Stern v Hodgson - [2012] WASC 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: STERN -v- HODGSON [2012] WASC 23

CORAM: HALL J

HEARD: 12 JANUARY 2012

DELIVERED : 12 JANUARY 2012

FILE NO/S: SJA 1096 of 2011

BETWEEN: RICHARD STERN
Appellant
AND
PAUL RICHARD HODGSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE JONES
File No  :PE 38663 of 2011, PE 41012 of 2011

Catchwords:

Criminal law - Speeding offence - Appellant's reliance on cruise control to limit speed of car - Plea of guilty - Whether appeal against conviction open - Leave to appeal refused

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9
Criminal Code (WA), s 24
Road Traffic Code 2000 (WA), r 9, r 11, r 17

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Borsa v The Queen [2003] WASCA 254
G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183
Hearn v McCann (1982) 29 SAIR 448
Hogue v The State of Western Australia [2005] WASCA 102
Kearon v Grant (1991) 1 VR 321
Liberti (1991) 55 A Crim R 120

HALL J:
(These reasons were delivered extemporaneously on 12 January 2012 and have been edited from the transcript).

On 6 September 2011 the appellant, Mr Stern, was convicted on his plea of guilty of a charge of exceeding the speed limit contrary to Road Traffic Code 2000 (WA) reg 11(3). He was fined $75 and ordered to pay costs of $121.95. He now seeks leave to appeal against his conviction.
Mr Stern filed an appeal notice on the day of his conviction. In it he gives one ground of appeal. It is that his vehicle's factory‑fitted cruise control did not maintain the set speed when the car was going downhill.
In essence, Mr Stern says that after receiving previous speeding infringements and building up a number of demerit points he decided to use the cruise control in his car as a means to ensure that he did not exceed the speed limit on future occasions. He says that notwithstanding this he received another speeding infringement. He says that he then made inquiries as to the operation of the cruise control. He says that those inquiries led him to believe that the cruise control in his vehicle would only maintain a steady speed on a level surface but would not prevent the car from exceeding the set speed when going downhill.
When Mr Stern appeared in the Magistrates Court on 6 September last year he was asked to plead to the charge. He said, 'Guilty with an explanation'.
The alleged facts were brief. They were that just after 12 pm on 11 May 2011 Mr Stern was driving his motor vehicle on West Coast Highway. He was measured by a speed camera driving at 78 kilometres in a 70 kilometre speed zone.
Mr Stern's explanation to…

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 Stern v Hodgson

Details

AGLC: Stern v Hodgson [2012] WASC 23
Case: [2012] WASC 23
Decision Date: 12 JANUARY 2012

CaseChat Overview and Summary

The appellant, Stern, was convicted of exceeding the speed limit while driving. Stern argued that he had been relying on his car's cruise control system to maintain a speed below the limit. Despite entering a plea of guilty, Stern sought to appeal the conviction on the basis that the cruise control system had malfunctioned. The court considered whether an appeal against conviction was permissible and whether leave to appeal should be granted. The central issue was whether the reliance on a faulty cruise control system constituted a defence to a speeding offence, and whether Stern's plea of guilty precluded an appeal against the conviction.

The court determined that an appeal against conviction was not typically available in such circumstances, particularly when a plea of guilty had been entered. It was held that for an appeal against conviction to be permitted, there must be a substantial miscarriage of justice or a serious procedural irregularity. The court found that the reliance on a faulty cruise control system did not amount to a substantial miscarriage of justice and did not present a serious procedural irregularity. The court also noted that the plea of guilty further restricted the grounds upon which an appeal against conviction could be based. Consequently, the court decided that the appeal against conviction should not proceed and refused leave to appeal.

In summary, Stern's appeal against his conviction for speeding was dismissed. The court held that the reliance on a malfunctioning cruise control system did not amount to a substantial miscarriage of justice or a serious procedural irregularity, particularly given that Stern had entered a plea of guilty. The refusal of leave to appeal effectively upheld the conviction.

Orders