PITT -v- CURCHIN [2004] WASCA 17

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 17
Case No:	SJA:1080/2003	Heard:	2 FEBRUARY 2004
Coram:	ROBERTS-SMITH J	Delivered:	2/02/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
PDF Version

Parties:	DEBRA LIANE PITT SHANNON LEE CURCHIN
Catchwords:	Criminal law Appeal Stealing Appellant replacing packaged sheets with more expensive ones Whether Magistrate erred in deciding "whose evidence more likely to be true" Whether appellant "able to give a believable explanation" Mistake of fact Onus and burden of proof
Legislation:	Nil
Case References:	Harling (1997) 94 A Crim R 437 Liberato v The Queen (1985) 195 CLR 507 Murray (2002) 131 A Crim R 215 Stack v The Queen [2002] WASCA 338 Woolmington v DPP [1935] AC 462 Dawson v The Queen (1961) 106 CLR 1 He Kaw Teh v The Queen (1985) 157 CLR 523 Proudman v Dayman (1941) 67 CLR 536 Thomas v The Queen (1960) 102 CLR 584

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PITT -v- CURCHIN [2004] WASCA 17 CORAM : ROBERTS-SMITH J HEARD : 2 FEBRUARY 2004 DELIVERED : 2 FEBRUARY 2004 FILE NO/S : SJA 1080 of 2003 BETWEEN : DEBRA LIANE PITT

Appellant

AND

SHANNON LEE CURCHIN

Respondent

Catchwords:

Criminal law - Appeal - Stealing - Appellant replacing packaged sheets with more expensive ones - Whether Magistrate erred in deciding "whose evidence more likely to be true" - Whether appellant "able to give a believable explanation" - Mistake of fact - Onus and burden of proof

Legislation:

Nil

Result:

Appeal allowed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr J R Noble

Respondent : Mr S F Rafferty

Solicitors:

Appellant : Jeremy Noble

Respondent : State Director of Public Prosecutions

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

Harling (1997) 94 A Crim R 437
Liberato v The Queen (1985) 195 CLR 507
Murray (2002) 131 A Crim R 215
Stack v The Queen [2002] WASCA 338
Woolmington v DPP [1935] AC 462

Case(s) also cited:

Dawson v The Queen (1961) 106 CLR 1
He Kaw Teh v The Queen (1985) 157 CLR 523
Proudman v Dayman (1941) 67 CLR 536
Thomas v The Queen (1960) 102 CLR 584

(Page 3)

1 ROBERTS-SMITH J: Following a hearing before her on 4 December 2002 her Worship Ms Richardson SM found the appellant guilty of one count that on 20 July 2002 at Morley she stole two Nile fitted sheet sets of a total value of $47.98 the property of Kmart Australia Pty Ltd trading as Kmart Morley contrary to s 378 of the Criminal Code. Her Worship fined the appellant $150 but awarded a spent conviction pursuant to s 45A of the Sentencing Act 1995 (WA).

2 On 28 July 2003 the appellant filed an application for leave to appeal and for extension of time. On 18 August 2003 Barker J ordered there be an extension of time and gave leave to appeal. The grounds…

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 Pitt v Curchin

Details

AGLC: Pitt v Curchin [2004] WASCA 17
Case: [2004] WASCA 17
Decision Date: 2 FEBRUARY 2004

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of Queensland in Pitt v Curchin. The appellant, Pitt, was found guilty of stealing by a Magistrate, a decision which Pitt sought to overturn on appeal. The underlying dispute revolves around an incident where Pitt replaced packaged sheets with more expensive ones and was subsequently charged with stealing. Pitt's primary contention was that the Magistrate erred by deciding whose evidence was more likely to be true, specifically whether Pitt could provide a believable explanation for his actions.

The legal issues central to this appeal included the determination of whether the Magistrate correctly assessed the believability of Pitt's explanation and whether the Magistrate properly allocated the onus and burden of proof regarding the mistake of fact. The court had to examine whether the Magistrate correctly assessed the credibility of the evidence and if the onus of proof was appropriately placed on Pitt to disprove the charge of stealing. Additionally, the court needed to consider whether the Magistrate correctly evaluated the defence of mistake of fact, a critical aspect of Pitt's appeal.

The Supreme Court found that the Magistrate did not properly evaluate the believability of Pitt's explanation and misapplied the onus and burden of proof. The court held that the Magistrate should have assessed whether Pitt's explanation was credible and whether the mistake of fact defence was adequately considered. The Supreme Court concluded that the Magistrate's decision was flawed due to these errors and allowed the appeal, thereby overturning the conviction. The court did not provide further orders beyond allowing the appeal, leaving it to the lower court to determine the appropriate next steps.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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