RV (A Child) v Charlesworth - [2022] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RV (A CHILD) -v- CHARLESWORTH [2022] WASC 238
CORAM:   CURTHOYS J
HEARD:   27 MAY 2021
DELIVERED          :   26 JULY 2022
FILE NO/S:   SJA 1002 of 2021
BETWEEN:   RV (A CHILD)
Appellant
AND
MICHAEL STUART CHARLESWORTH
Respondent

ON APPEAL FROM:
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S DEWSBURY
File Number            :   JO 188 of 2020, JO 189 of 2020, PE 4220 of 2020

Catchwords:

Criminal law ‑ Appeal against conviction ‑ Indecent assault ‑ Whether magistrate erred in fact in finding appellant guilty ‑ Whether verdict unreasonable or unsupported by evidence - Credibility of witnesses - Inconsistencies in evidence - Finding that inconsistencies attributable to alcohol consumption

Legislation:

Criminal Code (WA), s 323

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A E Eyers
Respondent	:	G Beggs

Solicitors:

Appellant	:	Equus Chambers
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

B v Coan [2021] WASC 127
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dayananda v The State of Western Australia [2021] WASCA 11
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Jago v The State of Western Australia [2022] WASCA 2
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
MEN v The State of Western Australia [2020] WASCA 118
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27

CURTHOYS J:

Introduction

On 14 February 2020, the appellant, RV, attended a surprise 18th birthday party in Mindarie. During the course of the party, the appellant is alleged to have had a number of physical interactions with two teenage girls, ALM and EHS (the complainants). The appellant was aged 17 at the time. The appellant was subsequently convicted after trial in the Children's Court of three charges of unlawful and indecent assault against the complainants, contrary to s 323 of the Criminal Code (WA). The appellant now seeks leave to appeal against the conviction.
The appellant applies for an extension of time in which to appeal.[1] The respondent did not oppose the application. I am satisfied that it is in the interests of justice that the extension of time in which to appeal be granted.
[1] Application for extension of time dated 13 January 2021.
The appellant appeals against his conviction on two grounds. First, that the learned magistrate erred in fact when finding the appellant guilty of all charges when the verdicts of guilty were unreasonable or unsupported…

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.

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Details

Case: [2022] WASC 238
Decision Date

CaseChat Overview and Summary

RV (A Child) appeals against a conviction in the Children's Court of Western Australia for three charges of unlawful and indecent assault. The appeal is against the magistrate's finding that RV was guilty of all charges and the decision to convict him. The appeal is heard by Curthoys J in the Supreme Court of Western Australia. The appeal is on two grounds: first, that the verdicts of guilty were unreasonable or unsupported having regard to all the evidence; second, that the magistrate erred in fact when attributing inconsistencies between the complainants' evidence as to the existence of key events during which the offending conduct was said to have occurred, to their alcohol consumption, making them honest but genuinely mistaken witnesses. Curthoys J considers the appeal on its merits and finds that leave to appeal is refused and the appeal is dismissed. Curthoys J finds that the magistrate's assessment of the credibility of the witnesses was of critical importance and the evidence of the complainants was assessed by the magistrate to be credible and reliable. The evidence of the complainants was assessed by the magistrate to be credible and reliable and the appellant's submissions do not begin to approach the standard required to set aside the verdict. The evidence does not establish that the magistrate must have entertained a reasonable doubt about the accused's guilt. Upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.

Orders