Wilmot v Saleri - [1997] QCA 125

COURT OF APPEAL

[1997] QCA 125

DAVIES JA
WILLIAMS J
MACKENZIE J

CA No 26 of 1997

P WILMOT

OSCAR SALERI Applicant

BRISBANE

..DATE 18/04/97

JUDGMENT

MACKENZIE J: This is an application for leave to appeal against a penalty imposed on the applicant in the Cairns Magistrates Court for possession of heroin. The applicant is an Italian national, 29 years of age, who was in Australia on a holiday visa at the time of conviction.

The police searched the room at the hotel at which he was staying and found a small quantity of heroin, undoubtedly less than 0.4 grams, which he said was the remains of heroin purchased by him in Kings Cross for $300. He told the police that he used the heroin to overcome the effects of a car accident in Italy.

That account is similar to one which was given to a doctor who had been consulted by the applicant the evening before the police intervention. The doctor had been told by the applicant that he had become dependent on narcotic drugs following a car accident in which he suffered multiple injuries.

The solicitor for the applicant told the Magistrate that methadone had been prescribed by the doctor. Although it is not expressly stated in the doctor's statement that that was the case, it is consistent with it in that he said the applicant had sought help with "doctor prescribed and doctor supervised medicine".

The applicant is financial director of a family company in Italy. The submission made to the Magistrate was that there was some real prospect that he would be able to obtain funds for investment and that was part of the reason why he came to Australia. It was predominantly for a vacation but he had met with property developers and the like and the solicitor said that from what he understood it may be his intention to have some dealings in Australia in the future.

The applicant's solicitor asked the Magistrate to exercise the discretion not to record a conviction on the basis that it may affect the issue of an Australian visa in the future and, as I understand it, because it may affect his standing in the eyes of people who may otherwise have had dealings with him in the future. It was also put to the Magistrate that it was not impossible that a conviction may have some effect in Italy.

The Magistrate expressed the view that it was not the function of the Court to try to influence the outcome of transactions with other official bodies and that it was in the public interest that public authorities were entitled to know if a person was dependent upon narcotics.

It is a factor in deciding whether to grant or refuse a visa under the Migration Act that past criminal conduct and general conduct show that the person may not be a person to whom a visa should be given.

From what I have said, it will be seen…

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 Wilmot v Saleri

Details

AGLC: Wilmot v Saleri [1997] QCA 125
Case: [1997] QCA 125
Decision Date: 18 April 1997

CaseChat Overview and Summary

Wilmot v Saleri involved the applicant, an Italian national on a holiday visa in Australia, who was found in possession of heroin by the police during a search of his hotel room. The applicant claimed that the heroin was the remnants of a larger purchase and that he used it to treat the effects of a car accident in Italy. The case reached the Court of Appeal, where the applicant sought leave to appeal against the penalty imposed by the Cairns Magistrates Court. The primary legal issues before the court were whether the magistrate had correctly exercised their discretion to impose a conviction and whether the fine imposed was excessive. The court found that the magistrate was justified in imposing a conviction due to the public interest in informing authorities about narcotics dependency. The court also determined that the fine was not manifestly excessive, given the applicant's age and the mitigating circumstances of the case. The Court of Appeal ultimately refused the applicant's application for leave to appeal.

Orders