Pigdon v Read

[2008] WASC 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PIGDON -v- READ [2008] WASC 218

CORAM:   EM HEENAN J

HEARD:   30 SEPTEMBER 2008

DELIVERED          :   30 SEPTEMBER 2008

FILE NO/S:   SJA 1041 of 2008

BETWEEN:   KERRY ANNE PIGDON

Appellant

AND

TAMARA MICHELE READ
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE E K LANGDON

File No  :AR 2373 of 2008

Catchwords:

Appeals - Assault - Substantial variation between facts found and facts alleged by prosecution - Lack of evidence to support charge as laid - Lack of procedural fairness - Splitting prosecution case - Appeal conceded

Legislation:

Criminal Code (WA)

Official Prosecutions (Accused's Costs) Act 1973 (WA)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr J G Kitto

Respondent:     Ms D E Quinlan

Solicitors:

Appellant:     Kitto & Kitto

Respondent:     State Solicitor for Western Australia

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

Hatt v Magro (2007) 34 WAR 256

Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100

R v Alexander and McKenzie [2002] 6 VR 53

R v Chin (1985) 157 CLR 671

Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365

Soma v The Queen [2003] HCA 13; (2003) 196 ALR 421

1. EM HEENAN J:  In the written submissions filed in advance on behalf of the respondent it was conceded (and, in my respectful opinion, properly conceded) that the factual basis for finding that the appellant had assaulted the respondent relied upon by the learned magistrate at trial was substantially different to, and inconsistent with, the facts alleged by the prosecution and did not support the charge as originally laid and presented.  By these submissions, counsel for the respondent also conceded that, to the extent that there was some evidence from a single witness to support the variation in the sequence of facts relied upon by the learned magistrate, this evidence was contradictory of other evidence given by that witness and that the totality of the evidence was not sufficient to support a conclusion that the assault, as found to have been committed, was proven beyond reasonable doubt. 

2. Accordingly, and by consent, I ordered that the appeal should be allowed; the conviction of the appellant should be set aside, and that the fine and costs paid by the appellant pursuant to the order of the learned magistrate should be refunded.  I also ordered that the respondent should have her costs of the original trial and of this appeal in agreed amounts pursuant to the provisions of the Official Prosecutions (Accused's Costs) Act 1973 (WA).

3. However, because this outcome and these orders have the effect of reversing the judgment of the learned magistrate, it is both  necessary and desirable that I outline the background of these proceedings, the findings of the Magistrates Court and the issues arising on the appeal.

Background of proceedings

1. The trial in the Magistrates Court was before her Honour on 14 and 15 May 2008.  It involved the present charge against the appellant, one…