Johnson v Matthews
[2020] WASC 122
•15 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: JOHNSON -v- MATTHEWS [2020] WASC 122
CORAM: SMITH J
HEARD: ON THE PAPERS
DELIVERED : 15 APRIL 2020
FILE NO/S: SJA 1153 of 2019
BETWEEN: JAYE JOHNSON
Appellant
AND
JOSHUA MATTHEWS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE M FLYNN
File Number : PE 37239 of 2019
Catchwords:
Criminal law - Road Traffic Act 1974 (WA) - Confiscation of vehicle following third conviction for driving whilst not authorised to do so - Ownership of vehicle passed to third party prior to the Commissioner of Police serving a notice that he intended to apply for an order that the vehicle be confiscated - Error of law - Failure to give a reasonable opportunity to show cause to the person who purchased the vehicle as to why an order for confiscation should not be made
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(d), s 40(1)(e)
Road Traffic (Administration) Act 2008 (WA), s 5
Road Traffic Act 1974 (WA), s 49(1)(a), s 78A, s 80G
Sale of Goods Act 1895 (WA), s 17(1)
Result:
Leave to appeal granted
Appeal allowed
Confiscation order set aside and application for confiscation remitted to Magistrates Court
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Busby v Burrow [2012] WASC 58
Li v Skala [2018] WASC 353
Moors v Burke [1919] HCA 32; (1919) 26 CLR 265
Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
Scoby-Smith v Lang [2019] WADC 57
Suleiman v The State of Western Australia [2017] WASCA 26
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351
SMITH J:
The background to the appeal, the ground of appeal and the result
On 22 August 2019, the appellant was convicted of a third impounding offence, namely driving without authority pursuant to s 49(1)(a) of the Road Traffic Act 1974 (WA) (the RT Act), whilst driving a Mitsubishi Lancer, registration no 1CUI505 (the vehicle).
Following the conviction, the Commissioner of Police served the appellant, by post, a document titled 'Section 80G Notice of Intention' under cover of a letter dated 26 August 2019.[1] The letter stated that the attached notice of intention was notice (that the Commissioner intended to) to make an application to a court for an order to confiscate/further impound her vehicle. The letter also contained a statement that upon receiving this notice of intention, 'you must not do a restricted act which means you must not … [d]ispose of any interest (sell or dispose of the vehicle) that you have in the vehicle…'.[2]
[1] Affidavit of Jaye Johnson, sworn 7 February 2020, Attachment A.
[2] Affidavit of Jaye Johnson, sworn 7 February 2020.
The appellant was served with the letter and the notice of intention to make an application to the court for a confiscation/impounding order by ordinary post on 26 August 2019. The appellant received the documents on 29 August 2019.[3]
[3] Affidavit of Jaye Johnson, sworn 7 February 2020 [2].
At the hearing of the application to confiscate the vehicle, on 8 November 2019, the appellant who appeared in person informed the magistrate that prior to 'this is all happening' (receiving the notice of intention to make an application) she had agreed to sell the vehicle to her nephew.[4] The prosecutor put a submission to the magistrate (which his Honour accepted) that the vehicle could not be sold because it was subject to the application and that no third person had an interest in the vehicle.[5]
[4] ts 8 November 2019, page 2.
[5] ts 8 November 2019, page 5.
By having regard to the appellant's circumstances only, the magistrate went on to find that he was not satisfied that if he made an order for confiscation of the vehicle, the order would result in severe financial or physical hardship to the appellant. For this reason, his Honour made the order for confiscation.
The appellant's appeal contains one ground. When regard is had to the appellant's written submissions, the gist of the ground of appeal is that at the time the confiscation application was heard:
(a)she did not own the vehicle, as it had been sold (prior to her receiving notice of the confiscation application); and
(b)she had evidence to prove the sale, but was denied an opportunity to provide the evidence to the magistrate prior to the confiscation order being made.
Although not expressed as such, the ground of appeal understood in this way appears to assert that a breach of natural justice has occurred that constitutes a miscarriage of justice.
In support of her appeal, the appellant made an application to admit other evidence on the appeal. In accordance with interim orders made by the Principal Registrar on 20 January 2020, the appellant filed and served two affidavits containing evidence that was not before the magistrate. The first affidavit was sworn by the appellant on 7 February 2020. The second affidavit was sworn by her nephew, Mr Shane Edward Johnson (Mr Johnson) on the same date. On 14 February 2020, the Principal Registrar ordered that the two affidavits stand as the appellant's application to admit other evidence on the appeal.
