Bignell v Hopkins
[2022] WASC 208
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BIGNELL -v- HOPKINS [2022] WASC 208
CORAM: MCGRATH J
HEARD: 21 JUNE 2022
DELIVERED : 21 JUNE 2022
PUBLISHED : 22 JUNE 2022
FILE NO/S: SJA 1086 of 2021
BETWEEN: JOSHUA WILLIAM BIGNELL
Appellant
AND
MARK HOPKINS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D WEBB
File Number : PE 39344 of 2019
Catchwords:
Criminal law - Appeal against conviction of failing to comply with a requirement to allow a prescribed sample taker to take a sample of blood for analysis - Appeal commenced two years outside period for commencement of appeal - Whether extension of time in which to appeal should be granted
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Extension of time in which to appeal refused
Leave to appeal refused on grounds 1 to 9 inclusive
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms E G Tapsell |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
EXF v Western Australia [2015] WASCA 118
Petrusic v The State of Western Australia [2020] WASCA 62
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wimbridge v The State of Western Australia [2009] WASCA 196
MCGRATH J:
(These reasons were delivered ex tempore)
On 19 September 2019, the appellant was convicted, in his absence after failing to appear in the Magistrates Court, pursuant s 55 of the Criminal Procedure Act 2004 (WA), of one charge of failing to comply with the requirement to provide a breath sample for analysis, one charge of failing to comply with the requirement to provide a blood sample for analysis and one charge of obstructing a police officer.
On 12 November 2021, being over two years after the appellant was convicted, the appellant filed an appeal against his conviction for the charge of failing to comply with the requirement to provide a blood sample for analysis, on a myriad of grounds which make various assertions. The respondent submits that the appellant should not be granted an extension of time in which to appeal and that the appeal should be dismissed. For the following reasons, I have determined that the grounds of appeal are without merit and that an extension of time in which to appeal should not be granted and that the appeal should be dismissed.
Magistrates Court proceedings
The appellant was charged with obstructing a police officer, in the performance of his duties, contrary to r 273(4) of the Road Traffic Code2000 (WA),[1] refusing a preliminary breath test request made by a police officer, pursuant to s 66 of the Road Traffic Act 1974 (WA), contrary to s 67A(1) of the Road Traffic Act,[2] and failing to comply with a request of a police officer, made pursuant to s 66 of the Road Traffic Act, to allow a registered nurse to take a sample of blood for analysis, contrary to s 67(2)(b) of the Road Traffic Act.[3]
[1] Prosecution Notice charge number PE 39342 of 2019.
[2] Prosecution Notice charge number PE 39343 of 2019.
[3] Prosecution Notice charge number PE 39344 of 2019.
On 19 September 2019, the charges came before the learned Magistrate for a hearing in the Perth Magistrates Court. The appellant did not make an appearance. The learned Magistrate stated that she proposed to convict the appellant and impose sentence in the absence of the appellant, given his failure to appear, pursuant to s 55 of the Criminal Procedure Act.[4] Section 55 provides as follows:
[4] ts 3 (19/09/2019).
55. No appearance by accused and no plea of guilty
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused’s absence if the accused does not appear on that date, the court may –
(a)adjourn the charge; or
(b)hear and determine the charge in the accused’s absence.
[(3)deleted]
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused’s absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court –
(a)must presume, in the absence of evidence to the contrary –
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused –
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
The learned Magistrate stated that the court had received proof of service of the prosecution notice and a court hearing notice.[5] Accordingly, the learned Magistrate convicted the appellant, in his absence, pursuant to s 55 of the Criminal Procedure Act.
[5] ts 2 (19/09/2019).
The facts upon which the learned Magistrate sentenced the appellant were read by the prosecutor and are in the following terms:[6]
At 4.40 in the morning of 18 August this year, driving a motor vehicle on George Street, Kensington Police have pulled him [the offender] over for a random breath test. As they've approached him he began turning the vehicle keys in the ignition in an attempt to start the vehicle.
