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Simpson v Herrinton

Simpson v Herrinton

Case [2022] WASC 50 18 February 2022

Natural Justice & Procedural Fairness

Criminal Law

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SIMPSON -v- HERRINTON [2022] WASC 50
CORAM:   HALL J
HEARD:   1 DECEMBER 2021
DELIVERED          :   18 FEBRUARY 2022
PUBLISHED           :   21 FEBRUARY 2022
FILE NO/S:   SJA 1048 of 2021
BETWEEN:   COREY CLINTON SIMPSON
Appellant
AND
DAVID RICHARD HERRINTON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B COLEMAN
File Number            :   HV 471-2 OF 2019

Catchwords:

Criminal Law - Appeal against conviction - Stalking - Criminal Code s 338E(2) - Whether the magistrate applied incorrect test in determining whether conduct could reasonably be expected to intimidate - Whether the magistrate erred by taking into account five incidents when only two could have occurred within the time period specified in the charge - Whether the magistrate erred by taking into account evidence relating to another charge

Legislation:

Criminal Code, s 338E(2)

Result:

Extension of time granted
Leave to appeal on grounds 1 and 2 granted
Leave to appeal on ground 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr W C Yoo
Respondent	:	Ms R C Panetta

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	State Solicitor's Office

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

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
CB v The State of Western Australia [2006] WASCA 227
Conomy v Maden [2016] WASCA 30
Cotter v The State of Western Australia [2011] WASCA 202
Cowie v Wood [2021] WASC 341
Hellings v The Queen [2003] WASCA 209
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Jolley v Truong [2021] WASC 194
Kalbasi v Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196
Orreal v The Queen [2021] HCA 44
Starling v Ostrowski [2001] WASCA 74
The Queen v Dossi (1918) 13 Cr App R 158
Tonkin v Macintosh [2021] WASC 118
Weiss v The Queen [2005] HCA 81
XHA v The State of Western Australia [2022] WASCA 8

HALL J:

The appellant was charged with two counts of stalking contrary to s 338E(2) of the Criminal Code. He pleaded not guilty to the charges and the matter proceeded to trial. He was found not guilty of the first charge and guilty of the second charge. The appellant seeks leave to appeal against his conviction of the second charge.
The conviction occurred on 1 April 2021 and the appellant was sentenced on 25 June 2021 to a 12‑month Community Based Order. Accordingly, the last date for commencing an appeal against the conviction was 23 July 2021. The appeal notice was not filed until 4 August 2021 and thus an extension of time is required. The solicitor for the appellant has filed an affidavit explaining that the delay was due to some initial uncertainty as to whether an appeal should be brought and pressure of work. The delay is relatively short and an extension of…

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 Simpson v Herrinton

Details

AGLC: Simpson v Herrinton [2022] WASC 50
Case: [2022] WASC 50
Decision Date

CaseChat Overview and Summary

The appellant was convicted of stalking by the Magistrates Court of Western Australia. He appeals against the conviction on three grounds. The first ground alleges that the learned Magistrate erred by applying the wrong test to determine whether the appellant's conduct could reasonably be expected to intimidate. The second ground alleges that the learned Magistrate erred by taking into account five incidents when only two of those incidents could have occurred within the time period specified in the charge. The third ground alleges that the learned Magistrate erred by taking into account evidence relating to the first charge when considering the second charge. The court granted an extension of time for filing the appeal. Leave to appeal on grounds 1 and 2 was granted. However, leave to appeal on ground 3 was refused. Although grounds 1 and 2 are reasonably arguable, they did not ultimately succeed. The appeal was dismissed.

Orders