Genovese v City of Perth

[2011] WASC 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GENOVESE -v- CITY OF PERTH [2011] WASC 68

CORAM:   JENKINS J

HEARD:   10 FEBRUARY 2011

DELIVERED          :   10 FEBRUARY 2011

FILE NO/S:   SJA 1107 of 2010

BETWEEN:   HERCOLE PIETRO GENOVESE

Appellant

AND

CITY OF PERTH
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P G MALONE

File No  :PE 40180 of 2010

Catchwords:

Criminal law - Appeal against conviction - Parking offence - Misdescription in prosecution notice of offence clause in local law - Failure to tender copy of infringement notice - Proper construction of the City of Perth Parking Local Law 1999

Legislation:

City of Perth Parking Local Law 1999
Criminal Procedure Act 2004 (WA), s 178
Local Government Act 1995 (WA), s 19.16
Road Traffic Act 1974 (WA), s 98
Sentencing Act 1995 (WA)

Result:

Leave to appeal on grounds 1 and 3 refused
Leave to appeal granted on ground 2
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance (abiding by any order of the court)

Solicitors:

Appellant:     In person

Respondent:     In person

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

Nil

1. JENKINS J:  (These reasons were delivered orally and edited from transcript.)  This is an application for leave to appeal from a decision of a magistrate sitting in the Magistrates Court at Perth on 22 September 2010.  The appellant appeals against his conviction for an offence of stopping a vehicle on or over a footpath.

2. The appellant was convicted after trial and fined $100.  The appellant's grounds of appeal are that:

   (1)the magistrate erred in law because he had no jurisdiction to hear and determine any matter relating to a modified penalty pursuant to the City of Perth Parking Local Law 1999 (the Local Law);

   (2)the magistrate erred in law because he failed to pay any heed whatsoever or sufficient heed to the appellant's contention that the prosecution's case resting on written law 3.43F of the Local Law does not exist;

   (3)the magistrate erred in law because he failed to pay any heed whatsoever or sufficient heed to the appellant's contention that the respondent failed to tender into evidence a copy of a parking ticket allegedly issued.

3. The appellant has not been given leave to appeal on any ground.  At the commencement of today's hearing I indicated to him that, as he had made detailed written submissions and as the respondent had elected not to be a party to the appeal, I would hear the application for leave to appeal and the appeal together and determine both matters today.

4. The appellant was charged that on 29 December 2009 at Hay Street, Perth he did stop a vehicle on or over a footpath contrary to the Local Law cl 3.43F.  The only witness for the prosecution was Donald Mitchell, an experienced parking officer employed by the City of Perth (the City).  Mr Mitchell gave evidence that on 29 December 2009 he saw a silver motorcycle registration number 1EG‑848 parked on the footpath outside the Central Law Courts on Hay Street.  At 11.28 am he issued infringement notice 4632414 on the prescribed form in the Local Law.  The infringement notice was not tendered in evidence.

5. Mr Mitchell said he had searched the City of Perth file that morning and it did not contain any report that the motorcycle was stolen at the time.  Neither did it include a nomination that another person had been riding the cycle and the modified penalty had not been paid.  Mr Mitchell tendered a photograph which he had taken of the motorcycle in situ between 11.15 am and 11.18 am.  The appellant complains that the photograph was not proved to be taken at the relevant time.  However, Mr Mitchell gave evidence that he had taken the photograph which was tendered in evidence of the motorcycle on the footpath at that time, that is, 11.15 am to 11.18 am on the morning of 29 December 2009.

6. In the circumstances the magistrate was entitled to accept Mr Mitchell's evidence.  The photograph shows the motorcycle parked or stopped on the footpath, as described by Mr Mitchell.  In cross‑examination Mr Mitchell said he had taken the photograph with his hand‑held PDA and that he could not take the photograph after he had issued the infringement notice.  He described how the hand‑held PDA has a camera integrated with software which enables him to complete the infringement notice electronically and then print it using a Bluetooth printer.

7. At the conclusion of Mr Mitchell's evidence the prosecutor tendered a certificate under the Road Traffic Act 1974 (WA), s 98(2) which stated that on 29 December 2009 the appellant was the licensed owner of the motorcycle.

