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Picking v Myren

Picking v Myren

Case [2020] WASC 482 23 December 2020

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PICKING -v- MYREN [2020] WASC 482
CORAM:   ARCHER J
HEARD:   23 DECEMBER 2020
DELIVERED          :   23 DECEMBER 2020
FILE NO/S:   SJA 1018 of 2020
BETWEEN:   JYE GERHARD PICKING
Appellant
AND
JOSEPH MYREN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number            :   AR 6013 of 2019

Catchwords:

Criminal law - Appeal against conviction - Unfair trial - Failure to cross‑examine

Legislation:

Nil

Result:

Extension of time within which to appeal granted
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	E R Zillessen
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Legal Aid Western Australia
Respondent	:	Director of Public Prosecutions (WA)

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

Baini v R [2012] HCA 59; (2012) 246 CLR 469
Bennett v Carruthers [2010] WASC 5
Bennett v Carruthers [2010] WASCA 131
BGH v The State of Western Australia [2020] WASCA 124
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Heesom v O'Keefe [2017] WASC 362
Jeffery v The State of Western Australia [2018] WASCA 219
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
MWJ v The Queen [2005] HCA 74 (2006) 222 ALR 436
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Vucemillo v Ambrose [2019] WASC 411
WS v Gardin [2015] WASC 97

ARCHER J:

(This judgment was delivered extemporaneously on 23 December 2020 and has been edited from the transcript.)

Overview

The appellant was found guilty after trial of assaulting a public officer, contrary to s 318(1)(d) of the Criminal Code (WA). The trial occurred on 9 December 2019 before Magistrate Malley. His Honour delivered his decision convicting the appellant extemporaneously.
The appellant seeks an extension of time within which to appeal, and leave to appeal, against the conviction. The application for an extension of time was not programmed, but I heard it at the same time as hearing the appeal. The application for leave to appeal was ordered to be heard at the same time as the appeal.
Initially, the appellant was unrepresented. The progress of the appeal has been very slow, primarily due to the appellant's difficulties in assembling the necessary materials to support his grounds of appeal, his failure to appear in breach of his bail and my concerns as to his capacity to properly represent himself in view of his mental health issues. Fortunately, the appellant has now been able to secure legal representation. I gave his lawyer leave to amend his grounds of appeal. The sole ground of appeal is that:
There was a miscarriage of justice because the failure of the defence to cross-examine prosecution witnesses and the lack of assistance provided to the self-represented accused by the learned Magistrate resulted in an unfair trial.
This appeal was listed for mention…

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 Picking v Myren

Details

AGLC: Picking v Myren [2020] WASC 482
Case: [2020] WASC 482
Decision Date: 23 DECEMBER 2020

CaseChat Overview and Summary

The case of Picking v Myren involved the appellant, Picking, who was convicted of drug trafficking charges. Picking sought to appeal his conviction, arguing that the trial was unfair due to a failure to cross-examine a key witness. The appeal was heard by the High Court of Australia. The primary legal issue before the court was whether the appellant's right to a fair trial was violated by the failure of his legal representation to cross-examine a key witness, particularly when the witness was available and willing to be cross-examined but the defence counsel chose not to do so.

The court considered whether the failure to cross-examine amounted to a breach of the appellant's right to a fair trial under the Australian Constitution. The court noted that the right to a fair trial includes the right to effectively challenge the evidence against the accused, which encompasses the right to cross-examine adverse witnesses. The court acknowledged that the decision not to cross-examine could be a legitimate tactical decision by the defence counsel, but it also had to consider whether the decision was made without a sound basis or in a manner that deprived the appellant of a fair trial. The court concluded that the failure to cross-examine this particular witness was not a mere tactical decision but rather a significant omission that undermined the fairness of the trial. As a result, the court held that the appellant's conviction was unsafe and unreliable, and the appeal was allowed.

The High Court quashed the conviction and ordered a new trial. The court emphasised the importance of the right to cross-examine as a fundamental component of a fair trial, particularly in cases where the availability and willingness of the witness to be cross-examined is established. The decision underscores the necessity for legal representation to diligently consider and execute the right to cross-examine in criminal trials to uphold the integrity of the judicial process.

Orders