Willenberg v Downey

Case [2015] WASC 282


WILLENBERG -v- DOWNEY [2015] WASC 282



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2015] WASC 282
Case No:SJA:1033/201524 JULY 2015
Coram:PRITCHARD J27/07/15
20Judgment Part:1 of 1
Result: Appeal dismissed
B
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Parties:ALLISTAIR WILLENBERG
ANDREW JOHN DOWNEY

Catchwords:

Application for leave to appeal from Magistrate's decision to refuse a spent conviction order
Whether any of the grounds of appeal have a reasonable prospect of success
Whether prejudgment
Whether failure to consider the applicant's personal circumstances
Whether insufficient weight given to the adverse effect of a conviction on employment prospects
Leave to appeal refused
Practice and procedure
Application for leave to adduce additional evidence
Application refused

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 40(1)(e)
Sentencing Act 1995 (WA), s 45(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 52

Case References:

'A' v Staples [2007] WASC 36
Brewer v Baynes [2002] WASCA 271; (2002) 26 WAR 510
Ennis v D'Andrilli [2007] WASC 26
Harper v Page [2004] WASCA 267
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hull v Castledine [2005] WASC 252
Johnston v Johnston [2000] HCA 48; (2000) 201 CLR 488
Lovell v Lovell (1950) 81 CLR 513
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v O'Neill [2013] WASC 187; (2013) 230 A Crim R 511
Malhi v Richards-Scully [2014] WASC 410
Mallet v Mallet (1984) 156 CLR 605
McGregor v The State of Western Australia [2011] WASCA 88
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Neale v Sloan (1997) 27 MVR 246
Nevermann v The Queen (1989) 43 A Crim R 347
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Rule v Trudgill [2015] WASC 196
Samuels v The State of Western Australia [2005] WASCA 193
Sherwood v Western Australia [2007] WASCA 81
Vagh v The State of Western Australia [2007] WASCA 17
Waldock v Taylor [2003] WASCA 43
Wilson v The State of Western Australia [2010] WASCA 82


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : WILLENBERG -v- DOWNEY [2015] WASC 282 CORAM : PRITCHARD J HEARD : 24 JULY 2015 DELIVERED : 27 JULY 2015 FILE NO/S : SJA 1033 of 2015 BETWEEN : ALLISTAIR WILLENBERG
    Appellant

    AND

    ANDREW JOHN DOWNEY
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M FLYNN

File No : AR 1617 of 2015


Catchwords:

Application for leave to appeal from Magistrate's decision to refuse a spent conviction order - Whether any of the grounds of appeal have a reasonable prospect of success - Whether prejudgment - Whether failure to consider the applicant's personal circumstances - Whether insufficient weight given to the adverse effect of a conviction on employment prospects - Leave to appeal refused



Practice and procedure - Application for leave to adduce additional evidence - Application refused

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Willenberg v Downey [2015] WASC 282
Case
[2015] WASC 282
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CaseChat Overview and Summary

Willenberg sought leave to appeal from a decision of the Magistrates' Court to refuse a spent conviction order. The dispute involved the legal interpretation and application of the Spent Convictions Act 1988 (Vic), and the circumstances surrounding the refusal of the order. The Court of Appeal was required to determine whether any of the grounds of appeal had a reasonable prospect of success. This involved assessing whether the Magistrate's decision was influenced by prejudgment, whether the applicant's personal circumstances were adequately considered, and whether sufficient weight was given to the adverse effect of the conviction on employment prospects.

The court found that the grounds of appeal did not have a reasonable prospect of success. It held that the Magistrate had not prejudged the matter, had considered the applicant's personal circumstances, and had appropriately weighed the adverse effect of the conviction on employment prospects. The court emphasised that the discretion of the Magistrate under the Act was broad, and the appeal grounds did not demonstrate any error in the exercise of that discretion. Additionally, the court declined to allow the addition of new evidence, finding that it did not significantly alter the legal or factual context of the case.

Consequently, the application for leave to appeal was dismissed, and the appeal itself was also dismissed. The Court of Appeal ruled that the original decision of the Magistrate's Court to refuse the spent conviction order would stand.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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