SHINKAWA -v- GANNAWAY [2015] WASC 75

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 75
Case No:	SJA:1055/2014	Heard:	20 JANUARY 2015
Coram:	CORBOY J	Delivered:	4/03/15
No of pages:	22	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	NOBUYA SHINKAWA CALUM FRANK GANNAWAY
Catchwords:	Criminal law Single judge appeal against conviction Whether finding that CCTV film had not been edited an error Whether magistrate erred by not adjourning Whether trial conducted in a way that was unfair to the appellant
Legislation:	Nil
Case References:	Eley v Town of Victoria Park [2014] WASC 103 Lassock v Seidner [2013] WASC 94 Myers v Myers [1969] WAR 19 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : SHINKAWA -v- GANNAWAY [2015] WASC 75 CORAM : CORBOY J HEARD : 20 JANUARY 2015 DELIVERED : 4 MARCH 2015 FILE NO/S : SJA 1055 of 2014 BETWEEN : NOBUYA SHINKAWA

Appellant

AND

CALUM FRANK GANNAWAY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E K LANGDON

File No : FR 5058 of 2013

Catchwords:

Criminal law - Single judge appeal against conviction - Whether finding that CCTV film had not been edited an error - Whether magistrate erred by not adjourning - Whether trial conducted in a way that was unfair to the appellant

Legislation:

Nil

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms G A S Bailey

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Eley v Town of Victoria Park [2014] WASC 103
Lassock v Seidner [2013] WASC 94
Myers v Myers [1969] WAR 19
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

CORBOY J

The appeal and the result

1 The appellant, Mr Shinkawa, was convicted of the charge that on 21 April 2013 he unlawfully assaulted Mathew Yang Kiaw Sim. He was fined $1,500 and ordered to pay the costs of the prosecution fixed at $265.75.

2 The appellant has appealed from his conviction. He represented himself at the trial and in the appeal.

3 The prosecution case was that the appellant assaulted Mr Sim by spitting on him while Mr Sim was working in a pharmacy. The prosecution tendered at the trial a disc recording film that was taken by CCTV cameras located in the pharmacy. The appellant alleged that Mr Sim had punched him and that the CCTV film played at the trial had been edited to delete footage that captured the assault on him.

4 The appellant alleged by his proposed ground of appeal that:

Gannaway (PD 13969) edited the CCTV footage to shorter version and get rid of the scene that victim Sim Mathew Yang Kiaw tried to assault me first. Magistrate Langdon neglected 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 Shinkawa v Gannaway

Details

AGLC: Shinkawa v Gannaway [2015] WASC 75
Case: [2015] WASC 75
Decision Date: 4 MARCH 2015

CaseChat Overview and Summary

The case of Shinkawa v Gannaway involved an appeal against a conviction by the appellant, Shinkawa, who was convicted of drug trafficking. The appeal was brought before the court due to concerns about the trial's fairness and the handling of evidence, specifically regarding a CCTV film. The court had to determine whether the magistrate erred in concluding that the CCTV film had not been edited and if the trial was conducted in a way that was unfair to the appellant. Additionally, the court considered whether the magistrate should have adjourned the trial.

The court examined the grounds of appeal, which included the magistrate's finding that the CCTV film had not been edited, the decision not to adjourn the trial, and the overall fairness of the trial process. The appellant argued that the magistrate's conclusion on the CCTV footage was incorrect and that the trial was unfair due to this and other factors. The court needed to assess these arguments in the context of the trial's procedural fairness and the admissibility of evidence.

In its decision, the court found that the magistrate's findings regarding the CCTV film were not in error and that there was no basis for the appellant's claims of unfairness. The court held that the trial was conducted appropriately and that the appellant's concerns about the editing of the CCTV film and the trial's fairness were unfounded. Consequently, the court dismissed the appeal and refused the appellant leave to appeal. The conviction and sentence imposed by the magistrate remained intact.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

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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