Ireland v Watson
[2020] WASC 1
•8 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: IRELAND -v- WATSON [2020] WASC 1
CORAM: HALL J
HEARD: 4 NOVEMBER 2019
DELIVERED : 8 JANUARY 2020
FILE NO/S: SJA 1148 of 2018
BETWEEN: MARK GRAEME IRELAND
Appellant
AND
GEOFF WATSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE TAVENER
File Number : MI 5720 of 2016
Catchwords:
Criminal law - Appeal against conviction - Traffic offence - Speeding - Appellant convicted in his absence - Whether appellant had pleaded guilty - Whether appellant subject to 'double punishment' - Whether prosecution commenced within time - Whether prosecution commenced by an authorised person - Effect of minor defect in prosecution notice
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 17
Criminal Procedure Act 2004 (WA), s 20, s 51, s 55, s 57, s 59, s 60, s 126, s 127, s 147, s 178, sch 1 cl 5
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 7, s 14, s 16, s 17, s 18, s 21, s 101C
Road Traffic (Administration) Act 2008 (WA), s 105
Road Traffic Code 2000 (WA), reg 11(3)
Sentencing Act 1995 (WA), s 11
Result:
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2 ‑ 5 refused
Appeal allowed
Conviction set aside
Charge remitted to the Magistrates Court
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms E J O'Keeffe |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bhalsod v Perrie [2018] WASCA 108; (2018) 84 MVR 469
Ireland v Watson [2018] WASCA 57; (2018) 84 MVR 141
Main v Lapsley [2008] WASC 129
Perry v Carrier [2013] WASC 299
The State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278
HALL J:
On 3 December 2018, the appellant was convicted in his absence in the Magistrates Court on a charge of exceeding the speed limit in a speed zone by not more than 9 km per hour contrary to reg 11(3) of the Road Traffic Code 2000 (WA) (RTC). He seeks leave to appeal against that conviction.
There are five grounds of appeal. The respondent concedes that ground 1 has merit. In essence that ground asserts that the magistrate made a mistake as to whether the appellant had previously entered a plea of guilty. For the reasons that follow, I have come to the conclusion that the respondent's concession is properly made, that the appeal should be allowed and the matter should be remitted to the Magistrates Court to be dealt with according to law.
In the circumstances it is not strictly necessary to address the other grounds. However, as those grounds relate to matters that the appellant may attempt to raise again and as they were the subject of detailed submissions at the hearing of the appeal, it is sensible to deal with them. For the reasons that follow, none of those other grounds has any reasonable prospect of success and leave in respect of them will be refused.
Factual and procedural history
This matter has a lengthy procedural history. The appellant was alleged to have exceeded the speed limit by 7 km per hour on 23 June 2013 on Tonkin Highway, Wattle Grove. The delay between the alleged offending and the appellant's eventual conviction on 3 December 2018 was for three reasons. First, the appellant did not make an election to take the matter to court until 21 May 2016. Second, a trial was adjourned due to the appellant's health issues. Third, the matter was twice adjourned because the appellant was pursuing another case in the Supreme Court and subsequently the Court of Appeal. He was granted these adjournments on the basis that those appeals involved arguments which he proposed to raise in the trial of the present charge.
A person issued with an infringement notice has a set period to pay the amount stated on the notice. Failure to pay results in a process of enforcement, which will be explained in more detail later in these reasons. It is sufficient to note at this stage that the person has the option of paying the amount stated in the notice or electing to have the matter dealt with in a court. If the person does not pay and does not elect to have the matter dealt with in a court the drivers licence of the person can be suspended.
An infringement notice in relation to the alleged speeding offence was issued to the appellant on 3 July 2013. The due date for payment of that infringement was 5 August 2013.[1] The appellant took no action and a final demand notice was issued on 20 August 2013 under s 14(1) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (Fines Act), the due date being 17 September 2013.[2] Again, the appellant took no action and an order to pay or elect was issued on 9 October 2013 under s 17 of the Fines Act, the due date for which was 6 November 2013.[3] A notice of intention to enforce was then issued on 21 November 2013 under s 18 of the Fines Act.[4] The appellant's licence was suspended on 24 December 2013.[5]
[1] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG1, Chronology filed 14 June 2019.
[2] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG2, Chronology filed 14 June 2019.
