Fitas v O'Brien

[2017] WASCA 147

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FITAS -v- O'BRIEN [2017] WASCA 147

CORAM:   BUSS P

MAZZA JA
HALL J

HEARD:   19 JULY 2017

DELIVERED          :   9 AUGUST 2017

FILE NO/S:   CACR 198 of 2016

BETWEEN:   SACHA FITAS

Appellant

AND

ME'LIESSE O'BRIEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :LE MIERE J

File No  :SJA 1071 of 2015

Catchwords:

Criminal  law - Application for leave to appeal against decision of single judge of the Supreme Court - Where appellant convicted of driving while subject of licence suspension order - Power of Supreme Court to make costs order

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h)
Road Traffic Act 1974 (WA), s 49(3)(d)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)

Wilson v McDonald [2009] WASCA 39 (S)

1. JUDGMENT OF THE COURT: On 17 August 2015, the appellant was convicted in the Magistrates Court at Joondalup of an offence contrary to s 49(3)(d) of the Road Traffic Act 1974 (WA). The prosecution notice alleged that on 27 December 2014 at Marangaroo, the appellant:

   [D]rove a motor vehicle, namely a Toyota Corolla, registered number 8PX‑595 on a road, namely Beetson Crescent while not being a person authorised by pt IVA of the Road Traffic Act 1974 and whilst no longer authorised to drive having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under s 19 or 43 of the Fines, Penalties and Infringement Notices Enforcement Act 1994.

2. At trial, the appellant did not deny that he drove a motor vehicle on a road on the day in question.[1]  However, the appellant alleged that he was not the subject of a licence suspension order as alleged.  He claimed that the fine said to be the subject of the licence suspension order had been paid.  He said that the order had been made by bureaucratic error.  The learned magistrate found, in substance, there had been no bureaucratic error; and the appellant was subject to a licence suspension order as alleged by the respondent.  His Honour convicted him of the offence.  The appellant was fined $200 and costs totalling $150.80.[2] 

   [1] Trial ts 2, 11.

   [2] Trial ts 33.

3. Acting in person, the appellant appealed against his conviction to a single judge of the Supreme Court pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA). Section 9 of the Criminal Appeals Act provides that the leave of the court is required for each ground of appeal.  The Supreme 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.  Unless the Supreme Court gives leave to appeal on at least one ground of an appeal, the appeal is taken to have been dismissed.

4. The grounds of appeal before the single judge were obscure to say the least.  His Honour understood them to allege that:

   1.the learned magistrate showed actual bias against the appellant, or in the alternative, the manner in which he conducted the trial gave rise to a reasonable apprehension of bias;

   2.the learned magistrate erred in not finding that the appellant was not subject to a licence suspension order having paid the fine the subject of the order;

   3.the appellant was denied procedural fairness at the trial because he was not given an opportunity to answer a statement made by the magistrate during the police prosecutor's closing address to the effect that the appellant had 'so many' fines and he 'didn't keep on top of them';[3]

   4.alternatively, the appellant was authorised to drive because he held an international or a Canadian driver's licence at the relevant time.

   [3] Trial ts 29.

5. In ex tempore reasons given by Le Miere J on 31 March 2016, he concluded that there was no merit to any of the appellant's complaints.  He found that the grounds of appeal raised by the appellant had no reasonable prospect of success and refused leave to appeal on all grounds, with the result that the appeal was dismissed.  In essence, Le Miere J found that:

   1.Although the learned magistrate had made substantial interventions in the trial, those interventions were appropriate having regard to the fact that the appellant was a litigant in person and that the interventions were for the purpose of 'exposing the appellant's defence'.[4]  His Honour was satisfied that there was nothing in the way the learned magistrate conducted the trial that demonstrated actual bias or reasonable apprehension of bias.[5]

   2.There was ample evidence that the appellant had not paid the fine the subject of the licence suspension order and that he had been lawfully disqualified from holding or obtaining a driver's licence on 27 December 2014.

   3.The appellant was not denied procedural fairness as he alleged.  The appellant was given an opportunity to answer the statement made by the magistrate but declined to make any submissions.[6]

   4.There was no evidence before the magistrate or before his Honour that the appellant held a Canadian or an international driver's licence at the relevant time.  In any event, his Honour held that the existence of either licence would not have authorised the appellant to drive whilst he was disqualified from holding a driver's licence as the result of a licence suspension order.[7] 

   [4] Appeal ts 12.

   [5] Appeal ts 13.

   [6] See trial ts 30; appeal ts 13.

   [7] Appeal ts 14.

6. Upon his Honour making the orders refusing leave to appeal and dismissing the appeal, counsel for the respondent sought an order for the costs of the appeal.  The appellant opposed the making of the costs order on the basis that he was a pensioner.  Le Miere J ordered the appellant to pay the respondent's costs of the proceedings before him fixed in the sum of $2,198.00.[8] 

   [8] Appeal ts 15.

