Ward v Cook - [2023] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WARD -v- COOK [2023] WASC 277
CORAM:   HOWARD J
HEARD:   24 JULY 2023
DELIVERED          :   27 JULY 2023
FILE NO/S:   SJA 1014 of 2023
BETWEEN:   COLIN DAN WARD
Appellant
AND
MARIE COOK
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K TAVERNER
File Number            :   WU 11/2022

Catchwords:

Criminal law - Single judge appeal - Application for leave to appeal against conviction - Whether the appellant safeguarded the firearm from loss- Whether the firearm was in storage at the relevant time - Whether the firearm was in 'transit' at the relevant time - Whether the magistrate erred in law and fact - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Firearms Act 1973 (WA)

Result:

Leave to appeal dismissed

Representation:

Counsel:

Appellant	:	Mr R K Williamson
Respondent	:	Ms S J K Teoh

Solicitors:

Appellant	:	Ross Williamson
Respondent	:	State Solicitor's Office

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

Guerinoni Nominees Pty Ltd v Cullen [2022] WASC 337
Martino v Green [2001] WASCA 181; 123 A Crim R 301
McGee v Chitty [2011] WASC 125
Samuels v The State of Western Australia (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190

HOWARD J:

The appellant's conviction

Following a short trial on 25 January 2023 the appellant was convicted on 7 February 2023 of a single offence against s 23(9)(d)(iii) of the Firearms Act 1973 (WA) (Act) by a magistrate. Unless otherwise indicated, all statutory references from here are to the Act.
It was alleged that on 10 - 11 February 2022, being responsible for the storage of a firearm, namely a .22 Ruger Rifle (Rifle), the appellant failed to safeguard it from loss.
The learned magistrate delivered short reasons, fined the appellant $1000 and granted him a spent conviction.

Relevant provisions for this appeal

The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) of the Criminal Appeals Act 2004 (WA). His conviction is a 'decision' which may be appealed.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave. By s 9(2) of the Criminal Appeals Act, leave must not be granted unless this Court is satisfied that the ground has a reasonable prospect of succeeding. I will return to the question of leave after considering the merits of the appeal.

Ground of appeal

The sole ground of appeal is that the learned magistrate erred in law and fact in failing to acquit.
There are then three 'Particulars of error' stated; being:
(1)It was an error to reason the firearm was 'storage' when it was in the cabin of a work vehicle during an overnight stay in Wiluna in the course of a work trip, at the start of which the appellant took the firearm out of storage in a steel cabinet at his homestead 300 kms away and at the end of which he would have put it back in…

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 Ward v Cook

Details

AGLC: Ward v Cook [2023] WASC 277
Case: [2023] WASC 277
Decision Date

CaseChat Overview and Summary

In the case of Ward v Cook, the appellant, Colin Dan Ward, sought to appeal against his conviction for failing to safeguard a firearm from loss, as per section 23(9)(d)(iii) of the Firearms Act 1973 (WA). The appeal was dismissed by Howard J in the Supreme Court of Western Australia. The primary legal issue in the appeal was whether the learned magistrate erred in concluding that the firearm was subject to storage obligations, rather than being in transit. The appellant argued that the firearm was in transit and thus exempt from storage obligations, citing McGee v Chitty [2011] WASCA 125. However, the court held that it was open to the magistrate to find that the firearm was no longer in transit once the appellant reached his intended destination in Wiluna.

The court reasoned that the magistrate's focus on whether the firearm was in transit was not erroneous, as both counsel and the magistrate used 'in transit' as shorthand for whether storage obligations under section 23(9)(d) had been engaged. The court further held that it was open to the magistrate to conclude that the storage obligations were indeed engaged, and that the appellant had failed to safeguard the firearm from loss. The appellant's argument that the storage obligation only re-engaged upon his return home was not accepted. Consequently, the court found no error in the magistrate's reasoning and determined that the appeal did not have a reasonable prospect of success. Therefore, leave to appeal was refused, and the appeal was dismissed.

The final orders of the court were that leave to appeal be refused, and the appeal be dismissed.

Orders