Basile v Thickens - [2024] VSC 292

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS

S ECI 2022 04422

ADAM BASILE	Plaintiff
v
BRENT THICKENS	First Defendant
- and -
THE COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2024
DATE OF JUDGMENT:	5 June 2024
CASE MAY BE CITED AS:	Basile v Thickens
MEDIUM NEUTRAL CITATION:	[2024] VSC 292

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JUDICIAL REVIEW – Traffic offences – Statutory defence of sudden or extraordinary emergency – Onus of proof on prosecution – County Court dismissing driver’s appeal from Magistrates’ Court conviction – Whether error of law on face of the record – Whether no evidence to support Judge’s findings – Proceeding dismissed – Crimes Act 1958 ss 322I, 322R; Road Safety Act 1986 s 64(1); Road Safety Rules 2017 r 20.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings with Ms D Dwyer	Denise Dwyer Lawyers
For the First Defendant	Mr G Buchhorn	Abbey Hogan, Solicitor for Public Prosecutions
For the Second Defendant	No appearance	No appearance

HIS HONOUR:

The plaintiff, Adam Basile, was charged with traffic offences arising out of an incident on 3 July 2017,[1] when he was detected travelling at 137km per hour in an 80km zone by a speed camera in Bangholme. The plaintiff contested the charges in the Magistrates’ Court at Dandenong but was convicted of dangerous driving, in contravention of s 64(1) of the Road Safety Act 1986 (the Road Safety Act). A charge of exceeding the speed limit in breach of r 20(3) of the Road Safety Road Rules 2017 (the Road Safety Rules) was withdrawn and struck out (the Magistrates’ Court Proceeding).
[1]The delay in this prosecution progressing through the courts was said to be due to delays caused by the COVID pandemic.

The plaintiff appealed his conviction to the County Court, where on 26 August 2022, he argued that his conduct was necessitated by reason of a sudden or extraordinary emergency, which would provide a defence under s 322R of the Crimes Act 1958 (the Crimes Act) (the County Court Proceeding). On 31 August 2022, the County Court judge rejected the plaintiff’s argument, and convicted him of the same offence of driving at a speed which was dangerous to the public in breach of s 64(1) of the Road Safety Act. The plaintiff was ordered to pay fines and statutory costs totalling $882.40, his licence was cancelled and he was disqualified from driving for a period of 12 months.

The plaintiff has no right of further appeal from the County Court’s orders, but commenced this proceeding seeking judicial review of the orders and ultimately argued that they were not supported by any evidence. He seeks orders quashing the County Court judgment[2] and orders, and directing the County Court to record that the original charges against him stand dismissed on appeal.
[2]The judgment was described in the…

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 Basile v Thickens

Details

AGLC: Basile v Thickens [2024] VSC 292
Case: [2024] VSC 292
Decision Date: 5 June 2024

CaseChat Overview and Summary

In the matter of Basile v Thickens, the appellant sought judicial review of a decision by the County Court dismissing his appeal against a conviction by the Magistrates’ Court for driving offences. The appellant, who had been convicted of dangerous driving and failing to stop after an accident, argued that he had a valid defence under the statutory provision for sudden or extraordinary emergency. The case reached the Court of Appeal to determine whether the County Court had erred in law or whether the findings were unsupported by the evidence.

The primary legal issues before the court were whether the County Court had committed an error of law apparent on the record and whether there was evidence to support the County Court's findings. The appellant contended that the County Court had failed to properly apply the statutory defence of sudden or extraordinary emergency, placing an undue onus of proof on the defence rather than the prosecution. Additionally, the appellant argued that there was insufficient evidence to support the County Court's conclusion that the statutory defence did not apply.

The Court of Appeal reviewed the statutory framework and the principles governing judicial review. It held that the County Court did not err in law and that the findings were supported by the evidence. The court noted that the onus of proof in relation to the statutory defence lies with the defendant, and the County Court had correctly assessed the evidence in light of this principle. The court found that the appellant's argument that the County Court had failed to properly apply the statutory defence was without merit. Consequently, the Court of Appeal dismissed the appeal, upholding the County Court’s decision.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the County Court be upheld. The Court of Appeal found no basis to interfere with the County Court's exercise of its discretion and concluded that the appeal lacked merit.

Orders