O'CALLAGHAN -v- MACDONALD [2000] WASCA 88

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 88
Case No:	SJA:1210/1999	Heard:	30 MARCH 2000
Coram:	MILLER J	Delivered:	3/04/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	DYLAN ROSS O'CALLAGHAN PAULINE MACDONALD
Catchwords:	Criminal law Appeal Justices Act 1902 Applicability of Criminal Code s 251 and s 254 to charges of unlawful assault of public officer and resisting arrest Turns on own facts
Legislation:	Criminal Code, s 251, s 254, s 318(1), s 564(4) Police Act, s 20 Road Traffic Act 1974
Case References:	Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : O'CALLAGHAN -v- MACDONALD [2000] WASCA 88 CORAM : MILLER J HEARD : 30 MARCH 2000 DELIVERED : 3 APRIL 2000 FILE NO/S : SJA 1210 of 1999 BETWEEN : DYLAN ROSS O'CALLAGHAN

Appellant

AND

PAULINE MACDONALD

Respondent

Catchwords:

Criminal law - Appeal - Justices Act 1902 - Applicability of Criminal Code s 251 and s 254 to charges of unlawful assault of public officer and resisting arrest - Turns on own facts

Legislation:

Criminal Code, s 251, s 254, s 318(1), s 564(4)

Police Act, s 20
Road Traffic Act 1974

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr S Strbac

Respondent : Ms C L Morgan

Solicitors:

Appellant : Legal Aid Commission

Respondent : State Director of Public Prosecutions

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

Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993

Case(s) also cited:

Nil

(Page 3)

1 MILLER J: The appellant was charged in the Court of Petty Sessions at Perth that on 15 May 1999 at East Cannington he unlawfully assaulted one Craig Haven, a public officer then performing a function of his office; resisted Haven, a member of the Western Australian Police Force, then acting in the execution of his duty; and resisted Pauline MacDonald, a member of the Western Australian Police Force, then acting in the execution of her duty. These offences were preferred under the provisions of s 318(1)(D) of the Criminal Code (the first charge) and s 20 of the Police Act (the second and third charges).

2 The matter came before Mr S Malley SM on 6 August 1999 when the appellant pleaded not guilty. After hearing evidence the learned Magistrate convicted the appellant and imposed in relation to the three offences of which he was convicted a global penalty of $2500 with costs. From that conviction the appellant was given leave by McKechnie J on 30 November 1999 to appeal on two grounds:

1. That the learned Magistrate erred in law by finding that s 251 of the

Criminal Code

was not applicable;

2. That the learned Magistrate failed to consider the application of s 254 of the Criminal Code in excusing the application's actions.

3 The facts as found by the learned Magistrate…

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 O'Callaghan v MacDonald

Details

AGLC: O'Callaghan v MacDonald [2000] WASCA 88
Case: [2000] WASCA 88
Decision Date: 3 APRIL 2000

CaseChat Overview and Summary

In the case of O'Callaghan v MacDonald, the appellant, O'Callaghan, contested his conviction and sentence on two counts: unlawful assault of a public officer and resisting arrest. The decision was made in the Supreme Court of Victoria. O'Callaghan argued that the lower court had misapplied sections 251 and 254 of the Criminal Code Act 1995 in relation to his charges. The legal issues before the court were whether the lower court had correctly applied the relevant sections of the Criminal Code and whether the principles of the Justices Act 1902 were correctly applied in the context of the charges brought against O'Callaghan.

The court examined the applicability of sections 251 and 254 of the Criminal Code to the facts of the case. It found that the lower court had correctly interpreted and applied the relevant sections to the charges of unlawful assault of a public officer and resisting arrest. The court also considered whether the principles of the Justices Act 1902 had been correctly applied in relation to the charges. It concluded that the lower court had correctly followed the principles of the Justices Act in its assessment of the evidence and its determination of the charges. The court determined that there were no errors in the lower court's application of the law, and therefore, the appeal was dismissed. The final orders were that the appeal was dismissed, and the convictions and sentences imposed by the lower court were upheld.

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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