Hawkins v Van Heerden

Case [2014] WASC 127


HAWKINS -v- VAN HEERDEN [2014] WASC 127



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASC 127
Case No:SJA:1131/201325 MARCH 2014
Coram:PRITCHARD J10/04/14
27Judgment Part:1 of 1
Result: Appeal allowed
B
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Parties:BRUCE MICHAEL HAWKINS
VINCENT ADAM VAN HEERDEN

Catchwords:

Appeal
Statutory construction
Tobacco Products Control Act 2006 (WA)
Meaning of 'designed to resemble' and 'other product' in s 106
Whether electronic cigarettes 'designed to resemble' a tobacco product
Whether learned Magistrate erred in excluding evidence of appearance during use

Legislation:

Criminal Appeals Act 2004 (WA)
Interpretation Act 1984 (WA)
Misuse of Drugs Act 1981 (WA)
Poisons Act 1964 (WA)
Sales Tax (Exemptions and Classifications) Act 1935 (Cth)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Tobacco Products Control Act 2006 (WA)

Case References:

AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Taxation v Thomson Australian Holdings Pty Ltd (1989) 25 FCR 481
Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594
Ex Parte Zietsch; Re Craig (1944) 44 SR (NSW) 360
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Investments (WA) Pty Ltd v City of Swan [2012] WASC 278
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
R v Regos [1947] HCA 19; (1947) 74 CLR 613
Re Beautiful Day Pty Ltd and Collector of Customs (Qld) (1977) 1 ALD 206; (1977) 1 ALN 8
Re Fibre Hulls Pty Ltd and Collector of Customs (1987) 12 ALD 75
Re Gissing and Collector of Customs (1977) 1 ALD 144
Re James North (Australia) Pty Ltd and Collector of Customs (1979) 2 ALD 476
Sondo Pty Ltd v Federal Commissioner of Taxation [1991] FCA 32; (1991) 102 ALR 362
Thiess v Collector of Customs [2014] HCA 12
Van der Feltz v City of Stirling [2009] WASC 142
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HAWKINS -v- VAN HEERDEN [2014] WASC 127 CORAM : PRITCHARD J HEARD : 25 MARCH 2014 DELIVERED : 10 APRIL 2014 FILE NO/S : SJA 1131 of 2013 BETWEEN : BRUCE MICHAEL HAWKINS
    Appellant

    AND

    VINCENT ADAM VAN HEERDEN
    Respondent


ON APPEAL FROM:

For File No : SJA 1131 of 2013

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE J HAWKINS

File No : JO 1683 of 2013


Catchwords:

Appeal - Statutory construction - Tobacco Products Control Act 2006 (WA) - Meaning of 'designed to resemble' and…

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Details
AGLC
Hawkins v Van Heerden [2014] WASC 127
Case
[2014] WASC 127
Decision Date

CaseChat Overview and Summary

The case of Hawkins v Van Heerden involved an appeal against a decision made by a magistrate in the Magistrates Court of Western Australia. The matter concerned the interpretation of certain statutory provisions under the Tobacco Products Control Act 2006 (WA). Specifically, the case focused on the meaning of the terms 'designed to resemble' and 'other product' in section 106 of the Act. The central issue was whether electronic cigarettes could be considered as products 'designed to resemble' a tobacco product and whether they fell within the definition of 'other product'. The appellant, Hawkins, argued that the learned magistrate had erred in excluding evidence related to the appearance of electronic cigarettes during use, which he believed was crucial for determining their resemblance to tobacco products.

The court was tasked with interpreting the statutory language to ascertain whether electronic cigarettes could be considered as products designed to resemble tobacco products. This required the court to delve into the legislative intent behind the Act and the ordinary meaning of the terms used. The court also needed to assess whether the magistrate had correctly exercised judicial discretion in excluding certain evidence. This included considering the relevance of the evidence to the key issues and whether its exclusion had prejudiced the appellant's case.

In reaching its decision, the court undertook a detailed analysis of the statutory language and the context in which it was used. It considered the ordinary and natural meaning of the terms 'designed to resemble' and 'other product'. The court examined the legislative history and purpose of the Act, as well as relevant case law. It found that the magistrate had incorrectly excluded evidence that demonstrated the appearance of electronic cigarettes during use. This evidence was pertinent to establishing whether these products were designed to resemble tobacco products. The court concluded that the magistrate's decision had been in error and that the excluded evidence should have been considered. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for reconsideration.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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