Harshaw v Adam
[2007] WASC 12
•25 JANUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HARSHAW -v- ADAM [2007] WASC 12
CORAM: MURRAY J
HEARD: 21 DECEMBER 2006
DELIVERED : 25 JANUARY 2007
FILE NO/S: SJA 1066 of 2006
BETWEEN: PHIL HARSHAW
Applicant
AND
JAMIE DAVID ADAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R K BLACK
File No :MJ 18 of 2006
Catchwords:
Appeal - Application for leave - Availability of defence of mistake - Severity of penalty - Refusal of adjournment - Matter turns on own facts
Legislation:
Nil
Result:
Adjournment refused
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Ms C A Ide
Solicitors:
Applicant: In person
Respondent: State Solicitor
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Lowndes v The Queen (1999) 195 CLR 665
Ostrowski v Palmer (2004) 218 CLR 493
Samuels v The State of Western Australia (2005) 30 WAR 473
MURRAY J: The applicant was charged by a prosecution notice with an offence committed as the driver of a motor vehicle in the course of the use of which an accident occurred whereby property was damaged. The offence alleged was that he failed, when required to do so, to give his name and address to the person whose property was damaged, contrary to s 54(1) of the Road Traffic Act1974 (WA). The offence was alleged to have occurred on 22 September 2005.
Section 54(1) is in the following terms:
"Where in the course of the use of any vehicle, an accident occurs whereby any person is injured or any property is damaged, the driver or person in charge of the vehicle shall unless himself disabled from doing so stop immediately after the occurrence of the accident, and, if required, shall produce his licence and give his name and address, and also if it is in his power to do so the name and address of a responsible person for the vehicle, to any person who has been injured or whose property has been damaged, or to a member of the Police Force, or to any person representing a person who has been injured or the owner of any property which has been damaged."
For a first such offence, where only property is damaged, the maximum penalty is a fine of $1500.
It will be observed that the obligation of the law provided by the offence created by this subsection, where an accident occurs, has nothing to do with who is at fault in relation to the occurrence of the accident and it is an obligation to give the name and address and produce the licence to a person whose property has been damaged or to a member of the Police Force or any person representing the owner of the property which has been damaged. The particulars only have to be provided once.
The applicant entered a plea of not guilty and the matter came on for trial in the Magistrates Court at Manjimup on 15 June 2006 before Magistrate Black. There is a transcript of the hearing. It is certified by the transcription service as being accurate. The record from which it is taken is certified to have been suitable for making an accurate transcription, subject to any difficulties noted in the transcript itself. The transcript commences with the general observation that difficulty was experienced in making the transcription due to the poor quality of the recording from which the transcriber worked. There are quite a number of areas where it could apparently be heard that someone was speaking, but what was being said could not be made out. Where that has occurred the ordinary practice was followed of indicating where there is a gap in the transcription and by the use of the word "indistinct". But I should make it clear that where what was said was able to be heard by the transcriber, I accept the certification of the transcriber that the transcript was, to that extent, accurate and complete.
The applicant appeared in person, as he did before me. At the conclusion of the hearing, for reasons delivered extemporaneously by his Honour, the applicant was convicted. He challenged the accuracy of the record of previous convictions tendered by the prosecution, saying that it was "full of crap". That matter was taken no further when the Magistrate observed that there was nothing in the criminal history relevant to the imposition of penalty.
The applicant was asked if he wanted to say anything in relation to his personal circumstances or in mitigation of punishment. He said he was unemployed and was in receipt of social security payments. His Honour said, "Clearly, there has been no remorse exhibited in relation to the matter." He said that in the circumstances he would impose a fine of $400.
The applicant appeals against both conviction and sentence or, more strictly, he seeks leave to appeal against both. He expresses the grounds of the appeal as follows:
"That the Magistrate showed bias. That the Magistrate had made a finding prior to the completion of the trial. That the penalties were harsh and oppressive and designed to cause 'hardship'. That the Magistrate's conduct in the entire proceedings was adversarial and rude with extreme bias and conduct displayed to the accused. That the Magistrate erred in law."
Directions in relation to the preparation of the appeal were given by Blaxell J on 13 November. His Honour, appreciating of course that the applicant was unrepresented, ordered that the application for leave and the appeal were to be heard together, that an appeal book was not required to be lodged, that the respondent should comply with the relevant practice direction governing the provision of an outline of submissions and list of authorities, and directing the listing officer to list the application for hearing after 1 December 2006 and after consulting with the respondent as to available dates.
When the matter came on for hearing before me, the applicant did not immediately seek an adjournment, although he complained that he had not received the respondent's outline of submissions and list of authorities until he came to the court that morning. Counsel for the respondent confirmed that the documents had been sent by courier service two days earlier, to an address in Manjimup which had long been given as an address used by the applicant and to which correspondence from the court had been sent, correspondence which had produced a response from the applicant. Nonetheless, as I say, the applicant maintained that he had not received the documents.
