PARGIN -v- KELLY [2012] WASC 68

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 68
Case No:	SJA:1027/2011	Heard:	25 JULY 2011
Coram:	MAZZA J	Delivered:	29/02/12
No of pages:	28	Judgment Part:	1 of 1
Result:	Leave to appeal granted on grounds 1, 3 and 5 Leave to appeal refused on grounds 2 and 4 Appeal dismissed
Category:	B
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Parties:	GILES TIMOTHY PARGIN MICHAEL GRAHAM KELLY
Catchwords:	Criminal law Application for leave to appeal against decision Discharging a firearm to cause fear Whether wrong test applied when considering s 233 of the Criminal Code (WA) Whether irrelevant considerations taken into account to assess 'reasonable necessity' Whether wrong test applied when considering s 23(9a) of the Firearms Act 1973 (WA) Whether decision to acquit unreasonable because of the weight of evidence Whether discharge of firearm was not to the danger of the occupants of the homestead
Legislation:	Criminal Appeals Act 2004 (WA), s 8(1)(b), s 30(4) Criminal Code (WA), s 25, s 231, s 233, s 235, s 248, s 283, s 304(1), s 378(2) Criminal Investigation Act 2006 (WA), s 16, s 127, s 128(1), s 128(2) Firearms Act 1973 (WA), s 23(9a)
Case References:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lovell v Fullman [2011] WASC 312 M v The Queen [1994] HCA 63; (1994) 181 CLR 487

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PARGIN -v- KELLY [2012] WASC 68 CORAM : MAZZA J HEARD : 25 JULY 2011 DELIVERED : 29 FEBRUARY 2012 FILE NO/S : SJA 1027 of 2011 BETWEEN : GILES TIMOTHY PARGIN

Appellant

AND

MICHAEL GRAHAM KELLY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R YOUNG

File No : DY 1520 of 2009

Catchwords:

Criminal law - Application for leave to appeal against decision - Discharging a firearm to cause fear - Whether wrong test applied when considering s 233 of the Criminal Code (WA) - Whether irrelevant considerations taken into account to assess 'reasonable necessity' - Whether wrong test applied when considering s 23(9a) of the Firearms Act 1973 (WA) - Whether decision to acquit unreasonable because of the weight of evidence - Whether discharge of firearm was not to the danger of the occupants of the homestead

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b), s 30(4)

Criminal Code (WA), s 25, s 231, s 233, s 235, s 248, s 283, s 304(1), s 378(2)
Criminal Investigation Act 2006 (WA), s 16, s 127, s 128(1), s 128(2)
Firearms Act 1973 (WA), s 23(9a)

Result:

Leave to appeal granted on grounds 1, 3 and 5

Leave to appeal refused on grounds 2 and 4
Appeal dismissed

Category: B

Representation:

Counsel:

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 Pargin v Kelly

Details

AGLC: Pargin v Kelly [2012] WASC 68
Case: [2012] WASC 68
Decision Date: 29 FEBRUARY 2012

CaseChat Overview and Summary

The applicant, Pargin, sought leave to appeal against the decision to acquit him of discharging a firearm to cause fear. The case was heard in the Supreme Court of Western Australia. The primary legal issues revolved around whether the trial judge applied the correct legal test when considering sections 233 of the Criminal Code (WA) and 23(9a) of the Firearms Act 1973 (WA). Specifically, the court needed to determine if the trial judge took into account irrelevant considerations in assessing the'reasonable necessity' defence and whether the decision to acquit was unreasonable given the weight of the evidence. Another aspect was whether the discharge of the firearm was to the danger of the occupants of the homestead.

The court examined the trial judge's approach to the legal tests and concluded that the trial judge applied the correct test for 'reasonable necessity' under the Criminal Code. The court found that the trial judge had considered relevant factors and did not take into account irrelevant considerations. The court also held that the decision to acquit was not unreasonable, given the weight of the evidence presented. Regarding the Firearms Act, the court found no error in the trial judge's application of the relevant provisions. The court ultimately decided that the applicant's appeal should be dismissed, although leave to appeal was granted on specific grounds.

The Supreme Court granted leave to appeal on the first, third, and fifth grounds but refused leave on the second and fourth grounds. The appeal was ultimately dismissed. The court found that while the trial judge's reasoning was sound, the application of the legal tests was correctly done. The decision to acquit the applicant was deemed reasonable in light of the evidence presented. The court's ruling emphasised the importance of correctly applying statutory provisions in criminal cases, particularly those involving the use of firearms.

Orders

Orders of the court

Leave to appeal granted on grounds 1, 3 and 5

Leave to appeal refused on grounds 2 and 4

Appeal 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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