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Parfenova v Diss

Parfenova v Diss

Case [2021] WASCA 50 24 March 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PARFENOVA -v- DISS [2021] WASCA 50
CORAM:   BUSS P
BEECH JA
VAUGHAN JA

HEARD:   5 FEBRUARY 2021
DELIVERED          :   24 MARCH 2021
FILE NO/S:   CACR 169 of 2019
BETWEEN:   IRYNA NIKOLAEVNA PARFENOVA
Appellant
AND
HAYDEN RAYMOND DISS
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HALL J
Citation: PARFENOVA -v- DISS [2019] WASC 363
File Number            :   SJA 1073 of 2019

Catchwords:

Criminal law - Appeal against conviction - Public nuisance offence - Common law duty to disclose evidentiary material - Failure by prosecution to disclose all evidentiary material - Application of the proviso under s 14(2) Criminal Appeals Act 2004 (WA) - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Public Transport Authority Regulations 2003 (WA) reg 13

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	E Jance
Respondent	:	A J Sefton SC & B D Nelson

Solicitors:

Appellant	:	Moana Chambers
Respondent	:	State Solicitor's Office

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

Bromley v Bembridge [2002] WASCA 192; (2002) 132 A Crim R 16.
Carew v Carone (1991) 5 WAR 1.
Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537.
Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517.
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62.
Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196.
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.
OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268.
Parfenova v Diss [2019] WASC 363.
Pramzo v Urquhart [2018] WASCA 10.
Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282.
SYO v The State of Western Australia [2020] WASCA 202.
Wark v The State of Western Australia [2020] WASCA 19.
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.
Wright v McMurchy [2012] WASCA 257.

JUDGMENT OF THE COURT:

Overview

On 27 May 2019, after trial in the Magistrates Court, the appellant was convicted of an offence of acting, on 3 August 2018, in a way as to cause a nuisance to persons on a conveyance contrary to reg 13 of the Public Transport Authority Regulations 2003 (WA). The appellant was fined $200 and ordered to pay costs. A subsequent application for leave to appeal against the conviction was dismissed by Hall J.[1] The appellant now seeks leave to appeal against the decision of the primary judge.
[1] Parfenova v Diss [2019] WASC 363 (primary reasons).
While, on their face, two of the four proposed grounds of appeal might be seen as renewing grounds advanced before the primary judge, the true gravamen of the application for leave to appeal is a new…

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 Parfenova v Diss

Details

AGLC: Parfenova v Diss [2021] WASCA 50
Case: [2021] WASCA 50
Decision Date

CaseChat Overview and Summary

In Parfenova v Diss, the appellant, Iryna Parfenova, appealed against her conviction by a magistrate of an offence of public nuisance on a train in Perth, Western Australia. The appeal against conviction was dismissed by Hall J. Parfenova sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia. The appeal was heard by Buss P, Beech JA, and Vaughan JA on 5 February 2021. The appeal was dismissed on 24 March 2021. The appeal was heard on five proposed grounds, but the court considered only the first and fifth. The appeal was dismissed because the proposed grounds did not have a reasonable prospect of succeeding. On the first ground, Parfenova alleged that there was a breach of a common law duty of disclosure by the non-disclosure of CCTV footage surrounding the incident. This was rejected because no allegation of miscarriage of justice was made in the intermediate appeal, which was required for this court to consider the issue. The court also rejected the argument that there was a substantial miscarriage of justice, as the evidence admitted at trial proved Parfenova's guilt beyond reasonable doubt. The fifth ground alleged that the primary judge erred in fact in finding that abuse on the platform immediately prior to the events did not excuse or provide a defence for Parfenova's conduct on the train. This was rejected because Parfenova did not identify any available defence that might have been open to her had there been abuse as alleged. The appeal was dismissed.

Orders