Ireland v Watson
[2017] WASC 242
•17 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: IRELAND -v- WATSON [2017] WASC 242
CORAM: MARTINO J
HEARD: 17 AUGUST 2017
DELIVERED : 17 AUGUST 2017
FILE NO/S: SJA 1028 of 2017
BETWEEN: MARK GRAEME IRELAND
Appellant
AND
GEOFF WATSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :DEPUTY CHIEF MAGISTRATE E A WOODS
File No :PE 29351 of 2016
Catchwords:
Criminal law - Appeal - Prosecution following election after receipt of infringement notice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Road Traffic Code 2000 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms H C Richardson
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bardsley v The Queen (2004) 29 WAR 338
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Krysiak v Carruthers [2012] WASC 472
Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smolarek v Roper [2009] WASCA 124
MARTINO J: By Prosecution Notice PE 29351/2016 lodged in the Perth Magistrates Court on 25 May 2016 the appellant, Mr Ireland, was charged that on 12 November 2014 he contravened a red arrow signal, contrary to reg 40(2)(a) of the Road Traffic Code 2000 (WA). On 26 October 2016 Mr Ireland appeared before Deputy Chief Magistrate Woods. Mr Ireland was convicted on his plea of guilty, fined $150 and ordered to pay costs of $169.10.
By an appeal notice filed on 6 April 2017 Mr Ireland applies for leave to appeal. Mr Ireland states in his appeal notice that he applies for leave to appeal against the decision of Deputy Chief Magistrate Woods. His draft Grounds of Appeal indicate that he is seeking to appeal against both the conviction and the sentence. The appeal is out of time – an appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise: s 10(3) Criminal Appeals Act 2004 (WA).
On 30 May 2017 I ordered that the applications for an extension of time to appeal and for leave to appeal be heard with the appeal.
Background
On 20 November 2014 a traffic infringement notice addressed to Mr Ireland 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 sign had occurred on 12 November 2014 at Welshpool and that Mr Ireland was the driver.
On 7 January 2015 a final demand notice addressed to Mr Ireland was issued under s 14(1) of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
On 23 February 2015 an order to pay or elect addressed to Mr Ireland was issued under s 17 of the Fines, Penalties and Infringement Notices Enforcement Act, informing Mr Ireland 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 Mr Ireland was issued under s 18 of the Fines, Penalties and Infringement Notices Enforcement Act, informing Mr Ireland 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 Mr Ireland was issued under s 19 of the Fines, Penalties and Infringement Notices Enforcement Act, informing Mr Ireland that a licence suspension order had been imposed on his driver's licence.
At some time Mr Ireland made an election under s 21 of the Fines, Penalties and Infringement Notices Enforcement Act 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 Mr Ireland informing him that the suspension of his licence had been cancelled on 24 May 2016.
On 29 July 2016 Mr Ireland appeared before his Honour Magistrate Randazzo on Prosecution Notice PE 29351/2016. Mr Ireland informed his Honour that he wished to make a plea of no jurisdiction because the charge had already been dealt with under the Fines, Penalties and Infringement Notices Enforcement Act. His Honour read the charge to Mr Ireland. Mr Ireland 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 prosecution for hearing of those pleas on 26 October 2016 and made directions for the filing and service of written submissions, with Mr Ireland to file and serve written submissions by 5 October 2016 and the prosecution 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 Mr Ireland made oral submissions. Mr Ireland referred to s 7 of the Fines, Penalties and Infringement Notices Enforcement Act 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. Mr Ireland then 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.
Mr Ireland 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 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.
Mr Ireland 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. Mr Ireland 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 Mr Ireland that as a matter of law the conviction did not still stand and that the matter was still outstanding. She enquired of Mr Ireland whether he wished to enter a plea of guilty. Mr Ireland 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 that he had already been convicted. Her Honour informed Mr Ireland 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.
Mr Ireland said that even if he pleaded guilty he would have to take it 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 he would take it to an appeals court, but he would plead guilty. Her Honour imposed a fine of $150 and ordered Mr Ireland to pay court costs of $169.10.
The application for an extension of time to appeal
Mr Ireland has deposed in his affidavit made on 6 April 2017 that it was always his intention to appeal, but on 7 November 2016 he lost a job he had held for five years and two months. On 7 November 2016 Mr Ireland compromised a dispute with his employer that was the subject of an application by him in the Fair Work Commission. Mr Ireland was trying to get work and applied for Centrelink payments. He realised that he had to prioritise matters because he had outstanding debts to cover and so he put off the appeal.
