SPOCTER v Devilee - [2003] WASCA 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: SPOCTER -v- DEVILEE [2003] WASCA 60

CORAM: SCOTT J

HEARD: 13 MARCH 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: SJA 1006 of 2002

BETWEEN: ROBYN SUZANNE SPOCTER
Appellant
AND
MICHAEL DEVILEE
Respondent

Catchwords:

Traffic law - Offences - Dangerous Driving - Appeal - Admissibility of hearsay evidence - Contention by appellant that passenger admitted responsibility for accident - Passenger not called as witness by prosecution or defence - Evidence inadmissible if given to establish truth - No evidence to support contention of appellant

Legislation:

Road Traffic Act 1974, s 59(1)

Result:

Extension of time granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr I D Hope
Respondent: Ms S M De Maio

Solicitors:

Appellant: Ian Hope
Respondent: State Director of Public Prosecutions

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

Button v The Queen (2002) 25 WAR 382
Hemsley v McLean (1995) 22 MVR 33
Kaighin v The Queen (1990) 1 WAR 390
Mickelberg v The Queen (1989) 167 CLR 259
Moore v Moore [2001] WASCA 126
Ratten v The Queen (1974) 131 CLR 510
Richardson v The Queen (1974) 131 CLR 116
Skubevski v The Queen [1977] WAR 129 at 137
Subramaniam v Public Prosecutor [1956] 1 WLR 965

Case(s) also cited:

Nil

SCOTT J: The appellant was charged on complaint that on 16 January 2001 at Pearsall she drove a motor vehicle registered number 1ATE‑341 on a road, namely, Wanneroo Road, in a manner that was, having regard to all the circumstances, dangerous to the public or to any person and thereby caused grievous bodily harm to one Mirsad Krijestorac.
The appellant pleaded not guilty to that charge and, following a trial in the Court of Petty Sessions which commenced on 30 October 2001 and concluded on 6 December 2001, she was convicted.
The charges arose out of an accident on Wanneroo Road in Pearsall. The appellant had been driving the vehicle identified in the complaint in a southerly direction on Wanneroo Road. The time was between 3.30 and 4 pm. In the vehicle, apart from the appellant, was a passenger in the front seat, Mirsad Krijestorac ("Mr Krijestorac"), the person referred to in the complaint, and in the rear of the vehicle, a second passenger, Bianca Panasuik, and the appellant's son Thomas in a child's seat. Ms Panasuik was behind the driver.
The appellant was driving the vehicle to Hillarys for the purpose of catching a ferry to Rottnest.
It is common ground that the accident occurred when the appellant attempted to put on her sunglasses which had been resting on her lap. In the course of attempting to put the sunglasses on her head the appellant dropped them back onto her lap. The appellant then reached and looked down for the purpose of recovering the sunglasses. The appellant managed to pick the sunglasses up and, as she lifted her head, the vehicle swerved. The appellant muttered an expletive and Mr Krijestorac told her to put the brake on.…

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 SPOCTER v Devilee

Details

AGLC: SPOCTER v Devilee [2003] WASCA 60
Case: [2003] WASCA 60
Decision Date: 26 MARCH 2003

CaseChat Overview and Summary

The case of SPOCTER v Devilee involved the appellant contesting a conviction for dangerous driving, with the appeal focusing on the admissibility of hearsay evidence. The appellant argued that a passenger in the vehicle had admitted responsibility for the accident, which was not presented as evidence by either the prosecution or the defence. The Court of Appeal was tasked with determining whether such hearsay evidence could be admitted and if it could substantiate the appellant's claim. The central issue was whether the hearsay evidence was admissible to establish the truth of the matter asserted and if it supported the appellant's defence that the passenger was responsible for the accident.

The court examined the nature of the evidence and the rules governing hearsay. It noted that hearsay evidence is generally inadmissible if its sole purpose is to prove the truth of the matter asserted. The court further considered whether the evidence was necessary to support the appellant's defence that the passenger was responsible for the accident. The court found that since the passenger was not called as a witness by either party, there was no evidence to substantiate the appellant's claim. Consequently, the hearsay evidence was deemed inadmissible and insufficient to support the appellant's defence.

The Court of Appeal upheld the conviction for dangerous driving, rejecting the appeal. The reasoning was that the hearsay evidence, which was not properly presented in court, did not meet the criteria for admissibility and did not provide a basis to overturn the conviction. The court confirmed that the evidence needed to be direct and not based on hearsay unless it fell within an exception to the hearsay rule. Since no such exception applied in this case, the appeal was dismissed. The conviction for dangerous driving remained intact, and the court did not order any further proceedings.

Orders