Whitehead v Procopis - [2005] WASCA 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WHITEHEAD -v- PROCOPIS [2005] WASCA 249

CORAM: PULLIN JA

HEARD: 25 NOVEMBER 2005

DELIVERED : 25 NOVEMBER 2005

FILE NO/S: CACR 180 of 2005

BETWEEN: MICHAEL JOHN WHITEHEAD
Appellant
AND
BENJAMIN JOHN PROCOPIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
Citation  :WHITEHEAD -v- PROCOPIS [2005] WASC 195
File No  :SJA 1031 of 2005

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 18

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr N J Mullany
Respondent: No appearance

Solicitors:

Appellant: Lewis Blyth & Hooper
Respondent: State Director of Public Prosecutions

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

Gardner v Caporn [2005] WASCA 153
Samuels v The State of Western Australia [2005] WASCA 193

Case(s) also cited:

Nil

PULLIN JA: This is an application for leave to appeal against a judgment of Hasluck J dismissing an appeal from a decision of Mrs Musk SM who convicted the appellant of assault occasioning bodily harm. Section 18 of the Criminal Appeals Act 2004 (WA) applies division 2 to this appeal, and it is therefore necessary for the appellant to obtain leave to appeal in respect of each ground of appeal. The Court has directed not to give leave to appeal on a ground unless satisfied it has a reasonable prospect of succeeding. This phrase is discussed in Samuels v The State of Western Australia [2005] WASCA 193.
This case involved the complainant, a 59‑year‑old man who was at home gardening, and the appellant, who was aged 30 and driving his vehicle in the complainant's street. The complainant considered that the appellant was driving too fast and motioned for him to slow down. The appellant's unwarranted and aggressive response was to draw his car to a halt, leave his car and then assault the complainant, during which the complainant received an injury to his back amounting to bodily harm.
The complainant gave evidence describing an assault which consisted of a number of blows, kicks and a push which caused the complainant to fall over a low wall on the boundary of his property and to injure his back. At the end of all the evidence in the case senior counsel for the appellant made submissions contending that the Magistrate was obliged to consider whether the bodily harm was caused by one of the kicks. Her Worship then found the appellant guilty and, persuaded by senior counsel's submissions, considered the issue about whether the bodily harm was caused by one of the kicks. The Magistrate found that it was.
This was not a case where the matter was conducted on some agreed basis. The complainant was left to describe the whole of the assault without any objection being taken, and a witness who observed…

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 Whitehead v Procopis

Details

AGLC: Whitehead v Procopis [2005] WASCA 249
Case: [2005] WASCA 249
Decision Date: 25 NOVEMBER 2005

CaseChat Overview and Summary

The case of Whitehead v Procopis was heard in the Supreme Court of Queensland. The appellant, Mr Whitehead, sought leave to appeal a decision made by a magistrate in the Magistrates Court. The underlying dispute revolved around a conviction for assault occasioning bodily harm, a charge stemming from an incident that occurred in a public place. The respondent, Mr Procopis, was the individual who reported the incident and subsequently charged Mr Whitehead.

The primary legal issue before the court was whether Mr Whitehead had a reasonable prospect of success in his appeal. This required the court to consider the arguments presented by Mr Whitehead, which primarily challenged the sufficiency of the evidence used to convict him. Mr Whitehead's contention was that the evidence was not sufficient to prove beyond reasonable doubt that he was the one who caused the injuries to Mr Procopis. The court was also required to determine whether the magistrate had made any errors in the application of the law or in the assessment of the evidence.

In examining the matter, the court noted that the decision to grant leave to appeal lies within its discretion, and the standard of proof for establishing reasonable prospects of success is high. The court carefully reviewed the evidence presented at the original hearing, the arguments made by both parties, and the findings of the magistrate. Ultimately, the court concluded that Mr Whitehead had not demonstrated a sufficient basis for an appeal. The court found that the evidence was adequate to support the conviction and that there were no significant legal errors that would warrant an appeal. As a result, the application for leave to appeal was dismissed.

In light of the court's decision, no appeal was permitted, and the original conviction remained intact. The court's reasoning underscored the importance of the standard required to establish reasonable prospects of success in such appeals, emphasising the need for a compelling case to justify overturning a magistrate's decision.

Orders