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Mohammadi v Bethune

Mohammadi v Bethune

Case [2018] WASCA 98 22 June 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOHAMMADI -v- BETHUNE [2018] WASCA 98
CORAM:   MARTIN CJ
MAZZA JA
BEECH JA

HEARD:   5 JUNE 2018
DELIVERED          :   22 JUNE 2018
FILE NO/S:   CACR 207 of 2017
BETWEEN:   AMIR SEYED MOHAMMADI
Appellant
AND
MATTHEW BETHUNE
CARLOS RIVAS
Respondents

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M WHEELER
File Number             :   JO13803 OF 2016
PE65577 OF 2016

Catchwords:

Criminal law and procedure - Indictable offence with a summary conviction penalty - After the accused pleaded and after the matter set down for trial in Magistrates Court charge dismissed for want of prosecution - Whether accused successful for purposes of Official Prosecutions (Accused's Costs) Act 1973 (WA)

Legislation:

Criminal Code (WA), s 5
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4(2)(c)

Result:

Appeal upheld
Order for respondents to pay appellant's costs in Magistrates Court made

Category: A

Representation:

Counsel:

Appellant	:	Mr S Vandongen SC & Mr C L J Miocevich
Respondents	:	Mr C S Bydder

Solicitors:

Appellant	:	C & G Miocevich Law Offices
Respondents	:	State Solicitor's Office

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 92 ALJR 33
Carcione v Robson [2017] WASC 165
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Commissioner of Police v Eaton [2013] HCA 2; (2013) 252 CLR 1
Coverdale v West Coast Council [2016] HCA 15; (2016) 259 CLR 164
Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182
Independent Commission Against Corruption v Cuneen [2015] HCA 14; (2015) 256 CLR 1
Mancini v Ward (1997) 93 A Crim R 456
Mohammadi v Bethune [2017] WASC 285
Probuild Construction (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936
Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

JUDGMENT OF THE COURT:

Introduction

The Official Prosecutions (Accused's Costs) Act 1973 (WA) (the OPAC Act) provides, broadly speaking, for an entitlement to costs for a successful accused in criminal proceedings in a summary court. Section 4(2) of the OPAC Act provides for when an accused is successful. This appeal turns on the proper construction of s 4(2)(c), which deals with charges for indictable offences that are dismissed for want of prosecution.
The appellant faced charges of indictable offences that were triable summarily,[1] and…

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 Mohammadi v Bethune

Details

AGLC: Mohammadi v Bethune [2018] WASCA 98
Case: [2018] WASCA 98
Decision Date: 22 JUNE 2018

CaseChat Overview and Summary

Mohammadi was charged with an offence that could be prosecuted summarily but was initially tried in the Magistrates Court. After Mohammadi entered a plea, the matter was set down for trial but was dismissed for want of prosecution. Mohammadi then sought a declaration that he was successful for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 (WA) and an order for costs. The court had to determine if Mohammadi's successful status under the Act could be established by the dismissal of the charge due to the prosecution's failure to proceed with the trial.

The central issue was whether the dismissal of the charge for want of prosecution constituted a successful outcome for Mohammadi, allowing him to claim costs under the Act. This required an interpretation of the Act and consideration of the procedural context in which the charge was dismissed.

The court examined the language of the Act and found that the term "successful" was not limited to instances where the accused is acquitted or the charge is withdrawn by the prosecution. Instead, it included situations where the charge is dismissed due to the prosecution's failure to proceed. Given that the charge against Mohammadi was dismissed for want of prosecution, the court concluded that this constituted a successful outcome. Consequently, Mohammadi was deemed successful for the purposes of the Act and was entitled to an order for costs.

The court ordered that Mohammadi be paid the costs of the proceedings.

Orders