MCGUINNESS -v- HEFFERNAN [2017] WASC 40

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 40
Case No:	SJA:1060/2016	Heard:	6 FEBRUARY 2017
Coram:	LE MIERE J	Delivered:	1/03/17
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	KENNETH GERARD MCGUINNESS CIARA HEFFERNAN
Catchwords:	Criminal law Appeal against decision Failure to raise option of seeking an adjournment No miscarriage of justice No substantial miscarriage of justice Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2), s 39(1), s 40(1)(e) Road Traffic Act 1974 (WA), s 67(2)(a), s 67(5)
Case References:	Leary v The Queen (1975) WAR 133 O'Connell v The State of Western Australia [2012] WASCA 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : MCGUINNESS -v- HEFFERNAN [2017] WASC 40 CORAM : LE MIERE J HEARD : 6 FEBRUARY 2017 DELIVERED : 1 MARCH 2017 FILE NO/S : SJA 1060 of 2016 BETWEEN : KENNETH GERARD MCGUINNESS

Appellant

AND

CIARA HEFFERNAN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE A D HILLS-WRIGHT

File No : PE 5589 of 2016, PE 5590 of 2016

Catchwords:

Criminal law - Appeal against decision - Failure to raise option of seeking an adjournment - No miscarriage of justice - No substantial miscarriage of justice - Turns on own facts

Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 39(1), s 40(1)(e)
Road Traffic Act 1974 (WA), s 67(2)(a), s 67(5)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S M Shadgett

Respondent : Mr J F Bennett

Solicitors:

Appellant : Shadgett Legal

Respondent : State Solicitor for Western Australia

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

Leary v The Queen (1975) WAR 133
O'Connell v The State of Western Australia [2012] WASCA 96

LE MIERE J

Summary

1 The appellant was convicted of failing to comply with a requirement to provide a sample of breath analysis pursuant to s 67(2)(a) of the Road Traffic Act 1974 (WA) (RTA). He was fined $900 and disqualified from holding or obtaining a driver's licence for 10 months. The conviction followed a trial in the Magistrate's Court at which the appellant was self-represented. The essence of the appellant's defence was a defence under s 67(5) of the RTA that there was a substantial reason for his failure to comply other than a desire to avoid providing information that might be used as evidence. The substantial reason was that he was unable to comply because of his medical condition and injuries he had sustained in an incident earlier that day.

2 The appellant now seeks leave to appeal and to appeal against his conviction. The appellant seeks leave to appeal on the ground that there has been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment for the purpose of leading expert medical evidence to…

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] WASC 40
Case: [2017] WASC 40
Decision Date: 1 MARCH 2017

CaseChat Overview and Summary

The case of McGuinness v Heffernan was heard in the court, where the appellant, McGuinness, sought to appeal a decision made against him. The nature of the dispute revolves around the failure to raise the option of seeking an adjournment, and the consequential absence of a miscarriage of justice. The court was tasked with determining whether the failure to seek an adjournment resulted in a substantial miscarriage of justice, as well as whether the matter turned on its own facts.

The legal issues at hand involved whether the appellant's failure to seek an adjournment constituted a miscarriage of justice and whether such a miscarriage, if any, was substantial enough to warrant an appeal. The court had to examine the specific circumstances of the case to ascertain whether the outcome was dependent on unique facts or whether it could be generalised to similar situations. Additionally, the court was required to consider the broader implications of allowing such appeals on the administration of justice.

In delivering its judgment, the court found that the appellant's failure to seek an adjournment did not result in a miscarriage of justice. The court held that the absence of a substantial miscarriage of justice meant that the appeal could not proceed. Furthermore, the court concluded that the matter turned on its own facts, which did not necessitate a departure from the general principles governing adjournments in similar cases. Consequently, the appeal was dismissed, and leave to appeal was refused. The court's reasoning was based on a detailed examination of the specific circumstances and the legal principles applicable to the case at hand.

Orders

Orders of the court

Leave to appeal refused

Appeal dismissed

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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