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Greenway v Lavers

Greenway v Lavers

Case [2023] WASC 311 18 August 2023

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GREENWAY -v- LAVERS [2023] WASC 311
CORAM:   LEMONIS J
HEARD:   21 JULY 2023
DELIVERED          :   18 AUGUST 2023
FILE NO/S:   SJA 1026 of 2023
BETWEEN:   NATHAN NORMAN GREENWAY
Appellant
AND
PATRICK LAVERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B A AYLING
File Number            :   FR 489/2022

Catchwords:

Offence of display of insignia of an identified organisation in a public place - Appellant found guilty at trial - Whether the learned magistrate identified and considered requisite elements of the offence - Consideration of appropriate orders in circumstances where the learned magistrate did not do so

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)

Result:

Appeal allowed
Retrial ordered

Representation:

Counsel:

Appellant	:	Mr C C Porter
Respondent	:	Mr J D Berson

Solicitors:

Appellant	:	Terry Dobson Legal
Respondent	:	State Solicitor's Office

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Gartner v Brennan [2016] WASC 89
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Larussa v The State of Western Australia [2023] WASCA 62
McGahan v Royal Borough of Windsor & Maidenhead Council [2002] EWHC 1551
Mohammadi v Bethune [2018] WASCA 98
Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 [45]; (2005) 224 CLR 193
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wimbridge v The State of Western Australia [2009] WASCA 196

LEMONIS J:

On 10 January 2023, the appellant (Mr Greenway) was convicted by the learned magistrate after trial of one offence of displaying insignia of an identified organisation in a public place. This is an offence under s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (the Act).
The prosecution alleged at trial that Mr Greenway wore a ring marked with insignia of the Comanchero organisation in a public section of the Raffles Hotel. Mr Greenway accepts that he did so and that the Comanchero is an identified organisation under the Act. The issue at trial was whether his wearing of the ring constituted the display of insignia within the meaning of s 25(2).
Mr Greenway seeks leave to appeal against his conviction pursuant to the Criminal Appeals Act 2004 (WA) (CA Act). Mr Greenway requires an extension of time to appeal. Initially, there were…

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 Greenway v Lavers

Details

AGLC: Greenway v Lavers [2023] WASC 311
Case: [2023] WASC 311
Decision Date

CaseChat Overview and Summary

In the matter of Greenway v Lavers, the Supreme Court of Western Australia, presided over by Justice Lemonis, considered an appeal against a conviction for displaying insignia of an identified organisation in a public place. The appellant, Nathan Norman Greenway, sought leave to appeal the decision of the Magistrates Court, arguing that the learned magistrate had erred in law by incorrectly describing and applying the elements of the offence. The respondent, Patrick Lavers, contended that the appeal should be dismissed as there was no substantial miscarriage of justice. The court found that the learned magistrate had indeed erred in law by not correctly identifying the elements of the offence, specifically the requirement that the insignia on the ring would be visible to another person in the public place. The court also determined that the evidence at trial did not prove beyond reasonable doubt that the insignia would be visible to another person in the public place, leading to the conclusion that a substantial miscarriage of justice had occurred. Consequently, the appeal was allowed on ground 1, the judgment of conviction was set aside, and a retrial was ordered before a different magistrate.

Orders