8. The appellant, who was unrepresented, then elected to call evidence.  He gave evidence on his own behalf.  He said that he had no knowledge of the infringement notice and the first thing he knew about the matter was when he received a reminder notice to pay the infringement notice.  He received the reminder notice in the post on or about 2 February 2010.

9. The appellant's evidence was then interrupted so that Mr Mitchell could be recalled and the allegation put to him that he had not put an infringement notice on the motorcycle.  The upshot of Mr Mitchell's further evidence was that he was certain that he had issued the notice and left it somewhere on the motorcycle but he could not recall where.  He had noted on the infringement notice that he intended to leave the infringement notice on the seat or petrol tank of the cycle.  He said he had left it on one of those two places.  He described how on motorcycles there may be several places where an infringement notice could be left.  He denied that it was possible that the PDA or printer had malfunctioned and not printed the infringement notice. 

10. The appellant then resumed his evidence.  He said he did not recall whether he was the rider of the motorcycle on this occasion or not.  At the conclusion of the appellant's evidence the magistrate heard submissions.  During the course of his submissions the appellant brought up that cl 3.43F of the Local Law did not exist.  The correct description of the clause under which the appellant was charged is cl 3.4(3)(f).  The prosecutor, in effect, asked to amend the charge because the defect was of no consequence to the merits of the case.

11. The magistrate refused to amend the charge because in his view the omission of the brackets was a technicality and the provision under which the appellant was charged and the nature of the charge was quite obvious (ts 17 ‑ 18, 20).  The magistrate then gave reasons for finding the offence proven.  After finding the offence proven the magistrate asked the prosecutor what the infringement notice penalty was and he was told that it was $100.  The magistrate proceeded to impose that penalty and a further sum in costs.

Ground 1

1. Ground 1 of appeal alleges that the magistrate acted beyond power in hearing the charge because the Local Law, cl 10.4, states:

   A penalty for an offence against this local law (not being a modified penalty) may be recovered by the city by taking proceedings against the alleged offender in a Court of Petty Sessions.

2. The appellant submits that as a matter of fact the respondent has recovered the modified penalty that he was required to pay under the infringement notice.  In my opinion this ground of appeal is without merit.  Clause 10.4 permits the City to recover a penalty that is not a modified penalty.  It does not say anything about when the City may prosecute an offence which was what the proceedings in the Magistrates Court were.

3. By the proceedings the City did not 'recover' a modified penalty.  Rather, it prosecuted an offence.  It was simply a matter of coincidence that the penalty imposed, that is, the fine, in the proceedings was the same figure as the modified penalty.  However, the fine is not a modified penalty even though it may be the same amount as a modified penalty.  This may be a fine distinction to a layperson but it is a distinction as a matter of law.

4. Clause 10.1 provides that a person who breaches a provision of the Local Law commits an offence.  There are provisions in the Local Government Act 1995 (WA) and the Criminal Procedure Act2004 (WA) which regulate the prosecution of offences. There is nothing in those provisions or the Local Law which prohibits the City of Perth from prosecuting the appellant for the offence, a magistrate from imposing a fine which is equivalent to the relevant modified penalty for the offence or the respondent recovering the fine pursuant to cl 10.4.

5. The appellant says that there should have been a reference to the modified penalty at the commencement of the proceedings.  However, the magistrate imposed a fine under the Sentencing Act 1995 (WA). He did not impose a modified penalty. That is why it was unnecessary for there to be any mention of the modified penalty at the commencement of the trial.

6. However, I note that it is confusing to a layperson to refer to the alleged offender in the Local Law cl 10.1.  By the time a penalty is to be recovered the person from who it is to be recovered is an offender, not an alleged offender so I am not clear as to why there is a reference in cl 10.4 to an alleged offender. 

7. As this ground has no likelihood of success, I do not grant leave to appeal in respect of it.

Ground 2

1. Ground 2 relates to the misdescription in the prosecution notice of the clause creating the offence.  As I have said, the Local Law cl 3.43F, as the offence provision is described in the prosecution notice, is an incorrect or misdescription of the clause under which the appellant was charged.

