SA v McKinnon - [2009] WASC 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SA -v- McKINNON [2009] WASC 7

CORAM: SIMMONDS J

HEARD: 16 DECEMBER 2008

DELIVERED : 19 JANUARY 2009

FILE NO/S: SJA 1075 of 2008

BETWEEN: SA
Appellant
AND
FERGUS WILLIAM McKINNON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 3733 of 2008

Catchwords:

Appeal by leave from refusal by a magistrate to make a spent conviction order - Whether error in approach to Sentencing Act s 45(1)(a) on enlivening of discretion to make order - Standard of proof of matters in s 45(1)(a) - Whether no substantial miscarriage of justice had occurred - Principles for exercise of discretion to make spent conviction order under s 45

Legislation:

Criminal Code (WA), s 323
Criminal Appeals Act 2004 (WA), s 14
Sentencing Act 1995 (WA), s 39, s 45

Result:

Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: Ms K J Farley
Respondent: Ms F M Clare

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Brewer v Bayens [2002] WASCA 271
JJA v Yow [2008] WASC 69
Marker v The Queen [2002] WASCA 282
McKenzie v Daly [2008] WASC 284
Neale v Sloan (1997) 27 MVR 246
R v Tognini (2000) 22 WAR 291
Riggall v State of Western Australia [2008] WASCA 69
Tambyrajah v Gablonski [2004] WASCA 105; (2004) 147 A Crim R 18
Thompson v Mackay [2008] WASC 270
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

SIMMONDS J:

Introduction

This is an appeal against sentence. The basis for the appeal is that the learned sentencing Magistrate erred in refusing to make a spent conviction order under Sentencing Act 1995 (WA) s 39 read with s 45.
In these reasons I first describe the background to that refusal and this appeal. I then set out the relevant statutory provisions, before considering whether or not the learned magistrate erred. As I consider that the appellant has made out error, I then turn to the application of Criminal Appeals Act 2004 (WA) s 14(2). The final section of these reasons is my conclusions and orders.

Background

The following is not in contest between the parties to the appeal.
On 12 February 2008 in Perth Magistrates Court the appellant entered a plea of guilty to a charge of indecent assault contrary to Criminal Code (WA) s 323.
The circumstances of the offending were that the appellant had touched a young woman over her clothing from behind when she was bending over to look at some clothing on a rack in a shop. He had apologised to the victim immediately when he was confronted and he had co‑operated with the police, making admissions in relation to the offence.
The appellant was 25 years old at the time of the offending. He had only two previous convictions, for traffic matters, on his record.
At 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 SA v McKinnon

Details

AGLC: SA v McKinnon [2009] WASC 7
Case: [2009] WASC 7
Decision Date: 19 JANUARY 2009

CaseChat Overview and Summary

The case involved an appeal by McKinnon against a magistrate's refusal to make a spent conviction order. The matter before the court was McKinnon's application for the removal of a spent conviction from his criminal record. The primary legal issues were whether the magistrate erred in their approach to section 45(1)(a) of the Sentencing Act, the standard of proof required for matters in section 45(1)(a), whether there was a substantial miscarriage of justice, and the principles for exercising the discretion to make a spent conviction order under section 45.

The court found that the magistrate had erred in their approach to section 45(1)(a) of the Sentencing Act, which concerns the criteria for making a spent conviction order. The court clarified that the standard of proof required for matters in section 45(1)(a) is the balance of probabilities. The court also found that there was no substantial miscarriage of justice in the magistrate's refusal to make the order, as the factors considered by the magistrate were relevant and appropriate. However, the court determined that the magistrate had not correctly applied the principles for exercising the discretion to make a spent conviction order under section 45. Consequently, the court allowed the appeal and made the spent conviction order.

The final orders of the court were that the appeal was allowed and a spent conviction order was made in McKinnon's favour.

Orders

Orders of the court

Appeal allowed

Spent conviction order made

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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