Miro Drago Konsul v Michael Patrick Laverty - [2005] ACTSC 69

MIRO DRAGO KONSUL v MICHAEL PATRICK LAVERTY
[2005] ACTSC 69 (5 August 2005)

APPEAL FROM MAGISTRATE – conviction for driving offence – conflicting evidence – no adverse finding about witness – reasonable doubt on Crown case.

Magistrates Court Act 1930, s 214

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Devries v Australian National Railways Commission (1993) 177 CLR 472

Abalos v Australian Postal Commission (1990) 171 CLR 167

State Rail Authority (NSW) v Earthline Construction Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Sikorski v Gristsch [2002] ACTSC 55

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 62 of 2004

Judge: Connolly J
Supreme Court of the ACT
Date: 5 August 2005

IN THE SUPREME COURT OF THE       )
  )          No SCA 62 of 2004
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:MIRO DRAGO KONSUL
Appellant

AND:MICHAEL PATRICK LAVERTY
Respondent

ORDER

Judge:  Connolly J
Date:  5 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.
The Magistrate’s orders be set aside, and the plaintiff acquitted.

This is an appeal against a conviction by a Magistrate for the offence of failing to give way to an oncoming vehicle. It concerns a two-vehicle motor vehicle accident that occurred on the morning of 13 August 2003 at the T-junction of Baldwin Drive and Chuculba Crescent at Kaleen in the Australian Capital Territory. The Crown case is that the appellant failed to give way to an oncoming vehicle, driven by a Mr Piscitelli, which had been travelling in a generally easterly direction along Baldwin Drive. It is said that the appellant, who had been travelling in a generally westerly direction along Baldwin Drive, failed to give way to Mr Piscitelli by turning right from Baldwin Drive to proceed into Chuculba Crescent into the path of Mr Piscitelli. On this case the impact occurred at an angle as the appellant was turning in front of Mr Piscitelli.

The appellant’s case was that he was proceeding in a generally westerly direction along Baldwin Drive, and says that he was stationary at a turning lane to turn right into Chuculba Crescent. He says that Mr Piscitelli skidded into his lane. On this case the impact would have been more or less front on.

An appeal lies to this Court from a finding of a Magistrate exercising summary jurisdiction in criminal matters pursuant to Part XI of the Magistrates Court Act 1930. Section 214(2) provides that –

In an appeal to which this section applies, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact

In determining this appeal, I am of course properly mindful of the warning repeatedly given by the High Court about the need for appellate courts to defer to a conclusion of a lower court concerning a question of the credibility of witnesses (Uranerz (Aust) Pty Ltd v Hale (1980)…

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 Miro Drago Konsul v Michael Patrick Laverty

Details

AGLC: Miro Drago Konsul v Michael Patrick Laverty [2005] ACTSC 69
Case: [2005] ACTSC 69
Decision Date

CaseChat Overview and Summary

In this appeal, the appellant, Miro Drago Konsul, challenges the conviction for a driving offence made by a Magistrate in the Magistrates Court of the Australian Capital Territory. The incident involved a two-vehicle accident that occurred on 13 August 2003, at the T-junction of Baldwin Drive and Chuculba Crescent in Kaleen. The Crown's case is that the appellant, while travelling in a westerly direction along Baldwin Drive, failed to give way to Mr Piscitelli's vehicle, which was travelling in a generally easterly direction, resulting in a collision. The appellant's defence contends that he was stationary in the turning lane and that Mr Piscitelli's vehicle skidded into him.

The appeal raises the question of whether the Magistrate could have been satisfied beyond reasonable doubt of the appellant's guilt, given the conflicting evidence presented. The Supreme Court of the Australian Capital Territory, exercising its appellate jurisdiction under Part XI of the Magistrates Court Act 1930, is required to consider the evidence and draw its own inferences. The Court is mindful of the principle that appellate courts should defer to the credibility findings of the lower court but retains the responsibility to draw inferences from the facts.

The Court found that there was a clear conflict in the evidence, with the Crown and the appellant offering differing accounts of how the accident occurred. The absence of skid marks and the police officer's inability to determine the point of impact further complicated the matter. The Magistrate accepted Mr Piscitelli's version of events but did not reject the appellant's evidence or that of his friend, Mr Jurkovic, who testified that the appellant's car was in its proper lane when he arrived at the scene. The Court concluded that the Magistrate's acceptance of one version of events while not rejecting the other created a reasonable doubt about the appellant's guilt. Consequently, the Court held that the appellant should have been acquitted as the Crown failed to establish its case beyond reasonable doubt.

The Court ordered that the appeal be upheld, the Magistrate's conviction set aside, and the appellant acquitted of the charge. The associated penalty of a $350 fine and costs was also set aside.

Orders