Fisher v O'Hehir
[2020] WASC 353
•7 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FISHER -v- O'HEHIR [2020] WASC 353
CORAM: SMITH J
HEARD: 18 SEPTEMBER 2020
DELIVERED : 7 OCTOBER 2020
FILE NO/S: SJA 1146 of 2019
BETWEEN: IAN WALLACE FISHER
Appellant
AND
ANGELA GAIL O'HEHIR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S SHARRATT
File Number : MI 10777 of 2015, MI 10778 of 2015, MI 10779 of 2015
Catchwords:
Criminal law - Appeal against conviction - Traffic offences - Appellant convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA) - Whether failure by the prosecutor to read to the court the material facts of the offences
Criminal law - Appeal against sentence - Error established as no material facts read to the court - No substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 39, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 35(5), s 55, s 55(2)(b), s 55(5)(b), s 60, s 71, s 75(2), s 75(4), s 129(4)
Road Traffic (Administration) Act 2008 (WA), s 44
Road Traffic (Vehicles) Act 2012 (WA), s 29(1)
Road Traffic Code 2000 (WA), r 11(3)
Sentencing Act 1995 (WA), s 6, s 6(1), s 6(2)(b)
Result:
Application to admit additional evidence refused
Leave to appeal on ground 2 allowed
Leave to appeal on grounds 1, 3, 4 and 5 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms E C Salsano |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Farkas v Thomason [2020] WASC 67
Fazio v St John-Ayre [2017] WASC 62
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Ireland v Jackson [2020] WASC 2
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Medical Board (SA) v N,JRP [2006] SASC 19; (2006) 93 SASR 546
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Saad v Baron [2012] WASC 507
Sparks v Bellotti (1981) WAR 65
Y v X [2020] WASCA 104
Yu v The State of Western Australia [2019] WASCA 197
SMITH J:
The appeal
The appellant appeals against a decision to convict him in his absence of three traffic-related charges, pursuant to s 55 of the Criminal Procedure Act 2004 (WA).
The appellant also makes an application to adduce additional evidence in the appeal, namely a medical report from his general practitioner which he contends establishes that he was medically unfit to attend a hearing of the charges on 21 October 2019.
Leave of the court is required for each ground of appeal.[1] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[2]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
[2] Criminal Appeals Act 2004 (WA) s 9(2).
Background
The traffic charges
The appellant was charged by prosecution notice on 12 October 2015.
The convictions entered on each charge arose out of a single incident on 23 September 2015. After entering the convictions on 21 October 2019, fines were imposed and the appellant was ordered to pay costs of $169.10, by his Honour sitting at the Midland Magistrates Court as follows:
(a)for the offence of exceeding the speed limit in a speed zone, contrary to r 11(3) of the Road Traffic Code 2000 (WA) (MI 10777/2015), the appellant was fined $800;
(b)for the offence of failing to comply with a direction to stop, contrary to s 44 of the Road Traffic (Administration) Act 2008 (WA) (MI 10778/2015), the appellant was fined $800; and
(c)for the offence of failing to ensure that vehicle load requirements were complied with, contrary to s 29(1) of the Road Traffic (Vehicles) Act 2012 (WA) (MI 10779/2015), the appellant was fined $200.
The procedural history of the charges prior to the hearing on 21 October 2019
The disposition of the charges against the appellant has had a long and tortuous procedural history.
The charges were listed for trial on six separate occasions.
The appellant first appeared in the Magistrates Court on 18 November 2015 and entered pleas of not guilty to each of the charges, and the matters were listed for trial on 8 August 2016. At the first appearance, an order was made for full disclosure by the prosecution within six weeks including investigation results referred to by police to the appellant at the time of the appellant being stopped, including any recorded interviews by police with the appellant.[3]
[3] Record of court proceedings noted on the prosecution notice on 18 November 2015.
On 8 August 2016, the trial was adjourned because the appellant had to leave the court as a result of ill health.[4]
[4] Record of court proceedings noted on the prosecution notice on 8 August 2016.
The matters were next listed for trial on 30 March 2017. The appellant attended, however, the trial was vacated by the presiding magistrate due to time constraints.[5]
[5] Record of court proceedings noted on the prosecution notice on 30 March 2017.
The trial of the charges was re-listed for 21 December 2017. On that occasion, the appellant did not appear and the presiding magistrate proceeded to hear and determine the charges in the appellant's absence. After the material facts were read by the prosecutor on that occasion the presiding magistrate entered convictions in respect of each of the charges, and sentenced the appellant to a fine of $800 for MI 10777/2015, a fine of $800 for MI 10778/2015, a fine of $200 for MI 10779/2015, and ordered him to pay costs totalling $169.10.
On 24 January 2018, the appellant successfully applied to have the convictions set aside.
