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, however, as a result of an administrative oversight, the request appears not to have made it to the court file. The presiding magistrate was thus, unfortunately, unaware of the adjournment request.
The appellant did not appear at the mention hearing on 5 March 2021. In the appellant's absence, pursuant to the commonly used procedure which is found in s 55 of the Criminal Procedure Act 2004 (WA) (CP Act), he was convicted of both offences.
This is an appeal from the convictions which were recorded against the appellant. In broad terms, the appellant claims there was a denial of procedural fairness. In advancing that contention, the appellant is correct. If the appellant's request for an adjournment had come to the attention of the magistrate (which it had not), I am satisfied a reasonable exercise of the discretion could only have led to a decision to adjourn the matters, allowing the appellant an opportunity at a later hearing to defend the charges.
This court may nonetheless dismiss the appeal if satisfied that no substantial miscarriage of justice has occurred, pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA) (CA Act). Typically, the proviso in s 14(2) invites attention to whether the appellant has available defences to the offence or offences. Thus, in many circumstances, in the absence of available defences, this court might properly dismiss the appeal notwithstanding an error in the first instance proceedings has been identified.
Importantly, though, the question whether a substantial miscarriage of justice has occurred is not to be assessed without regard to the nature of the error in question. Where the error itself is such a departure from the essential requirements of the law that it goes to the root of the proceedings, there will be no room in that case for the proviso in s 14(2) to apply: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ). This appeal is such a case. That conclusion is sufficient to dispose of the appeal.
If, contrary to the foregoing conclusion, the proviso in s 14(2) was to be determinative of this appeal, I could not safely conclude that no substantial miscarriage of justice had occurred having regard to the evidentiary material which has been adduced by the appellant. I say this because the affidavit material, at least ex facie, identifies possible defences to the parking offences, as to whether the elements of the two offences can be made out and as to whether a defence of emergency under s 25(2) of the Criminal Code (WA) is available. The court's ability on this appeal to evaluate the strength of these defences is, of course, extremely limited, but nonetheless I could not be satisfied beyond reasonable doubt about the appellant's guilt in light of the evidentiary material he has presented.
Accordingly, I will grant the appellant leave to appeal on ground 3 and ground 4, allow the appeal on those grounds, set aside the convictions recorded against the appellant, and remit the charges to the Magistrates Court for hearing according to law.
B. Proceedings in the Magistrates Court
The infringements which led to the charges against the appellant were issued on 15 February 2020[1] and on 21 February 2020.[2]
[1] Prosecution Notice 11 December 2020 (Charge PE 37 of 2021).
[2] Prosecution Notice 11 December 2020 (Charge PE 38 of 2021).
On the first occasion, the appellant's vehicle was found to be parked and unattended within a taxi bay on Aberdeen Street, contrary to cl 3.14(1) of the City of Perth Parking Local Law 2017 (WA) (Parking Local Law). On the second occasion, the appellant's vehicle was found to be parked and unattended within a fee-paying bay at Victoria Square without an unexpired ticket inside the vehicle, contrary to cl 4.5(1)(a) of the Parking Local Law. I will refer in these reasons to the two offences as the first offence and the second offence.
The charges were listed for a mention on 5 March 2021. The day before, on 4 March 2021, the appellant sent an email to the Magistrates Court in Perth, seeking an adjournment of the scheduled mention hearing. He had been declared medically unfit to attend court. A valid medical certificate was attached to the email.[3]
[3] Affidavit of Paul Anthony King sworn 20 March 2023, Attachments 1 and 2.
The Criminal Listings Supervisor at the Magistrates Court responded to the appellant by email, confirming that the correspondence had been placed on file to be made available to the presiding magistrate. The email indicated the request for the adjournment would be a matter for the magistrate on the day of the hearing, and could not be granted administratively.[4]
[4] Affidavit of Paul Anthony King sworn 20 March 2023, Attachments 3.
