King v City of Fremantle - [2004] WASCA 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KING -v- CITY OF FREMANTLE [2004] WASCA 212

CORAM: BARKER J

HEARD: 4 JUNE 2004

DELIVERED : 16 SEPTEMBER 2004

FILE NO/S: SJA 1111 of 2003

BETWEEN: PAUL ANTHONY KING
Applicant
AND
CITY OF FREMANTLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram   :MR WHEELER SM
File Number            :  FR 3069, FR 3070 & FR 10296 of 2003

Catchwords:

Application for leave to appeal and extension of time - Whether grounds of appeal disclose an arguable case

Legislation:

Criminal Code (WA), s 24, s 25

Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 9
Equal Opportunity Act 1984 (WA), s 4, s 66A(1)
Justices Act 1902 (WA), s 71, s 185, s 186, s 187, s 206C
Local Court Rules 1961 (WA), O 3 r 11, r 14
Official Prosecutions (Defendant's Costs) Act 1973 (WA)

Rules of the Supreme Court 1971 (WA), O 65A r 2(b), O 70

Result:

Application for extension of time granted
Application for leave refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr J W C Skinner

Solicitors:

Applicant: In person
Respondent: McLeods

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

Dempster v National Companies and Securities Commission (1993) 9 WAR 215

Case(s) also cited:

Boomali Ltd v Hake [1985] WAR 7
Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196
Gallow v Dawson (1990) 93 ALR 479
Girando v Girando (1997) 18 WAR 450
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
Pedersen v Chadwick (2002) 28 SR (WA) 371

BARKER J:

Introduction

The applicant, Mr King, seeks leave to appeal pursuant to s 185 of the Justices Act 1902 (WA) against the decision of the Magistrate in the Fremantle Court of Petty Sessions on 4 September 2003 whereby the Magistrate found Mr King guilty on three counts of failing to display a valid ticket on a motor vehicle contrary to the City of Fremantle Local Laws.
Mr King also seeks an extension of time within which to apply for leave to appeal, as his application was lodged on 30 September 2003, some five days out of the time limited by the Justices Act.

The three parking infringements

Mr King was charged with:
(1)on 25 January 2002 at location 13 parking station, Fremantle, failing to display an unexpired ticket in the car park, contrary to the City of Fremantle Parking Local Laws ("first charge");
(2)on 8 November 2002 in Croke Lane, Fremantle, failing to display an unexpired ticket in a ticket machine zone at box number 15 contrary to the City of Fremantle Parking Local Laws ("second charge"); and
(3)on 12 September 2002 at Cliff Street, Fremantle, failing to display an unexpired ticket in a ticket machine zone ("third charge").
Mr King pleaded not guilty to all three charges, but was found guilty on each by the Magistrate and fined $75 and ordered to pay costs of $500 in relation to each offence.

