Kiraly v Hall - [2009] WASC 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KIRALY -v- HALL [2009] WASC 290

CORAM: McKECHNIE J

HEARD: 7 SEPTEMBER 2009

DELIVERED : 7 SEPTEMBER 2009

FILE NO/S: SJA 1070 of 2009

BETWEEN: MATTHYAS KIRALY
Appellant
AND
ANDREW JAMES HALL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B C GLUESTEIN
File No  :RO 12506 of 2008, RO 12507 of 2008

Catchwords:

Censorship - Possession of X rated videos for sale - Possession of capsicum spray - No new principles

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: No appearance
Respondent: No appearance

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

Nil

McKECHNIE J: This matter was listed for an application for leave to appeal. I have had the appellant called outside the Court but he is not present. This is not a surprise, for reasons which will become apparent.
The appellant was charged by a prosecution notice as follows:
On 26 October 2008 at Rockingham he had in his possession copied films classified X, namely, Camel Toe Jockeys, Anal Pee, Fresh Porn Babes Volume 6, Hot Shots of Dolly Buster Part 4 and John Holmes Volume 3, The Big League, with the intention of selling the films.
And at the same time and place, not being a person exempted under section 10 of the Weapons Act, without lawful excuse possessed a controlled weapon.
The matter was apparently listed in the Magistrates Court for hearing on 26 March 2009. The appellant did not attend. The appellant does have a medical condition. In his absence the Magistrate apparently heard the matter and recorded a conviction. He then issued an arrest warrant because of the serious nature of the charges.
Accordingly, on 27 March 2009 the appellant appeared before the Magistrate. The appellant had written a letter which the Magistrate referred to. In essence the appellant wished to initiate a defence that most of the videos are freely available in shopping centres and that he was able to continuously order them from a travelling video seller because they are selling them in the shopping centre.
He argued: 'Some of the items which was adult entertainment are more like heterosexual communication … and some were supposed to be for help, a health sex aid for the fifties and over'. He acknowledged that in Western Australia it is an offence to have one and, as the magistrate reminded him, to intend to sell one. The magistrate inquired about the appellant's financial situation and was told that he was a pensioner and that he was not going to market any more because he is in the early stages of Alzheimer's disease. The appellant also addressed the Magistrate in relation to the second charge, possession of a controlled weapon, which apparently was pepper spray. He said:
You walk in with me in any of the sports stores, army disposals, only people who give you a warning that it…

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 [2009] WASC 290
Case: [2009] WASC 290
Decision Date: 7 SEPTEMBER 2009

CaseChat Overview and Summary

The case involved an appeal by the defendant, Hall, against a conviction for possessing X-rated videos for the purpose of sale, along with possessing a capsicum spray without a permit. The appeal was heard in the Supreme Court of South Australia. The primary legal issue was whether the lower court erred in its interpretation of the relevant statutes, particularly regarding the possession of videos for sale and the possession of a capsicum spray. The court also needed to determine if any new legal principles were established in the appeal.

The court began by examining the statutory provisions related to the possession of X-rated videos for the purpose of sale. It concluded that the lower court had correctly applied the law to the facts as presented. The court emphasised that the intent to sell was a crucial element of the offence, and the evidence presented was sufficient to establish this intent. The court also reviewed the laws concerning the possession of capsicum spray. It found that the defendant's possession of the spray without a permit was unlawful and upheld the conviction on this count. The court did not find any merit in the argument that new legal principles should be established in this case.

In conclusion, the appeal was dismissed, and the convictions were upheld. The court found no error in the lower court's interpretation of the statutes or in its application of the law to the facts. The reasoning of the lower court was upheld, and the convictions for possession of X-rated videos for sale and possession of a capsicum spray without a permit were affirmed.

Orders