O'Brien v Ostrowski

Case [1999] WASCA 184

O'BRIEN -v- OSTROWSKI [1999] WASCA 184



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASCA 184
Case No:SJA:1081/199923 AUGUST 1999
Coram:McKECHNIE J24/09/99
22Judgment 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
CITATION : O'BRIEN -v- OSTROWSKI [1999] WASCA 184 CORAM : McKECHNIE J HEARD : 23 AUGUST 1999 DELIVERED : 24 SEPTEMBER 1999 FILE NO/S : SJA 1081 of 1999 BETWEEN : KEVIN MICHAEL O'BRIEN
    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.

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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