The charges were set down for trial for a fourth time on 9 May 2018. The appellant did not appear at the trial, but provided a note to the court in which he requested an adjournment to attend a funeral. The presiding magistrate vacated the trial.
The charges were listed for mention on 23 May 2018. The appellant did not appear and the presiding magistrate proceeded to hear and determine the charges in his absence. A conviction was entered in respect of each of the charges.
On 19 June 2018, the appellant successfully applied to have the convictions set aside, on grounds that he did not receive notice of the hearing.[6]
[6] ts 19 June 2018.
The charges were set down for trial for a fifth time on 31 January 2019. The appellant did not appear, but provided the Magistrates Court with a medical report detailing why he was unable to attend. The presiding magistrate adjourned the charges.
On 27 February 2019, the charges were listed for trial on 21 October 2019, at 9.30 am.[7]
[7] Record of court proceedings noted on the prosecution notice on 27 February 2019.
On 9 October 2019, in the absence of the appellant, the prosecution made an unsuccessful application to adjourn the trial on the grounds of what appears to be the unavailability of a witness, but an order was made that the prosecution witness, Sergeant Bilborough was not to be called before 2.15 pm on 21 October 2019.[8]
The hearing on 21 October 2019
[8] ts 9 October 2019; record of court proceedings noted on the prosecution notice on 9 October 2019.
Only part of the proceedings of the hearing of the charges on 21 October 2019 was transcribed.
The available transcript records that at 9.54 am, the appellant's charges were called on for hearing, but the appellant had not arrived at court. When court was convened, his Honour enquired of the court's judicial support officer as to whether any message had been received from the appellant, and was told no. His Honour informed the prosecutor that as the prosecution had witnesses waiting that he would adjourn the hearing until later that day. The prosecutor informed his Honour that Sergeant Bilborough would be present at 2.15 pm.[9] His Honour then adjourned the hearing until 2.15 pm, and informed the prosecutor that his (other) witnesses could leave and return at that time. His Honour also stated that if the appellant was not at the court at that time, (2.15 pm) the hearing would proceed in his absence.
[9] It is noted that the record of court proceedings noted on the prosecution notice on 9 October 2019 that an order was made that Sergeant Bilborough not be called before 2.15 pm.
Shortly after the magistrate adjourned the hearing of the charges to 2.15 pm, the appellant arrived at the court and appeared before his Honour. Unfortunately, this appearance does not appear to have been transcribed. However, this court is able to determine what occurred at that appearance by:
(a)matters deposed by the appellant in an affidavit sworn by him on 9 September 2020;
(b)information stated to this court by the appellant from the bar table;
(c)a note of the appearance made by his Honour on the prosecution notice; and
(d)from remarks made by his Honour when he gave his reasons as to why he had determined to proceed to hear the charges in the absence of the appellant.
His Honour's note recorded on the prosecution notice as a record of court proceedings of this appearance is as follows:
Acc turned up 10ish/said the trial would take 5 hours and he is too ill to last 5 hours/I told him the mass of downloaded material he wanted to put into evidence would be inadmissible without either him or a witness being an expert, he left saying he would not come back at 2.15 as he would be too ill. He left and came back and dropped off a stat deck at the registry saying hes unable to attend court. There is no medical evidence before the Court about today, he looked fine at 10. I am of the opinion he just did not want to wait. Mag Sharratt
At the hearing of the appeal, the appellant stated:
(a)he arrived at the Midland Magistrates Court at about 10.20 am;
(b)he was late because it took him a very long time to travel by public transport from Stirling to the Midland Magistrates Court and he had to walk 2 km which he found difficult because he suffers from a chronic heart condition and a loss of breathing capacity;
(c)after informing his Honour that he would not come back at 2.15 pm that day as he would be too ill, he walked to a chemist and made a statutory declaration in which he stated, 'I'm unable to attend the court due to my health conditions and further details can be discussed with my doctor'; and
(d)he returned to the Midland Magistrates Court not long before 11.00 am and gave the statutory declaration to an officer in the registry, and then went outside the Midland Magistrates Court where he stood for a period of time to rest (to about 11.30 am) before he made his way back to the Midland train station (to return home).
It appears that shortly after the appellant lodged the statutory declaration at the registry that the statutory declaration was provided to his Honour and as a result, at about 11.00 am, the magistrate recalled the matters.
Whilst there is no direct evidence that any steps were taken to ascertain whether the appellant was, at the time the matter was recalled, within the precincts of the Midland Magistrates Court, it does appear that the usual procedure of calling a person's name (whose matter is about to be heard) immediately outside the door of a court (which is the immediate door of the court where the matter is being heard and not outside the building) was followed. This inference can be drawn from the transcript as the transcript records that the judicial support officer recalled the appellant by name and there was then a short adjournment, before the proceedings recommenced at about 11.00 am.[10]
[10] ts 21 October 2019, page 3.
