ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E C DeVRIES
File No  :GN 2766 of 2011

Catchwords:

Application for leave to appeal - Magistrates Court convictions - Whether grounds have reasonable prospects of succeeding - Assault public officer - Obstruct officer - Power of entry under Bush Fires Act 1954 (WA)

Legislation:

Bush Fire Act 1954 (WA), s 14, s 24E, s 24F, s 24G, s 25 s 56
Commonwealth Constitution, s 80
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 5, s 318(1)(d),
Criminal Procedure Act 2004 (WA), s 21, s 23, s 40(4), s 65(4)(d), s 108, s 126, s 142, s 174, pt 3 div 2
Interpretation Act 1984 (WA), s 67

Result:

Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Birch v The Queen (1994) 12 WAR 292
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v Shire of Greenough [2006] WASCA 260
Hedley v Spivey [2011] WASC 325
Kable v DPP (NSW) (1996) 189 CLR 51
Krysiak v Hodgson [2009] WASC 16
Krysiak v Hodgson [2009] WASCA 114
Lipohar v The Queen (1999) 200 CLR 485
Plenty v Dillon (1991) 171 CLR 635
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Spratt v Hermes (1965) 114 CLR 226
Williamson v Hodgson [2010] WASC 95

HALL J: This is an application for leave to appeal against convictions recorded in the Geraldton Magistrates Court on 23 December 2011. On that day the appellant was found guilty of one offence of assaulting a public officer, contrary to s 318(1)(d) of the Criminal Code (WA) and one offence of obstructing an officer in the execution of his duty contrary to s 57 of the Bush Fires Act 1954 (WA). He was fined $1,000 for the first offence, $400 for the second offence and ordered to pay costs.
The appellant now seeks leave to appeal against his convictions. He has filed an appeal notice containing 12 proposed grounds of appeal. The meaning and intent of the proposed grounds is not clear. For that reason, and to provide the appellant an opportunity to establish that leave in respect of the grounds should be granted, a hearing was convened.
Leave of the court is required in respect of each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA). Section 9(2) of the Act provides that the court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. This…

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 Glew v White

Details

AGLC: Glew v White [2012] WASC 100
Case: [2012] WASC 100
Decision Date: 26 MARCH 2012

CaseChat Overview and Summary

In the matter of Glew v White, the applicant, Glew, sought leave to appeal against his convictions in the Magistrates Court for assault and obstructing a public officer. The case arose when officers were executing a warrant under the Bush Fires Act 1954 (WA), and the applicant resisted their entry and subsequently assaulted one of the officers. The applicant contended that the officers had no lawful power to enter his property and that the convictions were therefore erroneous.

The legal issues before the court involved the interpretation of the Bush Fires Act 1954 (WA) and whether the officers had the requisite authority to enter the applicant's property under the warrant. Additionally, the court had to determine whether the applicant's actions constituted an assault and whether his resistance and subsequent assault were justified by the lack of lawful entry. The applicant argued that the officers' actions were unlawful, which in turn rendered his conduct a justified response.

The court considered the statutory framework and found that the officers had the lawful authority to enter the property under the warrant. The court concluded that the officers' actions were in accordance with the provisions of the Bush Fires Act 1954 (WA). The applicant's argument that the officers lacked lawful authority was therefore rejected. Furthermore, the court held that the applicant's actions in resisting and assaulting the officers were unlawful and constituted the offences of assault and obstruction. The applicant's grounds for appeal did not have reasonable prospects of succeeding, and thus the application for leave to appeal was dismissed.

Orders