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McGee v Marinov

McGee v Marinov

Case [2005] WASC 283 21 December 2005

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McGEE -v- MARINOV [2005] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 283
Case No:	SJA:1072/2005	Heard:	2 NOVEMBER 2005
Coram:	HASLUCK J	Delivered:	21/12/05
No of pages:	26	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	KEVIN McGEE MARIN VASILEV MARINOV
Catchwords:	Quarantine Importation of prohibited goods Fruit and vegetables Complaint of making a false and misleading statement Issues concerning knowledge and intention Effect of finding that the respondent forgot he had the goods Acquittals upheld Turns on own facts
Legislation:	Criminal Code Act 1995 (Cth), s 6.1 Quarantine Act 1908 (Cth), s 67(1), s 70C(1) Quarantine Proclamation 1998
Case References:	Chamberlain v The Queen (1984) 153 CLR 521 Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1994) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 He Kaw Teh v The Queen (1985) 157 CLR 523 M v The Queen (1994) 181 CLR 487 Police v Kennedy (1998) 71 SASR 175 Police v Pfeifer (1997) 68 SASR 285 R v Martindale (1986) 3 All ER 25; [1986] 1 WLR 1042 Shepherd v The Queen (No 5) (1990) 170 CLR 573 Verhoeven v Ninyette (1998) 101 A Crim R 24 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : McGEE -v- MARINOV [2005] WASC 283 CORAM : HASLUCK J HEARD : 2 NOVEMBER 2005 DELIVERED : 21 DECEMBER 2005 FILE NO/S : SJA 1072 of 2005 MATTER : Criminal Appeals Act 2004 (WA) Pt 2 BETWEEN : KEVIN McGEE

Appellant

AND

MARIN VASILEV MARINOV

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE NICHOLLS

File No : PE 20364 of 2004, PE 27517 of 2005

Catchwords:

Quarantine - Importation of prohibited goods - Fruit and vegetables - Complaint of making a false and misleading statement - Issues concerning knowledge and intention - Effect of finding that the respondent forgot he had the goods - Acquittals upheld - Turns on own facts

(Page 2)

Legislation:

Criminal Code Act 1995 (Cth), s 6.1

Quarantine Act 1908 (Cth), s 67(1), s 70C(1)
Quarantine Proclamation 1998

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr P G McGowan

Respondent : Mr J R Noble

Solicitors:

Appellant : Australian Government Solicitor

Respondent : Jeremy Noble

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

Chamberlain v The Queen (1984) 153 CLR 521
Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
He Kaw Teh v The Queen (1985) 157 CLR 523
M v The Queen (1994) 181 CLR 487
Police v Kennedy (1998) 71 SASR 175
Police v Pfeifer (1997) 68 SASR 285
R v Martindale (1986) 3 All ER 25; [1986] 1 WLR 1042
Shepherd v The Queen (No…

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 McGee v Marinov

Details

AGLC: McGee v Marinov [2005] WASC 283
Case: [2005] WASC 283
Decision Date

CaseChat Overview and Summary

In McGee v Marinov [2005] WASC 283, the Supreme Court of Western Australia considered an appeal against acquittals in respect of two complaints made under the Quarantine Act 1908 (Cth). The appellant, a customs officer, alleged that the respondent had imported prohibited fresh fruit and made a false and misleading statement in respect of the fruit. The learned Magistrate acquitted the respondent on both charges and awarded costs against him. The appeal against those decisions was dismissed. The court held that the learned Magistrate was entitled to find that the respondent had forgotten that he had the fruit in his possession and, accordingly, that he did not have the requisite knowledge or intention.

Orders