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Lovell v Fullman

Lovell v Fullman

Case [2011] WASC 312 18 November 2011

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: LOVELL -v- FULLMAN [2011] WASC 312

CORAM: HALL J

HEARD: 27 JUNE 2011

DELIVERED : 18 NOVEMBER 2011

FILE NO/S: SJA 1014 of 2011

BETWEEN: AVON FRANCIS LOVELL
Appellant
AND
AUBREY FULLMAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P SHARRATT
File No  :JO 11691 of 2007, JO 11694 of 2007

Catchwords:

Criminal law - Appeal against convictions - Failure to provide a breath sample contrary to s 67A(1) and s 67(1) of the Road Traffic Act 1974 (WA) - Refusal to submit to preliminary test on the basis that appellant wished to give blood sample unlawful - No substantial reason for failure to comply - Whether guilty verdict unreasonable or could not be supported on the evidence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Investigation Act 2006 (WA), s 138
Magistrates Court Act 2004 (WA), s 31
Road Traffic Act 1974 (WA), s 66, s 67, s 67A

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms L A Eddy

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
Coatz v Webb (1989) 9 MVR 21
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Edwardes v Oliver [1987] WAR 103
Fox v Percy (2003) 214 CLR 118
Harvey v Matthews [1999] WASCA 58
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rasoolifard v Nicol [2001] WASCA 180
Smart v Albuquerque [2011] WASCA 231
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

HALL J:

Introduction

On 20 January 2011 the appellant was convicted of one charge of failing to provide a sample of his breath for a preliminary test contrary to s 67A(1) of the Road Traffic Act 1974 (WA) and one charge of failing to provide a sample of his breath for analysis contrary to s 67(2) of the same Act. Those convictions followed a trial that took place in the Magistrates Court over four days in 2010 and 2011. The appellant now seeks leave to appeal against those convictions.

The prosecution case

Both offences were alleged to have been committed on the evening of 12 September 2007. At about 6.54 pm, police officers conducting routine traffic patrol duties in Greenwood pulled over a car being driven by the appellant. One of the officers told the appellant that he was required to undergo a preliminary breath test. The appellant declined to do so. This failure is the basis for the charge under s 67A.
The appellant was then required by the police…

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 Lovell v Fullman

Details

AGLC: Lovell v Fullman [2011] WASC 312
Case: [2011] WASC 312
Decision Date: 18 NOVEMBER 2011

CaseChat Overview and Summary

The appellant, Lovell, appealed against his convictions for failing to provide a breath sample as required under sections 67A(1) and 67(1) of the Road Traffic Act 1974 (WA). The primary issue before the court was whether the refusal to submit to a preliminary breath test on the basis that the appellant wished to give a blood sample was unlawful. Additionally, the court needed to determine if there was a substantial reason for the appellant's failure to comply with the request and whether the guilty verdict was unreasonable or could not be supported by the evidence.

The court examined the appellant's contention that his refusal to take the breath test was lawful because he intended to give a blood sample instead. The court found that this reasoning was not sufficient to justify the refusal to comply with the statutory requirements. The court emphasised that the appellant's preference for a blood sample did not constitute a substantial reason for non-compliance with the law. The court held that the appellant's actions were unlawful and the evidence was sufficient to support the guilty verdict.

The court found that the appellant's convictions were lawful and the evidence was sufficient to support the verdict. The appeal was dismissed, and the original convictions were upheld. The court held that the appellant's refusal to take the breath test was unlawful and there was no substantial reason for his failure to comply with the law. The court concluded that the guilty verdict was reasonable and could be supported by the evidence presented.

Orders