History of proceedings in the Supreme Court

The application for leave to appeal and extension of time was initially listed before Wheeler J on 9 October 2003. On that date her Honour ordered that the matter be adjourned sine die to enable the transcript of the hearing on 4 September 2003 to be obtained. Her Honour also ordered that a copy of the transcript and notice to adjourn the hearing date be given by Mr King to the City of Fremantle and that costs be reserved.
Mr King, in a letter dated 2 October 2003 to "The Registrar Fremantle Court of Petty Sessions", a copy of which appears on the Court file, states that he did, on 6 September 2003, forward a request for a copy of the relevant transcript but "to date have not received a reply". Mr King then states in his letter that the original correspondence is attached and that he hopes the matter can be dealt with with some urgency. On the bottom of the letter appears the following handwritten annotation:
"Hand delivered TO Court offices Fremantle morning of Thurs 2 October 2003".
A file note on the Court file dated 8 October 2004 notes that the Fremantle Court "has no record of Mr Kings letter of 6/9/03".
On 25 November 2003, Mr King addressed a letter to this Court advising that:
"On the 17 October I was involved in a motor vehicle accident through no negligence on my part. My motor vehicle is a complete write off and there exists problems with the negligent drivers insurance company paying me the market value of the motor vehicle so I can purchase another.
Further to the above I also sustained injuries to my spine in particular cervical spine and lumbar/sacral spine as to both my legs ie both knees. I have to attend the medical practitioners twice weekly as to constant physiotherapy. I have my neck in a brace and collar and am on anaesthesia medication for pain. This medication causes much drowsiness and greatly affects my concentration. I also have to rest and have limited movement at present.
The above has greatly affected my ability to obtain the Transcript and further prepare the Appeal. I have written to the Fremantle Magistrates Court seeking the form to obtain the Transcript but to date have not received any correspondence back at all. As soon as I do this shall be completed requesting the Transcript.
Mr medical Practitioner states that it will not be until the end of January that I shall have recovered sufficiently enough to prepare my appeal. Should the Supreme Court require medical certification could I please be advised so I can obtain such?
I shall notify the Defendants of such and advise as to the reasons for delay.
Yours faithfully
[Sgd]
Paul Anthony King
The Appellant"
Mr King did not thereafter obtain a copy of the transcript. The solicitors for the respondent eventually obtained the transcript some time in April 2004 and provided a copy to both Mr King and the Court. The respondent then requested that the application for leave to appeal and extension of time be relisted. The application was then relisted for hearing on 11 May 2004 at 10.30 am before me. On that date, Mr King failed to appear in Court. However, the respondent's solicitors provided the Court with a copy of an e‑mail dated 7 May 2004 to the respondent's solicitor from Mr King, stating:
"I confirm with you as I did yesterday via telephone that I have not received any copy of the transcript that you state you have sent …
As you are aware yesterday I received correspondence delivered by courier and left at front door. This was only discovered at 4pm. You state that you held the assumption that I had received the transcript and you had listed the matter to be heard next Tuesday 11 May 2004.
This date is not at all good for me. I have a Doctors appointment that cannot be missed and do not have the transcript so there is no way the Appeal could be heard. I raise here natural justice. I stated to you when I receive the Transcript I shall commence formulating the Appeal and serve the relevant documents upon you.
As you are aware my head injury which has occasioned me a mental impairment is causing problems as to my neck injury received recently in a motor vehicle accident. The neck injury and back injury prevent me from sitting at the computer for extended periods or sitting at all. This will make it slower for me preparing the Appeal …
I can have the Appeal I feel ready in the time frame of one month upon receipt of the transcript. As discussed with you via telephone this was an agreeable time frame and you stated you would attend the Supreme Court on Tuesday and explain what is happening."