At the hearing on 5 March 2021, there was no appearance by the appellant. The transcript of the proceedings records that the magistrate was invited by the prosecutor to proceed in the absence of the appellant, pursuant to the procedure in s 55 of the CP Act. The magistrate accepted the invitation and, given the minor nature of the offences, that is an understandable approach to have adopted. In the appellant's absence, the magistrate convicted him on both offences and imposed a fine of $300 with costs of $119.40, on each charge. The total financial penalty imposed on the appellant for the two offences was $838.80. The hearing lasted no more than two or three minutes.
There is no mention of the appellant's request for an adjournment within the transcript. For whatever reason, the appellant's request and medical certificate appear not to have made it to the court file which was before the magistrate. In my view, it matters not why this omission occurred and it is arid to enquire further into the issue. The evident reality is that the magistrate was unaware of the request and proceeded on the basis that the appellant had failed to appear and had given no cause for his absence. In those circumstances, the magistrate's approach was, at least prima facie, statutorily authorised by the terms of s 55 of the CP Act.
Section 55 of the CP Act provides as follows:
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approve notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may -
(a)adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
…
(4)If under subsection (2) ... the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under s 20(3), the court -
(a)must presume, in the absence of evidence to the contrary -
(i)that the prosecution notice was signed by a person who was acting under s 20(3);
and
(ii)that the person had the authority to sign the prosecution notice; and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5) If under subsection (4) the court convicts the accused -
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
C. Appeal
Legislative framework
While the quantum of the penalties and costs imposed for the parking offences sit very much at the lower end of the scale, the appellant was entitled to challenge these convictions pursuant to the CA Act.[5] The appellant did so, filing an appeal on 2 April 2021.
[5] A decision to convict an accused is a decision which may be appealed: CA Act, s 6(c) and s 7(1).
The appellant's application for leave to appeal is made under div 2 of pt 2 of the CA Act.
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[6] meaning that the ground is required to have a rational and logical prospect of succeeding.[7] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[8]
[6] CA Act, s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).
[8] CA Act, s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[9]
Grounds of appeal
[9] CA Act, s 14(2).
As is apparent from the documents filed by the appellant, he was extremely displeased the charges were not adjourned by the court on 5 March 2020, believing (wrongly) that his request for an adjournment had been wilfully disregarded.
The essence of the four overlapping grounds of appeal in the appeal notice are that the appellant was denied procedural fairness, given the convictions were recorded in his absence on the first return of the prosecution notices, and the appellant had sought an adjournment on the grounds of ill‑health.
The grounds of appeal are as follows:
1.Magistrate Wilson erred at law in that he failed to properly exercise the legislative discretion available at the time to grant the Appellant leave of the Court to have the matter adjourned and relisted at a later date on the grounds that the Appellant had been declared medically unfit to attend the Court from the 2 March 2021 to the 16 March 2021 inclusive.
2.Magistrate Wilson erred at law in that he failed to take into account or make any further enquiry concerning the medical evidence before him, medical evidence which supported the Appellants application to have the trial date adjourned and relisted at a further date.
3.Magistrate Wilson erred at law in that he failed to accord the Appellant natural justice/procedural fairness. The matter of the said parking infringements was decided in the absence of the Appellant who was denied the opportunity to adduce evidence and defend himself.
4.Magistrate Wilson erred at law and occasioned the Appellant a prejudice in that Magistrate Wilson convicted, sentenced, and ordered the Appellant to pay costs in his absence. The Appellant was denied natural justice.
The course of the appeal
More than three years after the offences occurred and over two years since the appellant was convicted in the Magistrates Court, the appellant's appeal was heard in this court. The appeal came on for hearing before me on 30 May 2023. A number of delays occurred in the progression of the appeal, some of which are attributable to the appellant's lack of legal representation and some of which can be attributed to the ill-health of the appellant. On my assessment, considerable efforts have been made by the court to accommodate the appellant's medical condition and the various delays on his part in the filing of submissions and supporting materials.[10]
[10] The appellant has filed two sets of submissions for the purposes of the appeal, dated 9 February 2023 and 20 March 2023. The appellant has also filed two affidavits, sworn on 20 March 2023 and 26 June 2023.
