Hodder v Public Transport Authority
[2010] WASCA 1
•15 JANUARY 2010
HODDER -v- PUBLIC TRANSPORT AUTHORITY [2010] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASCA 1 | |
| THE COURT OF APPEAL (WA) | 15/01/2010 | ||
| Case No: | CACR:137/2009 | 22 DECEMBER 2009 | |
| Coram: | WHEELER JA PULLIN JA NEWNES JA | 22/12/09 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES LESLIE HODDER PUBLIC TRANSPORT AUTHORITY |
Catchwords: | Turns on own facts |
Legislation: | Public Transport Authority Regulations 2003 (WA), reg 13 |
Case References: | Thompson v His Honour Judge Byrne [1998] 2 VR 274 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HODDER -v- PUBLIC TRANSPORT AUTHORITY [2010] WASCA 1 CORAM : WHEELER JA
- PULLIN JA
NEWNES JA
- The appellant
AND
PUBLIC TRANSPORT AUTHORITY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : HODDER -v- PUBLIC TRANSPORT AUTHORITY [2009] WASC 293
File No : SJA 1003 of 2009
(Page 2)
Catchwords:
Turns on own facts
Legislation:
Public Transport Authority Regulations 2003 (WA), reg 13
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
The appellant : In person
Respondent : Ms L A Eddy
Solicitors:
The appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Thompson v His Honour Judge Byrne [1998] 2 VR 274
(Page 3)
1 WHEELER JA: This is an application for leave to appeal against an order of McKechnie J dismissing an appeal against conviction in relation to one count of causing a nuisance to persons on a facility, contrary to reg 13 of the Public Transport AuthorityRegulations 2003 (WA).
2 On 2 January 2009, the appellant was convicted after trial before Magistrate Roberts of having caused a nuisance at Midland train station and was fined $100. On 29 January 2009, the appellant filed a notice of appeal against that decision, on the ground that the evidence was unsafe and unsatisfactory as video evidence of the alleged incident was refused by Transperth when requested by the appellant. The ground asserted that this evidence would have cleared the appellant of any guilt. On 16 September 2009, McKechnie J granted the appellant leave to appeal but dismissed the appeal.
3 Three witnesses gave evidence at the appellant's trial: Ms Athanasiou, a Transit officer, Mr Vendevelde, her partner, and Mr Fimmell, a ticketing assistant. Ms Athanasiou's evidence was that, on 6 January 2008, she was on patrol at Midland train station when she heard the appellant swear in a loud voice. She informed him that if he continued, he would have to leave and he responded that she was a "fucking bitch". She radioed her partner. When her partner arrived, he asked the appellant for his personal details which he provided. At the time of the offence, the appellant and Ms Athanasiou were standing near the entrance to the office and, according to her evidence, there were approximately seven to 10 elderly people in the area, as well as the ticketing assistant, Mr Fimmell.
4 Mr Vendevelde's evidence was that in response to a radio call, he attended the front of the Midland train station where he observed Ms Athanasiou speaking with the appellant in the vicinity of approximately seven to 10 people. Ms Athanasiou informed him that the appellant had sworn at her and he asked the appellant for his personal details. The appellant attempted to walk off saying, "You know who I am", at which point Mr Vendevelde informed him that he could be arrested for failing to provide his details. The appellant then sat down and provided his details.
5 Mr Fimmell gave evidence that he observed the appellant approximately three to five metres from him, swearing at Ms Athanasiou, in the vicinity of several senior elderly people.
(Page 4)
6 The appellant gave evidence. He stated that in fact there were no other persons in the area at the time of the incident and that Mr Fimmell was not standing nearby, but sitting in his office. He asserted that security footage of the incidents would show this. Security footage was unavailable, having been destroyed seven days after the date it was filmed. The evidence was that such destruction was standard procedure where the tape had not been requested within that time frame.
7 The appellant now seeks to appeal on four grounds. The grounds in the appellant's case are: (1) the decision by McKechnie J at a single judge hearing to dismiss the appeal was a miscarriage of fair justice; (2) as the law clearly states, a person charged with an offence must be proved guilty beyond reasonable doubt; (3) video cameras attached to the Midland rail and bus terminus were all deleted or destroyed before the hearing (I take that to be a reference to the film footage, not to the cameras themselves); and (4) the magistrate at trial did not order witnesses out of court before or during the hearing, constituting an unfair and injustice trial.
8 Grounds 1 and 2 are not particularised and are not proper grounds.
9 Ground 4, in relation to witnesses out of court, must fail. This ground was not raised before McKechnie J. His Honour did not err in failing to deal with an issue not raised before him. Further, an appeal on the grounds of a failure to order witnesses out of court is hopeless in the absence of any request for such an order: see Thompson v His Honour Judge Byrne [1998] 2 VR 274 at 283. No such request appears on the transcript. In any event, this ground is not supported by any evidence that witnesses were in court. A reading of the transcript before his Honour Magistrate Roberts reveals nothing to suggest that witnesses were in court prior to giving evidence. There is one exchange between the appellant and Mr Vendevelde that may indicate that at least some witnesses were not in fact present in court prior to giving evidence. At transcript page 10 this appears: Question:
I don't understand that. You're saying she was at the bus stop on her own and you went down to her.
- Answer:
Yes, that's right.
Question:
That's not what she said before.
(Page 5)
- Answer:
I don't know what she said. (emphasis supplied)
11 PULLIN JA: I agree.
12 NEWNES JA: I also agree.
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