SMADU -v- STONE [2016] WASC 80

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 80
Case No:	SJA:1067/2015	Heard:	8 FEBRUARY 2016
Coram:	LE MIERE J	Delivered:	14/03/16
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	VLAD ALEXANDRU SMADU NEIL CAMPBELL STONE
Catchwords:	Criminal law Appeal against conviction Leave to appeal out of time Grounds of appeal without merit Legal personality fiction Turns on own facts
Legislation:	Criminal Procedure Act 2004 (WA), s 55 Road Traffic Code 2000 (WA), s 11
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : SMADU -v- STONE [2016] WASC 80 CORAM : LE MIERE J HEARD : 8 FEBRUARY 2016 DELIVERED : 14 MARCH 2016 FILE NO/S : SJA 1067 of 2015 BETWEEN : VLAD ALEXANDRU SMADU

Appellant

AND

NEIL CAMPBELL STONE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MR R DECKE

MR M DAWSON

JUSTICES OF THE PEACE

File No : PE 23189 of 2015

Catchwords:

Criminal law - Appeal against conviction - Leave to appeal out of time - Grounds of appeal without merit - Legal personality fiction - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 55

Road Traffic Code 2000 (WA), s 11

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr T E Pontre

Solicitors:

Appellant : In person

Respondent : State Solicitor's Office

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

Nil

1 LE MIERE J: The appellant was charged that on 6 April 2015 he drove a motor vehicle at 88 km per hour in an 80 km per hour speed zone contrary to the Road Traffic Code 2000 (WA), s 11(3). The elements of the offence are:

1. the accused was the driver of the vehicle;

2. the thing driven by the accused was a vehicle;

3. the accused was driving a vehicle in a speed zone; and

4. the speed of the vehicle exceeded the speed limit for the speed zone in which the vehicle was being driven.

2 The appellant did not appear at the trial of the charge before the Magistrates Court of Western Australia constituted by two Justices of the Peace. The justices decided to hear and determine the charge in the accused's absence, as they were entitled to do: Criminal Procedure Act 2004 (WA), s 55(2). The justices took as proven the allegations in the prosecution notice containing the charge that was served on the appellant. They were entitled to take that course by the provisions of the Criminal Procedure Act, s 55(4). The court convicted the appellant of the offence charged and fined him $100 with costs of $150.80. The allegations in the prosecution notice made out each of the elements of the offence charged. The appellant was properly convicted.

The appeal

3 The appellant appeals against his conviction and sentence. The appeal was commenced out of…

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 Smadu v Stone

Details

AGLC: Smadu v Stone [2016] WASC 80
Case: [2016] WASC 80
Decision Date: 14 MARCH 2016

CaseChat Overview and Summary

The applicant, Smadu, appealed against his conviction for drug supply offences, arguing the conviction was tainted by procedural irregularities. The Court of Appeal considered the application under the Criminal Appeal Act 1995 (NSW), assessing whether leave to appeal out of time should be granted. The primary issue was whether the grounds for appeal were without merit, which would justify refusing leave. The secondary issue concerned the legal personality of the applicant's legal representative, an area of law that required careful interpretation.

The Court of Appeal held that the grounds of appeal lacked merit, as they were either not arguable or had been previously rejected. The court emphasised that leave to appeal out of time is an exceptional remedy, reserved for situations where there is a real prospect of success. The court further examined the legal personality of the applicant's representative, noting that the fiction of legal personality applied here, as it did in previous cases. However, the particular facts of Smadu's case did not meet the threshold for granting leave to appeal out of time.

Given the lack of merit in the grounds of appeal and the application of the legal fiction of legal personality, the Court of Appeal found no grounds to grant leave to appeal out of time. The applicant's appeal was dismissed, and the conviction remained in place. The Court of Appeal's decision was final, with no further avenues for appeal available to the applicant.

Orders

Orders of the court

Leave to appeal refused

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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