McMurray v Green
[2006] WASC 90
McMURRAY -v- GREEN [2006] WASC 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 90 | |
| Case No: | SJA:1041/2005 | 12 DECEMBER 2005 & 15 MAY 2006 | |
| Coram: | HASLUCK J | 15/05/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed Convictions quashed Complaints remitted to original court for hearing before a different Magistrate | ||
| B | |||
| PDF Version |
| 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
- 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 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
(Page 4)
- HASLUCK J:
Introduction
1 This is an appeal against the decision of his Honour Magistrate Wilson in the Court of Petty Sessions at Bunbury on 14 March 2005 in respect of a matter arising under s 59A of the Road Traffic Act 1974 (WA).
2 The appellant was charged with two separate but similar offences of causing bodily harm to Jayson Matthew Price and Steven Germon by driving a motor vehicle in the carpark of the Centrepoint shopping centre on 19 October 2003 in a manner that was, having regard to all of the circumstances, dangerous to the public or to any person.
Background
3 The prosecution case was that between 11 pm and midnight on 19 October 2003 the two complainants were at a 21st birthday party with some friends being held at the Railway Institute Hall located next to the Bunbury Rowing Club on the foreshore of the Bunbury estuary. An incident occurred involving an uninvited guest to the party. As a result of that incident, a number of people came outside the hall, including the two complainants.
4 Both gave evidence that they were told that their friend Jason McDougall had been involved in the incident. Neither of the two complainants knew exactly where Mr McDougall was when they came out of the hall but were generally directed by others towards the carpark at the Centrepoint shopping centre which is located about 75 metres to the west of the Railway Institute Hall. Both complainants said that they went to the carpark in search of Mr McDougall.
5 Mr Germon said that he observed a white ute in the carpark with someone standing up on the tray of the ute. Mr Germon started to walk back towards Blair Street across the carpark when the ute reversed out of the car bay and then someone got into the passenger side door. Mr Germon saw the ute drive forward towards him as he walked towards Blair Street. Mr Germon described being pushed backwards by the roo bar of the ute which he grabbed hold of, trying to keep upright, but he was dragged under the ute as it continued to drive forward. He passed under the ute and sustained injuries to his body as a result.
6 Mr Price said that whilst in the carpark the white ute reversed from a parking bay, then drove forward and quickly towards him. He said that
(Page 5)
- there were about five to 10 people nearby to the ute yelling and "a lot of aggro". Mr Price said he was stationary for a very short time before the ute drove towards him quickly, hitting him on his right side. He said he did not see the ute until it hit him and he grabbed the ute's roo bar in an attempt to fend off the approach of the ute but was pushed under the ute as it continued to drive forward. As a result of being struck by the ute, Mr Price was knocked to the ground and dragged under the ute, sustaining injuries which resulted in him being off work for some months.
The Magistrate's findings
7 As I have indicated, the appellant was charged with two counts of dangerous driving causing bodily harm contrary to s 59A of the Road Traffic Act. He admitted that he was the driver of the motor vehicle that struck the two complainants, but raised defences of sudden and extraordinary emergency pursuant to s 25 of the Criminal Code and acting to avoid actual and unlawful violence to him pursuant to s 31 of the Criminal Code.
8 The learned Magistrate found that the prosecution had proved every element of both charges. His Honour stated that the defences had to be negatived by the prosecution on the balance of probabilities. The relevant passage in his reasoning in that regard is found at mid-page 16 of the transcript:
"The defendant says in essence that the only reasonable act when viewed objectively he was able to do to escape the threat of unlawful violence and to resist actual violence offered to him and his passengers was to act in the manner he did by driving off and into and over the two complainants. These defences, once raised by the defence, must be negatived by the prosecution on the balance of probabilities and the onus rests upon the prosecution to do so. It is necessary, having made those findings of fact in relation to the substantive charges, that I now make findings of fact in respect to the incident prior to the act of driving of the ute by the defendant which struck Mr Germon and Mr Price."
9 The Magistrate proceeded to review the evidence along the lines he had foreshadowed. His Honour found later in his reasons that the prosecution had negatived the defence to the requisite standard, although his Honour did not state expressly to which standard he was referring. The key passage in his reasons in that regard is to be found at mid-page 20 of the transcript:
(Page 6)
- "I find the two complainants did not present any danger to the defendant because they stood several metres from the ute looking for Mr McDougall before the defendant moved forward. I do not accept there were people behind the ute as described by the defendant but accept the evidence of the prosecution witnesses in that regard. Accordingly, I am satisfied that the prosecution have negatived this defence raised by the defendant."
10 His Honour then went on to deal with the defence of compulsion, as he described it, reflected in s 31(3) of the Criminal Code. Having made some further observations in regard to that matter, he completed his reasons for decision with these final observations at mid-page 21 of the transcript:
"Accordingly, I am satisfied that the prosecution has in respect to both offences negatived all defences raised by the defendant to the requisite standard. Accordingly, I find both charges proved beyond a reasonable doubt."
