JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ANDERSON -v- DAVIS [2009] WASC 38
CORAM: JOHNSON J
HEARD: 27 JUNE 2008
DELIVERED : 25 FEBRUARY 2009
FILE NO/S: SJA 1030 of 2008
BETWEEN: MICHAEL SHANE ANDERSON
Appellant
AND
SCOTT ALLAN DAVIS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
File No :KA 4233 of 2007
Catchwords:
The rule in Browne v Dunn - Effect of failure by prosecution to raise Browne v Dunn point - Responsibility of magistrate - Effect of counsel's decision not to rely on evidence raised by accused in cross-examination but not put to prosecution witness - Effect of counsel taking responsibility for breach of rule in Browne v Dunn - Unsafe and unsatisfactory verdict
Legislation:
Road Traffic Code 2000 (WA), s 232(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M C Owens
Respondent: Mr R E King
Solicitors:
Appellant: Max Owens & Co
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1
Browne v Dunn (1893) 6 R 67 (HL)
Bulstrode v Trimble [1970] VR 840
DeVries v Australian National Railways Commission and Anor (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Harvey v Matthews [1999] WASCA 58
M v The Queen (1994) 181 CLR 487
Myers v Claudianos (1990) 100 FLR 362
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
R v Manunta (1990) 54 SASR 17
Rasoolifard v Nicol [2001] WASCA 180
Rosenberg v Percival (2001) 205 CLR 434
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
JOHNSON J: The appellant appeals against his conviction after trial in the Kalgoorlie Magistrates Court on 18 March 2008 for failing to wear a seat belt, contrary to s 232(1) of the Road Traffic Code 2000 (WA) (RTC). The charge alleged that on 2 May 2007 the appellant drove a motor vehicle on Eyre Highway whilst occupying a seat position with a seat belt fitted whilst that seat belt was not properly adjusted and securely fastened.
Grounds of appeal
The grounds of appeal are as follows:
The magistrate erred in law and fact in convicting the appellant.
Particulars
1.The magistrate erred in law and fact in finding that the issues of whether or not counsel put to Constable Scott that:
(a)the appellant denied saying the seat belt did not fit;
(b)the appellant made a protest about the issue of an infringement.
could have amounted to Browne v Dunn points over which adverse inferences could have been drawn against the appellant.
2.The conviction was in any event unsafe because it could not be sustained to…
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- AGLC
- Anderson v Davis [2009] WASC 38
- Case
- [2009] WASC 38
- Decision Date
CaseChat Overview and Summary
The court examined whether the prosecution's omission to invoke the rule in Browne v Dunn constituted a breach that could affect the fairness of the trial. Furthermore, the court considered the implications of the trial counsel's decision not to act on evidence raised by the accused during cross-examination, and how this decision impacted the overall trial process. Another key issue was whether the trial counsel's acceptance of responsibility for not following the rule in Browne v Dunn could be considered a mitigating factor, and whether this acceptance negated the need for a new trial.
In delivering its judgment, the court held that the failure to raise the rule in Browne v Dunn was a significant procedural error. However, the court found that the trial counsel's decision not to rely on the cross-examination evidence, despite its potential relevance, did not significantly affect the outcome of the trial. The court also noted that while the trial counsel's acceptance of responsibility for the procedural breach was commendable, it did not excuse the fundamental error. Ultimately, the court concluded that the errors did not undermine the safety and satisfaction of the verdict to such an extent as to warrant a new trial. Therefore, the appeal was dismissed.
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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