Traffic Law – Offences – Particular offences – Negligent driving – Other matters – Charge of causing death by negligent driving – Assertion on appeal of failure to find magistrate determined charge on basis not advanced by prosecutor at hearing and failing to warn counsel of intention to do so – Lack of procedural fairness.

Aust Dig Traffic Law [1105]

Evidence – Proof – Judicial notice – Matters of common knowledge – Other miscellaneous matters - Appellant convicted of causing death by negligent driving – Magistrate made observations about walking speed of people in course of dealing with expert evidence – Assertion on appeal of arrogation of role of expert witness - Characterisation of statements.

Aust Dig Evidence [1228]

Evidence – Proof – Judicial notice – Matters of common knowledge – Other miscellaneous matters - Appellant convicted of causing death by negligent driving – Magistrate made observations about walking speed of people in course of dealing with expert evidence – Characterisation of statements - Application of Evidence Act 2001 (Tas), s 144.

Evidence Act2001 (Tas), s 144.
Aust Dig Evidence [1228]

REPRESENTATION:

Counsel:
             Appellant:  C Gunson
             Respondent:  D G Coates SC, S Nicholson
Solicitors:
             Appellant:  Fitzgerald and Browne Lawyers
             Respondent:  Director of Public Prosecutions
Judgment Number:  [2016] TASFC 8
Number of paragraphs:  119

Serial No 8/2016
File No 592/2015

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT FULL COURT

TENNENT J
WOOD J
ESTCOURT J (Dissenting)
28 September 2016

Order of the Court

Appeal dismissed.

Serial No 8/2016
File No 592/2015

BRADLEY JOHN CHAPLIN v SERGEANT RICHARD LANE

REASONS FOR JUDGMENT  FULL COURT
  TENNENT J
  28 September 2016

This is the second appeal to the Full Court in this matter. Bradley Chaplin (the appellant) was convicted by a magistrate in 2013 in relation to the death of a 13-year-old girl, Ashley Edmonds (Ashley), which he caused when he collided with her after she alighted from a school bus. He successfully sought a review of that decision by a single judge of this Court and his conviction was quashed. That review was dealt with by Blow CJ. His Honour dealt with only one of the grounds of review because it was not thought necessary at the time, having regard to the outcome of his consideration of the ground dealt with, for his Honour to deal with the other grounds.
However, the State appealed his Honour's decision successfully. That left outstanding the remaining grounds of review. In the circumstances, the order made by the Full Court could only be one quashing the order of Blow CJ. The matter was then remitted…

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 Chaplin v Lane

Details

AGLC: Chaplin v Lane [2016] TASFC 8
Case: [2016] TASFC 8
Decision Date: 28 September 2016

CaseChat Overview and Summary

Chaplin (Appellant) was convicted in the Magistrates Court of causing death by negligent driving. The Appellant appealed this conviction to the Supreme Court of Tasmania.

The appeal raised two primary legal issues. Firstly, it was argued that the magistrate determined the charge on a basis not advanced by the prosecutor, and that the magistrate failed to warn counsel of this intention, thereby denying the Appellant procedural fairness. Secondly, the Appellant contended that the magistrate improperly assumed the role of an expert witness by making observations about the walking speed of people, particularly in the context of dealing with expert evidence, and that these statements were mischaracterised.

The Court of Appeal, comprising Tennent, Wood and Estcourt JJ, dismissed the appeal. The Court found that the magistrate’s observations regarding walking speed did not constitute an improper assumption of an expert role or a mischaracterisation of evidence. Instead, these observations were considered to be within the scope of common knowledge that a magistrate could draw upon when evaluating evidence, consistent with the principles of judicial notice under section 144 of the *Evidence Act 2001* (Tas). Furthermore, the Court was not satisfied that the magistrate had determined the charge on a basis not advanced by the prosecution without adequate warning, finding no denial of procedural fairness.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Chaplin v Lane [2016] TASFC 8

Cases Citing This Decision

No citing cases yet.

