Wirth v Fitzgerald

Case [2006] WASC 288


WIRTH -v- FITZGERALD [2006] WASC 288



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASC 288
Case No:SJA:1055/200630 OCTOBER 2006
Coram:HASLUCK J17/12/06
33Judgment Part:1 of 1
Result: Appeal dismissed
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Parties:JULIE ANNE WIRTH
MATTHEW JAMES FITZGERALD

Catchwords:

Criminal law
Appeal against conviction for aggravated assault occasioning bodily harm
Question of adequacy of findings of fact and reasons for decision
Basis for assessment of credibility of witnesses when no independent witness available
Alleged inconsistencies in evidence
Whether all elements of charge proved beyond reasonable doubt
Whether findings adequately disclosed the intellectual process to support conclusion
No explicit finding as to whether relevant circumstance of aggravation had been established by the evidence
Whether issues raised by defence were sufficiently negated
Allegation by defence counsel of procedural unfairness amounting to a miscarriage of justice
Finding on appeal that judicial officer proceeded fairly
Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Code (WA), s 221, s 244, s 248, s 254, s 317(1)
Criminal Procedure Rules 2005 (WA), r 67

Case References:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Browne v Dunn (1893) 6 R 67
Brunskill & Anor v Sovereign Marine & General Insurance Co Ltd & Ors (1985) 62 ALR 53
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Devries & Anor v Australian National Railways Commission (1993) 177 CLR 472
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Hajinoor v Dench [2005] WASC 274
Harling v Hall (1997) 94 A Crim R 437
Jones v Dunkel (1959) 101 CLR 298
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
MWJ v The Queen [2005] HCA 74
Nevermann (1989) 42 A Crim R 347
Skerritt v O'Keefe [1999] WASCA 183
TKWJ v The Queen (2002) 212 CLR 124
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Allen v Gittos (1995) 13 WAR 560
Chamberlain v MacLachlan [2003] WASCA 200
Ciminata v Reynolds [2000] WASCA 97
Gardner v Caporn [2005] WASCA 153
Lloyd v Faraone [1989] WAR 154
Mraz v The Queen (1955) 93 CLR 493
R v McDonald [2000] WASCA 336
Rosenberg v Percival (2001) 205 CLR 434
Simic v The Queen (1980) 144 CLR 319
Smits v Roach [2006] HCA 36
Thompson v McIntyre SM [2006] WASC 218
Vakauta v Kelly (1989) 167 CLR 568
Van Der Laan v Warchot [2006] WASC 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : WIRTH -v- FITZGERALD [2006] WASC 288 CORAM : HASLUCK J HEARD : 30 OCTOBER 2006 DELIVERED : 18 DECEMBER 2006 FILE NO/S : SJA 1055 of 2006 BETWEEN : JULIE ANNE WIRTH
    Appellant

    AND

    MATTHEW JAMES FITZGERALD
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T…

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Wirth v Fitzgerald [2006] WASC 288
Case
[2006] WASC 288
Decision Date

CaseChat Overview and Summary

Julie Anne Wirth appeals against a conviction for aggravated assault occasioning bodily harm. The appeal is directed to the adequacy of the learned Magistrate's findings of fact and reasons for decision. The appeal was dismissed by Hasluck J. The learned Magistrate had found that the appellant assaulted Simone Keele and thereby did her bodily harm in circumstances of aggravation, namely, while a child was present, contrary to s 317(1) of the Criminal Code. The appellant argued that the learned Magistrate erred in fact and law in his recollection of the evidence to such an extent that his reasoning was unreliable and unsafe. The appellant also argued that the learned Magistrate had failed to make certain findings of fact, including that a child was present, and had failed to consider certain evidence. The appellant further submitted that the learned Magistrate's conduct of the trial amounted to a miscarriage of justice. The appeal was dismissed because the learned Magistrate's reasons for decision were sufficiently related to the evidence adduced by the prosecution to justify a conclusion that the charge had been established beyond reasonable doubt.

Orders

Orders of the court

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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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