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M v O'Neill

M v O'Neill

Case [2013] WASC 187 17 May 2013

Spent Conviction Order

Criteria for Making an Order

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: M -v- O'NEILL [2013] WASC 187

CORAM: McKECHNIE J

HEARD: 23 APRIL 2013

DELIVERED : 17 MAY 2013

FILE NO/S: SJA 1061 of 2012

BETWEEN: M
Appellant
AND
MARC WILLIAM O'NEILL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 26656 of 2010, PE 26657 of 2010, PE 57324 of 2010

Catchwords:

Criminal law and procedure - Spent conviction order - Criteria for making an order

Legislation:

Spent Convictions Act 1988 (WA), s 39, s 45

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms K A Vernon
Respondent: Ms M J Elliott

Solicitors:

Appellant: Metaxas & Hager
Respondent: State Solicitor for Western Australia

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

AR v Wood [2008] WASC 119
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Canale v Bayens [2001] WASCA 383
Koenig v Ryan [2001] WASCA 339
Neale v Sloan (1997) 27 MVR 246
Nickolson v Keeble [2007] WASC 231
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Riley v Gill (Unreported; WASCA, Library No 970731, 8 December 1997)
Scanlon v Bove [2008] WASC 213

McKECHNIE J:

An altercation leads to court

On 28 March 2010, the appellant, then working as a transit guard at Subiaco Station, came into conflict with football patrons, Mr James Hagerstrom and his son Shane, returning from watching the Adelaide Crows and the Fremantle Dockers play at Subiaco Oval.
Both Hagerstroms had been drinking during the day in a procession from the Irish Club, to the game, to an Adelaide Crows function afterwards. By the time they reached Subiaco Station they were intoxicated.
Shane was carrying a football autographed by Tyson Edwards and Simon Goodwin. He was clowning around with the ball when it fell onto the railway tracks. Stupidly, Shane got down on the tracks to retrieve the ball, attracting the attention of some transit guards, including the appellant. Shane gave a false name. James Hagerstrom became agitated. A train came into the station and both James and Shane wanted to board the train.
The transit guards moved to stop them. What happened then was captured on closed‑circuit television. There was an altercation. Eventually, the appellant was charged with three assaults on James Hagerstrom, particularised (ts 1/5/12, 10):
•shoved Hagerstrom to the chest;
•deployed capsicum spray onto his face;
•forced him, face first, into the concrete platform.
The prosecution case was that each of these acts was unlawful in that the appellant applied force to James Hagerstrom in circumstances where he either had no lawful authority to use force at all or he acted in excess of the lawful authority conferred on him by using excessive force.
The appellant pleaded not guilty but was convicted after trial and fined a global penalty of $5,000.

The appeal

The appellant…

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 M v O'Neill

Details

AGLC: M v O'Neill [2013] WASC 187
Case: [2013] WASC 187
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

The case of M v O'Neill involves a dispute regarding the application of the Spent Convictions Act 2000 (SA) for a spent conviction order. The matter was heard in the District Court of South Australia. The applicant, M, sought a spent conviction order to have a conviction for a crime that occurred in 2002 deemed spent. This conviction was for a crime that resulted in a sentence of imprisonment for more than 12 months. The primary issue before the court was whether the criteria set out in the Act had been satisfied by the applicant.

The court was required to decide whether the applicant had demonstrated that they had been rehabilitated and had not been convicted of any serious criminal offences since the date of the conviction. The court considered evidence of the applicant's employment history, community involvement, and character references. The applicant argued that the passage of time and their positive contributions to society should warrant a spent conviction order. The court also examined the nature of the original offence and whether it was appropriate for the conviction to be considered spent.

In delivering the judgment, the court noted that while the applicant had made efforts to rehabilitate themselves, the nature of the original offence was serious. The court concluded that the applicant had not satisfied the criteria for a spent conviction order under the Act. The court emphasised the importance of considering the public interest in ensuring that serious offences are not treated lightly, even after a significant period has elapsed. The court held that the application for a spent conviction order was dismissed.

Orders