Brameld v Salt - [2010] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRAMELD -v- SALT [2010] WASC 227

CORAM: EM HEENAN J

HEARD: 26 JULY 2010

DELIVERED : 26 JULY 2010

PUBLISHED : 26 AUGUST 2010

FILE NO/S: SJA 1015 of 2010

MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice number PE 9537/10 in the Magistrates Court of Western Australia at Perth

BETWEEN: CLAYTON AARON KIRK BRAMELD
Applicant
AND
KYNE ANTONY ROYLE SALT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
File No  :PE 9537 of 2010

Catchwords:

Application for leave to appeal - Conviction for possessing a controlled weapon - Weapons Act 1999 (WA) s 7(2)(b) - Plea of guilty - Order for forfeiture of commercial grade compound bow and arrows - No error of magistrate shown - Application for leave to appeal refused

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14(2)
Weapons Act 1999 (WA), s 3, s 7(2)(b), s 16
Weapons Regulations 1999 (WA)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms R Young

Solicitors:

Applicant: In person
Respondent: State Solicitor's Office

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

Coumbe v Whittaker [1999] WASCA 151
Horsman v Bishop [2000] WASCA 316
Jaworski v Police [2009] SASC 284

EM HEENAN J: At the conclusion of the hearing of this application by which time it had become apparent, and accepted by the applicant, that the learned magistrate had made no error of law or fact in reaching the decision and making the orders which led to this application for leave to appeal, I dismissed the application for leave to appeal with costs. Nevertheless, it is necessary that I set out in more detail my reasons for that conclusion and those orders, as I now do.

Background

At about 6.30 pm on 4 December 2009 the respondent, Constable Salt, a police officer, attended at the P H Dodd Reserve situated at the intersection of Fisher Street and Tonkin Highway, Belmont, together with two other constables. Their visit was as a result of a complaint by a neighbour that some person was firing arrows from a bow in the reserve. The P H Dodd Reserve is located on the north‑western side of Tonkin Highway and comprises an area of mixed open grassed ground with other pockets of bushland. On the south‑eastern side it is bounded by Tonkin Highway but to the south‑west and north-west there are houses in a typical suburban garden layout. On arrival, Constable Salt observed an archery target set up in the centre of the reserve and a person, whom he later identified as the applicant, in nearby bushes retrieving arrows. The applicant readily acknowledged that he had been using his compound bow to fire arrows at the target in the reserve and explained that he had taken precautions, had a clear field ahead, and that he would have lowered the bow had any person walked…

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 Brameld v Salt

Details

AGLC: Brameld v Salt [2010] WASC 227
Case: [2010] WASC 227
Decision Date: 26 AUGUST 2010

CaseChat Overview and Summary

The applicant, Brameld, applied to the court for leave to appeal against a conviction for possessing a controlled weapon. The conviction was made under section 7(2)(b) of the Weapons Act 1999 (WA), and the matter was heard by a magistrate. Brameld had entered a plea of guilty to the charge and subsequently, an order was made for the forfeiture of his commercial grade compound bow and arrows. The applicant sought to challenge the conviction and the order for forfeiture, claiming that the magistrate had erred in the proceedings.

The primary legal issue before the court was whether the magistrate had made an error in convicting Brameld and ordering the forfeiture of his property. The applicant argued that the magistrate had not correctly applied the relevant provisions of the Weapons Act 1999 (WA) or had not considered all relevant factors in making the order for forfeiture. The court needed to determine if there were any errors made by the magistrate that warranted an appeal.

The court examined the magistrate's decision and found no error in the proceedings. The court held that the magistrate had correctly applied the law and had considered all relevant factors in making the order for forfeiture. The court concluded that there was no basis for an appeal and therefore, the application for leave to appeal was refused. The conviction and the order for forfeiture were upheld.

No further orders were made by the court. The applicant's application for leave to appeal was dismissed, and the conviction and order for forfeiture remained in place.

Orders