Victor v Noonan

Case [2023] WASC 138


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   VICTOR -v- NOONAN [2023] WASC 138

CORAM:   DERRICK J

HEARD:   27 MARCH 2023

DELIVERED          :   4 MAY 2023

FILE NO/S:   SJA 1077 of 2022

BETWEEN:   GAIL SANDRA VICTOR

Appellant

AND

MICHAEL WILLIAM NOONAN

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE G MacLEAN

File Number            :   PH 174 of 2022


Catchwords:

Appeals - Application for leave to appeal against conviction - Application for extension of time - Application for leave to adduce additional evidence - Appellant convicted of using listening device to record private conversation contrary to s 5(1)(b) of the Surveillance Devices Act 1998 (WA) - Whether magistrate erred in finding that conversation was a 'private conversation' as defined in s 3(1) of Act - Whether appellant bore onus of proving that there were reasonable grounds for believing that use of listening device to record conversation was in the public interest within the meaning of s 26(1) of Act - Whether magistrate erred in finding that appellant had failed to prove that there were no reasonable grounds for believing that use of listening device to record conversation was in the public interest within the meaning of s 26(1) of Act - Whether magistrate erred in failing to consider whether appellant had proved that use of listening device to record conversation was reasonably necessary for protection of appellant's lawful interests within the meaning of s 5(3)(d) of Act - Whether appellant proved that use of listening device to record conversation was reasonably necessary for the protection of appellant's lawful interests within the meaning of s 5(3)(d) of Act

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Application for an extension of time to appeal allowed
Application to adduce additional evidence allowed in part
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant : M J Ajduk
Respondent : J D Berson

Solicitors:

Appellant : Legal Aid (WA)
Respondent : State Solicitor's Office (WA)

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

Amalgamated Television Services Pty Ltd v Marsden [2000] NSWCA 167

AW v Rayney [2010] WASCA 161

Browne v Dunn (1893) 6 R 67

Calandra v Civil Aviation Safety Authority [2015] WASCA 31

DSS v The State of Western Australia [2022] WASCA 128

Duckworth v The State of Western Australia [2018] WASCA 2

Eastough v The State of Western Australia [2010] WASCA 88

Elmi v Rozario [2013] WASC 38

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S)

Harper v Page [2004] WASCA 267

KUC v The State of Western Australia [2021] WASCA 101

Lancaster v The Queen [1989] WAR 83

Ledgerton v Ambrosini [2023] WASCA 16

Marchesano v The State of Western Australia [2017] WASCA 177; (2017) 52 WAR 176

Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181

Pihema v The State of Western Australia [2017] WASC 282

Poland v…

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Victor v Noonan [2023] WASC 138
Case
[2023] WASC 138
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CaseChat Overview and Summary

In the case of Victor v Noonan, the appellant, Gail Sandra Victor, appealed against her conviction by the Magistrates Court of Western Australia for using a listening device to record a private conversation, in contravention of s 5(1)(b) of the Surveillance Devices Act 1998 (WA). The Supreme Court of Western Australia heard the appeal and allowed it on the basis that there were reasonable grounds for believing that the use of the listening device was in the public interest, as provided for in s 26(1) of the Act. The Court found that the magistrate had made an error in not considering whether the use of the listening device was reasonably necessary for the protection of the appellant's lawful interests, as provided for in s 5(3)(d) of the Act. However, the Court dismissed the ground of appeal on the basis that the error did not occasion a substantial miscarriage of justice. The Court granted an extension of time for the appellant to appeal, allowed the application to adduce additional evidence in part, and set aside the decision of the Magistrates Court, entering a verdict of not guilty and a judgment of acquittal in respect of the offence.

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