Berkmann v Green - [2023] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BERKMANN -v- GREEN [2023] WASC 107
CORAM:   FORRESTER J
HEARD:   20 FEBRUARY 2023
DELIVERED          :   5 APRIL 2023
FILE NO/S:   SJA 1006 of 2022
BETWEEN:   SIEGLINDE MARIE BERKMANN
Appellant
AND
KYLIE RAE GREEN
Respondent

ON APPEAL FROM:
For File No:   SJA 1006 OF 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HOLGATE
File Number            :   AR 3628 - 3629 OF 2021

Catchwords:

Criminal Law - Single judge appeal - Appeal against conviction - Whether miscarriage of justice resulted from non‑disclosure on part of prosecution - Whether verdict was unsafe or unsupported by the evidence - Whether miscarriage of justice resulted from mistaken belief the appellant was complying with the order

Criminal Law - Single judge appeal - Appeal against sentence - Whether prohibition order failed to be in sufficiently clear terms - Whether sentence imposed was manifestly excessive

Legislation:

Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Application for extension of time allowed in relation to appeal against sentence
Leave to appeal against conviction is dismissed on all grounds
Leave to appeal against sentence on ground 1 is refused
Leave to appeal against sentence is granted on ground 2
The appeal is allowed in relation to ground 2
The prohibition order in relation to charge AR 3628/2021 is amended
The sentence in relation to charge AR3629/2021 is set aside and the appellant is resentenced

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	I Weldon & R H Harris

Solicitors:

Appellant	:	In Person
Respondent	:	RSPCA WA

Cases referred to in decision:

CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126
Holding v Parkin [2012] WASC 113
House v R [1936] HCA 40; (1936) 55 CLR 499
Hunt v Russell [2019] WASC 284
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
NYL v The State of Western Australia [2022] WASCA 41
Pickett v The State of Western Australia [2004] WASCA 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

On 15 March 2021, the appellant was charged with offences that she:
(1)between 14 March 2020 and 14 May 2020 at Jelcobine, being a person in charge of an animal, namely a female chestnut horse known as 'KG01 or Remi', on or about 14 May 2020, was cruel to that horse, contrary to s 19(1) and s 19(3)(d) of the Animal Welfare Act 2002 (WA) (Animal Welfare Act) (AR 3628/2021); and
(2)between 13 January 2021 and 15 March 2021 at Jelcobine, having on 30 October 2020 in the Armadale Magistrates Court been made the subject of an order pursuant to s 55(1) of the Animal Welfare Act prohibiting her from being in charge of, or in contact with, all livestock for…

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 Berkmann v Green

Details

AGLC: Berkmann v Green [2023] WASC 107
Case: [2023] WASC 107
Decision Date

CaseChat Overview and Summary

Sieglinde Marie Berkmann appealed against both her conviction and sentence in the Magistrates Court of Western Australia. The appeal was heard by Justice Forrester in the Supreme Court of Western Australia. The appeal against conviction was dismissed in all respects. The appeal against sentence was allowed on one of two grounds. The prohibition order in relation to charge AR 3628/2021 was amended. The sentence in relation to charge AR 3629/2021 was set aside and the appellant was resentenced. The court found that the appellant's lack of understanding of the prohibition order was not a sufficient basis for a finding of a miscarriage of justice. The court found that the sentence of imprisonment imposed in relation to charge AR 3629/2021 was manifestly excessive. The appellant was resentenced to a suspended fine of $2,000, suspended for three months.

Orders