After the short adjournment, the transcript records that the prosecutor was present, and the magistrate determined the charges in the absence of the appellant.
The transcript indicates that no material facts were read to the court by the prosecutor, as the only matters recorded are the remarks made by the magistrate.
The magistrate's reasons for entering convictions for each of the three charges in the absence of the appellant
After setting out the procedural history of previous adjournments, his Honour noted that on 31 January 2019 when the matter was listed for mention to allocate trial dates, the appellant was not present but had provided a general medical report which provided a list of 'injuries'. His Honour then noted that on 27 February 2019 when the appellant attended court (and the trial date for 21 October 2019 was set) that the appellant had indicated that a trial of the charges would take 1.5 days because of the material that he had downloaded from a computer that he wanted to put before the court. His Honour then said:[11]
I indicated to him at the commencement of the trial today that he would be unable to use any of that downloaded information unless he had ‑ was himself an expert or, alternatively, that he had an expert waiting to make sense out of all those things he downloaded.
Also, there was a successful application by the police that this matter not commence until 2.15 because of the availability of police witnesses. At that, the accused said that he couldn't wait till 2.15 and ‑ that he couldn't make it till 2.15 and I adjourned it until 2.15 to see what happened. I've now got a statutory declaration signed by the accused saying:
'I'm unable to attend the court due to my health conditions and further details can be discussed with my doctor.'
So he's telling me now he can't attend at 2.15 due to his health condition, but it doesn't say why. I'm not going to ring his doctor; I'm going to proceed. This has been going for far too long. We've only got his evidence to rely on for his inability to turn up at 2.15. It's not even 2.15 yet. It's only 11 o'clock. He's giving us an opinion evidence as to ‑ that he will be not fit at 2.15. He was perfectly fit at 10 o'clock. So, in those circumstances, I'm going to proceed ‑ section 55.
Just sending a stat dec saying, 'In my opinion, I'm no good for court,' won't do it. There's no doctor's report before me as to his illness. We've given him a lot of leverage in the past. We can't just keep putting it off. What he's essentially saying is that 'you've got to have the trial when I walk in the door and it has got to start the moment I walk in the door or else I'm never going to be fit enough to hear a trial, ever'. In those circumstances, I can't see any point in putting it off again. So section 55 will convict him.
I've got ‑ I'm just going to give him the same outcomes that he has got on previous occasions because that appears appropriate. So he is convicted. I don't accept his assertion that he's unfit. There's no medical certificate. The evidence that was before the court in January doesn't necessarily work today. So I've convicted him under section 55, and the penalties will be the same as he has received in the past, which is for speeding, 800, and costs of 169.10 back in those days.
Now, I'm going to have to put that all in a note in case he applies to set it aside again, which he probably will, and so it's clear to whoever it comes in front of as to why that happened. He got $800 for the failing to comply with the direction and $200 for failing to comply with the loading requirements, one set of costs at 169.10 as they were in those days and ‑ now, so the application ‑ I will write notes as to what I've just said.
[11] ts 21 October 2019, pages 4 ‑ 5.
The grounds of appeal
The notice of appeal and document titled 'Grounds of Appeal' filed by the appellant, on 18 November 2019, do not clearly articulate whether the appeal is against conviction and/or sentence, nor the grounds for the appeal.
However, as counsel for the respondent points out, the grounds sought to be articulated in the notice of appeal can be distilled as follows:
(a)the magistrate erred in law by proceeding to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the appellant was unable to be present due to his medical conditions or, alternatively, that the decision to proceed in those circumstances gave rise to a miscarriage of justice as the appellant was effectively denied the opportunity to take part in his trial (Ground 1);
(b)the magistrate erred in law in convicting the appellant under s 55 of the Criminal Procedure Act, as it was not open to the magistrate to proceed under s 55 in circumstances where the prosecutor did not read aloud the material facts of the charges to the court (Ground 2);
(c)the magistrate's decision to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the magistrate had previously demonstrated apparent bias against the appellant constituted an error of law by virtue of a denial of procedural fairness or, alternatively, gave rise to a miscarriage of justice (Ground 3);
(d)the magistrate erred in law in convicting the appellant under s 55 of the Criminal Procedure Act in circumstances where the prosecution had failed to comply with an order for disclosure or, alternatively, the decision to proceed in those circumstances gave rise to a miscarriage of justice (Ground 4); and
(e)the magistrate's decision to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the magistrate had failed to properly inform the appellant of the manner in which the prosecution would be conducted gave rise to a miscarriage of justice (Ground 5).
As counsel for the respondent also points out, the alleged error underpinning Ground 2 as giving rise to a conviction appeal may also give rise to a sentence appeal, on grounds that in the absence of the material facts being read to the court, a court is unable to impose a sentence commensurate with the seriousness of the offence as required by s 6(1) and s 6(2)(b) of the Sentencing Act 1995 (WA). As the respondent properly points out, the points raised in Ground 2 necessarily raises the issue whether any substantial miscarriage of justice arises in the sentences imposed by the magistrate by the failure of the prosecutor to read the material facts of the charges.
