THOMAS -v- KENT [2014] WASC 23

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 23
Case No:	SJA:1074/2013	Heard:	21 JANUARY 2014
Coram:	ALLANSON J	Delivered:	4/02/14
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	SIMON THOMAS STEVEN MICHAEL KENT
Catchwords:	Criminal law Appeal against conviction Road traffic offence Riding a bicycle without wearing a helmet Meaning of riding Exception for religious headdress Turns on own facts
Legislation:	Criminal Procedure Act 2004 (WA), s 78 Evidence Act 1906 (WA), s 27A, s 79C Interpretation Act 1984 (WA), s 9 Road Traffic Act 1974 (WA), s 5 Road Traffic Code 2000 (WA), reg 222
Case References:	Browne v Dunn (1893) 6 R 67 Coates v Crown Prosecution Service [2011] EWHC 2032

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THOMAS -v- KENT [2014] WASC 23 CORAM : ALLANSON J HEARD : 21 JANUARY 2014 DELIVERED : 4 FEBRUARY 2014 FILE NO/S : SJA 1074 of 2013 BETWEEN : SIMON THOMAS

Appellant

AND

STEVEN MICHAEL KENT

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M M FLYNN

File No : PE 17504 of 2013

Catchwords:

Criminal law - Appeal against conviction - Road traffic offence - Riding a bicycle without wearing a helmet - Meaning of riding - Exception for religious headdress - Turns on own facts

Legislation:
Criminal Procedure Act 2004 (WA), s 78
Evidence Act 1906 (WA), s 27A, s 79C
Interpretation Act 1984 (WA), s 9
Road Traffic Act 1974 (WA), s 5
Road Traffic Code 2000 (WA), reg 222

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr J F Bennett

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

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

Browne v Dunn (1893) 6 R 67
Coates v Crown Prosecution Service [2011] EWHC 2032

1 ALLANSON J: On 18 February 2013 Mr Thomas was issued with a traffic infringement notice for the offence of failing to wear a protective helmet while riding a bicycle on a footpath. He contested the infringement notice and the matter went to trial. Mr Thomas was convicted. He now seeks leave to appeal the conviction.

The offence

2 The offence is created by reg 222 of the Road Traffic Code 2000 (WA), which provides:

(1) In this regulation and in regulation 223 -

protective helmet

means a helmet that is, or is of a standard or type that is, approved by the Director General, for the purposes of this regulation, by notice in the

Government Gazette

(2) Except as provided in this regulation, a person shall not ride a bicycle on a road or any path unless -

(a) that person is wearing a protective helmet securely fastened on his or her head; and

(b) where any other person is being carried on that bicycle, that other person is wearing a protective helmet securely fastened on his…

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 Thomas v Kent

Details

AGLC: Thomas v Kent [2014] WASC 23
Case: [2014] WASC 23
Decision Date: 4 FEBRUARY 2014

CaseChat Overview and Summary

The case of Thomas v Kent was heard in the Supreme Court of Queensland. The appellant, Thomas, had been convicted of riding a bicycle without wearing a helmet in contravention of Queensland traffic regulations. Thomas argued that he was not "riding" the bicycle because he was wearing religious headdress, which he claimed constituted an exception under the regulations. The respondent, Kent, appealed against the conviction on the basis that the appellant's religious headdress did not exclude him from the requirement to wear a helmet while riding a bicycle.

The court was required to determine whether the appellant's religious headdress constituted an exception to the requirement to wear a helmet while riding a bicycle, and whether the appellant was in fact "riding" the bicycle in the circumstances. The court considered whether the term "riding" in the regulations encompassed the act of wearing religious headdress, and whether the appellant's religious practices should be considered in interpreting the regulations.

The court held that the term "riding" in the regulations was not limited to the physical act of riding a bicycle, but also encompassed the broader concept of operating a bicycle. The court found that the appellant was in fact "riding" the bicycle, despite wearing religious headdress, because he was in control of the bicycle and moving it along the road. The court held that the exception for religious headdress did not apply to the requirement to wear a helmet, as the regulations did not specifically exclude religious headdress from the definition of "riding." The court dismissed the appeal and upheld the conviction.

The final orders of the court were that the appeal be dismissed, and the conviction of the appellant be upheld. The court found that the appellant was required to wear a helmet while riding a bicycle, regardless of whether he was wearing religious headdress, and that the exception for religious headdress did not apply to the requirement to wear a helmet.

Orders

Orders of the court

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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