Gibbs v Watson - [2017] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GIBBS -v- WATSON [2017] WASC 326

CORAM: SMITH AJ

HEARD: 10 OCTOBER 2017

DELIVERED : 23 NOVEMBER 2017

FILE NO/S: SJA 1026 of 2017

BETWEEN: CAMERON DUNCAN GORDON WILLIAM GIBBS
Appellant
AND
GEOFF WATSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE D P SCADDAN
File No  :MI 10 of 2017

Catchwords:

Criminal law and procedure - Speeding offence - Exclusion of presumption of innocence under Criminal Procedure Act 2004 (WA) s 55 - Procedure for conviction of accused of simple offence in their absence

Appeal - Whether reasonable prospect of succeeding - No arguable grounds

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9
Criminal Procedure Act 2004 (WA), s 23, s 28, s 33, s 48, s 55
Criminal Procedure Regulations 2005 (WA), reg 4, reg 8
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 21
Road Traffic Code 2000 (WA), r 11

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T Pontre

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Saad v Baron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SMITH AJ:

Background

The appellant was charged with a simple offence that on Wednesday, 10 August 2016 he drove a motor vehicle on Welshpool Road near Moffett Road in Carmel at 93 km/h in a 70 km/h speed zone, contrary to r 11(3) of the Road Traffic Code 2000 (WA).
By application dated 20 December 2016, the appellant elected to have the charge dealt with by the Magistrates Court under s 21 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
The charge was heard on 8 March 2017. The appellant did not appear. Nor did he send to the court a written plea.
In reliance upon s 55 of the Criminal Procedure Act 2004 (WA), the learned magistrate heard and determined the charge in the appellant's absence.
The appellant was convicted of the charge. A fine of $400 was imposed, and costs of $188 awarded.
Although the prosecutor did not read aloud the statement of material facts verbatim, the substance of the facts was read aloud.
The appellant has applied for leave to appeal against his conviction.

Grounds of appeal

The appellant enumerates his grounds of appeal as follows:
1.Systemic failure to adhere to the principles of 'innocent until proven guilty' when considering matters of vehicle speed.
2.Failure to follow correct judicial procedure.
3.Failure to provide opportunity for a fair hearing.
4.Failure to consider the purpose of the law as distinct from the letter of the law when determining guilt.
The appellant requires leave to appeal on each of the grounds which he has raised: Criminal Appeals Act 2004 (WA) s 9(1). The court must not grant leave to appeal in respect of a ground unless it is satisfied that the ground has a reasonable prospect of succeeding, that is, it would not be irrational, fanciful or absurd to envisage it succeeding: see Criminal Appeals Act s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
None of the appellant's grounds amount to an error of law or fact, a jurisdictional error, or otherwise make out a miscarriage of justice: Criminal Appeals Act s 8(1). Each has no prospect of success.

Hearing before the learned magistrate

The appellant did not appear at the hearing before the learned magistrate. So, in the absence of the appellant and without a written plea, her Honour was brief:
JSO: G, Gibbs, Cameron Duncan, no appearance.
HER HONOUR: I will make it 9.30 because, as you know, we're doing ‑ often doing ROs first thing.
MAYNE, MR: Yes.
HER HONOUR: All right. Service?
MAYNE, MR: I'll just ‑ it's brief so I will tender it up. It says a 'fines enforcement.' So I will have to ‑ on 22 December posted to 8 Union Road, Carmel.
HER HONOUR: I'm satisfied there's postal service of the prosecution notice.
MAYNE, MR: Thank you, your Honour. Proceed by way of section 55.
HER HONOUR: Leave granted to proceed under section 55.
MAYNE, MR: Speed camera, Carmel, on 10 August last year, alleged 93 in a 70 zone.
HER HONOUR: Twenty‑three over, so $400.
MAYNE, MR: Correct, and summons cost.
HER HONOUR: There will be a ‑ I impose the infringement penalty of $400, costs of $188.

Ground 1 - exclusion of the presumption of innocence - s 55 Criminal Procedure Act

