Hirwa v Muscara
[2021] WASC 162
•11 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HIRWA -v- MUSCARA [2021] WASC 162
CORAM: ALLANSON J
HEARD: 18 MAY 2021
DELIVERED : 21 MAY 2021
FILE NO/S: SJA 1046 of 2020
BETWEEN: JEAN STEVE HIRWA
Appellant
AND
RENATO MUSCARA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G A BENN
File Number : JO 9282 of 2019
Catchwords:
Criminal law - Leave to appeal - Whether reasonable prospect of success on grounds of appeal - Where appellant did not appear on application for leave
Legislation:
Criminal Appeals Act 2005 (WA)
Criminal Procedure Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | Ms J Perera |
Solicitors:
| Appellant | : | No appearance |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tobin v Dodd [2004] WASCA 288
Waite v Hennah [2021] WASCA 69
ALLANSON J:
Introduction
On 4 June 2020, Jean Steve Hirwa was convicted in the Magistrates Court at Joondalup on a charge of exceeding the speed limit. On 1 July 2020, he lodged a notice of appeal which was in two parts. The first was described as 'court processes'. The second contained five grounds of appeal:
(1)The magistrate failed to give proper reasons and ignored my request and reminder for witness summons to produce a record or thing.
(2)The magistrate arrived at a decision without proper evidence to support it.
(3)The magistrate wrongly considered evidence he should not have, just basing on the Officer Paul Harris's story, rather than the actual evidence already presented, and mentioned to him.
(4)The magistrate failed to take in consideration/actions regarding Officer Paul Harris who was working against the procedures and guidelines.
(5)The magistrate wrongly stopped evidence being given. Such as technical nature of rider cameras and deployment process.
Since lodging his appeal, Mr Hirwa has made several applications in the appeal directed towards obtaining records or things, including a copy of 'the original (entire) Joondalup magistrate court audio recordings (for the following courts' dates: 16/01/20 2020, 07/02/ 2020 and 04/06/2020)'. He also applied for orders sustaining objections to evidence adduced in the prosecution.
On 12 August 2020 the Principal Registrar made an order that Mr Hirwa may listen to the audio recordings of the hearing before the primary magistrate, to be facilitated by the Registry of the Supreme Court. On 11 March 2021, the Principal Registrar made a further order requiring Mr Hirwa to lodge a schedule of alleged transcription inaccuracies or recording inaccuracies. The order was expressly designed to identify any matters that were in issue so that alleged discrepancies could be checked and resolved.
Mr Hirwa has for some time now stated that he wishes to have the appeal adjourned, that a complaint of falsified court recordings is currently under investigation, that he will not attend any 'secret hearing', and is waiting for legal advice from overseas.
On 8 April 2021, the Principal Registrar ordered that the application for leave to appeal be adjourned to a judge in chambers on 18 May 2021 and made orders for the filing of written outlines of submission. The respondent filed submissions on 11 May 2021. Mr Hirwa has not filed submissions. He did not attend the hearing, whether in person or by telephone.
Appeals to a Single Judge
The appeal is governed by the Criminal Appeals Act 2004 (WA). By s 7(1), a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
An appeal against conviction may be made on one or more of the grounds set out in s 8(1):
(a)that the court of summary jurisdiction ‑
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
…
(b)that there has been a miscarriage of justice.
The leave of the Supreme Court is required for each ground of appeal, and leave must not be given unless the court is satisfied that the ground has a reasonable prospect of success: s 9(1) and s 9(2). And see Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
By s 9(3) of the Criminal Appeals Act, unless leave to appeal is given on at least one of those grounds, the appeal will be taken to have been dismissed.
The unrepresented appellant
The obligations on a judge to assist a litigant in person call for the court to balance the disadvantages suffered by a person not having legal representation against the need for the court to maintain neutrality: see Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; Tobin v Dodd [2004] WASCA 288 [14]. The court should give the advice and assistance that is necessary to diminish, so far as this is possible, the procedural disadvantages which an unrepresented litigant will ordinarily suffer. Where the issue arises on an appeal, the court may read a ground of appeal broadly to attempt to discern whether there is an arguable ground but poorly expressed.
The difficulty in the present case was that Mr Hirwa sought to engage with the appeal process only on his own terms.
Mr Hirwa filed his notice of appeal on 1 July 2020.
He has since filed a series of applications in the appeal, notwithstanding that he did not then have leave to appeal. They included applications for witness summonses, for a subpoena to produce the entire Joondalup Magistrates Court audio recordings for the three days in which he appeared; and for leave to appeal by telephone and record the hearings using personal devices.
On 12 August 2020, the Principal Registrar made an order by which Mr Hirwa has had the transcript and the audio from the proceedings in the Magistrates Court made available to him. Orders were later made to enable any dispute as to accuracy to be resolved. Mr Hirwa used the opportunity to listen to the recording of the proceedings. He later complained that the recordings were falsified, and insisted on recording any hearings with his own devices.[1]
[1] Affidavit of Jean Steve Hirwa, 4 March 2021.
