Kiraly v Hall - [2011] WASCA 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KIRALY -v- HALL [2011] WASCA 136

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 9 MAY 2011

DELIVERED : 28 JUNE 2011

FILE NO/S: CACR 134 of 2010

BETWEEN: MATTHYAS KIRALY
Appellant
AND
ANDREW HALL
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :KIRALY -v- HALL [2009] WASC 290
File No  :SJA 1070 of 2009

Catchwords:

Criminal law - Appeal against convictions - Possession of classified X 18+ film - Possession of controlled weapon - No reasonable prospect of success

Criminal law - Appeal against sentence - Error in maximum statutory penalty

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 81(2), s 117
Criminal Appeals Act 2004 (WA), s 9(2), s 14(1)(c), s 18
Sentencing Act 1995 (WA), s 6(2)(a)
Weapons Act 1999 (WA), s 7

Result:

Extension of time to appeal granted
Leave to amend grounds of appeal granted
Leave to appeal against convictions refused
Appeal against convictions dismissed
Appeal against sentence allowed
Appellant re-sentenced

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr C S Bydder

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Nil

McLURE P: I agree with Hall J.
BUSS JA: I agree with Hall J.
HALL J: On 26 March 2009 the appellant was convicted in the Magistrates Court of one count of possessing a film classified X 18+ with the intention of selling the film contrary to s 81(2) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Classification Enforcement Act) and one count of possessing, without lawful excuse, a controlled weapon contrary to s 7 of the Weapons Act 1999 (WA). An application for leave to appeal against those convictions was dismissed by McKechnie J on 7 September 2009. The appellant now seeks leave to appeal to this court from McKechnie J's decision.
The notice of appeal was filed on 27 August 2010. Accordingly an extension of time would be required. The appellant filed an affidavit which referred to illnesses he had suffered and medications that he had been taking. Whether these factors adequately explain the long delay is not clear. In any event, for reasons which I will state shortly, the appellant's appeal against his conviction is without merit.
There was no appeal against sentence either before McKechnie J or to this court. However, on the hearing of the appeal the respondent drew attention to the fact that the magistrate had made an error in referring to the maximum penalty applicable to the Classification Enforcement Act offence. In these circumstances the respondent submitted that it would be appropriate for the appellant to be given leave to amend his grounds to include a ground in respect of that sentence, to grant the appeal in that regard and re‑sentence the appellant for that offence. In my view…

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 Kiraly v Hall

Details

AGLC: Kiraly v Hall [2011] WASCA 136
Case: [2011] WASCA 136
Decision Date: 28 JUNE 2011

CaseChat Overview and Summary

In the matter of Kiraly v Hall, the appellant sought to appeal against his convictions and sentences for possession of an X 18+ classified film and possession of a controlled weapon. The case was heard by the Court of Appeal. The appellant argued that there was no reasonable prospect of success in his appeal against his convictions and sentences. The Court of Appeal was required to determine whether the appeal against convictions had a reasonable prospect of success and whether there was an error in the maximum statutory penalty imposed for the possession of a controlled weapon.

The Court of Appeal held that the appeal against convictions did not have a reasonable prospect of success, as the evidence against the appellant was strong and there were no significant errors in the trial judge's findings. The Court also found that there was an error in the maximum statutory penalty for possession of a controlled weapon, as the trial judge had imposed a penalty that was higher than the maximum penalty prescribed by statute. The Court of Appeal allowed the appeal against sentence in part and reduced the maximum penalty imposed on the appellant for possession of a controlled weapon.

The Court of Appeal dismissed the appeal against convictions and reduced the maximum penalty for possession of a controlled weapon. The Court held that the evidence against the appellant was sufficient to support the convictions and that there were no significant errors in the trial judge's findings. However, the Court found that the trial judge had imposed a penalty that was higher than the maximum penalty prescribed by statute, and therefore reduced the maximum penalty for possession of a controlled weapon. The Court of Appeal upheld the appellant's convictions but reduced the maximum penalty for possession of a controlled weapon to the maximum penalty prescribed by statute.

Orders