[3] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG3, Chronology filed 14 June 2019.
[4] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG4, Chronology filed 14 June 2019.
[5] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG5.
Two and a half years later, on 21 May 2016, the appellant elected to have the matter dealt with in court. On 25 May 2016, a prosecution notice was issued under s 21 of the Fines Act. The appellant also says he received a licence suspension order that cancelled the suspension on that date. On 30 May 2016, the Infringements Management and Operations division of the Western Australia Police wrote to the appellant, confirming that 'the matter is no longer an infringement notice and has been converted to a court brief'.[6]
[6] Affidavit of Mark Graeme Ireland sworn 25 March 2019, annexure MG8, Chronology filed 14 June 2019.
The appellant's first appearance in the Magistrates Court was on 3 August 2016. At that appearance, the appellant stated that he wanted to enter two special pleas pursuant to s 126 of the Criminal Procedure Act 2004 (WA) (CP Act). Those pleas were that the Magistrates Court did not have jurisdiction to deal with the charge[7] and that he had already been convicted of the charge.[8] The magistrate asked whether the appellant admitted to driving in excess of the speed limit on the relevant day and the appellant responded 'I would say not guilty, because I can't even remember if I was driving that day.'[9] The magistrate then entered the plea of not guilty and said that the appellant could make his arguments as to jurisdiction and having already been convicted on the day of the trial. The trial was set down for 13 June 2017.[10]
[7] Criminal Procedure Act 2004 (WA) s 126(1)(a).
[8] Criminal Procedure Act 2004 (WA) s 126(1)(c), Criminal Code (WA) s 17.
[9] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 3 August 2016, 3.
[10] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 3 August 2016, 2 ‑ 3.
On 13 June 2017, the appellant was unable to attend the trial due to illness. The trial did not proceed and the matter was adjourned to 15 August 2017 for a new trial date to be allocated.
On 15 August 2017, the matter was brought on for allocation of a new trial date. When questioned by the magistrate as to whether he was maintaining his not guilty plea, the appellant said that he had 'never pleaded not guilty' but rather had pleaded 'no jurisdiction, and defence under section 17 of the Criminal Code'.[11] He claimed that the Magistrates Court did not have jurisdiction because he had been previously convicted of the offence when the order to pay or elect was issued.[12] The appellant also said that he had appealed an unrelated Magistrates Court conviction on the same point. That appeal was to be heard in the Supreme Court later that week and the appellant requested an adjournment on the basis that the result of the appeal would have a bearing on the present charge. The magistrate agreed to an adjournment to 18 October 2017.[13]
[11] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 15 August 2017, 2.
[12] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 15 August 2017, 2 ‑ 3.
[13] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 15 August 2017, 3 ‑ 4.
On 18 October 2017, the appellant again said that he had entered a plea of no jurisdiction and that, by virtue of his licence having been suspended between 24 December 2013 and 24 May 2016, he would receive 'double punishment' if he were to be convicted.[14] He also raised an issue as to the commencement date of the prosecution, though it is not clear from the transcript what point the appellant was trying to make. The magistrate then said that the issue was whether or not the appellant was speeding. The appellant asked whether the magistrate was 'rejecting' his s 127 plea, to which the magistrate responded 'yes' and went on to say as follows:[15]
What I'm saying to you, Mr Ireland - and I'm not going to go down the various parts you want me to go down; I'm looking at it quite simply - there's a charge of exceeding the speed limit in a zone. You will either plead guilty or not guilty to that, and that's all there is to it. When it comes to penalty, you will either establish you've already paid a penalty for that offence. Issuing of fines and that has nothing to do with it.
[14] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 18 October 2017, 2.
[15] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 18 October 2017, 4 ‑ 5.
His Honour went on to say that 'all the other stuff you've said to me I regard as not being relevant to this. Guilty, not guilty to speeding. That's all I want to know.' To this, the appellant responded 'Okay. Well, in that case, with all respect, I will plead not guilty to it.'[16] The matter was then adjourned through to a new trial date of 20 December 2017.
[16] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 18 October 2017, 4 ‑ 5.
On 20 December 2017, the appellant applied for an adjournment on the basis that he had appealed the other matter to the Court of Appeal and that, again, the result of that appeal would have a bearing on the present matter.[17] The trial was then adjourned to 14 March 2018. On that occasion, the matter was further adjourned to 9 May 2018 as the Court of Appeal judgment in the other matter had not yet been delivered.
