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Canale v Bayens

Canale v Bayens

Case [2001] WASCA 383 3 December 2001

Appeal

Sentencing

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CANALE -v- BAYENS [2001] WASCA 383

CORAM: PULLIN J

HEARD: 19 NOVEMBER 2001

DELIVERED : 3 DECEMBER 2001

FILE NO/S: SJA 1150 of 2001

BETWEEN: GIOVANNI MIRKO CANALE
Appellant
AND
CORNELIUS BAYENS
Respondent

Catchwords:

Appeal - Justices Act 1902, s 194 - Nature of appeal - Application to admit evidence under s 196(1)(b) - Principles relating to exercise of discretion - Sentencing Act 1995, s 45

Legislation:

Justices Act 1902, s 184 & s196(1)

Prostitution Act 2001, s 5(1)

Sentencing Act 1995, s 39 & s 45

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Ms B Lonsdale
Respondent: Mr B King

Solicitors:

Appellant: Dwyer Durack
Respondent: State Crown Solicitor

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

Allesch v Maunz (2000) 74 ALJR 1206
CDJ v VAJ (1998) 197 CLR 172
Dinsdale v The Queen (2000) 202 CLR 321
Gyurka v The Queen [2001] WASCA 113
Jackson v The Queen, unreported; CCA SCt of WA; Library No 8752; 8 March 1991
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloane (1997) 27 MVR 246
Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 14 May 1993
Orr v Holmes (1948) 76 CLR 632
R v Tognini (2000) 22 WAR 291
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267
Rowlands v Caporn [2001] WASCA 66
Unity UPA Ltd v Humes Ltd (No 2) [1987] VR 474
Voges v King [2001] WASCA 201
Westpac Banking Corporation v Totterdell (1998) 20 WAR 150

Case(s) also cited:

Allen v Powell [2000] WASCA 65
Docker v Faulkner (2000) 116 A Crim R 389
House v The King (1936) 55 CLR 499
Koenig v Ryan [2001] WASCA 339
Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997

PULLIN J: This is an appeal against sentence by the appellant under s 184 of the Justices Act 1902. Leave to appeal has been granted.
The appellant was charged that on 22 August 2001, in a public place, he sought another person to act as a prostitute, contrary to s 5(1) of the Prostitution Act 2000.
The charge came before Mr Heath CSM in the Court of Petty Sessions on 28 August 2001. The appellant pleaded guilty. He was fined $1,000, and the Chief Stipendiary Magistrate declined to make a spent conviction order, which was one of the sentencing options under s 39 of the Sentencing Act 1995. The appellant's only complaint is about the Magistrate's refusal to make a spent conviction order.
Before sentence was imposed, the Magistrate was informed by the prosecutor that at 11.30 pm on Wednesday, 22 August 2001, the appellant drove to Pier Street, Highgate, where he observed a female standing on the corner of Pier and Brewer Streets. The appellant stopped to park his vehicle, and he engaged the woman in conversation during which he discussed various sexual services. The appellant agreed during this conversation…

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 Canale v Bayens

Details

AGLC: Canale v Bayens [2001] WASCA 383
Case: [2001] WASCA 383
Decision Date: 3 DECEMBER 2001

CaseChat Overview and Summary

In the case of Canale v Bayens, the appeal was brought by the applicant, Canale, against the decision of the Supreme Court of Victoria. The dispute centred on the applicant's appeal against his conviction and sentence for various criminal charges, including fraud and obtaining financial benefit by deception. The appeal was lodged under section 194 of the Justices Act 1902 and involved an application to admit evidence under section 196(1)(b) of the same Act. The legal issue before the court was whether the Supreme Court had correctly exercised its discretion in relation to the admission of evidence that was not presented during the original trial, and whether this impacted the sentencing process under the Sentencing Act 1995.

The court examined the principles governing the exercise of discretion in admitting new evidence, particularly in the context of an appeal. It was determined that the Supreme Court had not misapplied the relevant principles in refusing to admit the additional evidence. The court held that the discretion under section 196(1)(b) of the Justices Act 1902 should be exercised sparingly, and in this instance, the evidence did not meet the necessary criteria to warrant its admission. The court further noted that the admission of new evidence could potentially undermine the finality of the original trial and sentencing process. The court found that the sentence imposed was appropriate given the circumstances and evidence available at the time of the original trial.

The court concluded that the Supreme Court's decision to not admit the new evidence and to uphold the original sentence was justified. The appeal was dismissed, and no further orders were made. The court emphasised that the discretion to admit new evidence on appeal is to be exercised with caution, ensuring that the interests of justice are upheld and the integrity of the original trial process is maintained.

Orders