Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE T SCHWASS
File No :PE 2390 of 2014, PE 2391 of 2014, RO 474 of 2014
Catchwords:
Criminal law - Appeal from court of summary jurisdiction - Whether Children's Court of Western Australia exercising summary jurisdiction - Indictableonly offence tried by magistrate - Adequacy of reasons for conviction - Where case turns on credibility of witnesses - Whether express error of fact material - Whether substantial miscarriage of justice
Evidence - Relationship and propensity evidence - Whether reliability of evidence assessed in determining probative value - Adequacy of reasons for evidentiary ruling
[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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AGLC
WS v Gardin [2015] WASC 97
Case
[2015] WASC 97
Decision Date
CaseChat Overview and Summary
The appellant appealed against his conviction by the Children's Court of Western Australia for engaging in a sexual act with his cousin, who was under the age of sixteen. The appeal centred on whether the court was exercising summary jurisdiction, the adequacy of the reasons for conviction, the reliability of evidence, and the probative value of propensity and relationship evidence. The appeal also questioned whether there was an error of fact or a substantial miscarriage of justice.
The court considered whether the Children's Court of Western Australia was exercising summary jurisdiction over an indictable-only offence. The court held that the Children's Court was exercising summary jurisdiction and that the trial was not invalid. The court also found that the reasons for conviction were adequate and that the appellant's credibility was properly assessed. The court rejected the argument that there was an error of fact or a substantial miscarriage of justice. The court further held that the propensity and relationship evidence was reliable and had significant probative value. The court found that the evidence was relevant to understanding the appellant's propensity for engaging in similar conduct and the victim's reaction to the offence.
The appeal was dismissed, and the conviction was upheld. The court found that the evidence was reliable and had significant probative value. The court also found that the reasons for conviction were adequate and that there was no error of fact or substantial miscarriage of justice. The court held that the Children's Court was exercising summary jurisdiction over the offence and that the trial was valid. The conviction was upheld, and the appellant's appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Section 31A of the Evidence Act provides:(1)In this section:propensity evidence means:(a)similar fact evidence or other evidence of the conduct of the accused person; or(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. The appellant denies that the propensity and relationship evidence adduced at trial had any significant probative value. In making that submission counsel for the appellant did not deny that the evidence would have significant probative value so far as it would establish the following matters:1.The appellant demonstrated a sexual interest in a female cousin upon which he was prepared to act.2.The appellant had so acted by engaging in a sexual manner towards his cousin while she slept or he thought she was asleep.3.The appellant had threatened CS during those past incidents, which provided an explanation for her initial reaction to the appellant's conduct towards her as she was asleep or pretending to be asleep. The first two matters made it more likely that the appellant had behaved in the manner alleged towards his cousin CS as his behaviour in a similar manner towards SS on previous occasions demonstrated his propensity for engaging in that unusual conduct. The third matter, combined with the first two, was relevant to understanding CS's reaction to the commission of the offence, namely the reason she was fearful of the appellant. For these reasons, in my view, evidence which established those facts would have significant probative value and the magistrate was correct to so conclude. The main effect of the appellant's argument was not that the evidence, if accepted as true, had no significant probative value. Rather, the main contention was that the evidence was so unreliable that it had no significant probative value. The unreliability of the evidence was said to flow from two principal propositions, both of which arose in cross‑examination of CS and SS by counsel for the appellant:1.It was unlikely that the appellant had 'dry humped' SS in the manner and on the number of occasions described by CS without ever waking SS up.2.The evidence of SS and CS was inconsistent as to whether SS wore a bra when she was groped by the appellant.