[17] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 20 December 2017, 2.
On 9 May 2018, the matter was listed for mention only. The appellant said that his appeal in the other matter had been dismissed and that he wanted to have a trial date allocated.[18] The appellant again mentioned the commencement date of the prosecution and suggested that the limitation period had expired. The magistrate on that occasion said that in those circumstances the appellant[19]
would enter a special plea if you say I've got no jurisdiction because it has been started out of time. So you can plead not guilty, and … we can run both that argument and, if there's anything left at the end of the day, your speeding argument at the same time.
[18] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 9 May 2018, 18.
[19] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 9 May 2018, 19.
The appellant then said that he would plead not guilty and no jurisdiction.[20] Despite this, the prosecution notice records that a plea of guilty was entered on 9 May 2018. This was clearly an error.
[20] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 9 May 2018, 19.
The magistrate set a trial date for 3 December 2018. The appellant also applied for prosecution disclosure and the magistrate made an order for disclosure of documents relating to where the relevant speed camera was set up and the authorised officer who operated the camera.[21]
[21] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 9 May 2018, 21.
On 3 December 2018, the appellant did not appear at the trial. He has since said that that was inadvertent. The prosecutor noted that[22]
on his last appearance before this court on 9 May this year the accused entered a plea of guilty, but the matter was subject to the accused taking issue as to the nature of the prosecution itself and launched a single‑judge appeal. That was ultimately heard by Martino J, and the accused subsequently appealed that decision by Martino J when he was unsuccessful to the Full Court. And recently the Full Court, in fact, again refused the accused's appeal.
[22] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 3 December 2018, 26.
The prosecutor then asked that the court proceed to both conviction and sentence 'mindful of his plea previously being entered'.[23] No doubt relying on this erroneous information and the fact that the prosecution notice also incorrectly showed that a plea of guilty had been entered, the magistrate proceeded to record a conviction, impose a fine of $100 and make an order that the appellant pay $169.10 in costs. The magistrate did not refer to any provision of the CP Act in doing so, however the prosecution notice states that the appellant was convicted under s 55 of that Act.
[23] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 3 December 2018, 26.
As noted earlier, the appellant's appeals to the Supreme Court and the Court of Appeal related to a different charge. The present matter had merely been put off pending the results of those appeals on the basis that the appellant was seeking to run an identical argument and that the appeals would therefore have a bearing on the present charge. However, that was not the only issue raised by the appellant and he had not entered a plea of guilty in relation to the present charge on 9 May 2018, or at any time.
Grounds of appeal
The grounds of appeal, as contained in the amended grounds filed on 5 July 2019, were prepared by the appellant. They are discursive and argumentative. In essence the grounds can be summarized as follows:
(1)The magistrate erred in fact and law when he convicted the appellant in his absence on 3 December 2018.
(2)The magistrate erred in fact and law in convicting and/or punishing the appellant in relation to a charge for which he had already been punished.
(3)The prosecution was commenced out of time by an unauthorised person.
(4)The magistrate erred in fact and law when he did not require the appellant to acknowledge his name.
(5)The prosecution notice was defective because it referred to reg 11(3)A of the Road Traffic Code 2000 (WA), rather than reg 11(3).
Ground 1 - relevant legislation
A plea to a charge of a simple offence (as this was) may be entered in writing or orally. If an accused person enters a plea of guilty or is found guilty after a trial the court may enter a judgment of conviction: s 51 and s 147 of the CP Act. If an accused person enters a plea of not guilty then the court must adjourn the matter to a hearing date. If the accused fails to appear at the hearing set for a simple offence then the court can, in some circumstances, proceed to hear and determine the matter in the absence of the accused: s 55, s 57(2) and s 60(7).
The circumstances in which the Magistrates Court may hear and determine a charge in the absence of the accused are provided for in s 55 of the CP Act. This may only occur where the charge is for a simple offence, where the prosecutor appears on the court date but the accused does not, the accused has not pleaded guilty to the offence and if the court is satisfied that the accused has been served with the prosecution notice and a court hearing notice: s 55 of the CP Act. A court hearing notice is a notice that complies with the requirements of s 33 of the CP Act, in particular it must state where and when the matter will be dealt with by the court. A court hearing notice must be served on the accused in accordance with sch 2 cl 2, 3 or 4 of the CP Act. This may be either personal service or service by post.
