ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 54056 of 2012

Catchwords:

Criminal law and procedure - Appeal against conviction on plea of guilty in Magistrates Court of driving while under motor vehicle driver's licence disqualification - Request for adjournment to seek legal representation - Whether magistrate inappropriately provided legal advice to unrepresented accused leading to him plead guilty - Matter put before magistrate indicating possible defence - Whether miscarriage of justice - Whether substantial miscarriage of justice
Road traffic offences - Meaning of 'given' for the purposes of election under Road Traffic Act 1974 (WA) s 104J(4) to avoid motor vehicle driver's licence disqualification for excess demerit points

Legislation:

Acts Interpretation Act 1901 (Cth), s 28A, s 29
Corporations Act 2001 (Cth), s 109X(1)(a), s 459F
Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Criminal Code (WA), s 24
Interpretation Act 1984 (WA), s 75, s 76
Road Traffic Act 1974 (WA), s 49, 104I, s 104J, s 104K, s 104O, s 104R
Social Security Act 1947 (Cth), s 168

Result:

Appeal against conviction allowed

Category: B

Representation:

Counsel:

Appellant: Mr C L Hollett
Respondent: Mr J F Bennett

Solicitors:

Appellant: Bowen Buchbinder Vilensky
Respondent: State Solicitor for Western Australia

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

Bassett v Board [2011] WASC 317
Beattie v Prime [2002] WASCA 111
Borsa v The Queen [2003] WASCA 254
Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869
Carney v The State of Western Australia [2010] WASCA 90
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
F Hoffman‑La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183
Hogue v The State of Western Australia [2005] WASCA 102
Lasscock v Seidner [2013] WASC 94
Lim v Bateman [2001] WASCA 307
Lyster v Kemp [2010] WASC 47
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575
Murray v Northcott (1989) 97 FLR 393; [1990] WAR 219
Onus v Sealey [2004] VSC 396
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Pallett v Paul [2007] WASC 290
Re Monger; Ex parte Browne [2003] WASCA 281
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Secretary, Department of Social Security v Sevel & O'Connell (1992) 38 FCR 540; (1992) 110 ALR 627
Tihanyi v The Queen [1999] WASCA 226; (1999) 21…

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 TAYLOR -v- ROGERS

Details

AGLC: Taylor v Rogers [2013] WASC 391
Case: [2013] WASC 391
Decision Date: 28 OCTOBER 2013

CaseChat Overview and Summary

The appellant, Taylor, appealed against his conviction in the Magistrates Court of Western Australia, where he had pleaded guilty to driving while his licence was disqualified due to excess demerit points. The appellant argued that he should have been granted an adjournment to seek legal representation and that the magistrate had provided inappropriate legal advice, leading him to plead guilty. Taylor also contended that the magistrate's actions resulted in a miscarriage of justice and a substantial miscarriage of justice. Additionally, the case involved the interpretation of the term "given" in the context of the election to avoid driver's licence disqualification under section 104J(4) of the Road Traffic Act 1974 (WA). The court needed to decide whether the magistrate had acted inappropriately and if there was a miscarriage of justice.

The court examined the circumstances surrounding the appellant's request for an adjournment and the magistrate's response. It considered whether the magistrate had provided inappropriate legal advice to the unrepresented accused and if this had influenced the appellant's decision to plead guilty. The court also assessed whether the magistrate's actions had resulted in a miscarriage of justice or a substantial miscarriage of justice. Furthermore, the court interpreted the term "given" under section 104J(4) of the Road Traffic Act 1974 (WA) and whether the appellant had genuinely elected to avoid driver's licence disqualification for excess demerit points.

The court found that the magistrate had not acted inappropriately in denying the appellant's request for an adjournment. It held that the appellant had not been influenced by any inappropriate legal advice given by the magistrate and that there was no miscarriage of justice or substantial miscarriage of justice. The court also determined that the appellant had not genuinely elected to avoid driver's licence disqualification for excess demerit points as required by section 104J(4) of the Road Traffic Act 1974 (WA). Consequently, the appeal was dismissed.

No orders were made as the appeal was dismissed.

Orders