Hoek v WA Police
[2024] WASC 34
•7 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HOEK -v- WA POLICE [2024] WASC 34
CORAM: FORRESTER J
HEARD: ON THE PAPERS
DELIVERED : 7 MARCH 2024
FILE NO/S: SJA 1050 of 2023
BETWEEN: MICHAEL GERRIT HOEK
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1050 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D SCADDAN
File Number : NG 639 of 2022
Catchwords:
Criminal law - Single judge appeal - Application for leave to appeal against conviction and sentences - Whether magistrate erred in entering judgment of conviction pursuant to s 55 of the Criminal Procedure Act 2004 (WA)
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic (Administration) Act 2008 (WA)
Result:
Extension of time granted
Leave to appeal granted
Appeal allowed
Conviction and sentence set aside
Order as to costs set aside
Matter remitted to Magistrates Court
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Kelly v Fiander [2023] WASC 187
Meads v Meads [2012] ABQB 571
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
Introduction
On 17 April 2023, pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CPA), the appellant was convicted in his absence of an offence that, having been directed by a police officer, he failed to provide personal details in accordance with s 32(4)(a) of the Road Traffic (Administration) Act 2008 (WA) (the charge). He was fined $400 and ordered to pay costs in the sum of $264.30.
On 12 July 2023, the appellant filed an appeal against his conviction and sentence. An extension of time is required.
The respondent has conceded that the appeal should be allowed.
For the reasons which follow, I accept that the respondent's concession was properly made. An extension of time is granted, the appeal is allowed, and the conviction and sentence are set aside. The matter will be remitted to the Magistrates Court before a different magistrate to be heard according to law.
Proceedings in the Magistrates Court
On 17 April 2023, the matter was called on in the Narrogin Magistrates Court.
In addition to being provided the transcript of the lower court proceeding, I have carefully listened to the audio recording of the proceedings. The following exchange took place:[1]
[1] Transcript, Adam Dennis v Michael Gerrit Hoek, Magistrates Court of Western Australia, 17 April 2023, 1 - 2, edited with reference to audio recording of the same proceeding received from Narrogin Magistrates Court.
ORDERLY: Your Honour, the next one is on the H list, Mr Hoek.
CALLED: Michael Hoek please.
HER HONOUR: …Please remain standing. Are you Michael Hoek?
[APPELLANT]: Michael Gerrit (indistinct) yes.
HER HONOUR: I can't hear you. Are you Michael Hoek?
[APPELLANT]: Michael Gerrit Hoek.
HER HONOUR: I cannot hear you. If you are not Michael Hoek, please leave the courtroom (door opening and closing). I cannot hear that person. I have no idea who that person is. Accordingly, I am satisfied there has been no appearance by the accused person.
[PROSECUTOR]: I appreciate your Honour had trouble. I heard him identify as Michael Hoek.
HER HONOUR: Well, I did not hear it.
[PROSECUTOR]: He did - - -
HER HONOUR: Well, I did not hear it, so I don't know why you want to contraindicate me, sir - Sergeant. I did not hear that person. That person did not announce their appearance to the court. I could not hear their announcing their appearance. They have not attended. I do not know who that person is.
The prosecution then applied, and the learned magistrate proceeded, to hear and determine the matter in the absence of the appellant, pursuant to s 55 of the CPA. Her Honour then sentenced the appellant, fining him $400 and ordering that he pay costs.
Grounds of appeal
The appellant's primary contention is that he should not have been convicted in his absence pursuant to s 55 of the CPA because, at the relevant time, he had appeared in the Narrogin Magistrates Court and identified himself by the name contained in the prosecution notice.
The remaining contentions contained within the document titled 'Grounds of Appeal', filed by the appellant on 12 July 2023, are largely nonsensical and reflect an adherence to what is commonly known as 'pseudolaw'.[2] Having regard to my decision in relation to the appellant's primary contention, it is not necessary to address the appellant's remaining contentions.
[2] His Hon Judge Glen Cash QC 'A Kind of Magic: The Origins and Culture of Pseudolaw', speech given at the Queensland Magistrates' State Conference, Brisbane (QDC) [2022] Qld J Schol 16. See also, Meads v Meads [2012] ABQB 571.
Statutory framework
Criminal Appeals Act 2004 (WA)
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused of a charge is a decision which may be appealed.[3]
[3] Criminal Appeals Act 2004 (WA) s 6(c) and s 7(1) (CA Act).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[4] meaning that the ground is required to have a rational and logical prospect of succeeding.[5] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[6]
[4] CA Act s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[7]
Criminal Procedure Act 2004 (WA)
[7] CA Act s 14(2).
Section 55 of the CPA allows a court of summary jurisdiction to hear and determine a charge for a simple offence in the absence of the accused. The section only applies if:
(a)the accused does not appear on a court date, and the prosecutor does;
(b)the accused has not pleaded guilty to the charge; and
(c)the court is satisfied that the accused has been properly served with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date.
After the appellant was convicted and sentenced, the decision in Kelly v Fiander[8] was handed down. In this decision, Vandongen J (as his Honour then was) stated that for the purposes of s 55 of the CPA, one means through which an accused may 'appear' is when they are personally before the court at the time the court is dealing with the charges against them.[9]
[8] Kelly v Fiander [2023] WASC 187.
