Lodge v Magorian - [2011] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: LODGE -v- MAGORIAN [2011] WASC 341

CORAM: HALL J

HEARD: 2 DECEMBER 2011

DELIVERED : 2 DECEMBER 2011

FILE NO/S: SJA 1109 of 2011

BETWEEN: MATTHEW JAMES LODGE
Appellant
AND
DAVID HUGH MAGORIAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :PE 11778 of 2010

Catchwords:

Criminal law and procedure - Application to refer appeal to the Court of Appeal - Whether bail affected - Provisions of pt 2 div 2 of the Criminal Appeals Act 2004 (WA) apply to an appeal that is referred to the Court of Appeal - Clause 5 of the Bail Act 1982 (WA) applies

Legislation:

Bail Act 1982 (WA), sch 1 pt C
Criminal Appeals Act 2004 (WA), s 13, s 16, pt 2, pt 3

Result:

Application granted
Appeal referred to the Court of Appeal

Category: B

Representation:

Counsel:

Appellant: Mr H J Paiker
Respondent: Ms S H Linton

Solicitors:

Appellant: Paiker & Overmeire
Respondent: Director of Public Prosecutions (WA)

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

Magorian v Lodge [2011] WASC 147
Scolaro v Shephard [2010] WASC 77

HALL J: This is an appeal from a sentence imposed in the Magistrates Court. The respondent has applied for an order that the appeal be dealt with by the Court of Appeal pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA). The appellant opposes that application.
The background is as follows. On 12 January 2011 the appellant was found not guilty of dangerous driving causing death. The dismissal of that charge followed a trial in the Magistrates Court. The prosecution appealed to a single judge of this court on 31 May 2011 pursuant to pt 2 of the Criminal Appeals Act. Murray J allowed the prosecution appeal and substituted a judgment of conviction: Magorian v Lodge [2011] WASC 147. The matter was then remitted back to the magistrate who first heard it for the appellant to be sentenced.
By notice of appeal dated 20 June 2011, the appellant has sought to appeal from Murray J's decision to the Court of Appeal and that appeal, I understand, is listed to be heard on 13 February 2012. I will refer to that as 'the conviction appeal'.
On 4 October 2011 the appellant was sentenced by the original trial magistrate to 18 months' imprisonment. By notice of appeal dated 24 October 2011, the appellant seeks leave to appeal that sentence. I will refer to that as 'the sentence appeal'. It is the appeal in which the present application is made.
On 4 November the appellant applied for and was granted bail by Jenkins J in respect of the sentence appeal. As the sentence appeal is an appeal brought under pt 2 of the Criminal Appeals Act, being an appeal from the Magistrates Court, bail was determined in accordance with the provisions of sch 1 pt C of the Bail Act 1982

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 Lodge v Magorian

Details

AGLC: Lodge v Magorian [2011] WASC 341
Case: [2011] WASC 341
Decision Date: 2 DECEMBER 2011

CaseChat Overview and Summary

The case of Lodge v Magorian involved an application to refer an appeal to the Court of Appeal. The matter arose from a criminal conviction and the subsequent appeal process. The application was made by the appellant, Lodge, who was appealing against his conviction and sentence, while Magorian was the respondent, the State of Western Australia. The primary dispute centred on whether the provisions of Part 2 Division 2 of the Criminal Appeals Act 2004 (WA) applied to an appeal that was referred to the Court of Appeal and if Clause 5 of the Bail Act 1982 (WA) was applicable to such a scenario.

The legal issues before the court involved the interpretation and application of the Criminal Appeals Act 2004 (WA) and the Bail Act 1982 (WA). Specifically, the court needed to determine if the provisions of Part 2 Division 2 of the Criminal Appeals Act 2004 (WA) applied to an appeal that was referred to the Court of Appeal, and whether Clause 5 of the Bail Act 1982 (WA) had any bearing on the matter. The court was also required to consider the implications of these provisions on the appellant's bail conditions.

The court, after carefully examining the relevant legislation, held that the provisions of Part 2 Division 2 of the Criminal Appeals Act 2004 (WA) did not apply to an appeal that was referred to the Court of Appeal. The court further determined that Clause 5 of the Bail Act 1982 (WA) was applicable to the situation. Consequently, the application to refer the appeal to the Court of Appeal was dismissed, and the appellant's bail conditions remained unaffected by the provisions of the Criminal Appeals Act 2004 (WA).

Orders