Fitas v Mastrangelo
[2015] WASC 285
•24 JULY 2015
FITAS -v- MASTRANGELO [2015] WASC 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 285 | |
| Case No: | SJA:1099/2014 | 24 JULY 2015 | |
| Coram: | PRITCHARD J | 24/07/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal is refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SACHA FITAS JUSTIN BRADLEY MASTRANGELO |
Catchwords: | Criminal law and procedure Appeal against conviction Leave to appeal Whether Magistrate erred in fact Whether Magistrate erred in law Whether reasonable prospect of success Leave to appeal refused Appeal dismissed |
Legislation: | Road Traffic Code 2000 (WA) Criminal Appeals Act 2004 (WA) |
Case References: | Butera v Director of Public Prosecutions (DPP) (Vic) [1987] HCA 58; (1987) 164 CLR 180 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498 Samuels v The State of Western Australia [2006] WASCA 222 Sekyere-Boakye v Whitney [2013] WASC 147 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JUSTIN BRADLEY MASTRANGELO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E LANGDON
File No : FR 6305 of 2013
Catchwords:
Criminal law and procedure - Appeal against conviction - Leave to appeal - Whether Magistrate erred in fact - Whether Magistrate erred in law - Whether reasonable prospect of success - Leave to appeal refused - Appeal dismissed
Legislation:
Road Traffic Code 2000 (WA)
Criminal Appeals Act 2004 (WA)
Result:
Leave to appeal is refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Butera v Director of Public Prosecutions (DPP) (Vic) [1987] HCA 58; (1987) 164 CLR 180
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Samuels v The State of Western Australia [2006] WASCA 222
Sekyere-Boakye v Whitney [2013] WASC 147
- PRITCHARD J:
(This judgment was delivered extemporaneously on 24 July 2015 and has been edited from the transcript.)
1 On 26 November 2014 Mr Fitas was convicted in the Magistrates Court at Fremantle of an offence contrary to reg 11(3) of the Road Traffic Code 2000 (WA). As described in the prosecution notice, the charge was that Mr Fitas drove a vehicle on a road, namely Canning Highway, within a speed zone where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 60 km per hour. He drove the vehicle at a speed in excess of that shown on the restricted sign, namely 71 km per hour. Following a trial, Mr Fitas was convicted of this offence and fined $150, and ordered to pay costs of $129.35.
2 Mr Fitas now seeks to appeal his conviction. To do so, he requires leave to appeal.1 The present hearing was concerned solely with the question whether leave to appeal should be granted in respect of Mr Fitas' grounds of appeal.
3 The solicitors for the respondent advised that the respondent would not be filing submissions and did not wish to be heard in relation to the application for leave to appeal, and were excused from attendance at today's hearing.
4 For the reasons which follow, leave to appeal in respect of each of Mr Fitas' grounds of appeal should be refused.
1. The evidence at trial
5 At the trial, the prosecution led evidence from the operator of a Multanova device, which was being operated on 31 May 2013 at 7.16 pm on Canning Highway near Palin Street in Palmyra. Mr Fitas was the registered owner of the vehicle which is referred to in the prosecution notice.
6 The operator of the Multanova device gave evidence that he was an authorised operator of the Multanova device, that the device was a kind of speed measuring equipment approved by the Minister under s 98(A)(2) of the Road Traffic Act 1974 (WA) and published in the Government Gazette. His evidence was that the speed limit in the area was 60 km per hour and that he had checked the signage before and after the location where the Multanova device was situated to confirm the signage. His evidence established that the machine photographed Mr Fitas' car on the night of the offence and measured its speed. He testified as to the process of setting up the equipment, how the machine operated, and the testing of the equipment before and after to ascertain that it was operating correctly. He gave evidence as to the measurement of speed given by the machine in respect of Mr Fitas' car which was, in fact, 72 km per hour.
7 The prosecution also called evidence from a senior constable, then stationed in the Infringement Management and Operation section in Perth. He testified as to the process of getting the data from speed camera operators and issuing an infringement to Mr Fitas. He also testified that he received the infringement form back from Mr Fitas, which was apparently signed by him, electing to go to Court and declaring that he was the driver.2
8 The police officer also tendered an enlarged version of a photo taken by the Multanova machine which he produced to the Court. That photo appeared to show one person in the car, and the witness noted that it showed one person who appeared to have grey hair with a bald patch. The police officer also gave evidence that Mr Fitas later attended at the Infringement Management Unit and spoke to him and told him that he was not, in fact, the driver of the car at the time, but that 'a lady friend who has now returned to England' was driving the car.3
9 I should also note that the operator of the Multanova device gave evidence that he did not see the face of the driver of the car (as he was watching the vehicle drive away from the machine) but that he could see that there was a driver in the vehicle who had grey hair with a slight patch of black in the centre at the back.4
10 Mr Fitas also gave evidence at the trial. His evidence was that at the time of the offence the car was being driven by a friend of his called Frances, and that Mr Fitas was lying down in the back seat of the car because he had sprained his ankle and was not able to drive the car at the time. (Mr Fitas' evidence was that he had been driven to Fremantle to see an art exhibition on the day in question, but that he had sprained his ankle in Fremantle, and what he had done was to rest the ankle, and that was why he was lying on the rear seat of the car on the return trip home.)
