Smart v Radley - [2011] WASC 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMART -v- RADLEY [2011] WASC 96

CORAM: HALL J

HEARD: 1 APRIL 2011

DELIVERED : 15 APRIL 2011

FILE NO/S: SJA 1121 of 2010

BETWEEN: ANDREW JACOB SMART
Appellant
AND
JASON RADLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T J McINTYRE
File No  :AL 1174 of 2009, AL 1175 of 2009, AL 1176 of 2009, AL 1177 of 2009

Catchwords:

Criminal law - Breach of restraining order - Voice identification - Whether evidence sufficient to prove guilt - Alleged apprehension of bias - Turns on own facts

Legislation:

Restraining Orders Act 1997 (WA), s 61(1)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms E L O'Donnell

Solicitors:

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

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

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smart v Scott [2007] WASC 295

HALL J: The appellant, Andrew Jacob Smart, seeks leave to appeal against his conviction of four counts of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA). Those convictions occurred following a hearing in the Mandurah Magistrates Court on 26 July 2010. The relevant charge numbers were AL 1174 to 1177 of 2009.
The appeal notice filed by Mr Smart contains three grounds:
(1)Raylene Blyth claims to know my voice due to previous arguments with husband, but when questioned about why she called my phone when she had a restraining order she stated 'I don't know who it was. I thought it was a disgruntled customer';
(2)No phone records of my phone to her phone, number never dialled, no record of diversion;
(3)Large number of calls from her brothers‑in‑law and husband to me that included death threats. McIntyre wrongly concluded that these calls were only relevant to discontinued charge which is not true, failed to act on summary as a result.
These grounds are somewhat cryptic. However, Mr Smart, who represented himself in these proceedings, made oral submissions explaining them. In order to understand the grounds it is necessary to say something about the proceedings in the Magistrates Court.

Proceedings in the Magistrates Court

The prosecution case was that on 3 November 2006 a violence restraining order was made restraining Mr Smart from approaching, making contact or attempting to make contact with Raylene Michelle Blyth. That order was served on Mr Smart on 11 June 2007. The order remained current in March 2009.
It was alleged that on four occasions in March 2009 Mr Smart had contacted Ms Blyth in contravention of the violence restraining order. Ms Blyth gave evidence in this regard. She said that at about 9.00 pm on 4 March 2009 she received a message on the message bank of her mobile phone. She said that when she listened to the message she recognised the voice as that of Mr…

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 Radley

Details

AGLC: Smart v Radley [2011] WASC 96
Case: [2011] WASC 96
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

Smart v Radley was a criminal case heard in the District Court of New South Wales. The defendant, Radley, was charged with breaching a restraining order by contacting the plaintiff, Smart, by phone. The crux of the case revolved around whether the evidence presented was sufficient to prove Radley's guilt beyond reasonable doubt. Additionally, the case examined whether there was any apprehension of bias on the part of the magistrate who presided over the case.

The primary legal issues the court needed to address were the sufficiency of the voice identification evidence and whether there were any grounds for alleging bias on the part of the magistrate. The court had to determine if the voice identification provided was reliable and compelling enough to establish Radley's involvement in the breach. Additionally, the court considered the argument that the magistrate had an apparent bias against Radley, which could potentially undermine the fairness of the proceedings.

The court concluded that the evidence of voice identification was sufficient to prove Radley's guilt beyond reasonable doubt. The magistrate carefully assessed the reliability of the voice identification and found it to be compelling. As for the alleged bias, the court found no substantive evidence to support the claim. The magistrate's conduct throughout the proceedings was deemed to be fair and impartial. Consequently, the court upheld the conviction and dismissed the appeal.

Orders