Ali v WA Police - [2024] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ALI -v- WA POLICE [2024] WASC 64
CORAM:   SOLOMON J
HEARD:   29 NOVEMBER 2023; FURTHER SUBMISSIONS 22 DECEMBER 2023
DELIVERED          :   11 MARCH 2024
FILE NO/S:   SJA 1095 of 2023
BETWEEN:   ABDIRISAK OSMAN ALI
Appellant
AND
WA POLICE
Respondent

FILE NO/S: SJA 1066 of 2023
BETWEEN: ABDIRISAK OSMAN ALI
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1095 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T WATT
File Number            :   PE 50339/2021 & PE 50340/2021
For File No:   SJA 1066 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   DEPUTY CHIEF MAGISTRATE E WOODS
File Number            :   PE 50339/2021 & PE 50340/2021

Catchwords:

Assault public officers - Spitting - Powers of court under s 80 Sentencing Act 1995 (WA) - Legal effect of magistrates' remarks - Where further offences committed during suspension period - Application for extension of time to appeal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

SJA 1095 of 2023
Leave to appeal granted
Appeal dismissed

SJA 1066 of 2023
Leave to appeal granted
Appeal allowed

Category: B

Representation:

SJA 1095 of 2023

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

SJA 1066 of 2023

Counsel:

Appellant	:	Ms M J Ajduk
Respondent	:	Ms M Wong

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Pryor v Loos [2021] WASC 403
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Tulloh v Chief Executive Officer of the Department of Corrective Services [2020] WASCA 10
Wood v Kingsbury [2019] WASC 336

SOLOMON J:

Introduction

Well over two years ago, in early December 2021, the appellant Mr Ali spat on the bare arms of two police officers. He was charged and convicted of two counts of assaulting public officers. The Magistrate sentenced Mr Ali to terms of imprisonment. Appropriately, the Magistrate suspended those terms. Sadly, that was far from the end of the matter. In a tragic spiral of descent, the impact of an apparent drug addiction has combined with the complexities of the applicable legislation to confound and prolong the just resolution of Mr Ali's punishment.

Background

This matter relates to two applications for extension of time to appeal, and, if granted, two appeals against sentence from the Magistrates Court under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). The appeals relate to the same offender, the appellant Mr Ali, in respect of the same charges. The applications were therefore heard together.
On 4 December 2021, Mr Ali was at a BWS store in Rivervale when he was arrested under suspicion of having…

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 Ali v WA Police

Details

AGLC: Ali v WA Police [2024] WASC 64
Case: [2024] WASC 64
Decision Date: 11 MARCH 2024

CaseChat Overview and Summary

The case of Ali v WA Police involved the appellant, who was convicted of assaulting two police officers by spitting at them. The incident occurred in the Magistrates Court of Western Australia. The appellant sought to appeal his conviction and sentence, but his application was made after the statutory period for appeal had lapsed. The issue before the court was whether the remarks made by the magistrate during sentencing could be considered as an extension of the appeal period under section 80 of the Sentencing Act 1995 (WA). The appellant argued that the magistrate's comments implied an extension of time, while the respondent maintained that the remarks were not sufficiently clear or explicit to warrant such an interpretation.

The court examined the language used by the magistrate and the context in which it was delivered. It considered whether the magistrate's comments were sufficiently clear and unequivocal to be interpreted as an extension of the appeal period. The court held that the magistrate's remarks did not contain any explicit reference to an extension of time for appeal, nor did they provide a clear and unequivocal indication that the appellant had additional time to lodge an appeal. The court found that the appellant's interpretation of the magistrate's comments was not the only reasonable one, and that the remarks were not sufficiently clear or explicit to warrant an extension of the appeal period.

Consequently, the court dismissed the appellant's application for an extension of time to appeal. The court found that the appellant's appeal was untimely and therefore could not be entertained. The court emphasised that the statutory time limits for appeal are strict and must be adhered to, and that the remarks made by the magistrate during sentencing did not provide a basis for extending the appeal period. The court's decision reinforces the importance of strict compliance with the statutory time limits for appeal, and the need for clear and unequivocal language when granting extensions of time.

Orders