Phan v DAVIES

[2007] WASC 202

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PHAN -v- DAVIES [2007] WASC 202

CORAM:   BEECH J

HEARD:   2 & 17 AUGUST 2007

DELIVERED          :   5 SEPTEMBER 2007

FILE NO/S:   SJA 1035 of 2007

BETWEEN:   DAN THANH PHAN

Appellant

AND

IVAN EDWARD DAVIES
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE M WHEELER

File No  :PE 8347 of 2005, PE 8348 of 2005, PE 8349 of 2005

Catchwords:

Criminal law - Appeal and application for leave to appeal - Convictions based on pleas of guilty - Whether miscarriage of justice - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr C S Bydder

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

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

Ciorra v Cole [2004] VSC 416; (2004) 150 A Crim R 189

Kahatapitye v The Queen [2004] WASCA 189; (2004) 146 A Crim R 542

Meissner v The Queen (1995) 184 CLR 132

Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154

Palmer v The Queen (Unreported, WASCA, Library No 980335, 18 June 1998)

R v Brooks [2007] SASC 35; (2007) 96 SASR 478

Truscott v The State of Western Australia [2007] WASCA 62

Vella v The State of Western Australia [2006] WASCA 129

BEECH J: 

Introduction

1. On 10 May 2006 the appellant was convicted in the Magistrates Court on his plea of guilty on three traffic charges.

2. The three charges related to events on 14 January 2004 on Stirling Highway, Mosman Park.  The appellant was convicted of:

   (a)failing to stop after a traffic accident causing injury, contrary to s 54(1) of the Road Traffic Act 1974 (WA) (RT Act);

   (b)failing to report an accident whereby an injury was caused to another person, contrary to s 55(1) of the RT Act; and

   (c)dangerous driving, contrary to s 61(1) of the RT Act.

3. On 3 May 2007 the appellant filed a notice of appeal and application for leave to appeal against these convictions.  Thus, the appellant requires an extension (of almost 11 months) of the time for commencing his appeal:  Criminal Appeals Act 2004 (WA) s 10(3).

4. On 7 June 2007, Blaxell J ordered that the application for an extension of time, the application for leave and the appeal were all to be heard together.

5. The appeal notice states the ground of appeal as being that the appellant was not driving and was a passenger, and that his guilty pleas were 'forced'.

Summary

1. The first limb of the ground of appeal asserts his innocence of the charges to which he pleaded guilty; the second limb goes to the circumstances in which he entered his pleas of guilty.

2. The second limb ‑ that his pleas of guilty were 'forced' ‑ fails because it is not established by the evidence.  As will be explained in more detail later in these reasons, the appellant's evidence respecting the circumstances…