Mann v Vinicombe - [2023] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MANN -v- VINICOMBE [2023] WASC 250
CORAM:   STRK J
HEARD:   2 NOVEMBER 2021
DELIVERED          :   17 JULY 2023
FILE NO/S:   SJA 1082 of 2020
BETWEEN:   VICTORIA LOUISE MANN
Appellant
AND
DAVID VINICOMBE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   MI 1816 of 2019

Catchwords:

Criminal law - Appeal against conviction - Application to adduce additional evidence pursuant to Criminal Appeals Act 2004 (WA) s 40(1)(e) - Whether there has been a miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic Act 1974 (WA)
Road Traffic (Administration) Act 2008 (WA)

Result:

Applications to adduce additional evidence refused
Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	S Pack

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office

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

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tsang v Francis [2021] WASCA 131
Wells v The State of Western Australia [2017] WASCA 27

Table of Contents

Introduction

The trial

Evidence of Senior Constable Cross

Evidence of the appellant

Reasons for decision

Statutory framework

Grounds of appeal

Additional evidence

Applicable legal principles

Appellant's application

Respondent's application

Application to adduce additional evidence - disposition

Disposition

STRK J:

Introduction

These reasons concern the appellant's appeal against conviction recorded on 5 October 2020. It had been alleged that on 10 February 2019, the appellant drove a motor vehicle recklessly in the area of Mundaring by exceeding the applicable speed limit by 45 kilometres per hour or more, contrary to s 60A(2)(b) of the Road Traffic Act 1974 (WA) (being charge MI 1816/2019).
Following a trial, the appellant was found to have contravened s 60A(2)(b) of the Road Traffic Act, was ordered to pay a fine in the amount of $500, and was disqualified from holding a licence for the period of six months.[1]
[1] ts 17 - 20 (5 October 2020).
On 16 October 2020, the appellant filed an appeal against her conviction. She has also applied to adduce additional evidence for the purpose of the appeal. It was subsequently ordered that the application for leave to appeal and the application to adduce additional evidence be heard at the same time as the appeal, which was heard on 2 November 2021.
For the reasons which follow, the application to adduce additional evidence should be dismissed, leave to appeal should be granted, the appeal allowed, and a judgment of acquittal entered.

The trial

The prosecution case was that on Sunday 10 February 2019 at about 2.30 pm, the appellant was detected driving on Great Eastern Highway in Mundaring at a speed of 132 kilometres per hour in an 80 kilometres per hour zone. The prosecution called one witness, Senior Constable Kimberley Philip Cross.[2]

Evidence of Senior Constable Cross

[2] ts 5 - 12…

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 Mann v Vinicombe

Details

AGLC: Mann v Vinicombe [2023] WASC 250
Case: [2023] WASC 250
Decision Date

CaseChat Overview and Summary

Victoria Louise Mann appeals against her conviction for driving a motor vehicle recklessly. The appeal was heard on 2 November 2021 and this decision was delivered on 17 July 2023. The appellant applied to adduce additional evidence in the form of her Google Maps history, while the respondent opposed the application and sought to adduce additional evidence to rebut the appellant's application. The court found that the applications to adduce additional evidence should be dismissed, leave to appeal should be granted, the appeal allowed, and a judgment of acquittal entered. In arriving at this decision, the court noted that the only evidence adduced by the prosecution to prove that the appellant was the driver of the Kia was that the driver supplied Senior Constable Cross with the appellant's driver's licence. That evidence was incapable of establishing beyond reasonable doubt that the appellant was the person who supplied it. The court found that there were ways the prosecution could have sought to establish that the appellant was the person who was the driver of the Kia on the date of the alleged offence, but in the absence of any such evidence, the prosecution case was incapable of excluding the reasonable inference that a person other than the appellant was driving the Kia on 10 February 2019 and the appellant could not, therefore, be convicted. It was not open to the learned magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. Accordingly, there has been a miscarriage of justice.

Orders