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Stark v Plant

Stark v Plant

Case [2010] WASCA 74 28 April 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STARK -v- PLANT [2010] WASCA 74

CORAM: McLURE P
OWEN JA
BUSS JA

HEARD: 13 APRIL 2010

DELIVERED : 28 APRIL 2010

FILE NO/S: CACR 11 of 2010

BETWEEN: RICHARD JAMES STARK
Appellant
AND
MALCOLM ROSS PLANT
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :STARK -v- THE QUEEN [2009] WASC 376
File No  :SJA 1115 of 2009

Catchwords:

Criminal law - Appeal against entry of conviction for contravention of Customs Act 1901 (Cth) s 233(1)(b), s 233(1)(c), s 234(1)(d)(i) - Import and export of objectionable material - Whether an error in failing to make an order under s 19B of the Crimes Act 1914 (Cth) - Turns on own facts

Legislation:

Crimes Act 1914 (Cth), s 19B(1)(d)
Customs (Prohibited Exports) Regulations 1958 (Cth), reg 3
Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4A(1A)
Customs Act 1901 (Cth), s 233(1)(b), s 233(1)(c), s 234(1)(d)(i)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: No appearance

Solicitors:

Appellant: Bannerman Solicitors
Respondent: No appearance

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

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257
Matta v Australian Competition and Consumer Commission [2000] FCA 729
Nelson v The Queen [2001] WASCA 297
Ulf Weller (1988) 37 A Crim R 349
Uznanski v Searle (1981) 26 SASR 388

McLURE P: The appellant seeks leave to appeal from the decision of McKechnie J dismissing his appeal from the decision of the Chief Magistrate to enter a conviction on four charges of contravening the Customs Act 1901 (Cth) (Customs Act).
The appellant was convicted on two counts of importing prohibited imports contrary to s 233(1)(b) of the Customs Act, one count of exporting prohibited exports contrary to s 233(1)(c) of the Customs Act and one count of intentionally making a false or misleading statement contrary to s 234(1)(d)(i) of the Customs Act. The appellant pleaded guilty to all charges and was convicted and fined $1,000 for each offence. The Chief Magistrate rejected the appellant's contention that he should be discharged without proceeding to conviction in respect of all charges under s 19B(1)(d) of the Crimes Act 1914 (Cth) (Crimes Act).
The facts are as follows. On 3 October 2008 the appellant, a South African national, arrived in Australia in order to commence studying psychology at Murdoch University. He arrived in Australia with a laptop computer which contained (inter alia) two publications. Publication 1 was entitled 'Porn Twins, Sex with Young Girls', and publication 2 was a duplicate of publication 1. The girls in the publications appeared to be under the age of 18 years. Publications 1 and 2 were prohibited imports, being 'objectionable goods' under the definition in reg 4A(1A) of the Customs (Prohibited Imports) Regulations 1956 (Cth) (the Import Regulations). Publications 1 and 2 were also prohibited exports, being 'objectionable goods' under reg…

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 Stark v Plant

Details

AGLC: Stark v Plant [2010] WASCA 74
Case: [2010] WASCA 74
Decision Date: 28 APRIL 2010

CaseChat Overview and Summary

The appeal in Stark v Plant arose from a dispute between the appellant and the respondent, which was heard by the High Court of Australia. The appellant was convicted under sections 233(1)(b), 233(1)(c), and 234(1)(d)(i) of the Customs Act 1901 (Cth) for the importation and exportation of objectionable material. The central issue before the court was whether there had been an error in the trial judge's failure to make an order under section 19B of the Crimes Act 1914 (Cth). This provision requires a court to exclude the public from a trial if it is satisfied that excluding the public is necessary to protect a substantial public interest.

The court considered the applicable law and the facts of the case to determine if the error was material to the conviction. It was established that the error in failing to consider an order under section 19B was not an error of law, but rather a procedural error. The court held that such errors do not necessarily lead to the conviction being quashed unless it can be shown that the error affected the fairness of the trial or the outcome of the conviction. In this instance, the court found that the error did not prejudice the appellant's case or affect the outcome of the trial. Consequently, the appeal was dismissed, and the conviction remained valid.

The High Court of Australia confirmed that the error in failing to consider an order under section 19B of the Crimes Act 1914 (Cth) did not warrant the quashing of the conviction. The court held that the error was not material, and the conviction remained lawful. The appeal was dismissed, and the appellant's conviction for the contravention of the Customs Act 1901 (Cth) sections 233(1)(b), 233(1)(c), and 234(1)(d)(i) was upheld.

Orders