Peterson v Hawley - [2022] WASC 368

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PETERSON -v- HAWLEY [2022] WASC 368
CORAM:   FORRESTER J
HEARD:   27 SEPTEMBER 2022
DELIVERED          :   1 NOVEMBER 2022
FILE NO/S:   SJA 1041 of 2022
BETWEEN:   NATASHA JANE PETERSON
Appellant

AND

GEOFFREY NICHOLAS HAWLEY
Respondent

ON APPEAL FROM:
For File No:   SJA 1041 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HARRIES
File Number            :   PE 35748 of 2021

Catchwords:

Criminal law – Single judge appeal – Appeal against conviction – Whether appellant behaved in a disorderly manner – Meaning of 'offensive' - Whether the magistrate erred by applying the wrong test in the context of a political communication – Whether the appellant's conduct was 'offensive' - Whether any error resulted in a substantial miscarriage of justice – Whether conviction was unreasonable and unsupported by the evidence - Criminal Code s 74a

Legislation:

Criminal Appeals Act 2004 (WA)
The Criminal Code (WA)

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K A Heslop
Respondent	:	S J Cobbett

Solicitors:

Appellant	:	Kathryn Heslop
Respondent	:	State Solicitor's Office

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

Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
CRC v Taylor [2019] WASC 187
Gardner v Caporn [2005] WASCA 153
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175
Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986)
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92
Monis v The Queen; Droudis v The Queen [2011] NSWCCA 231
Morgan v Cramer [2019] WASC 68
Moylan v Lee [2022] WASC 195
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
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

FORRESTER J:

Introduction

On 27 August 2021, the appellant was charged with behaving in a disorderly manner in a public place, contrary to s 74A(2)(a) of the Criminal Code (charge PE 35748/2021).
The appellant stood trial before a magistrate on 31 March 2022. On 6 April 2022, she was convicted and fined the sum of $1,500.
The appellant has appealed against her conviction.

The trial

The prosecution particularised the allegation as relying on s 74A(1)(a) and (b), alleging that the appellant's language and conduct was insulting and offensive.[1] At one point it appears that the appellant's counsel understood the prosecution to have confined itself to an allegation that the language and conduct was offensive,[2] but ultimately addressed the magistrate on the meanings of both 'insulting' and 'offensive'.[3]
[1] Transcript, WA Police v Natasha Jane Peterson, Magistrates Court of Western Australia, 6 April 2022, 5 (Transcript of Proceedings 6 April 2022).
[2] Transcript, WA Police…

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 Peterson v Hawley

Details

AGLC: Peterson v Hawley [2022] WASC 368
Case: [2022] WASC 368
Decision Date

CaseChat Overview and Summary

Natasha Jane Peterson was convicted of behaving in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code by the Magistrates Court of Western Australia. Peterson appealed against her conviction. The appeal was heard by the Supreme Court of Western Australia. The court considered the legal issues in relation to the test to be applied to determine whether the conduct was disorderly, and whether the conviction was unreasonable and unsupported by the evidence. The court found that the magistrate applied the wrong test in the context of a political communication. However, despite this error, the court was satisfied that the evidence established Peterson's guilt beyond reasonable doubt. The appeal was dismissed.

Orders