Ireland v Watson
[2018] WASCA 57
•3 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: IRELAND -v- WATSON [2018] WASCA 57
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 21 FEBRUARY 2018
DELIVERED : 3 MAY 2018
FILE NO/S: CACR 180 of 2017
BETWEEN: MARK GRAEME IRELAND
Appellant
AND
GEOFF WATSON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MARTINO J
Citation: IRELAND -v- WATSON [2017] WASC 242
File Number : SJA 1028 of 2017
Catchwords:
Criminal law - Appeal against conviction - Offence of contravening a red arrow signal by proceeding beyond the stop line - Whether appellant convicted twice for same offence - Whether Magistrates Court did not comply with Criminal Procedure Act 2004 (WA) - Whether infringement notice and/or prosecution notice invalid - Turns on own facts
Legislation:
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Leave to appeal is refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Ireland v Watson [2017] WASC 242
Krysiak v Carruthers [2012] WASC 472
O'Connell v State of Western Australia [2012] WASCA 96
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231
Silbert v The Director of Public Prosecutions (WA) (2004) 217 CLR 181
JUDGMENT OF THE COURT:
On 26 October 2016 the appellant appeared in the Magistrate's Court and pleaded guilty to a charge of contravening a red arrow signal contrary to r 40(2)(a) of the Road Traffic Code 2000 (WA). A conviction was recorded and a fine of $150 imposed. He was ordered to pay costs of $169.10.
The appellant applied to a single judge of the Supreme Court for leave to appeal against both his conviction and sentence, pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA). That appeal was brought out of time. On 17 August 2017 Martino J refused an extension of time and dismissed the appeal.[1] The appellant now seeks leave to appeal against the decision of Martino J.
[1] Ireland v Watson [2017] WASC 242.
At all stages the appellant has represented himself.
A person whose application to extend time to commence an appeal under pt 2 div 2 is refused by a single judge may appeal to this court against the decision.[2] Leave of the court is required for each ground of appeal. The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has reasonable prospects of succeeding. Unless the court gives leave to appeal on at least one ground the appeal is taken to have been dismissed.[3]
[2] Criminal Appeals Act 2004 (WA), s 16(1).
[3] Criminal Appeals Act, ss 9 and 18.
The appeal notice contains seven grounds of appeal. For the reasons that follow, none of those grounds has a reasonable prospect of succeeding. Leave must be refused and the appeal dismissed.
Factual background
The factual circumstances relevant to the appellant's conviction were summarised by Martino J in his reasons. The accuracy of that summary is not disputed and I have relied on it.
On 20 November 2014 a traffic infringement notice addressed to the appellant was issued under s 102B of the Road Traffic Act 1974 (WA) alleging that the offence of contravening a red arrow signal by proceeding beyond the stop line had occurred on 12 November 2014 at Welshpool and that the appellant was the driver.
On 7 January 2015 a final demand notice addressed to the appellant was issued under s 14(1) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINEA).
On 23 February 2015 an order to pay or elect addressed to the appellant was issued under s 17 of the FPINEA, informing him that the infringement notice had been registered and that he could pay the fine or dispute the infringement notice in court.
On 8 April 2015 a notice of intention to enforce addressed to the appellant was issued under s 18 of the FPINEA, informing him that, if the infringement notice remained unpaid 28 days after the notice, a licence suspension order or an enforcement warrant may issue.
On 9 May 2015 a confirmation of licence suspension order addressed to the appellant was issued under s 19 of the FPINEA, informing him that a licence suspension order had been imposed on his driver's licence.
At some time the appellant made an election under s 21 of the FPINEA to have the charge for the alleged offence heard and determined by a court.
On 25 May 2016 the Registrar of the Fines Enforcement Registry wrote to the appellant informing him that the suspension of his licence had been cancelled on 24 May 2016.
On 29 July 2016 the appellant appeared before his Honour Magistrate Randazzo on Prosecution Notice PE 29351/2016. The appellant informed his Honour that he wished to make a plea of no jurisdiction because the charge had already been dealt with under the FPINEA. His Honour read out the charge and the appellant entered a plea of no jurisdiction and a plea that he had a defence under s 17 of the Criminal Code (WA). His Honour listed the matter for a hearing of those pleas on 26 October 2016 and made directions for the filing and service of written submissions. The appellant was to file and serve written submissions by 5 October 2016 and the prosecution was to file and serve written submissions by 12 October 2016.
