Legal Research
Cases
Ninyette v Jones

Ninyette v Jones

Case [2018] WASC 317 19 October 2018

Type to search within this case.

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…

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 Ninyette v Jones

Details

AGLC: Ninyette v Jones [2018] WASC 317
Case: [2018] WASC 317
Decision Date: 19 OCTOBER 2018

CaseChat Overview and Summary

In the case of Ninyette v Jones, the applicant was convicted for a third offence of driving without authority, under the Road Traffic Act 1974 (WA). This conviction led to a confiscation order being made against the applicant's vehicle. The applicant sought to challenge the confiscation order, arguing that the magistrate had failed to exercise their discretion in determining whether to make the confiscation order. The applicant further sought a certificate to enable them to apply for legal aid under the Suitors' Fund 1964 (WA). The central legal issues were whether the magistrate had the discretion to decide whether to make a confiscation order and, if so, whether the magistrate had exercised that discretion correctly. Additionally, the court had to determine whether a certificate could be issued to allow the applicant to apply for legal aid.

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