FAUSKA -v- JONES [2008] WASC 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 173
Case No:	SJA:1042/2008	Heard:	5 AUGUST 2008
Coram:	McKECHNIE J	Delivered:	5/08/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused
Category:	B
PDF Version

Parties:	CRICKET SUE BEAR FAUSKA ROSS GORDON JONES
Catchwords:	Road Traffic Code 2000 (WA) Driving while using a hand-held mobile phone No new principles
Legislation:	Road Traffic Code 2000 (WA), reg 265
Case References:	Kyriakopoulos v Police [2006] SASC 71; (2006) 46 MVR 343

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FAUSKA -v- JONES [2008] WASC 173 CORAM : McKECHNIE J HEARD : 5 AUGUST 2008 DELIVERED : 5 AUGUST 2008 FILE NO/S : SJA 1042 of 2008 BETWEEN : CRICKET SUE BEAR FAUSKA

Appellant

AND

ROSS GORDON JONES

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : RO 8530 of 2007

Catchwords:

Road Traffic Code 2000 (WA) - Driving while using a hand-held mobile phone - No new principles

Legislation:

Road Traffic Code 2000 (WA), reg 265

(Page 2)

Result:

Application for leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : No appearance

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

Kyriakopoulos v Police [2006] SASC 71; (2006) 46 MVR 343

(Page 3)

1 McKECHNIE J: This is an application for leave to appeal against a decision from the Magistrates Court convicting the appellant on a breach of the Road Traffic Code 2000 (WA). Under the Criminal Appeals Act 2004 (WA) I can only grant leave if there are reasonable prospects of success.

2 The facts are that on 7 September 2007, the appellant was driving her car on Kwinana Freeway, Mandogalup. At the time, she was holding a mobile phone in her right hand against the steering wheel while speaking on a speaker phone. She was stopped and spoken to and admitted using her phone. The Road Traffic Code s 265(1) provides:

A driver shall not drive a motor vehicle and use a hand-held

mobile phone

while the vehicle is moving or is stationary but not

parked

3 When the matter came before the Magistrate, the appellant admitted the facts and argued as a matter of law that there was no breach of the Code because she was not using a hand-held mobile phone. The appellant supports her application by what are entitled Grounds of Appeal but are really submissions on the matter, but the essence seems to be that the Road Traffic Code does not define using hand-held mobile phones and the Magistrate was wrong.

4 The appellant is an appellant in person but has argued her point very well this morning in relation to why leave should be granted. The Magistrate gave written reasons and relied on the South Australian Supreme Court decision of Kyriakopoulos v Police

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.

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Details

Case: [2008] WASC 173
Decision Date: 5 AUGUST 2008

CaseChat Overview and Summary

Fauska was convicted for driving while using a hand-held mobile phone, a contravention of the Road Traffic Code 2000 (WA). Fauska sought leave to appeal to the Court of Appeal, arguing that the decision of the Magistrates Court was incorrect. The appeal was based on the argument that the lower court had overlooked the statutory interpretation and the principles applicable to the case. The Court of Appeal was required to decide whether there were any grounds for leave to appeal, specifically whether the appeal had a reasonable chance of success and whether it raised a question of law of general public importance.

The Court of Appeal found that there were no new principles of law that needed to be considered in this case. The Court held that the lower court's decision was consistent with previous decisions of higher courts in similar cases, and that there was no error in the application of the law. The Court found that the appeal did not have a reasonable chance of success and did not raise a question of law of general public importance. Consequently, the application for leave to appeal was refused. The Court noted that the statutory interpretation and principles applied by the lower court were consistent with previous cases and there was no basis for the appeal to succeed.

Orders

Orders of the court

Application for leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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