Fitas v VOGELAAR
[2011] WASC 256
•16 AUGUST 2011
FITAS -v- VOGELAAR [2011] WASC 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 256 | |
| Case No: | SJA:1017/2011 | 16 AUGUST 2011 | |
| Coram: | McKECHNIE J | 16/08/11 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SACHA FITAS INGEN PIETER VOGELAAR |
Catchwords: | Road traffic Answering a mobile phone while driving Whether regulation discriminatory No new principles |
Legislation: | Nil |
Case References: | Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
INGEN PIETER VOGELAAR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE C P CRAWFORD
File No : PE 56551 of 2009
Catchwords:
Road traffic - Answering a mobile phone while driving - Whether regulation discriminatory - 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):
Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45
(Page 3)
1 McKECHNIE J: Mr Fitas was driving down Lord Street, Perth, on 18 July 2009 when his mobile phone rang several times, and finally he answered it. Police, who were following, pulled him over and gave him an infringement notice.
2 Mr Fitas chose not to pay the infringement notice, and so it was that on 27 January this year he came before the Magistrates Court. He told the magistrate:
The phone rang twice. I didn't pick it up. The third time I picked it up, I thought it was an emergency and I said to my interlocutor within a few words I said, 'I'm driving. Hold on. I'm going to pull over', and that's when I heard the siren behind me.
My defence is, is it more dangerous than drinking a can of Coke or soft drink or eating a sandwich or combing your hair or putting some lipstick on or looking at a GPS, fumbling with a radio, watching the billboards?
3 He also asserted that the law was anti-discriminatory and contrary to the Australian Human Rights Commission Act 1986 (Cth) and the Constitution, s 109. After some further discussion, the magistrate said:
[A]re you still pleading not guilty?
4 Mr Fitas replied:
In the eye of the law, I might be guilty but I don't feel guilty at all.
5 The magistrate then imposed the equivalent of the infringement penalty, a fine of $250 and costs.
6 Mr Fitas appeals to this Court. His grounds of appeal are:
1. As soon as I invoked that the Court was not a Court of competent jurisdiction, not in accordance with Forge v ASIC, Magistrate Crawford became visibly annoyed, irritated, and the extremely short trial that ensued was rather unpleasant due to her raising her tone of voice and hostile attitude. I was forced to accept her jurisdiction against my will with no guidance.
2. 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. I could not even cross-examine the police officer and was dismissed very swiftly. I believe I asked if they could produce a copy of the Hansard Entry, which they couldn't.
3. I also invoked the anti-discriminatory law that would be contrary to the Commonwealth law such as the Australian Human Rights
- Commission Act. Section 109 of the Constitution states: that where an Act of a State is contrary to an Act of the Commonwealth, the Commonwealth prevails.
7 The appeal to this Court has been argued in person by Mr Fitas. With great respect to him, because he is a lay person, there are some legal concepts which seem to be unclear to him.
8 I should say that the proceedings before the magistrate were irregular, but I am satisfied there was no miscarriage of justice because there was in fact no defence. The appellant admitted answering the telephone, albeit for a short time only.
9 I turn to the grounds. As to ground 1, the Magistrates Court is duly constituted by the Magistrates Courts Act 2004 (WA) which is a valid enactment of the West Australia Parliament.
10 Forge v ASIC [2006] HCA 44; (2006) 228 CLR 45, is irrelevant and does not stand for the proposition advanced. Whether the magistrate reacted in the manner asserted by Mr Fitas cannot be tested by reference to the transcript. Mr Fitas does not allege that the magistrate was biased. If she did react in the manner that he claims she did, that was unfortunate but does not lead to any miscarriage of justice.
11 As to ground 2, the magistrate was entitled to take judicial notice of the validity of both the Road Traffic Act 1974 (WA) and the Road Traffic Code 2000 (WA).
12 As to ground 3, the Road Traffic Code forbidding motorists to use mobile phones is not a discriminatory law under the Human Rights Commission Act, whether or not there are other activities that might also be regarded as affecting a driver's concentration, nor is any question of Constitutional principle engaged.
13 The appellant points to the other activities which are not covered by the Regulations, as he did before the magistrate, and he did before me; including eating a sandwich, applying lipstick, looking at a GPS and other distracting behaviours. They may or may not be offences under the Road Traffic Code, but that is not to the point. The point is that answering a mobile phone is an offence and that is not a discriminatory law.
14 Notwithstanding the feelings which Mr Fitas has in relation to this matter, there are no arguable prospects of success on any of the grounds and the application for leave to appeal is refused and the appeal is dismissed.
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