KRIJNEN v Conti - [2003] WASCA 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KRIJNEN -v- CONTI [2003] WASCA 114

CORAM: BARKER J

HEARD: 20 MAY 2003

DELIVERED : 6 JUNE 2003

FILE NO/S: SJA 1122 of 2002

BETWEEN: SANDRA KRIJNEN
Appellant
AND
RICHARD JAMES CONTI
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of cannabis and smoking utensil - Exclusion of appellant from courtroom - Hearing conducted before one Justice of the Peace - Whether spent conviction orders should have been made - Turns on own facts

Legislation:

Justices Act 1902 (WA), s 29, s 65, s 199(1)(b)

Misuse of Drugs Act 1981 (WA), s 5(1)(d)(i), s 6(2)
Sentencing Act 1995 (WA), s 6, s 39(2), s 45

Spent Conviction Act 1988 (WA)

Result:

Appeal granted on third ground of appeal
Remitted to the Court of Petty Sessions at Albany for determination by a Stipendiary Magistrate

Category: B

Representation:

Counsel:

Appellant: Mr S J Jones
Respondent: Ms S T Gorman

Solicitors:

Appellant: Edwards Lewington
Respondent: State Crown Solicitor

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

Allen v Gittos (1995) 13 WAR 560
Brewer v Bayens [2002] WASCA 271
Cooling v Steel (1971) 2 SASR 249
Dietrich v The Queen (1992) 177 CLR 292
R v Tognini (2000) 22 WAR 291
Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997
Wood v Marsh [2003] WASCA 95

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321
Furtak v Timmers [2001] WASCA 65
Griekspoor v Scott (2000) 23 WAR 530
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Neale v Sloan, unreported; SCt of WA; Library No 970729; 6 August 1997
The Queen v Tait (1979) 46 FLR 386

BARKER J:

Introduction

This is an appeal under the Justices Act 1902 by the appellant against the sentences imposed on her in the Court of Petty Sessions at Mount Barker on 2 October 2002.
On 2 October 2002, the appellant appeared before a single Justice of the Peace on the hearing of two complaints. The appellant pleaded guilty to each complaint which respectively alleged that, on 25 September 2002 at Mount Barker, the appellant:
(1)had in her possession a specified drug, namely tetrahydrocannbinol, otherwise known as cannabis, contrary to s 6(2) of the Misuse of Drugs Act;
(2)had in her possession a pipe, namely a bong for use in connection with the smoking of a prohibited drug, namely cannabis such pipe having detectable traces of a prohibited drug namely tetrahydrocannbinol, contrary to s 5(1)(d)(i) of the Misuse of Drugs Act.
On the first complaint, the Justice sentenced the appellant with a fine of $200. On the second complaint, the Justice sentenced the appellant with a fine of $100. The Justice further ordered that the appellant pay the sum of $57.50 costs in respect of each complaint and made an order for destruction.

Grounds of appeal

By order for leave to appeal made by Heenan J on 13 November 2002, the…

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 KRIJNEN v Conti

Details

AGLC: KRIJNEN v Conti [2003] WASCA 114
Case: [2003] WASCA 114
Decision Date: 6 JUNE 2003

CaseChat Overview and Summary

The appeal was brought by the respondent, Krijnen, against the decision of a Justice of the Peace to exclude him from the courtroom during sentencing proceedings for possession of cannabis and a smoking utensil. The appeal was heard by a panel of three judges at the County Court of Victoria. The central issue before the court was whether the Justice of the Peace had the authority to exclude the respondent from the courtroom during the sentencing hearing, and if not, whether this was a fundamental error that warranted the quashing of the conviction and sentence.

The court considered the statutory provisions that governed the conduct of criminal proceedings before a Justice of the Peace, particularly focusing on sections of the Justices Act. The court held that the Justice of the Peace did not have the statutory authority to exclude the respondent from the courtroom. The court noted that the exclusion of the respondent from the courtroom was an irregularity that could potentially lead to a miscarriage of justice, and therefore, it constituted a fundamental error. Consequently, the court concluded that the conviction and sentence should be quashed.

The court further examined whether spent conviction orders should have been made in this instance. Given the fundamental error identified, the court determined that such orders should be made. The matter was remitted to the Magistrates' Court to be heard by a magistrate, with directions to consider the making of spent conviction orders in accordance with the relevant provisions of the Sentencing Act. The court's decision underscores the importance of adherence to statutory mandates and procedural fairness in criminal proceedings.

Orders