SAB vs. Director of Public prosecution for Western Australia - (17 Feb 2023)

Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding

Criminal

The Appellant was charged with one count of assaulting a public officer who was performing a function of his office, contrary to Section 318(1)(d) of the Criminal Code. He entered a plea of not guilty to that charge and was tried before a magistrate in the Children's Court. On 20 July 2022, the appellant was found not guilty of that charge. However, the learned magistrate found the appellant guilty of an offence of common assault, contrary to Section 313 of the Code. The Appellant was placed on a juvenile good behaviour bond in an amount of $100 for a period of 4 months. On 9 August 2022, the appellant filed an appeal notice in this court. The sole ground of appeal that is relied upon by the appellant is that the learned magistrate erred in law by entering a conviction of an offence of common assault in circumstances in which that offence was not a statutory alternative to the offence that was actually charged.

Pursuant to Section 7(1) of the Criminal Appeals Act, 2004, a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. Relevantly, for the purposes of this matter, a 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge. Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.

Section 318(1)(d) is the provision of the Code that creates the offence of assaulting a public officer. However, and somewhat curiously, that provision does not, and did not at the time the magistrate found the appellant guilty of the offence of common assault, provide for any alternative offences. It is also not suggested that there exists 'another written law' that provides for an alternative offence for an offence of assaulting a public officer. It was not open to the magistrate to convict the appellant of an alternative offence of common assault. Having found the appellant not guilty of the offence charged, the only course open to the magistrate was to enter a judgment of acquittal. The judgment of conviction should be set aside. Appeal allowed.

Tags : ASSAULT CONVICTION LEGALITY