MICHAEL -v- MUSK & ANOR [2002] WASC 278

Link to Appeal :

[2004] WASCA 203

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 278
Case No:	CIV:1725/2002	Heard:	13 NOVEMBER 2002
Coram:	EM HEENAN J	Delivered:	13/11/02
No of pages:	13	Judgment Part:	1 of 1
Result:	Orders nisi refused
Category:	B
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Parties:	SHAWKY SHAFEEK MICHAEL JACQUELINE GAY MUSK DIRECTOR OF PUBLIC PROSECUTIONS
Catchwords:	Prerogative writs Certiorari and mandamus Application for orders nisi to remove and quash a summary prosecution in Court of Petty Sessions No arguable grounds shown Applications dismissed
Legislation:	Criminal Code, s 614 Director of Public Prosecutions Act, s 80 Justices Act, s 69, s 102(1), s 105 Supreme Court Rules, O 65A
Case References:	Nil Re Bond (1992) 62 A Crim R 383

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MICHAEL -v- MUSK & ANOR [2002] WASC 278 CORAM : EM HEENAN J HEARD : 13 NOVEMBER 2002 DELIVERED : 13 NOVEMBER 2002 FILE NO/S : CIV 1725 of 2002 BETWEEN : SHAWKY SHAFEEK MICHAEL

Plaintiff

AND

JACQUELINE GAY MUSK

First Defendant

DIRECTOR OF PUBLIC PROSECUTIONS

Second Defendant

Catchwords:

Prerogative writs - Certiorari and mandamus - Application for orders nisi to remove and quash a summary prosecution in Court of Petty Sessions - No arguable grounds shown - Applications dismissed

Legislation:

Criminal Code, s 614

Director of Public Prosecutions Act, s 80
Justices Act, s 69, s 102(1), s 105
Supreme Court Rules, O 65A

(Page 2)

Result:

Orders nisi refused

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : Mr D T Scully

Solicitors:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Re Bond (1992) 62 A Crim R 383

(Page 3)

1 EM HEENAN J: There is before the Court an ex parte application for orders nisi for writs of mandamus and certiorari pursuant to the provisions of O 65A of the Supreme Court Rules and in addition pursuant to s 69 of the Justices Act. The first respondent to the application is her Worship, Mrs Jacqueline Gay Musk SM, who presided over the proceedings in the Court of Petty Sessions to which I shall refer. The second respondent is the Director of Public Prosecutions, who is represented before me today.

2 There is a long history to this application for prerogative relief and to the litigation which has generated it. Dr Shawky Michael, the applicant, at all material times has lived at 8 Tully Court, Bullcreek. It is his misfortune that there exists a long-standing animosity between him, the members of his family on the one hand and a neighbour, Mr Maughan, on the other, resulting in bad feeling and hostility between the families.

3 It is unnecessary to go into the background of this neighbour dispute, but on 3 December 2000, a Sunday,…

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 [2002] WASC 278
Case: [2002] WASC 278
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Dr. Shawky Michael sought relief from the court in the form of a writ of mandamus and certiorari. The case against Dr. Michael stemmed from an altercation between him and his neighbour, Mr. Maughan, which resulted in criminal charges being brought against Dr. Michael. The case against Dr. Michael had progressed to the stage of a preliminary hearing in the Court of Petty Sessions, presided over by Mrs. Musk. The preliminary hearing had resulted in an order for Dr. Michael to be committed for trial on an indictable offence. Dr. Michael sought to have the order quashed on the basis that Mrs. Musk had failed to observe statutory requirements prior to making the order for committal. The Supreme Court granted the application to quash the order and adjourned the balance of the application. Dr. Michael subsequently sought to have the committal hearing stayed on the basis that it would be oppressive and a denial of natural justice. The Supreme Court dismissed the application for a stay of the committal hearing. The Court held that Dr. Michael was not in immediate jeopardy of an irrevocable finding of guilt and that it was not for the Supreme Court to make the decision as to whether or not Dr. Michael should be committed for trial. The Court also held that there was no evidence to support Dr. Michael's submission that he would not be given a fair hearing in the Court of Petty Sessions. Finally, the Court held that any alleged misleading conduct by the Director of Public Prosecutions in relation to the access to a videotape, which had been recorded by a surveillance camera at Dr. Michael's home, would not affect the course of the committal hearing.

Orders