Cafarelli v MORESCHINI - [2011] WASC 333

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: CAFARELLI -v- MORESCHINI [2011] WASC 333

CORAM: MURRAY J

HEARD: 30 NOVEMBER 2011

DELIVERED : 30 NOVEMBER 2011

FILE NO/S: SJA 1051 of 2011

BETWEEN: CALOGERO CAFARELLI
Appellant
AND
JASON MATTHEW MORESCHINI
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B LANE
Citation  :MORESCHINI -v- CAFARELLI
File No  :FR 5158 of 2005

Catchwords:

Appeal - Breach of Road Traffic Act (1974) WA - Defendant convicted in his absence - Conviction subsequently set aside - Defendant convicted later - No ground for appeal - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 55, s 71, s 72, s 74

Result:

Appeal dismissed
No order as to costs

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D E Leigh

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Nil

MURRAY J: The appellant was charged on 20 May 2005 with the offence of reckless driving, contrary to s 60(1)(b) of the Road Traffic Act 1974 (WA). It is an offence committed by driving a motor vehicle at a speed which exceeds the speed limit by 45 kph or more, relatively recently introduced by way of legislative amendment colloquially described as the 'hoon law'.
The prosecution notice alleged that the appellant was driving at a speed of 119 kph in a 60 kph zone on Canning Highway, Melville, on 5 December 2004. The appellant was proceeded against by summons, and on 30 May he was served, by post, with a court hearing notice informing him that the charge would come before the Fremantle Magistrates Court on 2 August 2005, and that the court might then deal with the charge in his absence if he did not appear.
The appellant returned the form, saying he would plead not guilty, and informing the court that he would not attend the hearing.
There is no transcript available for the hearing in the Magistrates Court on 2 August 2005, or indeed for any of the subsequent hearings to which I shall refer. The audio record is deleted after a period of 3 years. However, it is possible to reconstruct what occurred from the records of the Magistrates Court, in Fremantle and in Perth, particularly the court copy of the prosecution notice and the relevant forms of application.
The records show that on 2 August 2005, the court was constituted by two justices of the peace. They sat by authority of the Magistrates Court Act2004 (WA), s 7(2), and the Magistrates Court Regulations 2005 (WA), reg 6.
I infer from the notes made in the appropriate section of the court's copy of the prosecution notice that the JsP referred themselves to s 55 of the Criminal Procedure Act 2004 (WA) (CPA). They noted the non‑appearance of the accused (the appellant) convicted him, imposed a fine of $500, ordered the appellant to pay the prosecution's costs fixed in the sum of $100.70 and ordered that he be disqualified from holding or obtaining a motor driver's licence for a period of 6 months. It is that conviction against which the appeal is now brought, but as will appear, the appellant has in fact no legitimate complaint about that conviction.
As it happened, in the early hours of the following morning the appellant was apprehended by the police, driving his motor car. Their database revealed the court's suspension of his MDL and the appellant was charged accordingly.
He appeared, in relation to that matter, before the Perth Magistrates Court on 22 March 2006, charged with the latest of what was a series of offences of driving without an MDL. He was fined $1,300 and was disqualified from holding an MDL for a further 9 months, cumulative.
I note from the criminal history provided by the appellant that there had, in addition, been a demerit suspension of 3 months MDL disqualification, cumulative, imposed on 11 January 2006. If that was the commencement date for that suspension it would, of course, have expired by the time of the appellant's conviction of the offence of driving without the appropriate MDL, which was sustained on 22 March 2006. The 6 months suspension imposed on 2 August 2005 would have expired on 2 February 2006, and so if that was the start date for the demerit points suspension, it would have been operative until 2 May 2006, and that would become the start date for the 9 months cumulative suspension imposed on 22 March 2006.
The appellant was incensed to find that he had been dealt with in his absence on 2 August 2005 for the reckless driving offence, even though it was open to the court to proceed with the matter when there was no plea of guilty and no appearance by the accused. CPA, s 55, so far as material, provides:
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
As I understand it, however, the ordinary response of the court, where the accused advises an intention to plead not guilty, is to adjourn the matter to a hearing date and to issue process to secure the attendance of the accused.
However that may be, when the appellant discovered that he had been convicted, fined and his MDL had been suspended on 2 August 2005, he (rather belatedly), on 26 February 2006, made an application to set aside the decision made in his absence. The nominated ground was that he did not receive notice of the court date on which the decision was made. The record indicates that that was not true.
The appellant's application was heard in the Magistrates Court at Fremantle on 9 March 2006. According to the appellant, the magistrate who constituted the court was unsympathetic. He suggested that if the appellant had wished to defend the charge, he should have attended at the court, when he was advised that the matter would be heard on 2 August 2005. It seems that, in view of that resistance, rather than have the application dismissed, the appellant discontinued it by leave of the magistrate.
As I have said, he was next before the court on 22 March 2006, charged with the offence of driving without a motor driver's licence committed on 3 August 2005.
The appellant gives no clear reason for the delay which then occurred. But over a year later, on 25 June 2007, he renewed his application to set aside the decision made in his absence on 2 August 2005, again on the ground that he did not receive notice of the court date on which the decision was made.
