MIELI -v- BEROS [2006] WASC 251

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 251
Case No:	SJA:1108/2005	Heard:	7 SEPTEMBER 2006
Coram:	MILLER J	Delivered:	10/11/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ELIAHU MIELI GLEN MATHEW BEROS
Catchwords:	Criminal law Appeal Magistrates Court Aggravated unlawful assault Whether Magistrate imposed duty on appellant to prove innocence Whether Magistrate insisted that complainant be recalled Whether Magistrate erred in suggesting that a witness was not motivated to lie Whether miscarriage of justice
Legislation:	Criminal Code, s 221(1), s 313, s 313(1)(a) Restraining Orders Act 1997 (WA), s 4
Case References:	Harman v Western Australia (2004) 29 WAR 380 J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 Palmer v The Queen (1998) 193 CLR 1 Crisafio v The Queen (2003) 27 WAR 169 de la Espriella-Velasco v The Queen (2006) 31 WAR 291 Mallard v The Queen (2003) 28 WAR 1 Mickelberg v The Queen (2004) 29 WAR 13 R v Abraham (1998) 70 SASR 575

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MIELI -v- BEROS [2006] WASC 251 CORAM : MILLER J HEARD : 7 SEPTEMBER 2006 DELIVERED : 10 NOVEMBER 2006 FILE NO/S : SJA 1108 of 2005 BETWEEN : ELIAHU MIELI

Appellant

AND

GLEN MATHEW BEROS

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J McINTYRE

File No : PE 18110 of 2005

Catchwords:

Criminal law - Appeal - Magistrates' Court - Aggravated unlawful assault - Whether Magistrate imposed duty on appellant to prove innocence - Whether Magistrate insisted that complainant be recalled - Whether Magistrate erred in suggesting that a witness was not motivated to lie - Whether miscarriage of justice

(Page 2)

Legislation:

Criminal Code, s 221(1), s 313, s 313(1)(a)

Restraining Orders Act 1997 (WA), s 4

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr R D Young

Respondent : Mr R M Mitchell

Solicitors:

Appellant : Gunning Young

Respondent : State Solicitor

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

Harman v Western Australia (2004) 29 WAR 380
J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532
Palmer v The Queen (1998) 193 CLR 1

Case(s) also cited:

Crisafio v The Queen (2003) 27 WAR 169
de la Espriella-Velasco v The Queen (2006) 31 WAR 291
Mallard v The Queen (2003) 28 WAR 1
Mickelberg v The Queen (2004) 29 WAR 13
R v Abraham (1998) 70 SASR 575

(Page 3)

1 MILLER J: This is an appeal from a decision of Mr T J McIntyre SM delivered in the Magistrates Court at Perth on 7 November 2005, when the learned Magistrate convicted the appellant of the offence of aggravated unlawful assault contrary to the provisions of s 313(1)(a) and s 221(1) of the Criminal Code. Upon conviction the appellant was fined the…

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 Mieli v Beros

Details

AGLC: Mieli v Beros [2006] WASC 251
Case: [2006] WASC 251
Decision Date

CaseChat Overview and Summary

The case of Mieli v Beros involved an appeal by the appellant, Eliahou Mieli, against a conviction of aggravated unlawful assault by the Magistrates Court. The appellant argued that the Magistrate had imposed a duty on him to prove his innocence, rather than requiring the prosecution to prove the case beyond reasonable doubt. The appellant also contended that the Magistrate had erred in suggesting that a witness was not motivated to lie. The Supreme Court of Western Australia considered the arguments and concluded that the ground of appeal could not be made out as the Magistrate had made it clear that there was no onus on the appellant to establish anything and that the prosecution had to prove the case beyond reasonable doubt. The Court also found that the Magistrate's observations regarding the witness's credibility were permissible and did not suggest that the appellant bore any onus to establish that the complainant or the witness had a motive to lie. The appeal was dismissed and the conviction upheld.

Orders