At the same time, he was observed to release the hand brake. The vehicle began to move. The police were forced to reach into the vehicle and remove the keys to stop him from fleeing the scene. They attempted to arrest him, he initially resisted. He was removed from the vehicle, forced to the ground and placed in handcuffs. Began to roll back towards police - the vehicle began to roll back towards police but was prevented from doing so. He was required to submit to a preliminary breath test. He failed to supply a sample of breath. He was warned regarding not providing. He continued to fail to provide, that carries a penalty between 300 and 800 and minimum 3 months disqualification. Taken back to the police station for a formal breath test. Again, required to submit to oral breath test. He refused, gave no reason why he wouldn't provide a sample, was warned regarding, continued to refuse and was charged.
[6] ts 2 - 3 (19/09/2019).
In respect of the offences, the learned Magistrate imposed a global fine of $2,500.00 and a 30‑month disqualification period from holding or obtaining a motor vehicle driver's licence.
Subsequently, during the afternoon of 19 September 2019, the appellant attended the Magistrates Court. The matter was re-called by the learned Magistrate who informed the appellant that the hearing was listed at 10.00 am and that the court had proceeded to convict and sentence the appellant in his absence.[7]
[7] ts 5 (19/09/2019).
Grounds of appeal
The appellant relies on nine grounds of appeal in the following terms:[8]
[8] Notice of Appeal dated 9 November 2021 and filed 12 November 2021.
1.I was not afforded my rights and/or requirements I should immediately be told according to s 63(4) of the Road Traffic Act 1974.
2.And the unprofessional, reckless conduct of the police officers given.
3.I was not explained the penalties for refusing (before, at the same time or after) the request.
4.I was given less than a fair chance to have my blood taken; barely stating a 'No. I refuse to' or at least providing a substantial response to, or for the request.
5.I also could have been requested to provide a sample by another method as a substitution to a blood analysis; and that there could have been a medical or other reason to that which was overlooked.
6.Unintroduced officer up and until the request.
7.'Prescribed sample taken' also being the person in the or for the request or at least for me to have been in a medical room where the sample would have been taken.
8.No statement were made in relation to the offence.
And finally;
9.There was elements of fatigue and concussion being it was 6 am and what had happened prior to my arrest.
The appellant has not pleaded that the decision of the learned Magistrate to convict him pursuant to s 55 of the Criminal Procedure Act involved any error. That is understandable because the pre‑conditions of s 55 of the Criminal Procedure Act and the power of a court of summary jurisdiction to convict the person in their absence were satisfied. That is, the appellant did not attend court when the charges were called, the prosecutor was present in court, the appellant had not entered a written or oral plea of guilty in relation to the charges and, finally, the learned Magistrate was satisfied that the service of a prosecution notice and an approved notice had occurred.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) which means that leave to appeal is required.[9] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[10]
[9] Criminal Appeals Act 2004 (WA), s 9(1).
[10] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground of appeal has a reasonable prospect of success.[11] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[12]
[11] Criminal Appeals Act 2004 (WA), s 9(2).
[12] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts‑Smith JJA).
Extension of time to appeal
An appeal against a decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[13] Accordingly, the last date for the appellant's appeal was 17 October 2019 and therefore, the appellant requires leave for an extension of time in which to appeal. The principles in which the court will grant an extension of time are well established.[14] The five principal factors that the court must consider in determining whether to grant an extension of time are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the extent of the prejudice, if any, to the respondent.
[13] Criminal Appeals Act 2004 (WA), s 10(3).
[14] Petrusic v The State of Western Australia [2020] WASCA 62 [31] (Mazza, Beech and Vaughan JJA); Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [26] (Wheeler JA), [42] - [49] (Buss JA); EXF v Western Australia [2015] WASCA 118 [5] - [8] (Hall J, Martin CJ and Buss JA agreeing).
The respondent submits that the appellant has not sufficiently explained the reason for his delay in commencing the appeal.
The appellant's appeal notice was filed on 12 November 2021 and is therefore over two years outside the prescribed time limit for commencing this appeal. Given the lengthy delay, cogent and substantial reasons for an extension of time must be provided in order for an extension of time to be justified.[15] The court must be satisfied that there is some 'special or unusual feature' in the present case which warrants the grant of an extension of time.[16]
[15] Wimbridge v The State of Western Australia [2009] WASCA 196 [46] (Buss JA).
