JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: NINYETTE -v- JONES [2018] WASC 317
CORAM: MCGRATH J
HEARD: 30 JULY 2018
DELIVERED : 19 OCTOBER 2018
FILE NO/S: SJA 1014 of 2018
BETWEEN: ARTHUR LEWIS NINYETTE
Appellant
AND
HEATHER JONES
Respondent
ON APPEAL FROM:
For File No: SJA 1014 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 43480 of 2017
Catchwords:
Criminal law - Road Traffic Act 1974 (WA) - Third conviction for driving whilst not authorised to do so - Confiscation of vehicle - Discretion as to whether confiscation order should be made - Error of law - Magistrate did have discretion and failed to exercise that discretion - Matter remitted - Application under s 12A for a certificate to issue under Suitors' Fund 1964 (WA) - Whether certificate may issue - Certificate may issue
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14, s 20(2)
Justices Act 1902 (WA), s 190, s 206, s 206J, s 219
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 49(9)
Road Traffic Act 1974 (WA), s 60, s 60A, s 62A, s 78A, s 80A, s 80C, s 80G
Suitors' Fund Act 1964 (WA), s 12A
Suitors' Fund Act Amendment Act 1971 (WA), s 5
Result:
Leave to appeal granted
Appeal allowed
The order to confiscate the appellant's vehicle is set aside
Matter remitted to the Magistrates Court to be dealt with according to law
Certificate issued pursuant to s 12A of the Suitors' Fund 1964 (WA) in the amount of $1,000
Category: B
Representation:
Counsel:
| Appellant | : | Mr H Glenister |
| Respondent | : | Ms H C Richardson |
Solicitors:
| Appellant | : | Hamis Glenister Barrister & Solicitor |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Baker v Bushell (Unreported, SCWA; Library No 981072/3, 27 July 1988)
Mineralogy Pty Ltd v CEO Department of Economic Regulation [2014] WASC 468
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Perry v The Queen (1975) WAR 33
Robinson v Cook (Unreported, SCWA; Library No 9812967/8, 30 September 1988)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v McDonald (2009) 193 A Crim R 80
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2017] WASC 286
MCGRATH J:
Mr Ninyette was charged with one offence of driving a motor vehicle when not authorised to do so under the Road Traffic (Authorisation to Drive) Act2008 (WA), contrary to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act 1974 (WA). On 24 August 2017, Mr Ninyette pleaded guilty to that charge and was sentenced.
As a consequence of that conviction, being Mr Ninyette's third conviction for driving whilst not authorised to do so, the Commissioner of Police made an application to confiscate Mr Ninyette's vehicle pursuant to s 80G(2) of the Road Traffic Act (confiscation application).
On 22 February 2018, the Chief Magistrate ordered the confiscation of Mr…
Continue reading Ninyette v Jones
Sign in free to access the full text
- AGLC
- Ninyette v Jones [2018] WASC 317
- Case
- [2018] WASC 317
- Decision Date
CaseChat Overview and Summary
The court found that the magistrate did indeed have the discretion to decide whether to make a confiscation order. However, it was determined that the magistrate had failed to exercise that discretion, thereby committing an error of law. Consequently, the matter was remitted back to the magistrate for reconsideration. Regarding the application for a certificate under the Suitors' Fund 1964 (WA), the court held that such a certificate could be issued, allowing the applicant to apply for legal aid to pursue their appeal against the confiscation order. The decision emphasised the importance of correctly exercising judicial discretion and the availability of legal aid for applicants in such situations.
The court's reasoning hinged on the statutory interpretation of the Road Traffic Act 1974 (WA) and the magistrate's procedural obligations. It was established that the magistrate's failure to exercise their discretion in making the confiscation order was a reversible error. Furthermore, the court underscored the principle that a certificate could be issued under the Suitors' Fund 1964 (WA) to facilitate the applicant's access to legal aid, ensuring that the applicant could adequately pursue their appeal. This decision highlights the necessity for judicial officers to carefully consider and articulate their reasoning when exercising discretionary powers and the role of legal aid in ensuring fair access to justice.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.