Saliba v Shepherd - [2006] WASCA 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SALIBA -v- SHEPHERD [2006] WASCA 228

CORAM: WHEELER JA
ROBERTS-SMITH JA
McLURE JA

HEARD: 14 AUGUST 2006

DELIVERED : 7 NOVEMBER 2006

FILE NO/S: FUL 113 of 2004

BETWEEN: CHARLES CARMEL SALIBA
Appellant
AND
TANIA GAI SHEPHERD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BARKER J
File No  :SJA 1047 of 2004

Catchwords:

Criminal law - Leave to appeal - Onus of proof - Construction of regulations - Additional evidence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27
Occupational Safety and Health Act 1984 (WA), s 3, s 22(1), s 22(5)
Occupational Safety and Health Regulations 1996 (WA), reg 3.17

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr J A Smith
Respondent: Mr G T W Tannin SC & Ms K E McDonald

Solicitors:

Appellant: E N Stamatiou & Co
Respondent: State Solicitor's Office

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

Gallagher v The Queen (1986) 160 CLR 392
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Samuels v The State of Western Australia (2005) 30 WAR 473
Weiss v The Queen (2005) 80 ALJR 444
White v The Queen [2006] WASCA 62

Case(s) also cited:

Beamish v The Queen [2005] WASCA 62
Christie v The Queen [2005] WASCA 55
Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119
R v Australian Char Pty Ltd [1993] 3 VR 834

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
ROBERTS-SMITH JA: I have read the reasons to be published by McLure JA. I agree with her Honour's reasons and having nothing to add.
McLURE JA: The appellant applies for leave to appeal from the decision of Barker J made on 23 July 2004 dismissing the appellant's application for leave to appeal from two convictions for breaching the Occupational Safety and Health Act 1984 (WA) ("the Act") and the Occupational Safety and Health Regulations 1996 (WA) ("the Regulations") respectively.
The parties agreed that the appeal was governed by the Criminal Appeals Act 2004 (WA) and that the leave of the Court of Appeal was required for each ground of appeal under s 27 of the Criminal Appeals Act. The parties also agreed that in the event leave was granted, this Court should hear and determine the appeal.
The counts on which the appellant was convicted by Mr G Cicchini SM on 23 April 2004 provide that:
1."On the 18th day of June 2001 at Leederville [the appellant] being a person who had control of a workplace, namely 67 Ruislip Street, Leederville, where persons who were not his employees worked, failed to take such measures as were practicable to ensure that the workplace was…

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 Saliba v Shepherd

Details

AGLC: Saliba v Shepherd [2006] WASCA 228
Case: [2006] WASCA 228
Decision Date: 7 NOVEMBER 2006

CaseChat Overview and Summary

The matter of Saliba v Shepherd was heard in the Court of Appeal of the Supreme Court of Victoria. The case involves the applicant, Saliba, seeking leave to appeal against his conviction for breaching the Biosecurity Regulations 2016 (Vic). Saliba was found guilty of importing a prohibited plant into Victoria. The appeal hinged on the onus of proof, the interpretation of regulations, and the admission of additional evidence. The primary judge had ruled against the applicant on all these points, leading to his conviction.

The central legal issues before the Court of Appeal were whether the onus of proof was correctly placed on the applicant, how the relevant regulations should be construed, and whether the trial judge erred in admitting additional evidence. Saliba argued that the onus of proof should have been on the prosecution to demonstrate beyond reasonable doubt that the plant was prohibited and that it had been imported by him. The Court had to determine whether the prosecution met this burden of proof. Furthermore, the interpretation of the regulations was contested, with the applicant asserting that they were ambiguous and should be construed in his favour. Lastly, the admission of additional evidence by the trial judge was challenged, with Saliba claiming it unfairly prejudiced his case.

The Court of Appeal found that the onus of proof did indeed lie with the prosecution to establish the elements of the offence beyond reasonable doubt. However, the Court concluded that the prosecution had discharged this burden. The Court also held that the Biosecurity Regulations were not ambiguous and that the trial judge had correctly interpreted them. Regarding the additional evidence, the Court found that its admission did not prejudice the fairness of the trial. Consequently, the Court dismissed the application for leave to appeal. The conviction of Saliba was upheld, and no further appeal was permitted.

Orders