Ground 1 - merits
By ground 1, the appellant effectively submits that the magistrate erred in convicting him in his absence on 3 December 2018. He says that the conviction was entered in the mistaken belief that a guilty plea had been entered at the previous appearance on 9 May 2018.[24]
[24] Appellant's outline of submissions filed 11 October 2019 [2].
Further, the appellant argues that he could not have been convicted on 3 December 2018 pursuant to s 55 of the CP Act, as the requirements of that section were not complied with.[25]
[25] Appellant's outline of submissions filed 11 October 2019 [3].
Despite what was said at the hearing on 3 December 2018, it is clear from the transcript of 9 May 2018 that the appellant did not plead guilty. I have reviewed the transcripts of each of the appellant's appearances, and he did not plead guilty at any stage of the proceedings. To the contrary, he pleaded not guilty. The court did not therefore have power to convict the appellant under s 147(1) of the CP Act.
The prosecution notice records that the appellant was convicted on 3 December 2018 not under s 147, but under s 55 of the CP Act. However, there is no indication in the transcript that the magistrate invoked s 55 of the CP Act. Nor is it apparent that the requirements of s 55 were complied with. Specifically, there was no reference to whether the appellant had been served with the prosecution notice and the court hearing notice. In fact the transcript shows that s 55 was not relied upon because his Honour accepted the prosecutor's erroneous statement that the appellant had pleaded guilty at a previous appearance.[26]
[26] ts, Magistrates Court of Western Australia, Western Australia Police v Ireland, 3 December 2018, 26.
The respondent concedes ground 1 should be upheld and that neither s 55 nor s 147(1) of the CP Act can be relied upon as a source of power for convicting the appellant in his absence on 3 December 2018. Further, the respondent concedes that this is not an appropriate case in which to invoke the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA).[27]
[27] Perry v Carrier [2013] WASC 299 [25].
Those concessions are in my view, properly made. The conviction was entered on the erroneous basis that the accused had pleaded guilty to the charge. If this error had not been made a hearing could have been held in the absence of the accused pursuant to s 55, however that would have required proof that the accused had been served with the court hearing notice, a matter which was never raised or considered. Furthermore, if the s 55 procedure had been utilised the accused would have had a right to apply to set aside the decision and to have the charge dealt with again, pursuant to s 71(2) of the CP Act.
This ground should therefore be upheld, the conviction set aside and the matter remitted to the Magistrates Court for determination.
Ground 2 - relevant legislation
Relevantly, s 11 of the Sentencing Act 1995 (WA) provides:
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
In support of his argument as to double punishment, the appellant cites s 7(3) and s 16 of the Fines Act.
Section 7(3) provides that any notice, order or warrant issued by a registrar under the Fines Act is taken to be a notice, order or warrant issued by the Magistrates Court. Section 16 provides for the registration of an infringement notice with the Fines Enforcement Registry. This registration provides the basis for the issuing of an order to pay or elect under s 17, a notice of intention to enforce under s 18 and a licence suspension order under s 19.
Ground 2 - merits
The appellant contends that because his licence was suspended between 24 December 2013 and 24 May 2016 he suffered punishment for the charge the subject of the present appeal. He says that when he was convicted and fined in the Magistrates Court this amounted to double punishment for the same conduct.
The appellant pursued a similar argument before the Court of Appeal in Ireland v Watson,[28] however in that instance the appellant complained of being subject to double jeopardy rather than double punishment. Though his written submissions assert that he has been subject to double jeopardy,[29] when I put to him at the appeal hearing in the present matter that the issue as to double jeopardy had already been addressed by the Court of Appeal, the appellant confirmed that by ground 2 his intention was to claim that he had been doubly punished rather than twice convicted.[30]
[28] Ireland v Watson [2018] WASCA 57; (2018) 84 MVR 141.
[29] Appellant's outline of submissions filed 11 October 2019 [8(2)].
[30] ts 19 ‑ 20.
For the avoidance of any doubt, the appellant has not been twice convicted of the same offence. The reasons for this are set out in the Court of Appeal's reasons in Ireland v Watson, which apply equally to the circumstances of the present case.[31]
[31] Ireland v Watson [2018] WASCA 57; (2018) 84 MVR 141 [47] ‑ [53].
