Pender v Griffiths - [2020] WASC 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PENDER -v- GRIFFITHS [2020] WASC 192
CORAM:   ACTING JUSTICE STRK
HEARD:   7 MARCH 2019
DELIVERED          :   3 JUNE 2020
FILE NO/S:   SJA 1099 of 2018
BETWEEN:   TODD QUINTON PENDER
Appellant
AND
ADAM GRIFFITHS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G LAWRENCE
File Number            :   AR 1549 OF 2017

Catchwords:

Criminal law - Appeal against conviction - Application of the Criminal Investigation Act 2006 (WA) s 16(1) - Use of force when exercising powers - Error of law in failing to consider whether the appellant was exercising any power under the Criminal Investigation Act 2006 (WA), other than the power of arrest - Whether there has been a miscarriage of justice - No substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Investigation Act 2006 (WA)

Result:

Leave to appeal granted on grounds 1 and 4, refused on grounds 2 and 3
Appeal dismissed on all grounds

Category: B

Representation:

Counsel:

Appellant	:	L B Black
Respondent	:	E C I Fearis

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	State Solicitor's Office

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

DeDomenico v Mallon [2010] WASC 285
Elwin v Robinson [2014] WASCA 46
Fradale v Zonic [2016] WASC 114
Harling v Hall (1997) 94 A Crim R 437
Poulson v Langthorn [2013] WASC 278
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
WS v Gardin [2015] WASC 97; 48 WAR 494

ACTING JUSTICE STRK:

Introduction

The appellant appeared in Perth Magistrates Court. The charge (AR 1549 of 2017) related to an incident which occurred on 28 June 2016 while the appellant, a police officer, was on duty. It was alleged that the appellant, in the context of the arrest of three young persons, had unlawfully assaulted the complainant in circumstances of aggravation, namely that a child was present.
The appellant entered a plea of not guilty. Following a trial, the appellant was convicted of the offence of aggravated common assault contrary to the Criminal Code1913 (WA) s 313. The learned Magistrate delivered his decision with written reasons on 4 July 2018.[1] The appellant was fined in the amount of $2,000 and ordered to pay costs in the amount of $7,073. A spent conviction order was granted.
[1] AR 1549/2017 (4 July 2018).
This is an appeal pressed by the appellant against conviction. For the reasons that follow, I find that the learned Magistrate erred in law in failing to consider whether the appellant was exercising any power under the Criminal Investigation Act 2006 (WA) at the time of the use of force, other than the power of arrest. However, I consider that no substantial miscarriage of justice has occurred, and it is appropriate that the appeal be dismissed.

The appeal

The Criminal Appeals Act 2004 (WA) s…

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 Pender v Griffiths

Details

AGLC: Pender v Griffiths [2020] WASC 192
Case: [2020] WASC 192
Decision Date: 3 JUNE 2020

CaseChat Overview and Summary

In the case of Pender v Griffiths, the appellant, Mr. Pender, sought to appeal against his conviction, contending that the trial judge erred by not considering whether he was exercising a power under the Criminal Investigation Act 2006 (WA), other than the power of arrest, when force was used. The appeal was heard by the Supreme Court of Western Australia, which had to determine whether this alleged error of law led to a miscarriage of justice. The primary legal issue revolved around the application of section 16(1) of the Criminal Investigation Act 2006 (WA) and whether the trial judge's omission to consider the specific power exercised by the appellant constituted an error of law that affected the outcome of the trial.

The Supreme Court examined the trial judge's reasoning and found that while there was an error in not considering the specific power exercised by the appellant, this error did not amount to a substantial miscarriage of justice. The court noted that the evidence presented at the trial was overwhelming, and the error did not influence the trial judge's decision in a manner that could have affected the outcome. The court held that the error did not undermine the fundamental fairness of the proceedings, and therefore, did not result in a miscarriage of justice warranting an appeal against conviction.

Given the court's findings, the appeal was dismissed. The Supreme Court concluded that the error in failing to consider the specific power exercised by the appellant did not meet the threshold of a substantial miscarriage of justice. Consequently, the conviction remained valid, and the appeal was not allowed. The court's decision underscores the importance of correctly identifying the specific powers exercised under the Criminal Investigation Act 2006 (WA) but also affirms that such errors do not automatically lead to a reversal of conviction if they do not substantially affect the trial's fairness and outcome.

Orders