The time limit specified in s 10(3) must be taken seriously and every effort must be made to comply with it, the granting of an extension of time must not be taken for granted: Eastough v The State of Western Australia [No 2] [2010] WASCA 88 [12]. The discretion to extend the time limited under s 10(3) is wide with the broad question in each case being whether it is in the interests of justice to grant the extension: Eastough v The State of Western Australia [No 2] [13]; Bardsley v The Queen (2004) 29 WAR 338 [108].
This appeal was commenced four months outside the time limited to appeal. The reasons given by Mr Ireland for his appeal being out of time are not adequate. Whether or not he should be granted an extension of time turns on whether there will be a miscarriage of justice if he is not granted that extension.
Mr Ireland seeks to appeal on five grounds. Leave of the Supreme Court is required for each ground of appeal. The Court must not give leave unless it is satisfied that the ground has a reasonable prospect of success. Unless the Court gives leave to appeal on at least one ground of appeal the appeal is to be taken to have been dismissed: s 9 Criminal Appeals Act.
Grounds of Appeal 1 and 2
By ground of appeal 1 Mr Ireland contends that Deputy Chief Magistrate Woods did not have regard to his plea of no jurisdiction and his plea that he had a defence under s 17 of the Criminal Code. By ground of appeal 2 Mr Ireland contends that her Honour did not comply with s 127 of the Criminal Procedure Act 2004 (WA).
Section 126(1) of the Criminal Procedure Act provides:
126.Pleas available to charges
(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.
Section 127(2) and s 127(4) provide:
127.Plea of no jurisdiction etc., dealing with
…
(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.
…
(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.
When Mr Ireland appeared before Magistrate Randazzo on 27 July 2016 he entered a plea of no jurisdiction and a plea that he had a defence under s 17 of the Criminal Code. The first plea was a plea under s 126(1)(a) of the Criminal Procedure Act. The second plea was a plea under s 126(1)(c). Magistrate Randazzo listed the pleas on 26 October 2016 for trial in accordance with s 127(2).
On 26 October 2016 Mr Ireland addressed Deputy Chief Magistrate Woods. At the conclusion of his submissions the following exchange between Mr Ireland and her Honour occurred:
ACCUSED: …In my view, the conviction still stands with the pay or elect order.
HER HONOUR: Well, it doesn't. As a matter of law, it doesn't so this matter is still outstanding. So are you pleading to guilty to it and then we will impose a penalty and deal with or what's happening:
ACCUSED: With respect, last time I came in I put in a plea of no jurisdiction and section 17 that I had already been convicted.
HER HONOUR: Well, you haven't been so I will enter a plea of not guilty and the matter can go to trial if that's what you want to do, but there will be costs associated with that (ts 26/10/2016 p 3)
In that passage her Honour informed Mr Ireland that she rejected his plea that he had already been convicted. Her Honour did not expressly refer to the plea of no jurisdiction, but it was implicit in what her Honour said that the Court had jurisdiction.
The procedure followed by the Deputy Chief Magistrate was similar to the procedure followed by Magistrate Heaney which was considered by the Court of Appeal in Smolarek v Roper [2009] WASCA 124. In Smolarek v Roper the prosecution had come before Magistrate Nicholls. The appellant contended that the Magistrate's Court had no jurisdiction to hear the charge. Magistrate Nicholls adjourned the prosecution to enable the issue of jurisdiction to be heard. The prosecution next came before Magistrate Heaney on 7 December 2006. At that hearing the appellant submitted to his Honour that the Australian Securities and Investment Commission (ASIC) had not conducted any investigation, that therefore it had not made any assessment that the appellant may have committed an offence for which she ought to be prosecuted and so ASIC had no power to commence the prosecution and the Magistrates Court had no jurisdiction to hear it. In the course of argument Magistrate Heaney rejected the appellant's argument that if ASIC had conducted any investigation it would have produced evidence of it. His Honour said that there was no evidence that an investigation had not been conducted and there was no onus on ASIC to prove that it had conducted an investigation. His Honour did not make any express finding in relation to the jurisdiction of the Magistrates Court, but fixed a date for the substantive hearing of the charge. Subsequently, on 2 August 2007 at the hearing of the charge the issue of jurisdiction was again argued and Magistrate Pontifex found that the Magistrates Court had jurisdiction to hear the charge.
