LINGARD -v- DEARNLEY [No 5] [2008] WASCA 29

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 29
Court:	THE COURT OF APPEAL (WA)
Case No:	SJA:1079/2004	Heard:	17 DECEMBER 2007
Coram:	STEYTLER P MILLER JA BEECH AJA	Delivered:	17/02/08
No of pages:	30	Judgment Part:	1 of 1
Result:	Application for review dismissed
Category:	B
PDF Version

Parties:	GARY EDWARD LINGARD NICHOLAS DEARNLEY
Catchwords:	Traffic law Road traffic offence Regulation 126(2) of the Road Traffic Code 2000 (WA) Minor traffic offence Evidence Second review of decision of single judge of appeal refusing appellant's application for leave to appeal 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)
Legislation:	Criminal Appeals Act 2004 (WA) Justices Act 1902 (WA), s 187(1), s 206A Road Traffic Code 2000 (WA), reg 126(2) Supreme Court Act 1935 (WA), s 62
Case References:	Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hedge v Thurstun [2001] WASCA 43 Lingard v Dearnley [2004] WASCA 306 Lingard v Dearnley [2005] WASCA 122 Lingard v Dearnley [2007] WASCA 82 Mitchell v Myers (1955) 57 WALR 49 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Weal v Bottom (1966) 40 ALJR 436

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LINGARD -v- DEARNLEY [No 5] [2008] WASCA 29 CORAM : STEYTLER P

MILLER JA

BEECH AJA

HEARD : 17 DECEMBER 2007 DELIVERED : 18 FEBRUARY 2008 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

Citation : LINGARD -v- DEARNLEY [2005] WASCA 122

File No : SJA 1079 of 2004

(Page 2)

Catchwords:

Traffic law - Road traffic offence - Regulation 126(2) of the Road Traffic Code 2000 (WA) - Minor traffic offence - Evidence - Second review of decision of single judge of appeal refusing appellant's application for leave to appeal - 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)

Legislation:

Criminal Appeals Act 2004 (WA)

Justices Act 1902 (WA), s 187(1), s 206A
Road Traffic Code 2000 (WA), reg 126(2)
Supreme Court Act 1935 (WA), s 62

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D M Meagher

Respondent : Ms J C Pritchard

Solicitors:

Appellant : Denis Meagher

Respondent : State Solicitor for Western Australia

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

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hedge v Thurstun [2001] WASCA 43
Lingard v Dearnley [2004] WASCA…

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 Lingard v Dearnley [No 5]

Details

AGLC: Lingard v Dearnley [No 5] [2008] WASCA 29
Case: [2008] WASCA 29
Decision Date: 18 FEBRUARY 2008

CaseChat Overview and Summary

In Lingard v Dearnley, the defendant was convicted of a minor traffic offence in the Magistrates Court of Western Australia. The defendant sought to appeal the conviction but was refused leave to appeal by a single judge. The defendant then applied for a second review of the single judge's decision, which was ultimately dismissed by the Court of Appeal. The court was required to determine whether the single judge's decision was correct and whether the application for leave to appeal should be granted. The court considered the evidence and arguments presented and determined that the single judge's decision was correct. The court held that the application for leave to appeal was an appealable matter and was governed by the Justices Act 1902 (WA), which was in force at the time of the single judge's decision. The court found that the single judge had correctly applied the law and that the application for leave to appeal should be dismissed. The application for review was ultimately dismissed.

Orders

Orders of the court

Application for review 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.