The High Court Appeal Has Been Lodged
Vince Reports that the Appeal to the High Court in the matter of the W.A. Ecig Case, has been lodged. (Just in Time, lol)
Updated posted by Vince van Heerden on the Gofundme Account overnite, http://www.gofundme.com/ecigs-our-right-to-choose
Whooo,
Hey everyone sorry again for not posting more frequently. I have good news though the appeal HAS BEEN LODGED!!!
Now here is some detail to get you all excited...
My legal team have kinda gone Boston Legal in their response and I think finally we are arguing the case in the way it should have been originally argued.
First off let me ask you to play this sound file while reading because it feels to me appropriate and sets the tone
https://drive.google.com/file/d/0B0N0qAGzviuOVmM5VThFcm1UY0E/edit?usp=sharing
The legal stance we have made to date has been that the products I sold were not designed to resemble a tobacco product and therefore should not fall under the legislation. This is true, the products I selected for sale do not physically resemble tobacco products however it was later determined in the Supreme Court that in taking into account all aspects of the products (the manner of their use and function etc) that they do have some resemblance...
The Queens Council and Senior Council I have advising me however pulled what I like to think of as a "Boston Legal" moment and realised that the core argument that the prosecution and even the defence initially missed is that the legislation was never designed to block a product that resembled a tobacco product for the purpose of reducing tobacco harm and use...Think about that for a second...
We are appealing now and with confidence on the basis that, and here I will quote from the draft appeal (this will be amended and added to in the near future)
"Draft Grounds of
Appeal
1. The learned Judge below erred in law when she construed the phrase ‘designed to resemble' in s 106 of the Tobacco Products Act 2006 (WA) ("the Act") in that her Honour:
(a) having correctly found that the purpose of the
Act include:
(i) 'preventing children from smoking';
(ii) 'regulating the sale and promotion of tobacco products';
(iii) 'reducing the exposure of people to
tobacco smoke from smoking by others';
and
(iv) 'reducing the incidence of illness and death related to the use of tobacco products by discouraging the use of tobacco products and restricting the promotion of tobacco products and smoking generally',
(b) then erred when she found that another purpose of the Act was 'to prohibit the sale of products that resemble tobacco products';
when the purpose of the Act properly construed is to prohibit the sale of products 'designed to resemble tobacco products' which phrase, in the context of the purposes of the Act, cannot include products designed to assist those who wish to give up smoking.
PARTICULARS
A. There are many products that resemble tobacco products but which are designed for therapeutic purposes such as the reduction of smoking in the community, rather than to 'resemble tobacco products' within the meaning of the Act ('Therapeutic Products').
B. Such Therapeutic Products are not caught by the language at s 106 of the Act.
2. The learned Judge below having correctly found that the word 'design' used in s 106 of the Act means 'to intend for a definite purpose' then erred in law when she failed to consider the intention in the design of the products in question.
Further, and in particular, her Honour erred when she rejected the argument that s 106 is not directed to penalise the sale of products designed to assist those who wish to give up smoking tobacco.
3. The learned Judge below erred in law when her Honour:
(a) allowed the reception into the evidence of Mr Hawkins and Ms Murphy as to the appearance of someone using the products the subject of these proceedings when neither of the two witnesses had seen the relevant model being used, and
(b) sought to rely on the Statement of Agreed Facts to infer that the appearance of all e-cigarettes when they are used is identical, in the absence of
any evidence on that point."
To summarise the above, the legislation was designed to reduce harm and electronic cigarettes or personal vapourisers are designed to provide an alternative that is similar in function and effect while reducing harm and being completely within the spirit of the legislation."
Makes sense huh.
Yeah well, we think so, so here we come Health Department. They may miss the point but we don't. we would like to not die, to have a less harmful alternative and we WILL FIGHT FOR THAT RIGHT!!!
More to follow in coming days, this battle is not going to be easy, but we CAN WIN we just have to give it our all and fight for justice and common bloody sense!
