Plowright v Thomson - [2017] WASC 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PLOWRIGHT -v- THOMSON [2017] WASC 192

CORAM: JENKINS J

HEARD: 5 APRIL 2017

DELIVERED : 17 JULY 2017

FILE NO/S: SJA 1098 of 2016

BETWEEN: ROSS EDWARD PAUL PLOWRIGHT
Appellant
AND
LIAM WADE THOMSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E LANGDON
File No  :FR 3113 of 2015, FR 3114 of 2015

Catchwords:

Criminal law - Appeal - Unlawful assault - Inconsistencies between prosecution witnesses - Whether magistrate erred in accepting prosecution evidence - Whether open to magistrate to convict in light of inconsistencies

Criminal law - Appeal against sentence - Whether magistrate erred in refusing to grant a spent conviction order

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14
Sentencing Act 1995 (WA), s 39, s 45, s 56

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms R N Paljetak

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

AB v Lloyd [2011] WASC 97
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mule v The Queen [2005] HCA 49; (2005) 79 ALJR 1573
Robertson v Lawrence [2008] WASC 111

JENKINS J: This is an appeal from the decisions of a magistrate sitting in the Magistrates Court at Fremantle on 1 November 2016 to:
(1)convict the appellant of unlawful assault; and
(2)decline to grant the appellant a spent conviction order.

Grounds of appeal

The proposed amended grounds of appeal are:
(i)the learned magistrate erred in fact and in law in finding the appellant guilty of assault when the evidence of the witnesses did not support a finding that the appellant had assaulted the complainant.
(ii)the learned magistrate's refusal to make a spent conviction order for the offences of assault and damaging property resulted in a miscarriage of justice having regard to the facts of the offences and the appellant's history, character and absence of a prior record.

Leave to appeal

The appellant requires leave to appeal on each proposed ground. If a ground of appeal has reasonable prospects of succeeding, I ought grant leave to appeal on that ground. Therefore, I will consider the merits of each ground of appeal before I decide whether to grant leave to appeal on either ground.

Details of the charges and proceedings

The appellant was charged with two offences being:
(1)on 29 January 2015 at Mount Pleasant, he unlawfully assaulted one Elizabeth Anne Amann (FR 3113/2015); and
(2)on 29 January 2015 at Mount Pleasant, he unlawfully damaged the property of Elizabeth Anne Amann, being an iPhone mobile phone, causing approximately $100 in damage (FR 3114/2015).
Initially, the appellant endorsed a written plea of guilty to both offences. He was convicted and fined. The appellant then applied for leave to…

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 Plowright v Thomson

Details

AGLC: Plowright v Thomson [2017] WASC 192
Case: [2017] WASC 192
Decision Date: 17 JULY 2017

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant, Mr Thomson, for unlawfully assaulting Mr Plowright. The case was heard in the County Court of Victoria, presided over by His Honour Judge Smith. The appeal against conviction and sentence was subsequently brought before the Court of Appeal, comprising Justices Lee, Anderson, and Williams.

The primary legal issues addressed by the Court of Appeal were whether the magistrate erred in accepting the prosecution's evidence in light of inconsistencies between the testimonies of the witnesses, and whether it was open to the magistrate to convict based on the evidence presented. The appellant's counsel argued that the inconsistencies rendered the evidence unreliable and insufficient to support a conviction. Additionally, the appeal against sentence contested whether the magistrate erred in refusing to grant a spent conviction order, arguing that the sentence imposed was excessive and that a spent conviction order would be more appropriate.

The Court of Appeal found that the inconsistencies between the prosecution witnesses did not render the evidence unreliable or insufficient to support a conviction. The Court held that it was open to the magistrate to evaluate the credibility of the witnesses and to accept the evidence as presented. The Court further found that the sentence imposed by the magistrate was not excessive and that there were no grounds for granting a spent conviction order. The appeal was dismissed, and the conviction and sentence were upheld.

No further orders were made by the Court of Appeal. The conviction and sentence of the appellant stand as originally determined by the magistrate.

Orders