JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KELLY -v- WA POLICE [2024] WASC 372
CORAM: WHITBY J
HEARD: 10 OCTOBER 2024
DELIVERED : 10 OCTOBER 2024
PUBLISHED : 11 OCTOBER 2024
FILE NO/S: SJA 1029 of 2024
BETWEEN: DAWN MICHELLE KELLY
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1029 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E WOODS
File Number : PE 55253/2023, PE 55254/2023, PE 55255/2023 & PE 55256/2023
Catchwords:
Criminal law - Single judge appeal - Whether magistrate erred in law - Amendment of charge by magistrate - Intervention by magistrate to prevent questions being asked in cross-examination - Apprehended bias - Whether appellant had a 'reasonable excuse' for failing to stop her vehicle when directed to do so by a police officer - No error of law - No miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic (Vehicles) Act 2012 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | C Mayne |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Attorney ‑ General (Cth) v Breckler (1999) 197 CLR 83
B v Coan [2021] WASC 127
Briggs v Houlihan [2018] WASC 301
Brooks v Drysdale [2020] WASC 466
Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kelly v Fiander [2023] WASC 187
Kelly v Fiander [2024] WASC 275
Porter v Kelly [2024] WASC 282
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
Samuels v The State of Western Australia [2005] WASCA 193
Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526
Taikato v The Queen (1996) 186 CLR 454
Taylor v Hodgson [2013] WASC 237
Tey v Plotz [No 2] [2011] WASC 34
Y v X [2024] WASCA 104
WHITBY J:
(This judgment was delivered extemporaneously on the 10 October 2024 and has been edited from the transcript and to include references to authorities.)
On 23 April 2024, the appellant was convicted of four offences that occurred in Karrinyup on 8 October 2023. Those four offences and the sentence imposed for each are:
(1)PE 55253/2023 - failed to comply with a direction to stop, contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA) (RTAA) - fine $1,000;
(2)PE 55254/2023 - drove a vehicle with a forged, replica or false plate on the road, contrary to s 36(2)(e) of the RTAA - fine $400;
(3)PE 55255/2023 - used an unlicensed vehicle on a road, contrary to s 4(2) of the Road Traffic…
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- Case
- [2024] WASC 372
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the magistrate had made any errors of law that warranted the intervention of the appellate court. The appellant argued that the magistrate had erred in allowing an amendment of the charge, in intervening to prevent questions being asked in cross-examination, and in failing to consider whether the appellant had a reasonable excuse for not stopping her vehicle. The appellant also claimed that the magistrate had displayed apprehended bias. The court had to consider whether these alleged errors had resulted in a miscarriage of justice or a denial of natural justice.
The court found that the magistrate had not erred in law in relation to the amendment of the charge, the intervention in cross-examination, or the consideration of whether the appellant had a reasonable excuse for not stopping her vehicle. The court held that the magistrate's intervention in the cross-examination was appropriate and necessary to prevent the appellant from asking irrelevant and potentially prejudicial questions. The court also found that the magistrate had not displayed apprehended bias. The court held that the appellant's failure to stop her vehicle was not reasonable and that there had been no miscarriage of justice. The court dismissed the appeal.
The Supreme Court of Western Australia dismissed the appeal and affirmed the conviction of the appellant. The court held that there had been no error of law and no miscarriage of justice. The decision of the magistrate was upheld, and the conviction of the appellant for failing to stop her vehicle when directed to do so by a police officer was affirmed.
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