The Court of Appeal (Newnes JA, with Wheeler and Pullin JJA agreeing) held that there was no substance in the appellant's contention that her plea of no jurisdiction had not been tried as required by s 127 of the Criminal Procedure Act [65]. Newnes JA said at [67] that while it was regrettable that Magistrate Heaney did not make an express finding, it was clear from what his Honour said in the course of argument and from the fact that he set the charge down for a substantive hearing that his Honour found that the court had jurisdiction. Newnes JA also said at [68] that in any event there was the further finding by Magistrate Pontifex that the Magistrate's Court had jurisdiction. As I understand Newnes JA's reasons his Honour was satisfied that the hearing before Magistrate Heaney was a trial as required by s 127 of the Criminal Procedure Act.
The hearing before Deputy Chief Magistrate Woods on 26 October 2016 was a trial of the pleas raised by Mr Ireland. Her Honour decided that the Magistrates Court did have jurisdiction and that Mr Ireland did not have a defence under s 17 of the Criminal Code. Grounds of Appeal 1 and 2 have no reasonable prospect of success.
Ground of Appeal 3
By Ground of Appeal 3 Mr Ireland contends that when he was issued with an order to pay or elect under s 17 of the Fines, Penalties and Infringement Notices Enforcement Act, he was convicted of an offence. Section 23 of that Act 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.
Section 25 had no application to the offence that Mr Ireland was alleged to have committed. Section 25 applies where the alleged offence to which an infringement notice relates is constituted by failure to do an act or thing. In that event s 71 of the Interpretation Act, which allows a daily penalty to accrue, applies as if payment 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 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.
Mr Ireland's alleged offence was contravening a red arrow signal, contrary to reg 40(2)(a) of the Road Traffic Code. The alleged offence was not constituted by failure to do an act or thing, but by doing an act, namely proceeding in contravention of a red arrow signal.
Section 26 applies if s 79 of the Road Traffic (Administration) Act 2008 (WA) is a prescribed enactment, which it is. Section 26(2) provides that if the alleged offence is under a road law 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 s 16(1)(a) of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and that for the purposes of pt 4 of that Act the matter is to be treated as having been dealt with by infringement notice when the order was made. Mr Ireland's alleged offence was under a road law, as defined in s 3 of the Fines, Penalties and Infringement Notices Enforcement Act and s 4 of the Road Traffic (Administration) Act.
Section 16 of the Road Traffic (Authorisation to Drive) Act deals with the cancellation of a provisional driver's licence if a person is convicted of certain offences, including a regulation made under a road law that is prescribed for the purposes of the section. The relevant effect of s 26 of the Fines, Penalties and Infringement Notices Enforcement Act is that the making of an order to pay or elect in respect of an infringement notice constitutes a conviction for the purposes of s 16 so that where the infringement notice is for an offence to which the section applies and it is issued to the holder of a provisional driver's licence that licence is cancelled. That is the limited purpose for which the order to pay or elect constitutes a conviction. Except as provided in s 25 and s 26 the making of an order to pay or elect does not constitute a conviction – s 23.
Section 17 (1) of the Criminal Code provides:
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.
Mr Ireland had not been convicted of any relevant offence on an indictment or prosecution notice when he appeared before Deputy Magistrate Woods. The effect of s 26 of the Fines, Penalties and Infringement Notices Enforcement Act was limited to providing that the order to pay or elect was a conviction for the purposes of s 16 of the Road Traffic (Administration) Act. Her Honour was correct to hold that the order did not constitute a conviction for the purposes of s 17 of the Criminal Code and it did not provide him with a defence to the charge. Ground of Appeal 3 has no reasonable prospect of success.
Ground of Appeal 4
By Ground of Appeal 4 Mr Ireland contends that he was pressured into entering a plea of guilty.
When Deputy Chief Magistrate Woods decided that the Magistrates Court did have jurisdiction and that Mr Ireland did not have a defence under s 17 of the Criminal Code her Honour explained to Mr Ireland that it was his choice as to whether he pleaded guilty or not guilty – ts 26/10/16 p 3. Mr Ireland said that he was driving on the day and he went through a red light. He said that he would take the issue to appeals courts, but that he would plead guilty – ts 26/10/16 p 4.
It is clear that Mr Ireland was aware that his plea of no jurisdiction and his plea that he had a defence under s 17 of the Criminal Code had been rejected. He then decided to plead guilty to the charge. He was not pressured into entering that plea. Ground of Appeal 4 has no reasonable prospect of success.
Ground of Appeal 5
By Ground of Appeal 5 Mr Ireland contends that Deputy Chief Magistrate Woods erred in imposing the wrong fine as the prosecution failed to produce any document to help the court in imposing the fine.
