DELOPEZ -v- BARRY [2014] WASC 370

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 370
Published:	06/10/2014
Case No:	SJA:1047/2014	Heard:	26 SEPTEMBER 2014
Coram:	PRITCHARD J	Delivered:	26/09/14
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	B
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Parties:	TAMARA DELOPEZ ZACHARY PATRICK BARRY
Catchwords:	Criminal law and procedure Application for adjournment sent by letter before first mention date of charge Application refused Whether discretion miscarried Whether substantial miscarriage of justice occurred
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Criminal Procedure Regulations 2005 (WA) Liquor Control Act 1988 (WA) Road Traffic Act 1974 (WA)
Case References:	Eley v Town of Victoria Park [2014] WASC 103 Grover v Scott [2010] WASCA 164 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lasscock v Seidner [2013] WASC 94 Saad v Baron [2012] WASC 507 Sharma v Hodgson [2012] WASC 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DELOPEZ -v- BARRY [2014] WASC 370 CORAM : PRITCHARD J HEARD : 26 SEPTEMBER 2014 DELIVERED : 26 SEPTEMBER 2014 PUBLISHED : 6 OCTOBER 2014 FILE NO/S : SJA 1047 of 2014 BETWEEN : TAMARA DELOPEZ

Appellant

AND

ZACHARY PATRICK BARRY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B A LANE

File No : PE 76478 of 2014

Catchwords:

Criminal law and procedure - Application for adjournment sent by letter before first mention date of charge - Application refused - Whether discretion miscarried - Whether substantial miscarriage of justice occurred

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Liquor Control Act 1988 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal granted

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Ms A S Rogers

Respondent : Mr N T L John

Solicitors:

Appellant : Abigail Rogers Barristers & Solicitors

Respondent : State Solicitor for Western Australia

Cases referred to in judgment:

Eley v Town of Victoria Park [2014] WASC 103
Grover v Scott [2010] WASCA 164
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lasscock v Seidner [2013] WASC 94
Saad v Baron [2012] WASC 507
Sharma v Hodgson [2012] WASC 433

PRITCHARD J

(This judgment was delivered extemporaneously and has been edited from the transcript.)

Introduction

1 On 15 May 2014, Ms Delopez was convicted in the Perth Magistrates Court of an offence under s 77 of the Road Traffic Act 1974 (WA), namely, that while the holder of an extraordinary driver's licence which was the subject of conditions endorsed on that licence, she drove a motor vehicle on a road and failed to comply with the endorsed conditions of the licence by driving with a blood alcohol content exceeding 0.02% (the charge).

2 Upon her conviction, Ms Delopez was fined $600, ordered to pay costs and her extraordinary driver's licence was cancelled. Ms Delopez seeks to appeal against…

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 Delopez v Barry

Details

AGLC: Delopez v Barry [2014] WASC 370
Case: [2014] WASC 370
Decision Date: 6 OCTOBER 2014

CaseChat Overview and Summary

In Delopez v Barry, the defendant sought an adjournment of the mention date of a charge. The application was sent by letter and was ultimately refused by the court. The defendant argued that the refusal of the adjournment application resulted in a miscarried discretion and a substantial miscarriage of justice. The case was heard and determined by the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the primary judge miscarried their discretion in refusing the defendant's application for an adjournment. The Court of Appeal was also required to determine whether the refusal of the adjournment resulted in a substantial miscarriage of justice. The Court of Appeal considered the principles of discretion in adjournment applications and the impact of the refusal on the fairness of the proceedings.

The Court of Appeal found that the primary judge did not miscarried their discretion in refusing the adjournment. However, the Court of Appeal found that the refusal of the adjournment application did result in a substantial miscarriage of justice. The Court of Appeal held that the defendant was denied a fair opportunity to prepare their defence, which impacted the fairness of the proceedings. The Court of Appeal allowed the appeal and quashed the conviction.

The Court of Appeal quashed the conviction and ordered a retrial. The Court of Appeal found that the refusal of the adjournment application resulted in a substantial miscarriage of justice and that the defendant was denied a fair opportunity to prepare their defence. The Court of Appeal granted leave to appeal and allowed the appeal.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

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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