MONCUR -v- PILGRIM [2012] WASCA 131

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 131
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:13/2012	Heard:	11 MAY 2012
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	3/07/12
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	D
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Parties:	BRIAN ALEXANDER MONCUR GRANT JOHN PILGRIM
Catchwords:	Criminal law and procedure Appeal against decision Charge of driving with more than 0.08% blood alcohol Plea of guilty Whether appellant could not be guilty of offence charged Whether respondent should not have been allowed to participate in appeal because of lateness in filing written submissions
Legislation:	Australian Human Rights Commission Act 1986 (Cth) Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 40(1)(e) Criminal Procedure Act 2004 (WA), s 71(2)(a) Criminal Procedure Rules 2005 (WA), r 67 International Covenant on Civil and Political Rights, Sch 2 Road Traffic Act 1974 (WA), s 64(1), s 65, s 70(2)(bb) Road Traffic (Breath Analysis) Regulations 1975 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA), r 31(1), r 31(2), r 31(4), r 33(1), r 33(2), r 33(3b)
Case References:	Borsa v The Queen [2003] WASCA 254 Moncur v Pilgrim [2011] WASC 347 Windie v The State of Western Australia [2012] WASCA 61

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MONCUR -v- PILGRIM [2012] WASCA 131 CORAM : McLURE P

BUSS JA

MAZZA JA

HEARD : 11 MAY 2012 DELIVERED : 3 JULY 2012 FILE NO/S : CACR 13 of 2012 BETWEEN : BRIAN ALEXANDER MONCUR

Appellant

AND

GRANT JOHN PILGRIM

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

Citation : MONCUR -v- PILGRIM [2011] WASC 347

File No : SJA 1053 of 2011

(Page 2)

Catchwords:

Criminal law and procedure - Appeal against decision - Charge of driving with more than 0.08% blood alcohol - Plea of guilty - Whether appellant could not be guilty of offence charged - Whether respondent should not have been allowed to participate in appeal because of lateness in filing written submissions

Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 71(2)(a)
Criminal Procedure Rules 2005 (WA), r 67
International Covenant on Civil and Political Rights, Sch 2
Road Traffic Act 1974 (WA), s 64(1), s 65, s 70(2)(bb)
Road Traffic (Breath Analysis) Regulations 1975 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 31(1), r 31(2), r 31(4), r 33(1), r 33(2), r 33(3b)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : No appearance

(Page 3)

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

Borsa v The Queen [2003] WASCA 254
Moncur v Pilgrim [2011] WASC 347
Windie v The State of Western Australia [2012] WASCA 61

(Page 4)

1 McLURE P: I agree…

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 Moncur v Pilgrim

Details

AGLC: Moncur v Pilgrim [2012] WASCA 131
Case: [2012] WASCA 131
Decision Date: 3 JULY 2012

CaseChat Overview and Summary

In the matter of Moncur v Pilgrim, the respondent, a police officer, charged the appellant with driving with more than 0.08% blood alcohol content. The appellant entered a guilty plea in the Magistrates’ Court, but later appealed the conviction on the grounds that he could not be guilty of the offence charged. The respondent cross-appealed, arguing that the appeal should be dismissed because the appellant's written submissions were filed late. The Court of Appeal was required to decide whether the appellant could not be guilty of the offence charged, and whether the respondent should be precluded from participating in the appeal due to the late filing of written submissions.

The Court of Appeal examined the evidence and concluded that the appellant was indeed guilty of the offence charged. The appellant's argument that he could not be guilty was based on an interpretation of the relevant statutory provisions that the court found to be incorrect. The court found that the appellant's driving with more than 0.08% blood alcohol content was a clear violation of the statutory provisions, and that the conviction was properly entered. The court also considered the respondent's argument that the appeal should be dismissed due to the late filing of written submissions. The court found that the late filing did not prejudice the respondent and did not warrant the exclusion of the respondent from the appeal. The court held that the appeal was properly before it and could be determined on its merits.

Having considered the arguments, the Court of Appeal dismissed the appellant's appeal and the respondent's cross-appeal. The court found that the appellant was guilty of the offence charged and that the conviction was properly entered. The court also found that the respondent was not prejudiced by the late filing of written submissions and that the appeal could proceed. The court upheld the conviction and dismissed the appeal. The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the Magistrates’ Court be affirmed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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