The prosecution came on for hearing before her Honour Deputy Chief Magistrate Woods on 26 October 2016 and the appellant made oral submissions. He referred to s 7 of the FPINEA, which provides that the Registrar of the Fines Enforcement Registry is an officer of the Magistrates Court and the functions of the Registrar are to be taken to be functions of that Court and that any notice, order or warrant issued by the Registrar is to be taken to be a notice, order or warrant issued by the Court. He also referred to s 23, which provides that the making of an order to pay or elect does not constitute a conviction of the alleged offender for the alleged offence, except as provided in s 25 and s 26.
The appellant then referred to s 25, which provides that if the alleged offence is constituted by failure to do an act or thing, s 71(1) or s 71(2) (as the case requires) of the Interpretation Act 1984 (WA) or any provision of another written law substantially to the like effect operates as if payment of the whole or part of the modified penalty and the associated enforcement fees before an order to pay or elect is made or the making of an order to pay or elect were, for the purposes of that provision, a conviction of the alleged offender for the alleged offence on the day the payment or order was made.
The appellant then referred to s 20 which provides that if, after a licence suspension order is made, the alleged offender makes an election under s 21, the licence suspension order is to be taken as having been cancelled. He submitted that the licence suspension order was cancelled by his election, but the conviction was not and so the conviction still stood.
Her Honour informed the appellant that as a matter of law the conviction did not still stand and that the matter was still outstanding. She enquired whether the appellant wished to enter a plea of guilty. He said that on his previous appearance he had entered a plea of no jurisdiction and a plea that he had a defence under s 17 of the Criminal Code on the basis that he had already been convicted. Her Honour informed him that he had not been convicted and that she would enter a plea of not guilty and the matter could go to trial, but that there would be costs associated with that.
The appellant said that even if he pleaded guilty he would have to take the matter to an appeals court because he believed that it was wrong. He said that he was driving that day and he went through a red light. He said that, though he intended to appeal, he would plead guilty. Her Honour then imposed a fine of $150 and ordered the appellant to pay court costs of $169.10.
Appeal to single judge
The appeal to Martino J was brought on five grounds. Grounds 1 and 2 alleged that the Magistrates Court failed to comply with the requirements of the Criminal Procedure Act 2004 (WA) in regard to taking and dealing with the plea. Ground 3 alleged that when issued with an order to pay or elect, the appellant was convicted of an offence and could not, therefore, be again convicted in the later proceedings in the Magistrates Court. Ground 4 alleged that the appellant was pressured into entering a plea of guilty. Ground 5 alleged that the magistrate made an error in imposing the fine. The appellant also raised some additional arguments in his written and oral submissions that were not the subject of a ground of appeal.
Martino J concluded that none of the grounds, or any of the matters raised in submissions, had reasonable prospects of success. In regard to grounds 1 and 2 his Honour concluded that the proceedings in the Magistrates Court were similar to those considered in Smolarek v Roper [2009] WASCA 124 and that they complied with the relevant requirements of the Criminal Procedure Act. In regard to ground 3 His Honour concluded that the order to pay or elect was only a conviction for the limited purposes of s 16 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and that it was not a conviction for other purposes and that it did not provide a defence to the charge. In regard to ground 4 his Honour concluded that the appellant decided voluntarily and without being pressured to enter a plea of guilty after his pleas as to jurisdiction and under s 17 of the Criminal Code (WA) had been rejected. In regard to ground 5 his Honour concluded that the penalty imposed was open to the magistrate under the relevant statutory provisions.
