Counsel v Glynn

Case [2017] WASC 7


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   COUNSEL -v- GLYNN [2017] WASC 7

CORAM:   BANKS-SMITH J

HEARD:   29 SEPTEMBER 2016

DELIVERED          :   17 JANUARY 2017

FILE NO/S:   SJA 1040 of 2016

BETWEEN:   KEVIN JOHN COUNSEL

Appellant

AND

MARTIN SHANE GLYNN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R S HUSTON

File No  :NG 764 of 2015, NG 765 of 2015

Catchwords:

Criminal law - Appeal against conviction - Aggravated circumstances - Whether driving and failing to stop to escape police pursuit - Whether defence of emergency available - Whether error of fact material - Whether substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14(2)
Criminal Code (WA), s 25
Road Traffic (Administration) Act 2008 (WA), s 39, s 44
Road Traffic Act 1974 (WA), s 49AB, s 60

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A G Elliott

Respondent:     Ms G N Beggs

Solicitors:

Appellant:     Andrew Williams

Respondent:     Director of Public Prosecutions (WA)

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

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469

Bauerhuit v Dean [2011] WASC 253

Bentley v Greaney [2016] WASC 227

Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434

Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Dean v Legal Practice Board [2016] WASCA 63

Floyd v The State of Western Australia [2013] WASCA 33

JJS v The State of Western Australia [2014] WASCA 136

Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

Lund v Davies [2013] WASC 52

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Nguyen v The Queen [2005] WASCA 22

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45

R v Sandoval [2010] NSWDC 255; (2010) 11 DCLR (NSW) 385

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312

The State of Western Australia v Olive [2011] WASCA 25

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Van Heerden v Hawkins [2016] WASCA 42

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

BANKS-SMITH J: 

Introduction

  1. The appellant seeks leave to appeal against his conviction of one charge of aggravated reckless driving (to escape pursuit by police) and one charge of failing to stop in circumstances of aggravation (to escape pursuit by police).  Mr Counsel was convicted by a magistrate after trial and sentenced to a term of imprisonment of 6 months and 1 day for the reckless driving charge (the charge carrying a mandatory term of at…

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Counsel v Glynn [2017] WASC 7
Case
[2017] WASC 7
Decision Date

CaseChat Overview and Summary

The appellant, Counsel, was convicted of driving a motor vehicle and failing to stop to escape police pursuit, among other offences, and was sentenced to imprisonment. Counsel appealed against his conviction and sentence to the Court of Appeal. Glynn was the respondent to the appeal. The central dispute in the appeal was whether the trial judge erred in law by not considering an emergency defence and whether any such error was material and resulted in a substantial miscarriage of justice.

The court had to determine whether the trial judge should have considered an emergency defence, whether any error in failing to consider such a defence was material, and whether a substantial miscarriage of justice occurred due to this error. Additionally, the court needed to assess whether there was an error of fact that was material and whether it resulted in a substantial miscarriage of justice.

The Court of Appeal found that the trial judge did not consider the emergency defence, which was a material error. However, the court concluded that this error did not result in a substantial miscarriage of justice. The court also determined that there was no material error of fact that led to a substantial miscarriage of justice. Therefore, the appeal was dismissed.

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