Sprlyan v Wyborn

Case [2019] WASC 227

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SPRLYAN -v- WYBORN [2019] WASC 227

CORAM:   JENKINS J

HEARD:   20 MARCH 2019

DELIVERED          :   2 JULY 2019

FILE NO/S:   SJA 1078 of 2018

BETWEEN:   PAUL ANTHONY SPRLYAN

Appellant

AND

BRUCE ALLAN WYBORN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE P G MALONE

MAGISTRATE S R MALLEY

File Number            :   FR 1654/2017

FR 1655/2017

FR 1656/2017

FR 1657/2017


Catchwords:

Criminal law - Appeal against conviction - Failure to comply with the requirements of a member of the police force - Failure to comply with a requirement to provide a sample of oral fluid for drug testing - Possession of a prohibited drug - Possession of drug paraphernalia - Validity of legislation - Claim of right defence - Alleged bias - Procedural fairness - Validity of prosecution notice

Legislation:

Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA)
Australia Act 1986 (Cth)
Constitution Act 1889 (WA)
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Code Act 1995 (Cth)
Criminal Investigation (Identifying People) Act 2002 (WA)
Criminal Procedure Act 2004 (WA)
Judiciary Act 1903 (Cth)
Magistrates Court (General Rules) 2005 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic Act 1974 (WA)
Royal Style and Titles Act 1973 (Cth)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Leave to appeal refused
Appeal dismissed
Applications in the appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : In person
Respondent : Ms Z J Bush

Solicitors:

Appellant : In person
Respondent : State Solicitor's Office

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

Blenkinsop v Wilson [2019] WASC 77

Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Fantakis v NSW Commissioner of Police [2013] NSWSC 1333

Gamage v The State of Western Australia [2008] WASCA 49

Glew v Shire of Greenough [2006] WASCA 260

Harwood v The State of Western Australia [2016] WASCA 8

Hedley v Spivey [2012] WASCA 116

Hopes v Australian Securities and Investments Commission [2016] WASC 198

Hopes v Australian Securities and Investments Commission [2017] WASCA 108

Hoskins v Van Den‑Braak (1998) 43 NSWLR 290

Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Lohe v Gunter [2003] QSC 150

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Mills v Hendriksen [2008] WASC 79; (2008) 184 A Crim R 212

Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

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Sprlyan v Wyborn [2019] WASC 227
Case
[2019] WASC 227
Decision Date

CaseChat Overview and Summary

The appellant, Sprlyan, appealed against his conviction and sentence in the Magistrates Court of Western Australia. The appeal contested the validity of his convictions for failing to comply with police orders to provide a sample of oral fluid for drug testing, possession of a prohibited drug, and possession of drug paraphernalia. The decision of the Court of Appeal, led by Justice White, was that the appeal should be dismissed. The legal issues centred on the validity of the legislation under which the appellant was charged, the applicability of the claim of right defence, and procedural fairness in the conduct of the trial. The court examined whether the offences were related to property and if the appellant's DNA could be considered property under the relevant statute. It was found that the claim of right defence was not applicable because the offences were not related to property. The court also dismissed claims of bias and procedural unfairness. The reasoning of the Court of Appeal was that the offences under the Road Traffic Act 1974 (WA) were not related to property, and therefore, the appellant's claim of right defence was not applicable. The Court of Appeal found no evidence of bias or procedural unfairness in the conduct of the trial. Consequently, the appeal was dismissed, and the original convictions and sentences were upheld.

Orders

Orders of the court

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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

A defence of honest claim of right will not be available unless what is claimed or believed would, if it were the fact, negative an element of the alleged offence or constitute a defence to it.[67][67] Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [77] ‑ [78]; Harwood v The State of Western Australia [2016] WASCA 8. For a claim to be an honest claim of right within the meaning of s 22, the claim must be an honest claim to an entitlement to, or with respect to, property.[68] [68] Interim Advance Corp Pty Ltd v Fazio [76]; Harwood v The State of Western Australia [22], [118]. A claim of right within the meaning of s 22 must be honest although it need not be reasonable.[69] There is an issue as to what the phrase 'and without intention to defraud' means but that issue is not relevant to this appeal.[69] Interim Advance Corp Pty Ltd v Fazio [79]; Harwood v The State of Western Australia [22], [118]. A defence of honest claim of right is only available where there is some evidence in the trial to support an honest claim of right. Where material supporting the defence exists, the burden of negativing or disproving the defence beyond reasonable doubt rests upon the prosecution.[70] The appellant's argument in support of these grounds of appeal, as best I can discern from his written and oral submissions, is that his DNA is contained within his oral fluid and therefore, it is his property. Consequently his refusals to provide the samples of his oral fluid were made in the exercise of an honest claim of right to his property, being his DNA in his oral fluid. The appellant elaborated on this during oral submissions. In essence, he submitted that there was no authority for police officers, under the RTA, to take his DNA and that only the CIIPA permitted police in circumstances which did not exist in this case to take a person's DNA. Therefore in relation to the RTA charges, Magistrate Malley erred in failing to find that the respondent had failed to prove that he (the appellant) was not acting in the exercise of an honest claim of right. The appellant relied on the following exchanges between the appellant and SC Stone in cross‑examination to support the activation of the claim of right defence: The appellant's argument is devoid of merit. Even if I assume for the sake of the argument that the appellant's DNA is his property,[74] neither the offence created by the RTA s 67A(1) nor the offence created by the RTA s 67AB(2)(a) is an offence 'relating to property'.[74] The appellant relied on Roche v Douglas [2000] WASC 146 as authority for the proposition that his DNA was property. As that case and others have made it clear what is property depends on the relevant context. It is unnecessary for me to decide whether DNA is property for the purpose of the Code s 22 and so I will not make that determination. The appellant's alleged claim of right to the DNA contained in his oral fluid, did not negative any element of the alleged offences or constitute a defence to any element of the alleged offences. Indeed, the offences the subject of the RTA s 67A(1) and s 67AB(2)(a) can only ever be committed by the 'owner' of the oral fluid and the DNA contained therein.