Grounds of appeal
The grounds of appeal do not set out with clarity or precision the issues that the appellant seeks to raise. Some of the grounds are in similar terms to those raised before the primary judge. Some raise new issues. They generally assert that Martino J erred by failing to accept the arguments of the appellant. Taking into account the appellant's written and oral submissions, the contentions raised by the grounds of appeal can be summarised as follows:
1.that the Magistrates Court did not comply with the procedure for dealing with the plea of 'no jurisdiction' because there was a failure to try the issue raised by the plea, as required by s 127(2) of the Criminal Procedure Act (ground 1);
2.that the Magistrates Court did not comply with the procedure for dealing with a guilty plea because the prosecutor did not state aloud the material facts of the offence, as required by s 129(3) of the Criminal Procedure Act (ground 2);
3.that the issuing of an infringement notice was invalid because it was contrary to the appellant's right to be presumed innocent (ground 3) and that the FPINEA is invalid for the same reason (ground 7);
4.that the fine imposed by the magistrate infringed the appellant's 'common law right' not to be punished twice for the same offence, because he had already been punished by having his licence suspended (ground 4);
5.that the notices issued to the appellant were invalid because they were judicial acts performed by a non‑judicial officer and were therefore in breach of ch III of the Commonwealth Constitution (ground 5); and
6.that the prosecution notice was a nullity because it was 'backdated' (ground 6).
Grounds 1 and 2 - relevant provisions
A person charged with an offence must, when required to enter a plea, do so in accordance with s 126 of the Criminal Procedure Act, which provides:
(1)If under this Act an accused may or must plead to a charge, the accused may -
(a)plead that the court does not have jurisdiction to deal with the accused or the charge;
(b)plead that the offence charged is not an offence under any of the provisions referred to in the Criminal Code Act 1913 section 4;
(c)plead that the accused has a defence to the charge under The Criminal Code section 17;
(d)plead not guilty of the charge on account of unsoundness of mind under The Criminal Code section 27;
(e)plead not guilty to the charge;
(f)plead guilty to the charge or, with the prosecutor's consent, to some other offence of which the accused might be convicted instead of the charge.
(2)An accused may enter a plea under subsection (1)(b) to a charge at any time before a judgment on the charge is entered against the accused under section 147.
(3)For the purposes of entering a plea under subsection (1)(c), it is sufficient for the accused to describe the offence of which the accused has been convicted or acquitted in any way in which it is commonly known.
(4)Unless the accused pleads guilty, 2 or more of the pleas in subsection (1) may be made together.
(5)If an accused, on being required by a court to plead to a charge -
(a)enters a plea other than one permitted by subsection (1); or
(b)does not plead in accordance with subsection (4); or
(c)does not plead,
the court must enter a plea of not guilty on behalf of the accused, unless -
(d)the court, under section 99(4) or (5), enters a plea on behalf of the accused; or
(e)the accused is not mentally fit to stand trial under the Criminal Law (Mentally Impaired Accused) Act 1996.
(6)A plea entered by a court under this Act on behalf of an accused has the same effect as if it had been entered by the accused.
Where the accused enters a plea that the court has no jurisdiction or that there is a defence under s 17 of the Criminal Code, as the appellant did here, the procedure to be followed is that set out by s 127 of the Criminal Procedure Act, which provides:
(1)If an accused enters a plea under section 126(1)(b) to a charge, the court may amend the charge.
(2)If an accused enters a plea under section 126(1)(a), (b) or (c) to a charge, the court must try any issue raised by the plea and, if the court is a superior court -
(a)may ascertain any fact by the verdict of a jury if it thinks fit;
(b)may refer a question of law to the Court of Appeal in accordance with the Criminal Appeals Act 2004 section 46.
(3)If under subsection (2)(b) a superior court refers a question of law to the Court of Appeal, it must adjourn the prosecution until the Court of Appeal gives its judgment.
(4)If a court rejects a plea entered under section 126(1)(a), (b) or (c) to a charge, the court must require the accused to enter a different plea to the charge and -
(a)if any issue raised by the rejected plea was decided in a superior court by a jury, the judge may order any issue raised by the new plea to be tried by that same jury or by another jury; and
(b)if the judge orders that same jury to try the new issue, the oaths or affirmations already taken or made by the jurors are to be taken to extend to the new issue and fresh ones are not required.
(5)Section 126(5) and (6), with any necessary changes, apply if an accused does not plead as required under subsection (4).
Section 17 of the Criminal Code relevantly provides:
(1)It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged.
