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Rawle v Collins

Rawle v Collins

Case [2022] WASC 452 13 December 2022

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RAWLE -v- COLLINS [2022] WASC 452
CORAM:   FORRESTER J
HEARD:   13 DECEMBER 2022
DELIVERED          :   13 DECEMBER 2022
PUBLISHED           :   19 DECEMBER 2022
FILE NO/S:   SJA 1068 of 2022
BETWEEN:   ANDREW CHRISTIAN RAWLE
Appellant
AND
JARRAD COLLINS
Respondent

ON APPEAL FROM:
For File No:   SJA 1068 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G MACLEAN
File Number            :   PE 2751 OF 2021

Catchwords:

Criminal Law - Single judge appeal - Breach of family violence restraining order - Appeal against failure to make a spent conviction order - Turns on own facts

Legislation:

Crimes Act 1914 (Cth)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Application for extension of time is granted
Leave to appeal refused on grounds 1 and 2
Leave to appeal is granted on ground 3

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K A Gorski
Respondent	:	Z R Clifford

Solicitors:

Appellant	:	Legal Aid
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Brewer v Bayens (2002) 26 WAR 510
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Gardner v Caporn [2005] WASCA 153
GNR v The State of Western Australia [2015] WASCA 5
Hussaini v Szolnoski [2013] WASC 64
JAD v McRae [2022] WASC 220
Lancaster v The Queen [1989] WAR 83
LAW v The State of Western Australia [2009] WASCA 193
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v Seidner [2013] WASC 395
Pickett v The State of Western Australia [2004] WASCA 291
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Tognini (2000) 22 WAR 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vagh v The State of Western Australia [2007] WASCA 17
Wimbridge v The State of Western Australia [2009] WASCA 196

FORRESTER J:

(This judgment was delivered extemporaneously on 13 December 2022 and has been edited from the transcript).

Introduction

The appellant was charged that on 15 January 2021 at South Hedland he breached a Family Violence Restraining Order (FVRO).
On 16 May 2022, the appellant pleaded guilty to the charge before a magistrate and, given he had spent 22 days in custody, was fined $100. An application for a spent conviction order was refused.
By a notice dated 2 September 2022, the appellant appealed against the decision not to make the spent conviction order. He seeks leave to adduce evidence on the appeal additional to that which was before the magistrate.
The appellant's application assumes a greater degree of background knowledge on the part of the court than it actually has. It appears that the appellant was charged with indictable offences arising out of the same incident, for which he faced trial in the District Court but was acquitted, prior to his sentencing. Limited information has been provided…

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 Rawle v Collins

Details

AGLC: Rawle v Collins [2022] WASC 452
Case: [2022] WASC 452
Decision Date

CaseChat Overview and Summary

The appeal in Rawle v Collins was heard by Justice Forrester of the Supreme Court of Western Australia. The appellant, Andrew Christian Rawle, challenged the decision of a magistrate not to make a spent conviction order in relation to a conviction for breaching a Family Violence Restraining Order (FVRO). The primary legal issues concerned whether the magistrate erred in law by considering disputed facts, whether the magistrate applied the appropriate test for making a spent conviction order, and whether the refusal to make such an order constituted a miscarriage of justice. The appeal court held that leave to appeal should be granted on one of the grounds, but the appeal was ultimately dismissed.

The court first considered the application for an extension of time to lodge the appeal. The appellant attributed the delay to difficulties in obtaining legal advice. The court found the delay was not unduly lengthy and granted the extension, noting that the respondent did not oppose the extension unless it would result in a miscarriage of justice.

Next, the court addressed the appellant's request to adduce additional evidence on appeal. This evidence related to the appellant's current employment, his plans to establish a charity, and the potential impact of the conviction on these activities. The court found this evidence relevant and allowed it to be considered.

The court then examined the grounds of appeal. The first ground argued that the magistrate erred by considering disputed facts. The court held that the magistrate was not obliged to accept the appellant's submissions without further evidence and that the appellant did not seek a trial of the issues. Therefore, the magistrate was entitled to proceed based on the evidence before them.

The second ground argued that the magistrate failed to apply the correct legal test for making a spent conviction order. The court found that while the magistrate did not explicitly state the legal test, it was implicit in their reasoning. The court concluded that any error did not materially impact the magistrate's decision, and thus, no miscarriage of justice occurred.

Finally, the court assessed whether the refusal to make a spent conviction order constituted a miscarriage of justice. The court found that the appellant had not demonstrated that the failure to make such an order was unjust. The circumstances of the offence were serious, and the public interest in maintaining general deterrence and allowing employers to assess the appellant's suitability for certain roles outweighed the appellant's personal circumstances.

In conclusion, the court granted the extension of time and allowed additional evidence. The appeal was refused on the first two grounds but allowed on the third. Ultimately, the appeal was dismissed.

Orders