The respondent, the City of Perth, has not taken an active role in the appeal, given the disproportionate costs of doing do. The respondent filed a formal notice to this effect.[11]
[11] The respondent filed an incorrect notice to this effect on 24 March 2022, which was subsequently replaced by a correct notice filed on 4 November 2022. The latter notice indicated that the respondent did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
For much of the course of the proceedings before this court, the appellant has been, perhaps quite naturally enough, focused on the apparent disregard by the magistrate of his request for an adjournment. As I have said, I am comfortably satisfied on the material that this was an administrative omission, rather than a deliberate decision by the registry. Given the appellant's focus, and the lack of attention given to the substantial miscarriage of justice issue, in fairness to the appellant, I directed that a communication be sent to the appellant through my associate. That communication was sent on 9 March 2023, following my decision to adjourn the listed appeal hearing on 10 March 2023, which adjournment was sought by the appellant on the grounds of his continuing ill-health. Within that email, the court raised with the appellant whether he wished to address issues arising in relation to s 14(2) of the CA Act.
In due course, the appellant filed further affidavit material and submissions. This material was received on 20 and 21 March 2023. The affidavit and submissions contained contentious material which was far from self‑explanatory. As a result, I directed that a further communication be sent to the appellant through my associate. That communication was sent on 17 April 2023. In substance, I informed the appellant that it would be necessary to schedule an oral hearing of the matter before the court, to give the appellant an opportunity to make submissions in support of the appeal. As had previously been done, the court offered the appellant the option of a hearing in person or by way of an audio/visual connection.
An appeal was thereafter listed for 30 May 2023, with the appellant to attend by audio connection. That hearing took place, with the appellant making additional oral submissions. The hearing demonstrated the desirability for the appellant to be given one further opportunity to file supporting affidavit material, given a number of points raised by him were to be found in his submissions, not his sworn affidavit material.
A further, lengthy affidavit was received from the appellant on 26 June 2023. I have had regard to this affidavit, as well as the earlier affidavit and submissions filed by the appellant, in determining this appeal. I received the additional affidavit material on this appeal pursuant to the court's power in s 40(1)(e) of the CPA.
I will turn now to summarise the substance of the appellant's foreshadowed responses to the two offences in question.
D. The appellant's account
First offence
The appellant has adduced evidence that, prior to the date of the first offence, he had been suffering with several medical conditions that caused him symptoms that included severe dizziness, heart palpitations and nausea. Further, he suffered, at times, laryngeal spasms that led to the appellant being unable to breath and to become unconscious.[12] I have reviewed the letters from the appellant's treating medical practitioners including Dr Rajesh Bhasin, which have been attached to his affidavit. This material supports the existence of the appellant's severe medical conditions.[13]
[12] Affidavit of Paul Anthony King sworn 26 June 2023, [15].
[13] Affidavit of Paul Anthony King sworn 26 June 2023, Attachment PAK4 and PAK5.
On the evening of 15 February 2020, the date of the first offence, the appellant claims to have experienced the dizziness associated with his medical condition. This signalled to him, from past experience, that he was about to faint. He asserts that he was in a state of panic. The appellant was driving back from the Royal Perth Hospital at the time, having been visiting a friend (who I will refer to as Mr A).[14]
[14] Appellant's submissions dated 20 March 2023, [26].
As the appellant drove through Northbridge, he states that he parked close to the entry of a street car park.[15] The appellant claims there was no other option other than to stop his vehicle and park. He says he had to make a split‑second decision to attend to the medical symptoms he was experiencing.[16] The appellant claims that he could have been rendered unconscious while driving if he had not stopped the car at the time he did.
