Htut v Knowles - [2010] WASC 84

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HTUT -v- KNOWLES [2010] WASC 84

CORAM: HASLUCK J

HEARD: 22 APRIL 2010

DELIVERED : 22 APRIL 2010

FILE NO/S: SJA 1113 of 2009

BETWEEN: NAY MYO HTUT
Appellant
AND
KENNETH DAVID KNOWLES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R B LAWRENCE
File No  :PE 25998 of 2009

Catchwords:

Criminal law and procedure - Appeal from Magistrates Court against conviction - Driving offence of making a U-turn and failing to give way - Appellant unrepresented at trial - Whether magistrate erred in fact or in law - Principles concerning appellant being unrepresented at trial and at appeal - Turns on own facts - Leave to appeal refused and appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14, s 39
Road Traffic Code 2000 (WA), reg 32

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D E Leigh & Mr D Jones

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Cains v Jenkins (1979) 28 ALR 219
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dietrich v The Queen (1992) 177 CLR 292
Garrett v Nicholson (1999) 21 WAR 226
Keystart Loans Ltd v Haydon Wood [2005] WASC 231
MacPherson v The Queen (1981) 147 CLR 512
Skerritt v O'Keefe [1999] WASCA 183
Smith v McCusker [2005] WASCA 226

HASLUCK J:

Introduction

The appellant, Nay Myo Htut, was charged that on 1 November 2008 at Northbridge he infringed reg 32(2) of the Road Traffic Code 2000 (WA) in that, being the driver of a motor vehicle registration number TAXI 832 on a road, namely, Roe Street, he made a U‑turn and failed to give way to another vehicle.
The case against the appellant, as outlined by the prosecutor in his opening address, was that at 6.30 am on Saturday, 1 November 2008 the accused, being a taxi driver, was driving his Ford Falcon taxi east on Roe Street near Lake Street in Northbridge.
On the prosecution case, the complainant, Alan Stewart MacPherson, was travelling on a motorcycle in the right hand lane behind the appellant. The appellant allegedly pulled over to the left hand lane, then started to do a U‑turn, crossing once again into the right hand lane where the complainant's motorcycle collided with the front side of the appellant's taxi.
The complainant was thrown over the handlebars of his motorcycle onto the bonnet of the taxi, then onto the road. The complainant was said to have sustained minor injuries in the crash.
Regulation 32(1) concerning U‑turns provides that a driver shall not commence a U‑turn unless the turn can be made with safety and without interfering with the movement of other traffic and the driver has a clear view of any approaching traffic.
The regulation specified in the charge, that is, reg 32(2), provides that a driver making a…

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 Htut v Knowles

Details

AGLC: Htut v Knowles [2010] WASC 84
Case: [2010] WASC 84
Decision Date: 22 APRIL 2010

CaseChat Overview and Summary

The appellant, Htut, was convicted by the Magistrates Court of a driving offence involving making a U-turn and failing to give way. Htut was unrepresented at his trial and subsequently appealed the conviction. The appeal focused on whether the magistrate made an error in fact or law, and if the appellant's lack of representation impacted the fairness of the trial or the appeal. The principles governing the rights of an unrepresented appellant at trial and at appeal were central to the case, and the court considered whether these principles applied to the specific circumstances presented.

The court was required to determine if the magistrate's decision was correct in law and fact, and if the appellant's lack of representation affected the outcome. It examined whether the magistrate correctly applied the law and whether there was any procedural unfairness due to the absence of legal representation. The appeal also considered whether the principles concerning an unrepresented appellant, both at trial and at appeal, mandated a different outcome.

The court held that the magistrate's decision was not in error and that there was no procedural unfairness due to the appellant's lack of representation. It found that the principles concerning an unrepresented appellant were fact-specific and did not require a different outcome in this case. The appeal was therefore dismissed, and leave to appeal was refused. The court concluded that the magistrate's decision was sound and that there were no grounds for overturning the conviction.

Orders