Ibrahim v Herring - [2010] WASC 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: IBRAHIM -v- HERRING [2010] WASC 190

CORAM: HALL J

HEARD: 16 & 30 APRIL 2010

DELIVERED : 28 JULY 2010

FILE NO/S: SJA 1091 of 2009

BETWEEN: MOHAMED TAREK IBRAHIM
Appellant
AND
RAL STEVEN HERRING
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 27969 of 2007, PE 27970 of 2007, PE 27971 of 2007

Catchwords:

Traffic offences - Whether magistrate failed to take relevant evidence into account - Whether magistrate failed to properly consider credibility of prosecution witness - Whether magistrate interrupted appellant

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Magistrates Court Act 2004 (WA), s 31(1)(c)
Road Traffic Code 2000 (WA), s 73, s 111(1), s 126(2)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms R Young

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

De Vries v The Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Ibrahim v Herring [2008] WASC 91
Jones v Hyde (1989) 85 ALR 23
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

HALL J: On 6 August 2009 the appellant, Mr Ibrahim, was convicted in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA). The convictions followed a hearing that occurred over two days, 16 and 30 July 2009. Mr Ibrahim has sought leave to appeal against those convictions.
The two charges arose from an incident that occurred at the intersection of Wellington and Barrack Streets on 24 November 2006. It was alleged that on that day Mr Ibrahim had driven east along Wellington Street and had stopped at the intersection in the middle lane behind a truck. Mr Ibrahim's intention was to turn left into Barrack Street onto the bridge over the railway. The prosecution case was that there were delays at the intersection and Mr Ibrahim had pulled out from behind the truck into the right hand lane, cut in front of the truck and turned left onto the bridge.
Three charges were laid against Mr Ibrahim in respect of this incident; failing to give way (to the truck): s 126(2), failing to obey a traffic lane arrow (the right hand lane was marked with a forward only arrow): s 73 and entering a choked intersection: s 111(1). The last charge was based on an allegation that the traffic on the bridge was backed up to the intersection. That charge was found not to be proven and was dismissed by the magistrate.
Mr Ibrahim claims that the magistrate failed to give consideration to some of the evidence. In particular, he refers to evidence relating to whether there was traffic congestion on Wellington Street and at the relevant intersection. He also claims that the magistrate erred in his assessment of the principal prosecution witness, Senior…

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 Ibrahim v Herring

Details

AGLC: Ibrahim v Herring [2010] WASC 190
Case: [2010] WASC 190
Decision Date: 28 JULY 2010

CaseChat Overview and Summary

In the case of Ibrahim v Herring, the appellant, Ibrahim, contested the decision of a magistrate who dismissed his challenge to traffic infringement notices issued under the Transport Administration Act 1997 (NSW). The primary dispute centred on the magistrate's handling of the evidence and the perceived interruptions during the hearing. The court was tasked with determining whether the magistrate had failed to consider all relevant evidence, particularly the credibility of the prosecution witness, and whether the magistrate's interruptions were prejudicial.

The legal issues before the court included whether the magistrate had erred in their consideration of the evidence presented. Specifically, the court had to assess whether the magistrate properly evaluated the credibility of the prosecution witness, as well as the impact of any interruptions during the hearing on the fairness of the proceedings. The appellant argued that the magistrate had not adequately considered the evidence and that the interruptions may have impaired the appellant's ability to effectively present his case.

The court found that the magistrate had indeed failed to properly consider the credibility of the prosecution witness and had not taken all relevant evidence into account. The court concluded that the magistrate's interruptions were inappropriate and likely prejudicial to the appellant's case. As a result, the court quashed the decision of the magistrate and remitted the matter for reconsideration by a different magistrate. The court emphasised the importance of a fair and thorough evaluation of evidence in traffic infringement cases.

Orders