7. The appellant now appeals to this court against Le Miere J's decision to dismiss his appeal against conviction. He does so pursuant to pt 2 div 3 of the Criminal Appeals Act and, in particular, s 16(2) of that Act.

8. The appellant is once again acting in person.  The appeal notice and the appellant's case are in unconventional terms and the grounds of appeal are difficult to discern.  In his oral submissions, the appellant said that he did not take issue with the correctness of the learned magistrate's decision.[9]  With respect to Le Miere J's decision, he alleged that the 'main issue' was that his Honour had proceeded to determine the appeal as if it was a civil, rather than a criminal, case.  The basis for this contention appears to be that his Honour made an order for costs against him.   Although the appellant did not appeal against the costs order made by Le Miere J, it was clear from his oral submissions that he now challenges the making of the order on the basis that he is a pensioner and is impecunious.

   [9] Appeal ts 22.

9. None of the appellant's complaints are reasonably arguable.  Leave to appeal must be refused and the appeal dismissed.  Our reasons for these conclusions are as follows.

10. The proceedings before the Magistrates Court were criminal in nature. As we have said, the appellant was charged with an offence against s 49(3)(d) of the Road Traffic Act. This is a 'simple offence' as defined in s 3 of the Criminal Procedure Act 2004 (WA). Pursuant to s 9 and s 11(2) of the Magistrates Court Act 2004 (WA), a simple offence must be tried by that court as part of its criminal jurisdiction. The proceedings are brought by a police officer and the offence carries a criminal sanction upon conviction. The procedures to be followed by a court of summary jurisdiction in the trial of a simple offence are set out in s 65 of the Criminal Procedure Act and, with necessary modifications, follow that of a criminal trial in a superior court. 

11. The proceedings before Le Miere J were also criminal in nature. Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by the decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. The term 'decision' in s 7(1) is defined in s 6. The term as defined in that section includes 'a decision to convict an accused of a charge, whether after a plea of guilty or after a trial'.

12. It appears that the appellant is under the misapprehension that the proceedings before Le Miere J were civil proceedings by reason of the costs order that was made against him. The power of the Supreme Court to make an order for costs in a single judge appeal is set out in s 14(1)(h) of the Criminal Appeals Act which states:

    In deciding an appeal, the Supreme Court may do one or more of the following:

    …

    (h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.

13. Insofar as the appellant challenges the particular costs order made by Le Miere J, that challenge is futile.  Le Miere J did not err in the exercise of his discretion by making the costs order against the appellant. 

14. Section 14(1)(h) of the Criminal Appeals Act (and similar powers given to the Court of Appeal pursuant to s 19(2)(b)) should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Outside the matters covered in s 20 of that Act (which are irrelevant to this appeal) the costs provisions in the Criminal Appeals Act should be construed as conferring a general and unconstrained discretion with respect to costs to be exercised with reference to all relevant circumstances including any relevant aspect of the public interest.[10] 

    [10] The House of Relocators Pty Ltd  v Ginbey [2014] WASCA 94 (S) [10] and Wilson v McDonald [2009] WASCA 39 (S) [10].

15. None of the appellant's proposed grounds of appeal before Le Miere J was successful.  Indeed, leave to appeal was refused in relation to all grounds.  The grounds raised no aspect of public interest.  Assuming hardship to be a relevant factor, there was no evidence before Le Miere J or before this court to demonstrate the hardship the appellant now asserts.  The quantum of the costs awarded is plainly reasonable.

16. It appears that the appellant is distressed at the prospect of having to pay the costs awarded to the respondent in the court below.  It remains open to the appellant, if he is unable to pay the sum, to attempt to enter into negotiations with the respondent as to its payment.  Whether some accommodation can be agreed is a matter for the parties and not for this court to determine.

17. Finally, we note for completeness that Le Miere J's decision to dismiss the appellant's appeal was correct for the reasons his Honour gave.  Le Miere J did not make any material error of fact or law.  His Honour conducted the appeal hearing with fairness to both parties.

Postscript

1. During the afternoon of 8 August 2017, after the appellant was notified that we would deliver judgment on his application for leave to appeal on 9 August 2017, the appellant delivered to the Court of Appeal office an undated memorandum addressed to Justice Mazza and a copy of a medical certificate dated 24 July 2017 apparently signed by Dr Aminder Singh.  The appellant has not applied for leave to rely on the memorandum or the certificate.  The contents of the documents have not been verified by affidavit.  Nevertheless, we have read and considered the documents.  Nothing in them materially advances the appellant's case.  We remain satisfied that the appropriate orders are to refuse leave to appeal and to dismiss the appeal.