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Macri v Thobaven

Macri v Thobaven

Case [2010] WASC 18 8 February 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MACRI -v- THOBAVEN [2010] WASC 18

CORAM: BLAXELL J

HEARD: 25 NOVEMBER 2009

DELIVERED : 8 FEBRUARY 2010

FILE NO/S: SJA 1016 of 2008

BETWEEN: ALLAN JOSEPH MACRI
Appellant
AND
GAVIN THOBAVEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 15195 of 2006

Catchwords:

Criminal law and procedure - Appeal from sentence of suspended imprisonment imposed in Magistrates Court in 2006 for reckless driving - Breach in 2007 resulting in substitute suspended imprisonment order in District Court - Appeal in 2008 from original sentence later discontinued - Application to reinstate appeal - Whether court has discretion to allow notice of discontinuance to be withdrawn

Legislation:

Criminal Procedure Rules 2005 (WA), r 72

Result:

Application refused

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Ms J R Cass
Respondent: Ms D E Quinlan

Solicitors:

Appellant: S C Nigam & Co
Respondent: State Solicitor for Western Australia

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

Bailey v Marinoff (1971) 125 CLR 529
Bridges v The Queen (1998) 20 WAR 59
Chan v The Queen (1989) 38 A Crim R 337
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Gallo v Dawson (1990) 93 ALR 479
Grierson v The King (1938) 60 CLR 431
Harris v The Queen [2004] WASCA 223
Hastie v The Queen [1991] WAR 365
Indich v Bracknell [2005] WASC 225
Johnson (1992) 57 A Crim R 290
Logan v Camm & Whitson [2008] QSC 255
McDonald v White [2007] WASCA 213
Narkle v The Queen (Unreported, WASCA; Library No 6108, 2 December 1985)
R v Bell (1987) 8 NSWLR 311
R v Cartwright (1989) 17 NSWLR 243
R v The State of Western Australia [2008] WASCA 127
Washer v The State of Western Australia [2008] WASCA 135

BLAXELL J: Alan Joseph Macri applies for leave to reinstate appeal proceedings which he has previously abandoned. He commenced those proceedings in 2008 when he sought an extension of time and leave to appeal from a sentence of 6 months' 1 day suspended imprisonment imposed in the Magistrates Court in 2006 for an offence of reckless driving.
The Magistrate ordered that the term be suspended for 2 years, but following a breach by Mr Macri, he was resentenced in the District Court, and received a substitute suspension period which expired in 2009. In the meantime Mr Macri had commenced and then filed a notice of discontinuance of his appeal. However, he now faces proceedings in the District Court for a further alleged breach, and for this reason wishes to reinstate the appeal.
I must firstly decide whether I have power to allow Mr Macri to withdraw his notice of discontinuance. If I decide that issue in his favour and allow him to withdraw the notice, the parties have agreed that…

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 Macri v Thobaven

Details

AGLC: Macri v Thobaven [2010] WASC 18
Case: [2010] WASC 18
Decision Date: 8 FEBRUARY 2010

CaseChat Overview and Summary

The case of Macri v Thobaven involved a defendant who had previously been sentenced to a suspended imprisonment for reckless driving. The defendant later breached the terms of the suspended sentence, leading to a substitute suspended imprisonment order. In 2008, the defendant appealed against the original sentence, but later discontinued the appeal. The defendant subsequently applied to have the notice of discontinuance withdrawn and to reinstate the appeal.

The primary legal issue before the court was whether it had the discretion to allow the defendant to withdraw the notice of discontinuance and reinstate the appeal. The court had to consider the principles governing the withdrawal of notices of discontinuance and whether there were any exceptional circumstances that warranted the reinstatement of the appeal.

In determining the issue, the court considered the relevant case law and the principles of discretion in legal proceedings. The court found that there was no statutory provision that restricted the court's discretion to allow the withdrawal of a notice of discontinuance. The court also found that there were no exceptional circumstances that warranted the reinstatement of the appeal. Consequently, the court dismissed the application to reinstate the appeal.

The court's decision in Macri v Thobaven highlights the importance of understanding the principles governing the withdrawal of notices of discontinuance in legal proceedings. The court's decision also underscores the need for parties to carefully consider their legal options before discontinuing an appeal.

Orders