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)

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitas v O'Brien

Details

AGLC: Fitas v O'Brien [2017] WASCA 147
Case: [2017] WASCA 147
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

In Fitas v O'Brien, the appellant, Fitas, appealed against his conviction by a single judge of the Supreme Court, who dismissed his appeal and refused leave to appeal. The appellant was convicted of driving a vehicle while subject to a licence suspension order, contrary to section 49(3)(d) of the Road Traffic Act 1974 (WA). The appellant alleged that he was not the subject of a licence suspension order as he had paid the fine in question and that the order was made by bureaucratic error. The magistrate found that there had been no bureaucratic error, and the appellant was subject to a licence suspension order. The single judge of the Supreme Court found that the appellant's grounds of appeal had no reasonable prospect of success and dismissed the appeal.

The legal issues before the court were whether the magistrate showed actual bias or a reasonable apprehension of bias, whether the magistrate erred in finding that the appellant was subject to a licence suspension order, whether the appellant was denied procedural fairness, and whether the appellant was authorised to drive because he held an international or Canadian driver's licence at the relevant time. The court found that the magistrate's interventions in the trial were appropriate, and there was ample evidence that the appellant had not paid the fine in question. The court also found that the appellant was not denied procedural fairness and that there was no evidence that the appellant held a Canadian or international driver's licence at the relevant time.

The court's reasoning was that the magistrate's interventions were appropriate as the appellant was a litigant in person, and the interventions were for the purpose of exposing the appellant's defence. The court found that there was nothing in the way the magistrate conducted the trial that demonstrated actual bias or a reasonable apprehension of bias. The court also found that there was ample evidence that the appellant had not paid the fine in question and that he had been lawfully disqualified from holding or obtaining a driver's licence on 27 December 2014. The court found that the appellant was not denied procedural fairness as he was given an opportunity to answer the statement made by the magistrate but declined to make any submissions. The court also found that there was no evidence before the magistrate or before the Supreme Court that the appellant held a Canadian or an international driver's licence at the relevant time. In any event, the court held that the existence of either licence would not have authorised the appellant to drive while he was disqualified from holding a driver's licence as the result of a licence suspension order.

The final orders of the court were that the appeal was dismissed, and the appellant was to pay the costs of the respondent. The court also made an order for costs in the amount of $1000.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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