[16] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA; Miller JA agreeing), [48] (Buss JA).
In support of the application for an extension of time, the appellant relies upon an affidavit affirmed 7 June 2021. The appellant, in his affidavit, provides the following reasons in support for the extension of time:
Late because of COVID‑19 (Reason 1) and long FOI process, internal review and new application being submitted after internal review, (Reason 2) letters I have filed, documented and produced in the timeframe in its entirety commencing roughly in April 2020 (Reason 3), I will also need to apply for a grant of legal aid afterwards (Reason 4) and fulfil transcript and prosecution notice gathering in Magistrates Court Perth (Reason 5) with studying the legislation to find conduct in the background to build a case to appeal for refuse to provide a sample of blood for analysis offence (Reason 6).
Applications with FOI Wapol are for evidence collecting there has also been delays administratively being I have been behind bars throughout the processing payments to the numerous offices that I have sourced and utilised (Reason 7).
The appellant filed a letter to the court on 22 April 2022 in which he provided further details of the reasons in support of the application for an extension of time in which to appeal. The appellant states that the COVID-19 pandemic, difficulties in obtaining the statement of material facts and not being able to identify the 'correct department of the Supreme Court' to file the appeal are reasons for the delay.
I am of the view that there is an insufficient basis upon which the appellant relies to seek an extension of time in which to appeal. The grounds relied upon in support of the extension of time do not, individually or collectively, adequately explain the delay.
The appellant contends that the commencement of the appeal was delayed by COVID-19. The respondent submits that the Minister for Emergency Services declared a state of emergency in respect of the COVID-19 pandemic on 15 March 2020. This was approximately four months after the last date on which the appellant could commence his appeal. The appellant could have filed an appeal during the period preceding the declaration of a state of emergency. Further, the appellant has not particularised how the pandemic caused the delay in commencing the appeal during the period following the declared state of emergency.
In respect of the appellant's freedom of information (FOI) request, the appellant has not provided any satisfactory reason why the FOI request was necessary nor the reason that it caused him to delay commencing the appeal. In any event, the appellant has provided the court with a letter from the Acting Freedom of Information Officer dated 25 August 2020, which confirms that the appellant did not make the FOI request until 18 May 2020. The appellant delayed making the FOI request until eight months after the last date for the commencement of the appeal.
In respect of the contended delay in obtaining Magistrates Court documents and the need to study legislation, I do not accept that those contentions constitute satisfactory reasons to grant an extension of time in which to appeal. In respect of being incarcerated, the appellant was sentenced to a term of imprisonment on 23 June 2020, being four months after the last day on which the appellant could commence his appeal. This is a significant period of delay during which the appellant was not in prison.
Therefore, I am not satisfied that the appellant has demonstrated that an extension of time in which to appeal should be granted. I must now determine whether an extension should nevertheless be granted in order to avoid a miscarriage of justice. Therefore, I must consider the merits of the appeal.
Merits of grounds of appeal
The appellant has filed documentation to support his appeal comprising FOI documentation and correspondence with the Office of Information Management and various sections of the Road Traffic Act. The correspondence from the Office of Information Management confirms that the appellant's request for the release of witness statements was unable to be progressed for the reason that witness statements were not prepared by the police officers.
A court of appeal must decide an appeal on the evidence and material that was before the primary court.[17] An appeal court has the power under s 40(1)(e) of the Criminal Appeals Act to admit new evidence on appeal if an application is made and leave is granted. The respondent submits that it is not necessary to consider whether leave should be granted for the reason that the documentation filed by the appellant is not probative of any matter in issue. I agree that the documentation provided to the court is irrelevant in respect of any issue. The documentation will not be admitted on this appeal.
[17] Criminal Appeals Act 2004 (WA), s 39.
The appellant has not provided any evidence which supports his factual assertions upon which the grounds of appeal rely.
The respondent submits that even if the appellant filed sworn evidence to the effect of his submissions, such evidence would fail to demonstrate that the appellant should not have been convicted. That is because such evidence would not produce evidence or factual material which contradicts the material contained in the statement of material facts proving the essential elements of the offence, or which establishes a defence to the charge. I accept that submission.
