DOUGLAS -v- MUSCAT [2005] WASCA 46

Link to Appeal :

[2006] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 46
Case No:	SJA:1074/2003	Heard:	5 APRIL 2004
Coram:	JOHNSON J	Delivered:	16/03/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed Magistrate's decision to be set aside Matter remitted to Magistrate for further decision
Category:	B
PDF Version

Parties:	TREVOR JOHN DOUGLAS MARIO MUSCAT CLASSIQUE HEALTH PRODUCTS PTY LTD
Catchwords:	Criminal law and procedure Appeal against dismissal of charges on basis of no case to answer Censorship offences Possession of video tapes of films with intent to sell Challenge at trial as to direct evidence of contents of the video tapes Prosecution submission that trier of fact view the tapes Whether error in not viewing the tapes and consequent finding of no case to answer
Legislation:	Censorship Act 1996 (WA), s 7, s 81(2)(b), s 115, s 141(3)(a) Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5, s 25, s 87
Case References:	Draper v The Queen [2000] WASCA 160 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Bilick & Anor (1984) 36 SASR 321 R v Murphy (1985) 4 NSWLR 42 Robinson v Vanston [1999] VSC 541 Wilton & Co v Phillips (1903) TLR 390 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DOUGLAS -v- MUSCAT [2005] WASCA 46 CORAM : JOHNSON J HEARD : 5 APRIL 2004 DELIVERED : 16 MARCH 2005 FILE NO/S : SJA 1074 of 2003 MATTER : Justices Act 1902 (WA) BETWEEN : TREVOR JOHN DOUGLAS

Appellant

AND

MARIO MUSCAT

Respondent

FILE NO/S : SJA 1075 of 2003 MATTER : Justices Act 1902 (WA)

BETWEEN : TREVOR JOHN DOUGLAS

Appellant

AND

CLASSIQUE HEALTH PRODUCTS PTY LTD

Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR J R PACKINGTON SM

File No : PE 11019-21 of 2002, PE 11023 of 2002

Catchwords:

Criminal law and procedure - Appeal against dismissal of charges on basis of no case to answer - Censorship offences - Possession of video tapes of films with intent to sell - Challenge at trial as to direct evidence of contents of the video tapes - Prosecution submission that trier of fact view the tapes - Whether error in not viewing the tapes and consequent finding of no case to answer

Legislation:

Censorship Act 1996 (WA), s 7, s 81(2)(b), s 115, s 141(3)(a)

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5, s 25, s 87

Result:

Appeal allowed

Magistrate's decision to be set aside
Matter remitted to Magistrate for further decision

Category: B

(Page 3)

Representation:

SJA 1074 of 2003

Counsel:

Appellant : Mr D J Matthews

Respondent : Mr T F Percy QC & Mr N J Mullany

Solicitors:

Appellant : State Solicitor

Respondent : D G Price & Co

SJA 1075 of 2003

Counsel:

Appellant : Mr D J Matthews

Respondent : Mr T F…

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 Douglas v Muscat

Details

AGLC: Douglas v Muscat [2005] WASCA 46
Case: [2005] WASCA 46
Decision Date: 16 MARCH 2005

CaseChat Overview and Summary

In the case of Douglas v Muscat, the appellant was convicted of possessing video tapes of films with the intent to sell. The conviction was made in the Magistrates Court, and the appellant has appealed the dismissal of the charges on the basis that there was no case to answer. The central issue in this appeal was whether the trial magistrate erred in not viewing the video tapes that were central to the prosecution's case, and whether this non-viewing led to an incorrect finding that there was no case to answer.

The court examined whether the magistrate should have viewed the video tapes to properly assess the evidence. The prosecution argued that the trier of fact should view the tapes to determine the contents accurately, which would provide direct evidence of the films' nature. The appellant contended that the magistrate's failure to view the tapes resulted in an incorrect decision that there was no case to answer. The court considered whether the magistrate's omission constituted a legal error that required the setting aside of the decision and the remitting of the matter for a further decision.

The court concluded that the magistrate indeed erred by not viewing the video tapes, as this omission prevented a proper assessment of the evidence. The court found that the magistrate's failure to view the tapes led to an incorrect determination that there was no case to answer. Consequently, the court allowed the appeal and set aside the magistrate's decision. The matter was remitted to the magistrate for further consideration, allowing the magistrate to properly assess the evidence by viewing the video tapes.

Orders

Orders of the court

Appeal allowed

Magistrate's decision to be set aside

Matter remitted to Magistrate for further decision

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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