JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FISHER -v- O'HEHIR [2023] WASCA 19
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 1 MARCH 2022
DELIVERED : 7 FEBRUARY 2023
FILE NO/S: CACR 163 of 2020
BETWEEN: IAN WALLACE FISHER
Appellant
AND
ANGELA GAIL O'HEHIR
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: FISHER -v- O'HEHIR [2020] WASC 353
File Number : SJA 1146 of 2019
Catchwords:
Criminal law - Practice and procedure - Implied power of a magistrate to manage the court list by calling listed matters on and standing them down - Whether magistrate exceeded power or failed to accord procedural fairness to the appellant by dealing with matters in his absence at about 11.00 am, after the appellant indicated he would not participate in a hearing stood down to commence at 2.15 pm that day - Whether magistrate erred in failing to adjourn proceedings following statements by the appellant, unsupported by medical evidence, that he was not well enough to participate in a trial - Whether the fact that the prosecutor did not read statement of material facts aloud in court on the day of the hearing prevented the magistrate from entering judgments of conviction in the appellant's absence - Whether physical signature required on a prosecution notice lodged electronically
Legislation:
Courts and Tribunals (Electronic Process Facilitation) Act 2013 (WA), s 8, s 10
Criminal Code (WA), s 262, s 267
Criminal Procedure Act 2004 (WA), s 20(3)(a)(iii), s 21(3), s 23(2)(d), s 24(2), s 55, s 75
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Magistrates Court (General) Rules 2005 (WA), r 13A
Road Traffic (Administration) Act 2008 (WA), s 44
Road Traffic (Vehicles) Act 2012 (WA), s 29(1), s 30
Road Traffic Code 2000 (WA), reg 11(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | C S Bydder SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Minister for Immigration v Teoh (1995) 183 CLR 273
Re Minister for Immigration; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Sparks v Bellotti [1981] WAR 65
JUDGMENT OF THE COURT:
Summary
On 21 October 2019, the appellant was convicted (in his absence) in the Magistrates Court of the following three offences arising out of him driving a motor vehicle on Great Eastern Highway, South Guildford on 23 September 2015:
1.exceeding the speed limit, by driving at 91 km/h in a 60 km/h zone; contrary to reg 11(3) of the Road Traffic Code 2000 (WA);
2.failing to comply with a direction by a police officer to stop; contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA); and
3.driving a vehicle…
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- AGLC
- Fisher v O'HEHIR [2023] WASCA 19
- Case
- [2023] WASCA 19
- Decision Date
CaseChat Overview and Summary
The court addressed the first ground by considering whether the exercise of the magistrate's power to manage the list was procedurally fair. It was established that while procedural fairness is essential, it is a practical concept. The court found that there was no practical unfairness in calling the appellant's matter back on when he had clearly indicated he would not be waiting and would not be appearing at the scheduled time. Additionally, there was no unfairness in dealing with the matter in the appellant's absence after he did not respond to his name being called in the court precincts. Given that the appellant had already indicated his intention not to participate and was leaving the court, he was not deprived of any opportunity to participate in the proceedings. The court concluded that the grounds related to the management of the list lacked merit.
The second ground of appeal concerned the failure of the prosecutor to read the material facts of the charge before the magistrate convicted and sentenced the appellant. The court noted that the requirement to read the material facts arises only if the court convicts the accused, and the power to convict is not contingent on the prosecutor reading the facts aloud. The court found that the failure to read the material facts did not provide a basis for setting aside the appellant's convictions. Furthermore, the court held that even if the ground of appeal were to challenge the sentencing discretion, there was no material failure to comply with the requirements of the Criminal Procedure Act. The court confirmed that the facts of the alleged offending had already been read to the court during the initial conviction and sentencing hearing.
The Court of Appeal dismissed the appeal and upheld the appellant's conviction and sentence. The court found that there was no practical unfairness in the way the magistrate managed the list and that the failure of the prosecutor to read the material facts did not undermine the validity of the conviction or sentence. As a result, the appellant's appeal was unsuccessful, and the original decision of the Magistrates Court was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Of course, the exercise of the magistrate's power to manage his or her list must be exercised in a manner which is procedurally fair to all parties. However, fairness is essentially a practical concept.[11] There was no practical unfairness in the present case in calling the appellant's matter back on when he had made it plain that he was not waiting until 2.15 pm and would not be appearing at that time. Nor, in those circumstances, was there any practical unfairness in dealing with the matter in the appellant's absence after the appellant did not respond to his name being called in the court precincts. The appellant was not deprived of any opportunity to participate in the proceedings given that he had made it plain that he would not be participating and was in the process of leaving the court to return home for the day.[11] Re Minister for Immigration; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [272]. In our view, there is no merit to these grounds of appeal. Ground (b) complains of the failure of the prosecutor to read the material facts before the magistrate convicted and sentenced the appellant on 21 October 2019. Ground (b) is misdirected so far as it attacks the conviction as opposed to the penalty imposed for the offence. The requirement to read the material facts under s 55(5)(a) of the Criminal Procedure Act arises if, under s 55(4), the court convicts the accused. The power of the Magistrates Court to convict an accused under s 55(4) is not conditioned by a requirement that the prosecutor reads aloud to the court the material facts of the charge. The failure of the prosecutor to read the material facts of the charge to the court on 21 October 2019 does not provide a basis for setting aside the appellant's convictions. The primary judge was correct to so hold.[12] That is a sufficient basis for rejecting ground (b).[12] Primary decision [58]. In any event, even if the grounds of appeal were to be amended to challenge the exercise of the sentencing discretion, we are not persuaded that there was any material failure to comply with the requirements of s 55(5) of the Criminal Procedure Act in this case. The facts of the alleged offending had already been read to the court on 21 December 2017 when the appellant was first convicted and sentenced in his absence. The facts were as follows:[13][At 6.00 pm on] 23 September 20l5, the [appellant] drove a Nissan Navara utility [on] Great Eastern Highway, South Guildford. The [appellant's] vehicle was observed to be travelling in excess of the speed limit. Laser speed measuring equipment was utilised and an alleged speed of 91 kilometres per hour was obtained. The speed allowed for the area is 60 kilometres per hour. Police standing on the side of the road in full view of the [appellant] made clear hand signals indicating for the [appellant] to pull into a car park on the left.The [appellant] has made eye contact with the officer, driven around him and continued west on Great Eastern Highway. Police have gone after the [appellant] in a police vehicle. The [appellant] has turned from the highway on to Fauntleroy Avenue, then right into Redcliffe Road and right into Ben Street before he stopped. He actually had to stop because it was a [dead-end] road.Police have then examined the [appellant's] vehicle, found that there were plastic fuel containers with fuel in them, a wheelbarrow, a lawnmower, a motorised line trimmer, a blower vacuum and other equipment in the rear of the vehicle. And the [appellant] had failed to place and correctly secure the load in the back of the utility …[13] Magistrates Court ts 21/12/17 at 2 - 3.