There is no reasonable ground to doubt that the appellant should have been convicted. The grounds of appeal comprise bare assertions encompassing a myriad of contentions.
By ground 1, the appellant contends that he was not afforded his rights, which he should have been told under s 63(4) of the Road Traffic Act. The appellant's contention is misconceived. Section 63(1) of the Road Traffic Act relevantly provides that a person who drives a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, commits an offence. Section 63(4) provides that the charging of a person with an offence under this section must not limit the operation of s 66, but that the person charged must immediately be told by the person laying the charge that he has the right to be examined by a medical practitioner nominated by them, if one is available and he has the right to communicate with a legal practitioner and another person nominated by them.
The appellant was not charged under s 63 of the Road Traffic Act and therefore s 63(4) has no application. The appellant was charged with one offence of failing to comply with the request of the officer, made pursuant to s 66, to provide a sample of his breath for a preliminary test, contrary to s 67AC(1) and one offence of failing to comply with the request of an officer, made pursuant to s 66, to allow a registered nurse to take a sample of his blood, contrary to s 67(2)(b). The appellant refused both requests. Section 63 has no application to the offences committed by the appellant.
By ground 2, the appellant contends that the arresting police officer was 'unprofessional and reckless'. There is no particularisation for that contention. It appears that the alleged unprofessional conduct is based upon the failures of the officer particularised in the further grounds of appeal. I will consider the grounds.
By ground 3, the appellant contends that the officer did not state the penalties for the offences. There was no requirement at law for the officers to do so. By ground 4, the appellant contends that the officer did not give him 'a fair chance to have my blood taken; barely stating a 'no…'. ' The appellant was asked by the officer to provide the sample on two occasions upon his apprehension and subsequently, when he was taken to a police station. He continually declined to submit to an oral breath test and blood test, despite warnings by the officer. The ground is without merit.
By ground 6, the appellant contends that there was an 'unintroduced officer up and until the request.' There is no suggestion that the appellant was acting under some mistaken belief that the officer was not a police officer. The officer presented as a police officer and made a lawful request. The appellant's contention is without merit.
By ground 5, the appellant contends that the officer should have 'requested that he provide a sample by another method' and that there could have been a medical reason for him not submitting to a blood test. By ground 7, the appellant contends that a 'prescribed sample taker should have been present.' Both grounds 5 and 7 are without merit. In respect of ground 5, the appellant contends that there could have been a medical reason for not submitting to a blood test. A statutory defence is provided by ss 67(5) and 67A(3) of the Road Traffic Act.These sections are in the same terms and provide that it is a defence to a prosecution under this section if the accused satisfies the court there was some substantial reason for their failure to comply, other than a desire to avoid providing information that might be used as evidence. The contention of the appellant that there may have been a medical reason for not permitting the blood test is mere speculation and does not ground an evidentiary basis to rely upon the statutory defence.
In respect of ground 7, s 65 of the Road Traffic Act defines a prescribed sample taker, relevantly, to mean a medical practitioner or registered nurse. The police officer proposed that a nurse take the blood sample. The appellant simply refused to give a sample of his breath test for a preliminary test and refused to allow a registered nurse to take a sample of his blood for analysis. The police officer had the statutory power to make both requests.
By ground 8, the appellant contends that 'no statements were made in relation to the offence.' The police officer drafted a Prosecution Notice and the statement of material facts, which were served on the appellant. The appellant made a FOI request seeking the production of witness statements. The Office of Information Management, in correspondence to the appellant, confirmed that witness statements were not prepared. There was no lawful requirement to provide witness statements given that the appellant was convicted. The appellant did not proceed to trial nor did he request statements be provided prior to the conviction. The ground is without merit.
By ground 9, the appellant refers to 'elements of fatigue' and 'concussion', stating 'being it was 6 am and what had happened prior to my arrest.' The contention is a bare assertion. The ground is without merit.
Conclusion
Accordingly, leave for the extension of time in which to appeal is not granted and leave is not granted in respect of the grounds of appeal. Therefore, the appeal is taken as dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Judge
22 JUNE 2022
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