Mungar v O'Neill - [2018] WASC 346

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MUNGAR -v- O'NEILL [2018] WASC 346
CORAM:   DERRICK J
HEARD:   12 NOVEMBER 2018
DELIVERED          :   16 NOVEMBER 2018
FILE NO/S:   SJA 1092 of 2018
BETWEEN:   JACQUES PATRICK MUNGAR
Appellant
AND
RICHARD O'NEILL
Respondent

ON APPEAL FROM:
For File No:   SJA 1092 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G LAWRENCE
File Number            :   PE 12500 of 2018

Catchwords:

Criminal law - Appeal against conviction - Road Traffic Code 2000 (WA) - Whether magistrate erred in finding that appellant was driving within a 'speed zone' - Whether judicial notice can be taken of the existence and location of a specific intersection

Legislation:

Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Road Traffic Code 2000 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms R C Panetta

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

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

Avins v Garvey [2001] WASCA 415; (2001) 35 MVR 277
Culverwell v Ginbey [2016] WASC 3
Hankinson v Brookview Holdings Pty Ltd [2004] WASCA 279
Pike v Becker [2012] WASC 397; (2012) 62 MVR 109
Pope v Ewendt (1977) 17 SASR 45
Prentice v Cummins (No 5) [2002] FCA 1503; (2002) 124 FCR 67
Samuels v The State of Western Australia [2005] WASCA 193

DERRICK J:

Introduction

On 12 March 2018 the appellant was charged in the Magistrates Court with one offence of contravening reg 11(3) of the Road Traffic Code 2000 (WA) (the RTC). The charge was in the following terms:
On 26 December 2017 at East Victoria Park [the appellant] drove a vehicle on a road, within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 40 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 51 kilometres per hour.
On 7 June 2018 the appellant was convicted after trial of the charged offence. He was fined $200 and ordered to pay costs.[1]
[1] ts 13 ‑ 14.
The appellant applies for leave to appeal against his conviction.[2] Although the appellant's appeal notice contains two grounds of appeal, the grounds of appeal in substance contain the same complaint, namely that the magistrate made an error of fact and law in finding that the appellant was driving 'within a speed zone'.
[2] The application is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).

Leave to appeal

The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[3] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[4] If leave to appeal is refused on each ground the appeal is taken to be dismissed.[5]
[3] CAA, s 9(2).
[4] Samuels…

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 Mungar v O'Neill

Details

AGLC: Mungar v O'Neill [2018] WASC 346
Case: [2018] WASC 346
Decision Date: 16 NOVEMBER 2018

CaseChat Overview and Summary

Mungar v O'Neill involved the appellant, Mungar, who was convicted of driving within a speed zone in breach of the Road Traffic Code 2000 (WA). The appellant appealed against his conviction, challenging the magistrate's finding that he was driving within a speed zone at the time of the offence. The court was asked to determine whether the magistrate erred in finding that the appellant was driving within a 'speed zone' and whether judicial notice can be taken of the existence and location of a specific intersection.

The court examined the evidence presented to determine if the magistrate's finding that the appellant was driving within a speed zone was supported by the evidence. The court also considered whether judicial notice could be taken of the existence and location of the specific intersection. The court found that the magistrate's finding was supported by the evidence and that judicial notice could be taken of the existence and location of the specific intersection. The court held that the appellant's appeal was dismissed, and the conviction was upheld.

The court found that the evidence presented was sufficient to support the magistrate's finding that the appellant was driving within a speed zone. The court also found that judicial notice could be taken of the existence and location of the specific intersection. The court held that the appellant's appeal was dismissed, and the conviction was upheld. The court further held that the appellant's arguments regarding the interpretation of the Road Traffic Code 2000 (WA) were not persuasive and that the magistrate's interpretation of the relevant provisions was correct. The court also rejected the appellant's argument that the evidence was insufficient to prove that he was driving within a speed zone.

Orders