Jun. 20th, 2010

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Maslin v Searle [2010] WASC 146
heard 4 February 2010; delivered 18 June 2010

This was an appeal against a stealing conviction in the Magistrate's Court. The appellant claimed a number of errors of law.

A man returned to his house on 20 May 2008 to find it had been burgled. Shortly afterwards the police, who recognised the appellant, saw him near the burgled house and called him over. He ran away. Eventually, the police caught him and found him in possession of the stolen property.

[13] Constable Searle then had a conversation with Constable Hogben, and, after a search in the general area first by Constable Hogben and then by the two police officers, they located the appellant, at a car park at a shopping centre close by the medical premises. The appellant was seen crouched down behind a motor vehicle in the car park. Constable Hogben approached the appellant, who ran off. Constable Hogben caught the appellant, of whom he at no point lost sight, in the drive way of units nearby. Shortly thereafter the appellant was arrested and cautioned.

The appellant was convicted on circumstantial evidence. He claimed that there was reasonable doubt as to whether he was guilty of the offence he was charged with (s 378 stealing): it had not been established that he stole the property. Instead, he may have received it knowing it had been stolen (s 414).

Simmonds J applied the following test:

[22] [T]he test to apply to the grounds was whether or not it was reasonably open to the learned magistrate to conclude that the charges for the burglary offence and for the stealing offence had been proved beyond reasonable doubt, on the basis that the only rational or reasonable inference open to him was that the offender was guilty of those offences. [emphasis added]
[W]here a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, then it may be evidence either of stealing or of feloniously receiving.
Gilson v The Queen [1991] HCA 24 per McHugh J

Considering all the circumstances of the case, however (the appellant's suspicious behaviour and unexplained possession of stolen property), the appeal was dismissed.

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Ives v Lim [2010] WASC 122
heard 31 March 2010; delivered 1 June 2010

This case involved alleged defamation on LiveJournal. The plaintiff, against whom the defendant had a restraining order, initiated legal proceedings on 24 July 2009, then failed to appear at the hearing on 25 November 2009. His claims were summarily dismissed and he was ordered to file a statement of claim. He then failed to appear at the next hearing on 20 January 2010, but elected to make an appearance in person at the third hearing on 4 February 2010.

[11] On 17 March 2010 the plaintiff issued a subpoena to the defendant to produce documents identifying all previous friends of Live Journal Account '[livejournal.com profile] youramazin' to the specific details' there enumerated.

He also sought "[a]n application for leave to have a judicial discovery order served on a third party in Russia [LiveJournal]". The alleged defamatory material included:

[26] ... a publication entitled 'wow, saturday night totally topped the night i had 3 bottles of wine' published on 14 April 2008 on the defendant's web page 'youramazin'. It is pleaded that the publication included the words:

wow, Saturday night totally topped the night I had 3 bottles of wine it started off with me harassing charlie who is my favourite blind tabby cat (he has socks!)
a lot of vodka, one bus and a toilet later, dj who flirts with me and plays apologise just for me gave my friend 3 tickets to exposed. bahahaha. a silly faggot tries to start a fight with us because he is insane. i went into a psychotic rage for 5 minutes because I am insane. then we left and my other friend digs through the bushes - voila! bottle of vodka! at a new club, i somehow met this guy. i think i was leaving the toilets and ran into him (wouldn't be surprised if I actually RAN into him). left with him, denied entry into another club. tried again, denied again, nearly got into a fight with the fucktard bouncer. go to another club. barmaid refuses to serve me, ahah. guy gives me his drinks later we leave and for some reason I thought to GET to the city, you had to walk AWAY from the city. i remember crossing the freeway and jumping a fence. then we gave up and got a taxi. he was cutely asking if he could come to mine and that he'd be really quiet and hide under the bed. i was like 'haha, that's cute, but no'

i got home, made fettucine, watched house and went to sleep.

THE END

The plaintiff did not put forward any argument suggesting that he is the person referred to in the LiveJournal post. Other supposedly defamatory material included "a publication on the same web page on 20 May 2008 entitled 'hahahahaha'" and "a further publication on the same website on 17 June 2008 entitled 'I'm not even going to try and write this in some kind of coherent manner'". The plaintiff was unhappy because "[t]he publication mocks the plaintiff and suggest [sic] he is foolish and an ignorant insincere uncouth person."

[38] Paragraph 14 refers to a further publication on the defendant's 'youramazin' website. The words published are not set out. The very words complained of are the material facts in a defamation action and must be set out in the statement of claim. The paragraph says that the publication contained a large photo of a pet rabbit purchased by the plaintiff by the defendant (sic) and is said to highlight the deception the plaintiff was allowed to live under by the defendant and the complete disregard for the plaintiff's feelings. The pleading fails to set out the words complained of, that the words refer to the plaintiff or the defamatory meaning which is said to arise from them.

The plaintiff's statement of claim was struck out because it was "so confused and cluttered with irrelevancies that it is impossible clearly to make out the case ... The plaintiff may have an actionable case but he has failed to plead it in a way that makes clear the case he wishes to advance."

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You should not rely on these case notes for any purpose. They contain my views at the time they were written. They do not represent my employer's views, and may be outdated or differ from my current views.