Nyoni v Murphy - [2013] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NYONI -v- MURPHY [2013] WASC 298

CORAM: EM HEENAN J

HEARD: 26 JULY 2013

DELIVERED : 26 JULY 2013

PUBLISHED : 13 AUGUST 2013

FILE NO/S: SJA 1013 of 2013

BETWEEN: EMSON NYONI
Appellant
AND
JILLIAN DACRE MURPHY
Respondent

ON APPEAL FROM:
For File No               :  SJA 1013 of 2013
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :NO 1274 of 2012, NO 1275 of 2012, NO 1276 of 2012, NO 1277 of 2012, NO 1278 of 2012, NO 1279 of 2012

Catchwords:

Criminal law - Application for leave to appeal against conviction and sentence - Pharmacist - Failure to comply with Poisons Regulations applying to storage of Schedule 8 medications - Fine - No reasonable prospect of success in proposed appeal against conviction - Leave refused - Concession that fines imposed excessive - Leave to appeal against sentence

Legislation:

Poisons Regulations 1965 (WA), reg 44, reg 45, reg 56

Result:

Application for leave to appeal against conviction refused
Application for leave to appeal against sentence granted
The two separate fines on charges 5 and 6 are set aside
Fine of $2,000 is imposed on charge 5
No fine imposed for charge 6
Aggregate fine of $14,000 reduced to $10,000

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D E Leigh

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Carroll v The Queen [2009] HCA 13
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King (1936) HCA 40
Samuels v The State of Western Australia [2005] WASCA 193

EM HEENAN J: This is an application for leave to appeal against certain convictions, and also an application for leave to appeal against sentences imposed. The applicant, Emson Nyoni, was charged by a prosecution notice dated 13 June 2012 with six separate offences. He is a pharmacist at Kellerberrin, and the charges related to alleged non‑compliance with the Poisons Regulations 1965 (WA) in relation to the securing and reporting of drugs kept by the pharmacy for supply.
The prosecution notice was issued in the name of an officer of the Department of Health by the name of Jillian Murphy, yet the proceedings have been recorded as if it were a prosecution by the Department of Health and Ageing (Cth) against Emson Nyoni rather than by the individual prosecutor. For reasons outlined by Jenkins J in Tey v Plotz [2011] WASC 34, this is an acceptable procedure for the prosecution and trial of such a charge at first instance. However, when it comes to the conduct of any appeal or application for leave to appeal, the proceedings should be entitled in the names of the individual parties. Mr Nyoni and counsel for the Department of Health (WA) both agree that these proceedings should be formally amended so that Emson Nyoni remains as the appellant and, instead of 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 Nyoni v Murphy

Details

AGLC: Nyoni v Murphy [2013] WASC 298
Case: [2013] WASC 298
Decision Date: 13 AUGUST 2013

CaseChat Overview and Summary

In the matter of Nyoni v Murphy, the respondent, a pharmacist, was convicted and sentenced for breaches of the Poisons Regulations concerning the storage of Schedule 8 medications. The applicant sought leave to appeal against both the conviction and the sentence imposed. The court was tasked with determining whether there was a reasonable prospect of success in the proposed appeal against the conviction and sentence.

The legal issues before the court encompassed whether there was a reasonable prospect of success in the appeal against the conviction, given the overwhelming evidence against the respondent. Additionally, the court had to consider whether the fines imposed by the lower court were excessive in light of the respondent's concession that they were indeed excessive.

The court found that there was no reasonable prospect of success in the appeal against the conviction, as the evidence against the respondent was compelling and the lower court's decision was well-reasoned. However, the court acknowledged the respondent's concession regarding the excessiveness of the fines imposed. Consequently, the court granted leave to appeal solely in respect of the sentence, allowing the respondent to challenge the fines on the basis that they were excessive.

Orders