Et v. Driscoll - (24 Dec 2018)

Leave to appeal is required for each ground of appeal

Criminal

The Appellant applies for leave to appeal against his conviction in the Children's Court of Western Australia of one count of burglary and one count of stealing arising out of a single incident at the Degrees Restaurant in Broome on 16 November 2017. The Appellant was convicted of those offences by a Magistrate following the conclusion of a trial which took place on 31 January 2018.

Section 9(1) of the Criminal Appeals Act, 2004 (WA) (the Act) stipulates that leave to appeal is required for each ground of appeal. Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success, meaning that the ground has a rational and logical prospect of succeeding. The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal.

The error made by the Magistrate as to the location of the broken bottle was not material. This is because the significance of the broken bottle did not lie in its exact location but rather in the fact that it was not present when the complainant walked around the outside of the restaurant shortly before locking up but it was present when the police officers arrived at the scene. This fact supported the inference the bottle was stolen from the restaurant - it was not relevant to the critical issue being the identity of the offender. While the Magistrate did make an error, the error was immaterial to the decision to convict and accordingly there has been no substantial miscarriage of justice.

The circumstances that must be considered in this case include not only the circumstances identified by the Respondent as supporting the proposition that the appellant's guilt is the only rational inference that can be drawn but include the absence of any forensic evidence that the appellant had been inside the restaurant and the absence of any evidence that he had touched any of the other bottles that had been stolen, later abandoned and found by the investigating police officers the next morning. The absence of such evidence highlights the limited evidentiary foundation upon which the prosecution case was based.

There is a reasonable hypothesis consistent with the Appellant's innocence that has not been excluded by the prosecution, namely, that the appellant was not an offender in any capacity but was either given the bottle on which his fingerprint was found by the offenders or that it was dropped by the offenders and he picked it up and subsequently dropped it. This hypothesis can be defended against the criticism that it is conjecture or speculation on the basis that it is consistent with the absence of any forensic evidence that the appellant was inside the restaurant and the absence of any forensic evidence that he had touched any of the stolen bottles found by the police the following morning.

There was a reasonable hypothesis consistent with innocence that was not excluded by the prosecution that, the conviction was unreasonable and cannot be supported by the evidence. Te conviction is quashed. Appeal allowed.

Tags : CONVICTION EVIDENCE CREDIBILITY