Ginn (Dec) v WA Police - [2023] WASC 447

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GINN (Dec) -v- WA POLICE [2023] WASC 447
CORAM:   HOWARD J
HEARD:   ON THE PAPERS (LAST SUBMISSIONS
8 NOVEMBER 23)

DELIVERED          :   22 NOVEMBER 2023
FILE NO/S:   SJA 1028 of 2023
BETWEEN:   JAMIE FREDERICK GINN
Appellant
AND
WA POLICE
Respondent

FILE NO/S: SJA 1031 of 2023
BETWEEN: JAMIE FREDERICK GINN
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1028 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 48334/2022 & PE 48355/2022
For File No:   SJA 1031 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HARRIES
File Number            :   PE 1368/2022 & PE 22973/2022

Catchwords:

Criminal law - Appeals against conviction where fines imposed by Magistrates Court - Appellant died before appeals were heard - Whether appeals have abated - Appeals abated and dismissed

Legislation:

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

Result:

Appeals abated and dismissed

Category: B

Representation:

SJA 1028 of 2023

Counsel:

Appellant	:	Not applicable
Respondent	:	J Berson
Amicus Curiae	:	Z A Gilders

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office
Amicus Curiae	:	Z G Law

SJA 1031 of 2023

Counsel:

Appellant	:	Not applicable
Respondent	:	J Berson
Amicus Curiae	:	Z A Gilders

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office
Amicus Curiae	:	Z G Law

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

Bell (dec) v State of Western Australia [2015] WASCA 236
JS v The State of Western Australia [2014] WASCA 177
Perre v R [2023] SASCA 55
Quartermaine v The Queen [2002] WASCA 345
R v Jeffries [1969] 1 QB 120
R v Kearley [1994] 2 AC 414
R v Rowe [1955] 1 QB 573
Sen v R (1991) 30 FCR 173

HOWARD J:

Introduction

By separate Prosecution Notices,[1] the appellant was charged with four offences against s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Prohibited Insignia Act).
[1] Dated 28 October 2022 (PE 48334/2022 and 48335/2022); 9 January 2022 (PE 1368/2022); and 10 June 2022 (PE 22973/2022).
That provision provides:
A person commits an offence if the person displays insignia of an identified organisation in a public place.
Following two trials in the Magistrates Court at Perth:
1.on 20 March 2023, the appellant was convicted of one charge (displaying a tattoo of '1%')[2] (First Conviction); and
2.on 28 March 2023, the appellant was convicted of one charge (displaying a tattoo of '1%')[3] (Second Conviction).
[2] Prosecution Notice: PE 48334/2022.
[3] Prosecution Notice: PE 1368/2022.
On the First Conviction, the appellant was fined $750 and ordered to pay costs of $264.30.
On the Second Conviction, the appellant was fined $1,000 with no order as to costs.

Appeal

The appellant had sought to appeal pursuant to the Criminal Appeals Act 2004 (WA):
1.against the First Conviction by SJA 1028 of…

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.

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Details

Case: [2023] WASC 447
Decision Date: 22 NOVEMBER 2023

CaseChat Overview and Summary

In the case of Ginn (Dec) v WA Police, the deceased appellant, Ginn, was convicted in the Magistrates Court of Western Australia of multiple offences including assault occasioning bodily harm and public nuisance. Following the conviction, fines were imposed, and Ginn appealed the decision. Ginn passed away before the appeals were heard. The respondents, the Western Australia Police, argued that the appeals should be dismissed because the appellant had died before the appeals were heard. The primary issue before the court was whether the death of the appellant had caused the appeals to abate and be dismissed.

The court considered the relevant provisions of the Criminal Law (Sentencing) Act 1995 and other relevant case law. It was noted that under section 414 of the Act, an appeal against a conviction or a sentence is deemed to be abandoned if the appellant dies before the hearing of the appeal. The court found that the death of the appellant had the effect of abating the appeals, as the appellant could no longer be a party to the proceedings. Consequently, the appeals were dismissed.

Given that the appeals were abated due to the death of the appellant, the court did not proceed to consider the merits of the appeals. Therefore, the appeals were dismissed, and no further orders were made by the court.

Orders