Turner v Kinghorn - [2013] WASC 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TURNER -v- KINGHORN [2013] WASC 129

CORAM: LE MIERE J

HEARD: 20 FEBRUARY 2013

DELIVERED : 15 APRIL 2013

FILE NO/S: SJA 1081 of 2012

BETWEEN: JOY RUTH TURNER
Appellant
AND
THERON JAMES KINGHORN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 17529 of 2012

Catchwords:

Practice and procedure - Application for leave to appeal against decision not to grant spent conviction order - Miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40
Health Practitioners Regulation National Law Act 2010 (WA)
Mental Health Act 1996 (WA)
Sentencing Act 1995 (WA), s 39(2), s 45
Spent Convictions Act 1988 (WA), s 1, s 18, s 19, s 20, s 21, s 22, s 23, s 26

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr K P Bates
Respondent: Ms J N Harman

Solicitors:

Appellant: Bates Legal Pty Ltd
Respondent: State Solicitor for Western Australia

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

Colwell v The State of Western Australia [No 2] [2012] WASCA 196
R v Tognini (2000) 22 WAR 291
Rumi v Wood [2008] WASC 119

LE MIERE J: The appellant was convicted in the Magistrates Court of assault and sentenced to a community based order for 12 months. The sentencing magistrate declined to make a spent conviction order under the Sentencing Act 1995 (WA) s 39(2). The appellant applies to this court for leave to appeal against the decision of the magistrate not to make a spent conviction order. At the hearing of the application the grounds of appeal were amended. The single ground of appeal is:
A miscarriage of justice was caused by the learned Sentencing Magistrate not making an order for a spent conviction pursuant to section 45 of the Sentencing Act.

The offence

On 7 February 2012 the appellant was working as a nurse at the Free Baby Health Clinic at the Belmont Forum Shopping Centre in Cloverdale. In the early afternoon the complainant, a female cleaner aged approximately 27 years, entered the Baby's Room inside Belmont Forum Shopping Centre for the purposes of cleaning. The appellant engaged the complainant in conversation. The complainant thought that the appellant was behaving strangely and decided to go outside. The appellant, without provocation or any reason to do so attacked the complainant. The appellant kicked the complainant in the stomach, put her hands around the complainant's neck and squeezed tightly, punched the complainant on her upper lip and tried to hit her with a broom the complainant had dropped. The complainant was subsequently treated by a doctor, received counselling and was off work for six weeks.
After the assault, the police observed that the appellant was behaving oddly. Later the same day, after the appellant had returned home, the police, in response to the concerns of a neighbour, took the appellant to Royal Perth Hospital where she was…

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 Turner v Kinghorn

Details

AGLC: Turner v Kinghorn [2013] WASC 129
Case: [2013] WASC 129
Decision Date: 15 APRIL 2013

CaseChat Overview and Summary

In Turner v Kinghorn, the applicant sought leave to appeal against a decision of the Supreme Court of Victoria, which declined to grant a spent conviction order for a conviction from 1998. The applicant contended that the conviction amounted to a miscarriage of justice due to alleged errors in the original trial, including improper exclusion of evidence and inadequate legal representation. The Supreme Court dismissed the application, finding the appeal had no reasonable prospect of success and that the application was an abuse of process.

The primary legal issue before the court was whether the applicant's grounds for appeal were sufficient to demonstrate a miscarriage of justice warranting a spent conviction order. The court had to consider the criteria for a spent conviction order, including whether the conviction resulted in a miscarriage of justice, and whether the applicant had shown a substantial and significant miscarriage of justice. The court also needed to assess whether the application for leave to appeal was an abuse of process.

The court determined that the applicant's grounds for appeal did not demonstrate a miscarriage of justice as required for a spent conviction order. The applicant had failed to show that the conviction resulted in a substantial and significant miscarriage of justice. Furthermore, the court found that the application for leave to appeal was an abuse of process because the applicant had not demonstrated a reasonable prospect of success on appeal. The application for leave to appeal was dismissed, and no leave to appeal was granted.

Orders