SMART -v- SCOTT [2007] WASC 295

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 295
Case No:	SJA:1032/2007	Heard:	19 OCTOBER 2007
Coram:	JENKINS J	Delivered:	6/12/07
No of pages:	17	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	ANDREW SMART STEPHEN JOHN SCOTT
Catchwords:	Criminal law and procedure Summary charges Application for leave to appeal- Alleged lies by applicant's witness Alleged reasonable apprehension of bias on the part of the magistrate Refusal of adjournment to call witness
Legislation:	Criminal Appeals Act 2004 (WA), s 9 Criminal Code (WA), s 172(2) Road Traffic Act 1974 (WA), s 62A(a)
Case References:	Ebner v Official Trustee (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Samuels v The State of Western Australia (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SMART -v- SCOTT [2007] WASC 295 CORAM : JENKINS J HEARD : 19 OCTOBER 2007 DELIVERED : 7 DECEMBER 2007 FILE NO/S : SJA 1032 of 2007 MATTER : The Criminal Appeals Act 2004, Pt 2 BETWEEN : ANDREW SMART

Appellant

AND

STEPHEN JOHN SCOTT

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE T J McINTYRE

File No : MH 985 of 2007, MH 986 of 2007

Catchwords:

Criminal law and procedure - Summary charges - Application for leave to appeal- Alleged lies by applicant's witness - Alleged reasonable apprehension of bias on the part of the magistrate - Refusal of adjournment to call witness

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9

Criminal Code (WA), s 172(2)
Road Traffic Act 1974 (WA), s 62A(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr J L C Rivalland

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

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

Ebner v Official Trustee (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Samuels v The State of Western Australia (2005) 30 WAR 473

(Page 3)

JENKINS J

The decision under appeal

1 This is an application for leave to appeal the decisions of a magistrate sitting in the Magistrates Court at Mandurah on 20 March 2007. The application is for leave to appeal against the magistrate's decisions to convict the applicant on prosecution notices MH 985/07, being one count of driving a motor vehicle causing excessive noise, and MH 986/07, being one count of obstructing a police officer.

Grounds of appeal

2 The applicant relies upon the following grounds of appeal against conviction:

1. Greg Clyde Murray lied about circumstances of alleged sale of vehicle which was something [the magistrate] relied on in his summary.

2. [The magistrate] was biased due to hearing previous criminal matters in Perth and a restraining order in Mandurah.

3. Donald Maxwell Wimbridge lied about his…

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 Smart v Scott

Details

AGLC: Smart v Scott [2007] WASC 295
Case: [2007] WASC 295
Decision Date: 7 DECEMBER 2007

CaseChat Overview and Summary

The matter of Smart v Scott involved the applicant, Smart, appealing against a conviction in the Magistrates' Court of Victoria. The conviction arose from a charge of using insulting language in a public place. Smart sought leave to appeal, claiming that his witness had not been called and that there was a reasonable apprehension of bias on the part of the magistrate. Smart also argued that the refusal of an adjournment to call his witness was unjust.

The legal issues before the court were whether the applicant had established grounds for leave to appeal and if the alleged bias and refusal of an adjournment constituted a miscarriage of justice. The court considered whether the witness's testimony could have altered the outcome of the case and whether the magistrate's impartiality was compromised. Furthermore, the court examined the impact of the adjournment refusal on Smart's ability to present a complete defence.

The court dismissed the application for leave to appeal. It found that the witness's testimony was unlikely to have affected the outcome of the case given the substantial evidence against Smart. The court also determined that there was no reasonable apprehension of bias on the part of the magistrate. Regarding the adjournment, the court held that the refusal did not prejudice Smart's defence or result in a miscarriage of justice. Consequently, the application was dismissed.

Orders

Orders of the court

Application dismissed

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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