LEWIS -v- POLIDANO [2003] WASCA 312

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 312
Case No:	SJA:1090/2003	Heard:	28 NOVEMBER 2003
Coram:	SCOTT J	Delivered:	15/12/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Appeal against sentence upheld
Category:	A
PDF Version

Parties:	IAN GEOFFREY LEWIS STEVEN PAUL POLIDANO
Catchwords:	Criminal law Procedure Receiving Complaint not alleging an indictable offence but facts, if accepted, constituting indictable offence Prosecution limited to allegations in complaint
Legislation:	Criminal Code, s 414, s 426(1)(e)
Case References:	McLennan v Campbell [2003] WASCA 145 R v De Simoni (1981) 147 CLR 383 Tommekand v The Queen [1996] 1 Qd R 564 Wicks v Marsh; Ex parte Wicks [1993] 2 Qd R 583 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LEWIS -v- POLIDANO [2003] WASCA 312 CORAM : SCOTT J HEARD : 28 NOVEMBER 2003 DELIVERED : 15 DECEMBER 2003 FILE NO/S : SJA 1090 of 2003 MATTER : The Justices Act 1902 BETWEEN : IAN GEOFFREY LEWIS

Appellant

AND

STEVEN PAUL POLIDANO

Respondent

Catchwords:

Criminal law - Procedure - Receiving - Complaint not alleging an indictable offence but facts, if accepted, constituting indictable offence - Prosecution limited to allegations in complaint

Legislation:

Criminal Code, s 414, s 426(1)(e)

Result:

Appeal against conviction dismissed

Appeal against sentence upheld

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr S Rafferty

Respondent : Mr D D Barker

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Aboriginal Legal Service

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

McLennan v Campbell [2003] WASCA 145
R v De Simoni (1981) 147 CLR 383
Tommekand v The Queen [1996] 1 Qd R 564
Wicks v Marsh; Ex parte Wicks [1993] 2 Qd R 583

Case(s) also cited:

Nil

(Page 3)

1 SCOTT J: The respondent was charged on complaint that on 20 April 2003 at Bunbury he received a JVC digital video camera and three Sony Discmans valued at $1950, the property of Dorssett Retail Pty Ltd, which had lately been stolen, as he then well knew, contrary to s 414 of the Criminal Code.

2 The respondent pleaded guilty to that charge and was placed on a conditional release order for a period of 6 months.

3 The appellant sought leave to appeal against the order imposed originally upon the ground that the sentence imposed by the learned Magistrate in relation to the receiving charge was manifestly inadequate, particularly having regard to:

• the respondent's antecedents;

• the seriousness of the offence;

• the sentence imposed on an offender charged with the same offence resulting from the same burglary.

4 The ground of appeal was amended at the hearing of the application for leave to appeal. The existing ground was deleted and in its place the appellant sought to, and was allowed to, substitute the following ground: "the learned Magistrate acted in excess of his jurisdiction having regard to 426(1)(e) of the Criminal Code."

5 At…

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 Lewis v Polidano

Details

AGLC: Lewis v Polidano [2003] WASCA 312
Case: [2003] WASCA 312
Decision Date: 15 DECEMBER 2003

CaseChat Overview and Summary

The case of Lewis v Polidano was heard in the Court of Appeal, where the appellant, Lewis, challenged both his conviction and the sentence imposed on him by the lower court. Lewis was convicted of receiving stolen property and appealed on the grounds that the complaint filed against him did not specify an indictable offence, despite the facts, if proven, constituting such an offence. The respondent, Polidano, argued that the complaint was sufficient as it described the factual basis of the charge.

The primary legal issue before the court was whether the prosecution could be limited to the allegations contained within the complaint, even if those allegations did not explicitly state an indictable offence. The court had to consider the extent to which the prosecution could proceed on facts that, while not detailed in the complaint, could still form the basis of a valid charge if proven. The court also examined whether the complaint sufficiently informed Lewis of the charges against him to enable him to adequately prepare his defence.

In delivering the judgment, the court found that while the complaint did not explicitly state an indictable offence, the facts alleged, if accepted, did constitute such an offence. The court held that the prosecution should be confined to the allegations set out in the complaint, which did not include the specific offence of receiving stolen property as an indictable offence. Consequently, the conviction was quashed as the prosecution was not limited to the allegations in the complaint. However, the court upheld the sentence, finding that the sentence imposed was appropriate and did not require alteration. Therefore, the appeal against the conviction was dismissed, and the appeal against the sentence was upheld.

Orders

Orders of the court

Appeal against conviction dismissed

Appeal against sentence upheld

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.