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
1.0 The appeal, the grounds of appeal and the result
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…
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.
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Details
AGLC
TWG v Boucher [2020] WASC 98
Case
[2020] WASC 98
Decision Date
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.