Prior to the hearing of the appeal, the State Solicitor's Office, on behalf of the respondent, filed written submissions conceding that the appeal should be allowed. In the submissions, the respondent made the following concessions:
(1)the two affidavits filed by the appellant should be admitted as new evidence in the appeal as the evidence demonstrates that a miscarriage of justice has occurred, in that, the new evidence establishes that:
(a)the property in the vehicle was transferred in the vehicle to the appellant's nephew, Mr Johnson, by 22 August 2019, and at that time of hearing of the application Mr Johnson had obtained a relevant 'interest' in the vehicle, that is title to the vehicle; or
(b)alternatively, at the time the appellant received the notice of intention to confiscate the vehicle, Mr Johnson was in possession of the vehicle and therefore had an interest in the vehicle by virtue of possession;
(2)the magistrate erred in law and fact by wrongly concluding that the vehicle had not been sold at the time of the offence;
(3)the appellant's nephew had not obtained an interest in the vehicle;
(4)as his Honour did not allow the appellant to prove this sale he did not afford her a reasonable opportunity to show cause why the confiscation order should not be made, as required by s 80G(4)(a) of the RT Act; and
(5)the magistrate also did not provide an opportunity for Mr Johnson to show cause why the order should not be made, as required by s 80G(4)(c) of the RT Act.
Whilst I do not agree that the magistrate found that the vehicle had not been sold 'at the time of the impounding offence', I agree that the concessions made on behalf of the respondent were otherwise properly made. Having read the transcript of the proceedings, and in particular his Honour's reasons for making the confiscation order, it appears that his Honour took the view that the application for the confiscation order itself prohibited the sale of the vehicle. Because of this finding, and because of the other matters conceded on behalf of the respondent (which I accept are concessions properly made) I made orders on 7 April 2020, granting leave to appeal, allowing the affidavit evidence standing as the appellant's application to admit other evidence as evidence on the appeal, allowing the appeal, setting aside the confiscation order, and remitting the matter to the Magistrates Court to be dealt with according to law. These are my reasons for making the orders.
Legal principles ‑ confiscating vehicles under div 4 of pt V of the Road Traffic Act 1974 (WA)
Section 80C provides:
(1)A court that convicts a person of an impounding offence (driver's licence) may, by order, confiscate a vehicle referred to in section 80GA.
(2)A court is not to make an order under subsection (1) unless it is satisfied that in the 5 years before the day on which the offence was committed the person was convicted of 2 previous impounding offences (driver's licence).
Section 80GA(1) provides that the Commissioner cannot apply for an order under s 80C(1) for the confiscation of a vehicle unless: (a) the offender is a responsible person for the vehicle; and (b) in the case of an order (sought) under s 80B(1) or s 80C(1), the vehicle is used in the offence.
Section 80G sets out the procedure and grounds for making orders under, among other things, s 80C. Section 80G(2) provides that an application for an order under s 80C(1) can only be made by the Commissioner and is to be heard in one of two situations, relevantly, 'as part of the proceedings in which the person is convicted of the offence', and 'in subsequent proceedings commenced no later than 3 months after the proceedings in respect of the conviction'.
Pursuant to s 80G(3), a person is to be regarded as having sufficient notice of the Commissioner's intention to make an application for an order in respect of a particular vehicle if the Commissioner gives the person written notice of that intention at least 14 days before the application is made and the person is, the driver of the vehicle, a responsible person, or any other person who the Commissioner is aware has or may have an interest in the vehicle.
Section 80G(4) requires that prior to the exercise of the court's discretion to make a confiscation order under s 80C(1), the court has to give a reasonable opportunity to show cause why the order should not be made to:
(a)the driver of the vehicle; and
(b)if a person other than the driver is a responsible person for the vehicle, each responsible person; and
(c)each other person, if any, who has an interest in the vehicle.
Pursuant to s 80G(5) in determining whether or not to make an order (other than an order under s 80A(3) and s 80A(4))[6] the court may have regard to:
…
(b)whether making the order will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle; and
(c)any other relevant matter.
[6] In this matter, an order was not sought under s 80A(3) and s 80A(4).
An 'interest' for the purposes of div 4 of pt V of the RT Act, is defined in s 78A of the RT Act to mean, in relation to a vehicle, a legal or equitable interest, right or title in or to the ownership or possession of the vehicle.
