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Donegan v Jordan

Donegan v Jordan

Case [2014] ACTSC 274 24 October 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Donegan v Jordan
Citation:	[2014] ACTSC 274
Hearing Date:	11 November 2013
DecisionDate:	24 October 2014
Before:	Penfold ACJ
Decision:	The appeal is dismissed.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against conviction – appellant prosecuted for failing to provide sample of breath for breath analysis – evidence led by prosecution did not include full description of device used to conduct preliminary alcohol screening test – proper conduct of alcohol screening test an element of the offence – no case submission – whether Magistrate erred in allowing prosecution to re-open case to lead further evidence identifying device – no error by Magistrate – appeal dismissed. CRIMINAL LAW – EVIDENCE – Miscellaneous Matters – whether, before defence goes into evidence, prosecution may be permitted to re-open case to lead evidence of formal matters omitted from case by inadvertence.
Legislation Cited:	Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 7, 8(1)(a)(i), 11,12(1), 22, 22(b), 22(d) Road Transport (Alcohol and Drugs) Regulation 2000 (ACT), reg 2 Criminal Code (Queensland), s 29(2)
Cases Cited:	CDR (R) (1995) 78 A Crim R 572 Doney v The Queen (1990) 171 CLR 207 Henning v Lynch [1974] 2 NSWLR 254 Hiscox v Guildersleeve [2011] WASC 229 Killick v The Queen (1981) 147 CLR 565 Manyam v The State of Western Australia [2010] WASCA 107 O’Meara v The State of Western Australia [2013] WASCA 228 R v Chin (1985) 157 CLR 671 R v Soma (2003) 212 CLR 299 R v White (No. 6) [2012] NSWSC 470 R v Wilson (2005) 62 NSWLR 346 Wasow (1985)18 A Crim R 348
Texts Cited:	Cross on Evidence, (9th Aust ed, 2013), Heydon JD
Parties:	Wayne Donegan (Appellant) Peter Jordan (Respondent)
Representation:	Counsel Mr T Sharman (Appellant) Ms S Gul (Respondent)
Solicitors Sharman Lynch (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 57 of 2013
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 29 July 2013 Case Title: Jordan v Donegan Court File Number: CC12/6418

Introduction

Wayne Donegan has appealed against a conviction for an offence contrary to s 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act). The offence is committed if a person who has been the driver of a motor vehicle on a road or road related area is, in accordance with the Act, required to provide a sample of breath for breath analysis, and the person fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.

The conviction was recorded on 29 July 2013 in the Magistrates Court, and on 30 July 2013 a notice of appeal was filed. The original notice specified two grounds of appeal, but only one is pursued, being that:

His Honour erred in allowing the prosecution to reopen its case.

At the end of…

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 Donegan v Jordan

Details

AGLC: Donegan v Jordan [2014] ACTSC 274
Case: [2014] ACTSC 274
Decision Date: 24 October 2014

CaseChat Overview and Summary

Donegan v Jordan was an appeal against a conviction in the Magistrates' Court of Victoria. The appellant was prosecuted for failing to provide a sample of breath for breath analysis, an offence under the Road Safety Act 1986 (Vic). The central issue in this case was whether the Magistrate erred in allowing the prosecution to reopen the case to lead further evidence identifying the device used to conduct the preliminary alcohol screening test. The prosecution's case initially did not include a full description of the device, which was an element of the offence.

The court had to determine whether, before the defence presented its evidence, the prosecution could be permitted to reopen its case to provide evidence of formal matters omitted from its case by inadvertence. The court examined the principles governing the admission of further evidence in such circumstances and considered whether the Magistrate's decision to allow the reopening of the case was an error of law. The court concluded that the Magistrate did not err in permitting the prosecution to provide the omitted evidence, as it was necessary to establish a fundamental aspect of the offence. The appeal was dismissed, and the conviction was upheld.

The court's reasoning was based on the understanding that the proper conduct of the alcohol screening test was an integral part of the offence. Without a full description of the device used, the prosecution's case was incomplete. Allowing the prosecution to reopen its case to include this evidence was a permissible exercise of the court's discretion, as it was necessary for the completeness of the evidence. The court found that the Magistrate's decision did not constitute an error of law, and therefore, the appeal was dismissed. The conviction of the appellant was affirmed, and no further orders were made.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Donegan v Jordan [2014] ACTSC 274

Most Recent Citation

Daly v Karamoshos [2020] VSC 506

Cases citing this decision · 1 of 1 shown

Daly v Karamoshos
[2020] VSC 506 Para 1

…NSWLR 254 at 259 ( per Jeffrey J); McDonald v Camerotto (1984) 36 SASR 66 at 69-77 ( per Cox J); Blair v County Court [2005] VSC 213 (Ashley J); and Donegan v Jordan (2014) 245 A Crim R 259 (Penfold ACJ).…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

O'Meara v The State of Western Australia
[2013] WASCA 228 Para 1

…Counsel for the appellant also referred to O’Meara v The State of Western Australia [2013] WASCA 228 ( O’Meara ), in which Buss JA commented on “the rule against the State splitting its case”, saying:…
R v White (No 6)
[2012] NSWSC 470 Para 1

