Borino v City of Stirling
[2019] WASC 13
•4 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BORINO -v- CITY OF STIRLING [2019] WASC 13
CORAM: JENKINS J
HEARD: 17 JANUARY 2019
DELIVERED : 4 FEBRUARY 2019
FILE NO/S: SJA 1080 of 2018
BETWEEN: JEREMY BORINO
Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S A HEATH
File Number : PE 54281 of 2017
Catchwords:
Criminal law - Appeal against refusal to set aside conviction entered in the absence of the appellant - Parking offence - Turns on own facts
Legislation:
City of Stirling Parking Local Law 2014, cl 4.1(2)
Criminal Appeals Act 2004 (WA), s 6, s 14(2)
Criminal Procedure Act 2004 (WA), s 71(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr A D Wadham |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Grover v Scott [2010] WASCA 164
Tey v City of Perth [2006] WASCA 211 [15]
Wilson v McDonald [2009] WASCA 39
JENKINS J:
This is an appeal from the decision of the Chief Magistrate sitting in the Magistrates Court at Perth on 28 May 2018. The appeal is against the refusal of the appellant's application for an order to set aside the decision of another magistrate to convict him in his absence of an offence of parking illegally.
Grounds of appeal
The appellant relied on the following ground of appeal:
1.I suffered a severe pollen allergy reaction on the twelfth April 2018. I have a history of pollen allergy. I produced a medical certificate. Chief Magistrate Heath did not accept the validity of the document.
Even making allowance for the fact that the appellant is unrepresented, leave to appeal could not be granted on this ground. The recitation of what the appellant said occurred before the Chief Magistrate does not identify an alleged error of fact or law.
At the hearing of the appeal I attempted to ascertain from the appellant what his complaint was. As I now understand it the ground of appeal is that the Chief Magistrate erred in fact and/or law in failing to find that the appellant had 'some good reason' for failing to attend court on the date set for the hearing of the parking charge. Further, his error in failing to find that the appellant had a good reason for his non‑attendance caused the Chief Magistrate to err by not exercising his discretion to set aside the conviction, in circumstances where the appellant was not guilty of the offence. I will proceed on the basis that this is the ground of appeal.
I have previously expressed reservations as to whether a person who is aggrieved by a decision of a court of summary jurisdiction to refuse to set aside a conviction may appeal to the Supreme Court against the decision.[1]
[1] Grover v Scott [2010] WASCA 164.
A magistrate's refusal to set aside a conviction on the hearing of an application made under the Criminal Procedure Act 2004 (WA) s 71(2) may not be a decision as defined in the Criminal Appeals Act s 6 against which an appeal may lie. However at the hearing of the appeal the respondent disavowed any reliance on such a view. Therefore I will proceed to determine the appeal on its merits.
Leave to appeal
The application for leave to appeal was ordered to be heard with the appeal. The appellant requires leave to appeal on his ground of appeal. If the ground of appeal does not have reasonable prospects of succeeding, I ought not to grant leave to appeal on it.
For the reasons which follow the ground of appeal has no reasonable prospects of succeeding. I therefore refuse to grant leave to appeal.
The charge
The appeal relates to prosecution notice PE 54281/2017 which states that the appellant on 17 May 2017:
Within the district of the City of Stirling stopped a vehicle namely a Ford registration number 1GDV 320. At (sic) the side of a carriageway marked with a continuous yellow edge line, contrary to clause 4.1(2) of the City of Stirling Parking Local Law 2014.
The City of Stirling Parking Local Law 2014 (the Local Law) cl 4.1(2) states:
A person shall not stop a vehicle at the side of a carriageway marked by a continuous yellow edge line.
Procedural history
After a number of adjournments the charge was listed for trial commencing on 12 April 2018. The appellant had notice of the hearing date but he did not attend court on that date. Neither did he provide prior notice to the court that he would not be attending or any reason why he would not be attending court.
A magistrate proceeded to hear and determine the charge in the absence of the appellant.[2] The appellant was convicted, fined $250 and ordered to pay costs of $1,000 (the decision).
[2] The magistrate was entitled to do so pursuant to the Criminal Procedure Act s 55(2).
The appellant applied for orders to set aside the decision and for the charge to be dealt with again.[3]
[3] Pursuant to the Criminal Procedure Act s 71(2).
