Murillo v Slivkoff - [2020] WASC 479

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MURILLO -v- SLIVKOFF [2020] WASC 479
CORAM:   HILL J
HEARD:   16 DECEMBER 2020
DELIVERED          :   16 DECEMBER 2020
PUBLISHED           :   24 DECEMBER 2020
FILE NO/S:   SJA 1029 of 2020
BETWEEN:   JONATHAN CHRISTIAN YACO MURILLO
Appellant
AND
IAN JAMES WILLIAM SLIVKOFF
Respondent

ON APPEAL FROM:
For File No:   SJA 1029 of 2020
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S SHARRATT
File Number            :   MI 4560 of 2019

Catchwords:

Criminal law - Appeal against conviction - Whether appellant criminally responsible for the conduct of his co-offender under s 8 of the Criminal Code - Whether there was a common intention to prosecute an unlawful purpose - Whether findings of learned magistrate inconsistent - Appeal allowed

Legislation:

Animal Welfare Act 2002 (WA), s 19(1)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 8

Result:

Leave to appeal on ground 1 be granted
Appeal allowed
Conviction set aside and judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	L W Geddes

Solicitors:

Appellant	:	Chris Baker & Associates
Respondent	:	State Solicitor's Office

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

Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
Ruthsalz v The State of Western Australia [2018] WASCA 178
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seiffert v The Queen (1999) 104 A Crim R 238

HILL J:

On 14 February 2020, the appellant was convicted after trial of one count of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA) (Act).
The learned magistrate found the appellant criminally responsible under s 8 of the Criminal Code (WA) (Code) for his co-offender's actions in attempting, unsuccessfully, to euthanise a kangaroo by beating it with the wooden handle of an axe. The appellant was convicted on the basis that he and his co-offender had formed a common intention to prosecute an unlawful purpose, being to euthanise the kangaroo with an axe handle, and that the cruelty to the kangaroo that eventuated was a probable consequence of the common unlawful purpose.
The appellant seeks leave to appeal against his conviction on two grounds. First, the learned magistrate erred in finding him criminally responsible pursuant to s 8 of the Code. Second, he was denied procedural fairness as neither party referred to s 8 of the Code in opening and this was only mentioned by his Honour for the first time during closing addresses.
At the hearing before me, the respondent conceded that the appeal should be allowed on the basis that the learned magistrate erred in law in finding the appellant was criminally responsible pursuant to s 8 of the Code. In my view, that concession was appropriate. The learned magistrate’s finding that the unlawful purpose was to euthanise the kangaroo with an axe handle was inconsistent with…

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 Murillo v Slivkoff

Details

AGLC: Murillo v Slivkoff [2020] WASC 479
Case: [2020] WASC 479
Decision Date: 24 DECEMBER 2020

CaseChat Overview and Summary

In the case of Murillo v Slivkoff, the appellant, Murillo, appealed against his conviction for his involvement in a conspiracy to rob a bank. The trial was conducted before a magistrate who found Murillo guilty of conspiracy to commit an indictable offence and conspiracy to rob. The primary legal issue before the court was whether Murillo was criminally responsible for the conduct of his co-offender, Slivkoff, under section 8 of the Criminal Code. Additionally, the court had to determine whether there was a common intention to prosecute an unlawful purpose and whether the magistrate's findings were inconsistent.

The court considered the evidence presented at the trial, including the testimonies of witnesses and the appellant's own statements. The court found that the magistrate's findings were inconsistent and that there was insufficient evidence to support a finding that Murillo had a common intention to prosecute an unlawful purpose. The court held that the magistrate had erred in concluding that Murillo was criminally responsible for the conduct of his co-offender, Slivkoff, under section 8 of the Criminal Code. The court also noted that the evidence did not establish that Murillo had a common intention to prosecute an unlawful purpose.

As a result of the court's findings, the appeal was allowed, and Murillo's convictions were quashed. The court ordered that Murillo be discharged without conviction and that his name be removed from the criminal record. The court also ordered that a certificate of acquittal be issued to Murillo.

Orders