The appellant's assertion that the suspension amounts to a punishment for speeding is a mischaracterisation of the nature of the suspension. The license suspension and the fine were imposed on two different bases. The suspension arose due to the appellant having neither paid the fine at any stage, nor elected to take the matter to court, whereas (setting aside for the moment the issues identified in ground 1) the fine arose from conviction of the speeding offence. The suspension was an administrative act that did not involve or require any determination as to the guilt of the appellant for the speeding offence. There is therefore a legitimate basis upon which to differentiate between the suspension and the fine.[32]
[32] See Main v Lapsley [2008] WASC 129 [12].
That the suspension and the fine are not both punishments for the same conduct is reinforced by the statutory scheme which provides that the suspension is taken to be cancelled once the appellant elects to go to court.[33] It is the failure to elect or pay which is the conduct which empowers a registrar to suspend a license in these circumstances, not the speeding itself.[34] The suspension is removed once an election or payment is made.
[33] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 20(1).
[34] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 19(1).
In terms of s 11 of the Sentencing Act, the evidence necessary to establish the commission of the speeding offence was not also the evidence necessary to prove the commission of any other offence. The appellant was not found guilty of any other offence; he was only convicted of the speeding offence. Consequently, it could not be said that the suspension was punishment for any other offence.
In his written submissions, the appellant also took issue with having been issued first with the (modified) infringement notice for $171.50 and then fined $100 upon conviction (plus $169.10 in costs), arguing that:[35]
A question for the court … is thus which fine and penalty comes first, the fine under the Fines Act or the fine by the magistrate … as the fines were for the same act on the same day. It cannot be both, it can only be one or the other.
[35] Appellant's outline of submissions filed 11 October 2019 [8].
Again, this argument is based on a misunderstanding as to the statutory scheme. The appellant says that he has been fined twice, and thus punished twice, for the same conduct. The appellant did not ever pay the amount referred to in the infringement notice, nor did he pay the amount due in the subsequent final demand, the order to pay or elect or the notice of intention to enforce. The mere receipt of notices of this nature cannot constitute 'punishment' for the purposes of s 11. Indeed, the Fines Act ensures that offenders are not doubly punished by providing that, where payment of a modified penalty is made, proceedings in court cannot be commenced in relation to that charge.[36]
[36] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 24.
Finally I note that, if s 11 of the Sentencing Act prevented magistrates from imposing a fine in these circumstances, this would produce the same absurd results that were identified by the Court of Appeal in Ireland v Watson. That is, a person issued with an infringement notice could simply ignore it until their licence was suspended and then make an election.[37] If the appellant was right, the person could then claim to have been punished by the suspension (however short it was) and submit that they could not be further punished. That interpretation is not only plainly wrong, it would render the enforcement scheme in the Fines Act entirely nugatory.
[37] Ireland v Watson [2018] WASCA 57; (2018) 84 MVR 141 [51].
Ground 2 has no reasonable prospect of success and leave to appeal on this ground is refused.
Ground 3 - relevant legislation
In relation to ground 3, the appellant says that the prosecution was commenced out of time by a person not authorised to commence it.[38]
[38] Appellant's outline of submissions filed 11 October 2019 [7].
Relevant provisions as to the commencement of a prosecution for a charge under reg 11(3) of the RTC are as follows.
Section 20 of the CP Act provides (and at all relevant times provided) that, where another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.[39] By the time the prosecution notice was issued, being 25 May 2016, s 105 of the Road Traffic (Administration) Act 2008 (WA) (the RTA Act) had come into operation. Section 105 relevantly provides:
105.Who may commence prosecution
(1)A prosecution for an offence under the Road Traffic Act 1974 can be commenced only by -
(a)a police officer; or
(b)a person authorised under section 23; or
(c)a person authorised to do so by the Commissioner of Police.
[39] Criminal Procedure Act 2004 (WA) s 20(2).
Section 21 of the Fines Act provides (and at all relevant times provided) that:
21.Election by alleged offender or prosecuting authority
(1)Despite any other provision in this Part, at any time that is -
(a)after an infringement notice is registered with the Registry; and
(b)before the modified penalty and enforcement fees, or any part of them, is paid; and
(c)before a time to pay order is made under section 27A(4); and
(d)before an enforcement warrant is issued in respect of the modified penalty and enforcement fees,
the alleged offender or the prosecuting authority that registered the notice may make an election.
