Pelka v Sundquist - [2005] WASC 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PELKA -v- SUNDQUIST [2005] WASC 52

CORAM: MCKECHNIE J

HEARD: 1 FEBRUARY 2005

DELIVERED : 7 APRIL 2005

FILE NO/S: SJA 1118 of 2004

MATTER :Justices Act 1902 (WA)

BETWEEN: HENRY KARL PELKA
Appellant
AND
HANS WILHELM SUNDQUIST
Respondent

FILE NO/S :SJA 1119 of 2004

MATTER :Justices Act 1902 (WA)
BETWEEN :HENRY KARL PELKA
Appellant
AND
COMPUTA PARK PTY LTD
Respondent

FILE NO/S :SJA 1120 of 2004

MATTER :Justices Act 1902 (WA)
BETWEEN :HENRY KARL PELKA
Appellant
AND
OSBED WA PTY LTD
Respondent

FILE NO/S :SJA 1121 of 2004

MATTER :Justices Act 1902 (WA)
BETWEEN :PARKFURN PTY LTD
ROBERT OWEN EVANS
BORNAPP PTY LTD
MARK RAYMOND McCLUSKEY
Appellants
AND
HENRY KARL PELKA
Respondent

ON APPEAL FROM:
For File No               :  SJA 1118 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P A NICHOLLS SM
Citation  :HENRY KARL PELKA v HANS WILHELM SUNDQUIST
File No  :PE 16430 of 2004
Result  :No case to answer
For File No               :  SJA 1119 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P A NICHOLLS SM
Citation  :HENRY KARL PELKA v COMPUTA PARK PTY LTD
File No  :PE 16433 of 2004
Result  :No case to answer
For File No               :  SJA 1120 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P A NICHOLLS SM
Citation  :HENRY KARL PELKA v OSBED WA PTY LTD
File No  :PE 16428 of 2004
Result  :No case to answer
For File No               :  SJA 1121 of 2004
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P A NICHOLLS SM
Citation  :HENRY KARL PELKA v PARKFURN PTY LTD, ROBERT OWEN EVANS, BORNAPP PTY LTD & MARK RAYMOND McCLUSKEY
File No  :PE 16415 of 2004, PE 16418 of 2004, PE 16421 of 2004, PE 16424 of 2004
Result  :Complaints proven

Catchwords:

Retail trading - Whether a shop open at restricted time - Words and phrases - Offered or exposed for sale - Criminal law and evidence - Admissions and confessions - Whether requirement to advise right against self-incrimination before questioning person

Legislation:

Interpretation Act 1874 (WA), s 8

Retail Trading Hours Act 1987 (WA), s 3, s 12, s 29, s 31, s 39

Result:

Prosecution appeals allowed
Matters remitted to Magistrate
Defendants' appeals dismissed

Category: A

Representation:

SJA 1118 of 2004

Counsel:

Appellant: Ms L E Christian
Respondent: Mr M L Bennett & Mr M A MacLennan

Solicitors:

Appellant: State Solicitor
Respondent: Bennett & Co

SJA 1119 of 2004

Counsel:

Appellant: Ms L E Christian
Respondent: Mr M L Bennett & Mr M A MacLennan

Solicitors:

Appellant: State Solicitor
Respondent: Bennett & Co

SJA 1120 of 2004

Counsel:

Appellant: Ms L E Christian
Respondent: Mr M L Bennett & Mr M A MacLennan

Solicitors:

Appellant: State Solicitor
Respondent: Bennett & Co

SJA 1121 of 2004

Counsel:

Appellants: Mr M…

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 Pelka v Sundquist

Details

AGLC: Pelka v Sundquist [2005] WASC 52
Case: [2005] WASC 52
Decision Date: 7 APRIL 2005

CaseChat Overview and Summary

In the matter of Pelka v Sundquist, the prosecution has appealed against several defendants convicted for breaches of the Retail Trading Hours Act 1987, specifically for operating a retail shop at restricted times. The case involves multiple defendants, including individuals and companies associated with Harvey Norman Osborne Park. The central dispute revolves around whether certain items were "offered or exposed for sale" in contravention of the Act, and whether the proper legal procedures were followed during the questioning of the defendants. The defendants argue that the evidence presented was insufficient to establish a breach of the Act and that procedural errors were made during the questioning process.

The legal issues before the court include the interpretation of the phrase "offered or exposed for sale" within the context of the Retail Trading Hours Act, the admissibility of certain evidence, and the procedural requirements under the law when questioning individuals suspected of a breach. Specifically, the court had to determine whether the items listed in the prosecution's evidence were indeed "offered or exposed for sale," whether the certificate and statements obtained from the defendants were admissible, and whether the defendants' rights were properly safeguarded during questioning. The defendants argued that the items were not "offered or exposed for sale" in the manner required by the Act and that the questioning procedures were flawed.

