Smart v Albuquerque - [2010] WASC 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMART -v- ALBUQUERQUE [2010] WASC 323

CORAM: McKECHNIE J

HEARD: 29 OCTOBER 2010

DELIVERED : 29 OCTOBER 2010

FILE NO/S: SJA 1063 of 2010

BETWEEN: ANDREW JACOB SMART
Appellant
AND
SANJEEV ANTHONY ALBUQUERQUE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D R V TEMBY
File No  :RO 11978 of 2008

Catchwords:

Criminal law - Assault - Whether magistrate in error - No new principles

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Nil

McKECHNIE J: This is an application for an extension of time within which to appeal and if that is granted an application for leave to appeal. The appellant has outlined the difficulties he had in obtaining the transcript from the Magistrates Court. In all the circumstances, I would grant an extension of time if there are arguable grounds of appeal because I consider the appellant has explained why the appeal took so long to advance, but the question really then is: Are there arguable grounds of appeal? Under the Criminal Appeals Act2004 (WA) a judge must not grant leave to appeal on any ground unless satisfied there are reasonable prospects of success on that ground.
I turn to the merits of that application.
The appellant was charged that on 4 December 2007, he assaulted Thomas Watts a public officer then performing a function of his office. Watts was at the time, although not at the time of trial, a prison officer. The trial eventually proceeded on 12 June and 15 July 2009, following which the appellant was convicted.
The appeal was lodged on 2 July 2010, nearly a year after the trial had concluded but, as I say, I am satisfied with the appellant's explanation as to the lengthy delay:
On 19 August 2010 a judge made orders on the papers including orders that the appellant:
(c)file an affidavit in support of his application for an extension of within which to appeal; and
(d)lodge and serve amended grounds of appeal which state concisely the reason why the appellant says that the magistrate's decision was 'clearly wrong'.
On 14 September 2010, the judge extended time for compliance to 15 October 2010.
By letter of 6 September 2010, the appellant wrote to the court stating that he could not file an affidavit because of the non‑availability of a JP, and the reason for the delay was the Rockingham Court's refusal to supply a copy of the transcript without a large deposit, despite the fact that he had presented a Healthcare card to prove he was on Centrelink benefits, and he could not afford to pay.
He also supplied a written document as an expansion of the grounds of appeal. I will accept that as compliance with the order made that he file amended grounds of appeal. I…

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 Smart v Albuquerque

Details

AGLC: Smart v Albuquerque [2010] WASC 323
Case: [2010] WASC 323
Decision Date: 29 OCTOBER 2010

CaseChat Overview and Summary

In the case of Smart v Albuquerque, the appellant, Smart, was convicted by a Magistrate of assault and battery against the respondent, Albuquerque. The conviction was subsequently upheld by the District Court. Smart appealed to the Supreme Court, challenging the correctness of the Magistrate's decision. The primary issue before the court was whether the Magistrate had erred in law, resulting in a miscarriage of justice, by convicting Smart of the assault and battery.

The court considered the evidence presented, focusing on the credibility of witnesses and the interpretation of the legal principles governing assault and battery. The court found that the Magistrate had properly assessed the evidence and applied the relevant legal standards. The court held that the evidence supported the conclusion that Smart had intentionally caused physical harm to Albuquerque, satisfying the elements of assault and battery. The court further determined that there was no error in the Magistrate's application of the law, and the conviction was upheld.

As the appeal was dismissed, the court made no further orders. The conviction and sentence imposed by the Magistrate and affirmed by the District Court remained in effect. The court confirmed that there were no new legal principles to be applied in this case, and the appeal was without merit.

Orders