Bevan Paul Moroney v George John Wojcicka - [2003] ACTCA 15

BEVAN PAUL MORONEY v GEORGE JOHN WOJCICKA
[2003] ACTCA 15 (15 August 2003)

CRIMINAL LAW – Double jeopardy – Rule against – Whether displaced by statute – appeal by crown against quashing of conviction and dismissal of charge on defendant’s appeal from conviction – Supreme Court Act 1933 (ACT), ss 37E and O

CRIMINAL LAW – Charge of failing to wear a seat belt “properly adjusted and fastened” –Australian Road Rules, r 264 – Defendant convicted in Magistrates Court – Appeal against conviction – Appeal allowed and charge dismissed – Further appeal by informant against dismissal of charge – appeal on question of law – objection to competency – whether initial appeal “hearing on the merits” – whether appeal against acquittal competent

CRIMINAL LAW – Charge of failing to wear a seat belt “properly adjusted and fastened” –Australian Road Rules, r 264 – “lap sash” seat belt worn around lap but not across torso – whether seat belt “properly adjusted”

WORDS & PHRASES – “properly adjusted”

Motor Vehicle Standards Act 1989 (Cth) s 7
Australian Road Rules r 264, 267(3)
Road Transport (Safety and Traffic Management) Regulations 2000 (ACT) reg 25
Magistrates Court Act 1930 (ACT) ss 207, 208, 214 and 218
Supreme Court Act 1933 (ACT) ss 37E and 37O
Federal Court of Australia Act 1976 (Cth) ss 24 and 28

Thompson v Mastertouch TV Services Pty Ltd (1978) 19 ALR 547 considered

Davern v Messel (1984) 155 CLR 21 applied

Hatty v Pilkinton (1991) 28 FCR 352 followed

R v Carroll (2002) 194 ALR 1 referred to

Attorney-General (NSW) v Jackson (1906) 3 CLR 730 referred to

The King v Weaver (1931) 45 CLR 321 referred to

The King v Wilkes (1948) 77 CLR 511 at 516-517 referred to

The Queen v Darby (1982) 148 CLR 668 referred to

Allesch v Maunz (2000) 203 CLR 172 at 197-181 referred to

Suvaal v Cessnock City Council [2003] HCA 41 at [74] referred to

Pilkinton v Hatty (1992) 66 ALJR 868 referred to

New South Wales Meat Industry Authority v Randall (unreported New South Wales Court of Appeal, 20 April 1994) referred to

Fitzgerald v Kennard (1995) 38 NSWLR 184 followed

C I & D Manufacturing Pty Ltd v Registrar Industrial Court of New South Wales (1996) 40 NSWLR 1 referred to

R v Benz (1989) 168 CLR 110 referred to

Byrnes v The Queen (1999) 199 CLR 1 referred to

Bond v The Queen (2000) 201 CLR 213 referred to

Macleod v Australian Securities and Investments Commission (2002) 191 ALR 543 at 553 referred to

Australian Securities and Investments Commission v Vis (2000) 158 FLR 56 at 64 referred to

Tabe v Stanbury (1988) 8 MVR 48 considered

Director of Public Prosecutions v Shaw (1992) 157 JP 1035 considered

F J Purnell, “A Hearing on the Merits?” (1984), 8 Crim LJ 326

A O’Connell, “Double Jeopardy”, (1984) 58 Law Inst J 1044

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL…

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.

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Details

Case: [2003] ACTCA 15
Decision Date

CaseChat Overview and Summary

The Court of Appeal of the Australian Capital Territory heard an appeal by Constable Bevan Paul Moroney against a decision of the Supreme Court of the Australian Capital Territory. The Supreme Court had upheld an appeal against a Magistrate's conviction of George John Wojcicka for failing to wear a seat belt "properly adjusted and fastened" under Rule 264(1) of the Australian Road Rules. The primary judge had quashed the conviction and dismissed the charge. The appellant did not challenge the quashing of the conviction but appealed the dismissal of the charge.

The legal issues before the Court of Appeal were whether the initial appeal to the Supreme Court constituted a "hearing on the merits" for the purposes of the rule against double jeopardy, and consequently, whether the informant's further appeal against the dismissal of the charge was competent. Additionally, the court was required to consider the meaning of "properly adjusted" in the context of Rule 264, specifically whether wearing a lap-sash seat belt only across the lap, without it being across the torso, constituted a properly adjusted seat belt.

The Court of Appeal determined that the appeal to the Supreme Court, which involved the primary judge finding a fundamental error of law by the Magistrate in reversing the onus of proof, was indeed a "hearing on the merits." Therefore, the rule against double jeopardy applied, and the informant's appeal against the acquittal was incompetent. The court affirmed the primary judge's decision to uphold the appeal against the conviction and set aside the conviction, penalty, and orders. However, it set aside the primary judge's order dismissing the charge, effectively leaving the charge dismissed as a consequence of the appeal being upheld.

Orders