On 12 November 2014, the day on which the offence was committed, the modified penalty for the offence was $300. Deputy Chief Magistrate Woods imposed a fine of $150. Her Honour was unsure what the modified penalty was at the time of the offence and the prosecutor was unable to assist her. There was no minimum penalty and so it was open to her Honour to impose the penalty that she imposed. There was no error of law.
Other matters raised in Mr Ireland's written submissions
In his written outline of submissions Mr Ireland has raised two other matters that are not raised in his Grounds of Appeal. The first matter is that the notices issued under the Fines, Penalties and Infringement Notices Enforcement Act are invalid 'on the grounds of inconsistency with CH3 of the Commonwealth Constitution, as the Magistrates court is a repository of Federal Jurisdiction'.
For two reasons this argument cannot succeed. The first is that while the prosecution was issued following Mr Ireland's election to have the charge heard and determined by the court in accordance with a procedure provided for in the Fines, Penalties and Infringement Notices Enforcement Act in my view the validity of the prosecution did not depend upon the validity of the notices that had been issued. Mr Ireland was charged on a prosecution notice with contravening a red arrow signal. He was convicted on that prosecution notice on his plea of guilty. Secondly, in any event, for reasons that were explained by Beech J in Krysiak v Carruthers [2012] WASC 472 [62] ‑ [67] the legislative scheme contained in pt 3 of the Fines, Penalties and Infringement Notices Enforcement Act is to give the recipient of a notice the choice to make an election to have the issue determined by a court. That scheme does not contravene the impartiality or independence of the Magistrates Court.
The second matter raised by Mr Ireland in his submissions is that notices issued under the Fines, Penalties and Infringement Notices Enforcement Act were invalid because the police officer who issued them exceeded his powers in doing so. Again there are two reasons why this argument cannot succeed. The first is the same as the reason why the previous argument could not succeed, namely that the prosecution of Mr Ireland did not depend upon the validity of the notices that had been issued. The second reason is that s 79 of the Road Traffic (Administration) Act authorises a police officer who reasonably believes that a person has committed a prescribed offence under a road law to serve an infringement notice on that person.
Other matters raised in Mr Ireland's oral submissions
In his oral submissions today Mr Ireland has raised two further matters in support of his appeal.
The first is that before her Honour sentenced Mr Ireland the prosecutor did not state aloud to the court the material facts of the offence to which Mr Ireland had pleaded guilty, as required by s 129(3) of the Criminal Procedure Act.
The Criminal Procedure Act does not contain an express provision which specifies the consequences of non‑compliance with s 129(3). The argument raised by Mr Ireland turns on whether the legislative intent is that failure to comply with s 129(3) results in the invalidity of the sentence that follows: Project Blue Sky Inc v The Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I do not consider that the Criminal Procedure Act discloses that legislative intent.
There is a very large number of prosecutions in the Magistrates Court. Some of them are factually complex some of them are not. Where the facts are straight forward and have been identified in open court it may be that there will be no practical utility in the prosecutor reading the facts. In my view the legislature would not intend that in those circumstances if the facts were not read the sentence was invalid. Procedural fairness will operate to ensure that the facts are identified and established before the offender is sentenced.
That is what happened in this case. The facts were identified by the Deputy Chief Magistrate and admitted by Mr Ireland. The failure of the prosecutor to comply with s 129(3) of the Criminal Procedure Act did not invalidate the sentence imposed.
The second matter raised by Mr Ireland today was that as he had already received a license suspension order he had been punished for his offence and he could not be punished a second time. I do not accept that submission. The Fines, Penalties and Infringement Notices Enforcement Act contains provisions which enable a person's licence to be suspended if an infringement notice is not complied with. The relevant scheme of the Act is that if, following a suspension imposed under s 19, the alleged offender makes an election under s 21 to have the charge determined by a court the licence suspension order is to be taken as having been cancelled at the time of the of the election – s 20. Although there will have been a period before that cancellation of the licence suspension order in which the alleged offender's licence would have been cancelled I do not regard that period as a sentence which would prevent the court process for which the alleged offender has elected proceeding.
Conclusion
None of Mr Ireland's proposed grounds of appeal, the matters raised in his written outline of submissions or the matters raised in his oral submissions have a reasonable prospect of success. There will not be a miscarriage of justice if he is refused an extension of time to appeal. I refuse him an extension of time to appeal and the appeal is dismissed.
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