The court examined the evidence and arguments presented by both parties, focusing on the interpretation of the statutory language and the admissibility of the evidence. The court found that the items in question were indeed "offered or exposed for sale" within the meaning of the Act, thereby establishing a breach. Regarding the admissibility of the evidence, the court ruled that while there were procedural errors in the questioning of the defendants, these did not render the evidence inadmissible. The court held that the defendants' rights were not violated to the extent that it affected the reliability of the statements. Consequently, the convictions were upheld.

The final orders of the court were that the appeals by the defendants were dismissed, and the original convictions were affirmed. The defendants remained convicted for the breaches of the Retail Trading Hours Act 1987. The court's ruling emphasised the importance of strict compliance with the statutory provisions and procedural requirements in retail trading cases.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The prosecution has been granted leave to appeal in respect of each of those charges as follows: SJA 1118 of 2004 (PE 04/16430) respondent Hans Wilhelm Sundquist; SJA 1119 of 2004 (PE 04/16433) respondent Computa Park Pty Ltd; SJA 1120 of 2004 (PE 04/16428) respondent Osbed WA Pty Ltd. The grounds of appeal are common and it is sufficient to refer only to SJA 1118 of 2004:"(a)erred in fact and law in finding that the specific items exposed for sale, namely, a Cara 3‑piece modular lounge, a Avanti 9‑piece dining set, a Toshiba DVD player and a Kodak digital camera, in Harvey Norman Osborne Park on 22 June 2003, were not jointly exposed for sale;(b)erred in fact and law in finding that the marble coffee table sold in Harvey Norman Osborne Park on 22 June 2003 was not jointly sold;(c)erred in law in finding that in order to establish goods were sold by Osbed WA Pty Ltd on 22 June 2003 there needed to be evidence of a specific item exposed for sale in the bedding department;(d)erred in fact and law in failing to find there was evidence capable of supporting the inference that goods were offered or exposed for sale in the bedding department;Particulars of Evidence(i)Harvey Norman Osborne Park was a general retail shop;(ii)all departments of Harvey Norman Osborne Park were open on Sunday, 22 June 2003;(e)erred in fact and in law in finding that the admissions of the Respondent were not capable of establishing that Osbed WA Pty Ltd offered or exposed goods for sale on 22 June 2003." The Magistrate was satisfied beyond reasonable doubt that in respect of Parkfurn Pty Ltd (PE 04/16415), Mr Evans (PE 04/16418), Bornapp Pty Ltd (PE 04/16421) and Mark Raymond McCluskey (PE 04/16424) the prosecution had proved its case. Each of these defendants has been granted leave to appeal on the following grounds:"(a)His Worship erred in law and in fact in admitting a certificate purportedly tendered pursuant to Section 39(g) of the Retail Trading Hours Act 1987 ('the Act'), namely Exhibit A, in that such certificate:(i)purported to have retrospective effect, when Section 39(g) does not authorise the giving of a statement having retrospective effect; and(ii)the said certificate cannot properly be viewed as a statement issued pursuant to Section 39(g) of the Act. The certificate goes further than what is allowed under Section 39(g) which simply authorises a statement stating the class to which any retail shop belongs. In other words, Section 39(g) does not enable the issuing of a certificate that is evidence that the premises are in fact a retail shop. The proof that premises are a retail shop must be established at trial, and the certificate should not have been admitted.(b)His Worship erred in law and in fact in admitting the question and answer sheets signed by Robert Owen Evans (Exhibit F) and Mark Raymond McCluskey (Exhibit G) in that Robert Owen Evans and Mark Raymond McCluskey were asked questions tending to incriminate them before the mandatory Section 31 caution was administered to them, and the answers to those questions were recorded in those statements. The statements should have been excluded in toto;(c)His Worship erred in law and in fact in finding that there was sufficient evidence to establish that:(i)the sale of a marble coffee table occurred;(ii)alternatively, that such sale was attributable to Parkfurn Pty Ltd or Robert Owen Evans;(iii)the four items referred to by Inspector Pelka, namely the Cara 3‑piece modular lounge, the Avanti 9‑piece dining suite, the Toshiba DVD player, and the Kodak digital camera, were sold or exposed for sale within the meaning of Section 3 of the Act, or alternatively that such sale or exposure for sale was attributable to any of the Applicants.(d)His Worship erred in law and in fact in finding that the display of goods within the Harvey Norman Osborne Park complex on 22 June 2003, established a sale of goods within the meaning of Section 3 of the Act, or alternatively, that such display constituted a sale attributable to any of the Applicants;(e)His Worship erred in law and in fact in finding that the photograph of a man in the Harvey Norman Osborne Park Complex (Exhibit J10) holding a box established a sale, or alternatively, a sale attributable to any of the Applicants."

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.