Bonifacio v Dalgreen - [2022] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BONIFACIO -v- DALGREEN [2022] WASC 4
CORAM:   SOLOMON J
HEARD:   15 NOVEMBER 2021
DELIVERED          :   12 JANUARY 2022
FILE NO/S:   SJA 1039 of 2021
BETWEEN:   JACK EDWARD BONIFACIO
Appellant
AND
RYAN DALGREEN
Respondent

ON APPEAL FROM:
For File No:   SJA 1039 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B P MAHON
File Number            :   AR 6774/2020

Catchwords:

Criminal law - Appeal against sentence - Use of mobile phone whilst driving a vehicle - Alleged use of alarm clock - Evidence of police officers - Extraordinary drivers licence

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Road Traffic Code 2000 (WA), r 265, r 265(1), r 265(2)

Result:

Leave to appeal denied on both grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	H T Gawley
Respondent	:	J J E Perera

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	State Solicitor's Office

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

Koushappis v The State of Western Australia [2007] WASCA 26
Webb v Tang [2021] WASC 344

SOLOMON J:

Regulation 265(2) of the Road Traffic Code 2000 (WA) provides that a driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked. Regulation 265(1) defines 'use' to include holding the phone or operating any function of the phone.
The appellant was convicted of a contravention of reg 265(2) in the Magistrates Court at Armadale on 9 June 2021. Pursuant to Part 2 Division 2 of the Criminal Appeals Act 2004 (WA), the appellant in this application seeks to appeal against his conviction.
The nub of the appellant's defence before the learned magistrate was that he was not using a mobile phone. Rather, he was turning off the alarm on an alarm clock which he had removed from his work bag on his way to work that morning as a concreter.

Evidence at trial

In the Magistrates Court, the prosecution led evidence from two police officers, Senior Constable Ryan Dalgreen and Constable Luke Kirkham. The appellant gave evidence in his own defence. The following evidence emerged before the learned magistrate.
On 20 March 2020 at approximately 6.46 am the appellant was driving a vehicle at the intersection of Holmes Street, Amherst Road and Warton Road in Canning Vale, which is controlled by traffic lights. The appellant was turning right into Warton Road from Holmes Street.
Senior Constable Dalgreen and Constable Kirkham were in a stationary marked police vehicle waiting at the lights at Warton Road. Senior Constable Dalgreen was driving and Constable Kirkham was in the front passenger seat. The police vehicle was a four-wheel drive Ford Ranger which gave the occupants an elevated vantage point.

Evidence of Senior Constable Dalgreen

Senior Constable Dalgreen gave evidence-in-chief that it was a bright, clear day. As a Landcruiser driven by the appellant passed in front of him, Senior Constable Dalgreen observed through the open window of the appellant's vehicle, the appellant looking…

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 Bonifacio v Dalgreen

Details

AGLC: Bonifacio v Dalgreen [2022] WASC 4
Case: [2022] WASC 4
Decision Date

CaseChat Overview and Summary

The appellant, Jack Edward Bonifacio, was convicted in the Magistrates Court of Western Australia of contravening regulation 265(2) of the Road Traffic Code 2000 (WA) by using a mobile phone while driving. The conviction was appealed to the Supreme Court of Western Australia, which considered two grounds for the appeal: the first, that the learned magistrate erred in accepting the evidence of the police officers; the second, that the learned magistrate's evaluation of the appellant's evidence was impermissibly influenced by the fact that the appellant was on an extraordinary driver's licence.

The Supreme Court found that the learned magistrate's finding of guilt was open to his Honour on the whole of the evidence, and that there was no error in the learned magistrate's rejection of the appellant's version of events. The court held that the learned magistrate had correctly applied the principles of Koushappis v The State of Western Australia in assessing the evidence and finding the appellant guilty beyond reasonable doubt. The court also found that the learned magistrate's remarks regarding the appellant's extraordinary driver's licence did not demonstrate legal error and did not influence his conclusion.

Leave to appeal was denied on both grounds, and the appeal was dismissed.

Orders