ‑ 581; Molina z Zaknich [2001] WASCA 337; (2001) 24 WAR 562 [87].…
M v the Queen
[1994] HCA 63 Para 2

…rinciples governing an appeal on the ground that the verdict is unreasonable and unsupported by the evidence are well settled.[94] [94] M v The Queen (1994) 181 CLR 487; NYL v The State of Western Australia [2022] WASCA 41.…
Edwards v The Queen
[1993] HCA 63 Para 8

…n this part of her reasons, the learned magistrate used the evidence of the appellant's lie to police as an Edwards lie.[65] [65] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.…
Walden v Hensler
[1987] HCA 54 Para 3

…ip with property, which even if it existed, would not constitute an answer to the offence charged.[80] [80] Police v Slobodian [35]; Walden v Hensler (1987) 163 CLR 561 (Deane J) 580 ‑ 581; Molina z Zaknich [2001] WASCA 337; (2001) 24 WAR 562 [87].…
Barker v The Queen
[1983] HCA 18

…AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 Edwards v The Q…

Legislation cited in this decision · 5

Summary Offences Act 1953 (SA)
70A 2 mentions (from Para 3)
Surveillance Devices Act 1998 (WA)
3 2 mentions (from Para 1)
Criminal Appeals Act 2004 (WA)
1 mention (from Para 1)
Criminal Procedure Act 2004 (WA)
1 mention (from Para 2)
Dividing Fences Act 1961 (WA)
1 mention (from Para 1)