Canale v Bayens

Case [2001] WASCA 383


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

  1. 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.

  2. 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.

  3. 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.

  4. 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…

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Canale v Bayens [2001] WASCA 383
Case
[2001] WASCA 383
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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.

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