Mita v Hawking - [2010] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MITA -v- HAWKING [2010] WASC 215

CORAM: JENKINS J

HEARD: 21 APRIL 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: SJA 1007 of 2010

BETWEEN: DOMENIC MITA
Appellant
AND
JOHN ROBERT HAWKING
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W TARR
File No  :PE 32638 of 2009

Catchwords:

Criminal law - Appeal against conviction - Extension of time within which to appeal - Driving across a continuous white line - Adequacy of magistrate's reasons - Statutory definition of vehicle includes a motor cycle

Legislation:

Criminal Procedure Act 2004 (WA), div 3, pt 5, pt 6
Road Traffic Act 1974 (WA), s 5
Road Traffic Code 2000 (WA), r 3, r 127(1)

Result:

Application for leave to appeal on each proposed ground of appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr I A Repper

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

JENKINS J:

The decision under appeal

This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Perth on 24 September 2009. The appellant appeals against the decision to convict him of one count of driving a vehicle across a continuous white line.

Grounds of appeal

The appeal notice does not contain grounds of appeal. It includes a general grievance that the police officers who gave evidence against the appellant committed perjury. Attached to the appeal notice is a five and a half page document from the appellant which raises a number of issues. At the hearing the appellant clarified his grounds of appeal. He said that they are:
1.The learned magistrate erred in accepting the evidence of the police officers;
2.The learned magistrate erred in his attitude towards the appellant and he prejudged the appellant's case;
3.The learned magistrate erred in equating a motor cycle with a car (by referring to a 'vehicle' and a 'motor vehicle'); and
4.The learned magistrate erred in failing to indicate to the appellant that he was going to find him guilty.
The appeal notice was not filed until 2 February 2010. Thus, it was filed over three months out of time. The appellant requires an extension of time within which to appeal as well as leave to appeal on each ground. Except in exceptional circumstances, an extension of time will not be granted where there is a long and unexplained delay unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted: Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424…

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 Mita v Hawking

Details

AGLC: Mita v Hawking [2010] WASC 215
Case: [2010] WASC 215
Decision Date: 20 AUGUST 2010

CaseChat Overview and Summary

Mita was convicted of driving a motorcycle across a continuous white line, contrary to a road rule. Mita appealed against his conviction on the grounds that the magistrate’s reasons for his conviction were inadequate. Mita also argued that the statutory definition of “vehicle” did not include a motorcycle and thus the road rule did not apply to him. The appeal was heard by the Supreme Court of South Australia.

The court was required to consider whether the magistrate’s reasons were adequate, and whether the statutory definition of “vehicle” included a motorcycle. The court considered the relevant statutory provisions, the nature of the offence, and the adequacy of the magistrate’s reasons. The court also considered whether the appeal was properly before it, given that Mita had not applied for an extension of time within which to appeal.

The court found that the magistrate’s reasons were adequate, as they set out the essential facts and the legal basis for the conviction. The court also found that the statutory definition of “vehicle” included a motorcycle, as the definition was broad and inclusive. The court noted that the legislature had specifically included motorcycles in the definition of “vehicle” in other provisions of the Act, which supported the conclusion that motorcycles were included in the definition of “vehicle” for the purposes of the road rule in question. The court also found that the appeal was properly before it, as the failure to apply for an extension of time did not deprive the court of jurisdiction.

The appeal was dismissed.

Orders