Krakouer v Durka - [2003] WASCA 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: KRAKOUER -v- DURKA [2003] WASCA 141

CORAM: TEMPLEMAN J

HEARD: 1 APRIL 2003

DELIVERED : 1 APRIL 2003

PUBLISHED : 25 JUNE 2003

FILE NO/S: SJA 1146 of 2002

BETWEEN: MICHAEL DENNIS KRAKOUER
Appellant
AND
STEFAN JOHN DURKA
Respondent

Catchwords:

Criminal law - Dangerous driving causing death - Appeal against conviction - Conviction in Petty Sessions by preferring one of two contradictory versions of accident - Finding of fabrication without basis put in issue

Legislation:

Justices Act 1902 (WA), s 1999

Legal Practitioners Act 1893, s 58W

Official Prosecutions (Defendants' Costs) Act 1973, s 5(4)

Result:

Appeal allowed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr I D Hope
Respondent: Ms S M De Maio & Mr L Fox

Solicitors:

Appellant: Ian Hope
Respondent: State Director of Public Prosecutions

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

Liberato v The Queen (1985) 159 CLR 507

Case(s) also cited:

A M Smith v The Queen [1976] WAR 97
Daniels v Burfield (1994) 125 ALR 33
Gipp v The Queen (1998) 194 CLR 106
Jiminez v The Queen (1992) 59 A Crim R 309
Kaighin v The Queen (1990) 1 WAR 390
M v The Queen (1994) 181 CLR 487
McBride v The Queen (1966) 115 CLR 44
Morris v The Queen (1987) 163 CLR 454
Shepherd v The Queen (1990) 170 CLR 573
Vrisakis v Australian Securities and Investments Commission (1993) 9 WAR 395

TEMPLEMAN J: This is an appeal against conviction on three charges, two of causing death by dangerous driving and one of causing bodily harm by dangerous driving. The charges arose out of a traffic incident on 9 March 2002.
The appellant, as I shall call him because he was given leave to appeal to this Court, was driving a motor vehicle near York on the night of 9 March 2002. He had with him in the car another eight people, despite the fact that it was a relatively small Lancer vehicle.
Sitting in the passenger seat beside him was his son. In the back of the vehicle there were three adults and one child. The adults were Dora Hayward, Rhonda Pamela Hayward and Jacqueline Ann Collard. The child was Ms Collard's son Ashley whom she was holding on her lap. None of the passengers in the rear of the car were wearing seat belts. There were three children behind the rear passenger seat, the car being a hatchback and there being some small amount of space there.
The accident happened about 3 kilometres east of York on the Quairading/York Road at about 12.56 am, that is, early in the morning, of 9 March 2002. It seems to be common ground that the accident occurred after the vehicle veered off the bitumen onto gravel to the left of the road on which it was travelling, then travelled back across the bitumen, leaving it on the other side, on the right-hand side, and hitting a tree or trees. As a result…

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 Krakouer v Durka

Details

AGLC: Krakouer v Durka [2003] WASCA 141
Case: [2003] WASCA 141
Decision Date: 25 JUNE 2003

CaseChat Overview and Summary

The case of Krakouer v Durka was heard in the Supreme Court of South Australia. The respondent, Krakouer, was convicted in the Magistrates Court for causing death by dangerous driving. Krakouer appealed against his conviction, arguing that the magistrate erred in preferring one of two contradictory versions of the accident, without considering whether the alternative version was fabricated. The appellant argued that the magistrate's failure to address the issue of fabrication resulted in an unsafe and unreasonable conviction.

The primary legal issue before the court was whether the magistrate erred in law by failing to address the issue of fabrication when preferring one version of the accident over the other. The court considered whether the magistrate was required to determine whether the alternative version of the accident was fabricated, and if so, whether this omission resulted in an unsafe and unreasonable conviction. The court also considered whether the evidence supported the conviction and whether the magistrate's failure to address the issue of fabrication was a significant error.

The court found that the magistrate did not err in law by failing to address the issue of fabrication. The court held that the magistrate was not required to determine whether the alternative version of the accident was fabricated, as it was not put in issue by the parties. The court also found that the evidence supported the conviction and that the magistrate's failure to address the issue of fabrication was not a significant error. The court held that the conviction was safe and reasonable, and dismissed the appeal.

The Supreme Court of South Australia dismissed the appeal and affirmed the conviction of the respondent for causing death by dangerous driving. The court held that the magistrate did not err in law by failing to address the issue of fabrication, as it was not put in issue by the parties. The court also found that the evidence supported the conviction and that the magistrate's failure to address the issue of fabrication was not a significant error. The conviction was therefore safe and reasonable.

Orders