[15] Appellant's submissions dated 20 March 2023, [30]
[16] Affidavit of Paul Anthony King sworn 26 June 2023, [39].
The appellant first raised the circumstance that he was experiencing a medical emergency within his submissions dated 20 March 2023. The appellant states in those submissions that the 'emergency was not over when the Appellant parked the vehicle as he was still feeling nauseated and lightheaded'.[17] In the same submissions, the appellant asserts that he was required to take his medication and so was forced to leave his vehicle unattended to retrieve some water at a nearby venue.[18] The appellant states that he left the vehicle unattended for his own safety, as if he were to pass out in the car he might not be seen by the public who would otherwise be able to call an ambulance to his aid.[19]
[17] Appellant's submissions dated 20 March 2023, [35].
[18] Appellant's submissions dated 20 March 2023, [37].
[19] Appellant's submissions dated 20 March 2023, [38].
Further, the appellant asserts that he was not aware he was illegally parked. He says he was unaware that he parked his car in a taxi zone.[20] The appellant claims to have driven along this particular street on a later occasion and observed no taxi zones - only loading zones.[21]
Second offence
[20] Affidavit of Paul Anthony King sworn 26 June 2023, [43].
[21] Affidavit of Paul Anthony King sworn 26 June 2023, [48].
The appellant deposes that, on the afternoon of 21 February 2020, he was visiting the same friend (namely, Mr A) at the trauma ward of the Royal Perth Hospital. The appellant intended to be at the hospital for around 10 to 15 minutes.
The appellant deposes that, upon arriving at the hospital, he was advised by a clinical nurse that his friend was still in the operating theatre. He states that he was told to wait in a lounge room. The appellant deposes that the trauma ward was, after his arrival, securely closed so the patients could rest in the afternoon.[22] He essentially contends the staff forgot he was present, and because he was locked in, he could not leave. At some later point, the appellant deposes that he asked nurses to let him leave, but he was denied an ability to exit the room he was in.
[22] Appellant's submissions dated 20 March 2023, [48] ‑ [49].
In the second affidavit sworn by the appellant, he states that a hospital cleaner informed him that the doors between the trauma ward and the exit are usually self‑opening, but they were locked because of a staff meeting and while patients were resting.[23] The appellant also deposes to a communication with the hospital on 12 June 2023 regarding the details as to the process of locking the trauma ward.[24] The appellant also makes reference to a telephone conversation with the Consumer Engagement staff member at the hospital who advised him that the doors to the trauma ward are usually locked 'when they have staff meetings or hand overs however on some occasions such as arrival by Medi Vac Helicopter'.[25]
[23] Affidavit of Paul Anthony King sworn 26 June 2023, [61].
[24] Affidavit of Paul Anthony King sworn 26 June 2023, Attachment PAK7.
[25] Affidavit of Paul Anthony King sworn 26 June 2023, [81].
The appellant further deposes that he is an ACROD permit holder. He states that his permit was displayed on his dashboard on the occasion in question, and this entitled him to extra time in the fee paying bay.[26] The appellant also deposes that all of the disabled parking spots had been taken.[27]
[26] Affidavit of Paul Anthony King sworn 26 June 2023, [55].
[27] Appellant's submissions dated 20 March 2023, [46].
The appellant has not articulated the relevant points in time with any precision (i.e. when he arrived and parked, and how long he was confined in the trauma ward). The only specific point in time I can identify is the time of the offence, which was 3.26 pm. The appellant deposes that he is 'unable to determine the exact moment [his] parking ticket expired and whether the parking inspector took into consideration that as an ACROD permit holder [he] is granted an extension of time'.[28] The appellant deposes that he knows he would have calculated the time and that he would have paid enough not to have incurred the infringement. This appears to be inconsistent with the appellant's earlier indication that he was unexpectedly detained at the hospital. In any event, the appellant appears to be contending that the parking ticket was erroneously issued given the additional time he was afforded by reason of his ACROD permit.[29]
[28] Affidavit of Paul Anthony King sworn 26 June 2023, [51].
