Neves v Johnson - [2018] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NEVES -v- JOHNSON [2018] WASC 67

CORAM: MITCHELL JA

HEARD: 28 FEBRUARY 2018

DELIVERED : 28 FEBRUARY 2018

PUBLISHED : 1 MARCH 2018

FILE NO/S: SJA 1072 of 2017

BETWEEN: NELIO JOSE NEVES
Applicant
AND
DANIEL JOHNSON
First Respondent
RACHEL KINGSBURY
Second Respondent
LIAM GREIG
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P MALONE
File No  :FR 890 of 2017, FR 7286 of 2015, FR 6320 of 2015

Catchwords:

Appeal - Leave to appeal against conviction of driving a motor vehicle on a road whilst not authorised - Application to adduce new evidence - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 7(1), s 8(1)(b), s 9(1), s 9(2), s 14(1), s 14(2), s 39(1), s 40(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA), pt 2
Road Traffic Act 1974 (WA), s 49(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr A Robson
First Respondent           :     Ms S Fox
Second Respondent      :     Ms S Fox
Third Respondent          :     Ms S Fox

Solicitors:

Applicant:     Legal Aid (WA)
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent          :     State Solicitor for Western Australia

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

ARK v The State of Western Australia [2014] WASCA 45
Beamish v The Queen [2005] WASCA 62
CJD v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172
Gallagher v The Queen (1986) 160 CLR 392
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Lawless v The Queen 1979) 142 CLR 659
Ratten v The Queen (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Smith v The State of Western Australia [2014] WASCA 90

MITCHELL JA:
(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

Charge

The appellant was convicted by a magistrate after trial of one count of driving a motor vehicle on a road whilst not authorised under pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA). That is an offence against s 49(1)(a) of the Road Traffic Act 1974 (WA). A pleaded circumstance of aggravation was that his authority to drive had been suspended. It was alleged that, on 18 January 2017, the appellant drove a Holden sedan on Featherflower Road in Hammond Park at a time when his licence was suspended.

Issues at trial

At trial, it was not in contest that the appellant was in a Holden Statesman which was driven on Featherflower Road on 18 January 2017. Nor was in it contest that his driver's licence was under suspension. The only issue at trial was whether the appellant was the driver of the Statesman.
The prosecution case consisted of the evidence of…

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 Neves v Johnson

Details

AGLC: Neves v Johnson [2018] WASC 67
Case: [2018] WASC 67
Decision Date: 1 MARCH 2018

CaseChat Overview and Summary

The appeal was brought by the appellant, Neves, against the decision of a lower court to deny him leave to appeal against his conviction for driving a motor vehicle on a road while not authorised. The matter was heard in the higher court, which had to determine whether the appellant's application to adduce new evidence was sufficient to warrant a grant of leave to appeal. The central issue was whether the introduction of this new evidence could potentially lead to a miscarriage of justice in the original decision.

The court examined the criteria for granting leave to appeal in cases where new evidence is proposed. The appellant needed to demonstrate that the new evidence was not merely cumulative or collateral but was of such significance that it could reasonably affect the outcome of the appeal. The court considered the nature and relevance of the new evidence, its potential impact on the original decision, and whether the appellant had a reasonable excuse for not presenting it earlier. The court also assessed whether the evidence could plausibly change the decision to one in favour of the appellant.

After thorough analysis, the court concluded that the new evidence did not meet the required threshold to warrant a grant of leave to appeal. The evidence, while relevant, did not significantly alter the fundamental findings of the lower court. The court found that the appellant had not demonstrated that the introduction of this evidence would likely result in a different outcome, and thus, there was no miscarriage of justice. Consequently, the appeal was dismissed, and the conviction stood as originally decided.

The court's final orders included the dismissal of the appeal and the reaffirmation of the conviction against the appellant. The appellant was not granted leave to appeal, and the original decision of the lower court was upheld. The court emphasised that the application to adduce new evidence had not met the stringent criteria necessary to warrant a grant of leave to appeal, and thus, the conviction remained valid.

Orders