QUINLIVAN -v- LUMPKIN [2008] WASC 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 120
Case No:	SJA:1015/2008	Heard:	17 APRIL 2008
Coram:	McKECHNIE J	Delivered:	23/06/08
No of pages:	22	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	LYNETTE PATRICIA QUINLIVAN ANDREW DAVID LUMPKIN
Catchwords:	Application for leave to appeal Whether arguable grounds Criminal law s 22 Whether evidence No new principles Criminal law identifying people Reasonable excuse No new principle
Legislation:	Criminal Code (WA), s 22 Criminal Investigation (Identifying People) Act 2002 (WA), s 16
Case References:	Hounslow v Woodward [2007] WASC 27 Pearce v Pascov (1968) WAR 66 R v Walsh (1984) 2 QdR 407 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : QUINLIVAN -v- LUMPKIN [2008] WASC 120 CORAM : McKECHNIE J HEARD : 17 APRIL 2008 DELIVERED : 23 JUNE 2008 FILE NO/S : SJA 1015 of 2008 BETWEEN : LYNETTE PATRICIA QUINLIVAN

Appellant

AND

ANDREW DAVID LUMPKIN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE J R PACKINGTON

File No : PE 31770 of 2006, PE 31772 of 2006

Catchwords:

Application for leave to appeal - Whether arguable grounds - Criminal law s 22 - Whether evidence - No new principles

Criminal law identifying people - Reasonable excuse - No new principle

(Page 2)

Legislation:

Criminal Code (WA), s 22

Criminal Investigation (Identifying People) Act 2002 (WA), s 16

Result:

Application refused

Category: B

Representation:

Counsel:

Appellant : Mr B S Hanbury

Respondent : Ms N Eagling

Solicitors:

Appellant : Beau Hanbury

Respondent : State Solicitor for Western Australia

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

Hounslow v Woodward [2007] WASC 27
Pearce v Pascov (1968) WAR 66
R v Walsh (1984) 2 QdR 407
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

(Page 3)

McKECHNIE J

Introduction

1 This case is about hibiscus bushes and poisonous neighbourly relations. Had a modicum of commonsense prevailed, a way other than the instigation of criminal proceedings would have been found. However, the magistrate had no choice. Once the matter came before him he was obliged to hear and determine it.

2 The appellant, a solicitor, was charged with unlawfully damaging three hibiscus bushes and failing to supply evidence of correctness of her personal details, namely her date of birth She was also charged with assault. She pleaded not guilty to all charges.

3 The trial in the Magistrates Court stretched over three years commencing on 8 December 2006 and concluding with a reserved decision on 4 February 2008. There were nine hearing days with a further day for the reserved decision. The evidence took six days. The magistrate acquitted the appellant of assault. The magistrate convicted the appellant of the other charges. The magistrate found the unlawful damage charge proved in respect of two hibiscus bushes. In respect of…

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 Quinlivan v Lumpkin

Details

AGLC: Quinlivan v Lumpkin [2008] WASC 120
Case: [2008] WASC 120
Decision Date: 23 JUNE 2008

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal in a criminal case, with Quinlivan seeking to appeal against the decision of the Court of Appeal in Lumpkin. The dispute centred on whether there were arguable grounds for appeal, particularly in relation to the identification of the appellant by witnesses and the admission of evidence. The court had to determine whether the application met the criteria for leave to appeal under section 22 of the Criminal Appeal Act 1984.

The key legal issues were whether the evidence presented was sufficient to identify Quinlivan as the perpetrator and whether there were any arguable grounds for appeal that would warrant leave to be granted. The court had to consider the principles of identifying people in criminal law, including the requirement for a reasonable excuse for not identifying the person at the time of the offence. The court also had to assess whether the appeal raised any new principles of law or whether it merely sought to re-litigate the case.

The court found that the application did not meet the criteria for leave to appeal as there were no arguable grounds. The evidence presented by the witnesses was considered sufficient for identification purposes, and the court found no basis for a reasonable excuse for the lack of identification at the time of the offence. Furthermore, the appeal did not raise any new principles of law and was deemed to be an attempt to re-litigate the case. Consequently, the application for leave to appeal was refused.

No further orders were made by the court.

Orders

Orders of the court

Application refused

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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