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Kelly v Fiander

Kelly v Fiander

Case [2023] WASC 187 1 June 2023

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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
Saad v Baron [2012] WASC 507
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
Strahan v Brennan [2014] WASC 190
Tallot v Matier [2012] WASC 290

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…

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 Kelly v Fiander

Details

AGLC: Kelly v Fiander [2023] WASC 187
Case: [2023] WASC 187
Decision Date: 1 JUNE 2023

CaseChat Overview and Summary

In the case of Kelly v Fiander, the appellant, Kelly, sought leave to appeal against his convictions and sentence. The dispute arose from a single judge appeal where Kelly was convicted of various criminal offences. The court was tasked with determining whether the magistrate erred in entering a judgment of conviction under section 55 of the Criminal Procedure Act 2004 (WA). The legal issues before the court were whether the magistrate properly considered the evidence and the applicable legal principles in reaching the conviction and if the sentence was appropriate.

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