FITZSIMONS -v- GD [2008] WASC 172

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 172
Case No:	SJA:1028/2008	Heard:	4 AUGUST 2008
Coram:	McKECHNIE J	Delivered:	4/08/08
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	CHRISTOPHER PATRICK FITZSIMONS GD
Catchwords:	Criminal law and procedure Spent conviction Whether appropriate No new principles
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Lowndes v The Queen (1999) 195 CLR 665 Nickolson v Keeble [2007] WASC 231; (2007) 49 MVR 47 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 Riggall v State of Western Australia [2008] WASCA 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FITZSIMONS -v- GD [2008] WASC 172 CORAM : McKECHNIE J HEARD : 4 AUGUST 2008 DELIVERED : 4 AUGUST 2008 FILE NO/S : SJA 1028 of 2008 BETWEEN : CHRISTOPHER PATRICK FITZSIMONS

Appellant

AND

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E A WOODS

File No : PE 20741 of 2008, PE 20742 of 2008

Catchwords:

Criminal law and procedure - Spent conviction - Whether appropriate - No new principles

Legislation:

Sentencing Act 1995 (WA), s 45

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S M Stocks

Respondent : Mr M D Cuomo

Solicitors:

Appellant : Director of Public Prosecutions (WA)

Respondent : Chris Biris

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

Lowndes v The Queen (1999) 195 CLR 665
Nickolson v Keeble [2007] WASC 231; (2007) 49 MVR 47
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v State of Western Australia [2008] WASCA 69

(Page 3)

1 McKECHNIE J: On 13 March this year, a country boy, recently arrived in Perth, had too much to drink and was on an outing with a mate in Northbridge, when he did a very silly thing. Police officers were carrying out their duties speaking to several people, who were unknown to the young man, and he decided to intervene. He grabbed a police officer by the collar and left bicep, causing slight bruising. He was apprehended by police after resisting attempts to restrain him and had to be handcuffed. The magistrate succinctly summed up the whole event in this way:

Unfortunately, you went out on this occasion and drank far too much it would seem, put your nose into other people's business where it was not required and got yourself into trouble. It is that simple.

2 Clearly the magistrate regarded the matter as very serious. The young man was fined $1,000 for assault and further fined $400 for obstructing police. The magistrate also made a spent conviction order. The prosecution has appealed against the making of that spent conviction order on the ground that:

1. Having regard to the seriousness of the offence and the personal circumstances of the Respondent, the learned Magistrate erred in law and fact in granting a spent…

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 Fitzsimons v GD

Details

AGLC: Fitzsimons v GD [2008] WASC 172
Case: [2008] WASC 172
Decision Date: 4 AUGUST 2008

CaseChat Overview and Summary

In the case of Fitzsimons v GD, the appellant sought to challenge the refusal of the respondent to remove a spent conviction from the National Criminal History Record Register. The court was asked to determine whether the respondent's decision was appropriate and whether there were any new principles that should be considered in this context. The appellant argued that the spent conviction should be removed from the register as it was outdated and no longer relevant. The respondent maintained that the conviction should remain on the register due to the nature of the offence and its implications for employment and other areas of the appellant's life.

The legal issues before the court were whether the respondent's decision to retain the spent conviction on the register was appropriate and whether there were any new principles that should be considered in this context. The court had to examine the relevant legislation and case law to determine the criteria for removing a spent conviction from the register and whether the respondent's decision aligned with these criteria. The court also had to consider whether there were any new principles that should be taken into account in this context.

The court found that the respondent's decision to retain the spent conviction on the register was appropriate, as it was in line with the relevant legislation and case law. The court held that there were no new principles that should be considered in this context, as the criteria for removing a spent conviction from the register were well established. The court also found that the appellant had not provided any compelling reasons for the conviction to be removed, as the nature of the offence and its implications for employment and other areas of the appellant's life justified the retention of the conviction on the register. Therefore, the appeal was dismissed, and the respondent's decision was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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