The application to adduce additional evidence in the appeal
Legal principles ‑ admission of additional evidence in an appeal
Pursuant to s 39 of the Criminal Appeals Act 2004 (WA), an appeal court must decide an appeal on the evidence and material that were before the lower court. However, pursuant to s 40(1)(e) of the Criminal Appeals Act, the court has a discretion to admit any other evidence.
The principles that apply to admission of evidence in an appeal that could have been available at the time of the trial at first instance (new evidence) and evidence that could not have been available at the time of trial (fresh evidence) is different.
In Yu v The State of Western Australia, the Court of Appeal described the difference between fresh evidence and new evidence, and set out the principles that apply to the admission of both:[12]
[12] Yu v The State of Western Australia [2019] WASCA 197 [104] ‑ [107]. (footnotes omitted)
The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial. For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available unless the new evidence establishes that the accused should not have been convicted.
Of course, the ultimate question always remains whether a miscarriage of justice has occurred. As Gibbs CJ observed in Gallagher v The Queen:
'However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.'
As the decision of the High Court in Gallagher illustrates, in assessing whether a miscarriage of justice arises from the absence of even fresh evidence at trial, this court has a responsibility to examine the probative value of the evidence, considered in light of the evidence led at trial. Gibbs CJ, Mason and Deane JJ all referred with approval to the following passage of Rich and Dixon JJ in Craig v The King:
'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.'
In ARK v The State of Western Australia, Buss P (Mazza JA agreeing) made the following observation in relation to this court's approach to and assessment of additional evidence admitted in an appeal:
'The appellate court must decide on the relevance of the additional evidence. It must decide on the credibility of oral evidence and on the authenticity of documentary evidence. In some situations, the appellate court must decide whether it believes the additional evidence. In other situations, the appellate court will merely decide whether the evidence is capable of belief, and is likely to be believed, by reasonable people. After deciding on the relevance and credibility or authenticity of the additional evidence, the appellate court will evaluate its cogency in the context of the evidence adduced at the trial. The evidence which forms part of the trial record must be taken by the appellate court in the sense in which, having regard to the verdict, the jury must have accepted it. (citations omitted)'
Should the application to adduce additional evidence be admitted in the appeal?
The appellant seeks to admit as evidence in the appeal a brief report from his medical practitioner, Dr Joseph Calabro, dated 22 October 2019, in which Dr Calabro states that the appellant suffers from the following conditions, noted under the heading 'Past History':
Atrial fibrillation
CCF
Hyperglycaemia
Hypertension
Abnormal hepatic function
Meningioma
Hypothyroidism, subclinical
2017Mitral regurgitation
07/2017AMI
In the report, Dr Calabro listed the appellant's medications and stated:
He informs me that he had to attend court on 21/10/19. He travelled by public transport which involved walking for about one kilometre. This exacerbated his congestive assessment of cardiac status failure and he was unable to wait for the 5 hours before his case was heard.
It is arguable that the medical report of Dr Calabro, at its highest, is fresh evidence, as it was created after the date of the magistrate's decision to convict the appellant in his absence.
Accordingly, the question to be determined in this appeal is whether a miscarriage of justice occurred because the medical report was not before the magistrate at the time of deciding whether to adjourn or to hear and determine the charges under s 55 of the Criminal Procedure Act.
The medical report does not provide any cogent evidence upon which the court could be satisfied that the appellant was unfit to wait at the court until 2.15 pm on 21 October 2019, and participate in his trial.
Dr Calabro merely reports an account by the appellant as to what the appellant said occurred on 21 October 2019, which account in this context is plainly hearsay. Most importantly, Dr Calabro does not provide an independent medical opinion to the effect that the appellant was unable to wait at court or that doing so would have jeopardised his health. Further, Dr Calabro does not outline how the appellant's medical conditions and medications listed in the medical report prevented the appellant attending court at 2.15 pm and participating in the trial on 21 October 2019.
For this reason, I am not satisfied that the medical report should be admitted as additional evidence in the appeal as the matters stated in the medical report, taken at their highest, do not provide any cogent or reliable evidence that the appellant was unable to attend the Midland Magistrates Court on 21 October 2019 and participate in the trial of the charges.
Ground 1, ground 2 and ground 5 ‑ s 55 of the Criminal Procedure Act and whether the sentence imposed is manifestly excessive
The appellant argues that his Honour had no power to enter convictions to the charges in his absence, pursuant to s 55 of the Criminal Procedure Act, because:
(a)in recalling the matter at about 11.00 am, and determining the charges in his (the appellant's) absence, his Honour failed to comply with s 75(4) of the Criminal Procedure Act, which requires the court to ensure that the parties are advised of the time and place to which the charge is adjourned; and
(b)in any event, the prosecutor did not state to the court the material facts of the charge.
