LINGARD -v- DEARNLEY [2007] WASCA 82
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 82 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1079/2004 | 20 OCTOBER 2006 | |
| Coram: | McLURE JA BUSS JA | 24/04/07 | |
| 53 | Judgment 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(WA), s 23, s 43, s 47(1) Criminal Appeals Act 2004 (WA), s 9, s 18, s 27 Criminal Procedure (Summary) Act 1902 (WA) (repealed) Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 3, s 4 Interpretation Act 1984 (WA), s 36, s 37 Justices Act 1902 (WA) (repealed), s 187(1), s 199, s 206A Road Traffic Code 2000 (WA), reg 126(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 8 Supreme Court Act 1935 (WA), s 61(3) |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
- Appellant
AND
NICHOLAS DEARNLEY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WHEELER JA
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- Lingard v Dearnley [2007] WASCA 82
- Case
- [2007] WASCA 82
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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).
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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