Lingard v Dearnley

Case [2007] WASCA 82


LINGARD -v- DEARNLEY [2007] WASCA 82



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2007] WASCA 82
THE COURT OF APPEAL (WA)
Case No:SJA:1079/200420 OCTOBER 2006
Coram:McLURE JA
BUSS JA
24/04/07
53Judgment Part:1 of 1
Result: Application for review to be resolved in accordance with s 62(3), (4) and (5)
of the Supreme Court Act 1935 (WA)
B
PDF Version
Parties:GARY EDWARD LINGARD
NICHOLAS DEARNLEY

Catchwords:

Road traffic offence
Regulation 126(2) of the Road Traffic Code 2000 (WA)
Review of the decision of a single Judge of appeal refusing appellant's application for leave to appeal
Whether the Magistrate erred in his findings on the evidence and as to credibility
New argument not raised below
Whether the Magistrate erred in failing to find the point where collision occurred
Whether the Magistrate erred in excluding certain evidence
Turns on own facts
Practice and procedure
Governing legislation for applications for leave to appeal under the Justices Act 1902 (WA) that were pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act 2004 (WA)
Applicable statutory test for such applications for leave to appeal

Legislation:

Acts Amendment (Court of Appeal) Act 2004 (WA), s 31 s 36, s 38
Courts Legislation Amendment and Repeal Act 2004 (WA), s 23, s 43, s 47(1)
Criminal Appeals Act 2004 (WA), s 9, s 18, s 27
Criminal Procedure (Summary) Act 1902 (WA) (repealed)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 3, s 4
Interpretation Act 1984 (WA), s 36, s 37
Justices Act 1902 (WA) (repealed), s 187(1), s 199, s 206A
Road Traffic Code 2000 (WA), reg 126(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 8
Supreme Court Act 1935 (WA), s 61(3)

Case References:

Barry v The State of Western Australia [2007] WASCA 12
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Dearman v Dearman (1908) 7 CLR 549
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Fingleton v The Queen (2005) 79 ALJR 1250
Fox v Percy (2003) 214 CLR 118
Hedge v Thurstun [2001] WASCA 43
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Lingard v Dearnley [2004] WASCA 306
Meiklejohn v Central Norseman Gold Corporation Ltd (1997) 18 WAR 368
Mitchell v Myers (1955) 57 WALR 49
Pantorno v The Queen (1989) 166 CLR 466
Pezzino v The State of Western Australia [2006] WASCA 131
Samuels v Western Australia (2005) 30 WAR 473
Sherkam v Parker [2002] WASCA 179


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LINGARD -v- DEARNLEY [2007] WASCA 82 CORAM : McLURE JA
    BUSS JA
HEARD : 20 OCTOBER 2006 DELIVERED : 24 APRIL 2007 FILE NO/S : SJA 1079 of 2004 BETWEEN : GARY EDWARD LINGARD
    Appellant

    AND

    NICHOLAS DEARNLEY
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : WHEELER JA

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AGLC
Lingard v Dearnley [2007] WASCA 82
Case
[2007] WASCA 82
Decision Date

CaseChat Overview and Summary

In the case of Lingard v Dearnley, the appellant sought a review of the decision made by a single Judge of appeal who had refused his application for leave to appeal against a conviction for a road traffic offence. The dispute centred on the appellant's contention that the Magistrate had erred in his findings based on the evidence and credibility, and also that the Magistrate had failed to identify the point of collision. The case was heard in the Supreme Court of Western Australia.

The primary legal issue the court had to decide was whether the Magistrate had made an error in his findings on the evidence and as to credibility, a point not previously raised in the lower court. The court also needed to consider if the Magistrate had erred in failing to find the location of the collision and whether he had improperly excluded certain evidence. The applicable legal framework for these considerations was the statutory test for applications for leave to appeal, as outlined in the Justices Act 1902 (WA) which governed applications pending before the repeal and the commencement of the Criminal Appeals Act 2004 (WA).

The court found that the appeal did not meet the statutory test for leave to appeal as outlined in the Justices Act 1902 (WA). The appeal was deemed to be frivolous as the arguments presented were not previously raised in the lower court and the points raised did not constitute a substantial miscarriage of justice. Consequently, the application for review was resolved in accordance with sections 62(3), (4) and (5) of the Supreme Court Act 1935 (WA).

Orders

Orders of the court

Application for review to be resolved in accordance with s 62(3), (4) and (5)

of the Supreme Court Act 1935 (WA)

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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