Kane v Hodgson
[2010] WASC 251
•16 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KANE -v- HODGSON [2010] WASC 251
CORAM: JENKINS J
HEARD: 8 SEPTEMBER 2010 & ON THE PAPERS
DELIVERED : 16 SEPTEMBER 2010
FILE NO/S: SJA 1049 of 2010
BETWEEN: RAYMOND BERNARD KANE
Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HOGAN
File No :PE 42817 of 2009
Catchwords:
Criminal law - Appeal against conviction - Failing to comply with an amber traffic control signal - Leave to appeal - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8
Road Traffic Code 2000 (WA), reg 40(1), reg 41(1), reg 41(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: Mr I A Repper
Solicitors:
Appellant: No appearance
Respondent: State Solicitor's Office
Case(s) referred to in judgment(s):
Nil
JENKINS J: On 16 April 2010, the appellant pleaded guilty to one count of failing to comply with an amber traffic control signal. He was fined $100 and ordered to pay costs of $114.20. The appellant appeals his conviction. He requires leave to appeal on any proposed ground of appeal. The issue of leave has been dealt with on the papers. As I would not grant leave to appeal on any proposed ground of appeal, the appeal is dismissed.
Grounds of appeal
The notice of appeal does not contain grounds of appeal which satisfy the requirements of the Criminal Appeals Act 2004 (WA) s 8. It does contain a narrative which, I presume, the appellant believes encapsulates his grievances related to his conviction.
The narrative, in summary, states that at the Magistrates Court on 16 April 2010 the appellant spoke to a police officer outside the courtroom who asked him why he was defending the charge which was then one of failing to comply with a red traffic control signal. The appellant says that he told the officer it was because he had crossed an amber signal and because he also had an elderly lady standing in the corridor of the Path transit bus, which he was then driving. He alleges that he told the officer that if he had stopped he would have caused serious injury to his passenger. Further, he relies on the Road Traffic Code 2000 (WA) reg 41(3) which provides that if a traffic control signal facing a driver displays a steady yellow signal and the driver is not able to stop safely, in effect behind the stop line associated with the signal or before the intersection, the driver shall leave the intersection as soon as the driver can do so safely. He told the officer that the safety of his passenger was his primary concern. He says that the camera technician then verbally admitted that the photo taken by the red light camera showed the appellant crossing the stop line on an amber light.
The appellant says the prosecutor then asked him if he would take a lesser plea of crossing an amber signal which incurred a monetary fine and no demerit points. The appellant says he accepted this offer, only with the understanding that there were no points attached to it. He says that he has now been told that the advice was incorrect and he has incurred two demerit points as a consequence of his conviction. The appellant says that if he had been given the correct information, he would not have pleaded guilty to the offence and he would have proceeded to a hearing.
The charge
The appellant was originally charged with an offence under the Road Traffic Code reg 40(1). On 16 April 2010, the charge was amended so that it was alleged that on 10 February 2009 at North Perth the appellant, being the driver of a vehicle on Charles Street and approaching the intersection of Green Street where a traffic control signal applicable to him displayed the colour amber, failed to comply with the said traffic control signal contrary to reg 41(1).
Regulation 41(1) provides that if a traffic control signal facing a driver displays a yellow signal, the driver shall not proceed beyond the stop line associated with the signal, unless the driver is so close to the stop line when the yellow signal first appears that the driver cannot safely stop the vehicle before passing over the stop line. The maximum penalty for the offence is a fine of 24 penalty units. The two demerit points automatically follow the conviction.