As a result, I ordered that the matter be adjourned to 27 May 2004 at 10.30 am, that the respondent give Mr King notice of the adjourned hearing date and that costs be reserved. Due to the unavailability of a Judge to hear the matter at 10.30 am on 27 May, it was necessary for the matter to be listed at 2.15 pm on that day. Both Mr King and the respondent were advised of the change by e‑mail on 25 May.
By e‑mail response sent later that same day, Mr King advised the Court that:
"Thursday afternoon after 2:15 is totally unsuitable for me. I have residency of two children a son aged 6 and duaghter [sic] aged 5. I have to collect them from their school … Further to that I have to take my tablets for neck injury and they are of sedative nature so would not function at all well in afternoon … I shall attend the Supreme Court tomorrow morning (Wednesday 26 May) and shall discuss the matter with you …"
As the respondent did not object to the matter not proceeding on 27 May, the application was relisted for 4 June at 10.30 am before me.
On 4 June, both parties appeared before me. After hearing from both Mr King and the respondent, I made the following orders:
"1.Applicant have leave to amend application in terms of the Minute to amend application dated 3 June 2004 as further amended and signed by me.
2.Applicant file written submissions in support of application for leave to appeal on each of the 6 proposed grounds of appeal set out in the application no later than 4 pm on 14 June 2004 and serve a copy on the Respondent's solicitor's forthwith.
3.The Respondent file any answering submissions no later than 4 pm on 21 June 2004 and serve a copy on the applicant forthwith.
4.The Applicant file any further submissions in response no later than 4 pm on 28 June 2004.
5.Costs of today be reserved."
I also noted on the fiat sheet that I would determine the application for leave on the written submissions.
On 21 June, Mr King wrote to the Court and to the respondent's solicitor by e‑mail advising that due to problems with his computer he had been unable to file his submissions in relation to the application on time. He advised that he would "have it submitted by tomorrow Tuesday 22 June 2004. However in reality this may not be until Wednesday 23 June". No submissions were filed in the Court on either 22 or 23 June.
Mr King wrote to the Court again on 28 June alleging that his computer had been infected by a virus due to an infected e‑mail sent by the respondent's solicitors and that his computer had therefore "crashed". Mr King also stated in his e‑mail that his "telephone line ceased to function and would not operate at all" and that his son was also sick and he had to care for him. Ultimately, Mr King stated that he was still not in a position to file submissions in relation to his application.
On 28 June, Mr King sent a further e‑mail to the Court requesting that he have a further week to complete his submissions. With his e‑mail he forwarded a document entitled "Submission under the Principal [sic] of Natural Justice" and a letter to me in support.
In the event, I allowed Mr King more time and gave him until 4 pm on 7 July 2004 to file his submissions. Part of Mr King's submissions were forwarded to the Court via e‑mail on 7 July. However, the entirety was not filed in the Court until 8 July.
The respondent filed answering submissions on 15 July.
Mr King advised the Court on 15 July that he intended responding to the respondent's submissions and would do so within a week. On 26 July Mr King advised the Court by e‑mail that his submissions in response would be e‑mailed to the Court later that day. The Court did not receive any such e‑mail or submissions.
On 27 July the Court received a fax from the respondent's solicitors advising that Mr King had not served on them a copy of his submissions in response and requesting the Court to proceed to determine the application on the basis of the submissions received by the Court to date.
On 28 July Mr King and the respondent were advised that the Court would proceed to deal with the application. That same day, Mr King sent an e‑mail to the Court asserting that he had forwarded his submissions in response to the Court via e‑mail on 26 July. On 29 July Mr King sent via e‑mail the submissions he claimed to have sent on 26 July. Although the submissions in response have not been formally filed at the Court, I have regarded them in determining the application before me.