At the hearing of the application to set aside the decision the appellant appeared for himself and told the Chief Magistrate that the reason he had not appeared was that he was unwell. He said:
Your Honour, I was very ill that whole week. The night prior to the trial, I had an early night. I went to bed at 6 pm hoping to feel better, but unfortunately I couldn't get out of bed till 3.[4]
He presented a medical certificate which was obtained on the date of the hearing of the charge. It said that on that date the appellant had the symptoms of an upper respiratory infection.
[4] ts 2, 28 May 2018.
The appellant did not tell the Chief Magistrate that he was suffering from an allergic reaction or from an allergy to pollen.
The Chief Magistrate determined that the symptoms of an upper respiratory infection were not a good reason for the appellant's failure to attend court. His Honour said that the medical certificate did not mention that the appellant was incapacitated. He dismissed the appellant's application.
Additional evidence on appeal
With the consent of the respondent the appellant provided further evidence for consideration on the appeal. First he relied on an electronic document created by the examining doctor which summarised his complaint, the doctor's findings on examination and his diagnosis (Patient Health Summary). The appellant also tendered the same medical certificate provided to the Chief Magistrate.
The appellant also tendered two sets of photographs. The first were taken on the day of, and in the vicinity of where the offence occurred. The second set of photographs were taken two months later.
The respondent tendered on the appeal three photographs taken by the respondent's officers who issued the infringement notice for the offence. The three photographs were taken of the scene of the offence and include the appellant's motor vehicle in situ at the time of the commission of the offence.
Did the magistrate err in finding that the appellant did not have 'some good reason' for attending the hearing?
The Criminal Procedure Act 2004 (WA) s 71(2) states:
If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused ‑
(a)did not receive notice of the court date on which the conviction occurred; or
(b)did not receive such notice in enough time to enable the accused to appear on the court date; or
(c)received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.
Relevantly, the appellant had to show that he had 'some good reason' for his failure to attend court before the Chief Magistrate's discretion to set aside the decision was enlivened.
Whether there was 'some good reason' for the appellant's failure to attend court required the Chief Magistrate to consider what subjectively was the appellant's reason for failing to attend and to then determine whether that was an objectively good reason for his non‑attendance. This was a matter of fact for the Chief Magistrate to determine. I am not satisfied that it is arguable that the Chief Magistrate erred in his conclusion that the appellant had not established 'some good reason' for his failure to attend the hearing.
The evidence before the Chief Magistrate was that the appellant on the day of the hearing was suffering from the symptoms of an upper respiratory infection. This is not 'some good reason' for failing to attend the hearing. A person with the symptoms of an upper respiratory infection, whether or not those symptoms are caused by an upper respiratory tract infection, an allergy or some other cause, is still capable of attending court. It is a different question whether those symptoms warrant the court adjourning a hearing until the party is free of symptoms.
The Magistrates Court is a very busy summary court. It could not operate efficiently if parties were free, without notice, to fail to attend court because of the symptoms of minor illnesses. A magistrate who is deciding whether there was 'some good reason' for a party to fail to attend court is entitled to take into account case management principles which include the efficient disposition of the court's business so as not to waste public resources. They are part of the interests of justice which are the ultimate guide for a magistrate when applying the statutory test of 'some good reason'.
The phrase 'some good reason' is a wide one. It enables a magistrate to determine each case on its own particular facts. However, each case must be determined in the context which I have described above.
Further, each case must be decided in the context that attendance at court will usually involve some inconvenience to a party. Inconvenience, even coupled with the symptoms of a minor illness, do not amount to 'some good reason' for failing to attend court. If this was the case the business of the court could never be completed in an efficient manner and the interests of justice would not prevail.
I note that the appellant did not tell the Chief Magistrate that he had been suffering from an allergic reaction to pollen. Neither does the Patient Health Summary mention that this was his complaint to the doctor. There is neither evidence on the appeal suggesting that the appellant was suffering from a pollen allergy. The appellant's assertions from the bar table are not evidence. Despite what is stated in the Notice of Appeal, the Chief Magistrate accepted the medical certificate provided by the appellant. However, the Chief Magistrate found that the subjective reason which the appellant put forward (feeling unwell for a week with symptoms of an upper respiratory infection) was not objectively 'some good reason' for his failure to attend. The Chief Magistrate did not err in making that determination.
