Frailing v Mackay - [2019] WASC 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FRAILING -v- MACKAY [2019] WASC 158
CORAM:   ALLANSON J
HEARD:   21 FEBRUARY 2019
DELIVERED          :   15 MAY 2019
FILE NO/S:   SJA 1097 of 2018
BETWEEN:   TATSIANA FRAILING
Appellant
AND
DEAN REECE MACKAY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HALL
File Number             :   PE 29459-29460/2016

Catchwords:

Criminal law - Appeal from magistrate - Where magistrate accepted evidence of prosecution witnesses and did not accept evidence of appellant - Whether error shown - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8
Criminal Code (WA), s 172
Criminal Investigation (Identifying People) Act 2002 (WA), s 16

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	MM Yeung

Solicitors:

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

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

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Stone v Braun [2015] WASCA 103

ALLANSON J:

On 16 July 2018, the appellant, Tatsiana Frailing, was convicted by Magistrate Hall of two offences, both committed on 20 May 2016:
(1)failing to comply with a request to give police personal details, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA); and
(2)obstructing a public officer, contrary to s 172(2) of the Criminal Code (WA).
Ms Frailing was fined for each offence.
Ms Frailing applied for leave to appeal on 12 grounds, which allege:
1.The police refused (ignored) to assist with a translator request inside Centrelink before the arrest took place.
2.The police did not provide a translator at the place of arrest as they understood that English is her second language.
3.The police provoked the arrest and an arbitrary arrest took place.
4.The police calling her Natasha was cruel, inhuman and degrading treatment toward her outside of Centrelink and as a result of this, she was injured. In the police station the police forcibly tore out her hair for a DNA sample without her consent and also in violation of the declaration of human rights.
5.The police withheld evidence of video record outside Centrelink.
6.The police hid critical evidence which shows sudden assault, cruel, inhuman and degrading treatment of her outside of Centrelink.
7.Three police officers conspired with themselves and gave false evidence against her.
8.The magistrate did not take into account the factor of professional investigation and detection of seven video cameras outside of Centrelink.
9.The magistrate did not take into account the factor of the recorded conversation with the manager of Centrelink where she asked for an interpreter service inside Centrelink.
10.The magistrate court did not take into account her story about what had happened and she only answered questions.
11.Her translator in court was wrong in translating for her…

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 [2019] WASC 158
Case: [2019] WASC 158
Decision Date: 15 MAY 2019

CaseChat Overview and Summary

The case of Frailing v Mackay was heard in the Queensland Court of Appeal. The appellant, Frailing, was convicted by a magistrate of criminal offences, and he sought an appeal against his conviction and sentence. The key issue before the court was whether the magistrate erred in their assessment of the evidence presented. Specifically, the court had to determine whether the magistrate's acceptance of the prosecution's evidence and rejection of the appellant's evidence amounted to a miscarriage of justice. The appellant argued that the magistrate failed to properly consider his evidence and that this led to an unjust outcome.

The court examined the principles of judicial review in criminal cases, particularly the standard of proof beyond reasonable doubt. The appeal hinged on whether the magistrate's decision to credit the prosecution's evidence over the appellant's evidence was open to challenge. The court found that the magistrate's decision was based on a careful consideration of the credibility of the witnesses and the evidence presented. The magistrate's reasoning demonstrated a proper application of the principles of evidence and the standard of proof, leading the court to conclude that there was no miscarriage of justice.

The court held that the magistrate's decision to accept the prosecution's evidence and reject the appellant's evidence was not erroneous. The court found that the magistrate's assessment of the credibility of the witnesses and the weight of the evidence was sound and well within the bounds of judicial discretion. The appeal was therefore dismissed, and the conviction and sentence of the appellant were upheld. The court emphasized that in cases of conflicting evidence, the ultimate decision rests with the trier of fact, provided that the decision-making process is rational and properly grounded in the evidence.

Orders