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Brockway v Kirk

Brockway v Kirk

Case [2019] WASC 8 17 January 2019

Appeal

Miscarriage of Justice

Jurisdiction

Statutory Construction

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BROCKWAY -v- KIRK [2019] WASC 8
CORAM:   ACTING JUSTICE STRK
HEARD:   15 JANUARY 2019
DELIVERED          :   15 JANUARY 2019
PUBLISHED           :   17 JANUARY 2019
FILE NO/S:   SJA 1044 of 2018
BETWEEN:   ANDREW NICHOLAS BROCKWAY
Appellant
AND
DYLAN KIRK
Respondent

ON APPEAL FROM:
For File No:   SJA 1044 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J A HAWKINS
File Number            :   PE 1780 of 2018

Catchwords:

Criminal law - Appeal against conviction - Extension of time to appeal - Leave to appeal - Miscarriage of justice - Prosecution for an offence under the Medicines and Poisons Act 2014 (WA) - Prosecution notice signed by a police officer - Prosecution was commenced by a person not authorised - Proper construction of the Medicines and Poisons Act 2014 (WA) s 122 - Prosecution wholly invalid

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 10(3)
Criminal Procedure Act 2004 (WA), s 19, s 20(2), s 20(3)(a)(iii), s 20(4), s 20(5), s 169, s 173, s 178
Magistrates Court Act 2004 (WA), s 9, s 11
Medicines and Poisons Act 2014 (WA), s 3, s 4, s 14(4), s 122, s 137
Medicines and Poisons Regulations 2016 (WA), reg 6
Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6)
Poisons Act 1964 (WA)
Sentencing Act 1995 (WA), s 54

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	M Barone SC & R Owen
Respondent	:	H Richardson

Solicitors:

Appellant	:	Rob Owen Barrister & Solicitor
Respondent	:	State Solicitor for Western Australia

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Jackson [1997] 2 Cr App Rep 497
R v Janceski [2005] NSWCCA 281
R v Morais (1998) 87 Cr App Rep 9
Re His Honour Magistrate Roth; Ex parte Ridge [2016] WASC 121
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Spagnolo v Flynn [2014] WASC 88
The King v Bates [1911] I KB 964
Wimbridge v The State of Western Australia [2009] WASCA 196

ACTING JUSTICE STRK:

(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from the transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)

This is an appeal against conviction in the Magistrates Court of Western Australia of an offence under the Medicines and Poisons Act 2014 (WA).
The appellant is one of 28 appellants who have commenced separate appeals against their respective convictions in the Magistrates Court for offences under the Medicines and Poisons Act

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 Brockway v Kirk

Details

AGLC: Brockway v Kirk [2019] WASC 8
Case: [2019] WASC 8
Decision Date: 17 JANUARY 2019

CaseChat Overview and Summary

In the case of Brockway v Kirk, the appellant, Brockway, sought an extension of time to appeal against his conviction for an offence under the Medicines and Poisons Act 2014 (WA). The appeal was based on the grounds that the prosecution was wholly invalid due to the prosecution notice being signed by a police officer rather than a person authorised under section 122 of the Act. The Court of Appeal was tasked with determining whether the prosecution was invalid and if the appeal should be allowed despite the late filing.

The primary legal issue before the court was the interpretation and application of section 122 of the Medicines and Poisons Act 2014 (WA), which sets out the requirements for the commencement of a prosecution. Specifically, the court had to consider whether the signing of the prosecution notice by an unauthorised person rendered the entire prosecution invalid. The court also needed to determine if the appeal should proceed despite the late filing, given the circumstances of the invalid prosecution.

The Court of Appeal found that the prosecution notice was indeed invalid as it was signed by a police officer, who was not an authorised person under section 122 of the Act. The court held that the prosecution was therefore wholly invalid. Given the miscarriage of justice resulting from this invalid prosecution, the Court granted leave to appeal despite the late filing of the appeal. The court emphasised that allowing the appeal was necessary to rectify the miscarriage of justice and ensure the proper administration of justice.

The Court of Appeal allowed the appeal and quashed the conviction. It ordered that a new trial be conducted with proper authorisation for the commencement of the prosecution, in accordance with the requirements of the Medicines and Poisons Act 2014 (WA).

Orders