Evers v Lawrence

[2020] ACTSC 289

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Evers v Lawrence

Citation:

[2020] ACTSC 289

Hearing Date:

12 October 2020

DecisionDate:

12 October 2020

Before:

Mossop J

Decision:

Appeal dismissed and conviction and sentence confirmed.

Catchwords:

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against conviction – negligent driving and driving with a prescribed drug in oral fluid or blood – whether an extension of time for the hearing of the information was properly granted for service of summons – it was – whether the magistrate established the cause of the motor vehicle accident and the circumstances of the negligent driving beyond reasonable doubt – he did – whether the magistrate incorrectly dealt with the defence of mistake – he did not – appeal dismissed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Limitation of time for prosecution – appellant argued that the extension of time for the hearing was not properly granted under s 41(3) of the Magistrates Court Act 1930 – affidavit explained that the summons on the appellant was unable to be effected – proceeding must be “begun” within a year after the commission of the offences – appellant submitted that this required service upon the accused person – a proceeding is “begun” for the purposes of s 192 of the Legislation Act 2001 when it is “started” under s 25 of the Magistrates Court Act 1930 – requires the laying down of information – appeal dismissed

Legislation Cited:

Criminal Code 2002 (ACT), ss 23, 35, 36

Legislation Act 2001 (ACT), s 192(2)
Magistrates Court Act 1930 (ACT), ss 25, 30, 38, 41, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)(c)

Cases Cited:

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332; 317 FLR 26

Lukatela v Birch [2008] ACTSC 99; 223 FLR 1

Parties:

Marnie Evers (Appellant)

Troy Lawrence (Respondent)

Representation:

Counsel

J Keys (Appellant)

K McCann (Respondent)

Solicitors

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 13 of 2020

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Acting Chief Magistrate Theakston

Date of Decision:          19 February 2020

Case Title:  The Police v Evers

Court File Numbers:      CC 7812 of 2018

  CC 7813 of 2018

MOSSOP J:

Introduction

1. The appellant was charged with one count of negligent driving, contrary to s 6(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is a fine of $3200. She was also charged with one count of driving with a prescribed drug in her oral fluid or blood, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). As the appellant was a repeat offender, the maximum penalty for this offence is a fine of $4000, three months’ imprisonment or both.

1. On 19 February 2020 a magistrate convicted the appellant of both counts. The appellant was…