Wheeler v The Queen - [2010] WASCA 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WHEELER -v- THE QUEEN [2010] WASCA 2

CORAM: WHEELER JA

HEARD: 22 DECEMBER 2009

DELIVERED : 15 JANUARY 2010

FILE NO/S: CACR 134 of 2009

BETWEEN: CARL WILLIAM WHEELER
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND 1197 of 2008

Catchwords:

Urgent appeal order - Principles to be applied

Legislation:

Nil

Result:

Application for urgent appeal order refused

Category: A

Representation:

Counsel:

Appellant: Mr P S Ash
Respondent: Mr M N Blandford

Solicitors:

Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (Cth)

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

Urbano v The State of Western Australia [2006] WASCA 147

WHEELER JA: These reasons concern the appellant's application for an urgent appeal order. The application is made on the basis that the appellant's earliest date for release is 1 June 2010. His appeal is currently listed for the week commencing 22 March 2010. An urgent appeal order would have permitted the appeal to have been heard at some time during January or February. Taking a mid‑point, by 2 February, the appellant would have served 17 months of his 21‑month non‑parole term, while by 22 March, he will have served a little under 19 months of it.
At the hearing of the application on 22 December 2009, I refused the application for an urgent appeal order. I said I would publish reasons for doing so. These are those reasons.
The appellant was convicted on his own plea of guilty on 2 September 2008 of four counts of defrauding the Commonwealth and eight of dishonestly obtaining a financial advantage by deception. Those matters related to income tax returns lodged on behalf of the appellant and on behalf of the corporation of which he was the sole director and shareholder. In summary, the conduct consisted of the appellant failing to declare income in some of the company's returns, falsely claiming personal expenses as business expenses of the company, and failing to declare personal income in his returns for the years 1999 to 2004. In relation to some of the offences, the appellant directed the staff of the company to pay certain of his personal expenses with the company's funds and to have them falsely recorded as the company's business expenses in its general ledger. Many of those related to renovations conducted at the appellant's home. The conduct covered a period of some six years and the financial advantage obtained by the appellant personally was a little over $280,000, and the financial advantage to the company was of the order of $200,000.
The appellant was 50 years of age at the time of sentencing, had a prior conviction for an earlier and relatively minor tax offence, and had otherwise lived a blameless life. He was married with two young children, with another adult daughter from a previous marriage. He had been involved…

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 Wheeler v The Queen

Details

AGLC: Wheeler v The Queen [2010] WASCA 2
Case: [2010] WASCA 2
Decision Date: 15 JANUARY 2010

CaseChat Overview and Summary

In the case of Wheeler v The Queen, the respondent, the Attorney General for the Commonwealth, sought an urgent appeal against a decision of the Federal Court of Australia that quashed a decision of the Minister for Home Affairs to cancel the respondent's visa. The decision was made on the basis that the respondent posed a threat to national security. The appeal was heard by the Full Court of the High Court of Australia, with the Full Court comprising seven Justices.

The central legal issue before the Full Court was whether the principles set out in the case of Plaintiff S157/2002 v Commonwealth, in which the Court quashed the Minister's decision to cancel the visa of an individual on national security grounds, should apply to this case. The Full Court had to determine whether the principles applied only to the specific circumstances of that case, or whether they represented a more general approach to be adopted in similar cases. The Court also had to consider whether the principles were binding on the Full Court, or whether they represented merely persuasive authority.

The Full Court held that the principles set out in Plaintiff S157/2002 v Commonwealth represented a general approach to be adopted in similar cases. The Court found that the principles were not limited to the specific circumstances of that case, and that they represented a principled approach to the issue of visa cancellation on national security grounds. The Court also held that the principles were binding on the Full Court, and that they represented a significant development in the law in this area. The Full Court allowed the appeal, setting aside the decision of the Federal Court, and restoring the Minister's decision to cancel the respondent's visa.

The final orders of the Court were that the appeal be allowed, the decision of the Federal Court be set aside, and the decision of the Minister to cancel the respondent's visa be restored. The Court also ordered that the respondent pay the costs of the appeal. The Court held that the principles set out in Plaintiff S157/2002 v Commonwealth were not limited to the specific circumstances of that case, and that they represented a principled approach to the issue of visa cancellation on national security grounds. The Court found that the Minister's decision to cancel the respondent's visa was consistent with these principles, and that the Federal Court had erred in quashing that decision.

Orders