11 When one reviews those passages of the transcript, it seems to follow from the opening observations at page 16 that his Honour was of the view that the matters raised by way of defence had to be negatived by the prosecution on the balance of probabilities. As there is nothing to suggest that he deviated from that stance in the reasoning that followed, I am obliged to conclude that in his final observation at page 21, in which the learned Magistrate refers to all defences being negatived to the requisite standard, the standard being spoken of by his Honour is the balance of probabilities.
12 It was against the background of the reasoning that I have described that the learned Magistrate then proceeded to convict the appellant of the offences with which the appellant had been charged.
Leave to appeal
13 The appellant obtained leave to appeal before Jenkins J on Friday, 17 May 2005 upon this ground, namely, the learned Magistrate erred in his reasons for decision in determining that, once the defences under s 25 and s 31(3) of the Criminal Code had been raised, the defences had to be negatived by the prosecution on the balance of probabilities, whereas his Honour ought to have applied a standard of proof beyond reasonable doubt in determining whether the prosecution had negatived the defences under s 25 and s 31(3) of the Criminal Code.
(Page 7)
14 The appellant seeks orders that the convictions be quashed and that subject to the orders of this honourable Court there be an order that the complaints be reheard before a different magistrate.
Statutory provisions and legal principles
15 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt II of the Criminal Appeals Act 2004 (WA). By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
16 By s 39 an appeal court must decide the appeal on the evidence and material that were before the lower Court but this does not prevent consideration of any evidence that the lower Court refused to admit. By s 40 an appeal court may admit any other evidence.
17 It is well known that a Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. Further, the prosecution must negate any matter raised in defence by proof beyond reasonable doubt: Garrett v Nicholson (1999) 21 WAR 226.
18 If the appeal succeeds, the relief may take the form of remitting back to the Court below unless the appellate Court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest in the conviction of a wrongdoer, the interests of an accused person, the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.
19 In determining whether the proviso in s 14 as to a miscarriage of justice applies, the Court must be satisfied that there was not a fundamental error in the course of the trial and even if there was not, the appellant has not lost a fair chance of acquittal. Misdirection as to the standard of proof of an element of an offence does not necessarily constitute a fundamental flaw, although it may well deprive the accused of a fair chance of acquittal: Krakouer v The Queen (1998) 194 CLR 202.
(Page 8)
20 While a misdirection as to the standard of proof is a serious matter, it is not inevitable that convictions must be quashed: Holz v Lane [2002] WASCA 164 at par 10 per Wheeler J; King v The Queen [2001] WASCA 198 at par 37 per Wheeler J, Wallwork and Steytler JJ agreeing.
Conclusion
21 In the present case I am of the view that the learned Magistrate erred as alleged in the ground of appeal. Moreover, the error did not merely taint one element of the subject offence or one link in the chain of reasoning. It was a significant misdirection as to the nature of the onus lying upon the prosecution to negative the appellant's defences.
22 I pause here to take up what was put to me in the course of argument. The learned Magistrate, in rejecting the defence of sudden emergency, made findings that indicated he did not accept the appellant's evidence. If these findings were based on the wrong standard, then this may have affected the conclusion that there was no sudden emergency pursuant to s 25 of the Criminal Code.
23 In relation to the defence in s 31(3), the learned Magistrate found that the defence did not apply as the appellant entered into an unlawful association to assault a person who had assaulted his brother. This finding was based on the evidence of the defence witnesses so it appears the appellant did not discharge his evidentiary onus in respect of this defence. It is said that the Magistrate's decision substantially depended on his assessment of the credibility of the witnesses. It is difficult to discern what standard was applied in making the crucial findings as to credibility.
24 For these reasons, and having regard to the learned Magistrate's conclusion that the prosecution had negatived "both defences to the requisite standard" (which had been defined in earlier discussion as being the balance of probabilities) I am of the view that the appeal must be allowed. It is apparent from the submissions made by counsel for the respondent that the respondent was of the same view.
The orders to be made
25 This brings me to the question of the orders to be made. The question of whether the matter should be reheard by a different magistrate or returned to the same Magistrate, not for a rehearing but a determination according to law based on the transcript and his knowledge of the matter, is finely balanced. However, in the circumstances of the present case, as I indicated to counsel, I consider that the matter must be returned to a
(Page 9)
- different magistrate so as to remove any possible apprehension that the existing reasons might simply be adjusted to take account of the higher standard of proof, namely, proof beyond reasonable doubt, being the standard referred to in these reasons.
26 Accordingly, against that background I conclude that the appropriate orders to be made are those that have previously been canvassed by counsel, namely, (1) the appeals be allowed; (2) the convictions imposed on complaints BU04/1505 and 04/1506 be quashed; (3) the complaints be remitted to the Magistrates Court sitting at Bunbury for hearing and determination by a different magistrate; (4) the appellant be entitled to a certificate issued under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) for costs of the appeal fixed in the amount of $1000.
0
12
0