Walto v Gilmour

Case [2015] ACTSC 411

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Walto v Gilmour

Citation:

[2015] ACTSC 411

Hearing Date(s):

5 June 2015

DecisionDate:

5 June 2015

Reasons for Decision Date:

19 January 2016

Before:

Refshauge J

Decision:

1.    The appeal be upheld.

2.    The orders of conviction and sentence of the Magistrates Court of 4 February 2015 be set aside.

3.    The proceedings be remitted to the Magistrates Court for further hearing.

Catchwords:

APPEAL – Jurisdiction, practice and procedure – criminal law – appeal from Magistrates Court – appeal against conviction – driving a motor vehicle with alcohol in the breath – self-represented litigant – breach of procedural fairness – failure to admit relevant evidence – rejection of evidence – further evidence on appeal

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT),

Evidence Act 2011 (ACT), s 38
Magistrates Court Act 1930 (ACT), ss 41, 208(1), 214, 214(3), 214(4), Pt 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 4C, 9, 11, 41(1)(a)
Road Transport (General) Act 1999 (ACT), ss 61B

Court Procedures Rules 2006 (ACT), r 5193, Pt 6.2

Cases Cited:

Adami v The Queen (1959) 108 CLR 605

Alexander v The Queen (1981) 145 CLR 395
Baker v Thorpe (1985) 62 ACTR 1
Barac v Thexton [2008] ACTSC 137
Campbell v Fortey (1987) 85 FLR 462
Fox v Percy (2003) 214 CLR 118
Grbic v Pitkethly (1992) 38 FCR 95
Grooms v Toohey (2012) 7 ACTLR 1
Lukatela v Birch (2008) 223 FLR 1
Maher v Carpenter (2012) 7 ACTLR 216
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Parties:

Lila Walto (Appellant)

Joshua Gilmour (Respondent)

Representation:

Counsel

Mr J Sabharwal (Appellant)

Mr T Hickey (Respondent)

Solicitors

Rachel Bird & Company (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 14 of 2015

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Doogan

Date of Decision:         4 February 2015

Case Title:  Joshua Gilmour v Lila Walto

Court File Number:      CC 10920 of 2013

REFSHAUGE J:

  1. On 13 November 2013, police attended a single motor vehicle crash on Gungahlin Drive which had been reported to them by ambulance officers who had attended the scene of the collision.

  1. A black Holden Astra hatchback sedan with New South Wales numberplates “AD12ZW” had smashed into a light pole, which had been knocked over.

  1. Constable Joshua Gilmour approached a female who identified herself as the driver and she provided to him the name of “Lila Walto”, a date of birth and a residential address in Bungle Bungle Street, Harrison.

  1. The female was unable to provide a driver licence.

  1. The female was subject to a screening test under s 9 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). This proved positive and, under s 11 of that Act, the female was taken into custody and conveyed to Belconnen Police Station.

  1. At that police station, Constable Gilmour checked information from the Road Transport Authority and, upon viewing it, was…

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AGLC
Walto v Gilmour [2015] ACTSC 411
Case
[2015] ACTSC 411
Decision Date

CaseChat Overview and Summary

Walto, the appellant, brought an appeal against their conviction and sentence imposed by the Magistrates Court of Victoria for driving a motor vehicle with alcohol in their breath. The matter was heard in the County Court of Victoria, which had jurisdiction to hear the appeal from the Magistrates Court. The central issue before the court was whether the Magistrates Court's failure to admit certain evidence and its rejection of other evidence amounted to a breach of procedural fairness that warranted the setting aside of the conviction and sentence.

The court considered whether the Magistrates Court erred in not admitting evidence that could have been relevant to the appellant's state at the time of the alleged offence. Additionally, the court examined if the rejection of certain evidence by the Magistrates Court was proper or if it constituted a breach of procedural fairness. The court found that the Magistrates Court's exclusion of evidence without adequate justification and its rejection of evidence that could have impacted the appellant's defence amounted to a breach of procedural fairness. This breach was significant enough to warrant the setting aside of the conviction and sentence.

The County Court of Victoria held that the appeal should be upheld due to the procedural errors identified. Consequently, the orders of conviction and sentence made by the Magistrates Court on 4 February 2015 were set aside. The court ordered that the proceedings be remitted to the Magistrates Court for a further hearing, ensuring that all relevant evidence was properly considered and procedural fairness was maintained. This decision emphasised the importance of procedural fairness in criminal proceedings and the necessity for courts to carefully consider the admissibility of evidence.

Orders

Orders of the court

1. The appeal be upheld.

2. The orders of conviction and sentence of the Magistrates Court of 4 February 2015 be set aside.

3. The proceedings be remitted to the Magistrates Court for further hearing.

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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