O'BRIEN -v- OSTROWSKI [1999] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 184 | |
| Case No: | SJA:1081/1999 | 23 AUGUST 1999 | |
| Coram: | McKECHNIE J | 24/09/99 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, conviction set aside, matter remitted for retrial | ||
| PDF Version |
| Parties: | KEVIN MICHAEL O'BRIEN GEORGE PETER OSTROWSKI |
Catchwords: | Evidence Presumption of accuracy of navigation equipment Global Positioning System GPS Whether evidence to the contrary Criminal law Honest and reasonable mistake Sentencing Technical offence No new principles |
Legislation: | Criminal Code (WA), s 24 Fish Resources Management Act 1994 (WA), s 215 Justices Act 1902 (WA), s 199(1) Sentencing Act 1995 (WA), s 46 |
Case References: | Casey v Glenn, unreported; SCt of WA; Library No 7642; 5 May 1989 Cato v Costello; Ex parte Costello (1938) St R Qd 318 Gabriel v Ah Mook (1924) 34 CLR 591 Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129 Pearce v Stanton [1984] WAR 359 Selby v Pennings (1998) 19 WAR 520 Teede v Wright [1999] WASCA 121 The Adelaide Steamship Co Ltd v His Majesty The King and The Attorney General of the Commonwealth (1912) 15 CLR 65 Wann v Mosel, unreported; SCt of WA (Anderson J); Library No 8839; 30 April 1991 Chiou Yaou Fa v Morris (1987) 46 NTR 1 Ealing v Breedon, unreported; SCt of WA (Owen J); Library No 940373; 11 April 1994 Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Mehesz v Redman (No 2) (1980) 26 SASR 244 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Riley v Gill, unreported; SCt of WA (Parker J); Library No 970731; 8 December 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GEORGE PETER OSTROWSKI
Respondent
Catchwords:
Evidence - Presumption of accuracy of navigation equipment - Global Positioning System - GPS - Whether evidence to the contrary - Criminal law - Honest and reasonable mistake - Sentencing - Technical offence - No new principles
Legislation:
Criminal Code (WA), s 24
Fish Resources Management Act 1994 (WA), s 215
Justices Act1902 (WA), s 199(1)
Sentencing Act1995 (WA), s 46
Result:
Appeal allowed, conviction set aside, matter remitted for retrial
(Page 2)
Representation:
Counsel:
Appellant : Mr R W Richardson & Mr N J Rohr
Respondent : Mr R M Mitchell
Solicitors:
Appellant : Clayton Utz
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Casey v Glenn, unreported; SCt of WA; Library No 7642; 5 May 1989
Cato v Costello; Ex parte Costello (1938) St R Qd 318
Gabriel v Ah Mook (1924) 34 CLR 591
Geraldton Fishermen's Co-Op Ltd v Munro [1963] WAR 129
Pearce v Stanton [1984] WAR 359
Selby v Pennings (1998) 19 WAR 520
Teede v Wright [1999] WASCA…
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- AGLC
- O'Brien v Ostrowski [1999] WASCA 184
- Case
- [1999] WASCA 184
- Decision Date
CaseChat Overview and Summary
The case of O'Brien v Ostrowski involved a dispute between the Crown and the defendant, O'Brien, regarding a traffic offence. The defendant was charged with exceeding the speed limit in a school zone, which he contested on the basis of an honest and reasonable mistake. The case was heard in the Court of Appeal, with the decision being appealed from the Magistrates' Court of Victoria. The legal issues at hand centred on whether the evidence presented by the Crown was sufficient to rebut the presumption of accuracy of the Global Positioning System (GPS) used to determine the defendant's location and speed, and whether the defendant had made an honest and reasonable mistake.
The Court of Appeal found that the Crown had failed to provide sufficient evidence to rebut the presumption of accuracy of the GPS. The evidence provided was not specific enough to the circumstances of the case and did not address the defendant's argument that he had made an honest and reasonable mistake. The Court held that the defendant's evidence, if accepted, would establish a reasonable excuse for the speeding offence. The Court also noted that the sentencing of the defendant for a technical offence, without considering the possibility of an honest and reasonable mistake, was problematic. The Court found that the trial magistrate had not considered all the relevant factors in sentencing the defendant, and that the sentence was therefore inappropriate.
As a result of the Court's findings, the appeal was allowed, the conviction was set aside, and the matter was remitted for retrial. The Court emphasised that no new principles were being established in this case, but that the trial magistrate had not properly considered the evidence and arguments presented by the defendant. The Court's decision highlights the importance of considering all relevant evidence and arguments in traffic offence cases, particularly when the defence of an honest and reasonable mistake is raised.
The Court of Appeal found that the Crown had failed to provide sufficient evidence to rebut the presumption of accuracy of the GPS. The evidence provided was not specific enough to the circumstances of the case and did not address the defendant's argument that he had made an honest and reasonable mistake. The Court held that the defendant's evidence, if accepted, would establish a reasonable excuse for the speeding offence. The Court also noted that the sentencing of the defendant for a technical offence, without considering the possibility of an honest and reasonable mistake, was problematic. The Court found that the trial magistrate had not considered all the relevant factors in sentencing the defendant, and that the sentence was therefore inappropriate.
As a result of the Court's findings, the appeal was allowed, the conviction was set aside, and the matter was remitted for retrial. The Court emphasised that no new principles were being established in this case, but that the trial magistrate had not properly considered the evidence and arguments presented by the defendant. The Court's decision highlights the importance of considering all relevant evidence and arguments in traffic offence cases, particularly when the defence of an honest and reasonable mistake is raised.
Orders
Orders of the court
Appeal allowed, conviction set aside, matter remitted for retrial
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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