T -v- BOLITHO [2010] WASC 30

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2010] WASC 30
Published:	19/02/2010
Case No:	SJA:1073/2009	Heard:	21 DECEMBER 2009
Coram:	MARTIN CJ	Delivered:	21/12/09
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed on grounds 1, 2 and 4 Appeal allowed on ground 3
Category:	A
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Parties:	T MARK BOLITHO
Catchwords:	Appeal against declaration that appellant a 'drug trafficker' under s 32A Misuse of Drugs Act Whether conviction in Magistrates Court a 'serious drug offence' under s 32A Whether convictions arising from one search warrant are separate 'convictions' under s 32A Whether spent conviction order precludes conviction from being treated as 'conviction' under s 32A
Legislation:	Criminal Code (WA), s 400(3), s 673 Criminal Property Confiscation Act 2000 (WA), s 8, s 157 Interpretation Act 1984 (WA), s 3(5), s 67(1)(a) Magistrates Court Act 2004 (WA) Misuse of Drugs Act 1981 (WA), s 6(1), s 32A Road Traffic Act 1974 (WA) Sentencing Act 1995 (WA), s 45 Spent Convictions Act 1988 (WA), s 14(3), s 25(1), s 45(5)
Case References:	Carter v Denham [1984] WAR 123 Heyes v State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390 Palfrey v MacPhail [2004] WASCA 257; (2004) A Crim R 542 Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 Smith v C [2001] WASCA 262; (2001) 34 MVR 258

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : T -v- BOLITHO [2010] WASC 30 CORAM : MARTIN CJ HEARD : 21 DECEMBER 2009 DELIVERED : 21 DECEMBER 2009 PUBLISHED : 19 FEBRUARY 2010 FILE NO/S : SJA 1073 of 2009 BETWEEN : T

Appellant

AND

MARK BOLITHO

Respondent

ON APPEAL FROM:

For File No : SJA 1073 of 2009

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T R WATT

File No : ES 1 of 2009

Catchwords:

Appeal against declaration that appellant a 'drug trafficker' under s 32A Misuse of Drugs Act - Whether conviction in Magistrates Court a 'serious drug offence' under s 32A - Whether convictions arising from one search warrant are separate

(Page 2)

'convictions' under s 32A - Whether spent conviction order precludes conviction from being treated as 'conviction' under s 32A

Legislation:

Criminal Code (WA), s 400(3), s 673

Criminal Property Confiscation Act 2000 (WA), s 8, s 157
Interpretation Act 1984 (WA), s 3(5), s 67(1)(a)
Magistrates Court Act 2004 (WA)
Misuse of Drugs Act 1981 (WA), s 6(1), s 32A
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA), s 45
Spent Convictions Act 1988 (WA), s 14(3), s 25(1), s 45(5)

Result:

Appeal dismissed on grounds 1, 2 and 4

Appeal allowed on ground 3

Category: A

Representation:

Counsel:

Appellant : Ms F R Veltman

Respondent : Mr S F Rafferty

Solicitors:

Appellant : Corser & Corser

Respondent : Director of Public Prosecutions (WA)

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

Carter v Denham [1984] WAR 123
Heyes v State…

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 T v Bolitho

Details

AGLC: T v Bolitho [2010] WASC 30
Case: [2010] WASC 30
Decision Date: 19 FEBRUARY 2010

CaseChat Overview and Summary

The appellant, T, sought to appeal against a declaration that they were a drug trafficker under section 32A of the Misuse of Drugs Act. The primary dispute centred around whether their conviction in the Magistrates Court constituted a'serious drug offence' under the same section. The appeal was heard in the Supreme Court of Victoria. The appellant argued that their conviction was not a 'serious drug offence', that the convictions arising from one search warrant should be considered separate, and that a spent conviction order should preclude the conviction from being treated as a 'conviction' under section 32A.

The legal issues before the court were whether the appellant's conviction in the Magistrates Court qualified as a'serious drug offence' under section 32A, whether multiple convictions from a single search warrant should be treated as separate, and whether a spent conviction order affected the classification of a conviction under section 32A. The court needed to interpret the relevant sections of the Misuse of Drugs Act and apply them to the facts of the case.

The court dismissed the appeal on grounds 1, 2, and 4, finding that the appellant's conviction was indeed a 'serious drug offence' under section 32A. The court held that the convictions from a single search warrant were not separate for the purposes of the Act and that the spent conviction order did not preclude the conviction from being considered a 'conviction' under section 32A. However, the court allowed the appeal on ground 3, finding that the interpretation of section 32A was correct.

The final orders of the court were to dismiss the appeal on grounds 1, 2, and 4, and to allow the appeal on ground 3. The declaration that the appellant was a drug trafficker under section 32A of the Misuse of Drugs Act was upheld.

Orders

Orders of the court

Appeal dismissed on grounds 1, 2 and 4

Appeal allowed on ground 3

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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