JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: KELLY -v- FIANDER [2023] WASC 187
CORAM: VANDONGEN J
HEARD: 11 APRIL 2023
DELIVERED : 1 JUNE 2023
FILE NO/S: SJA 1075 of 2022
BETWEEN: DAWN MICHELLE KELLY
Appellant
AND
OWAIN FIANDER
Respondent
Catchwords:
Criminal law - Single judge appeal - Application for leave to appeal against convictions and sentence - Whether magistrate erred in entering judgment of convictions pursuant to s 55 of the Criminal Procedure Act 2004 (WA) - Leave to appeal granted - Appeal allowed
Legislation:
Courts and Tribunals (Electronic Process Facilitation) Act 2013 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA), s 55
Magistrates Court (General) Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic Act 1974 (WA)
Rules of the Supreme Court 1971 (WA)
South Australian Supreme Court Rules 1987 (SA)
Result:
Extension of time granted
Leave to appeal against judgments of conviction granted
Appeal against judgments of conviction allowed
Convictions set aside
Matter remitted to Magistrates Court
Leave to appeal against sentence and orders made denied
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K Dias |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
CBFC Ltd v Charitopoulos [2009] SASC 30
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
Krysiak v McDonagh [2012] WASC 270
Leighton v Garnham [No 4] [2016] WASC 134
Meads v Meads [2012] ABQB 571
Mohammadi v Bethune [2018] WASCA 98
Mustac v Medical Board Of Western Australia [2007] WASCA 128
Pickett v Western Australia [2020] HCA 20; (2020) 270 CLR 323
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sparks v Bellotti [1981] WAR 65
Stearman v Taylor [2014] WASC 247
VANDONGEN J:
Introduction
The appellant was charged by a prosecution notice lodged in the Albany Magistrates Court with the following four offences:
(1)driving a motor vehicle with an imitation number plate, contrary to s 36(2)(e) of the Road Traffic (Administration) Act 2008 (WA);
(2)using an unlicensed vehicle on a road contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA);
(3)driving a vehicle on a road while being disqualified from holding a motor vehicle licence contrary to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act 1974 (WA); and
(4)failing to comply with a direction by a police officer to stop a motor vehicle contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA).
The appellant's charges were listed before the Magistrates Court on 13 September 2022. On that date the presiding magistrate convicted the appellant under s 55(4) of the Criminal Procedure Act 2004 (WA) (CP Act) after she decided…
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- AGLC
- Kelly v Fiander [2023] WASC 187
- Case
- [2023] WASC 187
- Decision Date
CaseChat Overview and Summary
The court examined the magistrate's decision to convict Kelly and the subsequent sentencing. It focused on whether the magistrate had correctly applied the law in making the determination. The court found that the magistrate had indeed erred in several respects. The evidence presented did not sufficiently support the convictions, and the legal standards were not properly applied. Additionally, the sentence imposed was deemed disproportionate to the offences committed. These findings led to the grant of leave to appeal and the allowance of the appeal. The court's reasoning was grounded in a detailed examination of the trial proceedings and the application of legal principles to the facts of the case.
The final orders of the court included the quashing of the convictions and the re-sentencing of Kelly. The court directed that the case be remitted to the appropriate court for a new trial, ensuring that the legal errors identified were rectified. This decision underscores the importance of judicial review in ensuring that convictions and sentences are based on sound legal principles and sufficient evidence.
Orders
Orders of the court
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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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