RE SECTION 720 CRIMINAL CODE (WA); EX PARTE MICHAEL [2002] WASC 208

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 208
Case No:	MCR:35/2002	Heard:	7 AUGUST 2002
Coram:	ROBERTS-SMITH J	Delivered:	7/08/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed, Leave refused
Category:	A
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Parties:	SHAWKY MICHAEL
Catchwords:	Criminal law Private prosecution Application for leave to present information for indictable offence Proposed accused committed by Magistrate for trial Whether leave should be granted Practice and procedure Private prosecution Application for leave to present information for indictable offence Procedure
Legislation:	Criminal Code (WA), s 720 Criminal Procedure Rules 2000 (WA), r 4 Criminal Practice Rules 1969 (WA), O 4
Case References:	Brown v Blake [2000] WASCA 132 Ex parte Marsh [1966] Qd R 357 Gouldham v Sharrett [1966] WAR 129 M v JMP and RP (1999) 108 A Crim R 129 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482; 103 A Crim R 312 Rodgers v Simpson [2001] WASCA 223 Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE SECTION 720 CRIMINAL CODE (WA); EX PARTE MICHAEL [2002] WASC 208 CORAM : ROBERTS-SMITH J HEARD : 7 AUGUST 2002 DELIVERED : 7 AUGUST 2002 FILE NO/S : MCR 35 of 2002 MATTER : Section 720 of the Criminal Code (WA) EX PARTE

SHAWKY MICHAEL

Applicant

Catchwords:

Criminal law - Private prosecution - Application for leave to present information for indictable offence - Proposed accused committed by Magistrate for trial - Whether leave should be granted

Practice and procedure - Private prosecution - Application for leave to present information for indictable offence - Procedure

Legislation:

Criminal Code (WA), s 720

Criminal Procedure Rules 2000 (WA), r 4
Criminal Practice Rules 1969 (WA), O 4

Result:

Application dismissed

(Page 2)

Leave refused

Category: A

Representation:

Counsel:

Applicant : In person

Solicitors:

Applicant : In person

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

Brown v Blake [2000] WASCA 132
Ex parte Marsh [1966] Qd R 357
Gouldham v Sharrett [1966] WAR 129
M v JMP and RP (1999) 108 A Crim R 129
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482; 103 A Crim R 312
Rodgers v Simpson [2001] WASCA 223
Walsh v Jewell, unreported; SCt of WA; Library No 980580; 2 October 1998

Case(s) also cited:

Nil

(Page 3)

1 ROBERTS-SMITH J: This is an ex parte application by notice of an application dated 14 June 2002 under r 7 of the Criminal Procedure Rules 2000. Dr Michael applies for leave to continue a prosecution under s 720 of the Criminal Code. Although the application is made ex parte, Dr Michael has filed an affidavit of service which indicates that the application and supporting affidavit were in fact served on the proposed accused Mr Maughan.

2 Again, although expressed as an application for leave to continue a prosecution under s 720, in…

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 Re Section 720 Criminal Code (WA)

Details

AGLC: Re Section 720 Criminal Code (WA) [2002] WASC 208
Case: [2002] WASC 208
Decision Date

CaseChat Overview and Summary

Dr Michael, the applicant, sought leave from the Supreme Court to present an information against Mr Maughan, the respondent, for the offence of assault occasioning bodily harm. The application was made pursuant to section 720 of the Criminal Code (WA). The Court heard the matter ex parte. The Court considered the relevant legal issues, including whether Dr Michael had satisfied the criteria for granting leave under section 720 of the Criminal Code. The Court found that the decision to prosecute should typically be left to the Director of Public Prosecutions, who would consider all relevant factors, including the public interest. The Court also noted the potential for bias and conflict of interest in this case due to the long-standing neighbourhood dispute between the parties. The Court concluded that the application did not meet the exceptional circumstances required for a private prosecution. Consequently, the Court dismissed the application and refused leave to present the information.

Orders