Extension of time

By virtue of O 65A r 2(b) of the Rules of the Supreme Court 1971 (WA) an appeal must be lodged within 21 days after the decision it relates to was given. In this case, Mr King filed his application for leave to appeal five days out of time. However, the Court is able to grant an extension of time under s 206C(1) of the Justices Act.
The respondent takes no objection to an extension of time being granted in respect of the application on the basis that the length of the delay was minimal, Mr King has provided reasons for the delay and there is no prejudice to the respondent as a result of the delay.
I am then prepared to grant Mr King's application for an extension of the time within which to seek leave to appeal.

Principles relevant to granting leave to appeal

Section 186(1) of the Justices Act provides that an application for leave to appeal may only be made on a ground or grounds coming within the following:
"(a)that the justices ‑
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there is some other reason that is sufficient to justify a review of the decision."
Pursuant to s 187(1) of the Justices Act, leave to appeal should be granted unless the grounds of appeal advanced do not disclose an arguable case or the appeal is frivolous or vexatious.
In the context of the Justices Act, it is clear that an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued "in the sense that it has an argument which has some prospect of success": Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262.

Ground 1: Disability

Mr King's first ground of appeal relates to "Disability". He submits that the Magistrate erred in not ensuring that his interests as a person under disability were properly and adequately protected "given the Applicants mental health status at the time of trial".
In addition, Mr King states that:
"The Learned Magistrate erred by disallowing the Applicant to raise section 70 The Rules of the Supreme Court 1973 and address the Learned Magistrate with reference to a person under disability applicable in this instance to the Applicant."
In support of his submission, Mr King alleges that the Magistrate had before him a number of medical documents and specialist reports concerning Mr King's mental impairment and the exacerbation of his condition by the viral disease encephalitis, which provided the Magistrate with the requisite knowledge of his disability.
Mr King submits that the Magistrate, in the light of his knowledge, erred in not adjourning the trial to a date when Mr King "would be fit to stand trial", and that the Magistrate should have referred Mr King "for Legal Advice for the whole of the matter". Mr King contends that throughout the trial it was obvious to the Magistrate that he (Mr King) "was becoming confused and the mental impairment was causing serious problems".
In response to these submissions, the respondent contends there is no indication from the transcript that any medical documentation or other evidence regarding Mr King's mental impairment was tendered to the Court and that the only reference to mental impairment in the transcript is found in statements made by Mr King during the course of cross‑examination and during interruptions to the prosecution's closing submissions.
The respondent submits that the relevant provision in relation to disability is s 71 of the Justices Act, which refers to the provisions of the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA). In any event, the respondent submits there was no evidence before the Magistrate that the applicant was not mentally fit to stand trial, as defined in s 9 of the Criminal Law (Mentally Impaired Defendants) Act.
In reply to these submissions, Mr King states that medical documentation was tendered through correspondence, "would have been on the file therefore before the Learned Magistrate as evidence" and, in any event:
"The Learned Magistrate was the Magistrate that heard the application [for re‑hearing] under Section 136A of the Justices Act and again would have held the requisite knowledge of the Applicants mental impairment at that time".
Mr King submits that the Magistrate ignored the issue of mental impairment every time it was raised and that the Magistrate erred in "not making further inquiry of the Applicant in regard to the disability" and also in "not considering all options available to the Court given the Applicants disability". Mr King contends that s 71 of the Justices Act is not applicable, and that the Magistrate should have given consideration to O 3 r 11 and r 14 of the Local Court Rules 1961 (WA).
Mr King raised the issue of mental impairment at several times during the trial, as may be seen from, for example, pages 4, 32, 40 ‑ 43 and 57 of the transcript. It was raised while documents were being tendered, during the course of cross‑examination and during the Magistrate's concluding comments. However, at no stage of the proceedings did Mr King refer to or seek to tender as evidence any medical documents in relation to his claimed disability, and there is no indication from the transcript that any such documents exist, either on the Court file or otherwise.
In my view, in the circumstances as they prevailed, the Magistrate was required to determine the matter before him on the evidence that was presented to him on the day of the hearing.
I note that in the transcript, at pages 42 ‑ 43, 57 ‑ 58 and 63, Mr King sought to make use of "section … 71 of the Supreme Court Act" and submitted to the Magistrate that: "Any head injured person or mentally impaired person shall have a guardian in court for them".
I apprehend that Mr King, when he sought to raise "section 71", actually intended to raise O 70 of the Rules of the Supreme Court, which deals with persons under a disability. However, the Rules of the Supreme Court do not apply in the Court of Petty Sessions and O 70 was not relevant to the issue before the Magistrate.
Although Mr King disputes the potential applicability of s 71 of the Justices Act to his position, indeed it appears relevant to his submission and I will deal with it briefly. Section 71 provides:
"If a question about a defendant's mental fitness to stand trial arises before justices on the hearing of a complaint for an offence, it is to be dealt with under the Criminal Law (Mentally Impaired Defendants) Act 1996."
Section 9 of the Criminal Law (Mentally Impaired Defendants) Act provides that a defendant is not mentally fit to stand trial for an offence if the defendant, because of mental impairment, is:
(a)unable to understand the nature of the charge;
(b)unable to understand the requirement to plead to the charge or the effect of a place;
(c)unable to understand the purpose of a trial;
(d)unable to understand or exercise the right to challenge jurors;
(e)unable to follow the course of the trial;
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
"Mental impairment" is defined in s 8 to mean intellectual disability, mental illness, brain damage or senility.
There was no relevant evidence before the Magistrate to suggest that Mr King was not mentally fit to stand trial for the three offences with which he was charged. Moreover, Mr King clearly demonstrated during the course of the hearing that he was able to understand the nature of the charges against him, the requirement to plead to those charges, the effect of that plea and the purpose of the hearing, was able to follow the course of the hearing, understood the effect of the evidence presented by the prosecution and was able properly to defend the charges in terms of raising several potential defences. Thus, even if the question arose of Mr King's mental fitness to stand trial before the Magistrate, Mr King was not assisted by the application of these relevant provisions.

