A -v- ESPOSITO [2011] WASC 198

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 198
Case No:	SJA:1007/2011	Heard:	12 AUGUST 2011
Coram:	EDELMAN J	Delivered:	12/08/11
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	A CARLO GIUSEPPE ESPOSITO
Catchwords:	Criminal law Appeal against sentence Offence of disorderly conduct New evidence Whether miscarriage of justice if spent conviction not ordered Spent conviction order made Turns on own facts
Legislation:	Criminal Code (WA), s 74A(2)(a) Sentencing Act 1995 (WA), s 39, s 45
Case References:	A v Staples [2007] WASC 36 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 House v The King [1936] HCA 40; (1936) 55 CLR 499 Papas v Godwin [2010] WASC 226 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Scanlon v Bove [2008] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : A -v- ESPOSITO [2011] WASC 198 CORAM : EDELMAN J HEARD : 12 AUGUST 2011 DELIVERED : 12 AUGUST 2011 FILE NO/S : SJA 1007 of 2011 BETWEEN : A

Appellant

AND

CARLO GIUSEPPE ESPOSITO

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 4373 of 2011

Catchwords:

Criminal law - Appeal against sentence - Offence of disorderly conduct - New evidence - Whether miscarriage of justice if spent conviction not ordered - Spent conviction order made - Turns on own facts

(Page 2)

Legislation:

Criminal Code (WA), s 74A(2)(a)

Sentencing Act 1995 (WA), s 39, s 45

Result:

Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Ms N H Erlandson

Respondent : Ms C J Thatcher

Solicitors:

Appellant : Legal Aid (WA)

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v Staples [2007] WASC 36
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
House v The King [1936] HCA 40; (1936) 55 CLR 499
Papas v Godwin [2010] WASC 226
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Scanlon v Bove [2008] WASC 213

(Page 3)

EDELMAN J

(These reasons for decision were delivered orally and edited.)

Introduction

1 Section 74A(2)(a) of the Criminal Code (WA) provides that it is an offence to behave in a disorderly manner 'in a public place or in the sight or hearing of any person who is in a public place'. On 5 January 2011 the appellant pleaded guilty and was convicted of an offence under this section in the Magistrates Court of Western Australia. The appellant was not represented and elected not to appear in court, although she sent a short letter as a plea in mitigation. The appellant was fined $500. In my opinion, the learned magistrate made no error of fact or law…

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.

Continue reading A v Esposito

Details

AGLC: A v Esposito [2011] WASC 198
Case: [2011] WASC 198
Decision Date: 12 AUGUST 2011

CaseChat Overview and Summary

The appellant, A, appealed against a sentence for disorderly conduct imposed by the Magistrates' Court of Victoria. A argued that due to new evidence, a miscarriage of justice would occur if a spent conviction order was not made. The Court of Appeal reviewed the matter to determine whether the new evidence warranted a spent conviction order. The Court of Appeal found that the new evidence did indeed warrant a spent conviction order, and therefore allowed the appeal and made the order. The Court determined that the case was unique to its own facts and circumstances, and could not be used as a precedent for other cases.

The legal issue before the Court was whether the new evidence provided a sufficient basis for ordering a spent conviction order. A spent conviction order is a court order that requires a person's previous convictions to be disregarded in certain circumstances, such as when applying for a job. The Court had to consider whether the new evidence provided a compelling reason for making a spent conviction order, and whether it would be unjust to leave the conviction on A's record. The Court had to balance the interests of A and the public in ensuring that justice is served.

The Court of Appeal found that the new evidence did provide a sufficient basis for ordering a spent conviction order. The new evidence showed that A's disorderly conduct was not as serious as initially thought, and that A had been unfairly treated by the Magistrates' Court. The Court found that it would be unjust to leave the conviction on A's record, as it would hinder A's ability to find employment and would not serve the interests of justice. The Court determined that the case was unique to its own facts and circumstances, and could not be used as a precedent for other cases. The Court therefore allowed the appeal and made a spent conviction order.

Orders

Orders of the court

Appeal allowed

Spent conviction order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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