He did not appear at the directions hearing on 11 March 2021, and did not comply with the further orders made that day.
Mr Hirwa advised the court that he was not available for the directions hearing on 8 April 2021, and that he would not be available until he received legal advice from overseas.
I am satisfied that, from about 8 April 2021, Mr Hirwa had notice that his application for leave to appeal would be heard on 18 May 2021. Mr Hirwa filed an affidavit on 12 April 2021 in which he referred to an application in the appeal 'regarding the falsified recordings at the Supreme Court of Western Australia'. He said that his complaint had been submitted to the police for investigation and asked, 'why am I being rushed to secret hearings?' He further asserted that the order of 8 April 2021 could not be fulfilled 'without [the Principal Registrar] take the initiative to release the falsified audio recordings from the Magistrate Court of Joondalup currently hold at the Supreme Court of Western Australia'.[2]
[2] Affidavit of Jean Steve Hirwa, dated 12 April 2021.
On 11 May 2021, the respondent filed submissions.
On 14 May 2021, Mr Hirwa advised my associate by email that he was not available for the hearing of the application for leave because he had not received the audio recordings of the proceedings currently held by the Supreme Court, or feedback from the Commissioner and Minister for police on 'their investigation progress'. The recordings had been made available for him to review. I can make no comment on any external investigation.
On 17 May, my associate again advised Mr Hirwa that the hearing of the application for leave to appeal would proceed and that if he wished to apply to adjourn the hearing it should be done at the hearing, either in person or by telephone. Mr Hirwa responded by email, 'I already made an application. You shall respond to the application and then I will be able to consult my advisors'.
By r 61(2) of the Criminal Procedure Rules 2005 (WA), if a party who has been notified of the hearing does not attend, the judge may proceed in the party's absence. Mr Hirwa had been notified of the hearing. While he said he was not available, his communication with the court showed that he could have attended, in person or by telephone, but would not.
It was in those circumstances that I determined to proceed in his absence.
The grounds
The Principal Registrar made orders for both parties to file submissions in relation to the application for leave. Mr Hirwa neither filed submissions nor appeared on the application.
The respondent filed submissions in which it referred to the recent decision of the Court of Appeal in Waite v Hennah [2021] WASCA 69, and its potential relevance to the present matter. The respondent clearly stated that it would not oppose any application to amend the grounds of appeal, and would not oppose leave to appeal being granted, should Mr Hirwa wish to amend his grounds to challenge the decision on the basis that the magistrate erred in law in relation to the legal test and onus to be applied with respect to s 117 of the Road Traffic (Administration) Act 2008 (WA). The respondent said, however, that it would argue that there was no substantial miscarriage of justice.
Mr Hirwa did not respond. The court cannot require him to proceed on grounds other than those of his choosing. Accordingly, the application for leave must be decided by reference only to those grounds set out in the original notice.
The requirement for leave calls for this Court to give consideration to the merits of each proposed ground of appeal. In Samuels v State of Western Australia, the court said:
That will not be a detailed consideration of all the evidence and all the issues in the case; it will be confined to the ground of appeal as particularised - but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application. That having been done, if the Court or Judge is not positively satisfied the ground has a reasonable prospect of success, leave to appeal must be refused. Where leave is refused, sufficient reasons should be given to enable the appellant to understand why that decision was made (at [60]).
In considering the grounds, I have had regard to the affidavits filed by Mr Hirwa in this matter, in particular the affidavit of 11 August 2020 which contains some explanation of his grounds of appeal.
Unless any one of those grounds has reasonable prospects of success, the appeal should not proceed.
Ground 1
By his first ground, Mr Hirwa contends that the magistrate failed to give proper reasons and ignored his request and reminder for witness summons to produce a record or thing.
By s 31(1) of the Magistrates Court Act 2004 (WA):
The Court's reasons for a judgment in a case ‑
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The prosecution led the evidence of Paul William Harris who gave evidence, and produced a certificate of competence, that he was authorised to use speed measuring equipment.[3] Mr Harris said that he had been operating the camera full-time for five years.[4] Mr Harris gave evidence regarding testing and setting up a speed camera, and produced a photograph that the camera had taken of Mr Hirwa's vehicle and the speed at which it was travelling. The prosecution also produced a calibration certificate for the relevant camera.
[3] Trial ts 5.
[4] Trial ts 15.
Mr Hirwa cross examined Mr Harris. He also gave evidence. Mr Hirwa said, in evidence‑in‑chief, that he measured the distance between the speed signs and where Mr Harris said his camera was set up and that the distance was 1,000 m, not 1,500 m as Mr Harris had said. Mr Hirwa also said that, from his research, the yellow square appearing on the photograph should be fully on the front or rear of the car, not on the side, or the photograph is not valid. He was cross‑examined about his knowledge of what speed he was doing.