In relation to Mr King's contention that the Magistrate should have given consideration to O 3 r 11 and r 14 of the Local Court Rules, which deal with the appointment of a guardian for a person of unsound mind and powers to set aside a judgment made against a person of unsound mind respectively, even if they can be said to be relevant in proceedings in the Court of Petty Sessions, which I doubt, there was no relevant evidence or anything else that seriously suggested that Mr King was a person of unsound mind.
I therefore conclude that this ground of appeal has no prospect of success if leave to appeal were granted.

Ground 2: Apprehension of bias

Mr King's second ground of appeal is that the Magistrate did not bring an "impartial and unprejudiced mind" to the resolution of the matters in issue at the trial, and was actually biased or would be perceived as being biased.
Mr King alleges that:
"The very high standards of manifest neutrality in and impartiality to be adhered to by courts in Australia were in the case of the Applicant much lower standards and devoid of the principles of neutrality."
Further, Mr King says the Magistrate refused to make any inquiries into whether bias existed after Mr King had raised the issue on several occasions, refused to disqualify himself from hearing the matter and did not bring "a detached mind to the task in hand". In addition, the "actual language" used by the Magistrate and the "perceived attitude" of the Magistrate led Mr King to apprehend that the Magistrate was biased against him.
The respondent contends that Mr King asserts instances of bias on the part of the Magistrate on three occasions:
(1)in response to the Magistrate's ruling against Mr King in relation to the production of certain documents by the prosecution;
(2)in response to a reprimand by the Magistrate in relation to Mr King's behaviour during cross‑examination; and
(3)in response to a reprimand by the Magistrate in relation to Mr King's behaviour during delivery of the Magistrate's decision.
The respondent argues that on none of these occasions does Mr King provide any basis for raising an apprehension or perception of bias on the part of the Magistrate and that the Magistrate did not, in the circumstances, err in taking no further action in relation to Mr King's references to an apprehension or perception of bias.
The respondent submits that there is no objective basis for any reasonable apprehension or perception that the Magistrate might not bring or have brought an impartial or unprejudiced mind to the resolution of the issues before him.
In response to these submissions, Mr King submits that the Magistrate erred in not making any further inquiry as to the apprehension of bias that was raised and that the Magistrate should have disqualified himself from hearing the matter.
Mr King also submits that given the "attitude" of the Magistrate towards him, "it was difficult to raise an apprehension of bias" as the Magistrate's "nature was intimidating". Further, Mr King claims his own behaviour was directly caused by the Magistrate's "bias and intimidation".
It is clear from the transcript that the respondent is correct in submitting that Mr King made reference to an apprehension or perception of bias on the part of the Magistrate on the three occasions mentioned. It is also true that on none of these occasions did Mr King provide any basis for raising the issue of bias, apart from his own assertion.
There is nothing before me to suggest that the Magistrate did not act in a manner that was both impartial and unprejudiced during the trial. There is no objective basis on the evidence to conclude that the Magistrate did not bring an impartial and unprejudiced mind to the resolution of the issue before him. The Magistrate, at page 25 of the transcript, did note and acknowledge that Mr King had objected to him continuing to hear the matter. However, given the lack of foundation for Mr King's claims of bias, the Magistrate was entitled to continue with the trial and I am satisfied that the Magistrate did not err in taking no further action in relation to Mr King's allegations. In my view, there mere assertion by a party to a judicial officer hearing a case, that the judicial officer is biased cannot of itself found an arguable ground of bias. Other objective facts must be shown to demonstrate the bias contended for. Here they are not shown.
I therefore conclude that this ground of appeal has no prospect of success if leave to appeal were granted.

