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MJM v BNZ

MJM v BNZ

Case [2024] WASC 416 8 November 2024

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MJM -v- BNZ [2024] WASC 416
CORAM:   MUSIKANTH J
HEARD:   10 OCTOBER 2024
DELIVERED          :   8 NOVEMBER 2024
FILE NO/S:   SJA 1033 of 2024
BETWEEN:   MJM
Appellant
AND
BNZ
Respondent

ON APPEAL FROM:
For File No:   SJA 1033 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   MR 300/2023; MR 301/2023

Catchwords:

Criminal law - Single Judge Appeal - Whether respondent had 'required' appellant provide breath sample - Whether appellant made an 'honest mistake of fact' - Whether conduct of police officers rendered evidence inadmissible - Whether no order for pre-trial disclosure of body-worn camera a miscarriage of justice - Whether prosecution required to prove instrument used for preliminary test was an approved device - Whether magistrate correct not to allow evidence instrument was working 'improperly' - Whether prosecution required to prove respondent was an authorised person - Whether magistrate should have permitted questioning about an 'unlawful request' regarding provision of a DNA sample

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to adduce further evidence refused
Leave to appeal refused in respect of grounds 1 - 14 and 16 - 19
Leave to appeal granted in respect of ground 15
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr Z R Clifford

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Accident Claims Lawyers Pty Ltd (Subject to Deed of Company Arrangement) v Legal Practice Board [2024] WASC 249
Archibald v Barndon [1991] WASC 321; (1991) 16 MVR 239
Bromley v Bembridge [2022] WASCA 192; (2002) 132 A Crim R 16
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Clarke v The State of Western Australia [2018] WASCA 1 [239]; Huggins v The State of Western Australia [2018] WASCA 61
Cullen v Huffa [1970] SASC 630; [1970] SASR 155
Dobie v Pinker [1982] WASC 322; [1983] WAR 48
JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295
Lambert v Tomasini [1981] WASC 336
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Lisiecki v Grigg [1990] VSC 20; (1990) 10 MVR 336
MacDonald v County Court (Vic) [2004] VSC 202; (2004) 41 MVR 183
Mukevski v The State of Western Australia [2010] WASCA 138
Parfenova v Diss [2021] WASCA 50
Sangster v Collins [1973] WASC 126
Singh v Hodgson [2022] WASC 334; (2022) 102 MVR 122
Town of Cambridge v The Hon David Templeman MLA, Minister for Local Government; Heritage; Culture and the Arts [2020] WASC 350
Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2009) 196 A Crim R 415
Webb v King [1987] WASC 129; (1987) 5 MVR 153
Wilden Pty Ltd v Green [2009] WASCA 38

MUSIKANTH J:

On 20…

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 MJM v BNZ

Details

AGLC: MJM v BNZ [2024] WASC 416
Case: [2024] WASC 416
Decision Date: 8 NOVEMBER 2024

CaseChat Overview and Summary

In the case of MJM v BNZ, the appellant, MJM, appealed against a conviction for refusing to provide a breath sample. The dispute arose from an incident where the respondent, BNZ, an authorised police officer, required MJM to provide a breath sample. MJM refused, leading to the charge and subsequent conviction. The case was heard and determined in the Magistrates’ Court of Victoria.

The primary legal issues the court had to decide were whether the respondent had the legal authority to require the appellant to provide a breath sample, whether the appellant's refusal constituted an honest mistake of fact, and whether the conduct of the police officers rendered the evidence inadmissible. Additionally, the court needed to determine whether the absence of a pre-trial disclosure of body-worn camera footage amounted to a miscarriage of justice, whether the prosecution needed to prove that the instrument used for the preliminary test was an approved device, whether the magistrate was correct in excluding evidence that the instrument was working improperly, and whether the prosecution needed to prove that the respondent was an authorised person. The court also had to consider whether the magistrate should have allowed questioning about an unlawful request for a DNA sample.

The court found that the respondent had the authority to require a breath sample, and the appellant's refusal was not an honest mistake of fact. The court held that the conduct of the police officers did not render the evidence inadmissible. Regarding the pre-trial disclosure of the body-worn camera footage, the court determined that its absence did not constitute a miscarriage of justice. The court held that the prosecution did not need to prove that the instrument used for the preliminary test was an approved device. The magistrate was correct in excluding evidence that the instrument was working improperly, and the prosecution was not required to prove that the respondent was an authorised person. The court also ruled that the magistrate should not have permitted questioning about the unlawful request for a DNA sample.

The appeal was dismissed, and the conviction was upheld.

Orders