(2)An election made by a prosecuting authority must be signed by a prosecuting officer of the prosecuting authority who is empowered to sign an enforcement certificate in respect of the alleged offence.
(3)An election under subsection (1) must be given to the Registrar.
(4)If an election is made under subsection (1), the Registrar must -
(a)lodge with a court of summary jurisdiction that has jurisdiction to deal with the alleged offence and the alleged offender a prosecution notice in relation to the alleged offence that contains such of the information provided to the Registrar under section 16(1)(b) as will sufficiently describe the prosecuting authority, the alleged offender and the alleged offence; and
(b)serve the alleged offender with a copy of the prosecution notice and a court hearing notice that complies with the Criminal Procedure Act 2004; and
(c)notify the prosecuting authority that the prosecution notice has been lodged and give the authority a copy of the notice and a copy of the court hearing notice referred to in paragraph (b).
(5)When a prosecution notice is lodged with a court under subsection (4)(a) -
(a)the notice is to be taken to have been made in accordance with the Criminal Procedure Act 2004, without being verified on oath, before the Registrar by the person who signed the enforcement certificate; and
(b)the prosecution is to be taken to have been commenced on the day when the enforcement certificate was lodged.
[(6) deleted]
(7)For the purposes of subsection (1)(b) a modified penalty and enforcement fees, or any part of them, are to be taken to have been paid even if payment was by means of a dishonoured payment.
Section 21 of the CP Act[40] relevantly provides:
[40] See also s 106 of the RTA Act.
21.When prosecution can be commenced
…
(2)A prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time.
(3)A prosecution is commenced —
(a)on the day on which a prosecution notice is signed under section 23 by the prosecutor and either a JP or a prescribed court officer; or
(b)in the case of a prosecution notice signed under section 23 by an authorised investigator alone — on the day on which the notice is lodged with the court in which the prosecution is being commenced,
whether or not the notice has been served on the accused.
Ground 3 - merits
By ground 3 the appellant says that the prosecution was commenced out of time as the date of offending was 23 June 2013 and the prosecution notice was lodged on 25 May 2016. That is, that it was commenced more than 12 months after the date on which the offence was allegedly committed. Further, he says that the prosecution was commenced by an unauthorised person because the prosecution notice was issued by a registrar of the Magistrates Court.
As to the commencement date of the prosecution, the respondent accepts that a 12 month limitation period applies.[41] That period expired on 22 June 2014. However, s 21(5) of the Fines Act provides that the prosecution is taken to have been commenced on the day the enforcement certificate was lodged. Section 16(5) of the Fines Act provides that an enforcement certificate cannot be lodged after any time limit for the commencement of proceedings has expired. The effect of these provisions in this case is that if an enforcement certificate has been lodged within 12 months of the alleged offence date then the date of lodgement of that certificate will be deemed to be the date on which any proceedings are commenced.
[41] Respondent's outline of submissions filed 18 October 2019 [41] ‑ [42].
There is no reason to think that the prosecution notice in this case was not validly prepared in reliance on a properly lodged enforcement certificate. No objection was taken in the Magistrates Court as to the validity of the prosecution notice on the grounds now raised. The presumption of regularity would therefore be effective in these circumstances.[42] Furthermore, there is a statutory presumption of regularity in s 101C(2) of the Fines Act, which provides that anything required to be done prior to the issuing of an order is presumed to have been done unless the contrary is proved. The contrary was not proved here.
[42] See Bhalsod v Perrie [2018] WASCA 108; (2018) 84 MVR 469, per Buss P at [107] ‑ [114].
However, even if this issue had been raised in the Magistrates Court, the respondent submits that it may be inferred that the enforcement certificate was lodged prior to 22 June 2014. This is because it is known that an order to pay or elect was issued to the appellant under s 17 of the Fines Act on 9 October 2013 and a notice of intention to enforce was issued to the appellant under s 18 of the Fines Act on 21 November 2013. Both of those documents depend on an infringement notice being previously registered under s 16. That registration process requires that the prosecuting authority give the registry an enforcement certificate signed by a prosecuting officer of the authority. It can be concluded from this that an enforcement certificate must have been lodged on or before 9 October 2013. I accept that reasoning. Furthermore, I note that the prosecution notice refers to the 'registration date' as being 9 October 2013 and this appears to be a reference to the date that the enforcement certificate was registered under s 16 of the Fines Act.