11 Mr Fitas' evidence included the following details about the driver.5 He was asked who she was, and he said:
She's an old friend of mine. She doesn't live here. She lives in Canada. Well, she lived in England. She lived in Canada. She went back to England. Back and forth.
12 He was asked what her name was. He said:
Frances. I can't remember the last name. Can't remember. She told me that twice already, but that goes back to the 90s, I mean, a long, long - several years ago.
13 Mr Fitas said he was not sure of her surname. He could not recall it. Mr Fitas was asked how long she had been staying in Perth and he replied 'about three, four, five weeks' around April or May of 2013, or possibly June of 2013. Mr Fitas was asked to describe the woman and he said, 'it's hard. She's tall. I don't - I'm confused and I don't know.' Then he said, 'I'm not sure - it's going back a long time ago. I mean, my memory is fading away.' He was asked for how long he had known the woman and he said, 'several years ago.' Later in his evidence he said that the woman had 'grey hair, salt and pepper hair', and brown eyes and that she was tall and slim.
14 Mr Fitas was asked whether he had any evidence in relation to the person called Frances, and he indicated that he had some photos. He had not brought the photos with him.
15 Mr Fitas later requested an adjournment of a 'few days - four or five days' in order to bring the photos in to Court. At that point, the learned Magistrate told Mr Fitas that, 'that's not going to assist me at all, showing me a photo of the lady. I can tell you it's not.'6 Mr Fitas' application for an adjournment was refused by the Magistrate on the basis that he had had well over a year to prepare for the trial.
16 Finally, Mr Fitas gave evidence about the infringement form. He indicated that he had completed the form and signed the bottom of the form, which indicated that he was the driver at the time of the offence. His evidence was that he had done so on a day when he had been advised of the death of his mother and that he was under stress at the time.
17 In short, the only matter that was really in dispute at the trial was the identity of the driver of the car. The prosecution alleged that it was Mr Fitas as he was the registered owner of the car, had indicated on the infringement form that he was the driver of the car at the time, and that the photograph of the car, which was in evidence, indicated that only one person was in the car at the time. Mr Fitas' evidence was that he was not the driver at the time and that the woman, Frances, was the driver.
2. The learned Magistrate's decision
18 The Magistrate accepted that, pursuant to s 98(A) of the Road Traffic Act, the evidence of the Multanova operator established a prima face case that Mr Fitas' car was travelling at 71 km per hour as alleged in the prosecution notice. She noted that it was not disputed that the offence occurred within a 60 km per hour zone and that the car was owned by Mr Fitas at the time. She accepted the evidence of the operator of the Multanova device. She also noted the police officer's evidence as to the infringement notice and information completed by Mr Fitas on the bottom of that notice, and relied upon the photograph which showed only one person in the car at the time of the offence who appeared to have grey hair and a balding hairline.
19 The learned Magistrate then turned to the evidence of Mr Fitas. The Magistrate rejected his evidence as being unreliable and said:7
His story to the court today appears to me to be far-fetched and fanciful. It is particularly unreliable evidence in light of the signed election that he lodged with the infringement management unit last year, admitting that he was the driver. I found his evidence unreliable in light of the fact that he was unable today to give a clear detail as to the identity of the lady driver, apart from the name Frances, albeit that Mr Fitas says that this person is a long-time friend of his.
Mr Fitas today says that he had sprained an ankle after driving to Fremantle on the date of the alleged offence, and consequently the lady driver, Frances, drove his vehicle to Fremantle back to his home, and it would have been at that relevant time that the PoliScan camera captured his vehicle travelling at the speed alleged. Mr Fitas told the court that he did not know that he would be required to bring a photo of the lady driver, Frances, to court today but on my assessment of the evidence, it would have been given little weight because without Frances being present in court she would not be able to be cross-examined by the prosecutor as to the allegation by the accused that she was the driver.
So I do reject Mr Fitas' evidence today.
20 The learned Magistrate concluded that there was overwhelming evidence that Mr Fitas was, in fact, the driver of the vehicle at the relevant time, that it was speeding at above the speed limit and she therefore found him guilty of the offence.