Where a plea of guilty is entered the procedure to be followed is that set out in s 129 of the Criminal Procedure Act, which provides as follows:
(1)This section applies if an accused pleads guilty in a court but does not apply if the plea is made in a court of summary jurisdiction to a charge that is to be dealt with on indictment.
(2) Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless -
(a)the accused is represented by a legal practitioner; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
(3)Before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.
(4)If under this Act the accused has been served with one or more written statements of the material facts, the facts stated aloud must be those in the written statement that was last served.
(5)This section does not affect a court's power to decide the material facts of an offence on the basis of such information as it thinks fit.
Grounds 1 and 2 - the merits
In effect the appellant argues that his pleas as to jurisdiction and under s 17 of the Criminal Code were not the subject of a trial as required by the Criminal Procedure Act. He submits that the requirement in s127(2) of the Criminal Procedure Act to 'try any issue raised by the plea' was not complied with.
The Criminal Procedure Act does not specify the nature and content of the trial of any issue raised by pleas such as those made by the appellant. The phrase 'try any issue' must be given its ordinary meaning. To try an issue is to examine and decide it judicially. What is required in order to try an issue will vary depending on the nature of the issue. It will not necessarily require the calling of evidence. It may be sufficient to give the parties an opportunity to make submissions.[4]
[4] See Smolarek v Roper.
What occurred here was that the matter was set down for the pleas to be tried. On that hearing date the appellant made a brief oral submission and the magistrate told the appellant that his submission was without merit. The appellant was then required to enter a plea of guilty or not guilty to the charge.
The issues raised by the appellant in the Magistrates Court were not complex and did not require lengthy exposition or the calling of evidence. He was given an opportunity to make submissions and availed himself of that opportunity. The magistrate made a judicial determination as to the issue.
It is true that the magistrate gave short shrift to the appellant's arguments. Sometimes that is all that is required or necessary. The Magistrates Court is a court of summary jurisdiction and must deal with many matters as efficiently and fairly as possible. Taking up valuable time to deal at length and in detail with a plainly spurious argument can result in delay for other parties appearing before the Magistrates Court.
In the circumstances of this case the issues raised by the appellant's pleas were tried, as required by s 127 of the Criminal Procedure Act. Even if there was a failure, which I do not accept, no miscarriage of justice resulted because the arguments raised by the appellant were substantially the same as those raised in grounds 3, 4, 6 and 7 of the present appeal and are without merit for the reasons that follow.
As to the argument that there was a failure to comply with s 129 of the Criminal Procedure Act, it is true that no statement of facts was read aloud by the prosecutor, but this is hardly surprising in the case of offences of this type. All of the material facts of the offence were contained within the charge. The appellant does not suggest otherwise. There were no other material facts to be read out. As Martino J pointed out, the Criminal Procedure Act does not disclose any legislative intent that a failure to comply with s 129(3) results in the invalidity of any sentence that follows.[5] There is no merit in this claim by the appellant.
Grounds 3, 4, 6 and 7 - relevant provisions of the Fines, Penalties and Infringement Notices Enforcement Act
[5] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
The appellant was charged with contravening a red arrow signal contrary to r 40 of the Road Traffic Code.
In November 2014,[6] s 102 of the Road Traffic Act relevantly provided that where a member of the Police Force had reason to believe that a person had committed an offence against the Road Traffic Act which was prescribed for the purposes of that section, the member of the Police Force may serve on that person an infringement notice. Section 102B provided that where the belief was based on photographic evidence, as was the case here, and certain other conditions (which are not relevant for present purposes) were satisfied, a traffic infringement notice for the alleged offence may be addressed to the responsible person and may be served on him or her personally or by post.[7] Section 102(1) required that the notice inform the person that, if he or she does not wish to be prosecuted for the alleged offence in a court, they may pay a prescribed penalty within the time specified in the notice. An offence against r 40 of the Road Traffic Code was prescribed for the purposes of s 102 of the Road Traffic Act.[8] A person who received an infringement notice and failed to pay the prescribed penalty within the time specified in the notice was taken to have declined to be dealt with under the Road Traffic Act.[9]
[6] The offence occurred on 12 November 2014 and the infringement notice was issued on 20 November 2014. The Road Traffic (Administration) Act 2008 (WA), which now deals with infringements notices, came into operation on 27 April 2015. See, Government Gazette, 17 April 2015, p 1371.
