KUYER -v- SMALL [2012] WASC 442

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 442
Case No:	SJA:1042/2012	Heard:	ON THE PAPERS
Coram:	BEECH J	Delivered:	21/11/12
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal upheld Judgment of acquittal entered
Category:	B
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Parties:	PATRICK NICHOLAS KUYER RYAN JOHN SMALL
Catchwords:	Criminal law and procedure Driving while not authorised to do so Whether averment provision applied to the charge Turns on own facts
Legislation:	Road Traffic Act 1974 (WA), s 49, s 98
Case References:	Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40 Jambajimba v Svikart (1984) 71 FLR 287 Starling v Edmunds [2012] WASC 14 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : KUYER -v- SMALL [2012] WASC 442 CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 21 NOVEMBER 2012 FILE NO/S : SJA 1042 of 2012 BETWEEN : PATRICK NICHOLAS KUYER

Appellant

AND

RYAN JOHN SMALL

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G R SMITH

File No : PE 53571 of 2011

Catchwords:

Criminal law and procedure - Driving while not authorised to do so - Whether averment provision applied to the charge - Turns on own facts

Legislation:

Road Traffic Act 1974 (WA), s 49, s 98

(Page 2)

Result:

Appeal upheld

Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : Frichot & Frichot

Respondent : State Solicitor for Western Australia

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

Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40
Jambajimba v Svikart (1984) 71 FLR 287
Starling v Edmunds [2012] WASC 14 (S)

(Page 3)

BEECH J

Introduction

1 The appellant appeals against his conviction of driving while not authorised to do so and while his authority to drive was suspended. The respondent concedes that the appeal should succeed. For the reasons that follow, I consider the concession is rightly made, and would uphold the appeal.

The charge

2 The appellant was charged that on 5 November 2011 at Hamersley he drove a specified car 'whilst not being a person authorised by pt IVA of the Road Traffic Act 1974 (WA) (the Act) and whose authority to drive was at the time suspended'.

3 That charge is an offence against s 49(1)(a) and s 49(3)(c) of the Act. Section 49(1)(a) provides that a person who drives a motor vehicle on a road while not authorised under pt IVA to do so commits an offence. Section 49(3)(c) creates a different penalty regime in respect of an offence under s 49(1)(a) that is committed by a person whose authority to drive is for the time being suspended (with an immaterial exception).

The trial

4 The prosecution case at trial was that, prior to 5 November 2011, the appellant's driver's licence had been suspended for six months. It is common ground that notice to the appellant was necessary for…

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 Kuyer v Small

Details

AGLC: KUYER -v- SMALL [2012] WASC 442
Case: [2012] WASC 442
Decision Date: 21 NOVEMBER 2012

CaseChat Overview and Summary

The case of Kuyer v Small involved the defendant, Small, who was charged with driving a vehicle while not authorised to do so. The central issue before the court was whether the averment provision in the relevant statute applied to the charge against Small. The court was tasked with determining the applicability of this provision, which would have implications for the admissibility of certain evidence and the potential for a directed verdict in Small's favour. This decision hinged on the specific facts of the case and the interpretation of the statutory language.

The court considered whether the statutory language was broad enough to encompass the situation where a person drives a vehicle without the requisite authorisation. In examining the statutory provisions and relevant case law, the court concluded that the averment provision was not applicable to the charge against Small. This interpretation was based on the specific language of the statute and the context in which it was used. The court found that the provision did not extend to cover the scenario presented in this case, thereby impacting the admissibility of certain evidence and the potential for a directed verdict.

As a result of this interpretation, the court held that the averment provision did not apply to Small's charge. Consequently, the appeal was upheld, and a judgment of acquittal was entered in Small's favour. This decision clarified the scope of the averment provision and its application to charges of driving without authorisation, providing guidance for future cases involving similar charges.

Orders

Orders of the court

Appeal upheld

Judgment of acquittal entered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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