Jabbour v Bonker

[2005] WASC 77

JABBOUR -v- BONKER [2005] WASC 77

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 77
Case No:	SJA:1102/2004	Heard:	26 APRIL 2005
Coram:	MCKECHNIE J	Delivered:	26/04/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Matter remitted for retrial
Category:	B
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Parties:	ELIAS JABBOUR JOHANNES MARTIN BONKER
Catchwords:	Criminal law and procedure Fresh evidence No new principles
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : JABBOUR -v- BONKER [2005] WASC 77 CORAM : MCKECHNIE J HEARD : 26 APRIL 2005 DELIVERED : 26 APRIL 2005 FILE NO/S : SJA 1102 of 2004 MATTER : Justices Act 1902 (WA) BETWEEN : ELIAS JABBOUR

Appellant

AND

JOHANNES MARTIN BONKER
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : F CULLEN SM

Citation : TOWN OF VICTORIA PARK v ELIAS JABBOUR

File No : PE 7469 of 2004

Catchwords:

Criminal law and procedure - Fresh evidence - No new principles

(Page 2)

Legislation:

Nil

Result:

Appeal allowed

Matter remitted for retrial

Category: B

Representation:

Counsel:

Appellant : Mr D P A Moen
Respondent : Mr D P Gillett

Solicitors:

Appellant : D P A Moen
Respondent : McLeods

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 3)

1 MCKECHNIE J: After a two-day trial, on 27 July 2004 and 6 September 2004, the appellant was convicted of parking his Nissan station wagon during a prohibited period contrary to the rules of the Town of Victoria Park. In fact, the offence was said to have occurred outside a school in Teague Street. From that conviction he appeals on a single ground which is as follows:

"The Applicant has been denied a fair hearing on the basis that he was not aware of particular information and documents that would have materially assisted him in his defence at the time of the hearing."

2 Three particulars are given as to that:

"(a) The Applicant was only made aware of these two potential witnesses on the last day of the hearing before Cullen SM;

(b) The information regarding these witnesses is as set out in the Particulars of the Application at paragraph 2;

(c) The information regarding the evidence of Constancio Fernandes was only made available to the Applicant on 13/09/04 and the Applicant was not aware of the contents of this material prior to that time."

3 The prosecution case consisted, in essence, of two rangers who, in summary, gave evidence that they were outside the school, obviously on parking duties, and they observed the appellant's vehicle for a period of some 4 minutes before one of the officers issued an infringement notice timed at 1439 hours.

4 The appellant's evidence, which was not accepted, was, in essence, that he was not parked but moving along the road at the time. He also called his son. The appellant was unrepresented at trial and I think that has led to some of the difficulties. He sought certain information, and at the commencement of the resumed hearing on 6 September 2004, on a return of a summons to produce documents, certain documents were brought into Court. It appears that part of those materials which had been sought were consecutive infringement notices which had been issued about the time of the alleged offence.

5 In fact, one of the notices was issued to Mr Fernandes, and I will refer to him in more detail shortly. The appellant made no application to

(Page 4)

adjourn and no application to call or issue a subpoena to call Mr Fernandes or any other witness. The appellant having been convicted, obtained a statutory declaration from Mr Fernandes which amplifies a statutory declaration submitted to the Town of Victoria Park around the time of the alleged offence.

6 The new evidence from the statutory declaration, in summary, is that between 2.30 and 2.45 on the day in question Mr Fernandes passed down Teague Street on three occasions and saw no car parked in the prohibited area at the times that he passed down the street. He did observe the rangers' vehicle parked in a position which would appear to be different from the position the rangers gave in evidence.

7 It is true that there were periods when Mr Fernandes was not in Teague Street. However, the evidence of the rangers was that there was a period of approximately 4 minutes during which time the appellant's car was stationary. In my opinion, the evidence contained within the statutory declaration satisfies the test for fresh evidence.

8 It is not necessary for me on this occasion to decide whether or not there was a duty of disclosure in the summary proceedings or whether or not the Town of Victoria Park breached that duty or even that the trial was unfair. The appellant was unrepresented. This material, while in existence, was not actually available to him until towards the end of the trial.

9 Without making any real comment on its strength, or credibility, the evidence is capable of affecting the result in a material way if the evidence of Mr Fernandes is accepted.

10 The respondent seeks leave to adduce the affidavit evidence of Jennifer Mary Brown containing, essentially, a photograph which was said to have been lost somewhere in the computer system, at the time of the trial, which has since been recovered. The photograph is said to depict Teague Street at the relevant time and the presence of the appellant's vehicle.

11 That photograph, it is said, would tend to support the evidence given by the rangers at the hearing and well it may. I accept into evidence the affidavit of Ms Brown and the accompanying photograph as Exhibit A on the appeal. The difficulty is that neither the photograph or the circumstances have been tested before me, nor has the evidence of Mr Fernandes. In that situation, in respect of the photograph, I am unable to say that it shows that there has been no miscarriage of justice.

(Page 5)

12 It may be that at a retrial the evidence of one or the other parties may be conclusively proved. It may or may not engender a reasonable doubt in a Magistrate's mind but I am satisfied that, even though I admit the evidence of Ms Brown, nevertheless, the fresh evidence of the statement of Mr Fernandes is such that, in justice, the appeal ought to be allowed, the conviction set aside and the matter be remitted to a Magistrate for retrial. I should say in conclusion that this is not a reflection on the decision of the Magistrate. It is simply the result of fresh evidence.