Hoek v WA Police - [2024] WASC 34

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 34
Decision Date: 7 MARCH 2024

CaseChat Overview and Summary

The case of Hoek v State of Western Australia Police involves an appeal by the defendant against his conviction and sentence. The appellant was convicted in the Magistrates Court of Western Australia of multiple charges including dangerous driving causing death, dangerous driving causing bodily harm, and driving without due care and attention. The appeal is against the conviction and sentences imposed by the magistrate. The appeal is made under section 55 of the Criminal Procedure Act 2004 (WA) and concerns whether the magistrate erred in entering judgment of conviction.

The primary legal issue before the court was whether the magistrate erred in entering judgment of conviction under section 55 of the Criminal Procedure Act 2004 (WA). This section allows a magistrate to enter a judgment of conviction if the defendant is absent from court and has been legally represented. The court had to determine whether the magistrate correctly followed the legal requirements set out in the statute. Specifically, the court examined whether the magistrate was satisfied that the defendant had been legally represented and whether the defendant had been given an opportunity to be present in court and make submissions.

The court found that the magistrate had correctly followed the statutory requirements. The defendant had been legally represented by counsel and had been informed of the charges and the proceedings. The court held that the magistrate had not erred in entering judgment of conviction. The appeal was dismissed. The court found that the magistrate had properly exercised their discretion under the statute and that there was no miscarriage of justice that would warrant allowing the appeal. The reasoning of the court was that the statutory provisions were clear and that the magistrate had adhered to them.

No further orders were made by the court as the appeal was dismissed. The conviction and sentences imposed by the magistrate remained in effect. The court did not consider it necessary to make any additional orders in light of the dismissal of the appeal. The defendant's appeal against his conviction and sentences was therefore unsuccessful.

Orders