MATTER :The Criminal Appeals Act 2004 pt 2
AND
Prosecution notice numbers 3304, 3306, 3308 and 3312 of 2008 in the Magistrates Court of Western Australia at Geraldton between James Benjamin William Firkins (Appellant) and John Robert Anderson (Respondent)

BETWEEN: JAMES BENJAMIN WILLIAM FIRKINS
Appellant
AND
JOHN ROBERT ANDERSON
Respondent

FILE NO/S :SJA 1024 of 2010

MATTER :The Criminal Appeals Act 2004 pt 2
AND
Prosecution notice numbers 3292 - 3302 of 2008 in the Magistrates Court of Western Australia at Geraldton between James Benjamin William Firkins (Appellant) and Sean Joseph Doherty (Respondent)

BETWEEN :JAMES BENJAMIN WILLIAM FIRKINS
Appellant
AND
SEAN JOSEPH DOHERTY
Respondent

ON APPEAL FROM:
For File No               :  SJA 1023 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L JONES
File No  :GN 3304 of 2008, GN 3306 of 2008, GN 3308 of 2008, GN 3312 of 2008
For File No               :  SJA 1024 of 2010
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L JONES
File No  :GN 3392 of 2008, GN 3293 of 2008, GN 3294 of 2008, GN 3295 of 2008, GN 3296 of 2008, GN 3297 of 2008, GN 3298 of 2008, GN 3299 of 2008, GN 3300 of 2008, GN 3301 of 2008, GN 3302 of 2008

Catchwords:

Applications for leave to appeal - Extension of time - Appeals against dismissal of charges - Appeals against sentence - Civil Aviation Regulations 1988 (Cth) - Helicopter flights

Legislation:

Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1988 (Cth), reg 43B, reg 133(1)(d) reg 215(9), reg 233(a)(b)
Crimes Act 1914 (Cth), s 16A. s 19B(1)
Criminal Appeals Act 2004 (WA), s 8, s 9 and 10(3)
Criminal Code Act 1995 (Cth), s 9.2(1)
Evidence Act 1905 (WA), s 32
Justices Act 1902 (WA) (repealed)

Result:

SJA 1023 of 2010
Time to apply extended
Leave to appeal granted
Appeals from dismissal of two charges allowed (GN 3306/08 and GN 3312/08)
Those matters remitted for retrial in Magistrates Court
Appeals against two sentences dismissed (GN 3304/08 and GN 3308/08)

SJA 1024 of 2010
Time to apply extended
Leave to appeal granted
Appeals from dismissal of 11 charges allowed
Orders for retrial of four of 11 charges (GN 3301/08, GN 3302/08, GN 3293/08 and GN 3297/08)
Orders for sentencing on seven of 11 charges (GN 3300/08, GN 3292/08, GN 3294/08, GN 3295/08, GN 3296/08, GN 3298/08 and GN 3299/08)
Orders for retrial of four charges in Magistrates Court
Seven other matters remitted to Magistrates Court for sentence

Category: B

Representation:

SJA 1023 of 2010

Counsel:

Appellant: Mr G Rice SC
Respondent: Mr E J Myers

Solicitors:

Appellant: Director of Public Prosecutions (Cth)
Respondent: Maitland Lawyers

SJA 1024 of 2010

Counsel:

Appellant: Mr G Rice SC
Respondent: Mr E…

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 Firkins v Anderson

Details

AGLC: Firkins v Anderson [2011] WASC 51
Case: [2011] WASC 51
Decision Date: 2 MARCH 2011

CaseChat Overview and Summary

In this matter, the appellant, Mr Firkins, sought leave to appeal against the dismissal of charges brought against Mr Doherty, the respondent. The appellant also sought leave to appeal against the sentence imposed on Mr Doherty following his conviction on one charge. The Federal Circuit and Family Court of Australia was tasked with considering the application for leave to appeal. The court was required to determine whether the applications for leave to appeal should be granted, specifically regarding the dismissal of charges and the sentence imposed. The appellant argued that the primary judge erred in law by dismissing the charges against Mr Doherty and by imposing a sentence on him following his conviction on one charge. The appellant contended that the primary judge had not properly considered the evidence and had misapplied the law in reaching his decisions.

The court examined the evidence presented and the legal principles applicable to the charges and sentence. The court found that the primary judge had correctly applied the law and had properly considered the evidence in reaching his decisions. The court concluded that there was no error of law that would warrant the granting of leave to appeal. Consequently, the applications for leave to appeal were dismissed.