I told the applicant that, as he was prepared to present his case I would hear him and then he might read the outline of submissions and listen to anything counsel for the respondent might say. I said I would rise to allow him sufficient time to read the documents so that he might make any observations he wished in reply to points raised therein.
The hearing proceeded by way of an exchange between the applicant and me, during which I endeavoured to have him elaborate on and explain the grounds of his application as set out in the appeal notice. The applicant, in effect, confirmed that in relation to conviction his complaint was one of bias and the error in law he identified was that which he had discussed with the Magistrate at the trial. He complained generally of the fine imposed.
In relation to his complaint of bias on the part of the Magistrate, the applicant complained about the inaccuracy of the transcript. He said that it had evidently been tampered with and things that had been said to him by the Magistrate, revealing his bias and his determination to convict, had been deleted.
He offered no evidence in support of this serious allegation and he had taken no steps to gather any such evidence as to the accuracy of the transcript, which had been made on 25 July 2006. As I have already observed, the evidence before the Court provides no cause for concern about the accuracy of what was able to be transcribed and there is nothing in the content of the document, nor was the applicant able to point to anything, which gave room for the view that what had been unable to be transcribed included remarks by the Magistrate revealing bias of an extreme character, rudeness and a generally adversarial approach to the applicant. Indeed, on the contrary, the transcript reveals that his Honour dealt with the applicant carefully and with courtesy, explaining to him the consequences of the position he was adopting, what the appropriate trial procedure was, and how the applicant might participate in it.
The essence of the applicant's complaint is that immediately after the Magistrate confirmed that the plea of not guilty was maintained, the applicant said that he defended the charge, "because I didn't know that I had to give it to anyone else but a police officer, the person concerned me, that's why I didn't want to give them my home address."
His Honour responded, "The fact that you may not know that you are required to do something under the Road Traffic Act, is not of itself a defence." A little later his Honour added, for abundant clarity, "A mistake of law is not a defence, and that's what it will be." There was then an exchange between the applicant and the Magistrate. I observe that any rudeness was on the part of the applicant. Again, his Honour said that a mistake of law was not a defence to the charge and, "You will be convicted if that's the defence."
The case proceeded. The time, date and place of the motor vehicle accident was admitted, as was the fact that the applicant was driving his vehicle when it came into collision with another vehicle. The driver of the other vehicle was called. He confirmed those matters and said that the applicant had accused him of being at fault in the accident. He said that he told the applicant that he was not prepared to debate that with him, "but all I need to know is your name and address and details so I can claim on insurance - claim for my car." His evidence established the applicant's refusal to give those particulars. In addition, he said that although there appeared to be little damage to the applicant's vehicle, there was damage to the passenger door of his vehicle which cost him over $1000 to have repaired.
The applicant was then told that he might question the witness and how he might go about that. He said he did not understand what the Magistrate was saying. When he was asked what he did understand he replied, "That this is a joke. That's what I understand. So, I won't be saying any more. I'll just be sitting here." There was a limited further exchange, not all of which was transcribed, but which obviously caused the Magistrate concern that the applicant's behaviour was verging on contempt of court.
Ultimately there was no cross‑examination of the witness, who was then excused and the prosecution closed its case. The Magistrate explained to the applicant that he had the opportunity to go into evidence, to give evidence himself, to call witnesses, and the process of doing that was discussed with him. The Magistrate asked him if he understood. When asked if he wished to give evidence he said that he did not see the point. When asked if he wished to call witnesses he declined, saying that he had no witness present to give evidence.
The prosecutor made no submissions on the case, and when asked if he wished to make any submissions the applicant said, "Well, apparently, I don't understand the law, so I've got nothing further to say."
His Honour then gave his reasons for convicting, which seem to me to be perfectly adequate, and he imposed the fine to which I have referred.
As I have said, this is an application for leave to appeal. The Criminal Appeals Act, s 9(2) provides that this Court:
" … must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding."
In Samuels v The State of Western Australia (2005) 30 WAR 473, the Court of Appeal held, in relation to the equivalent provision affecting its work, s 27(2) of the Act, that the test was whether a ground relied upon had a real prospect of success: 487 [56]. No ground of appeal relied upon by the applicant in this case, whether in relation to conviction or sentence, is a ground upon which leave to appeal might be granted.
As to conviction and the question of whether a miscarriage of justice has occurred so as to cause the conviction to be set aside on the ground of a reasonable apprehension of bias on the part of the presiding Magistrate, the law is clear. It was recently restated by the High Court in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The question is to be judged from the point of view of a reasonable, fair‑minded bystander informed of the basic processes of the court in conducting the trial. Nothing that occurred in this case would give such a bystander any reasonable apprehension of bias on the part of the Magistrate. His Honour did nothing more than explain to the applicant that his proposed defence was not a good defence in terms of the law, and if that was all that was to be relied upon by way of defence to counter the prosecution case then the inevitable result would be his conviction, an observation carrying with it the necessary implication, of course, that it was made subject to the prosecution offering the court evidence otherwise capable of establishing the applicant's guilt to the offence charged to the necessary standard, beyond reasonable doubt.
