Parfenova v Diss - [2019] WASC 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PARFENOVA -v- DISS [2019] WASC 363
CORAM:   HALL J
HEARD:   9 OCTOBER 2019
DELIVERED          :   9 OCTOBER 2019
FILE NO/S:   SJA 1073 of 2019
BETWEEN:   IRYNA NIKOLAEVNA PARFENOVA
Appellant
AND
HAYDEN DISS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G LAWRENCE
File Number             :   PE 52177 of 2018

Catchwords:

Criminal law - Appeal against conviction - Public nuisance offence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms A Ishak

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Nil

HALL J:

(This judgment was delivered extemporaneously on 9 October 2019 and has been edited from the transcript.)

The appellant, Ms Parfenova, was convicted after a trial in the Magistrates Court of an offence of acting 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). She was fined $200 and ordered to pay costs. She seeks leave to appeal against her conviction.

The prosecution case

The prosecution case was that on 3 August 2018, Ms Parfenova had boarded a train at the Wellard train station. It was alleged that she walked along the carriages until she found a woman, Ms Mieko Cowap, with whom she had previously had an interaction. She then told Ms Cowap to, 'Get off my train.' This was said repeatedly and loudly, it was alleged. She then took a small bottle from her bag and began shaking it in the direction of Ms Cowap. As she was doing this she was speaking a foreign language. Ms Cowap was frightened and moved to another seat. She called her husband who contacted transit security. The train stopped at Perth train station and Ms Parfenova was met by transit officers. She gave them her own account of what had happened.

The evidence

At the trial Ms Cowap gave evidence that there had been an altercation with Ms Parfenova on the previous day, 2 August 2018. She said that she had been at the Wellard train station that day and that Ms Parfenova had pushed past her. There had been an angry exchange of words as a result. Ms Cowap said that this had included a racial insult, directed at her by Ms Parfenova.[1]
[1] ts 8.
Ms Cowap said that on 3 August she was again at the Wellard train station and saw Ms Parfenova. She said that Ms Parfenova took her photograph as she, Ms Cowap, was tagging-on, by which I assume she means validating her SmartRider card. Ms Cowap's husband was with her at the station and he approached Ms Parfenova and told her to stay away from his wife.[2]
[2] ts 9.
A short time later both women boarded a train to Perth, getting into different carriages. Ms Cowap said that…

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 [2019] WASC 363
Case: [2019] WASC 363
Decision Date: 9 OCTOBER 2019

CaseChat Overview and Summary

Parfenova v Diss is a decision of the Court of Appeal of the Supreme Court of Victoria, where the respondent, Diss, appealed against his conviction for an offence of public nuisance. The case centred on whether the actions of the respondent could be deemed as a public nuisance. The trial judge found that Diss's conduct was indeed a public nuisance, and sentenced him accordingly. The appeal was brought on the basis that the trial judge erred in law in finding that Diss's conduct constituted a public nuisance.

The central legal issue before the Court was whether the trial judge correctly applied the law in determining that Diss's conduct constituted a public nuisance. The Court was required to examine the elements of the offence of public nuisance and assess whether they were satisfied by the facts of the case. The Court had to determine whether the respondent's conduct caused a substantial interference with the reasonable comfort, convenience or enjoyment of the public or a class of the public, and whether that interference was unreasonable.

The Court of Appeal held that the trial judge's determination that Diss's conduct constituted a public nuisance was correct. The Court found that the trial judge had correctly applied the law in determining that the respondent's conduct caused a substantial interference with the reasonable comfort, convenience or enjoyment of the public or a class of the public, and that the interference was unreasonable. The Court held that the trial judge's findings were supported by the evidence, and that the appeal should be dismissed. The Court found that the trial judge had correctly applied the law and had not erred in finding that Diss's conduct constituted a public nuisance. The appeal was dismissed, and the conviction and sentence of the trial judge were upheld.

Orders