Drage v Douglas
[2012] WASC 293
DRAGE -v- DOUGLAS [2012] WASC 293
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 293 | |
| Case No: | SJA:1036/2012 | 6 AUGUST 2012 | |
| Coram: | HALL J | 6/08/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOROTA JULIA DRAGE CRAIG ANDREW DOUGLAS |
Catchwords: | Traffic offence Plea of guilty Claim of involuntary intoxication No evidence to support claim |
Legislation: | Criminal Appeals Act 2004 (WA), s 9 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CRAIG ANDREW DOUGLAS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 4112 of 2012
Catchwords:
Traffic offence - Plea of guilty - Claim of involuntary intoxication - No evidence to support claim
Legislation:
Criminal Appeals Act 2004 (WA), s 9
(Page 2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms S J K Teoh
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
- HALL J:
(These reasons were delivered orally and have been edited from the transcript).
1 On 21 February 2012, the appellant, Mrs Drage, pleaded guilty to driving a motor vehicle with in excess of 0.08 grams of alcohol per 100 mils of blood, contrary to s 64(1) of the Road Traffic Act 1974 (WA). She was fined $550 and disqualified from holding or obtaining a driver's licence for seven months. She has now sought leave to appeal against her conviction.
2 The grounds of appeal contained in the notice of appeal are as follows:
(1) The magistrate wrongly stopped evidence being given.
(2) The magistrate did not give orders to view the evidence in support of involuntary intoxication.
3 The transcript of the proceedings before the magistrate on 21 February 2012 does not show that there was any attempt by the appellant to lead evidence, nor did the appellant raise any issue at that time of involuntary intoxication.
4 What occurred was that she pleaded guilty, and then addressed the magistrate in mitigation. In mitigation she said she did not think she had drunk enough to be over the limit, but did not question the accuracy of the reading.
5 Given that the transcript did not support the contentions raised by Mrs Drage, I had the matter listed on 11 June 2012 to hear from her as to why leave should be granted in respect of the grounds. I did this because it was not apparent that either of the grounds had any reasonable prospect of succeeding: s 9 of the Criminal Appeals Act 2004 (WA).
6 At the hearing on 11 June 2012, Mrs Drage said that following her conviction she had given the matter some more thought and done some research on the Internet. This had given her cause to doubt that the amount she believed she had drunk that night could have resulted in the reading of 0.103. She said that for this reason, she believed that her drink must have been tampered with when she left it unattended. She had been drinking with a friend at the tavern at the Burswood complex and had left her drink for a short time when she went out to her car.
(Page 4)
7 Mrs Drage said that the amount that she had drunk that night was two glasses of wine and a gin and tonic over a three to four hour period. She said she had made inquiries with Burswood security to view any video footage that may support her theory, she was unsuccessful in obtaining access and had then commenced these proceedings in an attempt to, as she put it, 'Get to the bottom of it.'
8 As I pointed out to Mrs Drage, she had no evidence to establish that her drink had been tampered with. Nor did she have possession of any tapes that might provide evidence in that regard. She conceded that, as she understood it, there was only one camera in the area where she left her drink, and there was a good chance that it would show nothing. Nevertheless she maintained that evidence to establish her theory may exist.
9 It was clear from this exchange that Mrs Drage's proposed grounds were based upon an assumption that fresh evidence would be available. She was asserting that there was or could be evidence that might establish that she was not guilty of the offence. In these circumstances, I allowed Mrs Drage an opportunity to obtain any such evidence, and place it before the court under cover of an affidavit, if she was able to do so.
10 Mrs Drage subsequently sought to issue a witness summons to the manager of Burswood security. I refused leave to issue that summons. The reason for that was that the summons was not to obtain evidence known to exist, but was an attempt to find out whether there was any relevant evidence. It would appear that no other evidence was sought by Mrs Drage from any other possible sources. Mrs Drage had no reason to believe that there is relevant footage, she simply had a theory and wanted to explore it. This is fishing and not a proper use of a summons in these proceedings.
11 More fundamentally, an appeal based on fresh or new evidence relies on that evidence existing as a precondition to the bringing of the appeal. An appeal proceeding cannot be used in order to determine whether there is fresh or new evidence. In those circumstances, as Mrs Drage accepted in the hearing today her appeal has no merit and cannot succeed. She said that she had intended filing a notice of discontinuance and apologised for not doing so.
12 Given that Mrs Drage entered a plea of guilty to the charge before the magistrate and there is no reason to doubt the validity of that plea, the
(Page 5)
- appeal has no reasonable prospects of succeeding, and therefore I refuse leave and the appeal is dismissed.
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