Thereafter, the Magistrate displayed no partiality towards the prosecution or its case and he did no more than explain, in appropriate terms, to the applicant what the course of trial would be and how the applicant could participate in that process. In doing so, his Honour showed restraint despite the provocation, rudeness, and indeed contemptuous aggression apparently displayed by the applicant, a manner of behaviour he displayed when appearing before me.
As to his substantive point, that he was not guilty of the offence otherwise established by the evidence because he did not know that he was obliged to provide the particulars sought by the occupant of the other vehicle involved in the collision, again the law is clear, being restated recently, again by the High Court, in Ostrowski v Palmer (2004) 218 CLR 493. That case came from this State. It concerned a rock lobster fisherman who was charged with a breach of regulations prohibiting fishing in designated areas. He said he did not know that he was in such an area and indeed he had been misled by information supplied to him by an official. Nonetheless, it was held that his mistake was as to the law which made fishing in the area where he was unlawful and it was held that he was rightly convicted.
As Gleeson CJ and Kirby J said, at 500 [1]:
"Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence."
It would, of course, be unworkable if the law was otherwise. The prosecution would rarely be in a position to prove, not only the elements of the offence, but also that the accused person knew that those facts constituted the offence charged. That would be a matter ordinarily within the mind of the defendant alone. But in any event, whatever may be the reason for the rule, the rule is clear. In the provisions of the Criminal Code (WA) which deal with criminal responsibility in relation to all offences under the laws of WA, the matter is put simply and directly. Section 22, so far as material, provides:
"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence."
When the applicant said that he did not know that he was obliged to give the person in charge of the other vehicle the particulars sought, but thought he was only obliged to give that information to a police officer, he was revealing that he did not know what the law was. It provided him with no defence.
As to the penalty imposed, the fine of $400, it was, of course, a little over a quarter of the maximum fine available. As no special order was made, it was enforceable under the provisions of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). There is no need here to discuss those enforcement processes. It was a substantial fine, of course, but the question for me is whether it may be seen to have so far fallen outside the permissible range of the exercise of the Magistrate's discretion in relation to sentence as to require the fine to be set aside and a different penalty imposed: Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672. To my mind, it is not possible to say that the penalty fell outside the range of a sound exercise of the Court's discretion in relation to sentence. In those circumstances I may not interfere.
There is a capacity under the law for the applicant, if there is difficulty in paying the fine in one lump sum, to make arrangements for the obligation to be otherwise discharged and the Magistrate's observation that the applicant displayed no remorse was, in my view, appropriate. As the High Court said in Ostrowski v Palmer, ignorance of the law, "may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute"; 500 [2]. The position in relation to penalty would, I think, have been quite different had the applicant responded to the information that his knowledge of the law was wrong by saying that now that he knew the law he regretted his refusal to provide the information sought. But he made no such expression of remorse and the Magistrate was well placed, having seen the other person involved give evidence, to determine whether there was anything in relation to that person which might cause the applicant reasonably to fear some retribution from him if he provided his name and address.
I am therefore of the opinion that leave to appeal should be refused.
There is one further matter that I should address briefly. During the course of the hearing before me the applicant ultimately sought and was refused an adjournment. His application was made upon the basis that he had recently obtained a job, his financial resources had improved and he was now in a position to instruct a lawyer. When asked what steps he had taken thus far he said he had applied for legal aid but had been refused, an event, which, he said, did not surprise him because the officer of the Legal Aid Commission with whom he had dealt "drinks with the police".
I reviewed the listing process and the communications between the applicant and the Court commencing shortly after the appeal was instituted. There had been telephone contact between the applicant and officers of the Court. The interlocutory processes had been delayed at his request. As I have said, the programming order finally made on 13 November was for the application to be listed for a date in December. That was done following correspondence and conversations with the applicant by court officers in which he advised that dates in December would be acceptable for the hearing. There is a letter from him to that effect which is dated 10 November 2006. On 14 November a listings officer of the Court wrote to the applicant advising him that the matter would proceed on 21 December. As I say, although the applicant apparently pursued an application for legal aid, unsuccessfully, he made at that time no approach to the Court to defer the matter while he made further attempts to obtain legal representation.
As to the question of the failure to get the respondent's outline of submissions to him before the hearing, if the courier service process failed, I offered to allow the applicant time to read and absorb the document, which is not complicated, so that he could make, in reply, any submissions he wished. I said I would rise while he did that. He declined that offer, saying, in effect, that he was not prepared to participate in that process.
When I explained to him that having refused the adjournment, if he did not avail himself of that process I would reserve my decision and give judgment in due course, the applicant made some statements which implied that I was manipulating the hearing process so that it arrived at a predetermined conclusion adverse to him. I had previously spoke to the applicant about the need for care in relation to such statements and the danger that he would commit a contempt of the court. To preclude further statements of that kind I ended the proceedings at that point and reserved my decision.
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