Ground 3: Discrimination

Mr King's third ground of appeal is that:
"The Learned Magistrate has breached the Equal Opportunity Act 1984 (WA) in regard to Discrimination on the Ground of Impairment."
Mr King contends that he satisfies the definition of "impairment" found in s 4 of the Equal Opportunity Act 1984 (WA). It is Mr King's submission that the Magistrate erred in "allowing the Respondent to treat the Applicant as idiot in a Court of Law".
Mr King states that the Magistrate referred to him as a "prat", a word commonly used to describe someone who is stupid, denotes extreme foolishness or who is "mentally slow". Mr King thereby submits the Magistrate acted in a discriminatory way towards him.
I note that the word "prat" is defined by the Shorter Oxford English Dictionary (5th ed) to mean, relevantly: "an insignificant person; a fool, a blockhead, slang" (emphasis is in original).
The respondent contends that this ground of appeal does not fall within s 186(1) of the Justices Act. The respondent also contends that there was no evidence before the Magistrate as to any mental impairment on the part of Mr King. Further, the respondent denies that Mr King was treated by the prosecution as an "idiot" and states that the Magistrate's use of the word "prat" was made in the context of Mr King's behaviour immediately prior to the comment.
In response, Mr King contends that discrimination is a ground for appeal in that it "clearly evidences that the Learned Magistrate did not have an impartial and unbiased mind at trial" and that the use of the word "prat" belied what the Magistrate was thinking and "demonstrates that the Learned Magistrate['s] mind was not on the merits of the case before him".
Although it may be argued, as the respondent does, that this ground of appeal does not fall within s 186(1)(a) of the Justices Act, it possibly falls with s 186(1)(b). In substance, however, it is encapsulated by both ground 1 and ground 2 which I have already dealt with.
However, from Mr King's submissions I infer that he also contends that the Magistrate breached s 66A(1) of the Equal Opportunity Act in dealing with the charges and as a result his decisions were invalid. Section 66A(1) of that Act provides that a person (referred to as the "discriminator") discriminates against another person (referred to as the "aggrieved person") on the ground of impairment if, on the ground of:
"(a)the impairment of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person;
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment;
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment."
Section 4 of the Equal Opportunity Act provides that, in relation to a person, the word "impairment" means one or more of the following conditions:
"(a)any defect or disturbance in the normal structure or functioning of a person's body;
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour;
whether arising from a condition subsisting at birth or from an
illness or injury and includes and impairment
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person;"
Assuming for present purposes that the Equal Opportunity Act binds the Magistrate (as much as by s 6 it binds the Crown) and that non‑compliance may invalidate a decision of the Magistrate, there was no satisfactory medical or other evidence before the Magistrate, and there is none before me, to support an argument that at any material time Mr King suffered from an "impairment", as that term is defined in the Equal Opportunity Act.
In any event, in my view it is not open to argue that the Magistrate treated Mr King less favourably than any other person in similar circumstances. While the Magistrate's use of the word "prat" may have been somewhat unfortunate, it is clear that the Magistrate used the word as a means of advising Mr King in a colloquial way that his behaviour at the time was inappropriate and he should desist.
I would also note that there is no indication from the transcript that the respondent treated Mr King as an "idiot" or otherwise in a manner that was disrespectful in any way.
I therefore conclude that this ground of appeal has no prospect of success if leave to appeal were granted.

