Fazio v St John-Ayre

Case [2017] WASC 62


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   FAZIO -v- ST JOHN-AYRE [2017] WASC 62

CORAM:   FIANNACA J

HEARD:   23 SEPTEMBER & 26 OCTOBER 2015

DELIVERED          :   17 MARCH 2017

FILE NO/S:   SJA 1019 of 2014

BETWEEN:   ARTURO FAZIO

Appellant

AND

MICHAEL ANTHONY ST JOHN-AYRE
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE G LAWRENCE & MAGISTRATE S MALLEY

File No  :FR 4106 of 2012

Catchwords:

Criminal law - Appeal - Conviction for speeding - Appellant (accused) failed to appear at hearing - Magistrate refused adjournment - Appellant (accused) convicted in his absence under s 55 Criminal Procedure Act 2004 (WA) - Appeal partially incompetent - Appeal out of time - No exceptional circumstances to warrant leave out of time - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 55, s 61(5), s 71, s 72
Magistrates Court Act 2004 (WA), s 36
National Measurement Act 1960 (Cth), s 10
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 2000 (WA), r 11(2)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr J Winton

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

Cases referred to in judgment:

Bond v Mastrangelo [2013] WASC 400

Davern v Messel [1984] HCA 34; (1984) 155 CLR 21

Davis v Armstrong (1993) 17 MVR 190

Dean v Legal Practice Board [2013] WASC 155

DPJB v The State of Western Australia [2010] WASCA 12

Gavin v The Queen (1992) 6 WAR 195

Genovese v City of Perth [2012] WASCA 89

Grover v Scott [2010] WASCA 164

Heedes v The Legal Practice Board [2005] WASCA 166

Heedes v The State Of Western Australia [2005] WASCA 251

Heedes v The State Of Western Australia [No 2] [2008] WASCA 142

House v The King [1936] HCA 40; (1936) 55 CLR 499

JS v The State of Western Australia [2014] WASCA 177

Kershaw v The State of Western Australia [2014] WASCA 111

Lancaster v The Queen [1989] WAR 83

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Leary v The Queen [1975] WAR 133

Macdonald v County Court of Victoria [2013] VSC 109

Mansell v Mignacca-Randazzo [2013] WASC 66; (2013) 228 A Crim R 73

Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438

Myers v Myers [1969] WAR 19

Opperman v The State of Western Australia [2011] WASC 25

Pallett v Paul [2007] WASC 290

Pearce v Dennis [1998] 1 Qd R 431

Radalj v Taylor (1997) 98 A Crim R 170

Re Appeal of White (1987) 9 NSWLR 427

Rendell v Douglas [2015] WASC 36

Rumsley v Taylor (1997) 142 FLR 312

Saad v Baron [2012] WASC 507

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sharma v Hodgson [2012] WASC…

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Fazio v St John-Ayre [2017] WASC 62
Case
[2017] WASC 62
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CaseChat Overview and Summary

In the matter of Fazio v St John-Ayre, the appellant sought to appeal his conviction for speeding in the Magistrates Court of Western Australia. The appellant, Fazio, was charged with speeding and failed to appear at the scheduled hearing. The magistrate, St John-Ayre, refused to adjourn the hearing and proceeded to convict Fazio in his absence. The appeal against the conviction was lodged after the deadline, and the appellant sought leave to appeal out of time, arguing that the refusal to adjourn constituted a miscarriage of justice. The legal issues in this case centred on whether the appeal was competent, whether the appellant had any grounds for an out-of-time appeal, and whether there were exceptional circumstances to warrant such a leave. The court examined whether the refusal to adjourn the hearing amounted to a miscarriage of justice, and if the appellant could demonstrate any circumstances that would warrant an out-of-time appeal.

The court found that the appeal was partially incompetent because it was lodged after the prescribed time limit. The appellant argued that the refusal to adjourn amounted to a miscarriage of justice, but the court considered the grounds for such a claim. It was noted that the appellant had the opportunity to request an adjournment but chose not to do so. The court further examined whether there were exceptional circumstances to warrant leave to appeal out of time. The appellant did not provide any evidence of exceptional circumstances, and the court found that there was no miscarriage of justice. Consequently, the court held that the appellant's appeal was incompetent and dismissed the application for leave to appeal out of time.

As the appeal was found to be incompetent, the court did not proceed to consider the merits of the appeal. The court concluded that there were no exceptional circumstances to warrant leave to appeal out of time, and the appellant's conviction for speeding remained. The final orders of the court were that the appeal was dismissed and the conviction upheld. The court emphasised that the appellant's failure to appear at the hearing and the refusal to adjourn the hearing did not amount to a miscarriage of justice, and the appeal was therefore not competent. The decision reinforces the importance of timely appeals and the need for applicants to demonstrate exceptional circumstances to warrant leave to appeal out of time.

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