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 is a controlled weapon. I only taking the blame.
The Magistrate pointed out that the fact that you can buy pepper spray from an army surplus store does not affect the offence of being in possession.
The magistrate fined the appellant $2,000 with an order for destruction of the videotapes, and fined the appellant $300 for possessing a controlled weapon, and made an order for destruction of the pepper spray. The appellant lodged an appeal notice on 2 July 2009, which is outside the time limit for appeals. He therefore requires an extension of time.
He filed an affidavit detailing his medical problem and the difficulties obtaining legal advice. On 21 July 2009, Blaxell J ordered the appellant to serve a copy of the appeal notice, if not already served, and ordered that if a certificate for service is not lodged within 21 days, the application for leave to appeal is to stand dismissed. The appellant complied with that order, serving the respondent on 6 August 2009.
On 25 August 2009 the court wrote to the appellant notifying him that the matter had been listed for hearing to consider granting leave to appeal today, that is, Monday, 7 September 2009 at 9.15 am. On 2 September 2009, the appellant filed a medical report with the court dated 1 September 2009 from Dr Aunins stating:
Mr Matthias Kiraly has restless leg syndrome and feels that he will be unfit for his court appearance on 07/09/09.
Accompanying that medical certificate the appellant wrote on a fax:
I contracted this illness since my last stroke a few months ago hence my mobility is greatly influenced when I taking this medicine [which is Sifrol]. Therefore I am sorry I cannot attend, but I will stand by my phone in case you wish to talk to me. Also I will later file a statement of facts or affidavit (which is required).
I have examined the papers and in my view there are no reasonably arguable grounds of appeal and having had the benefit of what the appellant has written to this Court and his submissions to the Magistrates Court, there is no further utility in speaking with him.
The grounds of appeal are as follows:
(1)Magistrate [Gluestein] don't take consideration of facts I layed out in my statement, such as most of the material his Honour ordered to be 'destroyed' is in fact informative, so called 'Sex aid' material, together with adults entertainment films freely available from video sellers or rentals, except those also restricted adults only entertainments.
(2)Pepper spray by no means 'controlled' weapon as it is freely and legally purchased from some sport and hiking shops in city and in country.
I should say that in view of the appellant's medical condition and his explanations, I would have no difficulty in granting an extension of time if I thought there were reasonable prospects of any ground succeeding. However, as I will explain, I do not consider that there are any reasonable prospects and under the Criminal Appeals Act 2004 (WA) I am obliged to refuse leave unless a ground has reasonable prospects of success.
I turn to the first ground. The Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) s 81(2) states:
A person must not possess or copy -
(a) an unclassified film that would, if classified, be classified X 18+, R 18+ or MA 15+; or
(b)a film classified X 18+,
with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place.
Penalty: $10,000
The appellant was selling such films. The essence of the offence is the possession of the film that is classified X 18+, with the requisite intention. The fact that other people might sell the film or that it might be used as a sex aid are irrelevant considerations.
I turn to the second ground. The item commonly known as pepper spray is a spray weapon made or modified to be used to discharge oleoresin capsicum. Possession of a controlled weapon without lawful excuse is an offence under the Weapons Act 1999 (WA) s 7. The fact that the pepper spray is carried for defence is not a lawful excuse - s 7(3). The appellant does not fall within any of the categories under the Weapons Act s 10 or the Weapons Act Regulations.
The fact therefore that pepper spray may be purchased in shops is irrelevant to the commission of the offence by the appellant on the day.
As there are no reasonable prospects of success on either ground specified in the notice, the extension of time within which to appeal is refused and leave to appeal is refused.