Weaver v Lundy - [2021] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   WEAVER -v- LUNDY [2021] WASC 110
CORAM:   ALLANSON J
HEARD:   8 APRIL 2021
DELIVERED          :   22 APRIL 2021
FILE NO/S:   SJA 1057 of 2020
BETWEEN:   GLEN SIMON WEAVER
Appellant

AND

JASON LUNDY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE P G MALONE
File Number            :   FR 10821 of 2019, FR 10822 of 2019

Catchwords:

Criminal law - Driving at reckless speed to escape pursuit - Failure to comply with a direction to escape pursuit - Leave to appeal - Where appellant requested to play recording of radio communications from police vehicle at trial - Whether recording admissible - Whether magistrate erred in not admitting recording - Whether error resulted in a miscarriage of justice - Whether no substantial miscarriage of justice - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)

Result:

Extension of time granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

ALLANSON J:

Introduction

On 18 June 2020, the appellant, Glenn Simon Weaver, was convicted of the following offences, said to have been committed on 5 November 2019:
(1)driving a motor vehicle at a reckless speed (45 km an hour or more above the speed limit) in a circumstance of aggravation, namely that he was driving to escape pursuit by a police officer;[1] and
(2)failing to comply with a direction by a police officer to stop the vehicle in circumstances of aggravation, namely that, at the time the direction was given, he was driving so as to escape pursuit by a police officer.[2]
[1] Prosecution notice FR 10821/2019.
[2] Prosecution notice FR 10822/2019.
Mr Weaver was sentenced to immediate imprisonment for 7 months for the aggravated reckless driving, and imprisonment for 3 months, concurrent, on the failure to comply with a direction to stop. Imprisonment was mandatory on the charge of driving at a reckless speed in the circumstance of aggravation alleged.
Mr Weaver was also charged, but found not guilty, on two drug possession charges.
On 21 August 2020, Mr Weaver filed a notice of appeal against those convictions on a single ground:
There was a miscarriage of justice in that audio recordings of radio communications involving police allegedly chasing the appellant were not admitted into evidence.

The extension of time

Mr Weaver requires an extension of time. The application for extension of time and for leave to appeal were ordered to be heard together.
The delay in filing the notice of appeal was not long. In an affidavit filed in support of the application for an extension of time, Mr Weaver states that…

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 Weaver v Lundy

Details

AGLC: Weaver v Lundy [2021] WASC 110
Case: [2021] WASC 110
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Glenn Simon Weaver appealed against his conviction for driving at a reckless speed to escape police pursuit, and for failing to comply with a police direction to stop. The appeal was heard by Allanson J, who granted an extension of time for the appeal and leave to appeal on a single ground: that the trial magistrate erred in not admitting audio recordings of police radio communications into evidence, resulting in a miscarriage of justice.

The appellant argued that the audio recording showed the police only identified his registration number shortly before he stopped, thus contradicting the police evidence that they activated their lights and sirens only after obtaining the number. The appellant further contended that the recording showed he had stopped the motorcycle, not that he was stopped by the police vehicle. The respondent conceded that the recording was admissible. Allanson J found that the magistrate had erred in not admitting the recording, but concluded that the exclusion of the recording did not result in a miscarriage of justice. The recording could not raise a reasonable doubt that the appellant drove at a reckless speed and did not stop to escape pursuit.

The appeal was dismissed. The court found that the audio recording could not, on the whole of the evidence, raise a reasonable doubt that the appellant drove at a reckless speed, and did not stop, to escape pursuit. The ground of appeal had not been established.

Orders