King v City of Perth - [2023] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KING -v- CITY OF PERTH [2023] WASC 252
CORAM:   LUNDBERG J
HEARD:   30 MAY 2023 WITH SUPPLEMENTARY AFFIDAVIT FILED ON 26 JUNE 2023
DELIVERED          :   10 JULY 2023
FILE NO/S:   SJA 1020 of 2021
BETWEEN:   PAUL ANTHONY KING
Appellant
AND
CITY OF PERTH
Respondent

Catchwords:

Criminal law - Single judge appeal - Appeal against two convictions for parking offences contrary to the City of Perth Parking Local Law 2017 (WA) - Appellant sent written request for adjournment to the Registry - Administrative error meant the magistrate was unaware of the request - Appellant convicted in his absence through the procedure in s 55 of the Criminal Procedure Act 2004 (WA) - Appeal on procedural fairness grounds - Whether substantial miscarriage of justice proviso applies given nature of the error - Turns on own facts

Legislation:

City of Perth Parking Local Law 2017 (WA)
Criminal Appeals Act 2004 (WA), s 6, s 7, s 9, and s 14(2)
Criminal Procedure Act 2004 (WA), s 55

Result:

Leave to appeal granted on grounds 3 and 4
Appeal allowed on grounds 3 and 4
Convictions set aside and charges remitted to the Magistrates Court for hearing according to law
Appeal to be listed for a directions hearing to deal with costs

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Ajayi v The Queen [2012] WASCA 126; (2012) FLR 465
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Floyd v The State of Western Australia [2013] WASCA 33
Koh v City of Joondalup [2012] WASC 493
Mongol v Moulin [2022] WASC 232
Perry v Carrier [2013] WASC 299
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
Saad v Barron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tallot v Matier [2012] WASC 290
Weiss v R [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Table of Contents

A. Introduction and summary

B. Proceedings in the Magistrates Court

C. Appeal

Legislative framework

Grounds of appeal

The course of the appeal

D. The appellant's account

First offence

Second offence

E. Disposition

Denial of procedural fairness

Substantial miscarriage of justice - does the proviso apply?

Substantial miscarriage of justice - the state of the evidence

Conclusion

F. Orders

LUNDBERG J:

A. Introduction and summary

The appellant was charged in December 2020 with two offences arising from parking infringements issued by the City of Perth. Prior to the first mention of the charges in the Magistrates Court, the appellant sent a written request for an adjournment to the registry. The appellant had been declared medically unfit to attend court.
The request for an adjournment was acknowledged by the registry of the court,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 252
Decision Date

CaseChat Overview and Summary

The appellant, Paul Anthony King, appealed against his convictions for two parking offences, arguing that the magistrate denied him procedural fairness by convicting him in his absence. The magistrate had proceeded with the hearing without the appellant's presence, following the procedure in s 55 of the Criminal Procedure Act 2004 (WA) (CP Act), which allows for a conviction in the absence of the accused if they do not appear at a hearing. The court was satisfied that the administrative oversight which led to the magistrate being unaware of the appellant's request for an adjournment resulted in a denial of procedural fairness. The court held that the error was such a departure from the essential requirements of the law that it goes to the root of the proceedings, and thus, the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) (CA Act) does not apply. Furthermore, the court could not be satisfied beyond reasonable doubt about the appellant's guilt in light of the evidentiary material presented. Consequently, leave to appeal was granted on grounds 3 and 4, the appeal was allowed, the convictions were set aside, and the charges were remitted to the Magistrates Court for a hearing according to law. The appeal will be listed for a directions hearing to address the appropriate costs orders.

Orders