Cheers Vince
Vince Reports that the Appeal to the High Court in the matter of the W.A. Ecig Case, has been lodged. (Just in Time, lol)
Updated posted by Vince van Heerden on the Gofundme Account overnite, http://www.gofundme.com/ecigs-our-right-to-choose
Whooo,
Hey everyone sorry again for not posting more frequently. I have good news though the appeal HAS BEEN LODGED!!!
Now here is some detail to get you all excited...
My legal team have kinda gone Boston Legal in their response and I think finally we are arguing the case in the way it should have been originally argued.
First off let me ask you to play this sound file while reading because it feels to me appropriate and sets the tone
https://drive.google.com/file/d/0B0N0qAGzviuOVmM5VThFcm1UY0E/edit?usp=sharing
The legal stance we have made to date has been that the products I sold were not designed to resemble a tobacco product and therefore should not fall under the legislation. This is true, the products I selected for sale do not physically resemble tobacco products however it was later determined in the Supreme Court that in taking into account all aspects of the products (the manner of their use and function etc) that they do have some resemblance...
The Queens Council and Senior Council I have advising me however pulled what I like to think of as a "Boston Legal" moment and realised that the core argument that the prosecution and even the defence initially missed is that the legislation was never designed to block a product that resembled a tobacco product for the purpose of reducing tobacco harm and use...Think about that for a second...
We are appealing now and with confidence on the basis that, and here I will quote from the draft appeal (this will be amended and added to in the near future)
"Draft Grounds of
Appeal
1. The learned Judge below erred in law when she construed the phrase ‘designed to resemble' in s 106 of the Tobacco Products Act 2006 (WA) ("the Act") in that her Honour:
(a) having correctly found that the purpose of the
Act include:
(i) 'preventing children from smoking';
(ii) 'regulating the sale and promotion of tobacco products';
(iii) 'reducing the exposure of people to
tobacco smoke from smoking by others';
and
(iv) 'reducing the incidence of illness and death related to the use of tobacco products by discouraging the use of tobacco products and restricting the promotion of tobacco products and smoking generally',
(b) then erred when she found that another purpose of the Act was 'to prohibit the sale of products that resemble tobacco products';
when the purpose of the Act properly construed is to prohibit the sale of products 'designed to resemble tobacco products' which phrase, in the context of the purposes of the Act, cannot include products designed to assist those who wish to give up smoking.
PARTICULARS
A. There are many products that resemble tobacco products but which are designed for therapeutic purposes such as the reduction of smoking in the community, rather than to 'resemble tobacco products' within the meaning of the Act ('Therapeutic Products').
B. Such Therapeutic Products are not caught by the language at s 106 of the Act.
2. The learned Judge below having correctly found that the word 'design' used in s 106 of the Act means 'to intend for a definite purpose' then erred in law when she failed to consider the intention in the design of the products in question.
Further, and in particular, her Honour erred when she rejected the argument that s 106 is not directed to penalise the sale of products designed to assist those who wish to give up smoking tobacco.
3. The learned Judge below erred in law when her Honour:
(a) allowed the reception into the evidence of Mr Hawkins and Ms Murphy as to the appearance of someone using the products the subject of these proceedings when neither of the two witnesses had seen the relevant model being used, and
(b) sought to rely on the Statement of Agreed Facts to infer that the appearance of all e-cigarettes when they are used is identical, in the absence of
any evidence on that point."
To summarise the above, the legislation was designed to reduce harm and electronic cigarettes or personal vapourisers are designed to provide an alternative that is similar in function and effect while reducing harm and being completely within the spirit of the legislation."
Makes sense huh.
Yeah well, we think so, so here we come Health Department. They may miss the point but we don't. we would like to not die, to have a less harmful alternative and we WILL FIGHT FOR THAT RIGHT!!!
More to follow in coming days, this battle is not going to be easy, but we CAN WIN we just have to give it our all and fight for justice and common bloody sense!
Cheers Vince
