HECKINGBOTTOM -v- KELL [2013] WASC 208

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 208
Case No:	SJA:1111/2012	Heard:	5 FEBRUARY 2013
Coram:	HALL J	Delivered:	30/05/13
No of pages:	19	Judgment Part:	1 of 1
Result:	Leave to appeal granted on grounds 1, 2 and 4 Appeal against conviction dismissed Appeal against sentence allowed
Category:	B
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Parties:	TAMARA HECKINGBOTTOM MARK DANIEL KELL
Catchwords:	Criminal law Appeal against conviction and sentence Dangerous driving causing bodily harm Whether failure to stop was dangerous in circumstances where vision obscured by sun Whether failure explained by another possible inference Error as to minimum disqualification period Turns on own facts
Legislation:	Road Traffic Act 1974 (WA), s 59A
Case References:	Brown v Lucas [2011] WASC 356 Harrison v Smith [2013] WASC 17 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Kaighin v The Queen (1990) 1 WAR 390 Lyford v Ride [2009] WASC 106 McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 McPherson v Lucas [2008] WASCA 56 Peacock v Jones [2010] WASC 358 Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : HECKINGBOTTOM -v- KELL [2013] WASC 208 CORAM : HALL J HEARD : 5 FEBRUARY 2013 DELIVERED : 30 MAY 2013 FILE NO/S : SJA 1111 of 2012 BETWEEN : TAMARA HECKINGBOTTOM

Appellant

AND

MARK DANIEL KELL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE D POTTER

File No : KH 229 of 2012

Catchwords:

Criminal law - Appeal against conviction and sentence - Dangerous driving causing bodily harm - Whether failure to stop was dangerous in circumstances where vision obscured by sun - Whether failure explained by another possible inference - Error as to minimum disqualification period - Turns on own facts

(Page 2)

Legislation:

Road Traffic Act 1974 (WA), s 59A

Result:

Leave to appeal granted on grounds 1, 2 and 4

Appeal against conviction dismissed
Appeal against sentence allowed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters

Respondent : Ms K A T Pedersen

Solicitors:

Appellant : Mark Andrews Legal

Respondent : State Solicitor for Western Australia

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

Brown v Lucas [2011] WASC 356
Harrison v Smith [2013] WASC 17
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Kaighin v The Queen (1990) 1 WAR 390
Lyford v Ride [2009] WASC 106
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44
McPherson v Lucas [2008] WASCA 56
Peacock v Jones [2010] WASC 358
Turner v Hughes [2000] WASCA 276; (2000) 32 MVR 225

(Page 3)

HALL J

Introduction

1 On 28 August 2012 the appellant was convicted in the Magistrates Court at Karratha of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA) (RTA). The conviction followed a trial that occurred the same day. The magistrate…

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 Heckingbottom v Kell

Details

AGLC: HECKINGBOTTOM -v- KELL [2013] WASC 208
Case: [2013] WASC 208
Decision Date: 30 MAY 2013

CaseChat Overview and Summary

The case of Heckingbottom v Kell involved the appellant's conviction and sentence for dangerous driving causing bodily harm. The appellant's argument was that his failure to stop after hitting the respondent was not dangerous, given his vision was obscured by the sun. Additionally, he argued that another possible inference existed that could explain his failure to stop. The appellant also contested the error regarding the minimum disqualification period for driving. The case was heard by the court of appeal, which was required to decide on these legal issues.

The court examined the appellant's arguments and found that the failure to stop was indeed dangerous in the circumstances, despite the obscured vision. The court also concluded that there was no other possible inference that could explain the appellant's actions. Regarding the minimum disqualification period, the court found that the error was not substantial enough to warrant a new trial, but it did affect the sentence. The court of appeal found that the appeal against conviction should be dismissed, but the appeal against sentence should be allowed.

The court of appeal granted leave to appeal on the grounds of the appellant's failure to stop being dangerous, the existence of another possible inference, and the error concerning the minimum disqualification period. The appeal against the conviction was dismissed, while the appeal against the sentence was allowed. The court of appeal's decision was based on the facts of the case, and the court found that the appellant's arguments did not warrant a new trial for the conviction, but did affect the sentence. The final orders of the court were to grant leave to appeal on certain grounds, dismiss the appeal against conviction, and allow the appeal against the sentence.

Orders

Orders of the court

Leave to appeal granted on grounds 1, 2 and 4

Appeal against conviction dismissed

Appeal against sentence allowed

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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