CULVERWELL -v- GINBEY [2016] WASC 3 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 3 (S)
Case No:	SJA:1076/2014	Heard:	ON THE PAPERS
Coram:	CORBOY J	Delivered:	8/09/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application to vary reimbursement order dismissed
Category:	B
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Parties:	ADELE CULVERWELL KEITH NEVILLE GINBEY
Catchwords:	Criminal law Appeal s 55 of the Animal Welfare Act 2002 (WA) Whether appeal court can vary reimbursement order made following conviction
Legislation:	Animal Welfare Act 2002 (WA), s 55
Case References:	Culverwell v Ginbey [2016] WASC 3 Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : CULVERWELL -v- GINBEY [2016] WASC 3 (S) CORAM : CORBOY J HEARD : ON THE PAPERS DELIVERED : 8 SEPTEMBER 2016 FILE NO/S : SJA 1076 of 2014 BETWEEN : ADELE CULVERWELL

Appellant

AND

KEITH NEVILLE GINBEY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R S HUSTON

File No : PE 18751 of 2013

Catchwords:

Criminal law - Appeal - s 55 of the Animal Welfare Act 2002 (WA) - Whether appeal court can vary reimbursement order made following conviction

Legislation:

Animal Welfare Act 2002 (WA), s 55

Result:

Application to vary reimbursement order dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : Ross Christoforou

Respondent : Jackson McDonald

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

Culverwell v Ginbey [2016] WASC 3
Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386

1 CORBOY J: The appellant was convicted of the offence that, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to s 19(1) and s 19(3)(b)(ii) of the Animal Welfare Act 2002 (WA). She was fined $5,000 and ordered to pay legal and care costs. An order was also made that her dog, 'Roxy', be forfeited to the Crown (s 55(2)(c)(ii) of the Act).

2 The appellant appealed from her conviction. Her amended appeal notice pleaded 16 proposed grounds of appeal. A further proposed ground of appeal was added to the notice immediately prior to the hearing of the appeal.

3 I granted leave to appeal on proposed grounds 4 - 6 and the proposed additional ground. However, I dismissed the appeal on those grounds. I further found that none of the remaining proposed grounds of appeal had a reasonable prospect of success. Accordingly, leave to appeal on those grounds was refused: Culverwell v Ginbey [2016] WASC 3.

4 The respondent has now applied for an order under s 55(2)(f) of the Animal Welfare Act seeking to vary an order made by the presiding magistrate pursuant to that section. I have concluded that the application should be refused for the reasons that follow.

The Animal Welfare Act

5 Section 40 of…

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 Culverwell v Ginbey

Details

AGLC: Culverwell v Ginbey [2016] WASC 3 (S)
Case: [2016] WASC 3 (S)
Decision Date: 8 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Culverwell v Ginbey involved an appeal against a reimbursement order made following a conviction under section 55 of the Animal Welfare Act 2002 (WA). The respondent, Culverwell, had been convicted for failing to provide adequate care for an animal, resulting in a penalty which included a reimbursement order. The applicant, Ginbey, sought to vary this order, arguing that the amount was excessive and unjust. The case was heard by the Supreme Court of Western Australia.

The central legal issue was whether the appeal court had the authority to modify the reimbursement order that had been made in the original conviction. Specifically, the court needed to determine if it was appropriate for the appellate court to intervene in such a matter, given the nature of the original order and the context in which it was imposed. The court also needed to consider the principles of finality and the extent to which the original decision-maker's discretion should be respected.

The court held that the appeal court does not have the authority to alter a reimbursement order made as part of a criminal conviction under section 55 of the Animal Welfare Act 2002 (WA). The court reasoned that the original decision-maker, in this case the Magistrates Court, had already exercised its discretion in setting the amount of the reimbursement. This decision was considered to be final and not subject to alteration by the appellate court. The appeal court underscored the importance of maintaining the integrity of the original sentencing process and the principle that an appellate court should not substitute its discretion for that of the original decision-maker unless there is a clear error in the exercise of discretion. The application to vary the reimbursement order was therefore dismissed.

Orders

Orders of the court

Application to vary reimbursement order dismissed

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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