Whelan v Kallane - [2021] WASC 74

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WHELAN -v- KALLANE [2021] WASC 74
CORAM:   TOTTLE J
HEARD:   15 MARCH 2021
DELIVERED          :   24 MARCH 2021
FILE NO/S:   SJA 1069 of 2020
BETWEEN:   MATTHEW ANTHONY HOWARD WHELAN
Appellant
AND
MARCEL KALLANE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   DEPUTY CHIEF MAGISTRATE E WOODS
File Number            :   PE 53596 of 2019

Catchwords:

Criminal law - Appeal against conviction - Mistake of fact defence - Whether mistake one of law or fact - Whether appellant acted under an honest and reasonable but mistaken belief as to a state of things - Whether relevant state of things was capable of altering appellant's criminal responsibility

Statutory construction - Firearms regulation - Offence creating provisions - Whether offence created by description of items that are not firearms - Where regulations prohibit items by description

Legislation:

Criminal Code (WA), s 24
Firearms Act 1973 (WA), s 6(1)
Firearms Regulations 1974 (WA), reg 26

Result:

Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	Mr R K Williamson
Respondent	:	Mr J Johnston

Solicitors:

Appellant	:	Ross Williamson
Respondent	:	Commonwealth Director Of Public Prosecutions

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

Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Bailey v Doncon [2007] WASC 252
Binns v Gardiner [2002] WASCA 337
Buckingham v Nuttall [2021] WASC 35
Denton v Bodycoat [2000] WASCA 424
Granato v Marsh [2018] WASC 201; (2018) 335 FLR 49
McGee v Chitty [2010] WASC 67
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Stackhouse v Curulli (unreported, WASC, Library No 920251, 30 April 1992)
Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 189 A Crim R 23

TOTTLE J:

Introduction

On 27 August 2020, following a trial in the Magistrates Court, the appellant was convicted of one charge that he was in possession of a prohibited firearm, namely a 'forward venting' blank firing imitation pistol, contrary to s 6(1) of the Firearms Act 1973 (WA) (the Act). The appellant was fined $800 and granted a spent conviction order. The appellant was ordered to pay the respondent's costs.
The appellant seeks leave to appeal against this conviction and seeks orders setting aside the conviction and substituting a judgment of acquittal.

Background

In 2008 the appellant purchased a 'forward venting' blank firing imitation pistol (the imitation pistol) from a retail store in the Perth CBD. At the time the imitation pistol was purchased it was not a prohibited firearm under reg 26(1) of the Firearms Regulations 1974 (WA) (the Regulations).
At trial an expert witness for the prosecution, Mr Milonas, explained the nature of a forward venting blank firing imitation firearm as follows:[1]
Forward venting blank firearms have a partial obstruction within the [bore] in the form of a crucifix. The intention is so that…

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 Whelan v Kallane

Details

AGLC: Whelan v Kallane [2021] WASC 74
Case: [2021] WASC 74
Decision Date

CaseChat Overview and Summary

The appellant, Matthew Anthony Howard Whelan, appeals against a conviction and sentence imposed by the Magistrates Court of Western Australia. The appellant was convicted of being in possession of a prohibited firearm, namely a 'forward venting' blank firing imitation pistol, contrary to s 6(1) of the Firearms Act 1973 (WA). The appellant argues that the prosecution failed to negative the exculpatory effect of s 24 of the Criminal Code (WA). He also argues that the magistrate erred in assessing the reasonableness of his belief by reference to his failure to keep track of changes to the law relating to firearms. Leave to appeal on grounds 1 and 2 was granted. The appeal was allowed, the conviction was set aside and a judgment of acquittal was substituted. In reaching this decision, the court found that the appellant's belief that the imitation pistol was not capable of discharging a bullet was a mistaken belief as to the capacity of the imitation pistol. This was a matter of fact and not law. The court found that the appellant's evidence established that he had an honest belief that the imitation pistol did not have the capacity to discharge a bullet. The court found that it was objectively reasonable for a person in the appellant's circumstances to hold the belief that he did. The prosecution had failed to negative the defence under s 24 beyond reasonable doubt.

Orders