Merits of the appeal
Even if I granted leave to appeal and found that the Chief Magistrate erred in refusing to set aside the conviction and fine, I would nevertheless have dismissed the appeal. That is because even if a ground of appeal might be decided in favour of an appellant I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred.[5]
[5] Criminal Appeals Act 2004 (WA) s 14(2).
Having had the benefit of hearing the appellant's submissions as to why he should not have been convicted of the charge and having seen the photographs taken by both the appellant and the respondent's officers of the scene on the day the appellant was charged I am satisfied beyond reasonable doubt that the appellant is guilty of the charge.
The appellant does not dispute the allegation that his car was parked on the side of the carriageway. He says that he is not guilty of the charge because there was no continuous yellow line marked on the side of the carriageway. He claims that his photographs he took on the day of the offence of the scene do not show a continuous yellow line. He says that the respondent's photographs taken on the day of the offence of the scene show a continuous yellow line because they have been artificially saturated with colour.
Contrary to the appellant's submissions, the appellant's photographs show a continuous yellow line on the side of the relevant carriageway on the date the offence occurred. It is true that the line is faded but it is still present. It is unnecessary to resort to the respondent's photographs to prove that.
The appellant says that it is significant that only a couple of months later the respondent repainted the line. It is not in dispute that the line was repainted. I do not agree with the appellant that the repainting of the line is sinister or indicates that it was not present on the date he committed the offence. If the only photographs that were in existence of the scene were taken after the line had been repainted then the repainting would clearly be relevant. However, the court has before it photographs taken by both parties on the day the offence was committed. The respondent's photographs show the line but the appellant says that I should not rely upon those photographs because they have been saturated in colour. Without accepting that that is the case I am prepared to rely only on the appellant's photographs.
The appellant's photographs satisfy me beyond reasonable doubt that he is guilty of the charge and there could be no substantial miscarriage of justice by virtue of the Chief Magistrate's refusal to set aside the conviction and fine.
If the appellant, as he claims, did not see the line on the road, he made an error of law in that he made a mistake of law as to whether it was illegal to park there. This does not provide a defence to the charge.[6]
[6] Tey v City of Perth [2006] WASCA 211 [15].
Conclusion and costs
For the above reasons leave to appeal is refused and the appeal is dismissed.
After I reserved my decision I asked the parties to advise me in writing if they sought costs should they be successful on the appeal. The respondent supplied a draft bill of costs claiming costs of the appeal in the sum of $5,759.60.
In deciding an appeal, the Supreme Court may, amongst other things, make an order as to the costs of the appeal.[7] The Court of Appeal has said that the effect of the Criminal Appeals Act[8] is to confer upon the court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate. The court said that this general discretion should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, the Act should be construed as a discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.[9]
[7] Criminal Appeals Act 2004 (WA) s 14(1)(h).
[8] Other than in respect of appeals subject to the Criminal Appeals Act 2004 (WA) s 20 does not include this appeal.
[9] Wilson v McDonald [2009] WASCA 39.
There was no public interest in this appeal other than the public interest in a convicted person being able to exercise their statutory right to apply for leave to appeal.
In determining whether to make a costs order in favour of the respondent I take into account the following matters:
1.The appellant was unsuccessful and his ground of appeal was not arguable;
2.The appeal involved a minor offence;
3.The appellant says that he is unemployed and his financial circumstances are poor;
4.The appellant is already liable to pay a fine and costs; and
5.The majority of the claim for costs is $4,356.00 for preparing the respondent's case. This is said to have taken 9 hours.
It is in the interests of finality that I fix costs rather than order that they be taxed.
I will not allow for all of the respondent's preparation given the appellant's financial circumstances and the minor nature of the offence. The sum of $484 is claimed for attending court on the reserved decision. I will not allow this sum as there will be no requirement for the respondent's attendance.
Taking into account all of these matters I exercise my discretion to order that the appellant pay the respondent's costs of the appeal fixed in the sum of $3,000.00.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Research associate to the Honourable Justice Jenkins4 FEBRUARY 2019
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