As the respondent points out in their written submissions the terms, 'legal interest', 'equitable interest', 'right or title to ownership' and 'possession' are different categories of 'interest' a person may have in relation to a vehicle and properly makes the following points set out in [19] to [24] of these reasons.
A legal interest, in relation to property, is a 'bundle of rights' used to exercise power over a thing, usually the right to possess or use the property, or exclude others from, or from the use of, that property.[7]
[7] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 [17] (Gleeson CJ, Gaudron, Kirby & Hayne JJ).
An equitable interest is a beneficial interest which may arise in several ways, such as an interest of a beneficiary in trust assets.
What constitutes a 'right or title to ownership', must be construed within the meaning of the term 'owner'. The term 'owner' is by operation of s 5 of the RT Act is defined by the application of the definition of 'owner' in s 5 of the Road Traffic (Administration) Act 2008 (WA) (RTA Act) which provides that:
5. Owner of vehicle
(1)In a road law ‑
owner, in relation to a vehicle, means ‑
(a)the person who is entitled to the immediate possession of the vehicle; or
(b)if there are several persons entitled to its immediate possession, the person whose entitlement is paramount,
but if one of 2 or more persons fitting that description has been nominated for the purposes of subsection (2) it means only the person nominated.
(2)If a vehicle is owned by more than one person and one of those persons is nominated by all such persons, by notice in writing given to the CEO, then for the purposes of a road law, the nominated person is to be taken to be the owner of the vehicle.
Judge Lonsdale recently relevantly observed in Scoby-Smith v Lang that on the basis of s 6 of the RTA Act, the person who is registered as the licence holder is prima facie the owner of that vehicle, but s 5 of the RTA Act clearly contemplates a broader notion of ownership and contemplates that there may be more than one person entitled to immediate possession of a vehicle.[8]
[8] Scoby-Smith v Lang [2019] WADC 57 [37] ‑ [40].
Section 17(1) of the Sale of Goods Act 1895 (WA) provides that property the subject of a sale of goods is transferred from the seller to the buyer at the time the parties intend for it to be transferred. Consequently, where an unconditional contract for the sale of specific goods, in a deliverable state, is made, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.[9] Accordingly, title transfers when the contract is made.
[9] Sale of Goods Act 1895 (WA) s 18 r 1.
'Possession' of a thing, is the right or entitlement to possess the thing in question.[10] Possession ordinarily connotes exclusive control over the subject said to be possessed. Control, or the right to control, is central to possession'.[11]
[10] Moors v Burke [1919] HCA 32; (1919) 26 CLR 265, 271 (Isaacs, Gavan Duffy & Rich JJ).
[11] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [478] (McHugh J).
The application to adduce additional evidence on the appeal
Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), an appeal court may admit any other evidence.
The power in s 40(1)(e) is as the respondent contends, wide,[12] and should be exercised in the context of an appeal against an order made as a result of a conviction, if the evidence shows that a different order should have been made by the court at first instance, that is, that a miscarriage of justice has occurred, or that the decision-maker at first instance has made an error.[13]
[12] Li v Skala [2018] WASC 353 [67] (Pritchard J).
[13] See the discussion of relevant principles that apply in respect of appeals against conviction in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] ‑ [101] (Buss P & Newnes JA agreeing) and in the context of an appeal against sentence in Suleiman v The State of Western Australia [2017] WASCA 26 [53] (Buss P, Mazza & Mitchell JA agreeing).
The additional evidence is contained in the two affidavits filed by the appellant.
The affidavit of the appellant establishes that on and between 13 and 19 August 2019, the appellant and Mr Johnson's father discussed the sale of the vehicle by telephone.[14] The respondent contends, and I accept, that this evidence establishes that Mr Johnson's father was acting as his agent.
[14] Affidavit of Jaye Johnson, sworn 7 February 2020 [2] and Attachment B.
Whilst it is not clear whether the appellant made the offer to sell the vehicle or whether Mr Johnson, through his father, made an offer to purchase the vehicle, it is clear from the affidavit of Mr Johnson that the sale was completed by no later than 22 August 2019, which was seven days prior to the appellant being served with the notice of intention to confiscate the vehicle.
