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R v Willingham (No 2)

R v Willingham (No 2)

Case [2012] SASCFC 104 3 September 2012

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLINGHAM (No 2)
[2012] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
3 September 2012
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Application for permission to appeal against conviction - appellant was convicted of two counts of possessing a firearm without a licence - whether the searches that led to the discovery of the firearm the subject of each count were illegal and, if so, whether the evidence of the search and discovery of the firearms should have been excluded.
Held (the Court): Permission to appeal against conviction granted - appeal against conviction dismissed - the Judge was correct in concluding that the searches were not illegal and that the evidence was therefore admissible.
Appeal against sentence - appellant's conduct breached a suspended sentence bond which had been imposed in respect of other offending - appellant's suspended sentence bond was estreated - total head sentence of 30 months imprisonment imposed by the Judge - non-parole period of 23 months fixed - the Judge also imposed fines in respect of the firearms offences - whether the Judge had power to both imprison and fine the appellant.
Held (the Court): Appeal against sentence allowed - the Judge did not have power to imprison and fine the appellant - appellant resentenced.
Controlled Substances Act 1984 (SA) s 32; Firearms Act 1977 (SA) s 11; Summary Offences Act 1953 (SA) s 67 and s 68; Criminal Law (Sentencing) Act 1988 (SA) s 18, referred to.
R v Rogers (2011) 109 SASR 307; Wilson v The Queen; Morrison v The Queen (1994) 176 LSJS 435; Crowley v Murphy (1981) 52 FLR 123; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281, considered.

R v WILLINGHAM (No 2)
[2012] SASCFC 104
Court of Criminal Appeal Gray, Sulan and Stanley JJ
THE COURT:

These are appeals against conviction and sentence.[1]
[1] Permission to appeal against conviction was granted during the course of submissions.
The defendant and appellant, Dale Paul Willingham, stood trial before a Judge alone in the District Court on four counts of trafficking in a controlled drug contrary to section 32(3) of the Controlled Substances Act 1984 (SA) and on two counts of possessing a firearm without a licence contrary to section 11(1) of the Firearms Act 1977 (SA).
On 16 November 2011, the trial Judge acquitted the defendant of the four counts of trafficking in a controlled drug. On 30 March 2012, the Court of Criminal Appeal, on the application of the Director of Public Prosecutions, set aside the Judge’s verdict of acquittal on the four counts of trafficking in a controlled drug and ordered a retrial on each of…

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 R v Willingham (No 2)

Details

AGLC: R v Willingham (No 2) [2012] SASCFC 104
Case: [2012] SASCFC 104
Decision Date: 3 September 2012

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against conviction and sentence by the appellant, who had been convicted on two counts of possessing a firearm without a licence. The central dispute revolved around the legality of the searches that led to the discovery of the firearms and, consequently, the admissibility of that evidence. The appeal was heard by Gray, Sulan, and Stanley JJ.

The court was required to determine two primary legal issues. Firstly, whether the searches conducted were illegal and, if so, whether the evidence obtained from those searches should have been excluded from the trial. Secondly, in relation to the appeal against sentence, the court had to consider whether the sentencing judge had the power to impose both a term of imprisonment and fines on the appellant for the firearms offences, particularly in light of the appellant's breach of a suspended sentence bond.

Regarding the conviction, the court held that the searches were not illegal and that the evidence of the firearms was therefore admissible. Consequently, permission to appeal against conviction was granted, but the appeal itself was dismissed. In relation to the sentence, the court found that the sentencing judge had erred in imposing both imprisonment and fines. Accordingly, the appeal against sentence was allowed, and the appellant was resentenced.

Orders