…submissions in reply, counsel for the appellant referred me also to the cases of Doney v The Queen (1990) 171 CLR 207 ( Doney ) and R v White (No. 6) [2012] NSWSC 470. He relied on the comment by Deane, Dawson, Toohey, Gaudron and McHugh JJ In Doney at [11] that:…
Hiscox v Guildersleeve
[2011] WASC 229 Para 1

…Counsel also mentioned Hiscox v Guildersleeve [2011] WASC 229 ( Hiscox ), in which Murray J (referring among other cases to Henning v Lynch ) dismissed an appeal from a magistrate who had adjourned a hearing, to enable the prosecutor to produce more evidence, after accepting that a no case submission could be made…
Manyam v The State of Western Australia
[2010] WASCA 107 Para 1

…The appellant relies on comments made by Pullin JA in the case of Manyam v The State of Western Australia [2010] WASCA 107 ( Manyam ), decided by the Court of Appeal of Western Australia. That case involved a ground of appeal arising out of the trial judge’s giving of leave to the prosecution to lead rebuttal evide…
Stubley v The State of Western Australia
[2010] WASCA 36

…is not relevant, it must be excluded: Hollington v Hewthorn & Co Ltd [1943] 1 KB 587; see also my reasons in Stubley v The State of Western Australia [2010] WASCA 36 [82] - [107] - a point not addressed by the majority in that case. McHugh J in Soma makes it clear that the 'rule' does not prevent the calling of ev…
R v Soma
[2003] HCA 13

…Lawrence v The Queen (1981) 38 ALR 1; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Chin [1985] HCA 35; (1985) 157 CLR 671 and R v Soma [2003] HCA 13; (2003) 212 CLR 299. 24 The general rule is that the State should not be permitted to split its case, except in very special or exceptional circumsta…
Doney v The Queen
[1990] HCA 51 Para 1

…In oral submissions in reply, counsel for the appellant referred me also to the cases of Doney v The Queen (1990) 171 CLR 207 ( Doney ) and R v White (No. 6) [2012] NSWSC 470. He relied on the comment by Deane, Dawson, Toohey, Gaudron and McHugh JJ In Doney at [11] that:…
R v Chin
[1985] HCA 35

…85 CLR 365, 383; Lawrence v The Queen (1981) 38 ALR 1, 22 - 23; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 568 - 571, 575 - 576; R v Chin [1985] HCA 35; (1985) 157 CLR 671, 677. (b) However, in the exercise of that discretion, the trial judge must bear in mind the rule that the prosecution must have…
Killick v The Queen
[1981] HCA 63

…ling of rebuttal evidence: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365, 383; Lawrence v The Queen (1981) 38 ALR 1, 22 - 23; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 568 - 571, 575 - 576; R v Chin [1985] HCA 35; (1985) 157 CLR 671, 677. (b) However, in the exercise of that discretion, the tria…
Sibley v Kais
[1968] HCA 67

…In [ Niven v The Queen (1968) 118 CLR 513], the Court held [at 516] that the expression “evidence in rebuttal” should be understood as applying to all evidence sought to be adduced by the prosecution after the accused’s defence was complete.…
Shaw v The Queen
[1952] HCA 18

…g of rebuttal evidence are as follows: (a) There is a wide discretion in the trial judge to permit the calling of rebuttal evidence: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365, 383; Lawrence v The Queen (1981) 38 ALR 1, 22 - 23; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565, 568 - 571, 575 - 576;…
[1982] AC 529
[1982] AC 529 Para 1

…These included Henning v Lynch [1974] 2 NSWLR 254, a case also involving an allegedly inadequate description of a breath testing device, in which Jeffrey J said at 258:…
[1918] AC 221
[1918] AC 221

…annot however 'credit the accused with fancy defences in order to rebut them at the outset with some damming piece of prejudice': Thompson v The King [1918] AC 221, 232, cited in Killick (571). Likewise, it cannot, for example, give evidence in disproof of a non-issue, for example, to disprove an alibi which the…
[1943] 1 KB 587
[1943] 1 KB 587

…n chief. This is because evidence is not admissible unless it is relevant. If it is not relevant, it must be excluded: Hollington v Hewthorn & Co Ltd [1943] 1 KB 587; see also my reasons in Stubley v The State of Western Australia [2010] WASCA 36 [82] - [107] - a point not addressed by the majority in that case. M…
[1968] NZLR 981
[1968] NZLR 981

…Likewise, provocation must be negatived if the circumstances suggest that the accused was provoked: see R v Johnson [1961] 1 WLR 1478 and R v Taylor [1968] NZLR 981, 985 - 986, cited in Killick (570). 23 Examples of circumstances in which evidence in rebuttal is permitted are given by McHugh J in Soma [64]. They…
[1961] 1 WLR 1478
[1961] 1 WLR 1478

…eek to lead evidence in rebuttal. Likewise, provocation must be negatived if the circumstances suggest that the accused was provoked: see R v Johnson [1961] 1 WLR 1478 and R v Taylor [1968] NZLR 981, 985 - 986, cited in Killick (570). 23 Examples of circumstances in which evidence in rebuttal is permitted are given…

Legislation cited in this decision · 1

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
11, 12(1), 22, 22(b), 22(d), 7, 8(1)(a)(... 8 mentions (from Para 1)