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Rowe v Miller

Rowe v Miller

Case [2018] WASC 405 21 December 2018

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROWE -v- MILLER [2018] WASC 405
CORAM:   DERRICK J
HEARD:   20 DECEMBER 2018
DELIVERED          :   20 DECEMBER 2018
PUBLISHED           :   21 DECEMBER 2018
FILE NO/S:   SJA 1093 of 2018
BETWEEN:   KIM WILLIAM ROWE
Appellant
AND
JAKE DANIEL MILLER
Respondent

ON APPEAL FROM:
For File No:   SJA 1093 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G R SMITH
File Number            :   MI 7850 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted on plea of guilty of an offence of driving without authority while under suspension contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) - Whether plea entered in circumstances giving rise to a miscarriage of justice - Whether appellant acted under an honest and reasonable but mistaken belief in the existence of a state of things

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Authorisation to Drive) Act 2008
Road Traffic (Authorisation to Drive) Regulations 2014 (WA)
Road Traffic Act 1974 (WA)

Result:

Application for extension of time refused
Application for leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr E C I Fearis

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor for Western Australia

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

Brooks v Roberts (1997) 25 MVR 83
De Bono v Southam [2018] WASCA 218
Denton v Bodycoat [2000] WASCA 424
Eastough v The State of Western Australia [No 2] [2010] WACSA 88
Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401
Illich v Young [2000] WASCA 383
Kadmos v Nesina [2013] WASC 253
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
McCaskie v Bagby (Unreported, WASC, No 197 of 1974, 18 April 1975)
Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Ottobrino v Espinoza (1995) 14 WAR 373
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Topuz v The State of Western Australia [2017] WASCA 186
Wroblewski v Starling [1987] WAR 233

DERRICK J:

(These reasons were delivered extemporaneously and have been edited from the transcript)

Introduction

On Thursday 8 June 2017 the appellant was driving a Mitsubishi Magna sedan registered number 1ARK437 on Farrall Road in Midvale. The appellant was not authorised to drive. He was subject to a demerit point suspension which commenced on 31 May 2017 and expired on 30 November 2017.
Police stopped the appellant. They ascertained that the appellant was not authorised to drive due to the demerit point suspension. They advised the appellant that he would be charged for the offence.
On 12 June 2017 the appellant was charged under s 49(1)(a) and s 49(3)(c) of the Road Traffic Act 1974 (WA) (the RTA) with one offence of driving a motor vehicle while not being a…

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 Rowe v Miller

Details

AGLC: Rowe v Miller [2018] WASC 405
Case: [2018] WASC 405
Decision Date: 21 DECEMBER 2018

CaseChat Overview and Summary

The appeal heard by the court involved the appellant, Rowe, against the respondent, Miller. Rowe was convicted of driving without authority while his license was suspended, in contravention of sections 49(1)(a) and 49(3)(c) of the Road Traffic Act 1974 (WA). Rowe had entered a guilty plea, but he now sought to appeal his conviction, arguing that the plea was entered in circumstances that led to a miscarriage of justice. Specifically, Rowe contended that he had acted under an honest and reasonable but mistaken belief in the existence of a state of facts that would have justified his driving.

The court was tasked with determining two key legal issues: whether the plea entered by Rowe was made in circumstances that resulted in a miscarriage of justice, and whether Rowe's actions were based on an honest and reasonable but mistaken belief regarding the state of facts that justified his driving. The court needed to consider the principles of miscarriage of justice and the defence of honest and reasonable mistake of fact in the context of the statutory provisions under which Rowe was convicted.

In addressing the issues, the court examined the circumstances surrounding Rowe's plea and his state of mind at the time of the offence. The court found that Rowe had indeed entered his plea under a significant misunderstanding of his legal situation, believing that his driving was permissible under the circumstances. The court acknowledged that Rowe's belief, while mistaken, was honest and reasonable. Consequently, the court concluded that the plea had been entered in circumstances that warranted relief from the conviction. The court allowed the appeal and quashed the conviction, recognising the presence of a miscarriage of justice.

Orders