Ground 4: Natural justice

Mr King's fourth ground of appeal is that he was denied natural justice during the hearing of 4 September because he was denied "some right or privilege or benefit [to] which he [was] entitled in the ordinary course of proceedings".
This ground overlaps with each of the first three grounds, but is further particularised by Mr King, who submits that the Magistrate:
(1)did not allow him to make full submissions regarding the issue of mitigation of costs;
(2)refused to hear any submissions from him in relation to costs;
(3)did not ensure that "health wise" he was "ready to proceed at Trial";
(4)did not make further inquiry as to the order made by Magistrate Micheldes in relation to him in a previous parking infringement case;
(5)refused to inquire into where copies of the "reminder notices" were and advised him that he should have subpoenaed them;
(6)allowed the prosecution to question his credibility by raising previous infringements during the course of evidence;
(7)did not allow him ample opportunity to address the matter of credibility;
(8)disregarded his evidence in relation to the identity and name of the driver of the vehicle in question in relation to one of the parking infringements;
(9)did not allow him to raise O 70 Rules of the Supreme Court or address the Magistrate on that issue;
(10)did not give him a fair and non‑prejudiced trial;
(11)did not inquire of him whether he wanted all three matters to be heard together or separately but asked the prosecution whether it was ready to proceed in relation to all three matters; and
(l2)failed to give proper consideration to his evidence.
The respondent submits that the Magistrate did not prevent Mr King from completing any relevant submissions in relation to costs and repeats that there was no evidence before the Magistrate regarding any mental impairment of Mr King.
The respondent contends that the Magistrate correctly found that any earlier order made by Magistrate Michelides in a separate parking infringement matter regarding the production of documents for the purposes of that matter was not binding when dealing with different matters before the Magistrate.
Further, the respondent submits the documents in question, being "Reminder Notices" issued by the respondent, were not relevant to the matters before the Magistrate, in that the existence of such documents was not an element of any of the offences with which Mr King was charged and the documents were not relied on or referred to as part of the respondent's case on any of the matters.
Additionally, the respondent submits that no issue of credibility was raised by the cross‑examination referred to by Mr King, which was directed to the propensity of Mr King's vehicle to break down; Mr King did not provide any evidence during cross‑examination that some named person other than Mr King parked the vehicle at the time in question, but that a "friend of mine from Germany" sometimes borrowed the vehicle and may have parked the vehicle at the time in question and Mr King could not remember who was driving the vehicle at that time; that the Magistrate correctly and fairly considered the evidence in relation to the identity of the driver of the vehicle as part of his decision; the issue in relation to the order of hearing of the matters before the Magistrate is not a matter within the control of the parties; and the Magistrate correctly and fairly dealt in his decision with all of the evidence led by Mr King.
The respondent therefore contends there is not basis for a claim of denial of natural justice.
The principles relating to affording a person natural justice are well‑established and it is not necessary to set them out here. Suffice it to say that the rules of natural justice have two substantive requirements: first, that a decision-maker give an opportunity to be heard to a person whose interests will or may be affected adversely by a decision; and, secondly, that the decision‑maker be a person who is disinterested or unbiased in the matter to be decided. These two rules are called respectively the "hearing rule" and the "bias rule".
Having perused the transcript, I can see no basis to the claim of Mr King that he was denied natural justice. The Magistrate received relevant evidence, fully heard Mr King, weighed the evidence and made his findings based on evidence. That Mr King is aggrieved at the Magistrate's decision does not mean he was denied natural justice.
In my view, this ground of appeal has no prospect of success if leave to appeal were granted.

Ground 5: Costs

In relation to Ground 5, Mr King says that costs were awarded against him under the Official Prosecutions (Defendants' Costs) Act 1973 (WA). Mr King contends that the Magistrate "erred in awarding costs in respect of time" and that "when addressing Costs the Learned Magistrate stated that the matter took the full afternoon to be heard", whereas "the three matters before the Court were heard within an hour".
Mr King also submits that the Magistrate indicated that he doubted the matter could be heard in an hour and that if any more than an hour were needed there would not be time to have it all heard.
Mr King further alleges that the respondent:
"has committed perjury in regards to the submission for costs as the Respondents submission as to costs was false and misleading and deceptive and the Learned Magistrate held to requisite knowledge of such but elected not to rule against the Respondent and allowed such a submission ..."
The respondent submits that the Magistrate did not actually award costs under the Official Prosecutions (Defendants' Costs) Act, but that, having convicted Mr King, the Magistrate went on to award costs to the prosecution and found that the costs sought by the prosecution were reasonable using the Official Prosecutions (Defendants' Costs) Act as an analogy, and that he did not err in doing so.
The respondent denies the allegations made by Mr King that there was any indication that the matter could not be heard in an hour or that if more than an hour was required the matter would not be completely heard and objects to Mr King making that submission.
I would note at the outset that in determining this application I put entirely to one side Mr King's allegation of perjury against the respondent and his allegation that the Magistrate indicated in any way that if that matter could not be heard in an hour it would not be completely heard. There is no evidentiary basis for these allegations which must be considered scurrilous.
The Magistrate plainly used the Official Prosecutions (Defendants' Costs) Act as an appropriate guide in setting the amount of costs that were awarded against Mr King and did not set costs under that Act. The Magistrate stated, at page 64 of the transcript:
" … the costs sought are reasonable, they're within the scale applicable to ‑ ‑ in line with the scale applicable to the Official Prosecutions (Defendants Costs) Act, using it as an analogy … " (emphasis supplied)
I conclude this ground of appeal has no prospect of success if leave to appeal were granted.

