Fury v WA Police - [2024] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FURY -v- WA POLICE [2024] WASC 153
CORAM:   LEMONIS J
HEARD:   29 JANUARY 2024
DELIVERED          :   2 MAY 2024
PUBLISHED           :   2 MAY 2024
FILE NO/S:   SJA 1063 of 2023
BETWEEN:   JOHN GREGORY FURY
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1063 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MAUGHAN
File Number            :   PE 9174/2023

Catchwords:

Appellant convicted of one offence of displaying insignia of an identified organisation, contrary to s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) - Consideration of what constitutes insignia under the applicable statutory provisions - Consideration of whether it was open to the learned magistrate on the evidence at trial to convict the appellant of the charged offence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)

Interpretation Act 1984 (WA)

Result:

Leave to appeal granted in respect of grounds 1 and 3
Leave refused in respect of ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S F Rafferty SC
Respondent	:	J D Berson

Solicitors:

Appellant	:	Tudori Hager Grubb
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Greenway v Lavers [2023] WASC 311
Holland v Jones (1917) 23 CLR 149
Larussa v The State of Western Australia [2023] WASCA 62
Le v Feakes [2018] WASC 331
Marinovich v The Queen (1990) 46 A Crim R 282
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Cluse [2014] SASFC 97; (2014) 120 SASR 268
R v Garner; R v Webb [2021] SASCA 68
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

LEMONIS J:

The appellant, Mr Fury, was convicted by the learned magistrate after trial of one offence of displaying insignia of an identified organisation in a public place, contrary to s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (the Act).
Mr Fury has a tattoo on the back of his head and neck which states 'CCMC West Coast'. The circumstances giving rise to the offence were that Mr Fury was in a pub, being a public place, and the tattoo was uncovered.
Broadly speaking, the prosecution case against Mr Fury was that the tattoo comprised or included insignia of the Coffin Cheaters organisation, which is an identified organisation under sch 2 of the Act. The prosecution case principally relied on evidence from a police officer as to 'CCMC' being an abbreviation for the Coffin Cheaters organisation.
Mr Fury now appeals against his conviction. The focus of the appeal is on the correct construction of the word 'insignia' where it appears in the Act, and on whether there was sufficient evidence before the learned magistrate to sustain a finding…

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.

Keep reading for free

Create a free CaseChat account to read Fury v WA Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASC 153
Decision Date: 2 MAY 2024

CaseChat Overview and Summary

The appellant, in this case, was convicted by a magistrate of one offence of displaying insignia of an identified organisation, contrary to section 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA). The case was heard in the Court of Appeal of Western Australia. The primary focus of the appeal was the interpretation of what constitutes "insignia" under the applicable statutory provisions and whether the conviction was supported by the evidence presented at the trial.

The court was required to determine the scope of the term "insignia" as it appears in the relevant legislation and whether the evidence was sufficient for the magistrate to convict the appellant of the offence. The appellant argued that the evidence did not support the conviction as it did not clearly establish that the items in question were insignia of a prohibited organisation. The court considered whether the magistrate was correct in finding that the items displayed by the appellant constituted "insignia" under the Act.

The court examined the statutory language and the context in which it was used, considering both the literal meaning and the purpose of the legislation. The court concluded that the items displayed by the appellant were indeed insignia of a prohibited organisation, as they were reasonably identifiable as such by members of the public. The court found that the magistrate was correct in their interpretation of the term "insignia" and that the conviction was supported by the evidence presented. The appeal was dismissed, and the original conviction was upheld.

The Court of Appeal confirmed the conviction of the appellant and affirmed the decision of the magistrate. The court found that the evidence was sufficient to support the conviction and that the magistrate was correct in their interpretation of the term "insignia" under the Act. The appeal was dismissed, and the original conviction stands.

Orders