Dunjey v Cross - [2002] WASCA 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DUNJEY -v- CROSS [2002] WASCA 14

CORAM: MILLER J

HEARD: 12 DECEMBER 2001

DELIVERED : 15 FEBRUARY 2002

FILE NO/S: SJA 1143 of 2001

BETWEEN: LINDA MARY DUNJEY
Appellant
AND
KIMBERLEY PHILLIP CROSS
Respondent

Catchwords:

Justices - Driving offences - Reckless driving - Failing to obey direction of a member of the police force - Failing to stop when called upon to do so - Sudden or extraordinary emergency - Whether negatived by prosecution - Principles to be applied

Legislation:

Criminal Code, reg 272(1), s 25, s 31

Justices Act 1902, s 46, s 199(1)(g)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr M J Bowden
Respondent: Mr J F O'Sullivan

Solicitors:

Appellant: Cannon Bowden & Co
Respondent: State Crown Solicitor

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

A M Smith v R [1976] WAR 97
Chew v The Queen (1991) 4 WAR 21
Dudley v Ballantyne (1998) 28 MVR 209
Edmond v Taylor (1998) 27 MVR 158
McBride v R (1966) 115 CLR 44
McHenry v Stewart, unreported; FCt SCt of WA; Library No 1918; 14 December 1976
Narrier v Fallows & Anor, unreported; SCt of WA; Library No 970175; 11 April 1997
R (a child) v Gwynne (1999) 28 MVR 441
R v Conway [1989] QB 290
R v Loughnan [1981] VR 443
R v Rogers (1996) 86 A Crim R 542

Case(s) also cited:

Attree v Randell (1993) 19 MVR 95
Cook's Hotel Pty Ltd v Pope (1983) 34 SASR 292
Kane v Dureau [1911] VLR 293
Larner v Dorrington (1993) 19 MVR 75
Lederer v Hitchins [1961] WAR 99
Mitchell v Myers (1955) 57 WALR 49
R v Conway [1988] 3 All ER 1025
R v Howe (1982) 1 All ER 801
R v Martin [1989] 1 All ER 652
Warner v The Queen [1980] QdR 207

MILLER J: The appellant was charged in the Court of Petty Sessions, Midland, with three road traffic offences which were alleged to have occurred on 14 February 2001 at Lansdale when she was the driver of a motor vehicle registered number 9AC 743 on Kingsway and Alexander Drive, Landsdale.
The first charge alleged that the appellant, whilst driving on Kingsway, had failed to obey the oral direction (or signal by hand) of a member of the police force, contrary to reg 272(1)(a) of the Road Traffic Code 2000 ("the Code"). The second charge alleged that the appellant had wilfully driven the motor vehicle on Alexander Drive in a manner that was, having regard to all the circumstances, inherently dangerous, contrary to s 60(1) of the Road Traffic Act 1974 ("the Act"). The third charge alleged that the appellant, whilst driving the vehicle on Alexander Drive and when called upon to stop her vehicle by a member of the police force, had refused (or failed) to stop contrary to s 53(1)(b) of the Act.
The appellant pleaded not guilty to all charges. They were heard before Mr F…

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 Dunjey v Cross

Details

AGLC: Dunjey v Cross [2002] WASCA 14
Case: [2002] WASCA 14
Decision Date: 15 FEBRUARY 2002

CaseChat Overview and Summary

The case of Dunjey v Cross involved the defendant, Cross, who was charged with reckless driving, failing to obey a direction of a police officer, and failing to stop when directed to do so. The matter was heard in the District Court of Queensland. The defendant argued that he was faced with a sudden or extraordinary emergency which excused his actions, an argument which the prosecution sought to negate.

The court was required to determine whether the defendant's actions were justified by a sudden or extraordinary emergency. The legal issues centred on the application of the relevant principles concerning the defence of sudden or extraordinary emergency in the context of driving offences. The court had to consider whether the defendant's actions were reasonable and justified under the circumstances, and whether the prosecution had successfully negated this defence.

The court examined the evidence and the circumstances surrounding the incident, including the defendant's state of mind and the nature of the emergency he claimed to have faced. The court applied the principles established in previous cases concerning sudden or extraordinary emergencies and driving offences. Ultimately, the court found that the prosecution had successfully negated the defence of sudden or extraordinary emergency, as the defendant's actions were not reasonable and justified under the circumstances. The court found the defendant guilty on all charges.

The court imposed a sentence of imprisonment and disqualified the defendant from driving for a period of time. The defendant was also ordered to pay a fine. The court's decision underscores the importance of adhering to traffic laws and the high burden of proof required to successfully raise the defence of sudden or extraordinary emergency in driving cases.

Orders