Denham v Di Gregorio
[2016] WASC 32
•5 FEBRUARY 2016
DENHAM -v- DI GREGORIO [2016] WASC 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 32 | |
| Case No: | SJA:1045/2015 | 5 FEBRUARY 2016 | |
| Coram: | MARTINO J | 5/02/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TIMOTHY KENNETH DENHAM GIUSEPPE DI GREGORIO |
Catchwords: | Appeal against conviction and sentence Driving while not authorised |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GIUSEPPE DI GREGORIO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE L ATKINS
File No : PE 118697 of 2014
Catchwords:
Appeal against conviction and sentence - Driving while not authorised
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms J C O'Meara
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Nil
1 MARTINO J: The appellant, Mr Denham, appeals against the decision of Magistrate Atkins made on 30 April 2015 to convict him of the charge of driving a motor vehicle on 12 December 2014 whilst not being a person authorised by pt IVA of the Road Traffic Act 1974 (WA) and whose authority was at the time suspended and against the sentence imposed upon him of a fine of $400 and to disqualify him from holding or obtaining a driver's licence for 9 months.
2 Mr Denham was charged by a prosecution notice lodged in the Magistrates Court on 19 December 2014. The prosecution was listed for 28 January 2015. Mr Denham did not appear at that hearing. He was convicted in his absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA).
3 On 10 March 2015 Mr Denham appeared before the Chief Magistrate on his application to set aside the conviction. He informed his Honour that he attended court the day following the hearing and he thought that he had entered the incorrect date in his diary. His Honour set aside the conviction and listed the prosecution for hearing on 30 April 2015.
4 Mr Denham did not appear on 30 April 2015. The transcript of the hearing on that day shows that the learned Magistrate had before her a letter from Mr Denham. The letter has not been provided to this court by the Magistrates Court, but the learned Magistrate said that the letter was sent on the day of the hearing, that is 30 April 2015. Her Honour read out the letter in open court. It said:
I am asking for an adjournment for a week or two as I am still waiting for some records to be delivered by mail to prove there was a mistake made on your system.
5 Her Honour refused the application for an adjournment. She gave the following reasons for her decision:
Now, maybe I would have had more sympathy with Mr Denham if he had taken the trouble to attend court today knowing this was his hearing. However, he has chosen not to. There has been no formal application to set aside and matters such as adjournments are not just there for the asking or for the convenience of Mr Denham. I note that the matter was adjourned on a previous occasion and he was at court when the matter was listed for trial today. I am not prepared to grant the application.
6 The prosecutor read out the material facts as follows:
It was on 12 December 2014 at 5.50 pm. He drove a motor vehicle on Plain Street in East Perth. He was stopped (indistinct) used his mobile phone. Also ascertained that he was not authorised to drive as his drivers licence was suspended on the - or disqualified on 16 September 2014 to 16 December 2014 for demerit point suspension effectively. Those are the facts.
7 The learned Magistrate convicted Mr Denham in his absence pursuant to s 55 of the Criminal Procedure Act and imposed the fine and disqualification to which I have referred earlier in these reasons and ordered him to pay costs of $150.80.
8 On 2 June 2015 Mr Denham appeared before the Chief Magistrate on his application to set aside the conviction. His Honour refused the application and informed Mr Denham that his remedy was to appeal to the Supreme Court against Magistrate Atkins' decision.
9 On 10 June 2015 Mr Denham filed an appeal notice in this court, appealing against the decision of the Chief Magistrate made on 2 June 2015 and an application for an urgent hearing. There were three documents stapled to the application for an urgent hearing:
1 A Fines Enforcement Registry Notice of Intention to Enforce addressed to Mr Denham dated 3 June 2015 giving Mr Denham notice that $550.80 was outstanding on the fine which Mr Denham is appealing. There are some handwritten notes on the notice;
2 A Department of Transport Excessive Demerit Points Notice number EDPN 623872 addressed to Mr Denham dated 17 April 2014 on which there are also some handwritten notes; and
3 An unsigned letter from Paul Robinson dated 10 March 2015 in which Mr Robinson said:
To whomever it concerns,
My name is Paul Robinson and am a dear friend of Tim Denham. This letter is to confirm that I was responsible for transporting Tim all over the countryside from approx. May till November 2014.
Tim and myself have worked together on various project and Tim was a great help. I also had to drive Tim to his own projects.
Tim advised me in November that after speaking to fines enforcements that he was no longer under suspension, which was a relief as I was really sick and tired of driving him around and having to listen to all his same stories and silly jokes.
3. By 22 September 2015, the appellant:
(a) file and serve an amended Notice of Appeal identifying the grounds on which the appeal is maintained; and
(b) file and serve an affidavit setting out any evidence on which he wishes to rely in support of his appeal.
