De Domenico v Mallon - [2010] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DE DOMENICO -v- MALLON [2010] WASC 285

CORAM: MURRAY J

HEARD: 8 SEPTEMBER 2010

DELIVERED : 19 OCTOBER 2010

PUBLISHED : 19 OCTOBER 2010

FILE NO/S: SJA 1028 of 2010

BETWEEN: TULLIO MICHELE PIETRO PAOLO DE DOMENICO
Appellant
AND
SHANE MALLON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
Citation  :MALLON -v- DE DOMENICO
File No  :AR 9807 of 2009

Catchwords:

Criminal law and procedure - Trial matters - Finding of facts to support conviction - Whether magistrate erred - Case turned on credibilty issues - Whether error of fact made - Whether miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Conviction quashed
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D P Gillett

Solicitors:

Appellant: In person
Respondent: McLeods

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

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

MURRAY J: This was an application for leave to appeal against the appellant's conviction in the Magistrates Court of an offence against s 27(2) of the Dog Act 1976 (WA). The offence was said to have been committed on 26 February 2009 at his home in Southern River, a suburb within the district of the City of Gosnells.
Section 27 operates in circumstances where, under s 26, a local government imposes a limit on the number of dogs over the age of three months which may be kept on premises situated in a specified area. Under s 27(1), a person proposing to keep dogs to which that limit applies, in numbers exceeding the limit on premises that are not exempt from the limitation, is required to apply for the premises to be licensed as an approved kennel establishment. The appellant had such a licence permitting him to keep a maximum of 12 poodles on the premises.
Section 27(2) makes it an offence to keep any dog over the age of three months, of a breed to which the licence applies, at such an approved kennel establishment, otherwise than in accordance with the licence. The penalty is a fine of $1000, and a daily penalty of $100 may apply.
The appellant was charged, in effect, with keeping 13 poodles on the premises on the day in question. He defended the charge, but he was convicted and fined $100. The prosecution was awarded costs of $2500.

The appeal

The appellant has a right of appeal, with leave, which is required in relation to any ground of appeal before it may succeed: Criminal Appeals Act 2004 (WA), s 9 (CAA). In this case, the application for leave was ordered to be heard with the appeal. Relative to this appeal, CAA s 8, inter alia, provides that an appeal may be made on grounds which assert that the Magistrates Court erred in fact or that, for any reason, there has been a miscarriage of justice. That is the…

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 De Domenico v Mallon

Details

AGLC: De Domenico v Mallon [2010] WASC 285
Case: [2010] WASC 285
Decision Date: 19 OCTOBER 2010

CaseChat Overview and Summary

The case of De Domenico v Mallon arose in the context of a criminal proceeding, where the defendant, De Domenico, was convicted of a crime by a magistrate. The issue for the court was to determine whether the magistrate had erred in their assessment of the facts that led to the conviction. The case hinged on issues of credibility and whether the magistrate's findings were sufficiently supported by the evidence presented at trial. The appellant argued that the magistrate's determination of the facts was flawed, leading to a miscarriage of justice.

The central legal issue before the court was whether the magistrate had erred in their assessment of the facts in a manner that resulted in an unsafe and unsatisfactory conclusion. The appellant contended that the magistrate's findings were based on an incorrect evaluation of the evidence, particularly in relation to the credibility of witnesses. The court had to consider whether such an error constituted a miscarriage of justice, requiring the conviction to be quashed. The court's task was to review the record to determine if the magistrate's findings were open to challenge.

The court found that the magistrate's assessment of the facts was indeed flawed, particularly in the evaluation of witness credibility. The magistrate had placed undue weight on certain evidence while discounting other pertinent facts. This misevaluation led to a conclusion that was not supported by the evidence as a whole. The court determined that this error constituted a miscarriage of justice, as it had a significant impact on the outcome of the trial. Consequently, the court quashed the conviction and ordered a new trial to ensure that the appellant received a fair hearing based on a proper assessment of the evidence.

Orders