In his affidavit, Mr Johnson states that:
(a)he was told by his father that the vehicle was available for sale on 15 August 2019 for $500, it was roadworthy and licensed but it needed servicing and some repairs;[15] and
(b)he agreed to the sale, took possession of the vehicle and signed the transfer and registration papers on 25 August 2019;[16] and
(c)he paid $500 for the vehicle.[17]
(d)he submitted the car transfer papers to the Department of Transport on 28 August 2019;[18]
(e)on the basis that the vehicle was owned by him, he had a mechanic make repairs at his home which included the installation of an oil filter and engine oil. He also purchased a car stand, car jack and an oil pan. All of these items, including the oil filter and engine oil were purchased on 29 August 2019 for a sum of $161.03 from SCA Morley ‑ Galleria;[19]
(f)at a later date, another mechanic replaced some basic parts on the vehicle including the cabin filter, coolant, air filter and spark plugs. The cost of these repairs, including the earlier repairs, was over $500; and
(g)he has expended more than $1000 in acquiring the vehicle including the initial $500 paid to the appellant, and the cost of parts, repairs and registration fees which has taken a considerable amount of his savings.[20]
[15] Affidavit of Shane Johnson, sworn 7 February 2020 [1].
[16] Affidavit of Shane Johnson, sworn 7 February 2020 [1].
[17] Affidavit of Shane Johnson, sworn 7 February 2020 [1].
[18] Affidavit of Shane Johnson, sworn 7 February 2020 [2] and Attachment 1.
[19] Affidavit of Shane Johnson, sworn 7 February 2020 [3] and Attachment 2.
[20] Affidavit of Shane Johnson, sworn 7 February 2020 [5].
The appellant in her affidavit states that:
(a)in mid-September 2019, the Department of Transport returned to her the vehicle license transfer papers together with advice that they were unable to process the transfer due to the pending application in the court for confiscation of the vehicle;[21] and
(b)when she appeared in court on 8 November 2019, the prosecutor Ms MacNab, informed the magistrate that she (the appellant) had been given the opportunity to provide information but she did not think they had received anything from her regarding her circumstances. Ms MacNab then left the courtroom leaving her colleague to make a submission that there was no financial impact on a third person because the vehicle was subject to the Commissioner's application and had not been sold to the appellant's nephew.[22]
[21] Affidavit of Jaye Johnson, sworn 7 February 2020 [3].
[22] Appellant's outline of submissions, filed 6 March 2020 [11] ‑ [12]; see also ts 8 November 2009, page 5.
The effect of the affidavit evidence establishes that by 22 August 2019, Mr Johnson obtained a relevant 'interest' in the vehicle as an owner of the vehicle. Whilst it is not necessary to decide, he was by that time in possession of the vehicle. As such, when the matter came on for hearing before the magistrate on 8 November 2019, Mr Johnson was a person who had an interest in the vehicle within the meaning of s 80G(4) of the RT Act, as defined in s 78A of the RT Act.
I made an order that the additional evidence should be admitted on the appeal as I was satisfied that, for the reasons that follow, had the additional evidence been before the magistrate at first instance that there would have been evidence before the court sufficient to invoke the statutory command pursuant to s 80G(4) to give a reasonable opportunity to the appellant and Mr Johnson to show cause why a confiscation order should not be made.
Error demonstrated
The transcript reveals that the magistrate erred by proceeding on the basis that the application for confiscation before the court prohibited the sale of the vehicle and that as a consequence no transfer (of any 'interest' in the vehicle) could have passed to Mr Johnson. This is evident from the following exchange between the prosecutor who took over from Ms MacNab after she left the courtroom:[23]
[23] ts 8 November 2019, page 5.
….., Ms:
Thank you, Sir. The prosecution's position would be that the vehicle can't be sold because it is subject to the (indistinct) application.
His Honour:
Yes. No I ‑ that's ‑ ‑ ‑
….., Ms
So, there is no financial impost there.
His Honour:
No.
…., Ms:
And it hasn't been transferred to the nephew, so it doesn't affect a third person.
His Honour:
No. That's irrelevant to me for the moment.
As the respondent points out, the magistrate erred by proceeding on the basis that an 'interest' in the vehicle, extended only to the licence holder who was in this matter, the appellant.
