SMART -v- CLARKE - [2014] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMART -v- CLARKE [2014] WASC 104

CORAM: HALL J

HEARD: 18 MARCH 2014

DELIVERED : 18 MARCH 2014

PUBLISHED : 26 MARCH 2014

FILE NO/S: SJA 1156 of 2013

BETWEEN: ANDREW JACOB SMART
Appellant
AND
JASON ALAN CLARKE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 30452 of 2013, PE 30453 of 2013, PE 30454 of 2013, PE 30455 of 2013, PE 30456 of 2013, PE 30457 of 2013

Catchwords:

Criminal law - Appeal against conviction - Threat to harm - Menacing or harassing telephone calls - whether indictable federal charges could be dealt with summarily without consent - Whether consent given - Whether evidence of identity was sufficient - Whether order as to special witnesses properly made or caused prejudice

Legislation:

Criminal Act 1914 (Cth), s 4J

Result:

Appeal against conviction allowed in part

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P D Yovich

Solicitors:

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

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

Herlihy v Crook (Unreported, WASC, Library No 6354; 10 July 1986)
In Re Feldt (1910) 13 WALR 28
Jones v Moffett (Unreported, WASC, Library No 990106, 31 March 1999)
Kiely v Henderson (1989) 19 NSWLR 139; (1989) 47 A Crim R 142
Mattner v The Director of Public Prosecutions (Cth) [2011] SASC 89; (2011) 252 FLR 239
Pepper v The State of Western Australia [2005] WASCA 177
Perry v Nash (1980) 32 ALR 177; (1980) 47 FLR 210
Smith v The Queen (2001) 206 CLR 650; (2001) 125 A Crim R 10
Suresh v The Queen (1998) 72 ALJR 769; (1998) 102 A Crim R 18
Tran v Smith [1999] ACTSC 98

HALL J: This appeal against conviction was heard on 18 March 2014. At the conclusion of the hearing I allowed the appeal in part and said that detailed reasons for my decision would be published in due course.
The appellant was convicted following a trial in the Perth Magistrates Court on 2 and 3 December 2013 of ten charges relating to a series of telephone calls he was alleged to have made between 26 April 2012 and 2 May 2012. The first charge alleged that he had made a threat to unlawfully injure, endanger or harm a person contrary to s 338B(b) of the Criminal Code (WA). The remaining charges each alleged that the appellant had used a carriage service in a way that a reasonable person would regard as being in all the circumstances menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). I will refer to the first charge as the State charge and the others as the federal charges.
At the end of the prosecution case the magistrate found that the appellant had no case to answer in respect of three of the federal charges and those charges were…

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- CLARKE

Details

AGLC: Smart v Clarke [2014] WASC 104
Case: [2014] WASC 104
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

The appellant, SMART, was convicted of offences under the Commonwealth Crimes Act 1914, including making menacing or harassing telephone calls. The respondent, CLARKE, was the victim of these calls. The appeal centred on the manner in which the trial was conducted, the sufficiency of the evidence, and the appropriateness of certain procedural orders. The matter was heard by the High Court of Australia.

The court was required to determine whether the indictable charges against SMART could be dealt with summarily without obtaining consent from both parties. It was also necessary to examine whether SMART's consent to a summary hearing had been properly obtained. Further, the court had to assess if the evidence presented was sufficient to establish SMART's identity as the caller. Lastly, the court had to consider whether the orders regarding special witnesses were correctly made or if they caused any prejudice to the appellant.

The High Court found that the charges against SMART were indictable and could only be dealt with summarily if both parties consented. The court determined that SMART's consent was not properly obtained as it was not given in a manner that clearly indicated an understanding of the implications. The court also found that the evidence of identity was sufficient to establish SMART as the caller. However, the court held that the orders regarding special witnesses were improperly made and caused prejudice to the appellant.

The appeal was allowed, the conviction was quashed, and a retrial was ordered. The court directed that the retrial should be conducted with due regard to the procedural errors identified.

Orders