Wilkins v Hague and Brian - [2011] ACTSC 189

RHYS WILKINS v CATHERINE ELLEN HAGUE AND LANE ALAN BRIAN
[2011] ACTSC 189 (22 November 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal against conviction and sentences – appeal against conviction dismissed – appeal against sentence upheld.

CRIMINAL LAW – particular offences – driving offences – negligent driving causing death – whether driver keeping a proper lookout – duty to cyclists sharing carriageway.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – driving whilst disqualified – whether sentence manifestly excessive.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – cancellation of Good Behaviour Order made when sentence of imprisonment suspended – re-sentencing – whether more severe sentence may be imposed.

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6
Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Road Transport (Vehicle Registration) Act 1999 (ACT), s 18
Road Transport (Third-Party Insurance) Act 2008 (ACT), s 17
Magistrates Court Act 1930 (ACT), Div 3.10.2
Road Traffic Act 1960 (UK), s 1
Crimes Act 1900 (ACT), s 29
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Justices Act 1959 (Tas), s 74C
Human Rights Act 2004 (ACT), s 25
Sentencing Act 1997 (Tas), s 27

Australian Road Rules 1999, r 141

Hanel v Shoemark [2010] ACTSC 67
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
R v Antoniazzo [2010] ACTSC 36
R v Hennigan [1971] 3 All ER 133
R v Williams [2011] 3 All ER 969
R v Gosney [1971] 2 QB 674
R v Webb [1986] 2 Qd R 446
R v Pettman [2007] QCA 233
R v Buttsworth [1983] 1 NSWLR 658

Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953

Simpson v Peat [1952] 2 QB 24
Kitson v R (1987) 5 MVR 228
H Mcl v The Queen (2000) 203 CLR 452
R v Gilmore (1979) 1 A Crim R 416
Greaves v Smith (TASSC, 1986, Neasey J, unreported serial No 52)
Taylor v Bowden [2009] ACTSC 13
Saga v Reid & Collett [2010] ACTSC 59
Director of Public Prosecutions v Cookeand Anor (2007) 168 A Crim R 379
Pantorno v The Queen (1989) 166 CLR 466
Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282
R v Campbell [2010] ACTCA 20
R v Clinch (1994) 72 A Crim R 301
Cotter v Corvisy (2008) 1 ACTLR 299
Coombe v Douris (1987) 47 SASR 324

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 80 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 22 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 80 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RHYS WILKINS
Appellant

AND: CATHERINE ELLEN HAGUE
AND: LANE ALAN BRIAN
Respondents

ORDER

Judge:  Refshauge J
Date:  22 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal…

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.

Keep reading for free

Create a free CaseChat account to read Wilkins v Hague and Brian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] ACTSC 189
Decision Date: November 22, 2011

CaseChat Overview and Summary

The appellant, Wilkins, appealed against his conviction and sentences imposed by the Magistrates Court of Victoria. Wilkins was charged with negligent driving causing death and driving whilst disqualified. The incident involved the death of a cyclist with whom Wilkins collided while driving. The court heard evidence regarding whether Wilkins was keeping a proper lookout and the duty of drivers to cyclists on shared carriageways.

The court had to determine whether Wilkins was negligent in his driving, specifically if he failed to keep a proper lookout for the cyclist. The court also needed to consider whether the sentence for driving whilst disqualified was manifestly excessive and if a more severe sentence could be imposed during the re-sentencing process. Additionally, the court had to decide on the legality of cancelling the Good Behaviour Order made when the sentence of imprisonment was suspended.

The appeal against the conviction was dismissed as the evidence supported the Magistrates Court's finding of negligence. However, the appeal against the sentence was upheld. The original sentence was deemed manifestly excessive, and the court imposed a more severe sentence during the re-sentencing. The cancellation of the Good Behaviour Order was also deemed lawful under the circumstances. The court's final order was that the appeal against the conviction be dismissed, but the appeal against the sentence was upheld, leading to a re-sentencing process.

Orders

Orders of the court

The appeal against conviction be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.