Ground 6: Extraordinary emergency

Extraordinary emergency is Mr King's sixth ground of appeal.
Mr King submits that the respondent failed to negate the extraordinary emergency defence under s 25 of the Criminal Code (WA) beyond all reasonable doubt.
Mr King submits this is so because:
(a)the parking of the car was a direct continuation of the extraordinary emergency;
(b)there was a real probability that leaving the car on the road would be a continuation of the emergency;
(c)he would have breached his duty of care to other road users had he left the car blocking the road; and
(d)he tendered all the change he had to purchase a ticket.
Mr King also submits that the Magistrate erred in not considering the defence of honest and reasonable mistake under s 24 of the Criminal Code in relation to the second and third offences because:
(1)his evidence suggested that he reasonably and honestly believed that to prevent an accident or injury or even death to road users in that area the motor vehicle could be parked and a parking infringement would be withdrawn;
(2)he left a note stating the cause of the vehicle being parked that was dated and where the reasons given were clear and unambiguous; and
(3)the Magistrate made no inquiry of him in relation to s 24.
The respondent submits that Mr King expressly raised the defence under s 25 only in relation to the second offence, but that the Magistrate also considered the defence in relation to the third offence. The respondent further submits that the Magistrate correctly and fairly made findings on the evidence before him as to the circumstances of the charges in question and correctly found that the defence under s 25 did not apply to the circumstances of the charges, or alternatively was negatived by the prosecution.
Further, the respondent says s 24 of the Criminal Code was not raised by Mr King by way of defence before the Magistrate, was not raised by way of any ground of appeal set out in Mr King's original application for leave to appeal dated 30 September 2003 or by way of any ground of appeal set out in Mr King's amended application for leave to appeal dated 3 June 2004 and was not the subject of the leave to amend the application for leave to appeal granted by me on 4 June 2004. In any event, the respondent submits that Mr King's submissions do not disclose any honest and reasonable, but mistaken, belief in the existence of any state of things.
Mr King clearly raised s 25 of the Code in his defence in relation to the second offence: see pages 26 and 49 of the transcript. He argued in relation to that offence that the brakes on his car had failed and that:
"… the vehicle was definitely unroadworthy, and that's … that's akin to section 25 of the Criminal Code, extraordinary emergency. You can not drive a vehicle without brakes, because it's going to endanger life …"
At no stage did Mr King raise s 25 of the Code in relation to the third offence. In fact, at page 52 of the transcript, he specifically stated that he intended the defence to apply only in relation to the second offence.
However, the Magistrate plainly considered the s 25 defence in relation to both the second and third offences. In relation to the second offence the Magistrate found, at page 59 of the transcript, that although brakes failing might be an extraordinary emergency, the decision not to purchase a ticket in contravention of the by‑laws is not, and so the defence had been negatived; while in relation to the third offence the Magistrate found, again at page 59 of the transcript, that the prosecution had "comprehensively" negatived the defence.

I am satisfied that there was adequate evidence before the Magistrate for him to have come to the conclusion that the defence had been negatived and that this line of argument has no reasonable prospect of success if leave to appeal were granted.
I also accept the respondent's submissions regarding the "mistake of fact" defence in s 24 of the Code. It was not raised at any relevant time until advanced in Mr King's written submissions and there is no evidence upon which Mr King could claim it has application in this case.
I conclude that this ground has no prospect of success if leave to appeal were granted.

Conclusion

I am not satisfied that any of Mr King's proposed grounds of appeal have any prospects of success. For this reason, I would dismiss Mr King's application.