MULLALEY -v- WESTERN AUSTRALIA POLICE [2016] WASC 53

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 53
Case No:	SJA:1083/2015	Heard:	16 FEBRUARY 2016
Coram:	MARTINO J	Delivered:	16/02/16
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	EDWARD JAMES MULLALEY WESTERN AUSTRALIA POLICE
Catchwords:	Criminal law Whether Magistrate failed to resolve conflict in evidence Duplicity in charge Whether latent
Legislation:	Criminal Procedure Act (WA), s 132(5), s 178, cl 2(4) sch 1
Case References:	Elwin v Robinson [2014] WASCA 46 Green v The State of Western Australia [2014] WASCA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : MULLALEY -v- WESTERN AUSTRALIA POLICE [2016] WASC 53 CORAM : MARTINO J HEARD : 16 FEBRUARY 2016 DELIVERED : 16 FEBRUARY 2016 FILE NO/S : SJA 1083 of 2015 BETWEEN : EDWARD JAMES MULLALEY

Appellant

AND

WESTERN AUSTRALIA POLICE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S SHARRATT

File No : BM 1179 of 2013

Catchwords:

Criminal law - Whether Magistrate failed to resolve conflict in evidence - Duplicity in charge - Whether latent

Legislation:

Criminal Procedure Act (WA), s 132(5), s 178, cl 2(4) sch 1

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D Brunello

Respondent : Ms S Wisbey

Solicitors:

Appellant : Aboriginal Legal Service (WA)

Respondent : Director of Public Prosecutions (WA)

Cases referred to in judgment:

Elwin v Robinson [2014] WASCA 46
Green v The State of Western Australia [2014] WASCA 53

1 MARTINO J: By a prosecution notice lodged in the Magistrates Court on 1 April 2013 the appellant, Mr Mullaley, was charged that on 19 March 2013 at Broome he 'obstructed public officers in the performance of the officer's functions' contrary to s 172(2) of the Criminal Code (WA). He pleaded not guilty to that charge and it went to trial on 21 April 2015 and 9 September 2015.

2 The trial was a joint trial with his daughter, Tamica Mullaley, who was charged with offences arising out of events closely connected with the events with which Mr Mullaley was charged. He was represented by counsel at the trial. His daughter was represented by different counsel.

3 The learned Magistrate reserved his decision, which he delivered on 25 September 2015. His Honour delivered detailed reasons. He found Mr Mullaley guilty of the charge.

4 Mr Mullaley appealed by notice dated 23 October 2015. That notice contained a single ground that, having regard to the evidence, the verdict of guilty is unreasonable and cannot be supported.

5 By an amended notice of appeal dated 8 February 2016 Mr Mullaley sought to amend his grounds of appeal. The amendment was not opposed by the respondent and I granted leave to amend the grounds of appeal at the commencement of the hearing of appeal. The grounds of appeal, as amended, are:

1. The Magistrate erred in fact and in law in finding that 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 Mullaley v Western Australia Police

Details

AGLC: Mullaley v Western Australia Police [2016] WASC 53
Case: [2016] WASC 53
Decision Date: 16 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Mullaley v Western Australia Police, the appellant, Mullaley, appealed against a conviction and sentence imposed by a Magistrate in the Magistrates Court of Western Australia. The conviction was for an offence of possessing a dangerous drug contrary to the provisions of the Misuse of Drugs Act 1981 (WA). The primary dispute was whether the Magistrate had failed to resolve conflicts in the evidence, specifically regarding the duplicity in the charge, and whether the duplicity was latent. The appeal was brought before the Supreme Court of Western Australia.

The legal issues that the court had to decide were whether the Magistrate had failed to resolve conflicts in the evidence, and whether the duplicity in the charge was latent. The court had to consider the principles of criminal law as they relate to the resolution of conflicts in evidence and the requirements of a valid charge. The court was required to determine if the failure to resolve the conflict in evidence resulted in a miscarriage of justice and if the duplicity in the charge was so fundamental that it rendered the conviction invalid.

The court found that the Magistrate had not failed to resolve the conflict in evidence, as the evidence was sufficient to support the conviction. The court also found that the duplicity in the charge was not latent but was instead patent and jurisdictional. However, the court held that the error did not result in a miscarriage of justice and did not render the conviction invalid. The court further held that the appellant had not suffered any prejudice as a result of the error. Accordingly, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the conviction and sentence imposed by the Magistrate were upheld. The appellant was therefore still subject to the conviction and sentence for possessing a dangerous drug. The court's decision highlights the importance of resolving conflicts in evidence and the need for a valid charge in criminal proceedings.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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