Proceedings on the appeal
On 26 July 2010, a directions hearing was held at the instigation of the court. At that time I advised the appellant that the appeal had no prospects of success unless he filed an affidavit in support of his appeal. I explained to the appellant that he did not have to file any evidence, but that if he did so, the deponent may be cross‑examined by the respondent to the appeal. The appellant said that he understood what I had explained to him. I told the appellant that I would make directions requiring him to file any affidavit or affidavits on which he wished to rely. I asked him how long he would require to file any affidavits. He told me that he would require three weeks and I made a direction requiring him to file and serve any affidavits on which he wished to rely by 16 August 2010. I then gave the respondent time in which to file any affidavits he wished to rely on by 30 August 2010. I made a further order that by 6 September 2010, the parties give notice in writing if they wished to cross‑examine any witness. I adjourned the directions hearing to 9.30 am on Wednesday, 8 September 2010.
On 8 September 2010, the appellant failed to appear at the adjourned directions hearing. Further, he has not filed any affidavit in support of his appeal.
Merits of the grounds of appeal
The appellant pleaded guilty to the charge and received a penalty that was appropriate to the facts presented to the court and the appellant's personal circumstances.
The respondent has filed two affidavits in response to my orders. The first is the affidavit of Garry James Gillam sworn 31 August 2010 and the second affidavit is the affidavit of John Dezille sworn 1 September 2010. I give leave to the respondent to rely on these affidavits.
Mr Gillam, a sergeant in the Western Australian Police Service, says that he was a prosecutor at the Perth Magistrates Court on 16 April 2010. He says that he had a conversation with the appellant prior to the matter being heard in court. He says he recalls the appellant explaining to him that he was driving a bus at the time of the offence and that he had an elderly passenger who was standing up in the aisle. He says he did not discuss demerit points with the appellant during their initial discussions as he was unaware of the penalties for contravening an amber light . He says that he may have told the appellant about penalty units during a later conversation. He says that other police officers present also had discussions with the appellant, but he was not privy to those conversations as he was preparing for court and dealing with enquiries from other accused and their solicitors. He says he does not recall hearing any other person discussing demerit points with the appellant. He says that as a result of his conversation and other people talking with the appellant, the prosecutor, Ms Megan Morris, sought to amend the charge to one of contravening an amber traffic control signal. The appellant then pleaded guilty to the offence.
Mr Dezille, a camera operator in the Western Australian Police Service, says that he attended court on 16 April 2010 but has no recollection of speaking to the appellant in court on that day. He says that it is not his usual practice to talk to defendants when he goes to court. He says that he did not recall hearing anyone discuss demerit points with the appellant.
Attached to the affidavit of Mr Dezille are two photographs from the relevant red light camera showing the light and the appellant's bus from the rear as it proceeded through that light. The photographs were taken at night time. The first photograph shows the light as red. It is possible, but in my view not very likely, that the front of the bus is beyond the stop line associated with the traffic control signal. The second photograph also shows the light as red and the appellant's bus in the middle of the relevant intersection. Clearly, it was taken after the first photograph.
The material before the magistrate and the additional affidavit material admitted before me indicates that any properly formulated ground of appeal which may be gleaned from the narrative in the notice of appeal has no reasonable prospects of success.
The proceedings before the magistrate were entirely regular. There is no evidence before me that the appellant was incorrectly advised of the likely, mandatory or maximum penalty for the offence to which he pleaded guilty.
Further, the closeness of the front of the appellant's bus to the stop line associated with the red traffic control signal indicates to me that the bus could not have been so close to the stop line when the yellow signal first appeared that, if he was travelling at a safe speed, he could not have safely stopped his vehicle before passing over the stop line. This is even if I accept that he had an elderly passenger standing in the aisle of the bus. In these circumstances, reg 41(3) does not apply. In any event, in the absence of affidavit evidence to support the narrative in the notice of appeal, there is simply a lack of evidence to support the appeal.
Conclusion
Leave to appeal is refused as the grounds of appeal do not comply with the Criminal Appeals Act s 8 and, in any event, a ground of appeal formulated from the narrative in the notice of appeal, would not have reasonable prospects of success. The appeal is dismissed.
Orders
Consequently, I make the following provisional orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
3.The appellant is to pay the respondent's costs of the appeal fixed in the sum of $500.
0
0
2