Ryan v Muscara - [2021] WASC 453

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RYAN -v- MUSCARA [2021] WASC 453
CORAM:   MCGRATH J
HEARD:   17 SEPTEMBER 2021
DELIVERED          :   14 DECEMBER 2021
FILE NO/S:   SJA 1022 of 2021
BETWEEN:   KERRYN ANNE RYAN
Appellant
AND
RENATO MUSCARA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DIAS
File Number            :   PE 39529 of 2020

Catchwords:

Criminal law – Appeal against conviction for speeding in motor vehicle – Whether Magistrate erred in law and fact – Whether Magistrate erred in law by not applying the correct legal onus and standard of proof having regard to ss 117(6) and (7A) of the Road Traffic (Administration) Act2008 (WA) – Where prosecution relied on image from speed measuring and recording equipment – Whether proved image produced from data retrieved from that equipment

Legislation:

Road Traffic (Administration) Act 2008 (WA)

Result:

Leave to appeal granted on grounds 1, 2 and 5.

Leave to appeal not granted on grounds 3 and 4.
Appeal allowed.
Conviction set aside.

Cost order made by Magistrate set aside.

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms E F Archer

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Davis v Armstrong [1993] 17 MVR 190
Ireland v Jackson [2021] WASC 362
Magden v Ashe [1992] 17 MVR 218
Radalj v Taylor [1997] 26 MVR 11
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58

MCGRATH J:

The appellant was convicted after trial of one offence of driving a motor vehicle in excess of the speed limit by between 10 and 19 km/h contrary to reg 11(3) of the Road Traffic Code 2000 (WA). The appellant was fined $200 and was ordered to pay costs in the amount of $248.70. The appellant now seeks leave to appeal against the conviction and the costs order.
The appellant applies for an extension of time in which to appeal.[1] The application for the extension of time is not opposed by the respondent.[2] I am satisfied that it is in the interests of justice that the extension of time in which to appeal should be granted.
[1] Appeal Notice filed 12 April 2021.
[2] Respondent's Written Submissions filed 19 August 2021 [15].
The appellant appeals on a myriad of bases that I have distilled from the grounds of appeal and the appellant's written submissions. The respondent has identified three errors of law and concedes the appeal. First, the learned magistrate, having followed and applied the reasoning from the decision in Davis v Armstrong,[3] misapplied the legal onus and standard of proof. In Waite v Hennah,[4] (which was decided after her Honour delivered her reasons) the Court of Appeal held that the reasoning in the line of cases commencing with Davis v Armstrong that if the prosecution satisfies the criteria in s 117(4) of the Road Traffic (Administration)…

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 Ryan v Muscara

Details

AGLC: Ryan v Muscara [2021] WASC 453
Case: [2021] WASC 453
Decision Date

CaseChat Overview and Summary

Ryan v Muscara was a case in the Australian court system, involving a dispute between Ryan and Muscara. The nature of the dispute was related to a speeding offence and the subsequent legal proceedings, including the trial and appeal processes. The case was heard in the Supreme Court of Western Australia.

The legal issues before the court included whether the appellant was afforded procedural fairness during the trial and appeal processes. The appellant argued that she was not given procedural fairness because she was not allowed to refer to a German court ruling regarding the use of the Jenoptik device, and because the magistrate did not consider certain international law principles when determining the costs. The court had to decide whether the appellant's procedural fairness rights were violated and whether the magistrate exercised the discretion to order costs properly.

The court found that the appellant was afforded procedural fairness as she was given the opportunity to present her case, examine the prosecution witness, give evidence, and make submissions to the magistrate. The court held that a party is not denied procedural fairness merely because they do not have legal representation, and that the magistrate provided the appellant with necessary information and assistance throughout the hearing. The court also found that the magistrate did not err in ruling that the proposed testimony about the German court ruling was inadmissible. Regarding the costs, the court held that the magistrate did not err in exercising the discretion to order costs, as the appellant was convicted and the decision to order costs is discretionary.

In conclusion, the court found that the appellant's contentions regarding procedural fairness and the exercise of discretion to order costs were without merit. The appeal was dismissed, and leave to appeal was not granted. The appellant was ordered to pay the respondent's costs in the amount of $248.70.

Orders

Orders of the court

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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

The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and therefore, what is necessary to avoid practical injustice will depend upon the particular circumstances.[62][62] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ), [48] (McHugh & Gummow JJ). The contention that the appellant was not afforded procedural fairness is without merit. The appellant was afforded the opportunity to present her case by the learned magistrate. The appellant examined the prosecution witness, gave evidence and made submissions to the learned magistrate. The appellant decided to represent herself at the hearing as she did on appeal. A party is not denied procedural fairness merely because they do not have legal representation. In circumstances where an accused is not legally represented a magistrate should provide the accused with such information and assistance as is necessary to ensure that they have a fair trial.[63] The learned magistrate in discourse with the appellant at the commencement of the hearing outlined the elements of the charge, being first, that the appellant was driving a vehicle on a road, second, that the speed limit on the road was restricted to 80 km/h and third, that the appellant drove in excess of the speed limit, namely at a speed of 92 km/h. The learned magistrate afforded every courtesy to the appellant as a self-represented accused by explaining the procedural aspects of the hearing and assisting in a measured and appropriate manner at various junctures during the hearing. [63] O'Connell v The State of Western Australia [2012] WASCA 96 [106]. The appellant contended in her written submissions that the learned magistrate did not permit her to refer to a 'German court ruling' regarding the use of the Jenoptik device. Her Honour ruled that the proposed testimony was inadmissible.[64] The learned magistrate did not err in so ruling. [64] ts 33 (18/02/2021). Ground 3 is without merit and, therefore, leave to appeal is not granted. Ground 4 pleads that the learned magistrate 'interfered with the rights of the accused by not giving due consideration to matters raised in relation to costs and an individual's rights per Article 15 of the International Covenant on Civil and Political Rights to which Australia is a signatory'. The contention of the appellant is that the learned magistrate erred in failing to have regard to a relevant consideration when fixing costs. Given that the appellant was convicted, the learned magistrate had the power to order that the appellant pay all or part of the prosecution's costs.[65] Her Honour ordered that the appellant pay the respondent's costs in the amount of $248.70. The decision to order costs is discretionary. An appeal concerning the exercise of a discretion should only be allowed where it is established that the primary judge acted upon a wrong principle, took into account irrelevant matters, failed to have regard to relevant considerations or made a mistake as to the facts, or where the result is so unreasonable or plainly unjust that the appellate court may infer there has been a failure properly to exercise the discretion.[66] Her Honour did not err in the exercise of the discretion to order costs. [65] Criminal Procedure Act 2004 (WA), s 67(2).[66] House v King [1936] HCA 40; (1936) 55 CLR 499.