Section 55 of the Criminal Procedure Act empowers a court of summary jurisdiction to convict a person of a simple offence in the absence of the accused, where the preconditions for the exercise of the power are met.
The preconditions are:
(a)on a court date for the charge the prosecutor appears but the accused does not (s 55(1));
(b)the accused has not pleaded guilty to the charge, whether orally or by written plea (s 55(1)); and
(c)the court is satisfied that the accused was served with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date (s 55(2)).
If the preconditions are met and s 55 of the Criminal Procedure Act is invoked, the court may either adjourn the charge or hear and determine the charge in the accused's absence.[13]
[13] Criminal Procedure Act (WA) s 55(2).
In respect of the first point raised by the appellant, s 75(2) and s 75(4) of the Criminal Procedure Act provides:
(2)A court has a general power to adjourn a charge at any time and may do so whether or not ‑
(a)the prosecutor or the accused is present; or
(b)the accused has pleaded to the charge; or
(c)any evidence has been given.
…
(4)If a court adjourns a charge ‑
(a)it must adjourn it either to a later time of the day on which the charge is adjourned (new time) or to a date set by the court (new court date);
(b)it must ensure the parties are advised of the time and place to which the charge is adjourned and for that purpose may make any order and may issue a summons, court hearing notice or approved notice, as the case requires;
(c)it may make any order and issue any document needed (including a document referred to in section 139 or 155) to ensure that any person, including the accused, whose presence will be needed, appears at the time and place to which the charge is adjourned.
It is established on the evidence before the court that the appellant had notice of the hearing of the charges on 21 October 2019. Although the appellant was not in court when his Honour adjourned the trial until 2.15 pm that afternoon, the appellant was informed of that fact when he arrived at court and appeared before his Honour shortly after 10.00 am.
In circumstances where the appellant unequivocally informed the magistrate that he would not wait at the court until 2.15 pm for the trial to proceed and then took steps to make a statutory declaration declaring that he was unable to attend the court due to his health conditions (and lodged that statutory declaration at the court registry), but did not remain inside the court when the matter was recalled by his Honour shortly after the appellant lodged the statutory declaration, I do not accept that his Honour erred in law in recalling the charges shortly after 11.00 am. Whilst the appellant remained outside the court until 11.30 am, he clearly did not intend to return to the court and left shortly thereafter to go home.
As the respondent points out, a magistrate's court has an implied power to regulate its own practice and procedure.[14]
[14] Sparks v Bellotti (1981) WAR 65.
In Grassby v The Queen, Dawson J considered the implied powers of a magistrate. Importantly, his Honour observed:[15]
[N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.
…
It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'.
[15] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 - 17.
Any court of limited jurisdiction has the jurisdiction, necessarily implied, to effectively carry out the powers granted to it.[16] In this context 'necessary' is a reference to a power to make orders reasonably required or which are legally ancillary.[17]
[16] Medical Board (SA) v N,JRP [2006] SASC 19; (2006) 93 SASR 546 [21] ‑ [23].
[17] Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [51].
In circumstances where the appellant had appeared before his Honour shortly after 10.00 am and appeared to his Honour to be well; on receipt of the statutory declaration, his Honour was entitled to recall the charges prior to the time to which he had adjourned the charges to as he was entitled to be satisfied that the appellant had no intention to appear that afternoon at 2.15 pm, so that notice of the recall time of 11.00 am was not required.
The Magistrates Court is an exceptionally busy court whose court officers are called upon daily to dispose of a high number of simple offences in their summary jurisdiction, in a manner that is expeditious. When an accused clearly states that they do not intend to appear at a hearing of charges that have been adjourned to a later time the same day, the magistrate must necessarily have power to recall the charges and dispose of the charges. In this particular case, the appellant had notice of the hearing that day, and had previously informed the court the hearing would not be short (last one and a half day) and who should know from past experience from his numerous appearances in respect of the charges prior to 21 October 2019 that it may be necessary to wait for the commencement of the trial on the day in which charges are listed for hearing. He also had knowledge that if he chose not to appear, at 2.15 pm that day, the court had power to hear and determine the charges in his absence.
If I am wrong, and the recalling of the matter at 11.00 am constituted an error of law in that s 75 was not complied with, I am not satisfied that the error gave rise to a substantial miscarriage of justice as the appellant had made his intention clear to the magistrate that he did not intend to remain at the court for the trial of the charges. I also accept that his Honour was entitled to find, in the absence of a cogent medical opinion, that the appellant was fit for trial.