Cases Cited

McGregor v McGregor [2024] NZHC 3823
Citation 1 (Para 5)

…The appellant relies upon the observation of the Full Court of the Family Court in McGregor v McGregor (2012) 47 Fam LR 498 at [71] where it was held: "If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinion in relation to it and demonstrably it would not fall…
Chaplin v Lane (No 2) [2015] TASSC 21
Citation 2

…APPEALED FROM: Chaplin v Lane (No 2) [2015] TASSC 21…
Lane v Chaplin [2015] TASFC 4
Citation 3 (Para 14)

…The learned magistrate's reasoning was considered by the Full Court on appeal and held to be unimpeachable: Lane v Chaplin [2015] TASFC 4 at [61], [87], [104]. The approach taken by the learned magistrate to the causation issue was in accordance with well-established principle. The issue was answered by applying…
Chaplin v Lane [2014] TASSC 32
Citation 4 (Para 4)

…14 Blow CJ made orders allowing the motion, setting aside the orders of the learned magistrate, and dismissing the charge in question: Chaplin v Lane [2014] TASSC 32. From that decision there was a successful appeal to the Full Court: Lane v Chaplin [2015] TASFC 4. However, because there were grounds of review tha…
Blackley Investments Pty Ltd v Burnie City Council (No 3) [2013] TASFC 12
Citation 5 (Para 3)

…paragraph of his reasons. His Honour also noted that the passage was cited with approval in Blackley Investments Pty Ltd v Burnie City Council (No 3) [2013] TASFC 12, 198 LGERA 80.…
In the Matter of Trussted Frames and Trusses Pty Ltd [2012] NSWSC 787
Citation 6 (Para 10)

…s about the obligations of trial judges to give parties an opportunity to make submissions. He referred to Director of Public Prosecutions v Gramelis [2012] NSWSC 787 and a passage from the decision of Price J at [51] where it was said: "51 The requirements of s 144(4) are directed at ensuring that the parties are…
Mains & Redden [2011] FamCAFC 184
Citation 7 (Para 8)

…examples of situations where matters could not be the subject of common knowledge and then said at [71]: "A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a…
Director of Public Prosecutions v Gramelis [2010] NSWSC 787
Citation 8 (Para 7)

…The present case is not at all like that relied upon by the appellant in Director of Public Prosecutions (NSW) v Gramelis [2010] NSWSC 787 at [47], where Price J considered the equivalent legislative provision in respect of a magistrate having taken judicial notice of the average speed of motor vehicles travelling…
Mobbs v Kain [2009] NSWCA 301
Citation 9 (Para 4)

…The reasoning set out above was the subject of the first successful appeal by the State in that Blow CJ found that the decision in Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 , referred to in [120] above, was authority for a certain proposition, was binding on the learned magistrate and she had impermissibly r…
Blackley Investments Pty Ltd v Burnie City Council [2009] TASSC 63
Citation 10 (Para 1)

…In my view it cannot be said that the learned magistrate arrogated to herself the role of an expert in the manner discussed by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 544-545, and as found to have been the case in Blackley Investments Pty Ltd v Burnie Cit…
Prentice v Cummins (No 7) [2003] FCA 1162
Citation 11 (Para 8)

…he acquiring or taking into account of the relevant knowledge, so as to ensure that the party is not unfairly prejudiced; ( Prentice v Cummins (No 5) (2002) 124 FCR 67 at [85]). Therein lies the problem. Her Honour did not do that in the present case.…
Prentice v Cummins [2002] FCA 1503
Citation 12 (Para 8)

…The section requires that a judge taking, in effect, "judicial notice" of a fact is to give a party an opportunity to make submissions, and to refer to relevant information relating to the acquiring or taking into account of the relevant knowledge, so as to ensure that the party is not unfairly prej…
R v RTB [2002] NSWCCA 104
Citation 13 (Para 3)

…he Crown. A miscarriage of justice occurred. R v Solomon [1980] 1 NSWLR 321; 1 A Crim R 247; R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230; R v RTB [2002] NSWCCA 104; R v Heuston (1995) 81 A Crim R 387, referred to.”…
Derrick v Cheung [2001] HCA 48
Citation 14 (Para 5)

