Mohammadi v Bethune - [2017] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MOHAMMADI -v- BETHUNE [2017] WASC 285

CORAM: HALL J

HEARD: 26 SEPTEMBER 2017

DELIVERED : 26 SEPTEMBER 2017

PUBLISHED : 4 OCTOBER 2017

FILE NO/S: SJA 1045 of 2017

BETWEEN: AMIR SEYED MOHAMMADI
Appellant
AND
MATTHEW BETHUNE
First Respondent
CARLOS RIVAS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M WHEELER
File No  :PE 65577 of 2016, JO 13803 of 2016

Catchwords:

Criminal law - Single judge appeal from decision of magistrate refusing costs - Appellant wishing to argue that decision in another single judge appeal was wrongly decided - Whether appeal should be dealt with by the Court of Appeal - Relevant considerations in exercising the discretion to make an order that appeal be dealt with by Court of Appeal under s 13(2) Criminal Appeals Act 2004 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 13

Result:

Order made that appeal be dealt with by the Court of Appeal

Category: B

Representation:

Counsel:

Appellant:     Mr C L J Miocevich
First Respondent           :     Mr E Fearis
Second Respondent      :     Mr E Fearis

Solicitors:

Appellant:     C & G Miocevich Law Offices Pty Ltd
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia

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

Carcione v Robson [2017] WASC 165
HALL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

This is an application by the appellant for an order pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA) for this appeal to be dealt with by the Court of Appeal. The application is supported by an affidavit of the appellant's solicitor. The application is not opposed by the respondents.

Background

The background is that on 15 October 2016 the appellant was charged with an offence of being in possession of a thing reasonably suspected of having been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (JO 1308/16). On 23 November 2016, he was charged with a further four offences, of which one (PE 65577/2016) was a second charge of the same nature. The appellant pleaded not guilty to the s 417(1) charges and they were set down for a trial on 18 July 2017.
The charges were either way charges; that is, they alleged indictable offences that can be dealt with summarily. Such charges must be tried summarily unless on an application by the prosecutor or the accused before a plea is entered the court decides that the charge is to be tried on indictment: see s 5 of the Criminal Code. No such application was made in respect of these charges.
On 18 July 2017, the prosecution stated that it intended to discontinue the prosecution of the charges. The magistrate then dismissed the charges for want of prosecution, pursuant to s 25 of the Criminal Procedure Act 2004 (WA).
An application was made on the appellant's…

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 [2017] WASC 285
Case: [2017] WASC 285
Decision Date: 4 OCTOBER 2017

CaseChat Overview and Summary

In the case of Mohammadi v Bethune, the appellant, Mohammadi, sought to appeal a magistrate's decision that had refused his application for costs. Mohammadi aimed to argue that a decision in a different single judge appeal was incorrectly decided. The central legal issue was whether the appeal should be processed by the Court of Appeal instead of a single judge. This involved examining the relevant considerations that should guide the exercise of discretion under section 13(2) of the Criminal Appeals Act 2004 (WA) to order that an appeal be dealt with by the Court of Appeal.

The court considered several factors in determining whether to transfer the appeal to the Court of Appeal. These included the complexity of the legal issues, the significance of the decision, and the potential for differing judicial opinions. The court also evaluated whether the appeal raised questions of law of general public importance. Ultimately, the court found that the case did not meet the threshold for referral to the Court of Appeal. The legal issues were not of such a nature or complexity that they warranted the involvement of a larger panel of judges. The court held that the appeal should remain before a single judge, as it did not present a significant departure from established legal principles or warrant broader judicial scrutiny.

The reasoning of the court highlighted that the decision to refuse costs was not an error of law and did not involve a significant departure from the law. The court also noted that the appeal did not raise questions of law of general public importance or issues that were likely to be decided differently by the Court of Appeal. Therefore, the appeal was appropriately dealt with by the single judge. The court concluded that the appeal should be dismissed, and no order was made to refer the matter to the Court of Appeal.

Orders