3. The grounds of appeal
21 The notice of appeal lodged by Mr Fitas dated 24 December 2014 indicated that the ground of appeal was that Mr Fitas was not the driver and thought he had been 'treated unfairly'. In the course of the hearing today, I gave Mr Fitas leave to amend that ground of appeal so as to make clear what were the precise nature of the alleged errors made by the Magistrate. The amended grounds of appeal now read:
(1) The learned Magistrate erred in fact in finding that the applicant was the driver of the vehicle at the time of the offence;
(2) The learned Magistrate erred in law in refusing the applicant an adjournment; and
(3) The learned Magistrate erred in law in refusing to admit into evidence an extract from the applicant's diary.
4. Leave to appeal
22 I will turn briefly to mention the principles in respect of leave to appeal.
23 Mr Fitas' application for leave to appeal is made in accordance with s 9 of the Criminal Appeals Act 2004 (WA), which requires that the leave of the Court is required for each ground of an appeal in an appeal under div 2 of pt 2 of that Act. The Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.8
24 The Court of Appeal in Samuels v The State of Western Australia9 has observed that the requirement for a reasonable prospect of success amounts to a requirement that each ground of appeal should have a rational and logical prospect of succeeding.
25 If leave to appeal is refused, the appeal is taken to have been dismissed.10
26 I now turn to explain why I have formed the view that leave to appeal should be refused in respect of each ground of appeal.
Ground 1 of the grounds of appeal
27 Ground 1 alleges an error of fact by the learned Magistrate in finding that Mr Fitas was the driver of the vehicle at the time of the offence. As I have already noted, the learned Magistrate concluded that Mr Fitas' evidence was unreliable. She did that having regard to the totality of the evidence that she had before her and particularly to the evidence in the infringement notice that had been signed by Mr Fitas, and the evidence Mr Fitas gave about the driver of the vehicle, Frances, about whom he was unable to give very many details.
28 While primary judges and magistrates do have the advantage of seeing witnesses in person, a finding as to the credibility of a witness made by a trier of fact does not relieve an appellate court of its appellate role. In Fox v Percy,11 Gleeson CJ and Gummow and Kirby JJ in a joint judgment observed that:
[T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.
29 Their Honours then said:12
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.
30 As I have already observed, the learned Magistrate's conclusion that Mr Fitas' evidence was unreliable was not based on his demeanour but was based on two considerations. The first was the fact that he had initially admitted to being the driver of the vehicle when he completed and returned the infringement notice. The second was that he was unable to give details as to the identity of the lady driver, Frances, despite the fact that Mr Fitas has claimed that that person was a long-time friend of his. The learned Magistrate clearly formed the view that it was not credible that a person who was a long-time friend of Mr Fitas should not be able to be recalled even to the extent of recalling her surname. For that reason, she found his story was far-fetched and fanciful.
31 I observe as well that the finding made by the learned Magistrate was made in circumstances where Mr Fitas had not called Frances to give evidence, nor had he called any person who might have been able to corroborate Frances' existence or presence in the car at the time of the offence.
32 In my view, there is nothing whatsoever to suggest that the finding made by the learned Magistrate that Mr Fitas was the driver of the car was tainted by any error. Ground 1 of the grounds of appeal has no reasonable prospect of success and leave to appeal should be refused.
Ground 2 of the grounds of appeal
33 Ground 2 of the grounds of appeal alleges the learned Magistrate erred in law in refusing the applicant an adjournment.
34 As I have said already, the adjournment was requested so that Mr Fitas could have the opportunity to bring into Court a photograph of Frances which showed her appearance. I have noted, the learned Magistrate refused the adjournment on the basis that a photo of the woman would not assist her in relation to the evidence, and on the basis that Mr Fitas had had well over a year to prepare for the trial.
35 Mr Fitas has confirmed today that the trial was adjourned on a number of occasions and that there was a very lengthy period of time between the prosecution notice being issued and the matter actually coming to a trial. In her reasons for decision, the learned Magistrate also referred to this issue and again observed that, without Frances having been present in Court to be cross-examined, a photo said to have been of that woman would have been given little weight in evidence.
36 The principles in relation to an appeal against the exercise of discretion by a magistrate or trial judge to refuse an adjournment were referred to by Hall J in Sekyere-Boakye v Whitney.13 His Honour noted:
The decision to grant or refuse an adjournment is a discretionary one. The correctness of such a decision can only be challenged on the usual grounds for interfering with a discretionary decision: Lewis v Western Australia (No 2) [2008] WASCA 155; (2008) 37 WAR 483 [40].
