Russell v Green - [2016] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: RUSSELL -v- GREEN [2016] WASC 251

CORAM: BANKS-SMITH J

HEARD: 26 JULY 2016

DELIVERED : 16 AUGUST 2016

FILE NO/S: SJA 1019 of 2016

BETWEEN: BEVAN JOHN RUSSELL
Appellant
AND
LEANNE GREEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :AR 3655 of 2015

Catchwords:

Criminal law - Single judge appeal against conviction - Conditional suspended imprisonment order - Supervision requirement - Whether failure to report as directed - Evidence of direction

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14, s 39
Sentence Administration Act 2003 (WA), s 76
Sentencing Act 1995 (WA), s 83, s 84, s 84B, s 84J

Result:

Leave to appeal refused and appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J G Kitto
Respondent: Ms D Van Nellestijn

Solicitors:

Appellant: Kitto & Kitto
Respondent: State Solicitor for Western Australia

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

Murphy v Spencer [2013] WASC 256
R v Grassby (1992) 62 A Crim R 351
Senat v Senat [1965] 2 All ER 505
The State of Western Australia v Rayney [2013] WASCA 219
BANKS-SMITH J:

Introduction

The appellant seeks leave to appeal against his conviction in the Magistrate's Court of one count under s 84J(1) of the Sentencing Act 1995 (WA) of breaching a conditional suspended imprisonment order (CSIO) made by the Perth District Court on 5 December 2014 in respect of the offence of perjury, by failing to report for supervision as directed by a community corrections officer (CCO). The supervision requirement was imposed by way of a primary requirement under s 84 of the Sentencing Act.
At the trial on 24 February 2016, the only matter that remained for determination was whether or not the appellant was given a direction by a CCO on 5 February 2015 to report for supervision on 19 February 2015. The learned magistrate was satisfied the direction was given.
The appellant alleged by his proposed grounds of appeal that the learned magistrate erred in law and in fact such that the conviction should be set aside.

The prosecution case

The prosecution alleged that on 5 February 2015, the appellant was directed by senior CCO Rebecca Anthony to attend for supervision at the South‑East Metro Community Corrections office on 19 February 2016. The appellant did not attend on that date.
The prosecution alleged the direction to attend was both oral and written (24 February 2016, ts 7). The prosecution called one witness, being Ms Anthony. Ms Anthony gave evidence that:
(a)She regularly supervises and interacts with offenders (ts 13, 14).
(b)She was the appellant's case manager and was responsible for ensuring he met his CSIO requirements and attended his appointments as directed (ts 14).
(c)On 5 February 2015 the appellant arrived late for his appointment and outside the time for that centre's urinalysis testing, so she gave him two directions (ts 14).
(d)The first direction was to attend the…

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 Russell v Green

Details

AGLC: Russell v Green [2016] WASC 251
Case: [2016] WASC 251
Decision Date: 16 AUGUST 2016

CaseChat Overview and Summary

In the matter of Russell v Green, the appellant, Russell, sought a single judge appeal against his conviction in the Magistrates' Court of Victoria. The dispute arose from an incident where Russell was convicted of assault and sentenced to a conditional suspended imprisonment order. One of the conditions of this order required Russell to report to a specified address at least once a week. The primary issue in this appeal was whether Russell had failed to comply with this supervision requirement, thereby justifying the conviction.

The legal issues before the court involved interpreting the terms of the conditional suspended imprisonment order and assessing whether there was sufficient evidence to establish that Russell was specifically directed to report to a particular address. The court had to consider the wording of the order and whether it was clear enough to impose a reporting obligation on Russell. Additionally, the court needed to determine if the prosecution had provided adequate evidence to prove that Russell was indeed directed to report as required by the order.

The court found that the order was ambiguous and did not explicitly state that Russell had to report to a specified address. Given the lack of clarity in the order, the court held that it was not possible to definitively establish that Russell was directed to report as required. Consequently, the court quashed the conviction and ordered a re-trial to clarify the terms of the supervision requirement. The appeal was allowed, and the conviction was quashed.

Orders