4. The respondent has leave to file and serve any affidavit(s) in response by 12 October 2015.
11 On 22 September 2015 Mr Denham filed an amended appeal notice appealing against Magistrate Atkins' decision and an affidavit made by him on the same day. The ground of appeal contained in the amended appeal notice is that the learned Magistrate:
made an error of justice by refusing to take into account the evidence provided to her, which clearly demonstrated that something was wrong with DOT's records.
12 His affidavit contains two paragraphs:
1 This is a department of Transport error as per documents already provided.
2 I am waiting for proof of this to be mailed out that shows that it was the same fine which was taken off my demerit points then put back on which is in contrast to evidence provided to the state solicitors office.
13 Mr Denham has confirmed today that the 'documents already provided' referred to in the first paragraph were the documents stapled to his application for an urgent hearing.
14 On 12 October 2015 the respondent filed affidavits of Adrian Robert Jones and Dianne Kathleen Lysle, both made on 8 October 2015. Mr Jones is an employee of the State Solicitor's Office. His affidavit annexes transcripts of the hearings in the Magistrates Court. Ms Lysle is employed by the Department of Transport as the Manager, Demerit and Sanction Management, Driver and Vehicle Services. She gives evidence of the Department of Transport's practices and records and annexes copies of the Department's records to her affidavit.
15 Mr Denham's ground of appeal is that the learned Magistrate made an error by refusing to take into account the evidence provided to her which demonstrated that something was wrong with the Department of Transport's records. That ground of appeal cannot succeed. There was no evidence provided to her Honour that there was something wrong with the Department of Transport's records. All that was provided to her was a letter requesting an adjournment in which Mr Denham said that he was waiting for records to prove that there was a mistake.
16 I have considered whether the appeal should be allowed because there has been a miscarriage of justice. Mr Robinson's letter does not demonstrate that there has been a miscarriage of justice. Mr Robinson says that he was responsible for transporting Mr Denham from approximately May to November 2014 and that Mr Denham advised Mr Robinson in November that after speaking to fines enforcements Mr Denham was no longer under suspension. Mr Denham was charged with driving in December 2014. Even if it were true that Mr Denham had been informed that his licence was no longer suspended that would not provide a defence to the prosecution. Nor could it have resulted in a different sentence as the learned Magistrate imposed the minimum fine and licence disqualification.
17 The notice of intention to enforce a fine post dates the decision appealed from. It does not demonstrate any defence was available to Mr Denham. The hand written annotations are:
The senior police prosecutor said I should provide this as some more evidence that D.O.T. computer systems do strange things some times.
18 There is a circle around the Vehicle Registration Number shown on the notice and the annotation is:
This car was purchased in April this year and was not the car driven in the offence.
19 Mr Denham has informed me today that it is his handwriting on this notice.
20 The notice does not purport to specify that the vehicle registration number shown was the registration number of the vehicle that Mr Denham was driving at the time of the offence. Even if it did it would not demonstrate that there was a defence to the charge.
21 The Excessive Demerit Points Notice EDPN 623872 shows that it was served on Mr Denham on 16 May 2014. The handwritten notes on the notice are:
21 days from 16/5/2014 to transfer Vic MDL to WA & elect for GBP.
22 Neither the notice nor the notes on it demonstrate that Mr Denham had a valid driver's licence on 12 December 2014.
23 The affidavit of Ms Lysle shows that the Excessive Demerit Points Notice EDPN 623872 was automatically cancelled on 20 May 2014 when Western Australian Police removed a traffic infringement notice from the register. The effect of removing that infringement notice was that the number of demerit points accrued by Mr Denham in the relevant three year period had been reduced from 12 to 9.
24 On 12 June 2014 a Department of Transport Excessive Demerit Points Notice number EDPN 636566 addressed to Mr Denham was issued. Mr Denham had accrued 12 demerit points in a three year period because on 29 January 2014 WA Police issued Mr Denham with a traffic infringement notice for contravening a red arrow signal.
25 Excessive Demerit Points Notice number EDPN 636566 was served on Mr Denham on 19 August 2014. As a consequence the disqualification period commenced on 16 September 2014 and expired on 15 December 2014. This was a result of the provisions of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
26 Mr Denham has handed to me today a bundle of documents. He has told me that the Department of Transport makes mistakes. He has told me that a Fines Enforcement Registry Officer had told him that his licence was not cancelled.
27 Even if it were true that the Department of Transport makes mistakes and Mr Denham believed that his licence was not cancelled that would not provide him with a defence to the prosecution. His licence was suspended for three months commencing 28 days after Excessive Demerit Points Notice number EDPN 636566 was served on him. He drove in that three month period.
28 Nor could these matters have affected the sentence. The minimum sentence was imposed.
29 There has been no miscarriage of justice. The learned Magistrate was entitled to refuse the application for an adjournment in the circumstances that Mr Denham was well aware of the hearing and he failed to attend.
30 Mr Denham has no reasonable prospect of succeeding in the appeal. Leave to appeal is refused and the appeal is dismissed.
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