Kelly v Osborne - [2023] WASC 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KELLY -v- OSBORNE [2023] WASC 353
CORAM:   HOWARD J
HEARD:   13 SEPTEMBER 2023
DELIVERED          :   13 SEPTEMBER 2023
FILE NO/S:   SJA 1002 of 2023
BETWEEN:   DAWN MICHELLE KELLY
Appellant

AND

JEFFREY OSBORNE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   AL 2014 - 2016 of 2022
AL 2112 of 2022

Catchwords:

Criminal law - Appeal against conviction - Magistrate convicted and sentenced in appellant's absence under s 35 of the Criminal Procedure Act 2004 (WA) - Whether the Magistrate erred in not granting an adjournment where appellant sought to appear by a video link and provided a medical certificate - Appeal granted - Prosecution Notices to be dealt with again by a different Magistrate

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Vehicles) Act 1974 (WA)
Road Traffic Act 1974 (WA)

Result:

Appeal granted

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K Dias

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

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

Delopez v Darry [2014] WASC 370
House v R (1936) 55 CLR 499.
Kelly v Fiander [2023] WASC 187
King v City of Perth [2023] WASC 252
Rendell v Douglas [2015] WASC 36
Saad v Baron [2012] WASC 507
Tallot v Matier [2012] WASC 290

HOWARD J:

(This judgment was delivered extemporaneously on 13 September 2023 and has been lightly edited for clarity from the transcript.)

The appellant's convictions

The appellant was convicted on 13 December 2022 in the Magistrates Court at Albany of four offences, namely:
(1)being the driver of a vehicle failed to stop (date of offence: 11 September 2022) (charge AL 2104/2022), against s 44 of the Road Traffic (Administration) Act 2008 (WA) (RTAA);
(2)being the driver of a vehicle driven on a road whilst the vehicle had an imitation number plate affixed (date of offence: 11 September 2022) (charge AL 2105/2022), against s 36(2)(e) of the RTAA;
(3)driving a motor vehicle on a road whilst holding a suspended license (date of offence: 11 September 2022) (charge AL 2106/2022), against s 49(1)(a) and (3)(c) of the Road Traffic Act 1974 (WA) (RTA);[1] and
(4)failing to comply with a vehicle surrender notice (date of offence: 15 October 2022) (charge AL 2112/2022) against s 799BB(5) of the RTA.[2]
(Convictions)
[1] Prosecution Notice dated 8 November 2022 'Charges AL 2104/2022 - 2106/2022'; Transcript of Proceedings at Albany on Tuesday 13 December 2022, pages 4 - 5.
[2] Prosecution Notice dated 8 November 2022 'Charges AL 2112/2022'; Transcript of Proceedings at Albany on Tuesday 13 December 2022, pages 4 - 5.
The above charges had initially been before the same learned Magistrate on 29 November 2022. The appellant was unable to attend the trial on medical grounds, and a medical certificate dated 27 November 2022 by a Doctor at Hillarys Plaza Medical Centre had…

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 Osborne

Details

AGLC: Kelly v Osborne [2023] WASC 353
Case: [2023] WASC 353
Decision Date

CaseChat Overview and Summary

The appeal in Kelly v Osborne concerns the conviction and sentencing of Dawn Michelle Kelly by the Magistrates Court of Western Australia in her absence. The respondent, Jeffrey Osborne, did not contest the appeal. The case was heard and decided by Howard J of the Supreme Court of Western Australia on 13 September 2023. The primary legal issue before the court was whether the Magistrate erred in not granting an adjournment when the appellant, Dawn Kelly, sought to appear by video link and provided a medical certificate. The appellant was convicted in her absence of four traffic offences, and the Magistrate imposed fines and costs. The appellant appealed the convictions, arguing that the Magistrate's refusal to adjourn the trial was an error in law and in fact.

The Supreme Court found that the Magistrate erred in not granting an adjournment despite the appellant's medical certificate and request to appear via video link. The court held that a reasonable exercise of discretion would have resulted in an adjournment, as the appellant had a legitimate reason for not being able to attend in person. The court set aside the convictions and ordered that the Prosecution Notices be dealt with again by a different Magistrate. The Supreme Court also granted the appellant leave to appeal and ordered the respondent to pay the appellant's costs.

Orders