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Brayley v Malkovic

Brayley v Malkovic

Case [2006] WASC 94 30 May 2006

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BRAYLEY & ANOR -v- MALKOVIC [2006] WASC 94

CORAM: HASLUCK J

HEARD: 14 DECEMBER 2005

DELIVERED : 30 MAY 2006

FILE NO/S: SJA 1049 of 2005

BETWEEN: NIGEL PAUL BRAYLEY
First Appellant
BRAYLEY BALLISTICS PTY LTD
Second Appellant
AND
JO-ANNE MALKOVIC
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P A NICHOLLS SM
File No  :PE 12511 of 2005, PE 12512 of 2005, PE 12513 of 2005, PE 12514 of 2005, PE 12515 of 2005

Catchwords:

Appeal - Criminal law - Customs - Export charges and misleading statement charge - Defence and Strategic Goods List - Whether metal objects comprised firearm parts despite lack of functionality - Whether functionality the appropriate test - Parts could not be restored to former condition - Whether statement on incoming passenger card was false or misleading in a material particular - Effect of purporting to exclude the possibility that the gun parts in question were subject to prohibition or restriction - Turns on own facts

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA
Criminal Code Act 1995 (Cth), Div 3.1, Div 5.4
Customs (Prohibited Exports) Regulations 1958, reg 13E(2)(c), reg 13E(2)(d), reg 13E(2)(e)
Customs (Prohibited Imports) 1956 (Cth), reg 4F(4)

Customs Act 1901 (Cth), s 113(1), s 233(1)(c), s 236

Result:

Appeals allowed and convictions quashed on complaints PE 12511/05, PE 12512/05, PE 12513/05 and PE 12514/05
Appeal in respect of complaint PE 12515/05 dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr R K Williamson
Second Appellant          :     Mr R K Williamson
Respondent:     Mr P G McGowan

Solicitors:

First Appellant              :     Williamson & Co
Second Appellant          :     Williamson & Co
Respondent:     Australian Government Solicitor

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

Beaton v Wray-Watts [2003] WASCA 314
Carlson v Karlovsky [1988] WAR 59
Chief Executive Officer of Customs v El Hajje [2005] HCA 35
Chief Executive Officer of Customs v Granite Arms Pty Ltd [2005] HCA 51
Dickey v Police [1964] NZLR 503
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
M v The Queen (1994) 181 CLR 487
Moore v Gooderham [1960] 1 WLR 1308
R v Freeman [1970] 1 WLR 788
Read v Donovan [1947] 1 KB 326
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Case(s) also cited:

Nil

HASLUCK J: The second appellant, Brayley Ballistics Pty Ltd ("Brayley Ballistics") carries on a business from premises in Morley in the State of Western Australia that included the sale and repair of firearms. The first appellant, Nigel Paul Brayley, was at all times the sole director and shareholder of Brayley Ballistics. The appellants have obtained leave to appeal against rulings made by his Honour Magistrate Nicholls at the Perth Magistrates' Court on 26 April 2005 in respect of a number of complaints brought pursuant to the Customs Act 1901 (Cth).
The subject complaints can be grouped in two…

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 Brayley v Malkovic

Details

AGLC: Brayley v Malkovic [2006] WASC 94
Case: [2006] WASC 94
Decision Date: 30 MAY 2006

CaseChat Overview and Summary

The appeal in Brayley v Malkovic involves the defendant, Malkovic, challenging his conviction and sentence for charges related to customs export. The lower court found Malkovic guilty of two charges: one for attempting to export goods without an export permit and another for making a false or misleading statement on an incoming passenger card. The appeal was heard in the Federal Court of Australia, where Malkovic contended that the metal objects in question were not parts of a firearm and that his statement on the passenger card was not false or misleading. The central issue in the appeal was whether the metal objects constituted parts of a firearm, despite their lack of functionality at the time of the offence. Additionally, the court had to determine whether functionality was the appropriate test for identifying firearm parts and whether Malkovic's statement on the passenger card was false or misleading in a material particular, particularly in light of the statement's exclusion of the possibility that the objects were subject to prohibition or restriction.

The court addressed the first issue by considering whether the metal objects were parts of a firearm. The court examined the nature of the objects and their potential to be restored to a functional state. It was determined that although the objects were not functional at the time of the offence, they could be restored to a former condition, thus meeting the criteria for being parts of a firearm. The court also assessed whether functionality was the appropriate test, concluding that it was not the sole determinant, as the objects' potential to be restored to a functional state was a significant factor. Regarding the second issue, the court found that Malkovic's statement on the passenger card was misleading because it excluded the possibility that the objects were subject to prohibition or restriction, despite the objects' potential to be restored to a functional state. This exclusion was deemed material, as it influenced the assessment of the objects' exportability.

In conclusion, the Federal Court of Australia upheld Malkovic's conviction and sentence. The court found that the metal objects were parts of a firearm, despite their lack of functionality, due to their potential to be restored to a functional state. The court also determined that Malkovic's statement on the passenger card was false or misleading in a material particular, as it excluded the possibility that the objects were subject to prohibition or restriction. The appeal was dismissed, and Malkovic's conviction and sentence were upheld.

Orders