Do Carmo v Baker
[2023] WASC 8
•19 JANUARY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DO CARMO -v- BAKER [2023] WASC 8
CORAM: FORRESTER J
HEARD: 13 JANUARY 2023
DELIVERED : 13 JANUARY 2023
PUBLISHED : 19 JANUARY 2023
FILE NO/S: SJA 1076 of 2021
BETWEEN: PETER JOSE DO CARMO
Appellant
AND
STACEY BAKER
Respondent
ON APPEAL FROM:
For File No: SJA 1076 of 2021
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A HILLS-WRIGHT
File Number : FR 2089 of 2021
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction - Overtaking without passing to the right - Whether any error of law or fact - Turns on own facts
Legislation:
Criminal Appeals Act 2004
Road Traffic Code 2000
Road Traffic (Administration) Act 2008
Road Traffic Code Amendment Regulations (No 3) 2020
Road Traffic Code Amendment Regulations 2021
Result:
Application for an extension of time is refused
Leave to appeal is refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | I G Inkster |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office (WA) |
Cases referred to in decision:
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Province Leader of the Oceania Province of the Congregation of Christian Brothers v Lawrence [2021] WASCA 77
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
(This judgment was delivered extemporaneously on 13 January 2023 and has been edited from the transcript.)
Introduction
On 19 July 2021, after a trial in the Magistrates Court, the appellant was convicted of an offence contrary to reg 122(1) of the Road Traffic Code 2000 (RTC), namely while overtaking a moving vehicle, failing to pass on the right side of the vehicle at a safe distance. He was fined $100 and ordered to pay costs.
The appellant, by an appeal notice dated 30 September 2021, now appeals his conviction, on the basis that the learned magistrate 'failed to understand the traffic code'.
Trial
Reg 122 of the RTC, under which the appellant was charged, states:
122. Overtaking
(1)When overtaking a moving vehicle, a driver of a vehicle (other than a bicycle or electric rideable device) must, except as provided in subregulations (2) and (3), pass to the right of that vehicle, at a safe distance.
Points: 2Modified penalty: 2 PU
(2)Where a carriageway is a one‑way carriageway, or has 2 or more marked lanes for vehicles travelling in the same direction, a driver may overtake and pass in another marked lane to the left of a vehicle, if conditions permit him or her to do so with safety.
On 11 December 2020, at Jandakot, the appellant was witnessed by WA Police Officer Hayman to be riding his motorcycle in a southerly direction on the Kwinana Freeway.
Body worn camera footage of Officer Hayman was tendered at the trial as Exhibit 2. It shows the appellant to be riding on a section of the freeway with four lanes. The traffic was moving slowly, and cars and trucks were applying their brakes. The appellant was travelling along the line dividing the far right lane and the second lane from the right. At one point he rode in the far right lane, overtaking at least five cars also travelling in that lane to their left, and overtaking a large truck travelling in the second lane from the right to its right. It was then he was pulled over by Officer Hayman.
When pulled over, the appellant was told that the body worn camera was recording, which he acknowledged. Officer Hayman told him he had overtaken a vehicle on its left, which was illegal, and the appellant responded by saying, 'But they were just about stopping'. The appellant also told Officer Hayman that he was not aware that what he had done was an offence and that, internationally, it was not an offence to lane‑filter.
The prosecution case was that the appellant had passed a moving vehicle on the left and in the same lane as that vehicle.[1]
[1] Transcript, WA Police v Peter Jose Do-Carmo, Magistrates Court of Western Australia, 19 July 2021, 5, 15 ‑ 16 (Transcript 19 July 2021).
The applicant admitted it was him on the motorcycle. He submitted that the vehicles were stationary, because they had come to a stop.[2] He said another motorcycle had gone past and the vehicles had split for it, so he went past the truck.[3]
[2] Transcript 19 July 2021, 11.
[3] Transcript 19 July 2021, 13 ‑ 14.
Decision
The learned magistrate found that the appellant was shown on the footage to be passing at least five clearly moving vehicles, to their left but in the same lane.
His Honour found that in those circumstances, it was not necessary to consider whether the respondent was at a safe distance from the truck he had overtaken on its right.
Accordingly, he convicted the appellant.
Statutory framework
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[4]
[4] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[5] meaning that the ground is required to have a rational and logical prospect of succeeding.[6] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[7]
[5] CA Act s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CA Act s 9(3).
An extension of time is required.
Grounds of Appeal
In addition to the ground contained in the appeal notice that the learned magistrate 'failed to understand' the RTC, the appellant contends, in effect, that:
(1)Officer Hayman misled the learned magistrate, stating a speed to validate the charge of overtaking a vehicle at an unsafe distance;
(2)the learned magistrate failed to take into account reg 130B of the Road Traffic Code (which permits 'lane filtering' where the speed of the rider overtaking is below 30 km/h);
(3)the evidence clearly indicated the speed was rolling up to 15 km/h where all vehicles rolled with brake lights on;
(4)Officer Hayman forced him to pull over in an unsafe manner;
(5)the prosecutor was aware of all of the information provided and 'clearly used it to proceed dishonestly and misled the learned magistrate'.
The ground of appeal in the appeal notice is subsumed in ground 2.
In written submissions, the appellant appeared to raise a further ground, hereafter referred to as ground 6, namely, that he was unaware of the provisions of the RTC prohibiting lane filtering. That ground was pursued in oral submissions.
Application for extension of time
The appellant filed an affidavit stating that he had health issues and childcare demands and had been trying to seek legal advice, but had been unable to obtain that legal advice in time to file his appeal notice in time.
