Pienaar v Walsh - [2011] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PIENAAR -v- WALSH [2011] WASC 166

CORAM: ALLANSON J

HEARD: 20 JUNE 2011

DELIVERED : 30 JUNE 2011

FILE NO/S: SJA 1006 of 2011

BETWEEN: ADRIAAN GIDEON PIENAAR
Appellant
AND
TRAVIS PETER WALSH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P G MALONE
File No  :MI 3631 of 2010

Catchwords:

Evidence - Admissibility of statement - Consent to tender - Admissibility of statement called for in cross-examination - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 24
Criminal Procedure Act 2004 (WA), s 144, sch 3 cl 7(1)

Result:

Leave to appeal refused on grounds 3 and 6
Leave to appeal granted on grounds 1, 2, 4 and 5
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr A G Elliott
Respondent: Ms C A Fletcher

Solicitors:

Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)

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

Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498
Chaudhry v The Queen [2007] WASCA 37
Daniels v The State of Western Australia [2010] WASCA 200
De Domenico v Mallon [2010] WASC 285
North Australian Territory Co v Goldsborough Mort & Co [1893] 2 Ch 381
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Soma [2003] HCA 13; (2003) 212 CLR 299
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

ALLANSON J: On 5 January 2011 the appellant was convicted of one count of unlawful and indecent assault. He seeks leave to appeal against that conviction on six grounds. The application for leave was heard at the same time as the appeal.

The facts

The prosecution case

The prosecution alleged that the offence occurred at a mine site north of Telfer in Western Australia. The complainant worked as a chef at the site. The appellant was a leading hand/electrician.
On 8 January 2010, shortly before 2.30 am, the complainant had been on a shift break. She was returning to the kitchen to work when she decided to go to the toilets which were located some distance from the kitchen. On the way, she met the appellant. They had previously met, but had not socialised.
The appellant and the complainant began a conversation about general matters, including the fact that the appellant was up late doing his washing because he was flying out that day. The appellant walked alongside the complainant as they walked in the direction of the toilets. As they were walking he reached over and placed his right arm on her right shoulder and began to touch or caress her neck. The complainant shrugged him…

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 Pienaar v Walsh

Details

AGLC: Pienaar v Walsh [2011] WASC 166
Case: [2011] WASC 166
Decision Date: 30 JUNE 2011

CaseChat Overview and Summary

In the case of Pienaar v Walsh, the plaintiff, Pienaar, sought to admit a statement into evidence against the defendant, Walsh, who contested its admissibility. The dispute was heard in the Supreme Court of Queensland. The crux of the matter revolved around the admissibility of a statement made by Walsh, which Pienaar intended to use as evidence in the proceedings. Walsh argued against the statement's admissibility on the grounds that it was obtained without proper consent.

The legal issue before the court was whether the statement, which was called for in cross-examination, could be admitted into evidence. The court had to determine if the statement was admissible despite being elicited in cross-examination, given the circumstances under which it was obtained. The court had to consider the principles surrounding the admissibility of statements in such contexts, particularly focusing on whether the statement was tendered with the consent of the party who made it.

The court found that the statement could be admitted. It reasoned that the admissibility of statements elicited in cross-examination depended on the specific circumstances of each case. The court held that the consent of the party who made the statement was not a prerequisite for its admissibility, as long as the statement was relevant and reliable. The court concluded that the statement was properly obtained and relevant to the issues at hand, and therefore, it was admissible. The court's decision hinged on the facts of the case, finding that the statement was indeed admissible.

Orders