[29] Affidavit of Paul Anthony King sworn 26 June 2023, [52].
E. Disposition
Denial of procedural fairness
Convictions were recorded against the appellant in his absence on the first return of the prosecution notices. The appellant's request for an adjournment was received and acknowledged by the registry and was supported by appropriate medical evidence. There is no suggestion the appellant had previously delayed the proceedings in the Magistrates Court in any respect.[30]
[30] The Prosecution Notices had been issued on 11 December 2020. The mention was listed for 5 March 2021. The proceedings were therefore not long in the tooth at that stage.
On my assessment, if the appellant's request for an adjournment had come to the attention of the magistrate (which it had not), I am satisfied that a reasonable exercise of the discretion could only have resulted in a decision to grant the adjournment.
The circumstances thus demonstrate that an error of law occurred in the proceedings below, in that the appellant was denied a fair opportunity (indeed, any opportunity) to defend the offences with which he was charged. That denial occurred by reason of an administrative oversight, but is nonetheless an error that is capable of being corrected on appeal.
The first and second grounds of appeal have been drafted by the appellant on the assumption the magistrate had knowledge of the adjournment request, and expressly declined to grant that adjournment. It would therefore not be appropriate to grant leave to appeal with respect to those grounds. The third and fourth grounds more appropriately reflect the error which arose.
Substantial miscarriage of justice - does the proviso apply?
The foregoing does not, however, conclude the analysis which is required. As I have earlier noted, it typically remains necessary for this court to assess whether a substantial miscarriage of justice has occurred. Generally, the proviso will be invoked by a respondent to an appeal who contends that the evidence properly admitted at trial proved beyond reasonable doubt the guilt of the appellant.[31]
[31] Koh v City of Joondalup [2012] WASC 493 [32] (Beech J).
In this case, the magistrate followed the pathway permitted by s 55 of the CP Act, which enables the court to take as proved any allegation in the prosecution notice[32] and, in the absence of evidence to the contrary, the court must take as proved any facts stated by the prosecutor.[33] Thus, no trial took place and no evidence was adduced before the magistrate. Other than the evidence which has been adduced on the appeal by the appellant, the court has not been apprised of the factual positions of the parties.
[32] CP Act, s 55(4)(b).
[33] CP Act, s 55(5)(b).
The foregoing highlights an issue that is inherent in the assessment as to whether there has been a substantial miscarriage of justice. That issue is whether the course of the proceedings below amounted to such a serious departure from the essential requirements of the law, which goes to the root of the proceeding, and denied the party a proper trial, as to preclude the application of the proviso. To explain this issue further, it is pertinent to refer to the observations of the High Court in the three authorities below.
In Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ held as follows:
[T]he proviso [which was previously found in s 689 of the Criminal Code (WA)] was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' ...; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon a jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso ...[34]
[34] Wilde v The Queen (372, 373).
In Weiss v R [2005] HCA 81; (2005) 224 CLR 300, the High Court considered the meaning and effect of the proviso in the equivalent Victorian regime. The High Court held:
[44]No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted to trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
[45]Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.[35]
[35] Weiss v R [44] and [45].
In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, the High Court examined in what circumstances the proviso might not be capable of application because of the circumstances of the trial. The High Court held that there had been a substantial miscarriage of justice and the proviso did not apply where a trial judge sitting alone had failed to set out his findings of fact on a central issue. Gummow and Hayne JJ stated:
[54]… [W]hat was said in Wilde v The Queen about the possibility that some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presupposition of the trial as to deny the application of the proviso is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. Rather, as both Wilde and Weiss acknowledged, the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances. What was said in Wilde did no more than avert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical.[36]
[36] AK v The State of Western Australia [54] (Gummow and Hayne JJ).