As to the second point raised by the appellant, pursuant to s 55(4)(b) of the Criminal Procedure Act, if the court proceeds to hear and determine the charge in the accused's absence, the court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. Section 55(5)(a) and s 55(5)(c) provides that if a court convicts the accused under s 55(4), the prosecutor must state aloud to the court the material facts of the charge and the court must take as proved any facts so stated.
Pursuant to s 35(5) of the Criminal Procedure Act, as soon as practicable after a prosecution notice that contains one or more charges of a prescribed simple offence is served on an accused, the prosecutor must serve the accused with a written statement of the material facts of each such charge. Pursuant to s 55(5)(b) and s 129(4) of the Criminal Procedure Act, the material facts read to the court must be those in the written statement served upon the accused.
The effect of s 55(4)(b) is that the elements of the offence (the allegations in the prosecution notice) are taken to be proved. In Saad v Baron, Beech J observed:[18]
Rather than the prosecution being required to lead evidence to prove the offence beyond reasonable doubt, the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence.
[18] Saad v Baron [2012] WASC 507 [58].
Section 55(5)(a) and s 55(5)(c) do not require the material facts to be read prior to a conviction being entered. The opening words of s 55(5)(a) and s 55(5)(c) expressly provides that the subsection applies, if under s 55(4) 'the court convicts the accused', the material facts of the charge are to be stated aloud and in the absence of evidence to the contrary, the court must take as proved those facts so stated. This provision requires a prosecutor to state the material facts, as it is by regard to the material facts that the court must necessarily form a view of the seriousness of the offence so as to ensure that the sentence imposed is commensurate. This is required by s 6 of the Sentencing Act. The material facts are the facts the prosecution would, if put to proof, lead evidence of in a trial, to establish not only the elements of the offence, but also the facts upon which the court could determine the seriousness of the offence.
The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors, and any mitigating factors.[19]
[19] Sentencing Act 1995 (WA) s 6(1), s 6(2).
Consequently, as the respondent properly concedes, it is clear that the magistrate erred in law by proceeding to sentence the appellant without hearing the material facts, as in the absence of hearing those material facts, his Honour was not in a position to determine an appropriate penalty for each of the charges.
However, whilst a concession of error of this kind would ordinarily lead this court to uphold the sentence appeal and exercise the sentencing discretion afresh, I am satisfied that I should decline to do so as I am not satisfied that this error resulted in a substantial miscarriage of justice. This is because I am satisfied that if the material facts of the offence had been read to the court that the sentence imposed on the appellant for the charges would be commensurate with the seriousness of those material facts.
The material facts of the offences were stated to the court on the occasion of the appellant's first conviction for the charges on 21 December 2017.[20]
[20] ts 21 December 2017, pages 2 ‑ 3.
The material facts of the offences can be summarised as follows. On 23 September 2015 at 6.00 pm, the appellant's vehicle was observed to be travelling 91 km/h on Great Eastern Highway, South Guildford, in an area where the speed limit is 60 km/h. A police officer standing on the side of the road in view of the appellant made clear hand signals indicating to the appellant to pull into a car park on the left of the road. The appellant made eye contact with the police officer, then continued to drive along Great Eastern Highway. Police followed the appellant in a police vehicle. The appellant made several turns after turning off Great Eastern Highway before he had to stop because he had turned into a dead end road. Police examined the appellant's utility vehicle and 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, which the appellant had failed to place and correctly secure the load in the back of the utility.
When regard is had to the material facts, it cannot be said that the sentence imposed on each of the charges was not within the appropriate range of penalties that could or should be imposed at first instance.
This is because:
(a)in respect of charge MI 10777/2015 (exceeding the speed limit in a speed zone of 60 km/h by driving at a speed of 91 km/h), the magistrate did not have a discretion as to sentence. His Honour imposed the modified penalty payable on an infringement notice (being a modified penalty of six demerit points and a fine of 16 penalty units ($800));
(b)in respect of MI 10779/2015 (breach of a loading requirement that is a minor risk breach) the magistrate imposed the minimum fine of four penalty units ($200);[21]
(c)in respect of MI 10778/2015 (failed to comply with the direction given by a police officer to stop the vehicle) the magistrate imposed a fine that was 16% of the maximum penalty (being a maximum fine of 100 penalty units ($5,000).[22] When regard is had to the nature of the offence and the lack of mitigating factors, it cannot be said a fine of $800 for this offence was not within a discretionary range for offences of this kind. Although the appellant concedes there is nothing in the offending conduct which aggravated the offence, the relevant factors are:
(i)the material facts reveal that the appellant made several turns into different roads off Great Eastern Highway and only stopped his vehicle when he turned into a dead end street. In light of this material fact, it cannot be said that the offence was at the bottom end of the scale; and
(ii)there was nothing before the court that showed that the appellant was a person of prior good character. At the time of sentencing, the appellant had a history of traffic offences, which had become spent because of the passage of time,[23] including five convictions for speeding by more than 20 km/h but less than 30 km/h; three convictions for exceeding the speed limit by 15 to 29 km/h; two convictions for speeding by more than 10 km/h but less than 20 km/h; one conviction for exceeding the speed limit by not more than 9 km/h; one conviction for driving in excess of 0.05 g alcohol per 100 ml of blood; two convictions for failing to stop at a stop sign; one conviction for crossing continuous white lines in the approach to an intersection; one conviction for contravening a red traffic control signal; one conviction for crossing double white lines; and one conviction for failing to wear a seat belt.
