Harrison v Page - [2014] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HARRISON -v- PAGE [2014] WASC 81

CORAM: CHANEY J

HEARD: 28 FEBRUARY 2014

DELIVERED : 24 MARCH 2014

FILE NO/S: SJA 1137 of 2013

BETWEEN: FRANK RICHARD HARRISON
Appellant
AND
ANTHONY JOHN PAGE
Respondent

Catchwords:

Road traffic - Appeal against conviction - Magistrate relying on sound heard on video exhibit - Sound not relied upon by prosecution - No opportunity given to defendant to be heard on source of sound - Denial of procedural fairness

Legislation:

Nil

Result:

Leave to appeal granted
Matter referred back to Magistrates Court for re-hearing by a different Magistrate

Category: B

Representation:

Counsel:

Appellant: In Person
Respondent: Mr J Misso

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Bleechmore v Keating [2008] WASC 309
Browne v Dunn (1893) 6 R 67
King (1985) 17 A Crim R 184

CHANEY J: On 6 November 2013, the appellant, Mr Harrison, was convicted in the Magistrates Court in Northam of an offence, namely that, being the driver of a motor vehicle registered number IDCD322, that was moving on a road, namely Great Eastern Highway, he failed to wear a seatbelt properly adjusted and securely fastened. Mr Harrison sought leave to appeal against that conviction, and directions were made that the application for leave to appeal was to be heard at the same time as the appeal.
The appeal notice contained grounds of appeal which lacked proper specificity. The grounds simply asserted that the Magistrate made an error of law or fact or both law and fact, acted without or in excess of jurisdiction, and that there was a miscarriage of justice. When the matter came on for hearing, Mr Harrison was able to identify a more precise complaint, namely that the Magistrate had denied him natural justice by reaching his conclusion in reliance on a sound heard by the Magistrate on a video tendered in evidence, without providing Mr Harrison with notice of that reliance or any opportunity to give any evidence or make any submission concerning the sound heard on the video.
Although that precise ground of appeal was only identified by Mr Harrison at the commencement of the hearing of the appeal, the point had been identified by counsel for the respondent in advance of the hearing. As a result, the point was the subject of written submissions filed by him before the hearing of the appeal, and he was in a position to deal with the point at the hearing.

The case against Mr Harrison

Mr Harrison is a truck driver by occupation. On 14 December 2012, he was driving a truck loaded with an overwidth load along Great Eastern Highway near Northam. Mr Harrison was travelling in convoy with another truck and was followed by a pilot vehicle. Mounted on the dashboard of Mr Harrison's truck was a video camera which was…

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 Harrison v Page

Details

AGLC: Harrison v Page [2014] WASC 81
Case: [2014] WASC 81
Decision Date: 24 MARCH 2014

CaseChat Overview and Summary

In the matter of Harrison v Page, the defendant appealed against his conviction for driving at a speed greater than the prescribed limit, with the case reaching the Supreme Court of Victoria. The conviction was based on a video exhibit showing the defendant driving at an excessive speed, with the magistrate relying on the sound of the vehicle's engine heard in the video to determine the speed. The defendant argued that the magistrate should not have relied on the sound without it being formally adduced as evidence, and that he was not given an opportunity to be heard on the source of the sound, thus denying him procedural fairness.

The central legal issue before the court was whether the magistrate's reliance on the sound of the vehicle's engine in the video constituted an error of law that rendered the conviction unsafe and unsatisfactory. Specifically, the court needed to determine whether the sound of the engine was properly adduced as evidence, and whether the defendant was denied procedural fairness by not being given an opportunity to comment on the source of the sound.

The court found that the magistrate's reliance on the sound of the engine without it being formally adduced as evidence constituted an error of law. The sound was not part of the prosecution's case, and the defendant was not given an opportunity to be heard on the source of the sound, which amounted to a denial of procedural fairness. The court held that the conviction could not stand as it was based on an unreliable piece of evidence, and the appeal was allowed. The conviction was quashed and a re-trial ordered.

Orders