McMURRAY -v- GREEN [2006] WASC 90

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 90
Case No:	SJA:1041/2005	Heard:	12 DECEMBER 2005 & 15 MAY 2006
Coram:	HASLUCK J	Delivered:	15/05/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeals allowed Convictions quashed Complaints remitted to original court for hearing before a different Magistrate
Category:	B
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Parties:	DYLAN JOSEPH McMURRAY LAWRENCE CYRIL GREEN
Catchwords:	Criminal law Particular offences Driving offence Dangerous driving causing bodily harm Defence of sudden and extraordinary emergency Defence of acting to avoid actual and unlawful violence Standard of proof Defences to be negated by proof beyond reasonable doubt
Legislation:	Road Traffic Act 1974 (WA), s 59A Criminal Code (WA), s 25, s 31(3)
Case References:	Garrett v Nicholson (1999) 21 WAR 226 Holz v Lane [2002] WASCA 164 King v The Queen [2001] WASCA 198 Krakouer v The Queen (1998) 194 CLR 202 Verhoeven v Ninyette (1998) 101 A Crim R 24 Douglas v Muscat [2005] WASCA 46 Glennon v The Queen (1994) 179 CLR 1 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 MacLeod v Australian Securities Commission [1999] WASCA 35 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Mraz v The Queen (1955) 93 CLR 493 Reid v Readdy [1999] WASCA 208 Walters v Brean (1995) 22 MVR 383 Wilde v The Queen (1988) 164 CLR 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : McMURRAY -v- GREEN [2006] WASC 90 CORAM : HASLUCK J HEARD : 12 DECEMBER 2005 & 15 MAY 2006 DELIVERED : 15 MAY 2006 FILE NO/S : SJA 1041 of 2005 BETWEEN : DYLAN JOSEPH McMURRAY

Appellant

AND

LAWRENCE CYRIL GREEN

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MAGISTRATE S M WILSON

File No : BU 1505 of 2004, BU 1506 of 2004

Catchwords:

Criminal law - Particular offences - Driving offence - Dangerous driving causing bodily harm - Defence of sudden and extraordinary emergency - Defence of acting to avoid actual and unlawful violence - Standard of proof - Defences to be negated by proof beyond reasonable doubt

(Page 2)

Legislation:

Road Traffic Act 1974 (WA), s 59A

Criminal Code (WA), s 25, s 31(3)

Result:

Appeals allowed

Convictions quashed
Complaints remitted to original court for hearing before a different Magistrate

Category: B

Representation:

Counsel:

Appellant : Mr S J Jones

Respondent : Ms K E McDonald

Solicitors:

Appellant : Young & Young

Respondent : State Solicitor's Office

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

Garrett v Nicholson (1999) 21 WAR 226
Holz v Lane [2002] WASCA 164
King v The Queen [2001] WASCA 198
Krakouer v The Queen (1998) 194 CLR 202
Verhoeven v Ninyette (1998) 101 A Crim R 24

Case(s) also cited:

Douglas v Muscat [2005] WASCA 46
Glennon v The Queen (1994) 179 CLR 1
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253

(Page 3)

MacLeod v Australian Securities Commission [1999] WASCA 35
Morrison v Kiwi…

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 McMurray v Green

Details

AGLC: McMurray v Green [2006] WASC 90
Case: [2006] WASC 90
Decision Date

CaseChat Overview and Summary

Dylan Joseph McMurray appealed against his convictions for two counts of dangerous driving causing bodily harm, as charged under section 59A of the Road Traffic Act 1974 (WA). The appeal was heard by Hasluck J in the Supreme Court of Western Australia. The central issue before the court was whether the Magistrate had erred in applying the incorrect standard of proof when determining whether the prosecution had successfully negated McMurray's defences. Specifically, the court needed to decide whether the standard of proof beyond reasonable doubt, rather than the balance of probabilities, should have been applied.

The court found that the Magistrate had indeed erred in applying the standard of proof, which had a significant impact on the outcome of the case. The misdirection in the standard of proof was not merely a minor error but a fundamental one, as it affected the court's assessment of the credibility of the witnesses and the conclusions drawn from the evidence. Given the gravity of the error, the court concluded that the convictions should be quashed, and the matter should be remitted to the Magistrates Court for rehearing before a different magistrate.

The final orders of the court were that the appeals be allowed, the convictions be quashed, the complaints be remitted to the Magistrates Court for hearing and determination by a different magistrate, and McMurray be entitled to a certificate for costs of the appeal in the amount of $1,000 under section 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA).

Orders