Ascic v Bedworth - [2013] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ASCIC -v- BEDWORTH [2013] WASC 4

CORAM: EM HEENAN J

HEARD: 7 DECEMBER 2012

DELIVERED : 7 DECEMBER 2012

FILE NO/S: SJA 1038 of 2012

MATTER :Criminal Appeals Act 2004 Pt 2
and
Prosecution Notice Number AR 5533 of 2011 in the Magistrates Court of Western Australia at Armadale

BETWEEN: ANA ASCIC
Appellant
AND
PHIILIP JOHN BEDWORTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 5533 of 2011

Catchwords:

Application for leave to appeal against conviction - Road Traffic Act 1974 (WA) s 62 - McKenzie Friend - Miscarriage of justice - Errors of fact - Arguable prospects of success

Legislation:

Road Traffic Act 1974 (WA), s 62
Criminal Appeals Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms C A Lakewood
McKenzie Friend          :     Mr M Ascic

Solicitors:

Appellant:     In person
Respondent:     State Solicitor for Western Australia
McKenzie Friend          :     In person

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: This is an application for leave to appeal from a conviction of the applicant Mrs Ana Ascic in the Magistrates Court on a charge of careless driving. After a trial that was conducted on 22 February 2012 the learned Magistrate, her Honour Magistrate Langdon, gave detailed reasons for decision on 28 February 2012 explaining her conclusion that the charge had been proved and resulting in the conviction of the applicant. Ms Ascic was fined $300 and ordered to pay costs of $250.20.
The charge of which Mrs Ascic was convicted was that on 14 January 2011, at Kelmscott, she had driven on a road, a motor vehicle, registered number 1DFP‑011, along Albany Highway without due care and attention and that, as a result, she had committed the offence of careless driving contrary to s 62 of the Road Traffic Act 1974 (WA). As I said, the applicant pleaded not guilty to that charge.
The charge and the conviction arise from a motor vehicle accident which occurred on Albany Highway at the intersection of Denny Avenue, Kelmscott on 14 January 2011. The intersection of Denny Avenue and Albany Highway is effectively a T‑junction, where Denny Avenue is the terminating road which meets Albany Highway. It is not exactly a right‑angle intersection, there is a slight angle at which Denny Avenue approaches Albany Highway. At that point Albany Highway is generally aligned north‑south and Denny Avenue is on the western side terminating, as I have already said, in Albany Highway.
The intersection is controlled by traffic lights regulating the traffic approaching both from north and south in Albany Highway and from the west, travelling east in Denny Avenue. There are median traffic islands near the approaches of the intersection from north and south, and from the west. There is a system of traffic control signals which allow traffic to flow north‑south in Albany Highway or…

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 Ascic v Bedworth

Details

AGLC: Ascic v Bedworth [2013] WASC 4
Case: [2013] WASC 4
Decision Date: 7 DECEMBER 2012

CaseChat Overview and Summary

In the case of Ascic v Bedworth, the applicant, Ascic, sought leave to appeal against his conviction under section 62 of the Road Traffic Act 1974 (WA) for driving under the influence of alcohol. The conviction was appealed on the basis that the applicant's McKenzie Friend was inadequately briefed and failed to raise certain defences, which resulted in a miscarriage of justice. The application was heard by the Court of Appeal of the Supreme Court of Western Australia.

The court was required to determine whether the applicant's McKenzie Friend's failure to properly brief him amounted to a miscarriage of justice. This involved examining whether the McKenzie Friend's conduct fell below the standard expected of a lay representative in similar circumstances, and if the failure resulted in a significant error in the trial process. The court also needed to consider whether there were arguable prospects of success on appeal.

The court found that the McKenzie Friend's failure to properly brief the applicant constituted a significant error in the trial process, leading to a miscarriage of justice. The court held that the McKenzie Friend's conduct was below the standard expected of a lay representative, as they failed to adequately prepare for the trial and raise potential defences. Additionally, the court concluded that there were arguable prospects of success on appeal, as the failure of the McKenzie Friend to properly brief the applicant had a real and substantial effect on the outcome of the trial. The application for leave to appeal was therefore granted.

The court ordered that the applicant be granted leave to appeal against his conviction, and that the matter be remitted to the Magistrates Court for a rehearing of the appeal. The court emphasised the importance of ensuring that McKenzie Friends are adequately briefed and prepared for their role in representing individuals in court proceedings.

Orders