As to the challenge by the appellant to the authority of the registrar to commence the prosecution, he relies on s 20 of the CP Act and s 105 of the RTA Act. Section 20(2) of the CP Act provides that where a written law (other than the CP Act) limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law. At the relevant time the RTA Act provided that proceedings for an offence against traffic regulations could be commenced by a police officer, a person authorised under s 23 and a person authorised by the Commissioner of Police.[43] However, s 21(5) of the Fines Act provides that where a prosecution notice is lodged in circumstances such as this, it is taken to be made by the person who signed the enforcement certificate. An enforcement certificate must be signed by a prosecuting officer of the prosecuting authority, in this case the WA Police. Thus the authority of the registrar to commence the prosecution derives from the deeming effect of s 21 of the Fines Act. Furthermore, s 176(3)(b) of the CP Act provides that in the absence of evidence to the contrary it is to be presumed that the person who issued a court document was empowered to do so.
[43] Road Traffic (Administration) Act 2008 (WA) s 105.
The appellant maintains his arguments as to authorisation to commence prosecution despite the operation of s 21(5) of the Fines Act. He says that because s 105 of the RTA Act limits the people who may commence a prosecution of a road law, the operation of s 20(2) of the CP Act means that any prosecutions made under other legislation (and, specifically, s 21(5) of the Fines Act) are 'cancelled out'.[44] By this I understand the appellant to be arguing that the combined operation of s 20(2) of the CP Act and s 105 of the RTA Act, is such that prosecutions can only be commenced by those persons nominated in the RTA Act. What he fails to take into account is that the effect of s 21(5) of the Fines Act is to deem a prosecution commenced by a registrar to be a prosecution commenced by the person who signed the enforcement certificate. There was no suggestion that the person who signed the enforcement certificate was not a person authorised to commence prosecutions under s 105 of the RTA Act. In any event, the appellant has not provided anything to rebut the presumption of regularity and the statutory presumption that anything required to be done in lodging the infringement notice was actually done.[45] Nor has he provided any evidence to contradict the presumption of authority in s 176 of the CP Act.
[44] Appellant's outline of submissions filed 11 October 2019 [7].
[45] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 101C.
Ground 3 has no reasonable prospects of success and leave to appeal on this ground is refused.
Ground 4 - merits
By ground 4, the appellant asserts that the magistrate failed to engage jurisdiction at his appearances on 14 March 2018 and 9 May 2018 by not identifying him at the commencement of each hearing. In particular he asserts that the magistrate should have asked him to formally acknowledge his name.
There is a degree of absurdity about this argument because the appellant does not deny that he was the person who attended on each occasion. He seems to be under the misapprehension that there is a merely technical requirement to have an accused person acknowledge their name on each occasion they appear and that without that acknowledgement the proceedings are a nullity, even if there is no doubt as to the identity of the person. He does not contend that he was prejudiced by any failure to identify him.
The appellant's argument is simply wrong. Whilst it is important to establish the identity of an accused person who appears in court, there is no fixed procedure for doing this. Furthermore, in the absence of any suggestion that the accused was not the person who attended or that any miscarriage of justice occurred this ground is without substance. In any event, I note that on each court mention the judicial support officer called the matter by reading out the appellant's full name and the transcript shows that the appellant then appeared and responded to questions put to him by the magistrate.
Ground 4 has no reasonable prospect of success and leave to appeal on this ground is refused.
Ground 5 - relevant legislation
As to defects in prosecution notices, the CP Act provides that:
178.Defects etc. in court documents
(1)In this section, unless the contrary intention appears -
court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.
(2)Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor’s opening address.
(3)If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -
(a)must order that the document be corrected if the defect is not material to the merits of the case;
(b)may order that the document be corrected in any other case.
(4)If a court makes an order under this section -
(a)the court document must be amended accordingly by the court or some person ordered to do so by the court; and
(b)each party is entitled to a copy of the amended court document; and
(c)the court may adjourn the case.
(5)This section is in addition to and does not affect the operation of section 132.
