TEY -v- CARPENTER [2011] WASC 263

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 263
Case No:	SJA:1021/2011	Heard:	12 SEPTEMBER 2011
Coram:	MAZZA J	Delivered:	29/09/11
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	KOK YONG TEY MICHAEL FRANCIS CARPENTER
Catchwords:	Criminal law Appeal against conviction and sentence No authority to drive Whether the prosecution gave full disclosure Whether the magistrate erred in granting the prosecutor's application to amend the prosecution notice Whether the magistrate erred in allowing the prosecution to adduce a certificate under s 98(1b) of the Road Traffic Act 1974 (WA) Whether it was open to the magistrate to convict on the evidence Whether the penalty imposed was manifestly excessive Whether the prosecution should have been issued in the name of a specific police officer or in the generic name of the WA Police
Legislation:	Criminal Procedure Act 2004 (WA), s 20(3)(a)(iii), s 42(1), s 60, s 60(5), s 61, s 61(5), s 132, s 132(1), s 132(3), s 132(4), s 132(10) Magistrates Court Act 2004 (WA), s 30 Road Traffic Act 1974 (WA), s 49(1)(a), s 98, s 98(1), s 98(1b), s 98(1c)
Case References:	City of Gosnells v Heydon [2010] WASC 344; (2010) 178 LGERA 120 Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 Tey v Plotz [2011] WASCA 194 The State of Western Australia v JWRL (a child) [2010] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : TEY -v- CARPENTER [2011] WASC 263 CORAM : MAZZA J HEARD : 12 SEPTEMBER 2011 DELIVERED : 29 SEPTEMBER 2011 FILE NO/S : SJA 1021 of 2011 BETWEEN : KOK YONG TEY

Appellant

AND

MICHAEL FRANCIS CARPENTER

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE LAWRENCE

File No : FR 1449 of 2010

(Page 2)

Catchwords:

Criminal law - Appeal against conviction and sentence - No authority to drive - Whether the prosecution gave full disclosure - Whether the magistrate erred in granting the prosecutor's application to amend the prosecution notice - Whether the magistrate erred in allowing the prosecution to adduce a certificate under s 98(1b) of the Road Traffic Act 1974 (WA) - Whether it was open to the magistrate to convict on the evidence - Whether the penalty imposed was manifestly excessive - Whether the prosecution should have been issued in the name of a specific police officer or in the generic name of the WA Police

Legislation:

Criminal Procedure Act 2004 (WA), s 20(3)(a)(iii), s 42(1), s 60, s 60(5), s 61, s 61(5), s 132, s 132(1), s 132(3), s 132(4), s 132(10)

Magistrates Court Act 2004 (WA), s 30
Road Traffic Act 1974 (WA), s 49(1)(a), s 98, s 98(1), s 98(1b), s 98(1c)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr M B Danger

Solicitors:

Appellant…

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 Tey v Carpenter

Details

AGLC: Tey v Carpenter [2011] WASC 263
Case: [2011] WASC 263
Decision Date: 29 SEPTEMBER 2011

CaseChat Overview and Summary

The appellant, Tey, was convicted of driving while disqualified and appealed against both the conviction and the sentence. The conviction arose from an incident where the appellant was caught driving a car while disqualified from driving. The appeal was heard in the Supreme Court of Western Australia. The appellant argued that the prosecution had not provided full disclosure, that the magistrate erred in allowing the prosecution to amend the prosecution notice and in admitting a certificate under section 98(1b) of the Road Traffic Act 1974 (WA), that it was not open to the magistrate to convict based on the evidence presented, that the penalty imposed was manifestly excessive, and that the prosecution should have been brought in the name of a specific police officer rather than in the generic name of the WA Police.

The court held that the prosecution had provided full disclosure and that the magistrate did not err in allowing the prosecution to amend the prosecution notice or in admitting the certificate. The court found that it was open to the magistrate to convict based on the evidence presented, that the penalty imposed was not manifestly excessive, and that the prosecution could be brought in the generic name of the WA Police. The appeal was dismissed, and leave to appeal was refused.

The court dismissed the appeal and refused leave to appeal, upholding the conviction and sentence of the appellant. The decision confirms that the prosecution can bring charges in the generic name of the WA Police, that the magistrate has discretion in admitting evidence and that the penalty imposed must not be manifestly excessive to be valid.

Orders

Orders of the court

Leave to appeal refused

Appeal 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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