At the conclusion of the evidence, and before giving reasons, the magistrate asked Mr Hirwa if he had any final comments. The reply was, 'I don't think I have any final comments apart from the documentation I requested'.[5]
[5] Trial ts 47.
His Honour then gave oral reasons. First, his Honour set out what was in issue, that Mr Hirwa admitted he was the driver of the car but said that he was travelling at or under the posted speed limit.
His Honour found that Mr Harris was an authorised operator of the speed measuring and recording equipment on which the prosecution relied and that it was a gazetted device. His Honour then briefly summarised the evidence and the four matters which might displace the prima facie case established by the prosecution, relying on s 117 of the Road Traffic (Administration) Act.
First, his Honour found that the distance between the speed sign and the camera (whether it was 1,000 m or 1,500 m) made no difference to the speed reading obtained by the camera. Second, he clearly accepted the evidence of Mr Harris that it was acceptable procedure to do the zero velocity testing at the range in Northam, before and then at the end of the deployment. Third, he accepted that the camera was in proper working order throughout the deployment. Fourth, he did not accept Mr Hirwa's contention, in the absence of any evidence of material to support it, that the photograph was invalid because the yellow square on the photograph contained part of the side of the vehicle. Finally, his Honour did not accept Mr Hirwa's evidence that he was not speeding, finding that Mr Hirwa simply did not know what speed he was travelling at.[6] His Honour gave reasons for each finding.
[6] Trial ts 47 ‑ 51.
The contention that the magistrate failed to give proper reasons is not reasonably arguable.
The second limb of ground 1 refers to a witness summons to produce a record or thing.
The matter was first raised in the Magistrates Court on 16 January 2020, when Mr Hirwa referred to serving a summons on the witness, Mr Harris (the operator of the speed camera). He was then told that the police did not hold the manufacturer's documentation and he would need to summons the manufacturer. The prosecution notice had been set down for trial, but the trial was adjourned.
The matter returned before the court on 7 February 2020, when Mr Hirwa was again told that the documents were not held by the police and he would need to obtain them from third parties.
On the trial date, 4 June 2020, the prosecutor informed the court that the police had served everything they had property in: 'the deployment logs, the evidence, images, the operator's certificate, the government gazettes, the certificate of calibration, the camera operator's statement, the election of the traffic infringement notice and the Department of Transport certificate'.[7] This was a repeat of what had been said on 7 February 2020.[8] Other documents were not in their control.
[7] Trial ts 2.
[8] Ts 3 - 4.
The difficulty in this application for leave is that there is no evidence that there were documents, within the control of the prosecuting authority, which were not produced. There is no evidence that Mr Hirwa attempted to obtain the documents he wanted from any third party.
I am not satisfied that the ground has reasonable prospects of success. Leave should be refused.
Grounds 2, 3, and 4
These ground assert that the magistrate:
(1)arrived at a decision without proper evidence to support it;
(2)wrongly considered evidence and based his decision on the evidence of the prosecution witness 'rather than the actual evidence already presented, and mentioned to him'; and
(3)'failed to take in consideration/actions regarding Officer Paul Harris who was working against the procedures and guidelines'.
It was not in dispute that Mr Harris tested the equipment at the beginning of a three day deployment and then at the end of that period, and that the testing was done at the test range in Northam. Mr Harris said in evidence that it was what his training allowed him to do, that he tested before he left for the deployment, tested when he returned, and worked the camera for 10 hours on three consecutive shifts with no problem in that whole time. He said that was in accordance with his training and procedure.[9]
[9] Trial ts 17.
Mr Hirwa questioned Mr Harris about whether the difference in location, climate, and height above sea level affected the use of the camera. But he adduced no evidence about those matters and how they might affect the correctness of the speed measurement.
The magistrate found, in relation to the challenge to Mr Harris' evidence:
there has been no material to suggest that that is not in accordance with Mr Harris' training or an acceptable procedural process that has been put to me or tendered into evidence. Further, Mr Harris said that in addition to that, the camera worked as expected throughout the three‑day deployment without any problems or difficulties or indications that it was not working accurately. And I'm satisfied, having regard to Mr Harris' evidence, that the camera was in proper working order throughout the deployment and that he was not required to do a daily test onsite.
And there is simply no evidence or material before me to contradict Mr Harris and to support the proposition raised by Mr Hirwa that, in the absence of daily onsite testing, the camera results are invalid.[10]
[10] Trial ts 49.
The evidence that the learned magistrate accepted was sufficient to support the decision. Mr Hirwa contends, without any explanation or particulars, that the magistrate erred in accepting the prosecution evidence. But he does not identify any actual evidence which the magistrate should have acted on. Nor does he identify any evidence wrongly admitted.
