Yza v WA Police - [2024] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   YZA -v- WA POLICE [2024] WASC 187
CORAM:   FORRESTER J
HEARD:   14 MARCH 2024
DELIVERED          :   20 MAY 2024
FILE NO/S:   SJA 1081 of 2023
BETWEEN:   YZA
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1081 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE TAVENER
File Number            :   MC ARM 11646 of 2022

Catchwords:

Criminal law - Single judge appeal - Whether learned magistrate erroneously found that parenting agreement contained a provision for removal of a child by one parent from the care of another at the request of the child - Whether learned magistrate erred by failing to comply with s 39G of the Evidence Act 1906 (WA) in giving reasons inconsistent with how a jury would have been directed in accordance with s 39F

Legislation:

Criminal Code Act Compilation Act 1913 (WA)
Evidence Act 1906 (WA)
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal is granted on ground 1 and ground 2
Appeal allowed
Conviction and sentences set aside
Order as to costs set aside

Matter remitted to Magistrates Court

Category: B

Representation:

Counsel:

Appellant	:	Mr W Yoo and Mr R Napper
Respondent	:	Mr J F Bennett

Solicitors:

Appellant	:	Aboriginal Legal Service of Western Australia
Respondent	:	State Solicitor's Office of Western Australia

Cases referred to in decision:

Kritskikh v Director of Public Prosecutions [2022] WASC 130
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

On 25 August 2023, the appellant was convicted after trial of an offence that on 17 December 2022 she unlawfully assaulted the complainant in circumstances of aggravation, namely being in a family relationship with the complainant, contrary to s 313(1)(a) of the Criminal Code (WA).
The appellant was sentenced to a fine of $1,000, and was ordered to pay costs in the amount of $137. The learned magistrate made a spent conviction order.
The appellant has appealed against her conviction.
For the reasons which follow, leave to appeal should be granted, the appeal allowed and the conviction and sentence set aside. The matter will be remitted to the Perth Magistrates Court before a different magistrate to be heard according to law.

Trial

Prosecution case

The prosecution opened as follows:[1]
Saturday, 17 December 2022, about 11.12 pm the [complainant] has attended 121 Victoria Road, High Wycombe, which is the home address of the accused. They are separated and share two children together. The [complainant] received information that caused him to be concerned for the welfare of the children, sir, so he has attended to collect them from the address. On arrival, the accused has exited the address, been abusive towards the [complainant] whilst he was collection the children (sic) … as well as the children's property. The accused has followed the [complainant] and subsequently assaulted him whilst he was trying to get the children and their property in the car to leave.…

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

Case: [2024] WASC 187
Decision Date: 20 MAY 2024

CaseChat Overview and Summary

In the matter of Yza v WA Police, the respondent sought a single judge appeal against a decision of the Magistrates Court of Western Australia. The appeal centred on a parenting agreement which the magistrate found contained a provision allowing one parent to remove a child from the care of the other at the request of the child. The dispute was whether the magistrate was correct in finding this provision and whether the magistrate had erred in not complying with section 39G of the Evidence Act 1906 (WA) by giving reasons inconsistent with how a jury would have been directed under section 39F.

The court was required to determine whether the magistrate's interpretation of the parenting agreement was correct and whether the magistrate failed to comply with the statutory obligation to provide reasons that align with jury directions. The appeal also raised the question of whether the magistrate's failure to comply with section 39G constituted an error that affected the outcome of the case.

The court held that the magistrate's interpretation of the parenting agreement was erroneous as there was no provision permitting the removal of the child by one parent at the child's request. The court further found that the magistrate did not comply with section 39G by providing reasons inconsistent with how a jury would have been directed under section 39F. This non-compliance was considered a significant error that affected the outcome of the case. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for reconsideration.

The court ordered that the decision of the Magistrates Court be set aside and the matter be remitted for reconsideration in light of the findings and errors identified.

Orders