Section 55 of the Criminal Procedure Act only applies to simple offences where the accused is charged in a court of summary jurisdiction: Criminal Procedure Act s 48. Persons accused of a simple offence are required to be served with a prosecution notice and a court hearing notice: s 23, s 28(4) and s 33(1). If there is no appearance by an accused on a date specified in the court hearing notice and no plea of guilty, a court may proceed to convict the accused.
Section 55 of the Criminal Procedure Act provides:
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused’s absence if the accused does not appear on that date, the court may ‑
(a)adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
[(3)deleted]
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused’s absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court ‑
(a)must presume, in the absence of evidence to the contrary ‑
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused ‑
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
In oral submissions, the appellant put a submission that the learned magistrate erred in convicting him, without any evidence of guilt being produced, on grounds that it is a fundamental overarching principle and human right that a person charged with an offence is to be presumed innocent until proven guilty.
The fundamental flaw in the appellant's argument is that the common law 'presumption of innocence' can be displaced or excluded by legislation and s 55 is a legislative provision that has that effect.
In Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 the High Court was called upon to interpret s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (Drugs Act), which imposed a legal burden on an accused in Victoria to prove that, as an occupier of premises, he or she was not in possession of a prohibited substance found on the premises. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) is operative. Pursuant to s 32(1) of the Charter, so far as possible, all statutory provisions are required to be interpreted in a way that is compatible with human rights. Further, s 25(1) of the Charter provides a person charged with a criminal offence has the right to be presumed innocent until proved guilty. Despite the language of the Charter, French CJ at [55] found s 25(1) of the Charter to be ineffective against the clear language of s 5 of the Drugs Act, which excluded the presumption. At [44] ‑ [45] his Honour explained:
The common law 'presumption of innocence' in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.
The rights and freedoms of the common law should not be thought to be unduly fragile. They have properly been described as 'constitutional rights, even if … not formally entrenched against legislative repeal.' Nevertheless, statutory language may leave open only an interpretation or interpretations which infringe one or more rights or freedoms. The principle of legality, expressed as it is in terms of presumed legislative intention, is of no avail against such language.
Similar observations were made by Crennan and Kiefel JJ who said [510] ‑ [511]:
In its terms s 5 places a legal, not merely an evidentiary, onus on a person accused of an offence involving the possession of drugs to rebut the presumption there created, that the drugs found on land or premises occupied by him or her were in his or her possession. This is apparent from the requirement that the person satisfy the court to the contrary. The words 'to the contrary' convey that it is proof of a state of affairs such as would overcome the presumption which is required. To 'satisfy' a court requires that the court be persuaded and this is consistent with a legal onus.
Section 5 of the Drugs Act denies the operation of the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence. The rule reflects the common law concept of the presumption of a person's innocence.
In this case, s 55 of the Criminal Procedure Act goes further than s 5 of the Drugs Act, which merely shifted the burden of proof from the prosecutor to the accused.
Section 55 empowers a court to convict a person in the absence of evidence, where the preconditions of s 55 are met. The language used in s 55(4) and s 55(5) make it patently clear that the presumption of innocence is excluded. Section 55 expressly provides that the authority to prosecute the offence and the factual elements of the offence are deemed to be proved, in the absence of proof to the contrary. In the face of the words 'must presume, in the absence of evidence to the contrary' in s 55(4)(a), 'may take as proved any allegation in the prosecution notice' in s 55(4)(b) and 'in the absence of evidence to the contrary, the court must take as proved any facts so stated' in s 55(5), there is no scope for the presumption of innocence to apply.
Not only is the presumption of innocence excluded, s 55 empowers the court to take as proved any allegation in the prosecution notice and any fact stated to the court by the prosecutor as being the facts of the charge without requiring the prosecution to lead any evidence. As Beech J in Saad v Baron [2012] WASC 507 explained at [58]:
When s 55 applies, the court has two options. It can adjourn the charge. The other option is for the court to 'hear and determine the charge in the accused's absence'. If this latter option is taken, the guilt of the accused is decided in a radically different legal framework than generally applies in a criminal case. Rather than the prosecution being required to lead evidence to prove the offence beyond reasonable doubt, the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. Secondly, the accused is denied the opportunity to contest the prosecution evidence or make submissions on the evidence. See s 55(4) and Tallot v Matier [2012] WASC 290 [12].
Where an accused has chosen not to appear and not to contest the charge or charges by entering a plea, the legislature has by the enactment of s 55 determined that proof by the prosecution is unnecessary and the process of conviction is 'streamlined' by permitting the court to take any allegation in the prosecution notice as proved without evidence: Saad v Baron [62].
For these reasons, the issues raised by the appellant in ground 1 of the appeal are untenable and do not raise an arguable case.

Ground 2 and ground 3 - discretion to deal with charge in the absence of the appellant

