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Michael v Musk SM

Michael v Musk SM

Case [2004] WASCA 203 8 September 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MICHAEL -v- MUSK SM & ANOR [2004] WASCA 203

CORAM: MALCOLM CJ
MURRAY J
MCLURE J

HEARD: 2 JUNE 2004

DELIVERED : 8 SEPTEMBER 2004

FILE NO/S: FUL 155 of 2003

BETWEEN: SHAWKY MICHAEL
Appellant
AND
MUSK SM
First Respondent
THE CROWN SOLICITOR OF WA ON BEHALF OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram   :E M HEENAN J
File Number            : [2002] WASC 278

Catchwords:

Criminal law and procedure - Preliminary hearing - Committal for trial - Appeal from refusal of application for writ of certiorari - Application for stay of proceedings on prosecution - Application entirely without merit

Legislation:

Criminal Code (WA), s 245, s 246, s 317, s 614

Criminal Law (Procedure) Amendment Act 2002 (WA), s 15

Justices Act 1902 (WA), s 102, s 105, s 107, s 108(1), s 147

Result:

Appeal dismissed
Application for stay of proceedings dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent       :     Mr G T W Tannin SC & Ms L A Eddy

Solicitors:

Appellant:     In person
First Respondent           :     No appearance
Second Respondent       :     State Solicitor

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

Christianos v Young (1990) 3 WAR 303
Clyne v Director of Public Prosecutions (1984) 154 CLR 640
Ellis v Ellis [1999] WASCA 30
Galgey v Director of Public Prosecutions [2004] NSWSC 367
Grassby v The Queen (1989) 168 CLR 1
Grove v Gage [2000] WASCA 70
Jago v District Court (NSW) (1989) 168 CLR 23
Michael v Musk & Anor [2002] WASC 278
Murphy v Director of Public Prosecutions (1985) 7 FCR 55
R v Basha (1989) 39 A Crim R 337
R v Harry; ex parte Eastway (1985) 39 SASR 203
Re City of Melville; Ex Parte J-Corp Pty Ltd (1998) 20 WAR 72
Re Robins SM; Ex parte West Australian Newspapers Pty Ltd (1999) 20 WAR 511
Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397
Sankey v Whitlam (1978) 142 CLR 1
Seymour v Attorney‑General (Cth) (1984) 4 FCR 498
Sherry v Tristam, unreported; SCt of WA; Library No 980706; 30 November 1998
Talbot v Lane (1994) 75 A Crim R 115
Tovey v Ferre [1981] WAR 21
Whyte v Brosch (1998) 45 NSWLR 354
Williams v Spautz (1991) 174 CLR 509

Case(s) also cited:

Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182
Connell v The Queen (No 5) (1993) 10 WAR 424
Craig v South Australia (1995) 184 CLR 163
Garrett v Nicholson (1999) 21 WAR 226
R v Bond (1992) 62 A Crim R 383
R v Rechichi [1999] WASC 45; (1999) 106 A Crim R 246
Re Attorney-General (Commonwealth); ex parte Skyring [1996] HCA 2; (1996) 70 ALJR 985
Re Section 720 Criminal Code (WA); Ex Parte Michael [2002] WASC 208
RSPCA v Hammarquist [2003] WASCA 35; (2003) 138 A Crim R 329

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 SM

Details

AGLC: Michael v Musk SM [2004] WASCA 203
Case: [2004] WASCA 203
Decision Date: 8 SEPTEMBER 2004

CaseChat Overview and Summary

The case of Michael v Musk SM involved a criminal dispute between the parties, Michael, and Musk SM. The matter was brought before the court to appeal the refusal of an application for a writ of certiorari and to seek a stay of proceedings on the prosecution. The central issue was whether the application for a writ of certiorari was entirely without merit and if the application for a stay of proceedings was valid.

The legal issues before the court centred on the procedural aspects of the criminal case. The court had to determine if the application for a writ of certiorari was devoid of any legitimate basis and whether the applicant's request for a stay of proceedings was justified. The court examined the grounds of the application and the legal principles governing the issuance of a writ of certiorari and the stay of proceedings in criminal cases.

In reaching its decision, the court carefully considered the arguments presented by both parties. It concluded that the application for a writ of certiorari was entirely without merit, as there were no valid grounds for such a remedy. Furthermore, the court found that the application for a stay of proceedings did not meet the necessary criteria for such a stay to be granted. Consequently, the court dismissed the appeal and upheld the refusal of the application for a writ of certiorari. The court also rejected the application for a stay of proceedings on the prosecution.

The court's decision was definitive, and no further orders were made beyond dismissing the appeal and rejecting the applications for a writ of certiorari and a stay of proceedings. The proceedings on the prosecution were allowed to continue without interruption.

Orders