[7] Responsible person was defined in s 5A of the Road Traffic Act and that definition included the license holder in respect of the vehicle license.
[8] Road Traffic (Infringements) Regulations 1975 (WA), reg 3(4)(a); Road Traffic Code, r 9(4) read with r 40(2).
[9] Road Traffic Act, s 102(4).
The FPINEA applies to 'prescribed enactments'.[10] The Regulations to the FPINEA provided that the Road Traffic Act is a prescribed enactment.[11] Section 14 of the FPINEA provides that if an infringement notice has been issued under a prescribed enactment, it has not been withdrawn, the modified penalty required by the notice has not been paid and the time for paying has expired, then the prosecuting authority may issue a final demand. A final demand must state that if the person does not either pay the modified penalty and any enforcement fees or make an election to have the matter dealt with by a court within 28 days, the infringement notice may be registered with the Fines Enforcement Registry after which a licence suspension order may be made and further enforcement fees may be imposed. Section 15 provides that failing compliance with a final demand the infringement notice can be registered. Section 16 sets out the procedure for registration, including the lodging of an enforcement certificate.
[10] Fines, Penalties and Infringement Notices Enforcement Act, s 12. Unless otherwise stated, the provisions of the FPINEA referred to have at all material times been in identical terms to their current form.
[11] Fines, Penalties and Infringement Notices Enforcement Regulations 1994 (WA), reg 3 and sch 1.
Once an infringement notice is registered under the s 16 of the FPINEA the Registrar must issue an order to pay or elect to the alleged offender under s 17. This is an order that the person must either make an election to have the matter dealt with in a court or pay the modified penalty and any enforcement costs within 28 days. The order must state that failure to comply may result in licence suspension.
If the alleged offender fails to comply with an order to pay or elect the Registrar may issue a notice of intention to enforce pursuant to s 18 of the FPINEA. The notice must state that if the alleged offender does not either pay the modified penalty and enforcement fees or make an election within the time specified in the notice, a licence suspension order may be made. The notice must also explain that if a licence suspension order is made it will not be cancelled until the fine and fees are paid.
If the alleged offender fails to comply with the notice of intention to enforce, then s 19 of the FPINEA provides that the Registrar may make a licence suspension order in respect of that person. A licence suspension order may, amongst other things, disqualify the alleged offender from holding or obtaining a driver's licence. A notice confirming the order must be sent to the alleged offender.
Section 20 of the FPINEA provides that if the alleged offender either pays the fine and fees or makes an election after a licence suspension order is made, the order is taken to have been cancelled at the time of payment or the time the election is made.
If an election is made by the alleged offender, s 21(4) provides that the Registrar must lodge a prosecution notice with a court of summary jurisdiction and cause copies of that notice to be served on the person and the prosecuting authority. When a prosecution notice is lodged with the court the prosecution is taken to have been commenced on the day when the enforcement certificate was lodged under s 16.[12]
[12] Fines, Penalties and Infringement Notices Enforcement Act, s 21(5)(b).
Section 23 of the FPINEA provides that:
The making of an order to pay or elect does not constitute a conviction of the alleged offender for the alleged offence, except as provided in sections 25 and 26.
Section 25 provides that:
If the alleged offence to which an infringement notice relates is constituted by failure to do an act or thing, section 71(1) or (2) (as the case requires) of the Interpretation Act 1984, or any provision of another written law substantially to the like effect, operates as if -
(a)payment under this Part of the whole or a part of the modified penalty and the associated enforcement fees before an order to pay or elect is made; or
(b)the making of an order to pay or elect,
were, for the purposes of that provision, a conviction of the alleged offender for the alleged offence and the conviction were on the day on which the payment was made or the order to pay or elect was made, as the case may be.
As at 23 February 2015, which is when the order to pay or elect was issued, section 26 of the FPINEA provided that:
(1)This section applies if section 102 of the Road Traffic Act 1974 is a prescribed enactment.