The principles applicable to an appeal on the ground of refusal of an adjournment were set out by Hasluck J in Pallett v Paul [2007] WASC 290 [52] - [55]. See also Lyster v Kemp [2010] WASC 47; Saad v Barron [2012] WASC 507 and Lasscock v Seidner [2013] WASC 94. Those principles can be summarised as follows:
(a) Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless, in turn, this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted: Bennett v Councillor [2001] WASCA 342 [22].
(b) It is fundamental to the administration of justice that accused persons are given the full opportunity to present their defence. An adjournment should be granted if it is necessary to enable the accused person to properly present that defence: Leary v R [1975] WAR 133 at 138.
(c) It is proper to reject an application for an adjournment to allow a defence witness to be brought from elsewhere if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused: R v McGill [1967] VR 683; R v Jones [1971] VR 72.
(d) Adjournments are not available for the asking. In criminal proceedings it is necessary to take into account interests other than those of the accused. These include the interests of the community in the prompt disposal of charges. It undermines the orderly disposal of the work of the courts when criminal trials are adjourned unnecessarily: Greer (1992) 62 A Crim R 442 at 448.
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: Minister for Immigration and Multi-Cultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 497 [40] and Touma v Saparas [2000] NSWCA 11 [27]. See also Manonai v Burns [2011] WASCA 165 [76].
37 Applying the principles that his Honour refers to, there is no reasonable prospect of success, in my view, on a ground of appeal that the learned Magistrate erred in the exercise of her discretion to refuse the adjournment in this case. A photograph of a woman with grey hair would have been of little assistance in corroborating Mr Fitas' case without evidence from that person confirming that she was the driver of the vehicle, or evidence of her existence or her involvement. It was proper to refuse the application for an adjournment for that reason. In addition, the refusal of the adjournment did not constitute a denial of procedural fairness in circumstances where Mr Fitas had had months to prepare his defence.
38 Ground 2 of the grounds of appeal has no reasonable prospect of success and leave to appeal should be refused.
Ground 3 of the grounds of appeal
39 Ground 3 of the grounds of appeal alleges that the learned Magistrate erred in law in refusing to admit into evidence an extract from Mr Fitas' diary. Mr Fitas provided me with a copy of the diary extract. As I have noted, in the course of his evidence, Mr Fitas gave evidence that he had had a sprained ankle and that was why he was not driving the car at the time and that he was laying on the rear seat of the car, resting his ankle. Mr Fitas told the learned Magistrate that he had some notes about the matter and it appeared from his evidence that he had an extract from his diary in which he had written notes, he said, on the same night as the offence in question.
40 Mr Fitas has provided the Court with a copy of those notes. They contain, relevantly, one line which bears two words in french which Mr Fitas says translate to mean 'sprained ankle' and another note that says 'day one'. The learned Magistrate refused to admit that extract of his diary into evidence as she concluded that 'as a non-French speaking person and there being no translator in Court', the document was not admissible.14 She also observed that the evidence Mr Fitas had given in Court was the best evidence and, for that reason, the document was not admitted into evidence.
41 In my view, there are no reasonable prospects of success in respect of this ground of appeal for two reasons. First, the contents of a written document or oral statement in a foreign language are inadmissible without a translation into English, which must itself be given as evidence sworn by a translator.15
42 Furthermore, it is well established that a court should act upon the best evidence, that is, the most current admissible evidence available of a fact.16 The best evidence of Mr Fitas' sprained ankle had been given by Mr Fitas in his oral evidence before the Court. It was clearly appreciated by the learned Magistrate that that was his evidence. Her Honour referred to the issue in her reasons for decision where she noted that his evidence was that he had had a sprained ankle.
43 In my view, ground 3 of the grounds of appeal has no reasonable prospects of success and leave to appeal should be refused.
Conclusion
44 The fact that there is no reasonable prospect of success on any of the grounds of appeal means that I refuse leave to appeal in respect of each of those grounds of appeal, with the result that the appeal will be dismissed.
1 See Criminal Appeals Act 2004 (WA) s 9(1).
2 ts 8.
3 ts 9.
4 ts 7.
5 ts 16 - 17, 21.
6 ts 21.
7 ts 26.
8 See Criminal Appeals Act 2004 (WA) s 9(2).
9Samuels v The State of Western Australia [2006] WASCA 222.
10 See Criminal Appeals Act 2004 (WA) s 9(3).
11Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 [28] - [29].
12Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 [30].
13Sekyere-Boakye v Whitney [2013] WASC 147 [17] - [19].
14 ts 14.
15 See Butera v Director of Public Prosecutions (DPP) (Vic) [1987] HCA 58; (1987) 164 CLR 180, 188 - 189.
16 See Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498, 4 (Gummow, Callinan & Crennan JJ).
0
16
2