…been the same for Ashley and consequently, that the driving is not a substantial cause of her death. Firstly, as the Court noted in Derrick v Cheung (2001) 181 ALR 301,13: ' Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have bee…
Tran v The Queen [2000] FCA 1888
Citation 15 (Para 3)

…he opening must be clearly identified in the absence of the jury prior to addresses. Deviation from the opening may lead to a miscarriage of justice. Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218; R v Tangye (1997) 92 A Crim R 545, discussed. (4) A trial judge is obliged to leave defences which are reasonably open…
Carr v The Queen [2000] TASSC 183
Citation 16 (Para 1)

…ernative would be left to the jury. Other cases have involved the presentation of new arguments in circumstances where unfairness has resulted. See Carr v The Queen (2000) 117 A Crim R 272 at [43]-[48]. 21 This is not a case in which the finding of guilt was based on a source of criminal liability that was not relied upon…
Spies v The Queen [2000] HCA 43
Citation 17 (Para 2)

…to call his expert evidence and make submissions, results in the interests of justice requiring that the appellant be acquitted; ( Spies v The Queen (2000) 201 CLR 603 at [104]).…
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074
Citation 18 (Para 4)

…protects and preserves those requirements of procedural fairness as an element of the rules of natural justice that were the subject of discussion in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in the passages relied upon by the appellant at 590-592.…
March v E & MH Stramare Pty Ltd [1991] HCA 12
Citation 19 (Para 14)

…s found, the legitimate inquiry of the "but for" test, and not ignoring considerations of policy and value judgments: March v E & MH Stramere Pty Ltd (1991) 171 CLR 506.…
Wilde v the Queen [1988] HCA 6
Citation 20 (Para 2)

…f justice has occurred may be answered in accordance with the formulation of Brennan J (as he then was) and Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 where his Honour said at 371–372: "Those authorities establish that where there has been a departure from the requirements of a properly conducted tr…
Gallagher v The Queen [1986] HCA 26
Citation 21 (Para 2)

…conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) [1986] HCA 26; 160 CLR 392 at 412-413."…
Whitehorn v the Queen [1983] HCA 42
Citation 22 (Para 2)

…case was run and potentially displays a partiality for one side over the other. Counsel referred to some remarks of Dawson J in Whitehorn v The Queen (1983) 152 CLR 657 where his Honour said at 675: "As Barwick CJ pointed out in Ratten v The Queen (1974) 131 CLR 510, at p 517: 'It is a trial, not an inquisition: a tr…
R v Storey [1978] HCA 39
Citation 23 (Para 2)

…lagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on…
Driscoll v The Queen [1977] HCA 43
Citation 24 (Para 2)

…ing the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524; Reg v Storey (supra); Gallagher v The Queen (1986) [1986] HCA 26; 160 CLR 392 at 412-413."…
Ratten v The Queen [1974] HCA 35
Citation 25 (Para 2)

…o some remarks of Dawson J in Whitehorn v The Queen (1983) 152 CLR 657 where his Honour said at 675: "As Barwick CJ pointed out in Ratten v The Queen (1974) 131 CLR 510, at p 517: 'It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is…
Mraz v The Queen [1955] HCA 59
Citation 26 (Para 2)

…ce if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 or 'a real chance of acquittal' to use the phrase of Barwick CJ in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. Unl…
[1975] AC 295 [1975] AC 295
Citation 27 (Para 1)

…able. 22 The law as to procedural fairness in this situation is as stated in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, where Lord Diplock said: 'Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by th…
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Citation 28 (Para 1)

…ground was addressed in the written submissions by reference to various statements by members of the court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24. The particular principles referred to are not in dispute. The ground was not separately addressed orally, save for counsel's opening comments.…

Legislation Cited

Evidence Act 2001 (TAS) 144, 144(1)
3 mentions (from Para 1)
Justices Act 1959 (TAS) 110(1)(ab)
1 mention (from Para 1)
Traffic Act 1925 (TAS)
1 mention (from Para 1)