Pledge v Davey

Case [2000] WASCA 20

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PLEDGE -v- DAVEY [2000] WASCA 20

CORAM:   WHITE J

HEARD:   15 DECEMBER 1999

DELIVERED          :   15 FEBRUARY 2000

FILE NO/S:   SJA 1161 of 1998

BETWEEN:   ELSIE BLANCH PLEDGE

Appellant

AND

WAYNE ANTHONY DAVEY
Respondent

Catchwords:

Appeal against conviction and sentence - Appeal seeking to overturn the learned trial Magistrate's findings as to credibility of witnesses -  Remarks concerning sentencing - Turns on own facts

Legislation:

Dividing Fences Act

Justices Act 1902

Sentencing Act1995 s 46

Result:

Appeal against conviction dismissed
Appeal against sentence upheld

Representation:

Counsel:

Appellant:     Ms S P Richardson

Respondent:     Ms C L Bathurst

Solicitors:

Appellant:     Kuscevich & Associates

Respondent:     State Crown Solicitor

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

Agbaba v Witter (1977) 51 ALJR 503

Devries v Australian National Railways Commission (1993) 177 CLR 472

Mifsud v Campbell (1991) 21 NSWLR 725

R v Murphy (1985) 4 NSWLR 42

State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306

Vujcic v Moffitt, unreported; SCt of WA; Library No 970156; 11 April 1997

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167

Brooks v Sunlife Properties Pty Ltd, unreported; FCt SCt of WA; Library No 960709; 13 December 1996

Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49

Edmond v Taylor, unreported; FCt SCt of WA; Library No 980476; 6 August 1998

Jones v Hyde (1989) 63 ALJR 349

M v R (1994) 181 CLR 487

Marelic v Comcare (1993) 47 FCR 437

R v Murphy (1985) 4 NSWLR 42

  1. WHITE J: On 16 September 1998, the appellant was convicted following a trial in the Court of Petty Sessions at Perth of two counts of unlawful assault contrary to s 313 of the Criminal Code and was sentenced to pay a fine of $250 on each count and was ordered to pay costs amounting to an aggregate of $166.50. 

  2. There are three grounds of appeal, namely:

    "(a)The learned Magistrate determined the issues in question without reference to all of the evidence. 

    (b)The learned Magistrate erred in failing to allow counsel the opportunity to call on the subpoenas. 

    (c)The learned Magistrate's findings in relation to the applicant's credibility as particularised below, were contrary to the evidence and the weight of the evidence." 

  3. The learned Magistrate found that:

    "(1)The applicant's assertion that she was provoked was not true.

    (2)The applicant lied about whether the police had been called to the complainant's property previously.

    (3)The applicant abused the complainant's children.

    (4)The applicant lied when she said she was planting a garden.

    (5)The applicant lied when she said she did not hit either of the complainants.

    (6)The applicant was a troublemaker as regards the boundary fence between the properties."

  4. At the hearing of the appeal, the appellant's counsel abandoned the particulars under par (1) and par (6) to ground (c).

  5. The complainants were husband and wife, Brian William Dubois and Lesley Dubois, both of whom gave evidence as did the appellant. 

  6. I think that…

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Details
AGLC
Pledge v Davey [2000] WASCA 20
Case
[2000] WASCA 20
Decision Date

CaseChat Overview and Summary

In the case of Pledge v Davey, the appellant sought to appeal against a conviction and sentence rendered by a trial Magistrate, aiming to overturn the findings regarding the credibility of the witnesses and the sentencing remarks. The appeal was based on additional evidence, which was a four-page transcript of a doctor's testimony from a previous proceeding where the appellant's son had applied for a restraining order against Mrs Dubois. The doctor's testimony was about examining the appellant for a bruise and a lump on her breast, which she claimed resulted from Mrs Dubois pulling out a fence post. The appellant argued this evidence was crucial for establishing her credibility.

The legal issue before the court was whether the additional evidence tendered by the appellant was admissible under section 196(1)(b) of the Justices Act 1902, which allows for the admission of further evidence in an appeal. The Crown opposed the application, arguing the evidence could have been presented at the trial and was not relevant to the issues at hand, as the appellant did not claim self-defence or provocation stemming from the alleged breast strike. The appellant's counsel contended that the evidence was relevant to the credibility of her account.

The court considered the relevance of the proposed evidence in light of the appellant's case. It determined that the issue of whether the fence post had struck the appellant's breast was peripheral and not central to the appellant's case, which did not include a claim of self-defence or provocation. The court held that the evidence was not sufficiently relevant to the appeal and refused to admit it. The appeal against the conviction and sentence was thus not supported by the additional evidence, and the court's original findings remained intact.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant sought to tender, as further evidence, four pages of the transcript of evidence (AB 134 ‑ 137) given by a Dr Kontorinis on 27 February 1998, in the proceedings whereby Mr Dubois applied for a restraining order against the appellant's son. The tender was made in reliance upon the provisions of s 196(1)(b) of the Justices Act 1902 which provides:"196. Evidence (1)The Court shall determine the appeal - (a)…(b)on such further evidence either oral or byaffidavit as the Court thinks fit to receive." The application was directed to the doctor's evidence of his examination of the appellant who had complained that she had been hit in the chest when Mrs Dubois pulled out the fence post on which she had erected the mesh fence. The doctor said that there was a bruise in the lower inner aspect of her right breast and a lump which the doctor thought was consistent with the trauma of her being struck in the right breast. The lump was diagnosed as a haematoma. Dr Kontorinis was cross‑examined by Mrs Dubois and confirmed his earlier evidence. The application to admit the evidence was opposed by counsel for the Crown on the grounds that the evidence could have been tendered at the trial, but it was not, and also on the grounds of relevance. Counsel submitted that, as the appellant had not admitted slapping Mrs Dubois' face and had not suggested that she had done so under the provocation of the blow to her breast, the fact that she had been struck was not relevant to anything in issue at her trial. Counsel for the appellant submitted that the evidence was relevant, in fact critical, in relation to the credibility of the appellant. The evidence would certainly tend to support the appellant's evidence that Mrs Dubois pulled up a stake which struck the appellant's breast. Mrs Dubois was cross‑examined as follows in this connection (AB 71):" … I suggest to you you pulled them out quite strongly?‑‑‑No. I did not.And one of them actually came in contact with her and struck her on the right breast?‑‑‑No. It did not.As you took it out?‑‑‑No. It did not.How well do you remember this?‑‑‑Because I would remember if I had hit somebody, and I am not the type of person to do that.Well, accidentally, I'm talking?‑‑‑Not even accidentally. That - - it never came in contact. It was not stuck in the ground hard. It was lifted - - they were placed in the ground and I just lifted them, and leant the fence into that property." While there was a conflict between the appellant and Mrs Dubois in this regard, it was a peripheral issue and it is possible that if it occurred as the appellant said it did, Mrs Dubois may have genuinely believed that the appellant had not been struck. I do not think it sufficiently material to the credibility of the parties. In the situation, which prevails, that it was no part of the appellant's case that she acted in self‑defence or under provocation, I consider that the proposed fresh evidence is not sufficiently relevant to this appeal and the application to admit it is refused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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