NSW Caselaw
Industrial Relations Commission of New South Wales in Court Session
CITATION: WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361
APPELLANT: WorkCover Authority of New South Wales (Inspector Franke) PARTIES: RESPONDENT/CROSS APPELLANT: Mr Amer Kanawaty
FILE NUMBER(S): IRC 7530 of 2004
CORAM: Walton J Vice-President; Staunton J; Backman J
CATCHWORDS: Application for leave to appeal and appeal - leave to appeal granted - cross appeal against conviction - contended no mention of criminal standard of proof in Chief Industrial Magistrate's judgment - contended conviction to requisite standard not available on the evidence - no necessary requirement for criminal standard of beyond reasonable doubt to be expressly referred to in judgment - magistrate applied criminal standard - no error in determination of offence pleaded at first instance - leave to appeal refused for cross-appeal - appeal cites manifest inadequacy of penalty - sentencing discretion at first instance - principle of restraint inherent in Crown appeals - residual discretion of Court on appeal not to alter sentence even if error is found - appellant's appeal upheld - sentence at first instance affirmed - cross appeal dismissed - order as to costs.
Crimes (Local Courts Appeal and Review) Act 2001 Evidence Act 1995 Fines Act 1996 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983
Dinsdale v The Queen (2000) 202 CLR 321 Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (2001) 110 IR 71 Markarian v The Queen [2005] HCA 25 (18 May 2005) Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW & Anor (2005) NSWCA 345 CASES CITED: R v Doan (2000) 50 NSWLR 115 R v Timu [2002] NSWCCA 421 R v Winner (1995) 79 A Crim R 528 WorkCover Authority of New South Wales v Jian Chen and Obing Pty Limited t/as Old But New [2004] NSWIRComm 247 WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Limited (2003) 127 IR 60
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