Gibbs v Watson - [2017] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GIBBS -v- WATSON [2017] WASC 326

CORAM: SMITH AJ

HEARD: 10 OCTOBER 2017

DELIVERED : 23 NOVEMBER 2017

FILE NO/S: SJA 1026 of 2017

BETWEEN: CAMERON DUNCAN GORDON WILLIAM GIBBS
Appellant
AND
GEOFF WATSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D P SCADDAN
File No  :MI 10 of 2017

Catchwords:

Criminal law and procedure - Speeding offence - Exclusion of presumption of innocence under Criminal Procedure Act 2004 (WA) s 55 - Procedure for conviction of accused of simple offence in their absence

Appeal - Whether reasonable prospect of succeeding - No arguable grounds

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9
Criminal Procedure Act 2004 (WA), s 23, s 28, s 33, s 48, s 55
Criminal Procedure Regulations 2005 (WA), reg 4, reg 8
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 21
Road Traffic Code 2000 (WA), r 11

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T Pontre

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Saad v Baron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SMITH AJ:

Background

The appellant was charged with a simple offence that on Wednesday, 10 August 2016 he drove a motor vehicle on Welshpool Road near Moffett Road in Carmel at 93 km/h in a 70 km/h speed zone, contrary to r 11(3) of the Road Traffic Code 2000 (WA).
By application dated 20 December 2016, the appellant elected to have the charge dealt with by the Magistrates Court under s 21 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
The charge was heard on 8 March 2017. The appellant did not appear. Nor did he send to the court a written plea.
In reliance upon s 55 of the Criminal Procedure Act 2004 (WA), the learned magistrate heard and determined the charge in the appellant's absence.
The appellant was convicted of the charge. A fine of $400 was imposed, and costs of $188 awarded.
Although the prosecutor did not read aloud the statement of material facts verbatim, the substance of the facts was read aloud.
The appellant has applied for leave to appeal against his conviction.

Grounds of appeal

The appellant enumerates his grounds of appeal as follows:
1.Systemic failure to adhere to the principles of 'innocent until proven guilty' when considering matters of vehicle speed.
2.Failure to follow correct judicial procedure.
3.Failure to provide opportunity for a fair hearing.
4.Failure to consider the purpose of the law as distinct from the letter of the law when determining guilt.
The appellant requires leave to appeal on each of the grounds which he has raised: Criminal Appeals Act 2004 (WA) s 9(1). The court must…

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 Gibbs v Watson

Details

AGLC: Gibbs v Watson [2017] WASC 326
Case: [2017] WASC 326
Decision Date: 23 NOVEMBER 2017

CaseChat Overview and Summary

The case of Gibbs v Watson involved a dispute over a speeding offence where the appellant, Mr Gibbs, contested the presumption of his innocence being excluded under section 55 of the Criminal Procedure Act 2004 (WA). The trial judge had convicted Mr Gibbs in his absence, which led to an appeal by Mr Gibbs. The court of appeal was tasked with determining whether the appeal had a reasonable prospect of succeeding and if there were any arguable grounds for the appeal.

The central legal issues were whether the exclusion of the presumption of innocence was valid under section 55 of the Criminal Procedure Act 2004 (WA) and whether the trial judge had correctly applied the law in convicting Mr Gibbs in his absence. The appeal also questioned the procedure followed by the trial judge in convicting Mr Gibbs without his presence and whether the court of appeal had jurisdiction to hear the appeal under the common law.

The court of appeal examined the statutory provisions and found that the exclusion of the presumption of innocence was valid under section 55. It concluded that the trial judge had applied the law correctly in convicting Mr Gibbs in his absence, as the statutory requirements were met. The court also found that the procedure followed by the trial judge was consistent with the law, and there were no procedural errors. Consequently, the court determined that the appeal had no reasonable prospect of succeeding and lacked arguable grounds.

The court dismissed the appeal and confirmed the conviction. The judgment affirmed the validity of the statutory exclusion of the presumption of innocence and the trial judge's decision to convict Mr Gibbs in his absence. The court held that the appeal was without merit and did not warrant further consideration.

Orders