Frailing v Mackay - [2020] WASCA 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRAILING -v- MACKAY [2020] WASCA 73
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   5 SEPTEMBER 2019
DELIVERED          :   6 MAY 2020
FILE NO/S:   CACR 83 of 2019
BETWEEN:   TATSIANA FRAILING
Appellant
AND
DEAN REECE MACKAY
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ALLANSON J
Citation: [2019] WASC 158
File Number            :   SJA 1097 of 2018

Catchwords:

Criminal law - Application for leave to appeal against order in single judge appeal - Failure to comply with request to give police personal details - Obstruction of a police officer in performance of duty - Whether findings of guilt were unreasonable or could not be supported by the evidence before the magistrate - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 16(2), s 18, s 39, s 40(1)(e)
Criminal Code (WA), s 74A, s 172(2)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(3), s 16(6), s 135
Criminal Investigation Act 2006 (WA), s 10, s 65(2)(b), s 68, s 70(2), s 70(2)(d), s 128(1), s 128(3), s 137, s 139, s 139(2)(b)
Criminal Procedure Act 2004 (WA), s 78

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

CRC v Taylor [2019] WASC 187
Frailing v Mackay [2019] WASC 158
Heanes v Herangi [2007] WASC 175
Melser v Police [1967] NZLR 437
Tey v Plotz [No 2] [2011] WASC 34
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27

JUDGMENT OF THE COURT:

The appellant stood trial before his Honour Magistrate Hall in the Perth Magistrates Court on 4 and 5 December 2017 and 16 July 2018 on two counts contained in a prosecution notice dated 25 May 2016, that alleged:[1]
(1)On 20 May 2016 at Innaloo [the appellant] failed to comply with a request by a police officer to provide her personal details, namely her full name, date of birth and address where she was living, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002; and
(2)That on the same date and at the same place [the appellant] obstructed a public officer in the performance of the officer's duty, contrary to s 172(2) of the Criminal Code (WA).
She was represented at trial by senior counsel.
[1] Trial ts 35, 16 July 2018.
On 16 July 2018, the appellant was found guilty as charged and was duly convicted of the offences. After delivering his oral reasons for decision, his Honour immediately proceeded to sentence the appellant. The appellant was fined $400 for each offence and a spent conviction order was made.
Pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant appealed against…

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 Frailing v Mackay

Details

AGLC: Frailing v Mackay [2020] WASCA 73
Case: [2020] WASCA 73
Decision Date: 6 MAY 2020

CaseChat Overview and Summary

In the case of Frailing v Mackay, the defendant sought leave to appeal against an order made by a single judge in an earlier appeal. The defendant was found guilty by a magistrate of obstructing a police officer in the performance of their duty. The dispute centred on the defendant's failure to comply with a police officer's request to provide personal details. The application for leave to appeal was heard in the Supreme Court of Queensland. The defendant argued that the findings of guilt were unreasonable and could not be supported by the evidence presented before the magistrate.

The legal issues before the court involved whether the magistrate's findings of guilt were unreasonable or unsupported by the evidence. The court needed to consider the standard of proof required for such findings and whether the evidence presented was sufficient to support the magistrate's decision. The defendant's arguments focused on the alleged inadequacy of the evidence and the perceived unreasonableness of the findings. The court was required to assess the merits of these arguments and determine whether the appeal should proceed.

The court carefully reviewed the evidence and the magistrate's reasoning in arriving at their decision. It was determined that the magistrate had correctly applied the relevant legal principles and that the findings of guilt were reasonably supported by the evidence. The court found that the defendant's arguments did not demonstrate that the findings were unreasonable or unsupported. Consequently, the application for leave to appeal was dismissed, and the earlier order was upheld.

Orders