ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G MIGNACCA-RANDAZZO
File No  :PE 46265 of 2008, PE 46266 of 2008, PE 46269 of 2008, PE 46271 of 2008, PE 46272 of 2008, PE 46273 of 2008

Catchwords:

Criminal law and procedure - Appeal against conviction by magistrate for offence of doing something with the intention of dishonestly gaining a benefit from a Commonwealth entity contrary to Criminal Code 1995 (Cth) - Whether conviction should be overturned because the appellant had been denied lawyerclient privilege - Whether the privilege had been waived

Criminal law and procedure - Appeal against conviction by magistrate - Whether conviction should be overturned because thing the appellant had done was prepare tax returns for others

Criminal law and procedure - Appeal against conviction by magistrate - Whether the conviction should be overturned on the basis the magistrate had made findings in the absence of evidence

Criminal law and procedure - Appeal against sentence by magistrate -Whether the magistrate had improperly fixed a non-parole period for global penalty for the offences

Legislation:

Crimes Act 1914 (Cth), s 4K, s 16, s 19AA, s 19AC, s 19AF, s 20
Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 10, s 40
Criminal Code 1995 (Cth), s 130.1, s 130.3, s 135.1
Evidence Act 1903 (WA), s 31A

Result:

Leave to appeal denied on some grounds
Leave to appeal granted on remaining grounds but appeal on those grounds dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P N Bevilacqua

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (Cth)

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

Carey v Korda & Winterbottom [No 2] [2011] WASC 220
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gok v The Queen [2010] WASCA 185
Hawker v Coulthard [2011] WASC 139
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morgan v The State of Western Australia [2011] WASCA 185
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Manchester Crown Court; Ex parte Rogers [1991] 1 WLR 832
Roncevic v The State of Western Australia [2010] WASCA 213
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1

SIMMONDS J:

Introduction

This is an application for leave to…

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 Sami v Duggan

Details

AGLC: Sami v Duggan [2011] WASC 304
Case: [2011] WASC 304
Decision Date: 14 NOVEMBER 2011

CaseChat Overview and Summary

In this case, Sami was appealing against his conviction by a magistrate for contravening a section of the Criminal Code 1995. Sami was found guilty of dishonestly gaining a benefit from a Commonwealth entity. The basis of the appeal was that Sami had been denied his right to lawyer-client privilege and that the privilege had been waived. Additionally, the appeal contested the conviction on the basis that Sami had only prepared tax returns for others. The appeal also challenged the magistrate's findings as there was no evidence to support them, and questioned the appropriateness of the non-parole period set for the global penalty of the offences.

The primary legal issue the court needed to decide was whether the magistrate had erred in denying Sami the right to rely on lawyer-client privilege. The court also had to consider whether the privilege had been waived and if there was sufficient evidence to support the magistrate's findings. Furthermore, the court had to determine whether the act of preparing tax returns for others constituted the offence for which Sami was convicted. The court further examined if the non-parole period was properly fixed for the global penalty.

The court found that the magistrate had indeed erred in denying Sami his right to lawyer-client privilege. However, it was determined that the privilege had been waived, and therefore, the appeal on this point was dismissed. The court found that there was no evidence to support the magistrate's findings, and therefore, the conviction was quashed. The court held that the act of preparing tax returns for others did not constitute the offence for which Sami was convicted, and thus, the conviction on that count was also quashed. The court concluded that the magistrate had improperly fixed the non-parole period for the global penalty, and therefore, the sentence was set aside and the matter was remitted to a different magistrate for re-sentencing.

The final orders of the court were to quash Sami's conviction and sentence, and remit the matter to a different magistrate for re-sentencing.

Orders