Kelly v WA Police - [2024] WASC 372

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
JAD v McRae [2022] WASC 220
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
Tobin v Dodd [2004] WASCA 288
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…

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.

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Details

Case: [2024] WASC 372
Decision Date: 11 OCTOBER 2024

CaseChat Overview and Summary

The case of Kelly v WA Police involved an appeal by the appellant, Kelly, against a conviction for failing to stop her vehicle when directed to do so by a police officer. The appeal was heard by the Supreme Court of Western Australia, which was asked to determine whether the magistrate had erred in law in relation to the amendment of the charge by the magistrate, the magistrate's intervention in the cross-examination, and whether the appellant had a reasonable excuse for not stopping her vehicle. The case also involved a claim of apprehended bias by the appellant.

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.

Orders