(2)If the alleged offence is under the Road Traffic Act 1974 -
(a)the payment of the whole or a part of the modified penalty and associated enforcement fees in relation to a traffic infringement notice before an order to pay or elect is made in respect of the notice; or
(b)the making of an order to pay or elect in respect of an infringement notice,
constitutes a conviction of the alleged offender for the alleged offence for the purposes of section 51(1)(a) of that Act and, for the purposes of Part VIA of that Act, the matter is to be treated as having been dealt with by infringement notice when the payment or order is made.
(3)Subsection (2)(a) applies even if the payment is made by means of a dishonoured payment.
(4)In this section traffic infringement notice means a traffic infringement notice issued under section 102 of the Road Traffic Act 1974.
Section 25 is irrelevant in the circumstances of this case. It relates to continuing offences involving the failure to do something that a person is required to do. In that event, s 71 of the Interpretation Act, which allows for the obligation to comply to continue after conviction, would apply. Pursuant to s 71 if a person is convicted of an offence of this nature they will commit a further offence for each further day of non-compliance after the date of conviction. Section 25 ensures that a person dealt with by way of an infringement notice has the same liability in respect of a continuing obligation as a person convicted by a court. Section 25 does not apply here because the alleged offence was not constituted by a failure to do an act or thing, but by doing an act, namely proceeding in contravention of a red arrow signal. In any event, s 25 only deems there to have been a conviction for the limited purpose provided for in that section.
At the relevant time, s 26 provided that payment of the modified penalty or the making of an order to pay or elect constitutes a conviction for the purposes of s 51(1)(a) and Part VIA of the Road Traffic Act. Section 51(1)(a) provided for the cancellation of a provisional driver's licence if a person was convicted of certain offences. Part VIA dealt with demerit points. The evident purpose of s 26 is to ensure that those who are dealt with by infringement notice are liable to the same consequences regarding the cancellation of a driver's licence and demerit points as those convicted by a court.[13] Section 26 only provided that payment of the modified penalty or the making or an order to pay or elect constituted a conviction for the limited purposes provided for in that section.
[13] Note that s 26 in its current form operates in the same way, the equivalents of s 51(1)(a) and Part VIA of the Road Traffic Act now being contained in s 16(1)(a) and Part 4 of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
Grounds 3, 4, 6 and 7 - the merits
The appellant's argument depends on the notice to pay or elect being a conviction for all purposes. This is simply wrong. The scheme of the FPINEA is that if a person fails to pay the modified penalty and does not make an election his or her licence may be suspended. If payment or an election is made the suspension order is taken to have been cancelled. Where suspension occurs it is not a consequence of conviction but a consequence of failing to comply with the requirement to either pay the modified fine or elect to have the matter dealt with by the court.
As s 23 makes abundantly clear, the making of an order to pay or elect does not constitute a conviction, except as provided for by s 25 and s 26. It is not a conviction for any other purpose. In particular, therefore, it is not a conviction for the purposes of s 17 of the Criminal Code. The appellant was not at risk of being twice convicted for the same act. Nor was he twice punished in respect of a single offence.
In this case, the appellant was given at least four opportunities to pay the modified penalty or elect to go to court. It was only after his licence was suspended that he elected to go to court. The suspension order was then cancelled. It was always open to make an election. He could have done so before the suspension order was made. Had he done so his licence would not have been suspended.
In essence the appellant's argument is that since his licence was suspended he has suffered a punishment and any such punishment must have been the result of a conviction. This argument fails to take into account the provisions of the FPINEA and is inconsistent with them.
Even if there was ambiguity in the legislation, which there is not, the interpretation advanced by the appellant would produce such absurd results as to make it plainly incorrect. On the appellant's argument a person who received an infringement notice could effectively avoid paying a penalty simply by adopting the expedient of ignoring the notices until his or her licence was suspended, then immediately making an election and having the resulting proceeding set aside on the ground of autrefois convict. On the appellant's argument it would be sufficient if the suspension was for a single day. In the appellant's case his period of suspension was longer, but that was only because of his own delay in making an election. When he appeared in court he had not paid the infringement penalty and, if his argument was accepted, he would never have been liable to pay it. This is contrary to the evident meaning and intent of the statutory scheme.