In the specific context of s 55 of the CP Act, the application of the proviso has been addressed in several authorities of this court. In Tallot v Matier [2012] WASC 290 (Hall J), the court considered an appeal against a conviction entered in the absence of the appellant under s 55 of the CP Act, a procedure which is available only in relation to simple offences. The offence as alleged was an indictable offence, not a simple offence. The magistrate therefore erred in proceeding under s 55 of the CPA, a point which was conceded on appeal by the respondent in that case.
The concession was said by Hall J to have been properly made.[37] His Honour adverted to two aspects of the matter which demonstrated the gravamen of the error in the proceedings below.
[37] Tallot v Matier [11] (Hall J).
First, his Honour noted that the invocation of the procedure in s 55(1) operated to deny the appellant the opportunity of contesting the prosecution evidence, leading evidence of his own by way of defence, or making submissions on the evidence.[38] Second, his Honour observed that s 55 provides 'an aid to proof' which would not otherwise have been available to the prosecutor. By operation of this provision, s 55 allows a court to take as proved any allegation in the prosecution notice containing the charge that was served on the accused. It also allows the court to take as proved any fact stated to the court by the prosecutor as being the material facts of the charge. Clearly enough, these aids to proof would not have been available in the present matter if the charges had been adjourned and there had been a subsequent, contested hearing of the matter.[39]
[38] Tallot v Matier [12] (Hall J).
[39] Tallot v Matier [13] (Hall J).
In Saad v Barron [2012] WASC 507, Beech J was faced with circumstances in which s 55 of the CPA had been invoked by a magistrate at first instance. The offender had not appeared at the hearing, but his counsel had. His counsel sought an adjournment for medical‑related reasons (the offender's partner was in hospital), which the magistrate refused.
On appeal, Beech J concluded that a reasonable exercise of the discretion could only have resulted in a decision to adjourn the trial.[40] The respondent, on appeal, submitted that the appellant had not put forward any evidence to demonstrate a defence to the charges and, as such, the appeal ought be dismissed on the ground that there was no substantial miscarriage of justice. Beech J rejected that submission and held as follows:
[31]In this case, s 55 was invoked only following, and because of, the magistrate's wrongful decision to refuse the adjournment. The defendant intended to appear at his trial, and sought an adjournment to enable that to occur. In those circumstances, in my opinion, it is not for the appellant to demonstrate a defence, or even an arguable defence, to the charges, or face dismissal of the appeal under the proviso. The prosecution has not had to prove its case. The only reason that the prosecution did not need to prove the case was the wrongful refusal of the adjournment. The result of the wrongful refusal of the adjournment was to permit the prosecution to invoke the provisions of s 55(4) and avoid the need to lead evidence, when the prosecution ought not have been so permitted. In my opinion that, in itself, is a miscarriage of justice.[41]
[40] Saad v Baron [26] (Beech J).
[41] Saad v Baron [31] (Beech J).
The present circumstances are similar to those before the court in Saad v Baron. The procedure in s 55 of the CP Act was invoked by the magistrate in the present case because of the error which occurred in relation to the adjournment of the hearing. Although that error was an apparent oversight, it does not change the fundamental opportunity which the appellant lost as a result, namely the opportunity of contesting the prosecution evidence, leading evidence of his own by way of defence, and making submissions on the evidence.
In my view, the error in this case was such a departure from the essential requirements of the law that it goes to the root of the proceedings: Wilde v The Queen. Accordingly, there is no room for the proviso in s 14(2) to apply in the present circumstances.
Substantial miscarriage of justice - the state of the evidence
In the event I am found to be wrong in this regard and the proviso in s 14(2) were to be determinative of this appeal, I would nonetheless have allowed the appeal against both convictions because I cannot be satisfied beyond reasonable doubt about the appellant's guilt in light of the evidentiary material which has been adduced by the appellant.
