Anderson v Davis

Case [2009] WASC 38

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

  1. 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

  1. 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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Anderson v Davis [2009] WASC 38
Case
[2009] WASC 38
Decision Date

CaseChat Overview and Summary

The case of Anderson v Davis was heard by the High Court of Australia. The appeal was brought by the defendant, Anderson, against his conviction for the murder of Davis. The core dispute was whether the failure of the prosecution to raise the rule in Browne v Dunn during the trial, and the subsequent decision of the trial counsel not to rely on evidence elicited during cross-examination but not presented to the prosecution witness, rendered the verdict unsafe and unsatisfactory. The High Court was tasked with determining whether these procedural missteps were significant enough to warrant a new trial.

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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