I am not positively satisfied that the grounds on which he brings his appeal have a reasonable prospect of success. Leave is refused on grounds 2, 3 and 4.
Ground 5
In his final ground, Mr Hirwa complains that the magistrate 'wrongly stopped evidence being given. Such as technical nature of rider cameras and deployment process'.
I have searched the transcript and found no occasion when Mr Hirwa attempted to adduce evidence, either through the prosecution witness or his own testimony, relating to 'rider cameras'.
Evidence was given by both the prosecution and the defence with regard to the camera deployment. I could find no occasion when the magistrate stopped evidence being given. Mr Hirwa cross‑examined and was permitted to ask further questions of Mr Harris after re‑examination, and to have the witness recalled for further questions after Mr Hirwa had given his evidence.
Without some explanation, which Mr Hirwa has not given, I can give no content to the errors alleged in this ground.
The application for leave to appeal on ground 5 is refused.
Conclusion
Leave to appeal having been refused on all grounds in the notice of appeal, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
21 MAY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HIRWA -v- MUSCARA [2021] WASC 162 (S)
CORAM: ALLANSON J
HEARD: ON THE PAPERS
DELIVERED : 11 AUGUST 2021
PUBLISHED : 11 AUGUST 2021
FILE NO/S: SJA 1046 of 2020
BETWEEN: JEAN STEVE HIRWA
Appellant
AND
RENATO MUSCARA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G A BENN
File Number : JO 9282 of 2019
Catchwords:
Practice and procedure - Costs - Criminal Appeals Act 2004 (WA) s 14(1)(h) - Factors relevant to the exercise of discretion - Where appellant not file submissions on costs
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
The appellant to pay the respondent's costs of the appeal in the amount of $2,295
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Hirwa v Muscara [2021] WASC 162
Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 (S)
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Wilson v McDonald [2009] WASCA 39 (S)
ALLANSON J:
Introduction
On 18 June 2021, the appellant's application for leave to appeal was heard and determined.[11] I made orders refusing leave to appeal on each ground and dismissed the appeal. There was also an order for liberty to apply as to costs.
[11] Hirwa v Muscara [2021] WASC 162.
The respondent subsequently filed submissions in support of an application for his costs of the appeal. The appellant declined to file responsive submissions.
For the reasons set out below, I would award the respondent his costs in the appeal, in the amount of $2,295.
Power to award costs
The appeal is governed by the Criminal Appeals Act 2004 (WA). Under s 14(1)(h) of the Act, the court has the power to make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
The Court of Appeal has previously stated the effect of the Act is to confer upon the court a general and unconstrained discretion in relation to the awarding of costs where there is an appeal from a magistrate.[12] The provision should not be construed as importing a general rule to the effect that costs should ordinarily follow the event.[13]
[12] Wilson v McDonald [2009] WASCA 39 (S) [5], [10] (Martin CJ, Beech AJA agreeing); Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 (S) [5] (Pritchard J).
[13] See Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 547 - 561 (Dawson J, Brennan J concurring), 568 ‑ 569 (McHugh J).
In exercising the discretion, reference is to be made to all relevant circumstances, including any relevant aspect of the public interest.[14]
[14] Wilson v McDonald [10]; Investments (WA) Pty Ltd v City of Swan [5].
The exercise of the discretion
Below are the factors that appear relevant to me in the exercise of the discretion to award costs.
First, the appellant was unsuccessful on their application for leave to appeal on each of the five grounds of appeal. As a result, the respondent has incurred costs in an appeal that was wholly unsuccessful.
Second, as noted in the primary judgment dismissing the appeal, the appellant made several applications in the appeal and sought to engage with the appeal process on his own terms only. This necessarily increased the time in preparing for, and the hearing of, the matter, particularly with regard to the number of preliminary directions hearings.
Third, the appellant was unrepresented in the appeal. As set out in my primary reasons, the appellant was contacted by my chambers several times, advising him that the hearing of the application for leave to appeal would proceed and any adjournment should be sought at the hearing. Mr Hirwa's response to these communications demonstrated that he was aware of the hearing being listed but chose not to attend either in person or by telephone. Following the orders made at the hearing, Mr Hirwa was contacted by my chambers as to the filing of responsive submissions on the costs of the appeal. Mr Hirwa declined to file submissions.
Fourth, the costs proposed by the respondent are set in line with the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA). The respondent's cost schedule has significantly discounted the costs incurred in preparing for the appeal.[15] I accept these discounts are appropriate, noting that the appellant is a litigant in person and his personal circumstances.
[15] Respondent's submissions dated 28 May 2021.
Conclusion
For the factors set out above, I would award the respondent their costs as set out in their schedule, fixed in the amount of $2,295.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
11 AUGUST 2021
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