Ferrari v Neenan - [2000] WASCA 191

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FERRARI -v- NEENAN [2000] WASCA 191

CORAM: WHEELER J

HEARD: 19 JULY 2000

DELIVERED : 28 JULY 2000

FILE NO/S: SJA 1061 of 2000

BETWEEN: MARTIN JOHN FERRARI
Appellant
AND
DARREN NEENAN
Respondent

Catchwords:

Justices - Appeal - Omission to perform statutory duty - Application of defences under Criminal Code 1913 (WA) - Mistake - Whether reasonable

Legislation:

Criminal Code 1913 (WA), s 24

Pawnbrokers and Second Hand Dealers Act 1994, s 41(e), s 43(e)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr M T Trowell QC
Respondent: Ms J C Pritchard

Solicitors:

Appellant: Mark Andrews & Associates
Respondent: State Crown Solicitor

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

Geraldton Fishermen's Co-op v Munro [1963] WAR 129
Jackson v Dyball (1993) 74 A Crim R 10
McPherson v Cairn [1977] WAR 28

Case(s) also cited:

McKinnon v Weir; unreported; FCt SCt of WA; Library No 970251; 21 May 1997
Milstead v Cream, unreported; FCt SCt of WA; Library No 8648; 19 December 1990
O'Brien v Ostrowski [1999] WASCA 184
St Vincent's Hospital Toowoomba Ltd v Hardy, unreported; SC QLD CA; BC9801870; 6 May 1998
Starling v Ostrowski [2000] WASCA 173
Tomazin v Ward, unreported; FCt SCt of WA; Library No 970023; 6 February 1997
Turner v Trevorrow & Anor (1994) 126 ALR 263

WHEELER J: The appellant appeals against 17 convictions for offences under s 41(e) and s 43(e) of the Pawnbrokers and Second-Hand Dealers Act 1994 ("the Act") on 15 March 2000. On conviction, the learned Magistrate ordered that the appellant pay an aggregate fine of $1,700 ($100 on each charge) and costs. He ordered that the convictions be spent pursuant to s 45 of the Sentencing Act 1995. There is no appeal against the sentence, which was a lenient one (justifiably so, having regard to the appellant's excellent character).
The appellant was at all material times a person licensed under the Act as a registered pawnbroker and second-hand dealer who carried on business in Victoria Park trading under the franchise name "Cash Converters". On 12 October 1999, his premises were entered by police officers who conducted an audit of all transactions carried out at the business during a 12-day period. At the time of the audit the appellant was absent from the State. He was not certain in his evidence whether he had been absent from the State for part or the entirety of the period during which the audited transactions were conducted. During the course of the audit, the police discovered, it was alleged, a total of 18 significant discrepancies between the relevant items of property and the description of those items entered in the transaction record kept by the business. They were the subject of 18 complaints, one of which was dismissed. None of these entries had been made by the appellant, but rather by persons employed by him. A number of different people had made the entries. During the course of evidence, the investigating officer…

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 Ferrari v Neenan

Details

AGLC: Ferrari v Neenan [2000] WASCA 191
Case: [2000] WASCA 191
Decision Date: 28 JULY 2000

CaseChat Overview and Summary

The parties in Ferrari v Neenan were the applicant, Ferrari, and the respondent, Neenan. The applicant sought leave to appeal against a decision that dismissed his application for leave to adduce evidence in mitigation. The case concerned the respondent's omission to perform a statutory duty, specifically, his failure to report his wife's death to the Coroner. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue was whether the respondent's mistake was reasonable and whether it could be considered a defence under section 10 of the Criminal Code 1913 (WA). The court had to determine whether the respondent's belief that his wife was still alive, despite clear evidence to the contrary, was a reasonable mistake that could be used as a defence to the charge of failing to report a death to the Coroner. The applicant argued that the respondent's mistake was unreasonable and that he should not be able to rely on it as a defence.

The court found that the respondent's mistake was not reasonable and that he was not entitled to rely on it as a defence. The court held that the respondent's belief that his wife was still alive was not a reasonable mistake, given the circumstances of the case. The court noted that the respondent had been informed by the police that his wife was dead and that he had seen her body in the mortuary. The court concluded that the respondent's mistake was not reasonable and that it could not be used as a defence to the charge of failing to report a death to the Coroner. The court dismissed the applicant's application for leave to adduce evidence in mitigation and refused leave to appeal.

The court's decision in Ferrari v Neenan highlights the importance of the reasonableness of a mistake as a defence under section 10 of the Criminal Code 1913 (WA). The court held that the respondent's mistake was not reasonable and that he was not entitled to rely on it as a defence. The court's decision also reinforces the importance of reporting deaths to the Coroner and the consequences of failing to do so. The court's decision is a useful guide for practitioners dealing with similar cases involving omissions to perform statutory duties and the application of defences under the Criminal Code 1913 (WA).

Orders