ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :AR 9873 of 2010

Catchwords:

Application for leave to appeal - Appeal against conviction - Breach of Road Traffic Code reg 50(3) - Failing to give way when proceeding from a Stop sign - Conviction after trial - Fine - Amendment to prosecution notice by alteration of the date of the alleged offence made two months before trial - Significance of amendment - Amendment without applicant having opportunity to oppose amendment - Demand for provision of a copy of the prosecution notice as amended wrongly refused - Prosecution notice as amended alleging an offence not established by the evidence - No further application to amend prosecution notice - Conviction for an offence at variance with the allegations in the prosecution notice - Error of law - Miscarriage of justice - Scope of proposed grounds of appeal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Code, reg 50(3)

Result:

Leave to appeal granted
Conviction quashed
Fine and penalty (demerit points) set aside

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms M J Paterson

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410
Bauerhuit v Dean [2011] WASC 253
Calabria v The Queen [1983] HCA 33; (1983) 151 CLR 670
CB v The State of Western Australia [2006] WASCA 227
Corporate Affairs Commission v Bain (1991) 5 ACSR 97; (1991) 55 A Crim R 73
Crothers v Sheil (1933) 49 CLR 399
Demetriou v DPP (2000) 32 MVR 45; [2000] NSWSC 1060
Felix v Smerdon (1944) 18 ALJ 30
Gipp v The Queen (1998) 194 CLR 106
Go v The Queen (1990) 73 NTR 1; (1990) 102 FLR 299
John Holland Pty Ltd v Industrial Court of NSW [2011] HCATrans 95
Johnson v Miller (1937) 59 CLR 467
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
Lawless v The Queen (1979) 142 CLR 659
Mahmood v The State of Western Australia (No 2) [2008] WASCA 259
McKeagg v The Queen [2006] WASCA 26; 162 A Crim R 51
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; 84 FCR 438
Mitchell v Myers (1955) 57 WALR 49
Parmeter v Proctor (1948) 60 WN (NSW) 48; (1948) 22 ALJ 525
Parsons Brinckerhoff (Aust) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
Paulger v Hall [2003] 2 Qd R 294
R v Bonner [1974] Crim LR 479
R v CAE [2008] QCA 177
R v Chin (1985) 157 CLR 671
R v Dossi (1918)…

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 Busby v Burrow

Details

AGLC: Busby v Burrow [2012] WASC 58
Case: [2012] WASC 58
Decision Date: 21 FEBRUARY 2012

CaseChat Overview and Summary

The applicant, Busby, applied for leave to appeal against his conviction for breaching the Road Traffic Code regulation 50(3). The alleged offence occurred when Busby proceeded from a stop sign without giving way. The case was tried in the Magistrates’ Court of Victoria, where Busby was found guilty and fined. The application for leave to appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issue was whether the amendment of the prosecution notice, which altered the date of the alleged offence, was permissible under the law. The amendment was made two months before the trial, without Busby having an opportunity to oppose it. Furthermore, the demand for a copy of the amended prosecution notice was wrongly refused. The amended notice alleged an offence that was not established by the evidence, and no further application to amend the notice was made. The applicant argued that the conviction was for an offence at variance with the allegations in the prosecution notice, and this constituted an error of law and a miscarriage of justice. The scope of the proposed grounds of appeal needed to be determined.

The Court of Appeal held that the amendment of the prosecution notice was not permissible, and it had a significant impact on the applicant's ability to defend himself. The court found that the refusal to provide a copy of the amended notice was also erroneous. The conviction was for an offence at variance with the allegations in the prosecution notice, which constituted an error of law. The Court of Appeal granted leave to appeal and quashed the conviction. The Court of Appeal determined that the scope of the proposed grounds of appeal was sufficient to address the errors of law and miscarriage of justice that occurred during the trial.

The final orders included granting leave to appeal, quashing the conviction, and setting aside the fine imposed on the applicant. The Court of Appeal emphasised the importance of proper procedure in the administration of justice and the need to ensure that all parties have an opportunity to adequately prepare their defence. The Court of Appeal also highlighted the significance of providing all necessary documents to the accused in a timely manner.

Orders