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Cunningham v Khan

Cunningham v Khan

Case [2006] WASC 28 23 February 2006

Spent Convictions Act 1988 (WA)

Migration Act 1958 (Cth)

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CUNNINGHAM -v- KHAN [2006] WASC 28

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 28
Case No:	SJA:1117/2005	Heard:	16 FEBRUARY 2006
Coram:	MCKECHNIE J	Delivered:	23/02/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order quashed
Category:	A
PDF Version

Parties:	MARK FREEMAN CUNNINGHAM QAMAR NASEEB KHAN
Catchwords:	Criminal law and procedure Spent conviction Conviction may prejudice visa application Whether relevant consideration
Legislation:	Criminal Procedure Act 2004 (WA), s 147(1), s 148 Migration Act 1958 (Cth), s 501 Sentencing Act 1995 (WA), s 39, s 45 Spent Convictions Act 1988 (WA)
Case References:	Bensegger v The Queen [1979] WAR 65 Brewer v Bayens (2002) 26 WAR 510 Leucus (1995) 78 A Crim R 40 Lowndes v The Queen (1999) 195 CLR 665 Lynch v Heidrich & McGrath [2002] WASCA 154 Neale v Sloan (1997) 27 MVR 246 R v Aloia [1983] WAR 133 R v Tognini (2000) 22 WAR 291 "A" v Ray [2001] WASCA 340 Dauphin v The Queen [2002] WASCA 104 Koenig v Alizadeh [2002] WASCA 267 R v Shrestha (1991) 173 CLR 48 Riley v Gill, unreported, SCt of WA; Library No 970731; 8 December 1997 Tambyrajah v Gablonski (2004) 147 A Crim R 18 Yam (1991) 55 A Crim R 116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CUNNINGHAM -v- KHAN [2006] WASC 28 CORAM : MCKECHNIE J HEARD : 16 FEBRUARY 2006 DELIVERED : 23 FEBRUARY 2006 FILE NO/S : SJA 1117 of 2005 BETWEEN : MARK FREEMAN CUNNINGHAM

Appellant

AND

QAMAR NASEEB KHAN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE L H JONES

File No : PE 42699 of 2005, PE 42700 of 2005, PE 42701 of 2005, PE 42702 of 2005, PE 42703 of 2005, PE 42704 of 2005, PE 42705 of 2005

Catchwords:

Criminal law and procedure - Spent conviction - Conviction may prejudice visa application - Whether relevant consideration

(Page 2)

Legislation:

Criminal Procedure Act 2004 (WA), s 147(1), s 148

Migration Act 1958 (Cth), s 501
Sentencing Act 1995 (WA), s 39, s 45
Spent Convictions Act 1988 (WA)

Result:

Appeal allowed

Spent conviction order quashed

Category: A

Representation:

Counsel:

Appellant : Mr C G Astill

Respondent : Mr P J Urquhart

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Mark Andrews & Associates

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

Bensegger v The Queen [1979] WAR 65
Brewer v Bayens (2002) 26 WAR 510
Leucus (1995) 78 A Crim R 40
Lowndes v The Queen (1999) 195 CLR 665
Lynch v Heidrich & McGrath [2002] WASCA 154
Neale v Sloan (1997) 27 MVR 246
R v Aloia [1983] WAR 133
R v Tognini (2000) 22 WAR 291

(Page 3)

Case(s) also cited:

"A" v Ray [2001] WASCA 340
Dauphin v The Queen [2002] WASCA 104
Koenig v Alizadeh [2002] WASCA 267
R v Shrestha (1991) 173 CLR 48
Riley v Gill, unreported, SCt of WA; Library No 970731; 8…

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 Cunningham v Khan

Details

AGLC: Cunningham v Khan [2006] WASC 28
Case: [2006] WASC 28
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Mark Freeman Cunningham appealed against a decision made by the Magistrates Court of Western Australia in relation to a spent conviction order granted to Qamar Naseeb Khan. The central issue in the appeal was whether the Magistrate's decision to grant Khan a spent conviction order was erroneous. The appeal hinged on three specific contentions: whether the Magistrate failed to consider the public interest, incorrectly assessed Khan's employment prospects, and improperly took into account the potential impact on Khan's visa application. The court meticulously reviewed the Magistrate's discretion, the legal principles guiding the imposition of a spent conviction order, and the relevant legislative frameworks.

The court concluded that while the Magistrate did not explicitly mention public interest, it was unlikely that he overlooked it entirely. The court also found that the Magistrate was not obliged to further inquire into Khan's employment prospects, given the available evidence. However, the court determined that the Magistrate erred in considering the potential impact on Khan's visa application when deciding on the spent conviction order. Under the Migration Act 1958 (Cth), a spent conviction order does not nullify a conviction for the purposes of the character test, meaning the conviction remains relevant.

Given the identified error of principle, the Supreme Court exercised its discretion afresh, taking into account the public interest, the nature and number of the offences, and the potential adverse effects on Khan's mental health and employment prospects. Ultimately, the Supreme Court upheld the appeal, set aside the spent conviction order, and concluded that a spent conviction order should not be made.

Orders