The delay is approximately six weeks. The extension of time is only opposed by the respondent on the basis that the appeal is without merit.
Disposition
Ground 2
It is convenient to deal with ground 2 first.
Reg 130B of the RTC provides that the rider of a motorcycle is not overtaking for the purposes of the RTC if they are lane filtering in accordance with reg 130B.
A rider is lane filtering if they ride between two vehicles which are travelling in the same direction as the motorcycle and each other but in separate but adjacent marked lanes or lines of traffic.
Relevantly a rider is not lane filtering if they are riding at a speed of more than 30 km/h, or one of the vehicles is a heavy vehicle or it is not safe to lane filter in the circumstances.
However, reg 130B was only inserted in the RTC by the Road Traffic Code Amendment Regulations (No 3) 2020 (as amended by the Road Traffic Code Amendment Regulations 2021). Those regulations did not come into force until 29 March 2021. Accordingly, reg 130B was not in force, either at the date of the offence (11 December 2020) or the date on which the appellant was charged (22 March 2021). The provision was, however, in force at the time of the trial.
If the appellant's conduct constituted lane filtering within the meaning of s 130B, his conduct would not have been an offence had he committed it at the time of his trial. However, the issue is whether that means that he could not have lawfully been punished for the offence.
Section 11 of the Criminal Code provides:
11. Effect of changes in law
A person cannot be punished for doing or omitting to do an act, unless the act or omission constituted an offence under the law in force when it occurred, nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
Lane filtering constituted an offence under the law in force when it was alleged to have occurred, and at the time the appellant was charged with the offence. Accordingly, s 11 did not prohibit the appellant being punished for his conduct.
At common law, in the absence of clear intention, a statute ought not be given retrospective operation, that is, it ought not be understood as attaching new legal consequences to facts or events which occurred before its commencement.[8]
[8] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon J); Province Leader of the Oceania Province of the Congregation of Christian Brothers v Lawrence [2021] WASCA 77 [95].
The amending regulations were published in the Gazette on 24 December 2020, but specifically provided that the relevant regulations were to come into operation on 29 March 2021.[9] As such, the legislature clearly expressed the intention that reg 130B (and the other amendments) would only have prospective effect, and even then, only from 29 March 2021.
[9] Road Traffic Code Amendment Regulations (No 3) 2020 reg 2(b).
Accordingly, reg 130B had no application in this case and the magistrate did not err in not taking it into account.
Ground 1
The appellant alleges that Officer Hayman misled the learned magistrate 'stating a speed to validate the charge of overtaking a vehicle at an unsafe distance'. Presumably, this is said to have given rise to a miscarriage of justice.
In any prosecution under reg 122 of the RTC, the speed of the driver of either vehicle could only be relevant to the issue of whether the distance at which the driver passed the other vehicle was a safe one. However, in this case, the issue of whether the appellant overtook the other vehicles at a safe distance did not arise for the learned magistrate's consideration. The prosecution case was simply that the appellant overtook the moving vehicle to the left.[10] If that were proved beyond reasonable doubt, the prosecution case was proved and that was the basis upon which the learned magistrate found the prosecution case to have been proved.
[10] Transcript 19 July 2021, 5, 15 - 16.
There is no foundation for the assertion that Officer Hayman misled the learned magistrate, deliberately or otherwise. In any event, his evidence as to the speed of the appellant had no possible impact on the verdict. Accordingly, no miscarriage of justice has been established.
Ground 1 has no merit.
Ground 3
Ground 3 implicitly asserts that the learned magistrate erred, on the basis that the evidence 'clearly indicated the speed was rolling up to 15 km/h where all vehicles rolled with brake lights on'.
As with ground 1, the speed of the vehicles was irrelevant to any fact in issue in the trial. Accordingly, the magistrate did not err in failing to take it into account.
Ground 3 has no prospect of success.
Ground 4
The appellant asserts, by ground 4, that Officer Hayman unsafely forced the appellant to pull over to the centre of the freeway. This allegation was not put to Officer Hayman at the trial, although the appellant did raise it in his own evidence.[11]
[11] Transcript 19 July 2021, 14.
Officer Hayman activated his siren after the commission of the offence. Even if the appellant's argument were to be accepted (and the respondent does not accept it), the safety of his directions, which he was empowered to give by s 39 of the Road Traffic (Administration) Act 2008, was not a matter which had any relevance to the issue of whether the appellant was guilty of the offence and the appellant conceded as much.
This ground has no reasonable prospect of success.
Ground 5
The appellant has provided no particulars of the allegation that the prosecutor misled the magistrate, and there is no apparent foundation for that allegation.
Accordingly, this ground has no reasonable prospect of success.
Ground 6
The appellant has submitted an extract from Proudman v Dayman[12] in support of his appeal. He asserts that, because he was unaware of the existence of the regulation under which he was prosecuted, he should be excused from criminal responsibility by reason of an honest and reasonable mistake of fact under s 24 of the Criminal Code.
[12] Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536.
However, the appellant's ignorance of the existence of the regulation is not an excuse. As is provided by s 22 of the Criminal Code, ignorance of the law is not an excuse. The fact that a person is unaware that certain conduct is prohibited by the law is a mistake of law, not a mistake of fact, and s 24 therefore does not apply to excuse the appellant.[13]
[13] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493.
This ground has no merit.
There being no arguable grounds of appeal, leave to appeal is refused on all grounds. The extension of time is refused. The appeal must therefore be taken to be dismissed.
Orders
The application for an extension of time is refused.
Leave to appeal is refused on all grounds.
The appeal is dismissed.
Costs be ordered in favour of the respondent to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
19 JANUARY 2023
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