I say this because the affidavit material adduced on this appeal, at least ex facie, identifies possible defences to the parking offences. My assessment of the submissions and sworn affidavit material adduced by the appellant is that he would have contended at trial that he had two separate defences to each of the charges brought against him.
With respect to the first offence, the appellant contends there was no taxi zone on the relevant street and also contends that he is excused from criminal liability by reason of s 25(2) of the Criminal Code (arising from his medical emergency). With respect to the second offence, the appellant contends the infringement was issued without regard to the additional time he was permitted by reason of his ACROD permit and, again, contends that he is excused from criminal liability by reason of s 25(2) of the Criminal Code (because he was detained at the hospital).
Any consideration of the application of the defence in s 25(2) would require several issues to be carefully analysed. The provision requires both subjective and objective issues to be assessed. The full terms of s 25 are as follows:
25.Emergency
(1)This section does not apply if section 32, 246, 247 or 248 applies.
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if -
(a)the person believes -
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency; and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
The application of this defence, in the context of parking related offences, was a central feature of the appeal in Mongol v Moulin [2022] WASC 232 [122] ‑ [140] (Strk J). As Strk J there explained, this defence exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.[42] Her Honour commented further:
[125]The words in the phrase 'sudden or extraordinary emergency' used in s 25 of the Criminal Code have their usual and ordinary meaning. A 'sudden emergency' has been described as 'one that comes upon the accused unexpectedly, catching her or him off‑guard'. An 'extraordinary emergency' is one which has been said to be 'unexpected or sudden', but 'a situation of "extreme gravity and abnormal or unusual danger" '.
[126]It is well established that it is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary. However, the concepts of a 'sudden' emergency and an 'extraordinary' emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both 'sudden' and 'extraordinary'.
(footnotes and citation omitted)
[42] Mongol v Moulin [124], citing Ajayi v The Queen [2012] WASCA 126; (2012) FLR 465 [52] (McLure P, Buss and Mazza JJA); Floyd v The State of Western Australia [2013] WASCA 33 [25] (McLure P, Newnes and Mazza JJA); and Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45 [43] (McLure P, Mazza JA and Corboy J), among other cases.
This court has only a limited ability on this appeal to evaluate the strength of the asserted defences. There was no hearing of the matter below and the appellant's proposed defences to the charges have not been tested at trial. There has also been no cross‑examination of the appellant on appeal. Further, there was no contradictor on the appeal to assist the court in its consideration of the appellant's contentions. Of course, the court is not bound to accept every statement in an affidavit uncritically. Highly implausible sworn assertions may be weighed by the court even in the absence of cross‑examination. But the court is constrained in its ability to make findings of fact on the basis of contentious material and to, in effect, conduct a trial within an appeal.[43]
[43] Perry v Carrier [2013] WASC 299 [25] (Corboy J).
In these circumstances, and as I propose to remit the matter for hearing, it is preferable that I make no comments (much less any findings) on the state of the evidence adduced by the appellant, other than to say that I cannot be satisfied beyond reasonable doubt about the appellant's guilt in light of this evidentiary material.
Conclusion
Accordingly, I will grant the appellant leave to appeal on ground 3 and ground 4, allow the appeal on those grounds, set aside the convictions recorded against the appellant, and remit the two charges to the Magistrates Court for hearing according to law.
F. Orders
I will administratively publish these reasons for decision and make the following orders:
1.Leave to appeal is granted on ground 3 and ground 4, with leave refused on grounds 1 and 2.
2.The appeal is allowed on ground 3 and ground 4.
3.The convictions recorded against the appellant are set aside and the charges are hereby remitted to the Magistrates Court for hearing according to law.
4.The appeal be listed for a directions hearing on a date to be fixed for the purposes of hearing the parties on the appropriate costs orders which should now be made.
The final order referred to above is necessary to ensure the respondent has adequate notice of the hearing in the event it wishes to make submissions as to costs (given the terms of the notice filed by the respondent).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
10 JULY 2023
5
14
0