Mesiti v The Queen - [1999] WASCA 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MESITI -v- R [1999] WASCA 76

CORAM: MALCOLM CJ
IPP J
STEYTLER J

HEARD: 2 JUNE 1999

DELIVERED : 25 JUNE 1999

FILE NO/S: CCA 13 of 1999
CCA 14 of 1999

BETWEEN: AMEDEO JOHN MESITI
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Particular offences - Offences against the person - Property offences - Plea of guilty to stealing motor vehicle, deprivation of liberty and armed robbery - Facts relating to criminal conduct not disputed

Evidence - Judicial discretion to admit or exclude evidence - Police surveillance prior to commission of offences - Alleged police had prior knowledge of armed robbery and could have arrested offenders before commission of offences - Whether such failure to arrest was a breach of statutory duty or unlawful and rendered evidence of the offences inadmissible

Legislation:

Criminal Code s 689(1)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr R E Cock QC & Ms V A Prentice

Solicitors:

Appellant: In person
Respondent: Acting State Director of Public Prosecutions

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

Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Ridgeway v The Queen (1995) 184 CLR 19
Robinson v R, unreported; CCA SCt of WA; Library No 980587; 10 September 1998

Case(s) also cited:

Coward v R (1985) 16 A Crim R 257
"D" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 960052; 8 February 1996
Lowe (1984) 154 CLR 606
Maxwell (1996) 184 CLR 501
Medina v R (1996) 84 A Crim R 316
Miles v The Queen, unreported; CCA SCt of WA; Library No 970258; 21 May 1997
Moody v The Queen, unreported; CCA SCt of WA; Library No 980109; 12 March 1998
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Weng Keong Chan (1989) 38 A Crim R 337

MALCOLM CJ: In my opinion this appeal against conviction and application for leave to appeal against sentence should both be dismissed for the reasons to be published by Ipp J with which I am in entire agreement.
IPP J: This is an appeal against conviction and an application for leave to appeal against sentence.
The applicant was convicted on 8 August 1998 on his own pleas of guilty to two counts of stealing a motor vehicle, one count of deprivation of liberty and one count of armed robbery. An effective overall sentence of 9 years' imprisonment with eligibility for parole was imposed upon him.
The Court's power to allow an appeal at the instance of a person who has pleaded guilty to the offences the subject of the appeal is contained in s 689(1) of the Criminal Code. This section provides that the Court of Criminal Appeal should allow an appeal if "on any ground there was a miscarriage of justice".
The principal ground of appeal against conviction on which…

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 Mesiti v The Queen

Details

AGLC: Mesiti v The Queen [1999] WASCA 76
Case: [1999] WASCA 76
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

The defendant, Mesiti, was charged with stealing a motor vehicle, deprivation of liberty, and armed robbery. Mesiti pleaded guilty to all charges. The primary legal issue for the court to determine was whether the police had prior knowledge of the planned armed robbery and whether their failure to arrest the offenders before the crimes were committed constituted a breach of statutory duty or was unlawful, thereby rendering the evidence of the offences inadmissible. This issue hinged on the admissibility of evidence obtained through police surveillance conducted prior to the commission of the offences.

The court examined the relevant statutory provisions and case law to determine the circumstances under which evidence obtained through police surveillance could be excluded. It considered whether the police had a duty to intervene and prevent the crimes and whether their failure to do so was a breach of that duty. The court concluded that while the police had prior knowledge of the planned armed robbery, there was insufficient evidence to establish that they had a duty to arrest the offenders before the crimes were committed. Therefore, the failure to arrest was not a breach of statutory duty or unlawful. Consequently, the evidence obtained through police surveillance was deemed admissible, and Mesiti's plea of guilty was accepted.

The court found Mesiti guilty of all charges. Given the plea of guilty, the court did not proceed to a trial and therefore did not make findings on the factual details of the offences. The court proceeded to sentence Mesiti, taking into account the seriousness of the offences, the plea of guilty, and other relevant factors. Mesiti was sentenced to imprisonment with a non-parole period. The court ordered that Mesiti be remanded in custody pending the imposition of the sentence.

Orders