2. The Criminal Procedure Act, s 178 says that any objection by an accused to a defect in a prosecution notice must be made before the prosecutor's opening address. The appellant did not raise this issue before the prosecutor's opening address. Although he seems to have been aware of this point, he appears to have taken the view that it would be best to raise it during closing submissions, when he thought that it may be too late for the prosecution to correct the defect.

3. One view of s 178 is that, as the objection was not taken at the relevant time, it was too late for the appellant to do so later during the proceedings. If that is the case, then this ground of appeal would have no chance of success. Even if it was not too late for the appellant to raise the defect at a later time, the magistrate, in my view, was correct to regard the misdescription in the circumstances of this case as a technicality which did not go to the merits of the case. Not every misdescription of an offence creating clause could be so described. However, in these circumstances, where the appellant was clearly aware of the provision under which he had been charged and the error was simply omitting brackets and putting 'F' in upper case, in my view, the error was not a defect that went to the merits of the case.

4. Section 178(3) of the Criminal Procedure Act says that if a court document is defective in substance or form, the court on an application by a party or on its own initiative must order that the document be corrected if the defect is not material to the merits of the case.  It may otherwise order that the document be corrected in any other case.  The magistrate should have allowed the prosecutor's application to amend the charge because the defect was not material to the merits of the case but an amendment would have corrected the defect and corrected the prosecution notice.  However, I am of the view that the magistrate's failure to amend the charge did not result in a miscarriage of justice.

5. The appellant says he was not offered an opportunity to make submissions on this issue.  I have read the transcript where it was raised during the course of his final submissions.  He was given an opportunity to make submissions in respect of it.  Given my view that the magistrate should have amended the charge or amended the formulation of the clause creating the offence, I would grant leave to appeal on this ground but I would dismiss the ground of appeal on the basis that there had been no resulting miscarriage of justice.

Ground 3

1. In respect of ground 3, the appellant submits that the respondent was required to prove that it had served an infringement notice on him, that is, left it on the bike somewhere, and that it was also required to tender the infringement notice in evidence. 

2. I do not agree.  The Local Government Act, s 19.16 provides that an authorised officer may issue an infringement notice for an offence against a local law.  A prosecution for an offence against a local law is not dependent on proof of service of an infringement notice.  The City of Perth must keep records of infringement notices that it issues, but this does not mean that it is required to produce them in court in respect to an offence or in respect to a related offence.  In my view this ground has no prospect of success and I would refuse leave to appeal in respect of it.

Other issues

1. There are a couple of other matters which have been raised by the appellant in his written and oral submissions and I will deal with them.  One of them is that the City of Perth should not have waited so long to issue the prosecution notice.  In this respect the offence was committed in late December 2009 and the prosecution notice was not issued until June 2010.

2. I am tempted to agree with the appellant that this is a long period of time in which to wait for the City to commence a prosecution in respect to what is a minor matter.  It would have been more helpful to all parties if the prosecution notice had been issued earlier.  However, in not issuing the prosecution notice until 4 June 2010 the City of Perth did not breach the law.  There is nothing to say that the City cannot commence a prosecution some five months after the parking offence has occurred.  There is no merit in this complaint.

3. The other matter raised by the appellant is that the penalty for an offence under cl 3.4(3)(f) of the local law is not contained in that clause.  The appellant's submissions in this regard relate to the fact that the modified penalties for offences under the local law are contained in sch 3 of the Local Law.  Schedule 3 simply contains the offences in numerical format and the modified penalty for those offences in the adjoining column.

4. For the reasons that I have given earlier, whether or not the appellant was guilty of this offence did not turn on the modified penalty or whether an infringement notice was issued in respect to the offence.  I can understand why the appellant says that as a layperson it would be a lot clearer if the modified penalties were set out so that the offences themselves were written out in full and the modified penalty for them written alongside.  However, that is not the issue for me.  The issue for me is whether the appellant was rightly convicted of the offence of stopping a vehicle on or over a footpath on 29 December 2009 in Hay Street, Perth.

Conclusion

1. The grounds of appeal either have no prospect of success or in respect to ground 2, whilst it is an arguable ground of appeal, the magistrate's error did not result in a miscarriage of justice.  Consequently, I conclude that leave to appeal should be refused on grounds 1 and 3 and leave to appeal should be granted on ground 2 but the appeal in respect to it should be dismissed.