JACKAMARRA -v- ORR [2003] WASCA 278

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 278
Case No:	SJA:1092/2003	Heard:	15 SEPTEMBER 2003
Coram:	BARKER J	Delivered:	19/11/03
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	B
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Parties:	PATRICK JACKAMARRA ROBERT JOHN ORR
Catchwords:	Appeal Justices Act 1902 (WA) Application for leave to appeal and appeal Road Traffic Act 1974 (WA) Permanent disqualification from holding or obtaining a driver's licence Whether dealt with on basis of third offence, instead of second offence, of driving under the influence Whether s 63(2)(b) permits permanent disqualification Meaning of "permanently disqualified" in s 63(2)(b) Whether permanent disqualification excessive
Legislation:	Justices Act 1902 (WA) Road Traffic Act 1974 (WA), s 49(3), s 63(1), s 78, s 106
Case References:	Binns v Gardiner [2002] WASCA 337 Horton v Burton (1999) 28 MVR 415 R v Tunde-Olarinde (1967) 51 Cr App Rep 249 Baker v Bushell (1988) 7 MVR 142 Gardner v R [2003] NSWCCA 199 Herps v Douglas (1991) 13 MVR 568 Horton v Burton (1999) 20 MVR 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JACKAMARRA -v- ORR [2003] WASCA 278 CORAM : BARKER J HEARD : 15 SEPTEMBER 2003 DELIVERED : 19 NOVEMBER 2003 FILE NO/S : SJA 1092 of 2003 BETWEEN : PATRICK JACKAMARRA

Applicant

AND

ROBERT JOHN ORR

Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Application for leave to appeal and appeal - Road Traffic Act 1974 (WA) - Permanent disqualification from holding or obtaining a driver's licence - Whether dealt with on basis of third offence, instead of second offence, of driving under the influence - Whether s 63(2)(b) permits permanent disqualification - Meaning of "permanently disqualified" in s 63(2)(b) - Whether permanent disqualification excessive

Legislation:

Justices Act 1902 (WA)

Road Traffic Act 1974 (WA), s 49(3), s 63(1), s 78, s 106

(Page 2)

Result:

Leave to appeal granted

Appeal allowed

Category: B

Representation:

Counsel:

Applicant : Mr C L J Miocevich

Respondent : Mr S M Murphy

Solicitors:

Applicant : Aboriginal Legal Service

Respondent : State Crown Solicitor

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

Binns v Gardiner [2002] WASCA 337
Horton v Burton (1999) 28 MVR 415
R v Tunde-Olarinde (1967) 51 Cr App Rep 249

Case(s) also cited:

Baker v Bushell (1988) 7 MVR 142
Gardner v R [2003] NSWCCA 199
Herps v Douglas (1991) 13 MVR 568
Horton v Burton (1999) 20 MVR 295

(Page 3)

BARKER J

Introduction

1 On 20 November 1978, the applicant (Mr Jackamarra) stood charged in the Court of Petty Sessions at East Perth that, on 19 November 1978, at South Fremantle, he drove a motor vehicle on South Terrace whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, contrary to s 63(1) of the Road Traffic Act1974 (WA). On his plea of guilty to that charge, he was duly convicted…

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 Jackamarra v Orr

Details

AGLC: Jackamarra v Orr [2003] WASCA 278
Case: [2003] WASCA 278
Decision Date: 19 NOVEMBER 2003

CaseChat Overview and Summary

Jackamarra was appealing against the decision of a Magistrates Court of Western Australia, which had found him guilty of driving under the influence and permanently disqualified him from holding or obtaining a driver's licence. The basis of the decision was that this was his third such offence, rather than the second, which would have resulted in a temporary disqualification. Jackamarra argued that the permanent disqualification was excessive and that the relevant statutory provisions did not permit such a penalty. The Court had to determine whether the statutory provisions allowed for a permanent disqualification in this scenario, and if not, whether the penalty was excessive.

The primary issue was whether section 63(2)(b) of the Road Traffic Act 1974 (WA) permitted a permanent disqualification for a third offence of driving under the influence, as opposed to a temporary disqualification for a second offence. A secondary issue was whether the penalty was excessive if the statutory provisions did not permit it. The Court had to interpret the meaning of "permanently disqualified" in the context of section 63(2)(b) and consider the proportionality of the penalty.

The Court found that section 63(2)(b) of the Road Traffic Act 1974 (WA) did not permit a permanent disqualification for a third offence of driving under the influence, as it only referred to temporary disqualification for a second offence. The Court held that the permanent disqualification was excessive, and thus not permitted by the statute. Consequently, the Court allowed the appeal and set aside the decision of the Magistrates Court. The Court granted leave to appeal and allowed the appeal.

Orders

Orders of the court

Leave to appeal granted

Appeal 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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