SMITH -v- FOLEY [2007] WASC 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 2
Case No:	SJA:1082/2005	Heard:	6 NOVEMBER 2006
Coram:	SIMMONDS J	Delivered:	8/01/07
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction quashed New trial ordered
Category:	B
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Parties:	GRANT TRAVERS SMITH JULIE CHRISTIE FOLEY
Catchwords:	Criminal law Appeal against conviction Assault occasioning bodily harm Issues of credibility Whether self-defence was raised Appeal allowed
Legislation:	Criminal Code (WA), s 248, s 249, s 250
Case References:	Penn v The Queen (1989) 44 A Crim R 131 Small v Evans [2001] WASCA 343 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 De Vries v Australian National Railways Commission (1993) 177 CLR 472 Director of Public Prosecusions v Walker [1974] 1 WLR 1090 Glennon v The Queen (1994) 179 CLR 1 Hajinoor v Dench [2005] WASC 274 Harling v Hall (1997) 94 A Crim R 437 M v The Queen (1994) 181 CLR 487 Rosenberg v Percival (2001) 178 ALR 577 Van den Hoek v The Queen (1986) 161 CLR 158 Woolmington v Director of Public Prosecutions [1935] AC 462 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SMITH -v- FOLEY [2007] WASC 2 CORAM : SIMMONDS J HEARD : 6 NOVEMBER 2006 DELIVERED : 9 JANUARY 2007 FILE NO/S : SJA 1082 of 2005 BETWEEN : GRANT TRAVERS SMITH

Appellant

AND

JULIE CHRISTIE FOLEY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE F CULLEN

File No : PE 26243 of 2004

Catchwords:

Criminal law - Appeal against conviction - Assault occasioning bodily harm - Issues of credibility - Whether self-defence was raised - Appeal allowed

Legislation:

Criminal Code (WA), s 248, s 249, s 250

(Page 2)

Result:

Appeal allowed

Conviction quashed
New trial ordered

Category: B

Representation:

Counsel:

Appellant : Mr S D Freitag

Respondent : Mr C G Astill

Solicitors:

Appellant : D G Price & Co

Respondent : State Director of Public Prosecutions

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

Penn v The Queen (1989) 44 A Crim R 131
Small v Evans [2001] WASCA 343

Case(s) also cited:

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
De Vries v Australian National Railways Commission (1993) 177 CLR 472
Director of Public Prosecusions v Walker [1974] 1 WLR 1090
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
M v The Queen (1994) 181 CLR 487
Rosenberg v Percival (2001) 178 ALR 577
Van den Hoek v The Queen (1986) 161 CLR 158
Woolmington v Director of Public Prosecutions [1935] AC 462
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
(Page 3)

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 Smith v Foley

Details

AGLC: Smith v Foley [2007] WASC 2
Case: [2007] WASC 2
Decision Date: 9 JANUARY 2007

CaseChat Overview and Summary

In the matter of Smith v Foley, the appellant sought to overturn a conviction for assault occasioning bodily harm, contending that the trial judge had erred in not directing the jury on the issue of self-defence. The case was heard in the Supreme Court of Victoria, with the appellant challenging the trial court’s handling of the defence of self-defence.

The primary legal issue before the court was whether the trial judge had adequately considered the appellant’s claim of self-defence and whether the jury had been properly directed on the matter. The appellant argued that the trial judge should have directed the jury to consider self-defence, as there was sufficient evidence to raise the issue. The respondent contended that the trial judge had correctly assessed the evidence and did not believe the appellant had acted in self-defence.

The court found that the trial judge had failed to properly consider the evidence of self-defence and did not adequately direct the jury on this defence. The court noted that there was evidence that could support a finding that the appellant acted in self-defence, and therefore, the trial judge should have directed the jury on this point. The court held that this error was a miscarriage of justice, as it deprived the appellant of a potential defence. Consequently, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders

Orders of the court

Appeal allowed

Conviction quashed

New trial ordered

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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