Nikro v O'Sullivan - [2013] ACTSC 129

ABDUL NIKRO v JANE BRIDGET O’SULLIVAN
[2013] ACTSC 129 (4 July 2013)
Road Transport (General) Act 1999 (ACT)
Road Transport (Driver Licensing) Regulation 2000 (ACT)
Road Transport (Vehicle Registration) Act 1999 (AC)
Road Transport (Third Party Insurance) Act 2008 (ACT)
Road Transport (Driver Licensing) Act 1999 (ACT)
Road Transport Act 1974 (WA)
Magistrates Court Act 1930 (ACT)
Crimes (Sentencing) Act 2005 (ACT)
Barratt v Merhi [2013] ACTSC 125
Stone v French [2013] ACTMC 4
Proudman v Dayman (1941) 67 CLR 536
Auburton v Western Australia (2006) 167 A Crim R 1
EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 8 of 2012
Judge:Nield AJ
Supreme Court of the ACT
Date:4 July 2013

IN THE SUPREME COURT OF THE )
)No. SCA 8 of 2012

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ABDUL NIKRO

Appellant

AND: JANE BRIDGET O’SULLIVAN

Respondent

ORDER
Judge:Nield AJ
Date:4 July 2013
Place:Canberra
THE COURT ORDERS THAT:

I refuse to grant leave to the appellant to adduce the further evidence.

I dismiss the appeal.

I confirm Magistrate Lunney’s conviction and sentence, that being a fine of $500.

I disqualify the appellant from holding or obtaining a driver licence for 12 months from 1 July 2013 to and including 30 June 2014.

I allow 14 days from today for the payment of the fine.

The appellant is Mr Abdul Karim Nikro. He has appealed from a decision of Special Magistrate Lunney made on 27 January 2012 finding him to be guilty of driving a motor cycle on a public road on 6 January 2011 when his driver licence was suspended by operation of law, convicting him of the offence, fining him $500 for having committed the offence and disqualifying him from holding or obtaining a driver licence for 12 months.

The respondent is the Crown.

The facts which brought the appellant before the Magistrates Court are not in dispute. The following facts are contained in the evidence adduced before Magistrate Lunney.

On 31 July 2010 an image of a motor vehicle owned or being driven by the appellant was captured by a camera in the commission of a traffic offence, the type of which is not revealed by the evidence. Later, on a date not revealed by the evidence, but during August 2010, an infringement notice (see section 24 of the Road Transport (General) Act) was sent by the RTA by prepaid post to the appellant at his home address (see section 139(1) of the Road Transport (Driver Licensing) Regulation and see also my judgment in Barratt v Merhi [2013] ACTSC 125) recorded in the register kept by the RTA (see section 14 of the Road Transport (Driver Licensing) Regulation), namely X Buggy Crescent, McKellar, ACT. The notice is presumed to have been served on the appellant four days after the date on which the notice was posted (see section 9B of the Road Transport (General) Regulation

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 Nikro v O'Sullivan

Details

AGLC: Nikro v O'Sullivan [2013] ACTSC 129
Case: [2013] ACTSC 129
Decision Date

CaseChat Overview and Summary

Abdul Karim Nikro appealed against a conviction and sentence imposed on him by Special Magistrate Lunney on 27 January 2012 for the offence of driving a motor cycle on a public road on 6 January 2011 when his driver licence was suspended by operation of law. The appeal came on for hearing before Acting Justice Nield on 17 May 2013. The appellant had previously appealed against the conviction and sentence on the basis that the verdict was unsafe and unsatisfactory and that his Honour erred by failing to sentence the appellant according to law. The appellant subsequently sought leave to adduce further evidence in relation to the conviction and sentence. Acting Justice Nield refused to grant leave to adduce the further evidence, dismissed the appeal, confirmed the conviction and sentence, disqualified the appellant from holding or obtaining a driver’s licence for 12 months and allowed 14 days for the payment of the fine. The court found that there was no reasonable explanation for the failure to adduce the evidence of the defect in the notice of confirmation of suspension of the appellant’s driver licence during the hearing before the Magistrate. The court also found that the valid suspension of the appellant’s driver licence on 15 November 2010 was not rendered invalid by the defective notice of confirmation of suspension of driver licence sent on 18 November 2010. The court held that the conviction was safe and satisfactory and that there was no error in the sentence imposed by the Magistrate.

Orders