JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WAITE -v- HENNAH [2021] WASCA 69
CORAM: MAZZA JA
BEECH JA
VAUGHAN JA
HEARD: ON THE PAPERS
DELIVERED : 5 MAY 2021
FILE NO/S: CACR 10 of 2020
BETWEEN: TIMOTHY WAITE
Appellant
AND
JOHN HENNAH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
File Number : SJA 1081 of 2019
Catchwords:
Criminal law - Appeal against conviction - Whether respondent was required to comply with s 117A(4) of the Road Traffic (Administration) Act 2008 (WA) - Proper construction of s 117(4) of the Road Traffic (Administration) Act 2008 (WA) - Whether primary judge erred in law by not applying the correct legal onus and standard of proof having regard to s 117(4) of the Road Traffic (Administration) Act 2008 (WA)
Legislation:
Road Traffic (Administration) Act 2008 (WA), s 117(4), s 117A(4)
Result:
Leave to appeal refused on grounds 1 and 2
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Cazzol v Fuss (1988) 6 MVR 350
Chief Executive Officer of Customs v El Hajie [2005] HCA 35; (2005) 224 CLR 159
Chief Executive Offıcer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161
Davis v Armstrong (1993) 17 MVR 190
Ex parte The Minister of Justice; Re R v Jacobson & Levy [1931] AD 466
Farkas v Thomason [2020] WASC 67
Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489
Hands v Baker [2009] WASC 46; (2009) 52 MVR 156
Illich v Woodburn [2004] WASCA 148; (2004) 41 MVR 65
IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; (2011) 38 VR 303
Maccione v Doughty [2019] WASC 375
Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174
Mohammadi v Bethune [2018] WASCA 98
R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96
Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89
Rumsley v Taylor (1997) 26 MVR 563, 564
Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159
JUDGMENT OF THE COURT:
Overview
On 10 June 2019, after trial in the Magistrates Court at Albany, the appellant was convicted of an offence that, on 22 September 2018 at Bannister, he drove a vehicle in excess of the speed limit…
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- AGLC
- Waite v Hennah [2021] WASCA 69
- Case
- [2021] WASCA 69
- Decision Date
CaseChat Overview and Summary
The court examined the application of the re-enactment presumption and concluded that this presumption should not perpetuate an erroneous construction of statutory provisions. It was held that the presumption should not prevail over an interpretation otherwise appearing correct. The court also determined that re-enactment of words without reconsideration of their meaning seldom, if ever, signifies parliamentary approval of a judicial interpretation. In this case, the re-enactment was more about the form of the law rather than an approval of the prior judicial consideration. The court further noted that applying the re-enactment presumption in this context would be inconsistent with the principle of legality. The court also clarified that the onus and standard of proof should be construed in line with the statutory provisions, as articulated in the decision, rather than the manner applied by the primary judge in the intermediate appeal.
The court found that there was no error in the primary judge's conclusion regarding the onus of proof, but did identify an error in the approach of the primary judge in the intermediate appeal. The court clarified that the onus did not shift to the appellant to prove anything on the balance of probabilities. The appeal was considered in light of whether the magistrate erred in law by misapplying the correct onus and standard of proof. Ultimately, the court determined that the magistrate did not err in law in this respect. The appeal was thus dismissed with the court's decision standing affirmed.
Orders
Orders of the court
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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
First, the re-enactment presumption should not lead the court to perpetuate a construction of a statutory provision which it considers to be erroneous.[32] The re-enactment presumption ought not be permitted to prevail over an interpretation otherwise appearing to be correct.[33][32] Salvation Army (Vic) Property Trust v Fern Tree Gully Corporation [1952] HCA 4; (1952) 85 CLR 159, 174.[33] Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 594. Second, re-enactment of words in circumstances not involving a reconsideration of their meaning will seldom, if ever, constitute a Parliamentary approval of a judicial interpretation of those words. So, for example, the re-enactment presumption does not automatically apply to provisions re-enacted in consolidating Acts.[34] The Road Traffic (Administration) Act was introduced to consolidate all administrative type provisions and enforcement powers contained within the existing Road Traffic Act. As the Explanatory Memorandum to the Bill that became the Road Traffic (Administration) Act stated, the Act contains a large number of provisions that have simply been transferred from the current Road Traffic Act.[35] Accordingly, this is an example of the Parliament doing no more than turning its mind to how the law should be arranged - the re-enactment was concerned with the form of the law rather than reconsideration and approval of the prior judicial consideration of s 98A(3) of the Road Traffic Act.[34] Williams v Dunn's Assignee [1908] HCA 27; (1908) 6 CLR 425, 441; Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 186 - 188; R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 388; Flaherty v Girgis (594).[35] Explanatory Memorandum to the Road Traffic (Administration) Bill 2007 (WA) p 1. Third, if applied in the present context, the re-enactment presumption would be inconsistent with the aspect of the principle of legality we have referred to at [86] above. In terms of the relevant onus and standard of proof, s 117(4) of the Road Traffic (Administration) Act should not be construed and applied in the manner articulated in Davis v Armstrong in relation to s 98A(3) of the Road Traffic Act. Rather, for the reasons we have given, s 117(4) is to be construed and applied in the manner we have described at [85] ‑ [90] above. Importantly, contrary to what was stated by the primary judge, at no time did any onus of proof shift to the appellant to prove anything on the balance of probabilities. The appellant has, in this respect, identified error in the approach of the primary judge in the intermediate appeal. However, this alone does not mean that the appellant must succeed in his appeal. In terms of ground 3 the further question arises as to whether the primary judge was in error by failing to find that the magistrate erred in law by misapplying the correct onus and standard of proof. This depends on whether there was such an error by the magistrate. We turn then to consider whether there was such an error in law on the part of the magistrate.