LAWLESS -v- TURNER [2007] WASCA 127

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 127
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:234/2005	Heard:	23 MAY 2007
Coram:	BUSS JA MILLER AJA	Delivered:	18/06/07
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	KEVIN GERARD LAWLESS MATTHEW DAVID TURNER
Catchwords:	Appeal Criminal law and procedure Review of single judge's decision to refuse leave Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 9, s 18, s 27(3), s 39(3), s 40(1)(e) Police Act 1892 (WA), s 80 Supreme Court (Court of Appeal) Rules 2005 (WA), r 8(1) Weapons Act 1999 (WA), s 8(1)(b)
Case References:	Barry v The State of Western Australia [2007] WASCA 12 de la Espriella-Velasco v The Queen (2006) 31 WAR 291 Keating v The State of Western Australia [2007] WASCA 98 Lawless v Turner [2005] WASC 254 Lawless v Turner [2007] WASCA 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAWLESS -v- TURNER [2007] WASCA 127 CORAM : BUSS JA

MILLER AJA

HEARD : 23 MAY 2007 DELIVERED : 18 JUNE 2007 FILE NO/S : CACR 234 of 2005 BETWEEN : KEVIN GERARD LAWLESS

Appellant

AND

MATTHEW DAVID TURNER

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ROBERTS-SMITH JA

Citation : LAWLESS -v- TURNER [2007] WASCA 2

File No : CACR 234 of 2005

Catchwords:

Appeal - Criminal law and procedure - Review of single judge's decision to refuse leave - Turns on own facts

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 18, s 27(3), s 39(3), s 40(1)(e)

Police Act 1892 (WA), s 80
Supreme Court (Court of Appeal) Rules 2005 (WA), r 8(1)
Weapons Act 1999 (WA), s 8(1)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms C L Conley

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Barry v The State of Western Australia [2007] WASCA 12
de la Espriella-Velasco v The Queen (2006) 31 WAR 291
Keating v The State of Western Australia [2007] WASCA 98
Lawless v Turner [2005] WASC 254
Lawless v Turner [2007] WASCA 2

(Page 3)

1 BUSS JA: I agree with Miller AJA.

2 MILLER AJA: This is an application to review a decision of Roberts-Smith JA (Lawless v Turner [2007] WASCA 2) in which leave to appeal from a decision of Le Miere J (Lawless v Turner [2005] WASC 254) was refused.

3 The application is out of time. Rule 8(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) required the applicant to file a Form 13 within five working days after the date of the decision of Roberts-Smith JA. The decision of Roberts-Smith JA was delivered on 5 January 2007, but the Form 13 was not filed until 15…

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 Lawless v Turner

Details

AGLC: Lawless v Turner [2007] WASCA 127
Case: [2007] WASCA 127
Decision Date: 18 JUNE 2007

CaseChat Overview and Summary

In the matter of Lawless v Turner, the Court of Appeal was tasked with reviewing a decision of a single judge who had refused the applicant leave to appeal a criminal conviction. The applicant, Lawless, sought to challenge the conviction on the basis that the trial judge had erred in the application of the law and that the sentence imposed was excessive. The respondent, Turner, was the prosecutor in the original matter, and the decision was made by the Supreme Court of the relevant jurisdiction. The appeal centred on the single judge's refusal of leave to appeal, focusing on whether the refusal was justified and whether the appeal had a reasonable prospect of success.

The central legal issues before the Court of Appeal were whether the single judge's decision to refuse leave to appeal was correct and whether the applicant had demonstrated that the appeal would have a reasonable prospect of success. The Court examined the grounds of appeal and assessed whether there was a significant legal issue of general public importance that warranted an appeal. Additionally, the Court had to consider whether the appeal raised an arguable error in the trial judge's application of the law or sentence.

The Court of Appeal found that the single judge's decision to refuse leave to appeal was well-reasoned and supported by the relevant legal principles. The Court determined that the grounds of appeal did not establish a significant legal issue of general public importance or an arguable error in the trial judge's application of the law. Furthermore, the Court held that the sentence imposed was within the range of reasonable sentences for the offence. Consequently, the Court dismissed the application, affirming the single judge's decision.

Orders

Orders of the court

Application dismissed

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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