PERRY -v- CARRIER [2013] WASC 299

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 299
Case No:	SJA:1029/2013	Heard:	3 JULY 2013
Coram:	CORBOY J	Delivered:	13/08/13
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction set aside Remitted to Magistrates Court of Western Australia for retrial
Category:	B
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Parties:	LEANNE MICHELE PERRY PAUL ROBERT CARRIER
Catchwords:	Criminal law and procedure Appellant convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA) Appellant not served according to sch 2 of the Criminal Procedure Act Effect of failure to serve Whether proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) could be applied
Legislation:	Criminal Appeals Act 2004 (WA), s 14 Criminal Procedure Act 2004 (WA), s 55
Case References:	AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Koh v City of Joondalup [2012] WASC 493 Tallot v Matier [2012] WASC 290 Weiss v R [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : PERRY -v- CARRIER [2013] WASC 299 CORAM : CORBOY J HEARD : 3 JULY 2013 DELIVERED : 13 AUGUST 2013 FILE NO/S : SJA 1029 of 2013 BETWEEN : LEANNE MICHELE PERRY

Appellant

AND

PAUL ROBERT CARRIER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P A ROTH

File No : MD 436 of 2012

Catchwords:

Criminal law and procedure - Appellant convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA) - Appellant not served according to sch 2 of the Criminal Procedure Act - Effect of failure to serve - Whether proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) could be applied

Legislation:

Criminal Appeals Act 2004 (WA), s 14

Criminal Procedure Act 2004 (WA), s 55

Result:

Appeal allowed

Conviction set aside
Remitted to Magistrates Court of Western Australia for retrial

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr J F Bennett

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Koh v City of Joondalup [2012] WASC 493
Tallot v Matier [2012] WASC 290
Weiss v R [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 CORBOY J: The appellant was charged by a prosecution notice dated 1 November 2012 that she 'drove a motor vehicle, registered number 1DSI-123, on a road, namely Great Eastern Highway, with a blood alcohol content above 0.05 grams of alcohol per 100…

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 Perry v Carrier

Details

AGLC: PERRY -v- CARRIER [2013] WASC 299
Case: [2013] WASC 299
Decision Date: 13 AUGUST 2013

CaseChat Overview and Summary

Perry, the appellant, was convicted in her absence of a criminal offence under section 55 of the Criminal Procedure Act 2004 (WA). The conviction was rendered in the Magistrates Court of Western Australia. The issue before the court was whether the appellant's conviction was valid, given she had not been served with the necessary documents in accordance with schedule 2 of the Criminal Procedure Act 2004 (WA). The appellant argued that the failure to serve these documents invalidated her conviction. The court needed to determine if the proviso in section 14(2) of the Criminal Appeals Act 2004 (WA) could be applied to allow for the appeal to proceed.

The court examined the relevant sections of the Criminal Procedure Act and the Criminal Appeals Act, finding that the failure to serve the documents invalidated the appellant's conviction. The court held that the proviso in section 14(2) of the Criminal Appeals Act allowed for the appeal to proceed despite the procedural error. The court found that the appellant's absence from the proceedings due to the failure to serve the documents was a significant procedural irregularity that warranted setting aside the conviction and ordering a retrial.

Consequently, the appeal was allowed, the conviction was set aside, and the matter was remitted to the Magistrates Court of Western Australia for a retrial. The court's decision emphasised the importance of proper service of documents in criminal proceedings and the need to adhere to statutory requirements to ensure a fair trial.

Orders

Orders of the court

Appeal allowed

Conviction set aside

Remitted to Magistrates Court of Western Australia 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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