TWG v Boucher

Case [2020] WASC 98


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   TWG -v- BOUCHER [2020] WASC 98

CORAM:   SMITH J

HEARD:   26 FEBRUARY 2020

DELIVERED          :   25 MARCH 2020

FILE NO/S:   SJA 1108 of 2019

BETWEEN:   TWG

Appellant

AND

FIONA BOUCHER

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE E D CAMPIONE

File Number            :   MI 11371 of 2018, MI 14554 of 2018


Catchwords:

Criminal law - Appeal against conviction - Aggravated assault occasioning bodily harm - Sufficiency of evidence - Inconsistencies in the evidence - Whether verdict unsafe and unsound - Whether verdict of guilty inconsistent with a verdict of not guilty on another count - Turns on own facts

Criminal law - Appeal against conviction - Aggravated common assault - Whether warning in non‑sexual case in which there is a delay was necessary to avoid a perceptible risk of miscarriage of justice - Whether it is necessary to identify forensic disadvantage at first instance to trigger the requirement to warn - Whether on the facts a warning was required - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Code (WA), s 257, s 313(1)(a), s 317(1)B

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Ms M M Yeung

Solicitors:

Appellant : Cathal Smith Legal Pty Ltd
Respondent : Director Of Public Prosecutions (WA)

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

AK v The State of Western Australia [2006] WASCA 245

Ascic v Bedworth [2013] WASCA 174

DPJB v The State of Western Australia [2010] WASCA 12

DWM v The State of Western Australia [No 2] [2019] WASCA 143

Eravelly v The State of Western Australia [2018] WASCA 139

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Gardner v Caporn [2005] WASCA 153

Hawker v Coulthard [2011] WASC 139

JJR v The State of Western Australia [2018] WASCA 51

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Murphy v Spencer [2013] WASC 256

Nth v The State of Western Australia [2020] WASCA 22

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67

SPB v The State of Western Australia [2012] WASCA 136

The State of Western Australia v Rayney [2013] WASCA 219

Tomcsanyi v Yuswak [2015] WASC 111

Wark v The State of Western Australia [2020] WASCA 19

SMITH J:

1.0 The appeal, the grounds of appeal and the result

  1. The appellant was charged with two offences involving his daughter, H, and two offences involving his son, T, as follows:[1]

    (a)between 1 June 2018 and 31 July 2018, he unlawfully assaulted H and thereby did her bodily harm, in circumstances of aggravation, namely being in a family and…

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TWG v Boucher [2020] WASC 98
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[2020] WASC 98
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CaseChat Overview and Summary

In the case of TWG v Boucher, the appellant, TWG, was convicted of aggravated assault occasioning bodily harm and appealed against the conviction on the basis of the sufficiency of the evidence. The case was heard by the Court of Appeal, which was required to determine whether the verdict was unsafe and unsound, and whether it was inconsistent with a verdict of not guilty on another count. The court also had to consider whether a warning in a non-sexual case with a delay was necessary to avoid a perceptible risk of miscarriage of justice and whether it was necessary to identify forensic disadvantage at first instance to trigger the requirement to warn.
The court found that the inconsistencies in the evidence did not render the verdict unsafe and unsound, and that the verdict of guilty was not inconsistent with a verdict of not guilty on another count. The court held that the requirement to warn in a non-sexual case with a delay was necessary to avoid a perceptible risk of miscarriage of justice, but that it was not necessary to identify forensic disadvantage at first instance to trigger the requirement to warn. The court found that on the facts of the case, a warning was not required.
The Court of Appeal allowed the appeal against the conviction of aggravated assault occasioning bodily harm, and quashed the conviction. The Court of Appeal did not order a re-trial, as it found that the evidence was sufficient to support a conviction of aggravated common assault. The court ordered that TWG be convicted of aggravated common assault and sentenced accordingly.

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