Dodo-Balu v Hodgson
[2015] WASC 222
•9 JUNE 2015
DODO-BALU -v- HODGSON [2015] WASC 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 222 | |
| Case No: | SJA:1077/2014 | 9 JUNE 2015 | |
| Coram: | PRITCHARD J | 9/06/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | LUFUENDE DODO-BALU PAUL RICHARD HODGSON |
Catchwords: | Criminal law Contravening traffic control signal Appellant convicted in his absence Appeal conceded Miscarriage of justice Turns on its own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9(2) Criminal Procedure Act 2004 (WA), s 55 Road Traffic Code 2000 (WA), reg 40(2) |
Case References: | Grover v Scott [2010] WASCA 164 Sharma v Hodgson [2012] WASC 433 Wimbridge v The State of Western Australia [2009] WASCA 196 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G CICCHINI
File No : PE 71249 of 2014
Catchwords:
Criminal law - Contravening traffic control signal - Appellant convicted in his absence - Appeal conceded - Miscarriage of justice - Turns on its own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9(2)
Criminal Procedure Act 2004 (WA), s 55
Road Traffic Code 2000 (WA), reg 40(2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr W A Fitt
Solicitors:
Applicant : In person
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Grover v Scott [2010] WASCA 164
Sharma v Hodgson [2012] WASC 433
Wimbridge v The State of Western Australia [2009] WASCA 196
- PRITCHARD J:
(This judgment was delivered extemporaneously on 9 June 2015 and has been edited from the transcript)
1 By prosecution notice dated 17 March 2014, Mr Dodo-Balu was charged with driving contrary to reg 40(2) of the Road Traffic Code 2000 (WA). It was alleged that, on 28 January 2014, Mr Dodo-Balu failed to comply with a traffic control signal. The matter was listed for hearing in the Magistrates Court on 4 April 2014. Mr Dodo-Balu failed to attend.
2 Section 55(2) of the Criminal Procedure Act 2004 (WA) provides that:
(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 -
...
(b) hear and determine the charge in the accused’s absence.
4 The prosecutor's statement of material facts, which was read to the Magistrates Court at the hearing on 4 April 2014, stated that on 28 January 2014 at 8.30 am, Mr Dodo-Balu was photographed contravening a road traffic control arrow at the intersection of Tonkin Highway and Collier Road. It was said that the traffic lights had been yellow for 5.06 seconds and red for 1.84 seconds. Mr Dodo-Balu was convicted in his absence and the Magistrate imposed a fine of $150 and awarded costs of $146.90.
5 Mr Dodo-Balu made an application for an order to set aside the decision of the Magistrate pursuant to s 71(2) of the Criminal Procedure Act 2004 (WA). That application was heard on 5 June 2014. On hearing that application, the Magistrate was not persuaded that Mr Dodo-Balu had identified any defence to the charge and concluded that it was not in the interests of justice to set aside the conviction. Accordingly, her Honour refused the application.
6 By notice of appeal dated 6 October 2014, Mr Dodo-Balu sought leave to appeal the decision of the Magistrate on 5 June 2014 to refuse to set aside his conviction. Mr Dodo-Balu noted that he required an extension of time to file his appeal notice. The affidavit he swore on 6 October 2014 in support of his appeal stated that the reason for the delay was 'because of my work I was not able to lodge the appeal on time'.
7 The right of appeal from courts of summary jurisdiction to this Court is found in s 7(1) of the Criminal Appeals Act 2004 (WA), which provides that:
A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
8 Section 6 of that Act exhaustively defines the term 'decision'. That definition does not include a decision to refuse to set aside a conviction recorded in the absence of an accused person. It is well established that a decision to refuse to set aside a conviction recorded in a person's absence is not a decision in respect of which there is a right of appeal.1
9 At today's hearing it was drawn to Mr Dodo-Balu's attention that his appeal against the decision of the learned Magistrate made on 5 June 2014 was likely to be incompetent. He then sought, and was granted, leave to amend his notice of appeal in order to appeal against his conviction on 4 April 2014. In addition, he sought, and was granted, leave to amend his notice of appeal to substitute a new ground of appeal, namely that his conviction would constitute a miscarriage of justice in all of the circumstances. (Counsel for the respondent did not object to the grant of leave to amend.)
10 Shortly prior to today's hearing, counsel for the respondent advised the Court that he was instructed to concede the appeal. He stated that the prosecuting authorities had reviewed the evidence available to them in respect of the offence alleged and were not confident that they could prove beyond reasonable doubt that the red traffic light was displayed at the time when Mr Dodo-Balu proceeded through the intersection. The concession of the appeal was also made in view of Mr Dodo-Balu's position (which he stated before the Magistrate on 5 June 2014) that he did not see the red traffic light. For that reason, counsel for the respondent conceded that it would be a miscarriage of justice for Mr Dodo Balu's conviction to stand.
11 I accept that concession having regard to the basis upon which it was made.
12 It follows that the appeal should succeed under s 8(b) of the Criminal Appeals Act 2004 (WA). It would clearly be a miscarriage of justice for the conviction to stand in circumstances where the respondent is not now satisfied that it would be able to establish, beyond reasonable doubt, that Mr Dodo-Balu is guilty of the offence.
13 Two other matters must be resolved.
14 An appeal to the Supreme Court against a decision (as defined in s 6 of the Criminal Appeals Act 2004 (WA)) requires the grant of leave to appeal. The court must not give leave to appeal unless it is satisfied that the ground of appeal has a reasonable prospect of succeeding.2 It follows from the matters discussed at [10] - [12] that leave to appeal should be granted in the present case.
15 Finally, the notice of appeal was originally filed out of time. The period between the decision under appeal and the filing of the notice of appeal is now even longer in light of the amendment which has been made to the appeal notice to refer to the decision made by the learned Magistrate on 4 April 2014. As it now stands, the notice of appeal was filed approximately five months out of time. The authorities make clear that an extension of time should only be granted where, in situations involving a lengthy delay, the appellant has demonstrated exceptional circumstances or where there will be a miscarriage of justice if an extension of time is not granted.3 In the present case, having regard to the circumstances in which the appeal has been conceded, there would clearly be a miscarriage of justice if an extension of time were not granted, notwithstanding the length of the delay. In these circumstances, it is appropriate to grant an extension of time.
1 See Sharma v Hodgson [2012] WASC 433 [19] (Beech J citing Grover v Scott [2010] WASCA 164 [98] (Jenkins J, McLure P & Buss JA agreeing).
2Criminal Appeals Act 2004 (WA) s 9(2).
3 See Wimbridge v The State of Western Australia [2009] WASCA 196 [19] - [20] (Wheeler JA, Miller JA agreeing).
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