[21] Road Traffic (Vehicles) Act 2012 (WA) s 31(3)(a). On the facts read to the court the breach must be assessed as a minor risk breach as defined in s 58 of the Road Traffic (Administration) Act 2008 (WA) as the material facts could not give rise to an opinion by the court that if the load was displaced or unsecured it would give rise to an appreciable risk of harm to public safety, the environment, road structure or public amenity to constitute a substantial risk breach as defined in s 59 of the Road Traffic (Administration) Act.
[22] Road Traffic (Administration) Act 2008 (WA) s 44(a).
[23] The prior convictions were for traffic offences committed between 1978 and 1999.
As the respondent points out, while the appellant's record of traffic offences does not aggravate the offences the subject of the charges, they militate against the possibility that the magistrate should have imposed a lesser sentence on the basis of prior good character.
For these reasons, I am satisfied that leave to appeal on each of Grounds 1 and 5 should be refused and that leave to appeal on Ground 2 should be allowed. Although leave to appeal on Ground 2 should be allowed, I have formed the view that no substantial miscarriage of justice arises on this ground.
Ground 3 - did the magistrate demonstrate bias?
The test to establish bias is well-established. The Court of Appeal recently summarised the principles in Y v X:[24]
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.
[24] Y v X [2020] WASCA 104 [123]. (footnotes omitted)
The basis of the appellant's complaint of bias appears to be that the magistrate told the appellant that his documents would not be accepted into evidence at the trial of the charges, thereby demonstrating to the appellant that he would not be permitted to conduct an effective defence.
In the appellant's affidavit, he states that the evidence that he wished to adduce is that the speed measuring equipment used by the police was operated inappropriately according to the Australian Standards AS 2898. 2-2003.
At the hearing of the appeal, the appellant was asked to describe any other documents that he wished to tender at the hearing of his trial before the magistrate. In answer, without elaboration he stated that he wished to produce 'legislation'.[25]
[25] ts 18 September 2020, page 7.
It should be noted that on 21 October 2019, his Honour would have had before him the note recorded on the prosecution notice that when the October 2019 trial date was set on 27 February 2019, the appellant informed the court that the hearing would take 1.5 days because of his expertise on the issue of the speed camera and that the presiding magistrate on that occasion had queried whether the appellant intended to call an expert and the appellant had stated that he was the expert.
In Farkas v Thomason, I recently observed in a case involving a challenge to a speeding conviction and speed measuring equipment:[26]
Whilst a judicial decision-maker must conduct a trial in accordance with the rules of procedural fairness so that a person whose rights are affected is given a fair hearing, a fair hearing does not require a magistrate to allow an unrepresented litigant to conduct her or his case in any way whatsoever. A magistrate has a wide discretionary power to contain cross‑examination within proper limits and to disallow repetitious prolix or unnecessary questions.
[26] Farkas v Thomason [2020] WASC 67 [27]. (footnotes omitted)
It is well-established that a person can only give expert evidence if they are qualified to do so.
J D Heydon, in the 12th edition of Cross on Evidence, summarised the following conditions for admissibility of expert opinion evidence as follows. These are, first, it must be demonstrated that there is a field of specialised knowledge. Secondly, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert. Thirdly, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness' expert knowledge. Fourthly, the expert must identify the assumptions of primary facts on which the opinion is offered. Fifthly, the opinion is not admissible unless evidence has been, or will be, admitted, whether from an expert or from some other source, which is capable of supporting findings of primary fact (the basis rule). Sixthly, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it. Seventhly, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached.[27]
[27] Heydon JD, Cross on Evidence (12th ed, 2020) [29045]; applying Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [85].
Consequently, it cannot be found that his Honour either erred in law or that he displayed any apparent or actual bias in informing the appellant when he appeared before him shortly after 10.00 am that the downloaded material he (the appellant) wanted to adduce into evidence would be inadmissible without him or a witness being an expert.
As the respondent points out, the magistrate's summaries of his interaction with the appellant do not reveal that the magistrate had prejudged the case or might not bring an impartial mind to the matter. Rather, the magistrate was explaining to the appellant the rules regarding the admissibility of evidence.
For these reasons, ground 3 has no prospect of success and leave to appeal on this ground should be refused.
