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Robert Kennedy v Nguyen

Robert Kennedy v Nguyen

Case [2023] WASC 401 23 October 2023

Appeal

Jurisdiction

Limitation Periods

Admissibility of Evidence

Res Judicata

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROBERT KENNEDY -v- NGUYEN [2023] WASC 401
CORAM:   SEAWARD J
HEARD:   2 MAY 2023
DELIVERED          :   23 OCTOBER 2023
FILE NO/S:   SJA 1090 of 2022
BETWEEN:   ROBERT KENNEDY
Appellant
AND
VAN HUU NGUYEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE C ROBERTS
File Number            :   JO 12213 of 2020 ;JO 12214 of 2020; JO 12215 of 2020; JO 12216 of 2020

Catchwords:

Single judge appeal - Particulars of charge - Acquittal on the basis of absence of particulars - Whether the Magistrate erred in fact in finding the prosecutor had declined to provide particulars - Whether the Magistrate erred in law in failing to take into account proposed evidence and submissions in finding that the particulars provided were inadequate - Whether the Magistrate erred in law in acquitting the accused when that was not open under the Criminal Procedure Act 2004 (WA) - Whether the Magistrate erred in law in failing to take into account various relevant considerations when contemplating whether to permanently stay the proceedings

Section 14(2) of the Criminal Appeals Act 2004 (WA) - Whether there was a substantial miscarriage of justice - Application of the proviso where there is a real question whether the proceedings before the Magistrate amounted to such a serious departure from the essential requirements of the law - Where the Magistrate denied the prosecutor the opportunity to open and present their case

Application to admit further evidence - Where the distinction between fresh and new evidence is not relevant in circumstances where no trial took place and no evidence was tendered - Where the additional evidence is relevant to the questions raised on appeal

Legislation:

Criminal Appeals Act 2004 (WA) ss 14, 39, 40
Criminal Code Act Compilation Act 1913 (WA) s 8
Criminal Procedure Act 2004 (WA) cl 5, ss 3, 76, 131
Criminal Procedure Rules 2005 (WA) r 65
Local Government Act 1995 (WA) s 4.87

Result:

Leave to appeal allowed
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Ms J Shaw
Respondent	:	Mr G Yin

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	DG Price & Co

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Clarke v The State of Western Australia [2018] WASCA 14
Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98
Cotter v The State of Western Australia [2011] WASCA 202
Cowie v Perth Demolition Company Pty Ltd (No 2) [2020] WASC 136; (2020) 283 A Crim R 150
Delcaro v The State of Western Australia [2006] WASCA 182
King v City of Perth [2023] WASC 252
Passmore v R [2023] NSWCCA 65
Perrin v Jackson [2008] WASC 77
R v Kennedy (1997) 94 A Crim R 341
REF v Chief Executive Officer of the Department of Communities [2023] WASC 89
Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443
Samuels v…

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 Robert Kennedy v Nguyen

Details

AGLC: Robert Kennedy v Nguyen [2023] WASC 401
Case: [2023] WASC 401
Decision Date: 23 OCTOBER 2023

CaseChat Overview and Summary

The appeal arose from the Magistrates Court where Robert Kennedy was acquitted on charges due to the absence of particulars in the indictment. Kennedy appealed to the Supreme Court, arguing that the Magistrate had erred in concluding that the prosecutor had declined to provide particulars, in failing to consider proposed evidence and submissions, and in acquitting him when that was not permissible under the Criminal Procedure Act 2004 (WA). The appeal also questioned whether the Magistrate had erred in law by not considering various relevant factors when deciding to permanently stay the proceedings. The appeal hinged on the interpretation and application of section 14(2) of the Criminal Appeals Act 2004 (WA) and whether there was a substantial miscarriage of justice.

The legal issues before the court were whether the Magistrate's decision was factually and legally correct in acquitting Kennedy. This involved examining whether the Magistrate had properly assessed the particulars provided, if the proposed evidence and submissions should have been considered, and whether the Magistrate had the authority to acquit under the statute. Additionally, the court had to determine if the Magistrate's decision to permanently stay the proceedings was legally sound, taking into account all relevant considerations. The court was also required to consider whether the Magistrate's denial of the prosecutor's opportunity to open and present their case constituted a substantial miscarriage of justice.

The Supreme Court found that the Magistrate had indeed erred in law by not considering the proposed evidence and submissions, and by acquitting Kennedy when that was not permissible under the statute. The court held that the Magistrate should have taken into account various relevant considerations before deciding to permanently stay the proceedings. Furthermore, the court determined that the distinction between fresh and new evidence was not pertinent since no trial occurred and no evidence was presented. The appeal was allowed, and the matter was remitted to the Magistrates Court for further proceedings.

The court's final orders were that the appeal be allowed, the decision of the Magistrates Court be quashed, and the matter be remitted to the Magistrates Court for further proceedings. The court also directed that the prosecutor be given the opportunity to open and present their case, and that any additional evidence relevant to the appeal's questions be admitted.

Orders