MARGJINI -v- ZAMPOGNA [2004] WASCA 162

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 162
Case No:	SJA:1125/2003	Heard:	31 MAY 2004
Coram:	LE MIERE J	Delivered:	5/08/04
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal allowed, Convictions set aside, Retrial ordered
Category:	B
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Parties:	EDMOND MARGJINI AARON MICHAEL ZAMPOGNA
Catchwords:	Criminal law Assault Appeal Error of law Amendment of complaint under s 46 Justices Act Whether applicant entitled to call evidence after Magistrate had amended complaint Criminal law Assault Appeal Section 46 Justices Act Accused tried summarily on charge of assault occasioning bodiy harm may not be convicted of common assault unless charge amended pursuant to s 46 Tme at which amendment to be made Magistrate empowered to amend at any time prior to decision Discretionary power not to be exercised where it would cause irretrievable prejudice to accused Criminal law Assault Appeal Section 46 Justices Act Whether amendment would cause prejudice to accused Refusal of Magisrate to allow accused to reopen case Magistrate erred in law Upon amendment accused entitled to meet the new charge Criminal law Assault Appeal New evidence Principles of new evidence New or fresh evidence may provide basis of appeal Whether new evidence may be considered "fresh" Whether new evidence capable of belief by jury Whether new evidence sufficient to establish innocence or raise sufficient doubt as to guilt Whether interests of justice require new evidence to be taken into account
Legislation:	Criminal Code (WA), s 313, s 317, s 689 Justices Act 1902 (WA), s 46, s 47, s 199
Case References:	Dorrington v G (a child) (1992) 16 MVR 453 Easterday v The Queen [2003] WASCA 69 Hedge v Thurstun [2001] WASCA 43 Ilic v The Queen [2000] WASCA 411 Mitchell v Myers (1955) 57 WALR 49 Ratten v R (1974) 131 CLR 510 Starling v Ostrowski (2001) 24 WAR 61 Bond v R (1992) 62 A Crim R 383 Button v The Queen (2002) 25 WAR 382 Craig v R (1933) 49 CLR 429 Gallagher v R (1986) 160 CLR 392 Higgon v O'Dea [1962] WAR 140 Leuschel v Police (SA) (1999) 75 SASR 231 Mickelberg v R (1989) 167 CLR 259 Paulger v Hall (2003) 2 Qd R 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MARGJINI -v- ZAMPOGNA [2004] WASCA 162 CORAM : LE MIERE J HEARD : 31 MAY 2004 DELIVERED : 5 AUGUST 2004 FILE NO/S : SJA 1125 of 2003 BETWEEN : EDMOND MARGJINI

Appellant

AND

AARON MICHAEL ZAMPOGNA

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : TARR SM

File Number : PE 14814 & PE 14816 of 2003

Catchwords:

Criminal law - Assault - Appeal - Error of law - Amendment of complaint under s 46 Justices Act - Whether applicant entitled to call evidence after Magistrate had amended complaint

Criminal law - Assault - Appeal - Section 46 Justices Act - Accused tried summarily on charge of assault occasioning…

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 MARGJINI v Zampogna

Details

AGLC: MARGJINI v Zampogna [2004] WASCA 162
Case: [2004] WASCA 162
Decision Date: 5 AUGUST 2004

CaseChat Overview and Summary

In the matter of Margjini v Zampogna, the case before the court involved an appeal against a conviction of assault occasioning bodily harm, which was initially charged as common assault. The applicant sought to amend the complaint under section 46 of the Justices Act, and subsequently requested to call evidence after the Magistrate had already amended the complaint. The central issue for the court was whether the applicant was entitled to call evidence following the amendment of the complaint and if the Magistrate's refusal to allow the accused to reopen their case constituted an error of law.

The court considered the statutory provision of section 46, which empowers a Magistrate to amend a complaint at any time prior to their decision, but cautions against exercising this discretion where it would cause irretrievable prejudice to the accused. The court found that the Magistrate had erred in law by not permitting the accused to meet the new charge after the amendment. The applicant was entitled to address the new charge, and the refusal to allow the accused to reopen their case was deemed to be an error of law. Furthermore, the court examined the principles surrounding new evidence and its potential to provide a basis for appeal, concluding that the new evidence presented could be considered fresh and capable of belief by a jury, potentially establishing innocence or raising sufficient doubt as to guilt.

The court concluded that the interests of justice required the new evidence to be taken into account. Consequently, the appeal was allowed, the convictions were set aside, and a retrial was ordered.

Orders

Orders of the court

Appeal allowed, Convictions set aside, Retrial ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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