Cunningham v Khan

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.