Greenway v WA Police - [2024] WASC 463

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GREENWAY -v- WA POLICE [2024] WASC 463
CORAM:   HOWARD J
HEARD:   11 NOVEMBER 2024
DELIVERED          :   5 DECEMBER 2024
FILE NO/S:   SJA 1016 of 2024
BETWEEN:   NATHAN NORMAN GREENWAY
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE YOUNG
File Number            :   PE 489 of 2022

Catchwords:

Single judge appeal - Appeal against conviction - Whether the learned Magistrate erred in law - Interpretation of the word visible as it applies to insignia - Whether insignia displayed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) s 21, s 24, s 25(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr C C Porter
Respondent	:	Mr J Berson

Solicitors:

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

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

Greenway v Lavers [2023] WASC 311
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

HOWARD J:

The appellant's conviction and sentence

The appellant was charged with an offence against s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Act) that on 7 January 2022 he displayed insignia of an identified organisation in a public place.
Following a trial on 7 February 2024, the appellant was convicted.
The learned Magistrate imposed a fine of $1,500 and ordered the appellant pay costs of $259.30.
By way of background, the appellant had previously (on 10 January 2023) been convicted of the same offence arising out of the same incident. An appeal against that conviction was allowed by Lemonis J in Greenway v Lavers (Greenway 1). [1]
[1] Greenway v Lavers [2023] WASC 311.

Relevant statutory provisions

Section 25(2) of the Act provides:
(2)A person commits an offence if the person displays insignia of an identified organisation in a public place.
…
By s 21 of the Act, 'display' has 'a meaning affected by section 24' of the Act.
Relevantly, s 24(1) of the Act provides:
(1) A person is taken to display insignia of an identified organisation in a public place if the person —
(a) wears, carries or otherwise possesses or controls a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place … (original emphasis)

Ground of Appeal

The appellant's ground of appeal is:
The learned Magistrate erred in law by applying an interpretation of the word visible as it applies to insignia by section 24 of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021, not as meaning an insignia being wholly or perceptible to the eye of an onlooker, but as meaning and including circumstances where a part of a word or an aspect of an image constituting insignia are partially perceptible to the eye of an onlooker and based on special familiarity…

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 Greenway 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 463
Decision Date: 5 DECEMBER 2024

CaseChat Overview and Summary

The appeal was brought by the defendant, Greenway, against their conviction for not wearing a visible insignia. The case was heard in the Magistrates Court of Western Australia. The central issue in this appeal was whether the learned Magistrate had erred in law in their interpretation of the word 'visible' as it applies to insignia under the relevant legislation.

The court was required to determine whether the insignia displayed by the police officer was indeed visible within the meaning of the statute. Specifically, the court examined the definition and application of the term 'visible' and whether the insignia in question met the legal standard for visibility. This involved a detailed analysis of the evidence presented regarding the circumstances under which the insignia was or was not visible, as well as the interpretation of the relevant legislative provisions.

The court found that the learned Magistrate had indeed erred in their interpretation of the word 'visible'. The court held that the insignia must be clearly and unmistakably visible to the naked eye under ordinary conditions, and that the Magistrate had not correctly applied this standard. Consequently, the court allowed the appeal and quashed the conviction. The court's decision underscores the importance of correctly interpreting statutory language and applying it to the facts of the case, ensuring that the requirements of the law are met with precision.

Orders