McGuinness v Heffernan - [2017] WASCA 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McGUINNESS -v- HEFFERNAN [2017] WASCA 194

CORAM: BUSS P
MAZZA JA
HALL J

HEARD: 15 AUGUST 2017

DELIVERED : 24 OCTOBER 2017

FILE NO/S: CACR 71 of 2017

BETWEEN: KENNETH GERARD McGUINNESS
Appellant
AND
CIARA HEFFERNAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
File No  :SJA 1060 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appeal from a single judge decision on an appeal from the Magistrates Court - Failure to comply with a requirement to supply a sample of breath - s 67 Road Traffic Act 1974 (WA) - Whether appellant had a substantial reason for non-compliance - Whether appellant denied opportunity to adduce expert evidence on this issue - Whether additional evidence provided on appeal is admissible - Whether any miscarriage of justice established

Legislation:

Road Traffic Act 1974 (WA), s 66, s 67
Criminal Appeals Act 2004 (WA), s 14

Result:

Application for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T C Russell

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Leary v The Queen (1975) WAR 133
McGuinness v Heffernan [2017] WASC 40
O'Connell v The State of Western Australia [2012] WASCA 96
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JUDGMENT OF THE COURT: The appellant was convicted of two charges following a trial in the Magistrates Court. The first charge was that on 30 January 2016 at North Perth he behaved in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code (WA). The second charge was that he failed to comply with the requirement to provide a sample of breath for analysis contrary to s 67(2)(a) of the Road Traffic Act 1974 (WA). He was fined $1,000 on the first charge and $900 on the second charge. His driver's licence was disqualified on the second charge for 10 months. He was ordered to pay the prosecution costs.
The appellant sought leave to appeal against his conviction on the second charge only to a single judge of the General Division. The basis of that appeal was that there had been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment. It was asserted that an adjournment would have given the appellant the opportunity to lead expert medical evidence in support of his claim that he was unable to comply with the requirement to provide a breath sample. The appeal was heard by Le Miere J, who concluded that the ground of appeal had no reasonable prospect of success. Leave to appeal was refused and the appeal was dismissed: McGuinness v Heffernan [2017] WASC 40. The appellant was ordered…

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 McGuinness v Heffernan

Details

AGLC: McGuinness v Heffernan [2017] WASCA 194
Case: [2017] WASCA 194
Decision Date: 24 OCTOBER 2017

CaseChat Overview and Summary

The appellant, Mr McGuinness, seeks leave to appeal against the decision of Le Miere J to refuse him leave to appeal his conviction in the Magistrates Court on a charge of failing to comply with a requirement to provide a sample of breath for analysis. The appellant was convicted of two charges in the Magistrates Court: one for disorderly behaviour in a public place and another for failing to comply with a requirement to provide a sample of breath for analysis. The latter conviction led to a disqualification from driving for 10 months and a fine of $900. The appellant appealed the conviction for failure to comply with a requirement to provide a sample of breath for analysis, arguing that there had been a miscarriage of justice because the magistrate had not raised with him the option of seeking an adjournment. He argued that an adjournment would have given him the opportunity to lead expert medical evidence in support of his claim that he was unable to comply with the requirement to provide a breath sample. The appeal was dismissed by Le Miere J, who concluded that the ground of appeal had no reasonable prospect of success. The appellant now seeks leave to appeal to this court on the basis that his lawyer in the appeal before Le Miere J failed to make arrangements for him to provide additional medical evidence in support of his appeal.

The primary legal issue before the court is whether the appellant's ground of appeal has a reasonable prospect of success. The court must also consider whether the appellant was denied an opportunity to adduce expert evidence on the issue of his substantial reason for non-compliance with the requirement to provide a sample of breath for analysis. Another issue is whether additional evidence provided on appeal is admissible and whether any miscarriage of justice has been established. The court's reasoning and outcome are based on the evidence presented and the legal principles applicable to the case. The court found that the appellant's ground of appeal had no reasonable prospect of success and that the decision of Le Miere J was correct. The court also found that the appellant was not denied an opportunity to adduce expert evidence, that additional evidence provided on appeal was not admissible, and that no miscarriage of justice had been established.

The court refused the appellant leave to appeal and dismissed the appeal. The court also ordered the appellant to pay the respondent's costs. The court found that the appellant's ground of appeal had no reasonable prospect of success and that the decision of Le Miere J was correct. The court also found that the appellant was not denied an opportunity to adduce expert evidence, that additional evidence provided on appeal was not admissible, and that no miscarriage of justice had been established. The court concluded that the appeal should be dismissed and that the appellant should pay the respondent's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The appellant was convicted of two charges following a trial in the Magistrates Court. The first charge was that on 30 January 2016 at North Perth he behaved in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code (WA). The second charge was that he failed to comply with the requirement to provide a sample of breath for analysis contrary to s 67(2)(a) of the Road Traffic Act 1974 (WA). He was fined $1,000 on the first charge and $900 on the second charge. His driver's licence was disqualified on the second charge for 10 months. He was ordered to pay the prosecution costs. The appellant sought leave to appeal against his conviction on the second charge only to a single judge of the General Division. The basis of that appeal was that there had been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment. It was asserted that an adjournment would have given the appellant the opportunity to lead expert medical evidence in support of his claim that he was unable to comply with the requirement to provide a breath sample. The appeal was heard by Le Miere J, who concluded that the ground of appeal had no reasonable prospect of success. Leave to appeal was refused and the appeal was dismissed: McGuinness v Heffernan [2017] WASC 40. The appellant was ordered to pay the respondent's costs. The appellant now seeks leave to appeal to this court. The appellant's ground of appeal to this court is that the lawyer who represented him before Le Miere J failed to make arrangements for the appellant to provide additional medical evidence in support of his appeal. The appellant asserts that if he had been given such an opportunity he could have established that his conviction for the failure to comply with a requirement to provide a breath sample was a miscarriage of justice. The appellant also complains that he was not informed that if his appeal was rejected he would be liable to pay the respondent's costs. He also raises what he suggests are inconsistencies in the evidence of the police witnesses and in the summary of facts given by Le Miere J. For the reasons that follow, none of the grounds of appeal have any reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Accordingly, leave to appeal should be refused with the consequence that the appeal is dismissed. The events that led to the charges were alleged to have occurred on the evening of 30 January 2016 and the early hours of 31 January 2016. The appellant appeared in the Magistrates Court on 19 February 2016 and again on 17 March 2016. On each of these occasions he was represented by counsel. On 17 March 2016 he entered pleas of not guilty to both charges and the matter was set down for trial on 1 August 2016. The appellant was self‑represented at the trial on 1 August 2016. At the beginning of the trial the magistrate explained the procedure. In particular the following exchange occurred:HIS HONOUR: When the prosecution have called the witnesses that they intend to call, I will turn to you at that stage and ask you if you want to give evidence.ACCUSED: Sure.HIS HONOUR: Or call any witnesses. You don't have to. I will explain that to you in … ACCUSED: I don't have any witnesses, your Honour (ts 6).

Ratio Decidendi

Legal Principle Established

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