NAIK -v- MORGAN [2013] WASC 336

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 336
Case No:	SJA:1026/2013	Heard:	13 AUGUST 2013
Coram:	LE MIERE J	Delivered:	11/09/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	DHARSHAN RAJNIKANT NAIK SHARON LEE MORGAN
Catchwords:	Appeal Criminal law Sentence Refusal to grant spent conviction order Failure to consider whether pre-conditions satisfied No material error of law or fact No miscarriage of justice Leave to appeal refused
Legislation:	Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e) Road Traffic Act 1974 (WA), s 53(4) Sentencing Act 1995 (WA), s 39(2), s 45
Case References:	AR v Wood [2008] WASC 119 Brewer v Bayens (2002) 26 WAR 510 Lowndes v The Queen (1999) 195 CLR 665 R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : NAIK -v- MORGAN [2013] WASC 336 CORAM : LE MIERE J HEARD : 13 AUGUST 2013 DELIVERED : 11 SEPTEMBER 2013 FILE NO/S : SJA 1026 of 2013 BETWEEN : DHARSHAN RAJNIKANT NAIK

Appellant

AND

SHARON LEE MORGAN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P G MALONE

File No : PE 2336 of 2013, PE 2337 of 2013

Catchwords:

Appeal - Criminal law - Sentence - Refusal to grant spent conviction order - Failure to consider whether pre-conditions satisfied - No material error of law or fact - No miscarriage of justice - Leave to appeal refused

Legislation:

Criminal Appeals Act 2004 (WA), s 39(1), s 40(1)(e)

Road Traffic Act 1974 (WA), s 53(4)
Sentencing Act 1995 (WA), s 39(2), s 45

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr N Mcingolwane

Respondent : Ms A B Preston-Samson

Solicitors:

Appellant : Emeris Lawyers Pty Ltd

Respondent : State Solicitor for Western Australia

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

AR v Wood [2008] WASC 119
Brewer v Bayens (2002) 26 WAR 510
Lowndes v The Queen (1999) 195 CLR 665
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

1 LE MIERE J: On 29 January 2013 the appellant pleaded guilty and was convicted of driving a motor vehicle whilst not being authorised to do so and when his authority to drive was suspended. It was the appellant's second conviction for driving whilst under suspension. He was fined $1,000 and disqualified from holding or obtaining a driver's licence for a period of nine months cumulative upon any existing disqualification. The appellant also pleaded guilty to and was convicted of giving a false name when called upon to provide his name to a police officer. He was fined $250. In relation to that offence the appellant sought a spent conviction order. The magistrate refused to make a spent conviction order. The appellant now seeks leave to appeal against the refusal of the magistrate to grant the spent conviction order.

Additional evidence

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 Naik v Morgan

Details

AGLC: NAIK -v- MORGAN [2013] WASC 336
Case: [2013] WASC 336
Decision Date: 11 SEPTEMBER 2013

CaseChat Overview and Summary

The matter of Naik v Morgan involved an appeal against the refusal of the District Court of Western Australia to grant a spent conviction order. The applicant, Naik, sought to have a prior conviction deemed as spent under the Spent Convictions Act 1988 (WA). The nature of the dispute centred on the interpretation and application of the Act, specifically regarding the pre-conditions that must be met for a spent conviction order to be granted. The appeal was heard by the Supreme Court of Western Australia.

The primary legal issue before the court was whether the District Court had committed a material error of law or fact when it refused to grant the spent conviction order. This required an examination of whether the District Court had properly considered whether the pre-conditions for a spent conviction order were satisfied. Additionally, the court needed to determine if the refusal led to a miscarriage of justice. The applicant argued that the District Court had failed to adequately consider the statutory criteria and that the refusal was unjust.

The Supreme Court found that the District Court had correctly interpreted and applied the statutory provisions of the Spent Convictions Act 1988 (WA). The court held that there was no material error of law or fact in the District Court's decision. It was determined that the District Court had appropriately considered the statutory criteria and that the refusal to grant the spent conviction order did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

Leave to appeal refused

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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