Ground 4 - is the decision to convict the appellant in his absence vitiated by any failure by the prosecution to disclose evidence
The appellant argues that the prosecution failed to disclose the manufacturer's operating manual for the TruSpeed speed measuring equipment.[28]
[28] On 27 February 2019, the appellant referred to a prior request for disclosure of the manual for the TruSpeed speed gun device: ts 27 February 2019, pages 67 ‑ 69.
A similar issue was recently raised in Ireland v Jackson before Hall J.[29] That matter concerned an appeal against a conviction for a speeding offence. It was argued that the manufacturer's manual or instructions for a PoliScan camera were not disclosed to the appellant by the prosecution and for this reason the trial was unfair. Justice Hall rejected the appellant's argument. His Honour found that s 60(5) and s 61(5) of the Criminal Procedure Act which provide for the making of disclosure orders in respect of simple offences, when read with the definition of, 'evidentiary material', in s 42 of the Criminal Procedure Act only required a manual to be disclosed if it was evidentiary material; that is, if it was a document that could have assisted the appellant's case. His Honour, however, found that in that matter an operating manual could not have assisted the appellant's defence:[30]
It is difficult to see how the manufacturer's manual could have assisted the appellant given that s 117 of the RTA Act provides that evidence of the speed at which a vehicle was moving as ascertained by the use of approved speed measuring equipment by an approved person is prima facie evidence of the speed. It was not necessary for the prosecution to prove that Mr Strang [the operator of the speed camera] had complied with the manufacturer's manual. In any event there was no reason to think that he had failed to do so. Furthermore, it has been held that failure to follow the manufacturer's instructions for a speed measuring device will not render the evidence of the speed measuring device inadmissible, nor will it be sufficient to rebut the prima facie evidence produced under s 117.
The appellant says that he could have been in a better position to displace the prima facie case if he had received disclosure of the manufacturer's instructions. This is based entirely on speculation that there may have been some material difference between what the manual said and what Mr Strang did. Further, this would only be relevant if the defence was that the speed measurement was incorrect. However, the appellant made no attempt to rebut the presumption as to his speed at trial. He did not give evidence that he was not speeding at the relevant time and place, nor did he adduce any other evidence to that effect.
There is another relevant factor. This was a case where the existence of the manual or instructions was known to the appellant prior to the trial. He also self‑evidently knew that it had not formed part of the materials disclosed. In these circumstances, if he believed that the manual was covered by the disclosure order and that it was required for the conduct of his defence, his remedy was to make an application under s 63 of the CP Act for an adjournment. He did not do so. Nor had he, as the magistrate pointed out, sought to obtain the manual by issuing a summons.
[29] Ireland v Jackson [2020] WASC 2.
[30] Ireland v Jackson [2020] WASC 2 [47] ‑ [49]. (footnotes omitted)
In this matter, there is nothing before the court to indicate that the TruSpeed manual would assist the appellant's case. Nor had the appellant issued a summons to the prosecution to produce a copy of the manual.
In any event, disclosure is not a precondition to conviction under s 55 of the Criminal Procedure Act.[31] When a magistrate exercises their discretion to hear and determine a charge in an accused's absence under s 55(2)(b), the accused is denied the opportunity to contest the prosecution evidence or make submissions on the evidence.[32] Consequently, even if it could be found that the prosecution did not comply with an obligation to disclose the TruSpeed manual (which I have not found to be the case), the magistrate did not err in law by proceeding to convict under s 55 Criminal Procedure Act, in the absence of the appellant as the preconditions for that course of action were satisfied.
[31] Fazio v St John-Ayre [2017] WASC 62 [147] (Fiannaca J).
[32] Saad v Baron [2012] WASC 507 [58] (Beech J); Fazio v St John-Ayre [2017] WASC 62 [147] (Fiannaca J).
For these reasons, Ground 4 of the appeal has no prospect of success and leave to appeal on this ground is refused.
Conclusion ‑ the orders that should be made to dispose of the appeal including orders as to costs
For the reasons that I have given:
(a)the application to admit further evidence in the appeal is refused;
(b)leave to appeal is allowed on ground 2 of the appeal;
(c)leave to appeal is refused on grounds 1, 3, 4 and 5; and
(d)the appeal is dismissed.
Costs should follow the event; that is, the appellant should be ordered to pay the respondent's costs. The respondent's counsel provided to the court a draft bill of costs for preparation of the appeal and attending the appeal, totalling $1,745. Having reviewed the bill which claims five hours work by a junior practitioner at a rate of $250 an hour and having considered the issues raised in the appeal, I am of the opinion that the amount claimed is not excessive. However, as the issue raised in Ground 2 establishes error in the magistrate's decision, I am of the opinion that the respondent's costs should be reduced by an amount of $500, to $1,245.
As the appellant has informed the court that he is in receipt of an aged pension, I will hear from him further as to whether he requires time to pay and whether an order should be made for the payment of costs in instalments.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith7 OCTOBER 2020
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