Emirhussein v Radovanovic - [2012] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEWS AND APPEALS LIST

No. SC1 2010 02037

ISMAIL EMIRHUSSEIN

Plaintiff

JACK RADOVANOVIC

COUNTY COURT OF VICTORIA

First defendant

Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2012
DATE OF JUDGMENT:	3 April 2012
CASE MAY BE CITED AS:	Emirhussein v Radovanovic
MEDIUM NEUTRAL CITATION:	[2012] VSC 136

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CRIMINAL LAW – driving offences – appeal to County Court of Victoria from Magistrates’ Court of Victoria – being injured, driver left scene of bad accident – passenger also injured – vehicle damaged – police told of driver’s identity – by alleged arrangement with police made that day, driver reported accident three days later – trial judge refused to consider evidence of arrangement – driver convicted of failing to report accident to police as soon as possible – whether error of law on face of the record – proper interpretation of ‘as soon as possible’ – whether arrangement forms part of circumstances necessarily to be considered in determining whether report made as soon as possible – whether charges as pleaded encompass offences found proven - Road Safety Act 1986 (Vic) s 61(1)(e), (f) – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr RL Fitzpatrick	McNamaras Barristers and Solicitors
For the first defendant	Mr JD McArdle QC	Adrian Castle, Office of Public Prosecutions

HIS HONOUR:

Ismail Emirhussein was driving his motor vehicle at Tarletons Road, Plumpton at about 6 am on 20 November 2006 with a friend in the front passenger seat. The vehicle ran off the road, causing serious injuries to them both, the latter especially so, as well as extensive damage to the vehicle.

In these circumstances, it was Mr Emirhussein's obligation under s 61(1) of the Road Safety Act 1986 (Vic) to do certain things. Under s 61(1)(b), he immediately had to render such assistance as he could. Under s 61(1)(c), he had to give his name and address and vehicle registration details to the injured person or their representative. Under s 61(1)(e) and (f), as soon as possible he had to report in person full particulars of the accident at the nearest police station (if open) or the most accessible police station (if not). Section 61(1)(e) applied because a person was injured; s 61(1)(f) applied because property was damaged.

Mr Emirhussein left the scene shortly after the accident. That raised the question whether he had complied with his obligations under s 61(1)(b) and (c). He reported to a police station three days later. That raised the question whether he had complied with his obligations under s 61(1)(e) and (f).

Jack Radovanovic, the informant, charged Mr Emirhussein with four summary offences of breaching s 61(1)(b), (c), (e) and (f). The charges were heard in the Magistrates' Court of Victoria. After a contested hearing, the magistrate dismissed the charge of failing to give name, address and vehicle registration details…

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 Emirhussein v Radovanovic

Details

AGLC: Emirhussein v Radovanovic [2012] VSC 136
Case: [2012] VSC 136
Decision Date: 3 April 2012

CaseChat Overview and Summary

In the County Court of Victoria, the defendant, Emirhussein, appealed a decision made by the Magistrates’ Court of Victoria concerning charges related to driving offences. Emirhussein was found to have left the scene of a serious accident where both the driver and a passenger were injured, and the vehicle was significantly damaged. Despite the police being informed of the driver’s identity, Emirhussein did not report the accident to the police promptly. Instead, he reported it three days later, claiming there was an alleged arrangement with the police on the day of the accident to delay the reporting. The trial judge declined to consider the evidence of this alleged arrangement, leading to Emirhussein’s conviction for failing to report the accident to police as soon as possible.

The primary legal issues before the court were whether the trial judge’s refusal to consider the evidence of the alleged arrangement constituted an error of law on the face of the record, and if so, what the proper interpretation of ‘as soon as possible’ under the Road Safety Act 1986 (Vic) was. Additionally, the court needed to determine whether the alleged arrangement was part of the circumstances to be considered in assessing whether the report was made as soon as possible. Finally, there was a question of whether the charges, as pleaded, adequately encompassed the offences that were ultimately proven.

The County Court of Victoria held that the trial judge’s refusal to consider the evidence of the alleged arrangement was indeed an error of law on the face of the record. The court found that the proper interpretation of ‘as soon as possible’ required consideration of all circumstances surrounding the failure to report the accident promptly, including any relevant agreements or arrangements. The court concluded that the charges, as pleaded, did not encompass the specific offences that were proven, leading to a quashing of the conviction and a direction to enter a not guilty verdict. This decision underscores the importance of considering all relevant circumstances when interpreting statutory provisions and ensuring that charges accurately reflect the proven offences.

Orders