Stephen Kempe v Paul Adrian Bailey

STEPHEN KEMPE v PAUL ADRIAN BAILEY [2003] ACTSC 13 (14 March 2003)

CRIMINAL LAW – “burnout” – nature of offence considered.
APPEAL FROM MAGISTRATES COURT – analysis of reasons – need to adequately assess credibility of prosecution witnesses notwithstanding rejection of evidence adduced by defence.
APPEAL – allegation of apprehended bias – special Magistrate maintaining employment as officer of the Commonwealth Director of Public Prosecutions – appellant prosecuted for traffic offence under Territory laws – relevance of finding based on perceived implausibility of conduct attributed to police officer. 

Road Transport (Safety and Traffic Management) Act 1999, s 5B(1), subs 5(B)(2)
Road Transport (General) Act 1999, s 63
Director of Public Prosecutions Act 1983 (Cth)
ACT Self-Government (Consequential Provisions) Regulations
Serratore, 81 A Crim R 363
Patrick John Sikorski v Peter Gritsh (unreported), [2002] ACTSC 55 Miles CJ, 6 June 2002
Devries v Australian National Railways Commission (1993) 177 CLR 472
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (Liq) (1999) 73 ALJR 306
R v Justice R S Watson, a Judge of the Family Court of Australia, Ex Parte Armstrong (1976) 9 ALR 551
R v Cavit & Anor; Ex Parte Rosenfield (1985) 33 NTR 29
Nickelseekers Ltd v Vance (1985) 1 Qd R 266
R v Williams; Ex Parte Phillips [1914] 1 KB
Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Abdul Haque Omarjee (1995) 79 A Crim R 355

“The Courts as Legislators”, The Lawyer and Justice, (Sweet & Maxwell) (1978)
Macquarie Dictionary of Slang

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 46 of 2002

Judge:          Crispin J
Supreme Court of the ACT
Date:           14 March 2003

IN THE SUPREME COURT OF THE     )
  )          No. SCA 46 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:STEPHEN KEMPE

Appellant

AND:PAUL ADRIAN BAILEY

Respondent

ORDER

Judge:  Crispin J
Date:  14 March 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed;

2. the conviction, penalty and orders be set aside; and

3. the matter be remitted to the Magistrates Court for re-hearing.

1. This is an appeal against a decision of Special Magistrate Lalor convicting the appellant of a “burnout” of his motor vehicle in contravention of s 5B(1) of the Road Transport (Safety and Traffic Management) Act 1999.

1. The case for the prosecution was substantially dependent upon the evidence of two police officers.  Constable Bailey gave evidence that he had seen the wheels of the appellant’s vehicle spinning and that he had heard a loud screeching noise which lasted for four seconds.  He said that when he spoke to the accused, the accused told him that he had thought that he “had three seconds”.  His evidence was substantially corroborated by that of Constable McIntosh, who said that he had heard the sound of tyres spinning on bitumen and that the sound had lasted for approximately three or four seconds.

1. On the other hand, the appellant gave evidence denying these allegations that he had…