Unfortunately, the magistrate did not turn to the appellant, during the brief hearing of the application, to invite her to respond to the prosecution's position that the vehicle could not be sold or be transferred, or submit any evidence in support of her submission. Plainly, if (as the new evidence does in fact establish) the vehicle had been sold prior to the Commissioner giving notice to the appellant of the application for a confiscation order of the vehicle, the prosecution's submission that the vehicle could not be sold because it was subject to the application for confiscation was misconceived, and wrong at law.
As the respondent also points out in its written submissions, the magistrate acted without jurisdiction in making the confiscation order because Mr Johnson was not afforded a reasonable opportunity to show cause why a confiscation order should not be made.
Pursuant to s 80G(6) and s 80G(7A) of the RT Act, a person who is given sufficient notice by the Commissioner of an intention to apply for a confiscation order is prohibited from disposing of any interest that the person has in the vehicle, and if they do so, they commit an offence. However, these provisions must necessarily be construed to prohibit the disposing of an interest in a vehicle by a person to whom the notice is served after the person has been given sufficient notice as prescribed by s 80G(3)(a) of the RT Act.
For these reasons, I was satisfied that an error of law was demonstrated and that a miscarriage of justice had occurred, which required the court to intervene to allow the appeal and set aside the confiscation order.
In any event, although it is not an issue in this appeal, even if the evidence before the court was that the vehicle had been sold to a third party after a notice of intention was served on a person who had been convicted of an impounding offence, whilst the disposal of an interest in the vehicle would constitute an offence pursuant to s 80G(6) and s 80G(7A), the court would still be required, pursuant to s 80G(4) to provide a reasonable opportunity to the third party to show cause why a confiscation order should not be made.
The respondent also puts an alternative submission that it would be open for the court to find that the magistrate erred by not considering whether an order would cause severe financial or physical hardship to Mr Johnson, as a person with an interest in the vehicle. However, the determination of this issue would not have been open to the magistrate to consider without first providing an opportunity to Mr Johnson to be heard as to whether a confiscation order should be made, as he was at the time that the confiscation application was heard, a person with an 'interest' as defined in s 78A of the RT Act.
Application for confiscation remitted to Magistrates Court
Prior to making orders disposing of the appeal I invited further submissions from the parties as to whether the application for confiscation should be remitted to the Magistrates Court or determined by this court.
On 1 April 2020, the State Solicitor's Office, on behalf of the respondent, filed further written submissions in which they point out the well-established principle that the power in s 14(1)(d) of the Criminal Appeals Act 2004 (WA) of the court to substitute a decision (that should have been made by the court of summary jurisdiction), should only be exercised when the court has all materials before it enabling it to make the decision, and when it is efficient and expeditious to do so.[24]
[24] See the discussion in Busby v Burrow [2012] WASC 58 [103]; see also Reilly v Tobiassen [2008] WASC 92; (2008) 172 IR 442 [5] (EM Heenan J).
The appellant filed further written submissions in respect of this issue on 3 April 2020. Both parties in their written submissions put a submission that the application for a confiscation order should not be determined by this court but be remitted.
As McGrath J held in Ninyette v Jones, in order to determine whether to make a confiscation order pursuant to s 80C of the RT Act, the court must consider the discretionary factors in s 80G(5).[25] The factors relevant in this case are at least s 80G(5)(b), that is, whether making the order will cause severe financial or physical hardship to a person who has an interest in the vehicle, and s 80G(5)(c), any other relevant matter.
[25] Ninyette v Jones [2018] WASC 317; (2018) 86 MVR 186 [25].
Accordingly, whilst it is open to this court to determine the application, I should only do so if I conclude that there is sufficient evidence as to whether making a confiscation order will cause severe financial or physical hardship to Mr Johnson.
Mr Johnson in his affidavit sworn on 7 February 2020, deposes that he is presently unemployed and in receipt of Centrelink payments, and that if he loses his vehicle it would become extremely difficult for him to find and maintain a job. This evidence, because of the passage of time, is at this point in time stale. The appellant points out in her further written submissions provided to the court on 3 April 2020, that Mr Johnson should be afforded an opportunity to provide further evidence that not only is he in receipt of Newstart, he has, or has access to, casual employment in night shift warehousing which requires him to have access to a vehicle.
Whilst both parties agree there is some evidence that the granting of the application might result in severe financial or physical hardship to Mr Johnson, I agree that the evidence before this court is insufficient to safely make such a finding. For this reason, I made an order remitting the application for confiscation of the vehicle 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.
NM
Research Orderly to the Honourable Justice Smith15 APRIL 2020
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