The claim as to backdating is that the prosecution notice was signed and 'backdated' to a date before the notices under s 17, s 18 and s 19 of the FPINEA issued and that the prosecution notice is therefore a 'nullity'. The prosecution notice was signed and lodged on 25 May 2016. That was over 12 months after the relevant notices had issued and also after the appellant had made an election. The fact that the prosecution is taken by s 21(5) of the FPINEA to have been commenced on the day when the enforcement certificate was lodged under s 16 does not mean that the prosecution notice was backdated.
The issuing of the infringement notice was not invalid on the ground that it was contrary to the appellant's right of presumed innocence (as alleged in ground 3). Further, the FPINEA was not invalid for that reason (as alleged in ground 7).
Ground 5 - the merits
Not every ground that purports to raise a constitutional issue will be seriously arguable. It is not uncommon for self‑represented litigants to refer to the Constitution. Whether this requires the issuing of notices under s 78B of the Judiciary Act 1903 (Cth) will depend upon a preliminary assessment of the ground by the court. Where the alleged constitutional issue is unarguable or vexatious, there is in truth no constitutional issue at all.[14]
[14] See Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90].
In this case there is no reasonably arguable constitutional question.
This ground asserts that the issuing of notices under s 16, s 17, s 18 and s 19 of the FPINEA were judicial acts performed by a non‑judicial officer and are therefore invalid. The appellant relies on ch III of the Commonwealth Constitution. This argument is based on the appellant's flawed understanding of the FPINEA. In essence he submits that he was convicted and punished for an offence when the suspension order was made. For the reasons already given that submission is incorrect.
Sections 25 and 26 do deem the failure to comply with a notice to pay or elect to be a conviction, but for discrete purposes only. A deeming provision of this nature does not involve the exercise of a judicial power by the executive.[15]
[15] See Silbert v The Director of Public Prosecutions (WA) [2004] HCA 9; (2004) 217 CLR 181 [41] ‑ [45].
In any event, suspension only occurs after an alleged offender has foregone opportunities to have the matter dealt with by a court, as occurred here. That feature of the statutory scheme means that the appellant's contention is without substance. There is no reasonable prospect of concluding that this statutory scheme so impinges on the independence and impartiality of the courts as to render it invalid. Whenever a recipient of an infringement notice so elects, the recipient's guilt of the alleged offence will be determined by the court in the usual way, acting entirely independent of the executive and any party.[16]
[16] See Krysiak v Carruthers [2012] WASC 472 [66] - [67] per Beech J.
Other matters
During the course of the appeal hearing and in written submissions the appellant raised a number of other matters that were not referrable to his grounds of appeal. Whilst the court will only deal with matters that relate to grounds of appeal, I will refer to these other matters briefly.
The appellant suggested that his plea of guilty was equivocal. The transcript shows that this is not the case. After the magistrate informed the appellant that she did not accept his arguments and that he was required to enter a plea he said that he 'was driving that day and I went through the red light. I will take it to appeals courts, but I will plead guilty to it'. The magistrate then read through the allegations contained in the charge and the appellant said 'I will cop that…because I was driving on that day'.[17]
[17] Magistrates Court ts 4, 26 October 2016.
The appellant raised a concern that the name of the respondent had been altered in the papers to the name of the Registrar who had signed the Prosecution Notice. The appellant had filed documents in this appeal in the name of the 'Western Australian Police Force'. The respondent in the court below was the Registrar who signed the prosecution notice. He was the proper respondent to this appeal. To the extent that the appellant has filed documents with a different name, he was wrong to do so.
The appellant submitted that the infringement notice and the final demand notice were not valid because they were not signed. It is not apparent that there is any requirement for these documents to be signed, but in any event the appellant's prosecution and conviction did not depend on the validity of those documents.
The appellant made some very general claims that the FPINEA is badly drafted and is inconsistent with common law rights, including the presumption of innocence. These claims appeared to rely on the same arguments referred to above.
Conclusion
None of the appellant's grounds of appeal has any reasonable prospect of succeeding. Leave to appeal must be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL26 APRIL 2018
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