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
[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.
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Details
AGLC
Victor v Noonan [2023] WASC 138
Case
[2023] WASC 138
Decision Date
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.