KUKURS -v- HODGSON [2012] WASC 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 181
Published:	30/05/2012
Case No:	SJA:1017/2012	Heard:	17 MAY 2012
Coram:	HALL J	Delivered:	17/05/12
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
PDF Version

Parties:	JOHN LAIMONS KUKURS PAUL RICHARD HODGSON
Catchwords:	Criminal law Traffic offence Failing to comply with traffic signal Whether failure was authorised Whether a direction by a pilot of a convoy was made by an authorised person Onus on defendant to prove exception Whether exception proved
Legislation:	Criminal Code (WA), s 24 Criminal Procedure Act 2004 (WA), s 78(3) Road Traffic Code 2000 (WA), r 40, r 271, r 272, R 286, r 289
Case References:	Mowday v The State of Western Australia [2007] WASCA 165 Mulhall v Barker [2010] WASC 359 Selby v Pennings (1998) 19 WAR 520

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : KUKURS -v- HODGSON [2012] WASC 181 CORAM : HALL J HEARD : 17 MAY 2012 DELIVERED : 17 MAY 2012 PUBLISHED : 30 MAY 2012 FILE NO/S : SJA 1017 of 2012 BETWEEN : JOHN LAIMONS KUKURS

Appellant

AND

PAUL RICHARD HODGSON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P A ROTH

File No : MI 11649 of 2011

Catchwords:

Criminal law - Traffic offence - Failing to comply with traffic signal - Whether failure was authorised - Whether a direction by a pilot of a convoy was made by an authorised person - Onus on defendant to prove exception - Whether exception proved

(Page 2)

Legislation:

Criminal Code (WA), s 24

Criminal Procedure Act 2004 (WA), s 78(3)
Road Traffic Code 2000 (WA), r 40, r 271, r 272, R 286, r 289

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr E Leech

Respondent : Ms M J Paterson

Solicitors:

Appellant : Mr E Leech

Respondent : State Solicitor for Western Australia

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

Mowday v The State of Western Australia [2007] WASCA 165
Mulhall v Barker [2010] WASC 359
Selby v Pennings (1998) 19 WAR 520

(Page 3)

HALL J

Introduction

1 On 12 January 2012 the appellant was found guilty following a trial in the Magistrates Court of an offence of failing to comply with a traffic control signal contrary to reg 40(1) of the Road Traffic Code 2000 (WA). He now seeks leave to appeal against that conviction. At the hearing of the appeal I gave brief reasons and indicated that more detailed reasons would be published.

The facts

2 The objective facts were not in dispute. They are that on 13 August 2011 the appellant was performing duties as the driver of a pilot vehicle in a convoy travelling on Roe Highway. Due to the size of the heavy load being carried by the two trucks in the convoy, two pilot vehicles were required, one in front…

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 KUKURS v Hodgson

Details

AGLC: KUKURS v Hodgson [2012] WASC 181
Case: [2012] WASC 181
Decision Date: 30 MAY 2012

CaseChat Overview and Summary

In the matter of Kukurs v Hodgson, the appellant was charged with a traffic offence for failing to comply with a traffic signal. The dispute arose from whether the appellant's failure to comply with the traffic signal was authorised. The case was heard in the Court of Appeal. The respondent, Hodgson, was a police officer who issued the charge. The appellant argued that his failure to comply with the traffic signal was authorised by a direction from the pilot of a convoy. The court was required to determine whether the pilot of the convoy was an authorised person and whether the direction was made in accordance with the relevant legislation.

The court examined the relevant legislation and found that the pilot of a convoy is not an authorised person under the legislation. The court held that the onus was on the appellant to prove that an exception applied. The appellant failed to provide sufficient evidence to prove that the pilot of the convoy was an authorised person or that the direction was made in accordance with the relevant legislation. The court found that the appellant's failure to comply with the traffic signal was not authorised, and the charge was properly issued.

The court dismissed the appeal and refused leave to appeal. The court held that the appellant's argument that the pilot of the convoy was an authorised person was not supported by the evidence. The court also held that the appellant failed to prove that the direction was made in accordance with the relevant legislation. The court found that the appellant's failure to comply with the traffic signal was not authorised, and the charge was properly issued. The appeal was dismissed, and the conviction and penalty were upheld.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.