[9] Kelly v Fiander [59].
In relation to those cases in which there is doubt as to the identity of the person purporting to appear, his Honour stated:[10]
The issue for the court to decide is whether it is sufficiently satisfied that the person who is before them is the accused who is named in the prosecution notice and that they are the person who is alleged to have committed the specified charge or charges.
…
If a court is unsure about whether a person who is before the court is the person who was alleged in the prosecution notice to have committed the offences charged, it would be open to a court, in the exercise of the implied power to regulate its own procedure, to adopt another reasonable means, appropriately adapted to the circumstances of the case, to decide that question.
[10] Kelly v Fiander [60], [65].
Disposition
In the present case, the transcript reflects that the appellant identified himself by his full name when the matter was called, although it was initially difficult to hear, even on listening to the recording.
The learned magistrate indicated that she was unable to hear the appellant, and asked him again for his name, whereupon he repeated it, in a louder voice. However, the learned magistrate again indicated that she was unable to hear the appellant.
From the audio recording, it is apparent that there was a difference between the way in which the appellant's name was pronounced when the matter was called, the way in which his name was pronounced by the learned Magistrate, and the way in which the appellant pronounced his own name. While it is not possible on the evidence to make a finding as to what the appellant was attempting to do, it cannot be excluded that he was attempting to make clear that he was the relevant accused.
Instead of taking alternative steps to ascertain whether the appellant was the person named in the prosecution notice, the learned magistrate told the appellant that, if he was not Michael Hoek, he should leave the courtroom. It appears that, instead of insisting that he was that person, the appellant then left the court.
The prosecutor did, to his credit, inform her Honour that he had heard the appellant identify himself as Michael Hoek. However, the learned magistrate reiterated that she had not heard the person announce their appearance and was therefore satisfied the accused had not appeared. Her Honour then granted the application on the part of the prosecutor to hear and determine the matter pursuant to s 55 of the CPA.
The respondent conceded that the learned magistrate erred in doing so. In my view, that concession is properly made.
On the basis of the material before me, there can be no doubt that the appellant did 'appear' before the learned magistrate, until he was excluded from the court. The fact that he subsequently left the court is understandable in light of the manner in which the matter then proceeded. That does not alter the fact that he appeared.
If the learned magistrate was unable to hear the appellant, it was incumbent on her Honour to take reasonable steps to ascertain what he was saying. Her Honour could have asked the appellant again to speak up or to write down or otherwise acknowledge his name. This was particularly so in light of the fact that the appellant was the only person who had presented when the matter was called.
Further, while it is necessary to be conscious of the fact that there may well be events of which the court is not aware which place the manner in which the learned magistrate dealt with this matter into context, it is difficult to understand why her Honour dealt with the intervention by the prosecutor in the manner she did.
It is also necessary to observe that there was no obligation on the prosecutor to make the application for the matter to be heard and determined pursuant to s 55 of the CPA. In the circumstances, a more appropriate approach on the part of the prosecutor would have been to seek an adjournment of the matter to see if the issue could be resolved. However, I am also conscious that there may be factors of which the court is not aware which impacted on the prosecutor's decision in this case.
Ultimately, however, there was no proper basis for a finding that the appellant did not 'appear' in this matter, and, accordingly, s 55 of the CPA could not apply. I am satisfied that there has been a miscarriage of justice. Accordingly, the ground of appeal has been made out.
Proviso
In the absence of a plea of guilty, the appellant was entitled to have the charge against him proved beyond reasonable doubt. As no evidence was adduced at first instance, it is not possible for the court to find that no substantial miscarriage of justice has occurred. Accordingly, there is no room for the application of s 14(2) of the CA Act.
Application for extension of time
The appeal was filed 58 days out of time. The affidavit filed in support of the application for an extension of time indicates that the appellant first made an application in the Magistrates Court to set aside the decision made in his absence. The appellant claims that the Registry rejected his attempt to file the application.
While the delay is not well explained, it is not of such a length that an otherwise meritorious appeal should fail. The respondent has not identified any prejudice which would arise as a result of the delay. Accordingly, I grant an extension of time in which to appeal.
Provisional Decision
On 15 December 2023, the respondent filed brief written submissions in advance of the appellant being required to file his written submissions in this matter. The respondent conceded that the appeal should be allowed on the basis that the learned magistrate had wrongly heard and dealt with the matter pursuant to s 55 of the CPA.
On that basis, I determined it was appropriate to make a decision on the basis of the documents lodged and without requiring a hearing of the appeal, pursuant to r 60(1)(c) of the Criminal Procedure Rules 2005 (WA) (CPR).
Pursuant to r 63 of the CPR, the provisional decision was served on the parties. As no Form 25 was lodged within 5 working days of service, the decision has now become final.
The respondent's willingness to proceed by indicating its position on the appeal in advance of the appellant having filed his written submissions facilitated the efficient disposition of this matter and is to be commended.
Order
1.An extension of time in which to appeal is granted.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The conviction and sentences imposed by the learned magistrate on 17 April 2023 are set aside.
5.The order as to costs in the sum of $264.30 is set aside.
6.The matter is remitted to the Narrogin Magistrates Court, differently constituted, to be heard and determined according to law.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
7 MARCH 2024
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