Yilmaz v Berecz

Case [2016] WASC 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   YILMAZ -v- BERECZ [2016] WASC 192

CORAM:   LE MIERE J

HEARD:   24 FEBRUARY 2016

DELIVERED          :   28 JUNE 2016

FILE NO/S:   SJA 1068 of 2015

BETWEEN:   IHSAN YILMAZ

Appellant

AND

LESLEY MICHELLE BERECZ
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE D P SCADDAN

File No  :PPH 2204 of 2012, PPH 2205 of 2012, PPH 2206 of 2012, PPH 2207 of 2012, PPH 2208 of 2012, PPH 2209 of 2012, PPH 2210 of 2012, PPH 2211 of 2012, PPH 2212 of 2012, PPH 2213 of 2012, PPH 2214 of 2012, PPH 2215 of 2012, PPH 2216 of 2012, PPH 2217 of 2012, PPH 2218 of 2012, PPH 2219 of 2012, PPH 2220 of 2012, PPH 2221 of 2012

Catchwords:

Appeal against conviction - Gaining benefit with intent to defraud - Whether magistrate relied on failure to present evidence in support of defence - Whether magistrate based findings on other evidence and implausibility of defence - Ground of appeal dismissed

Appeal against conviction - Gaining benefit with intent to defraud - Propensity evidence - Whether adequate reasons given in decision to permit evidence - Whether error to permit evidence of previous convictions - Whether magistrate failed to properly direct herself - Grounds of appeal dismissed - Turns on own facts

Legislation:

Criminal Code (WA), s 409
Evidence Act 1906 (WA), s 31A
Magistrates Courts Act 2004 (WA), s 31

Result:

Leave to appeal granted on each ground
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A L Troy

Respondent:     Ms K C Cook

Solicitors:

Appellant:     Justine Fisher Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Kalmar v Ballantyne [2006] SASC 160; (2006) 95 SASR 42

Onekawa v The State of Western Australia [2012] WASCA 105

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Strahan v Brennan [2014] WASC 190

The State of Western Australia v Vo [2015] WASC 389

WS v Gardin [2015] WASC 97

LE MIERE J: 

Summary

  1. The appellant, Ihsan Yilmaz, was convicted in the Magistrates Court of 18 counts of gaining benefits with intent to defraud, contrary to s 409(1)(c) of the Criminal Code (WA). The appellant was sentenced to 16 months' immediate imprisonment on the first charge and 12 months' imprisonment on each of the other charges to be served concurrently with the term of 16 months. The appellant was made eligible for parole. The court ordered the appellant to pay $30,000 in compensation. The appellant now seeks leave to appeal against his convictions on four grounds. For the reasons which follow, leave to…

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AGLC
Yilmaz v Berecz [2016] WASC 192
Case
[2016] WASC 192
Decision Date

CaseChat Overview and Summary

In the case of Yilmaz v Berecz, the appellant challenged his conviction and sentence in the Magistrates Court of Western Australia for offences of gaining a benefit with intent to defraud. The appeal before the Court was twofold: firstly, the appellant argued that the magistrate had erred in failing to consider evidence presented in support of his defence and had instead based her findings on the implausibility of his defence; and secondly, the appellant contended that the magistrate erred in permitting evidence of his previous convictions and had not given adequate reasons for her decision. The Court of Appeal was tasked with determining whether the magistrate's reasons were adequate and whether the evidence of previous convictions was erroneously admitted.

The primary legal issue before the Court was whether the magistrate provided sufficient reasons for admitting the evidence of the appellant's previous convictions, as required by section 31A of the Evidence Act. The Court also had to consider if the magistrate's decision to admit the propensity evidence was an error and whether this error affected the outcome of the trial. The appellant argued that the magistrate did not properly direct herself on the relevance and admissibility of the evidence in question and that the evidence should not have been admitted due to its prejudicial effect outweighing any probative value. The Crown, on the other hand, contended that the magistrate's reasons were sufficient and that the evidence was correctly admitted as it was relevant to the appellant's propensity to commit the offences.

The Court of Appeal examined the magistrate's reasons for admitting the propensity evidence and concluded that, while the reasons could have been more detailed, they were sufficient in the context of the particular case. The Court noted that the magistrate had considered the relevant authorities and had assessed the evidence in accordance with the statutory criteria set out in section 31A of the Evidence Act. The Court held that the magistrate had not failed to properly direct herself and that the evidence was properly admitted. The Court further found that the magistrate's reasons, when considered in their entirety and in the context of the case, were adequate to disclose the intellectual process that led to her conclusions. The appeal against the conviction and sentence was therefore dismissed, as the Court found no error in the magistrate's handling of the evidence or in her overall decision-making process.

In conclusion, the Court of Appeal upheld the appellant's conviction and sentence, finding no merit in his grounds of appeal. The Court held that the magistrate had provided adequate reasons for admitting the propensity evidence and that there was no error in the magistrate's decision to permit such evidence. The Court emphasised the importance of assessing the adequacy of a magistrate's reasons in the specific context of the case before them and found that, in this instance, the reasons were sufficient to support the magistrate's conclusions. The appeal was dismissed, and the appellant's conviction and sentence stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A magistrate must give adequate reasons for his decision. Both parties submitted that s 31 of the Magistrate Courts Act 2004 (WA) elucidates the content of the magistrate's obligation to give reasons for ruling the propensity evidence admissible pursuant to s 31A of the Evidence Act. Section 31 of the Magistrate Courts Act is:31. Judgments, content of(1)The Court's reasons for a judgment in a case -(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and(c)need not canvass all the evidence given in the case; and(d)need not canvass all the factual and legal arguments or issues arising in the case.(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal. In Strahan v Brennan [2014] WASC 190, Martin CJ, in relation to s 31(1) of the Magistrate Courts Act, observed:Having regard to that section and the context in which the magistrates of this state conduct their judicial business it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.Nevertheless it is clear that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions - Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] ‑ [37] (McLure J, Steytler P & Johnson J agreeing). It is also clear that the adequacy of any magistrate's reasons is to be assessed by looking at the reasons as a whole and includes not only findings expressly made but findings to be inferred from the findings expressly made - Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing). Further, the adequacy of the magistrate's reasons in any particular case must be assessed in the context of that particular case so that what might appear to be unacceptable economy of language might be justified by the manner in which the case was conducted or by the evidence that was adduced - Francis v Todd [2011] WASC 185 [18] (Edelman J) [170]. The magistrate did not reserve his decision; he delivered his reasons straight away after hearing argument. His Honour's reasons must be seen in the context of the materials before him and the argument that preceded his reasons. The materials before the magistrate included detailed written submissions from the prosecution which included reference to the test to be applied by the court under s 31A(2) of the Evidence Act and relevant authorities, including Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 (Donaldson) and Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 (Dair). Counsel for the prosecution made oral submissions in which he identified the similarities between the conduct of the appellant disclosed in the propensity evidence and the conduct of the appellant alleged to constitute the offences with which he was charged.

Ratio Decidendi

Legal Principle Established

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