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Counsel v Glynn

Counsel v Glynn

Case [2017] WASC 7 17 January 2017

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Duress & Necessity

Criminal Law

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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

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…

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 Counsel v Glynn

Details

AGLC: Counsel v Glynn [2017] WASC 7
Case: [2017] WASC 7
Decision Date: 17 JANUARY 2017

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.

Orders