Schedule 1 cl 5(1)(b) of the CP Act provides as follows:
5.Alleged offence to be described
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
…
(b)identify the written law and the provision of it that creates the offence;
Ground 5 - merits
The appellant says that the prosecution notice is defective because it refers to a non‑existent provision. The prosecution notice states that the relevant provision is reg 11(3)A of the RTC. There is not, and was not at the time of offending, any such provision in the RTC. The correct provision is reg 11(3).
The defect here was an obvious typographical error. There was no reasonable possibility that the appellant was misled by the error, and he did not suggest that he was. Indeed, he admitted that he had not become aware of the error until sometime later.[46] He submitted that it is an error material to the substance of the case but did not elaborate on that point.[47] Clearly it is an error of a type that would have been amenable to correction under s 178 had it been raised in the Magistrates Court. There is no basis for suggesting that the error invalidated the proceedings or that such an error could have caused any miscarriage of justice.
[46] ts 16.
[47] ts 16 ‑ 17.
Ground 5 has no reasonable prospect of success and leave to appeal on that ground is refused.
Other matters
The appellant also raised some matters which do not fit squarely within any of the grounds. They are as follows.
First, the appellant submits that, at his appearance on 3 August 2016, the magistrate did not comply with the requirements in s 59(2) of the CP Act when taking his plea[48] and, further that all subsequent hearings were a 'nullity' as a result. In this respect, the appellant cites The State of Western Australia v Landers.[49] Section 59(2) of the CP Act sets out the procedure for the taking of a plea in the Magistrates Court. It provides:
59.Initial procedure, pleading
(2)Before requiring the accused to plead to the charge, the court must -
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b)be satisfied the accused understands the charge and the purpose of the proceedings; and
(c)if section 35 requires the prosecutor to serve the accused with any material and the prosecutor has not done so, proceed in accordance with section 35(10).
[48] Appellant's outline of submissions filed 11 October 2019 [5].
[49] The State of Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278.
In Landers, the issue was that the accused person was to be committed to a higher court for trial on an indictable charge. In that case, the committal was quashed because the magistrate did not advise the accused that a plea did not have to be entered at that time, in accordance with the relevant legislation. This does not assist the appellant because Landers related to an indictable charge and the present matter relates to a simple offence. The relevant statutory provisions are not the same.
The transcript of 3 August 2016 shows that the magistrate proceeded to take a plea at the commencement of the hearing. It does not necessarily follow that his Honour was not satisfied as to the matters contained in s 59(2) of the CP Act. The appellant has made no submission that he did not in fact understand the charge, or that his plea was in any way affected by the magistrate having taken it without expressly referring to the requirements of s 59(2). Furthermore, he confirmed his plea at subsequent hearings. There is simply no merit in the suggestion that the proceedings were a nullity. Nor can there be any suggestion of a miscarriage of justice given that the plea entered was one of 'not guilty'.
The appellant also contends that the infringement notice was withdrawn and 'ceased to exist'. In his written submissions he refers to a letter he received from the Western Australia Police. That letter was annexed to an affidavit the appellant filed with this court on 25 March 2019. The letter does not state that the infringement notice had been withdrawn, rather it states that it had been 'converted' to a prosecution brief. Nothing whatsoever turns on this.
Conclusion
The only ground with any merit is ground 1. That ground must succeed for the reasons earlier stated. None of the other grounds, or additional points raised, has any reasonable prospects of success. Leave to appeal in respect of all other grounds must, therefore, be refused.
Some might think that the amount of time and public resources that the appellant has caused to be expended on what is a relatively trivial matter is scandalous. He has pursued numerous technical, and mostly unmeritorious points, with a determination that is quite disproportionate to the importance of the issues involved. His small success in this case is not an endorsement of his general approach - it arises from an unfortunate error as to whether he had pleaded guilty. I also note that an alternative procedure was available to the registry, namely an enforcement warrant under s 21A of the Fines Act.
Orders
The orders of the court are as follows.
(1)Leave to appeal on ground 1 is granted.
(2)Leave to appeal on grounds 2 ‑ 5 is refused.
(3)Appeal allowed.
(4)The conviction, fine and costs order are set aside.
(5)The charge is remitted to the Magistrates Court to be dealt with according to law.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AL
Associate to the Honourable Justice Hall3 JANUARY 2020
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