Lingard v Dearnley

[2007] WASCA 82

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Leave to appeal
4. › Transitional provisions
5. › Application pending at repeal of governing statute
6. › Whether Justices Act 1902 (WA) or Criminal Appeals Act 2004 (WA) applies
7. › Justices Act 1902 (WA), ss 187(1), 206A
8. › Criminal Appeals Act 2004 (WA), ss 9, 18, 27
9. › Acts Amendment (Court of Appeal) Act 2004 (WA), ss 36, 38
10. › Interpretation Act 1984 (WA), ss 36, 37
1. Practice and Procedure
2. › Appeals
3. › Leave to appeal
4. › Applicable test
5. › Whether appeal frivolous or vexatious or grounds do not disclose arguable case
6. › Distinction between presumptive grant under Justices Act and presumptive refusal under Criminal Appeals Act
7. › Justices Act 1902 (WA), s 187(1)
1. Criminal Law
2. › Appeal
3. › Findings of fact
4. › Credibility findings by Magistrate
5. › Whether credibility findings flawed by reference to incontrovertible facts or uncontested testimony
6. › Whether Magistrate misconstrued documentary evidence bearing on credit
7. › Fox v Percy [2003] HCA 22
1. Criminal Law
2. › Appeal
3. › Road traffic offence
4. › Regulation 126(2) of Road Traffic Code 2000 (WA)
5. › Moving laterally from single marked lane
6. › Whether collision occurred where there were marked lanes
7. › Whether Magistrate failed to resolve conflict in prosecution evidence as to location of collision

Quick Take

Applications for leave to appeal under s 206A(1) of the Justices Act 1902 (WA) that were pending before the repeal of the Justices Act and the commencement of the Criminal Appeals Act 2004 (WA) are governed by the Justices Act, including the lower threshold test under s 187(1) (arguable case), not the higher threshold under the Criminal Appeals Act (reasonable prospect of succeeding). The right to have such applications determined under the Justices Act is preserved by s 37 of the Interpretation Act 1984 (WA).