O'Connor v Parker - [2019] WASC 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   O'CONNOR -v- PARKER [2019] WASC 195
CORAM:   DERRICK J
HEARD:   21 MAY 2019
DELIVERED          :   12 JUNE 2019
FILE NO/S:   SJA 1138 of 2018
BETWEEN:   NICHOLAS PETER O'CONNOR
Appellant
AND
ALAN PARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S M WILSON
File Number             :   PE 69852 OF 2017

Catchwords:

Criminal law - Appeal against conviction - Fresh evidence - Evidence of inconsistent out of court statements by a prosecution witness - Prosecution witness not called at appeal hearing - Whether fresh evidence relevant only to credibility can establish a miscarriage of justice - Whether reasonable trier of fact could accept the fresh evidence as relevant, credible and cogent - Whether fresh evidence capable of materially affecting an assessment of the credibility of the prosecution witness's evidence - Whether on the whole of the evidence there is a significant possibility that the trier of fact acting reasonably would have acquitted the appellant

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Evidence Act 1906 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Application for leave to adduce further evidence allowed
Application for leave to appeal allowed
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr T E Pontre

Solicitors:

Appellant	:	Legal Pathways Pty Ltd
Respondent	:	State Solicitor for Western Australia

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

ARK v The State of Western Australia [2014] WASCA 45
Coffman v The Queen [2010] WASCA 54
Muller v The State of Western Australia [2014] WASCA 81
O'Meara v The State of Western Australia [2013] WASCA 228; (2013) 235 A Crim R 209
Pihema v The State of Western Australia [2017] WASC 282
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Rodi v The State of Western Australia [2018] HCA 44
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

DERRICK J:

Introduction

On 14 November 2017 the appellant was charged in the Magistrates Court under s 313(1)(a) of the Criminal Code (WA) (Code) with one offence of aggravated unlawful assault, the alleged circumstance of aggravation being that he was in a family and domestic relationship with the alleged victim.
On 10 January 2018 the appellant entered a plea of not guilty to the charge.
On 8 October 2018 and 16 October 2018 the appellant's trial on the charge took place before his Honour Magistrate Wilson. At the end of the trial the magistrate reserved his decision.
On 5 November 2018 the magistrate found the appellant guilty of the charge and entered a judgment of conviction. His Honour published written reasons for his decision dated 5 November 2018 (the Reasons).
The appellant now applies for leave to appeal against his conviction.[1]
[1] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
On 18 March 2019 Acting Justice Strk…

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 O'Connor v Parker

Details

AGLC: O'Connor v Parker [2019] WASC 195
Case: [2019] WASC 195
Decision Date: 12 JUNE 2019

CaseChat Overview and Summary

In the case of O'Connor v Parker, the appellant appealed against his conviction for assault occasioning actual bodily harm. The appeal was heard in the Supreme Court of Western Australia. The crux of the appeal was whether fresh evidence, specifically recordings of conversations between Carla O'Connor and her mother, Kerry Ann O'Connor, could establish a miscarriage of justice. These recordings contained statements by Carla that were inconsistent with her and the complainant's trial testimonies.

The legal issues before the court were whether the fresh evidence, which pertained only to the credibility of a prosecution witness, could demonstrate a miscarriage of justice. The court had to determine if a reasonable trier of fact could accept the fresh evidence as relevant, credible, and cogent. Furthermore, it needed to be established whether this evidence could materially affect the assessment of Carla's credibility and whether, considering all evidence, there was a significant possibility that the trier of fact would have acquitted the appellant.

The court found that the fresh evidence, while relevant to credibility, did not establish a miscarriage of justice. The recordings did not provide a cogent or credible account that could materially affect the assessment of Carla's credibility. The court concluded that on the whole of the evidence, there was no significant possibility that a reasonable trier of fact would have acquitted the appellant. Therefore, the appeal was dismissed, and the conviction was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant's single ground of appeal is expressed in the following terms:1.Evidence obtained since the trial, particulars of which appear below, is capable of raising a reasonable doubt as to whether the appellant is guilty such that a miscarriage of justice has occurred;Particulars of fresh evidence1.1The affidavit of Mrs Kerry Ann O'Connor dated 28 February 2019 filed in relation to this appeal attaches a USB stick that contains certain recordings made by the prosecution witness Carla O'Connor ('Carla') subsequent to the trial, which affidavit and recordings reveal:(i)The complainant lied to Carla about events concerning the incident that occurred on 12 October 2017 ('the incident') [10];(ii)The appellant merely took hold of the complainant's wrist [12] and [26];(iii)The appellant did not throw the complainant against the wall during the incident [14] and [27];(iv)Carla was coached as to what her evidence about the incident should be [24]; (v)The complainant hit the appellant at the relevant time [26]. The numbers in square brackets contained in the particulars of the ground of appeal are references to the affidavit sworn by Mrs Kerry Ann O'Connor (Kerry) referred to in the first paragraph of the particulars and to which I refer further below.[55][55] I will from this point on use Mrs Kerry Ann O'Connor's first name so as to easily distinguish her from Ms Isabelle O'Connor who I will continue to refer to as Ms O'Connor. No disrespect is intended by my use of Mrs Kerry Ann O'Connor's first name. At the commencement of the hearing of the appeal the appellant made his application to adduce additional evidence on the appeal. The application to adduce the additional evidence was made pursuant to s 40(1)(d) of the CAA. The application was supported by the affidavit sworn by Kerry dated 28 February 2019. Kerry is the mother of the appellant and the grandmother of Carla. The additional evidence that the appellant sought leave to adduce was, in essence, evidence to be given by Kerry of three conversations that she had with Carla in relation to the offence of which the appellant was convicted. The conversations were, at least in part, recorded by Kerry on her mobile phone and then transferred onto the USB stick referred to in the ground of appeal and annexed to Kerry's affidavit.[56] The three conversations occurred on 15 December 2018. The detail of the conversations is referred to further below. However, in essence during the conversations Carla made statements that are on the face of it inconsistent with aspects of the evidence given by both her and Ms O'Connor at trial to the effect that the appellant threw Ms O'Connor into the wall near the door of the house.[56] The particulars of the ground of appeal are inaccurately expressed in that the USB stick referred to therein does not contain recordings made by Carla but rather recordings made by Kerry of statements made by Carla. The application was consented to by the respondent on the basis that the additional evidence was 'fresh evidence' as opposed to 'new evidence', and was relevant to evaluating whether a miscarriage of justice has occurred.[57][57] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] ‑ [101]. In consenting to the application the respondent in his written submissions and for purposes of completeness, quite properly raised the issue of the lawfulness of the recordings of the conversations obtained by Kerry in light of the provisions of the Surveillance Devices Act 1998 (WA). However, the respondent submitted, correctly in my view, that the recordings of the conversations were not obtained by Kerry in contravention of s 6(1)(b) and s 6(3)(a) of the Surveillance Devices Act because Kerry, who was a person who had the care of Carla, had reasonable grounds for believing that the recordings were in the public interest: Surveillance Devices Act, s 6(2)(d), s 24, s 26(3)(b); Pihema v The State of Western Australia [2017] WASC 282 [25] ‑ [29].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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