Greenwood v Irving - [2019] ACTCA 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Greenwood v Irving
Citation:	[2019] ACTCA 12
Hearing Date:	8 May 2019
DecisionDate:	8 May 2019
Before:	Mossop, Loukas-Karlsson and Bromwich JJ
Decision:	Appeal dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – In General and Right of Appeal – whether conspiracy between Court and Director of Public Prosecutions to pervert the course of justice – whether failure to take into account relevant considerations – whether erroneous findings – circumstances of significant delay – appeal dismissed
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5191 Magistrates Court Act 1930 (ACT) s 216 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 41
Cases Cited:	Greenwood v Irving [2018] ACTSC 310
Parties:	L Greenwood (Appellant) A Irving (Respondent)
Representation:	Counsel J Keys (Appellant) A Williamson (Respondent)
Solicitors No representation (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 65 of 2018
Decision under appeal:	Court: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 7 November 2018 Case Title: Greenwood v Irving Citation: [2018] ACTSC 310 Court File Number: SCA 40 of 2011

THE COURT:

On 18 April 2011, the appellant, Mr Luke Greenwood, was convicted in the Magistrates Court of the Australian Capital Territory on two traffic offences of driving through a red light and drink driving by reason of driving with a low range prescribed concentration of alcohol. He was fined, ordered to pay court costs and two levies and had his driver’s licence disqualified for four months.

The drink driving conviction was based upon an evidentiary certificate under s 41 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act), which recorded a breath analysis result of 0.051g of alcohol per 100ml of blood. The test was administered at 11.12pm on 8 May 2010. Just under two hours later, in the early hours of 9 May 2010, a blood test revealed that Mr Greenwood’s blood alcohol level had gone down to 0.04g of alcohol per 100ml of blood.

Two days after his conviction, on 20 April 2011, Mr Greenwood filed an appeal against his convictions in this Court. That had the effect of staying the enforcement of the orders made by the magistrate: see s 216, Magistrates Court Act 1930 (ACT). Mr Greenwood subsequently paid the fines, levies and court costs, even though he was not required to do so. His licence disqualification did not take effect. As detailed below, the appeal was never heard.

On 31 August 2018, the respondent filed an application under r 5191 of the Court Procedures Rules 2006 (ACT), seeking an order that the appeal be dismissed for want of prosecution. That rule provides as follows:

5191 – Appeals to Supreme Court – want of prosecution of appeal
(1)    In this rule:
appeal means—
(a)   an application for further time to apply for leave to appeal under this part; or
(b)   an appeal or application for leave to appeal (or leave to appeal out of time)…

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 Greenwood v Irving

Details

AGLC: Greenwood v Irving [2019] ACTCA 12
Case: [2019] ACTCA 12
Decision Date: 8 May 2019

CaseChat Overview and Summary

The appeal concerned allegations of a conspiracy between the Court and the Director of Public Prosecutions to pervert the course of justice. The appellant, Greenwood, sought to appeal against a decision of the Supreme Court of Victoria.

The central legal issues before the Court of Appeal were whether the trial judge had failed to take into account relevant considerations and whether the findings made were erroneous, particularly in light of significant delays in the proceedings. The Court was required to determine if these alleged failures amounted to a perversion of justice.

The Court of Appeal dismissed the appeal, finding no error in the decision below. The judges were not persuaded that the trial judge had failed to consider relevant matters or that the findings were erroneous. The Court concluded that the circumstances, including the significant delay, did not support the appellant's claim of a conspiracy to pervert the course of justice.

Orders

Orders of the court

Appeal dismissed.

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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