Fitas v Hobson
[2011] WASC 257
•16 AUGUST 2011
FITAS -v- HOBSON [2011] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 257 | |
| Case No: | SJA:1018/2011 | 16 AUGUST 2011 | |
| Coram: | McKECHNIE J | 16/08/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SACHA FITAS KIRK THOMAS HOBSON |
Catchwords: | Road traffic Speeding No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
KIRK THOMAS HOBSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M WHEELER
File No : PE 26245 of 2010
Catchwords:
Road traffic - Speeding - No new principles
Legislation:
Nil
(Page 2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms K J Dodd
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: In the early evening of 21 August 2009, Mr Fitas was driving down Homer Street, Dianella, when he was pulled over by police officers who were conducting laser speed checks. They alleged that he had been travelling 60 km per hour in a 50 km per hour zone.
2 Mr Fitas pleaded not guilty, and so it was that in late January this year he came for trial in the Perth Magistrates Court. Two police officers gave evidence. Mr Fitas wanted to tender some letters. The magistrate explained to him that he may want to produce the letters if he chose to give evidence but letters are not read in court as part of the evidence. This advice by the magistrate was correct.
3 At the conclusion of the prosecution case, the magistrate very carefully explained to Mr Fitas his rights and his choice as to giving evidence. Mr Fitas decided to give no evidence.
4 Although he made reference to some expert opinions in the course of cross-examination of the police officers, Mr Fitas did not call any evidence. Consequently, the evidence of the police officers was uncontradicted. At the conclusion of Mr Fitas' final address and submissions, the magistrate said to him:
I will go and consider your argument concerning the National Measurement Act and I will give my decision at a quarter to three.
5 Suiting the action to the word, the magistrate returned and delivered his reasons, finding the charge proved. He fined Mr Fitas for speeding and said:
Mr Fitas, you have the right to appeal this decision. If you do, can I suggest you don't represent yourself?
6 This was sound advice, but Mr Fitas did not take it. The grounds of appeal which are advanced for leave in this court are:
1. This appeal should not have happened if only Magistrate Wheeler didn't ignored the three letters and the affidavit enclosed in my file even when reminded.
7 As to that, the magistrate's ruling about the letters was correct. In any event, I have read them. They would not have been admissible. They would have been inadmissible at trial as irrelevant. Ground 2:
The Magistrate left the court a couple of times for his final conclusion to rely on 'prima facie' evidence and I was not afforded an opportunity to counter it.
(Page 4)
8 As to that ground, Mr Fitas was afforded every opportunity to advance his case in his submissions to the magistrate. The magistrate adjourned privately to consider his decision. This is a very commonplace action of judicial officers to reflect upon what has been said in court and to reach their decision. This is not a proper ground of appeal.
9 Ground 3:
I also raised the fact that this so-called 'law' that I was charged under has not been lawfully enacted in the Queen's name. The Magistrate relied on facts that weren't in evidence. Moreover, the Court was not a Court of competent jurisdiction and thus, I was forced to accept his jurisdiction against my will.
10 As to that, the Magistrates Court is a court of competent jurisdiction established by the Magistrates Courts Act 2004 (WA), a law of the Parliament of Western Australia, so is the Road Traffic Act 1974 (WA) and the Road Traffic Code 2000 (WA) which derive from it.
11 This court and the Court of Appeal have said on many occasions that arguments respecting the change of name in this State from the Crown and the Queen to the State have no Constitutional significance and do not invalidate any court or judicial proceeding.
12 As to ground 4, the ground reads:
In Addendum, the Magistrate ignored expert testimony simply because certain witnesses weren't there. These are not sufficient grounds to ignore the evidence from them and I cannot afford to pay for them as a witness and 'impecuniosity' is not a bar to the Court.
13 There was no expert evidence because the appellant did not call any evidence. The magistrate was entitled to rely, as he did, on s 98A of the Road Traffic Act which makes certain evidence prima facie evidence of its contents. What the magistrate said in relation to the evidence is this:
So, prima facie, that's the evidence of the officer, and therefore the evidence he gave of the speed suggested that - his credibility was in issue to the extent - as was Bushby; she was accused of lying, but there was no evidence to the contrary. The accused didn't give any evidence to the contrary of any of that evidence. As I already pointed out to him, having not heard any evidence to the contrary, I have no basis for doubting the evidence of either officer, and I don't do so. There is no doubt, thrown on their credibility by cross examination such as it was, on the subject.
(Page 5)
14 He then went on to refer to the vehicle and said:
I have no doubt at all that both implements were trained on the correct vehicle, so we will proceed on the basis of Hobson's evidence, his prima facie evidence that it was doing 68.
15 The appellant is in person and due regard should be taken of that fact, and it appears to me from reading the transcript that the magistrate had regard to that fact and gave the appellant considerable latitude to advance the submissions he wished to advance.
16 However, being a litigant in person is a misfortune, not a privilege. The magistrate could not and did not alter the rules of evidence to take into account evidence which was not properly put before him. He gave the appellant the opportunity to give evidence, which the appellant declined. That was the appellant's absolute right. However, it did mean in this case that there was no evidence to the contrary of the prima facie case that had been established.
17 Mr Fitas points out that he did not know at the time the meaning of the words 'prima facie' and that he was impecunious and could not afford to call the witnesses. I have no doubt that each of those statements is true. They do not, however, affect the question whether there are arguable grounds of appeal. There are not, and leave to appeal must be refused.
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