That application was heard on 13 July 2007, on which occasion the appellant was represented by counsel. Again, for the reasons I have previously mentioned, there is no transcript of the hearing, but the form of application is endorsed, 'Set aside PNG'.
Consistent with that note is the note made on the prosecution notice in respect of the reckless driving charge:
Above decis[ion] set aside (upon Acc's [Accused's] sworn application to set aside)
It will be noticed that the conviction was set aside on the basis that the appellant wished to defend the charge, rather than upon the ground advanced in the application
However, when the matter came before the court, constituted by her Honour Magistrate Lane, a week later on 20 July 2007, in Perth, the appellant entered a plea of guilty. He was again fined $500, the costs order in the sum of $100.70 was reimposed, and her Honour made an order that the appellant's MDL be suspended and he be disqualified from holding an MDL for a period of 6 months. Nothing had been achieved except postponement of the date of conviction, and the start date for the MDL disqualification.
This appeal was not instituted until the notice of appeal was filed on 18 May 2011, nearly 4 years after the last occasion when the matter was before the court. It is obviously grossly out of time. The appellant gave no explanation for the delay, except by telling me that he had not realised he could appeal.
In form, his appeal is against his conviction, but when one reads the grounds upon which he relies, it seems that he has proceeded upon a misunderstanding, because he thought that, on the second occasion when an application to set aside the decision on 2 August 2005 was heard, it had been unsuccessful.
He says that he thought the magistrate had made a 'vengeful and malicious' decision at that time not to set aside his conviction, no doubt, he says, because when the application to set aside the decision had first come before the court he had reacted badly and displayed his frustration when the magistrate declined to grant the order he sought.
Perhaps the appellant was trying to tell this court, to explain the delay in appealing, that he did not realise that he could appeal against what he understood to be the refusal of the Magistrates Court to grant his application to set aside the original decision.
However that may be, there can be no complaint of the kind raised by the appellant on this appeal. An extension of time to bring the appeal is refused. Leave to appeal is refused in relation to each of the grounds advanced, to which I have only referred generally above, and the appeal is dismissed.
In parting with the case, I note that the certified copy of the appellant's criminal history shows no conviction on 2 August 2005. The conviction is shown as having been incurred on 20 July 2007 in respect of the offence committed on 5 December 2004. The record also shows that other matters of driving without an MDL on 7 December 2006, 12 October 2006 and 10 May 2007, were dealt with by the court on 20 July 2007.
If the record is correct, substantial fines of $1,000 were imposed in each case and the record shows that, in each case, a 9 months cumulative MDL disqualification was imposed. The conviction for reckless driving, on 5 December 2004, was, as I have indicated, the subject of an MDL disqualification for a period of 6 months. It was not ordered by Magistrate Lane to be served cumulatively, and therefore is correctly shown in the criminal history as operating concurrently.
These reasons are provided substantially to assist both the appellant and the authorities to understand the rather confused procedural course which has occurred in this case.
But a further matter arose during the course of the hearing of the appeal, and that is that the appellant is shown as having sustained a conviction on 22 March 2006 for driving without an MDL on 3 August 2005 as a result of the order for disqualification made on 2 August 2005. Of course, the MDL disqualification has long since been served and I do not know what has happened about the fine of $1,300.
The successful application to set the decision aside was, as was the first application, made under CPA, s 71(2), which is in the following terms:
(2)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;
(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.
CPA, s 72(4), required a hearing date to be set and, as can be seen, that was done. Under s 72(5):
the court may grant the application if it is satisfied that it is in the interests of justice to do so.
The effect of that decision is clearly provided for in s 74(1) which, relevantly, provides as follows:
(1)If under section 72 … a court sets aside a conviction -
(a)any sentence imposed or other order made as a result of the conviction is set aside;
(b)any action to enforce the conviction must cease and the accused, if then in custody for non payment of any sum of money ordered to be paid as a result of the conviction, must be released;
(c)if as a result of the conviction the accused was disqualified from holding or obtaining a licence under a written law, the court must notify the person responsible for issuing the licence of the fact that the disqualification is set aside; and
(d)…
It seems to be abundantly clear that the effect of setting aside the conviction sustained and orders made on 2 August 2005 is to quash that decision and those orders as from 2 August 2005. The effect of the order setting aside those matters is that the law treats them as never having occurred.
At first sight, therefore, the offence found to have been committed on 3 August 2005 of which the appellant was convicted and in respect of which the orders were made on 22 March 2006 was not an offence committed by the appellant in respect of which he was liable to be convicted and fined and to have the MDL disqualification imposed.
I merely draw attention to those matters because they arose on the hearing of the appeal. I make no observation about what, if anything, should be done in respect of those matters.