Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G LAWRENCE & MAGISTRATE S MALLEY
File No :FR 4106 of 2012
Catchwords:
Criminal law - Appeal - Conviction for speeding - Appellant (accused) failed to appear at hearing - Magistrate refused adjournment - Appellant (accused) convicted in his absence under s 55 Criminal Procedure Act 2004 (WA) - Appeal partially incompetent - Appeal out of time - No exceptional circumstances to warrant leave out of time - No miscarriage of justice
[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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AGLC
Fazio v St John-Ayre [2017] WASC 62
Case
[2017] WASC 62
Decision Date
CaseChat Overview and Summary
In the matter of Fazio v St John-Ayre, the appellant sought to appeal his conviction for speeding in the Magistrates Court of Western Australia. The appellant, Fazio, was charged with speeding and failed to appear at the scheduled hearing. The magistrate, St John-Ayre, refused to adjourn the hearing and proceeded to convict Fazio in his absence. The appeal against the conviction was lodged after the deadline, and the appellant sought leave to appeal out of time, arguing that the refusal to adjourn constituted a miscarriage of justice. The legal issues in this case centred on whether the appeal was competent, whether the appellant had any grounds for an out-of-time appeal, and whether there were exceptional circumstances to warrant such a leave. The court examined whether the refusal to adjourn the hearing amounted to a miscarriage of justice, and if the appellant could demonstrate any circumstances that would warrant an out-of-time appeal.
The court found that the appeal was partially incompetent because it was lodged after the prescribed time limit. The appellant argued that the refusal to adjourn amounted to a miscarriage of justice, but the court considered the grounds for such a claim. It was noted that the appellant had the opportunity to request an adjournment but chose not to do so. The court further examined whether there were exceptional circumstances to warrant leave to appeal out of time. The appellant did not provide any evidence of exceptional circumstances, and the court found that there was no miscarriage of justice. Consequently, the court held that the appellant's appeal was incompetent and dismissed the application for leave to appeal out of time.
As the appeal was found to be incompetent, the court did not proceed to consider the merits of the appeal. The court concluded that there were no exceptional circumstances to warrant leave to appeal out of time, and the appellant's conviction for speeding remained. The final orders of the court were that the appeal was dismissed and the conviction upheld. The court emphasised that the appellant's failure to appear at the hearing and the refusal to adjourn the hearing did not amount to a miscarriage of justice, and the appeal was therefore not competent. The decision reinforces the importance of timely appeals and the need for applicants to demonstrate exceptional circumstances to warrant leave to appeal out of time.