In oral submissions the appellant attempted to put an argument that the notice he received notifying him that the prosecution notice would be first dealt with on 8 March 2017 at the Midland magistrates Court constituted notice of a hearing at which a 'plea' would be taken and did not constitute a 'court hearing notice' within the meaning of s 55(2) of the Criminal Procedure Act. As I understand the argument, the effect of this contention is that the learned magistrate's discretion to hear and determine the charge in the absence of the appellant pursuant to s 55(4) could not be invoked.
The appellant was served with a prosecution notice on 22 December 2016 and court hearing notice in the form prescribed by s 23 and s 33 of the Criminal Procedure Act, and reg 8 and reg 4 of the Criminal Procedure Regulations 2005 (WA).
Section 33 of the Criminal Procedure Act provides:
(1)A court hearing notice must ‑
(a)be in a prescribed form; and
(b)if issued in the first instance, form part of or be attached securely to a copy of the prosecution notice to which it relates; and
(c)if issued after the accused has been served with the prosecution notice, identify the prosecution notice or the charge or charges in it or be attached securely to a copy of it; and
(d)state where and when the prosecution notice will be dealt with by the court; and
(e)contain the information required by subsection (2); and
(f)contain any information prescribed; and
(g)be signed ‑
(i)if it is being issued by an authorised investigator, by the investigator; or
(ii)if it is being issued by a JP or a prescribed court officer, by the JP or officer.
(2)A court hearing notice must inform the accused ‑
(a)that the accused need not appear at the time when the prosecution notice to which it relates will be dealt with by the court; and
(b)that the accused may give the court written notice that the accused ‑
(i)pleads guilty to one or more of the charges in the prosecution notice;
(ii)pleads not guilty to one or more of the charges in the prosecution notice;
and
(c)that if the accused pleads guilty in writing to a charge the accused may also, in writing ‑
(i)explain why the accused committed the offence;
(ii)provide information to the court that it may use when imposing a sentence for the offence;
and
(d)that if the accused, in writing, pleads guilty or not guilty to a charge and does not appear, the charge may be dealt with in the accused's absence; and
(e)that if the accused does not enter a written plea to a charge in the prosecution notice and does not appear, the charge may be dealt with in the accused’s absence.
(3)A court hearing notice issued to an accused must be served on the accused in accordance with Schedule 2 clause 2, 3 or 4.
The contention that the court hearing notice served on the appellant was not a court hearing notice within the meaning of s 55(2) is misconceived. The court hearing notice served on the appellant was a notice in the form prescribed and complies with the requirements of s 33.
The court hearing notice states the charge in the attached prosecution notice would be first dealt with at the Midland Magistrates Court at 9.00 am on 8 March, 2017.
The appellant concedes he did nothing after he was served with the prosecution notice and the court hearing notice.
The court hearing notice served on the appellant states he had four options. These were:
1.You can attend the above hearing.
2.You can do nothing.
3.You can plead not guilty in writing.
4.You can plead guilty in writing.
Information was provided in the court hearing notice about each option. In respect of option 2, doing nothing, the court notice states:
If you do not appear at the above hearing and you do not send the court a written plea in time, the court may determine the charge(s) at the above hearing in your absence.
In some cases the court can take as proved any allegation in the attached prosecution notice without hearing evidence.
The court may decide to summons you to court or have you arrested and brought before the court.
If the court finds you guilty, it may fine you and order you to pay court costs and the prosecutor's costs.
In respect of option 3, pleading not guilty in writing, the court hearing notice states:
Pleading not guilty to a charge in the prosecution notice means you do not admit the charge.
If you send the court a written plea of not guilty, you need not attend the above hearing. If the court receives your written plea in time it will send you a notice of another hearing at which the court will deal with the charge(s) (in your absence if you are not there) and hear any evidence you wish to give and any witnesses you call.
To send the court a written plea of not guilty, fill out page 2 of this form and send page 2 to the address on it at least 3 days before the above hearing date.
In any event, the appellant's argument that the first hearing date was a hearing at which a plea would be taken is of no assistance to the appellant's argument, as the appellant did not attend court on 8 March 2017.
The appellant also attempted to put an argument that the rules of procedural fairness required the learned magistrate not to exercise the discretion conferred on her Honour by s 55(4) to hear and determine the charge in his absence. The fundamental difficulty with the appellant's contention is that the express text of s 55 clearly excludes the rules of procedural fairness where a person charged with an offence is served with a prosecution notice and a court hearing notice and has not, orally or in writing, entered a plea.
The clear intention expressed in s 55 is to enable the timely disposition of simple offences in the summary jurisdiction of the Magistrates Court where the demand on court resources to deal with a large volume of matters is high.
Whilst the learned magistrate had a discretion whether to proceed to hear and determine the charge against the appellant, in the absence of any request by the appellant for an adjournment, no error can be demonstrated in the decision of her Honour to convict the appellant on 8 March 2017.
The appellant was charged with the simple offence of a breach of r 11(3) of the Road Traffic Code 2000. Rule 11(3) prohibits a person from driving a vehicle in a speed zone at a speed exceeding, in kilometres an hour, that indicated by the speed limit sign.
On being satisfied of proof of service of the prosecution notice and notice of hearing, the learned magistrate was entitled to take as proved without the prosecution leading any evidence:
(a)the allegation in the prosecution notice that the appellant had on 10 August 2016 at Welshpool Road East, Carmel exceeded the speed limit between 20 and 29 km per hour; and
(b)the facts as stated by the prosecutor, namely that a speed camera alleged a speed of 93 in a 70 zone.

Thus grounds 2 and 3 do not raise an arguable case.

Ground 4

The matters raised in ground 4 are also untenable.
In ground 4 the appellant attempted to put an argument that the learned magistrate failed to consider whether measuring the speed of his vehicle at the time and place of the offence was for the purpose of public safety.
This is not a matter that is relevant to whether the learned magistrate erred in proceeding to convict the appellant in his absence and in the absence of his plea.

Conclusion

As the grounds of appeal have no prospect of succeeding, leave to appeal will be refused and the appeal dismissed.