Michael v Musk - [2003] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MICHAEL -v- MUSK & ANOR [2003] WASC 197

CORAM: EM HEENAN J

HEARD: 30 SEPTEMBER 2003

DELIVERED : 30 SEPTEMBER 2003

FILE NO/S: CIV 2076 of 2003

MATTER :Application for a writ of certiorari

BETWEEN: SHAWKY MICHAEL
Applicant
AND
JACQUELINE MUSK
First Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

Catchwords:

Criminal law and procedure - Preliminary hearing - Committal for trial - Application for order for certiorari to quash order for committal - No error shown - Interference with course of criminal law and procedure only available in special cases

Legislation:

Nil

Result:

Application for order nisi for certiorari refused

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Ms L Eddy
Second Respondent       :     Ms L Eddy

Solicitors:

Applicant:     In person
First Respondent           :     State Crown Solicitor
Second Respondent       :     State Crown Solicitor

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

Michael v Musk & Anor [2002] WASC 278

Case(s) also cited:

Ammann v Wegener (1972) 129 CLR 415
Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663
Craig v South Australia (1995) 184 CLR 163
Doney v The Queen (1990) 171 CLR 207
Grassby v The Queen (1989) 168 CLR 1
Morrison v Kiwi Elextrix Pty Ltd (1998) 19 WAR 482
R v Macfarlane; Ex parte O'Flanagan & Anor (1923) 32 CLR 518
Re City of Melville; ex parte J-Corp Pty Ltd (1998) 20 WAR 72
Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511; [1999] WASCA 16
Sankey v Whitlam (1978) 142 CLR 1
Talbot v Lane (1994) 14 WAR 120; (1994) 75 A Crim R 115

EM HEENAN J: By an initiating application dated 4 September 2003, Dr Michael seeks an order nisi that the judgment of her Worship Mrs J Musk SM be set aside and that complaint FR2417 of 2001 be dismissed. This application has been amended to bear the name of an originating motion for an application for an order nisi for a writ of certiorari.
The decision of her Worship Mrs J Musk SM was made in the Court of Petty Sessions on 5 August last, committing Dr Michael to the September 2003 sittings of the District Court for trial upon a charge of assault occasioning bodily harm. The application for the order nisi for certiorari therefore is seeking to quash the order for committal. It is to be noted that under the provisions of the Justices Act, as now applying, by s 184(3), any decision by justices to commit a defendant for trial may not be the subject of an appeal under Pt VI of the Justices Act. It has been submitted by the Director of Public Prosecutions that by virtue of s 147 of the Justices Act no order, including an order for committal, can be removed into the Supreme Court by certiorari or otherwise for the purposes of being quashed. On the face of it, these are…

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 Michael v Musk

Details

AGLC: Michael v Musk [2003] WASC 197
Case: [2003] WASC 197
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Dr. Shawky Michael applied for a writ of certiorari to quash a committal order for trial made by Magistrate J. Musk in the Court of Petty Sessions. Dr. Michael sought to challenge the committal order on the basis that the Magistrate may have failed to properly consider evidence that could provide a defence to the charge of assault occasioning bodily harm. The court was required to determine whether there was an error of law or procedure by the Magistrate that would justify setting aside the committal order and dismissing the complaint against Dr. Michael. The court found no error of law in the Magistrate's reasons for the committal order. The court also noted that there are strong legal precedents that discourage courts from interfering in the ordinary course of criminal procedure except in exceptional cases. The court further found that the Justices Act indicates that committal proceedings should not be subject to appeal and that the law places emphasis on the routine application of criminal law and procedure. Finally, the court determined that even if the committal order were quashed, there would be no benefit to Dr. Michael as there is no longer an apparatus for a committal hearing under the amended Justices Act. Consequently, the application for an order nisi for certiorari was dismissed.

The court considered the application and submissions made by Dr. Michael, but found no arguable basis for an error of law or procedure by the Magistrate in committing Dr. Michael for trial. The court also found that there are strong legal precedents against interfering in the ordinary course of criminal procedure except in exceptional cases. The court further noted that the Justices Act indicates that committal proceedings should not be subject to appeal and that Parliament intended for defendants to proceed to trial once a committal order is made. The court concluded that even if the committal order were quashed, there would be no benefit to Dr. Michael as there is no longer an apparatus for a committal hearing under the amended Justices Act. Therefore, the application for an order nisi for certiorari was dismissed.

Orders