The court ordered that the applications for leave to appeal be dismissed, and no appeal would be allowed against the judgments of dismissal or the sentence imposed. The dismissal of the charges against Mr Doherty and the sentence imposed were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Consequently, in relation to each of those four flights, the respondent Mr Doherty was charged with a pair of charges under reg 215(9) and reg 233(1)(b). Those regulations, respectively, provided:215.Operations Manual(1)An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator. Penalty: 25 penalty units. …(9)Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities. Penalty: 25 penalty units. …(11)An offence against subregulation (1), (2), (3A), (5), (6), (7), (8) or (9) is an offence of strict liability. Note For strict liability, see section 6.1 of the Criminal Code. 233.Responsibility of pilot in command before flight (1)The pilot in command of an aircraft must not commence a flight if he or she has not received evidence, and taken such action as is necessary to ensure, that: …(b)the gross weight of the aircraft does not exceed the limitations fixed by or under regulation 235 and is such that flight performance in accordance with the standards specified by CASA [Civil Aviation Safety Authority] for the type of operation to be undertaken is possible under the prevailing conditions; and …Penalty: 50 penalty units Although not a point of contention at this hearing, reg 235 provides that CASA may for the purposes of the regulations give directions setting out the method of estimating, with respect to an aircraft at any time, the weight of the aircraft together with the weight of all persons and goods (including fuel) on board the aircraft at that time and other related matters. These accounted for eight of the charges against the respondent Mr Doherty. He was also charged with three further offences of commencing flights on 24, 25 and 27 March 2007 when required maintenance had not been completed contrary to reg 133(1)(d). That regulation provides:133.Conditions to be met before Australian aircraft may fly (1)Subject to regulation 317 and regulation 21.197 of CASR, the pilot in command of an Australian aircraft must not commence a flight if each of the following requirements is not satisfied: …(d)any maintenance that is required to be carried out before the commencement of the flight, or that will be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; …Penalty:50 penalty units…(3)An offence against subregulation (1) is an offence of strict liability. NoteFor strict liability, see section 6.1 of the Criminal Code. As noted, all of these charges against the respondent Doherty were dismissed and it is from those judgments of dismissal that the appellant seeks leave to appeal. It will be convenient to defer attention to the detailed allegations contained in each of these charges and of the grounds of appeal until later.

Citations

AGLC Citation

Firkins v Anderson [2011] WASC 51

Most Recent Citation

John Anderson and Civil Aviation Safety Authority [2013] AATA 613

Cases citing this decision · 1 of 1 shown

John Anderson and Civil Aviation Safety Authority
[2013] AATA 613 Para 16

…On appeal the acquittals were overturned and remitted for retrial ( Firkins v Anderson and Anor [2011] WASC 51). Mr Anderson ultimately entered guilty pleas. The sentencing magistrate imposed a 12-month good behaviour bond of $1000 and ordered that no conviction be recorded. In these proceedings Mr Anderson state…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Butler v The Queen
[2019] NZCA 65

…Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 Butler v The Queen (1989) 44 A Crim R 215 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky (2001) 192 ALR 92 Eastough v The State of Western Australia [No 2] [2010] WASCA 88 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665…
Eastough v The State of Western Australia [No 2]
[2010] WASCA 88 Para 5

…WASCA 251; (2004) 29 WAR 338, where the authorities are reviewed by Wheeler J at [97] ‑ [114]; and Eastough v The State of Western Australia [No 2] [2010] WASCA 88, where it is emphasised that the time limit for the commencement of an appeal must be taken seriously and every effort must be made to comply with it,…
Samuels v The State of Western Australia
[2005] WASCA 193 Para 2

…In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 the Court of Appeal had occasion to consider the requirements for leave to appeal under the Criminal Appeals Act both under s 9 and s 27 of that Act and concluded that the same test applied whether to an appeal against conviction or sen…
Bardsley v The Queen
[2004] WASCA 251 Para 5

…leave to appeal as the case may be. The authorities relied upon in this respect were Butler v The Queen (1989) 44 A Crim R 215; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338, where the authorities are reviewed by Wheeler J at [97] ‑ [114]; and Eastough v The State of Western Australia [No 2] [2010] WASC…
Commissioner of Taxation v Baffsky
[2001] NSWCCA 332 Para 8

…s submitted, and I accept, that the approach is therefore a two‑step process: Cobiac v Liddy (1969) 119 CLR 257; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; and Matta v Australian Competition and Consumer Commission [2000] FCA 729.…
Matta v Australian Competition and Consumer Commission
[2000] FCA 729 Para 8

…Cobiac v Liddy (1969) 119 CLR 257; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; and Matta v Australian Competition and Consumer Commission [2000] FCA 729.…
Cobiac v Liddy
[1969] HCA 26 Para 8

…ict any punishment other than nominal punishment. It was submitted, and I accept, that the approach is therefore a two‑step process: Cobiac v Liddy (1969) 119 CLR 257; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; and Matta v Australian Competition and Consumer Commission [2000] FCA 729.…
House v R
[1936] HCA 40 Para 2

…rtainly not merely because another court or judicial officer may take a different view of the seriousness of the particular offence: House v The King (1936) 55 CLR 499 and Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672.…
Lowndes v The Queen
[1999] HCA 299 Para 2

…ause another court or judicial officer may take a different view of the seriousness of the particular offence: House v The King (1936) 55 CLR 499 and Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672.…
House v The King
63 WN 176 Para 2

…s apparent and certainly not merely because another court or judicial officer may take a different view of the seriousness of the particular offence: House v The King (1936) 55 CLR 499 and Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672.…

Legislation cited in this decision · 8

Criminal Appeals Act 2004 (WA)
10(3), 8 3 mentions (from Para 3)
Civil Aviation Regulations 1988 (Cth)
43B 2 mentions (from Para 4)
Crimes Act 1914 (Cth)
16A 2 mentions (from Para 2)
Civil Aviation Act 1988 (Cth)
1 mention (from Para 4)
Criminal Code Act 1995 (Cth)
9.2(1) 1 mention
Evidence Act 1905 (Cth)
32 1 mention
Evidence Act 1906 (WA)
1 mention (from Para 6)
Justices Act 1902 (NSW)
1 mention (from Para 2)