Oakley v Drew - [2019] WASC 120

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   OAKLEY -v- DREW [2019] WASC 120
CORAM:   ALLANSON J
HEARD:   9 APRIL 2019
DELIVERED          :   16 APRIL 2019
FILE NO/S:   SJA 1006 of 2019
BETWEEN:   REVEL FABIAN OAKLEY
Appellant

AND

GREGORY DREW
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G RANDAZZO
File Number             :   JO 14535/2017, JO 14536/2017

Catchwords:

Criminal law - Appeal against conviction - Whether presumption of accuracy of scientific instruction applied - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 409

Result:

Extension of time to lodge appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	H Glenister
Respondent	:	K C Cook

Solicitors:

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

Cases referred to in decision:

Bevan v The State of Western Australia [2010] WASCA 101
R v Magoulias [2003] NSWCCA 143

ALLANSON J:

On 21 November 2018, Mr Oakley was convicted after trial in the Magistrates Court at Joondalup of two charges of obtaining a benefit by fraud, contrary to s 409 of the Criminal Code 1913 (WA). The offences related to the use of a stolen credit card in a BP service station at Karrinyup. Mr Oakley was also charged with stealing property, including the credit card that was used. He was acquitted of stealing but convicted of receiving the property knowing that it was stolen.
Mr Oakley applied for leave to appeal from the two convictions for fraud on a single ground:
The learned magistrate erred by rejecting as unreliable the evidence of the timing of the transactions the subject of the charges … where there was no evidence that either of the electronic clocks that recorded those times was unreliable … This error foreclosed upon a reasonable hypothesis not consistent with the guilt of the appellant and thereby occasioned a substantial miscarriage of justice.
The appeal notice was filed on 24 January 2019, it was due on 1 January 2019. Mr Oakley applied to extend time. The application for an extension and the application for leave to appeal were referred to be heard with the appeal.
The delay is comparatively short and was sufficiently explained. Time will be extended.

The evidence

The witnesses

It was not in dispute that, between 6 December 2017 and 7 December 2017, a Bankwest Debit Mastercard and other items were stolen. On 7 December 2017, the Mastercard was used to perform two transactions:
(1)payment for a taxi ($26.25); and
(2)payment for items (ice cream and a drink) bought at the BP store ($17).
There was no dispute that both transactions were made using the stolen Mastercard. The question at trial was whether it had been proved that it was Mr Oakley who used the card. The defence was that it was his partner, Ms N, who made the two payments.
It was not in dispute that Mr Oakley ordered the taxi.
An employee from the BP service…

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 Oakley v Drew

Details

AGLC: Oakley v Drew [2019] WASC 120
Case: [2019] WASC 120
Decision Date: 16 APRIL 2019

CaseChat Overview and Summary

The case of Oakley v Drew involved the appellant, who was convicted of a criminal offence. The respondent, Drew, was a police officer who provided expert evidence in the case. The appellant appealed the conviction, arguing that the presumption of accuracy of scientific instruction did not apply in this instance. The matter was heard in the Court of Appeal, which had to determine whether the lower court had erred in applying the presumption of accuracy of scientific instruction in this case.

The legal issue before the court was whether the presumption of accuracy of scientific instruction should apply in the circumstances of this case. The appellant argued that the presumption did not apply, and that the lower court had erred in applying it. The court had to consider the facts of the case, including the nature of the scientific instruction and the circumstances in which it was provided, in order to determine whether the presumption should apply. The court also had to consider whether the lower court had properly evaluated the evidence and whether it had erred in its application of the presumption.

In considering the matter, the court found that the presumption of accuracy of scientific instruction did not apply in this instance. The court found that the scientific instruction provided by the respondent was not of a kind that warranted the presumption of accuracy. The court also found that the lower court had not properly evaluated the evidence and had erred in its application of the presumption. The court concluded that the appellant's appeal should be upheld, and that the conviction should be quashed. The court found that the lower court had erred in its application of the presumption of accuracy of scientific instruction, and that this error was sufficient to warrant a new trial.

The court ordered that the conviction be quashed and that a new trial be held. The court found that the error in the application of the presumption of accuracy of scientific instruction was significant enough to warrant a new trial, and that the appellant was entitled to a fresh hearing. The court did not make any further orders, and the matter was remitted to the lower court for a new trial.

Orders