Kwok v City of Subiaco - [2023] WASC 307

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KWOK -v- CITY OF SUBIACO [2023] WASC 307
CORAM:   WHITBY J
HEARD:   27 JULY 2023
DELIVERED          :   17 AUGUST 2023
FILE NO/S:   SJA 1082 of 2022
BETWEEN:   MICHELE KWOK
Appellant
AND
CITY OF SUBIACO
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HARRIES
File Number            :   MC PE 29960/2022

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Parking infringement - Whether magistrate erred in fact or law - Whether conviction cannot be supported or is unsatisfactory having regard to the evidence as a whole - Leave to appeal refused - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Local Government Act 1995

Result:

Leave to appeal on grounds of appeal 1 to 70 refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Frances Veltman

Solicitors:

Appellant	:	In Person
Respondent	:	Frances Veltman

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

Hedley v Spivey [2012] WASCA 116
Hopes v Australian Securities and Investments Commission [2017] WASCA 108
Kelly v Fiander [2023] WASC 187
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Samuels v The State of Western Australia [2005] WASCA 193
Tobin v Dodd & Ors [2004] WASCA 288

WHITBY J:

On 18 November 2021, the appellant parked her vehicle on green space next the Uniting Church in Bagot Road, Subiaco. As a result, the appellant was issued with a parking infringement notice under s 5.2 of the City of Subiaco Parking Facilities Local Law (Parking Local Law) for parking on a reserve without the written consent of an authorised person.
Upon the appellant's election to challenge the infringement notice, a prosecution was commenced in the Perth Magistrates Court. On 30 September 2022, the appellant entered a plea of not guilty to the charge of parking a vehicle on a reserve without the written permission of an authorised person. On the same day, following a trial, the appellant was convicted of the offence and sentenced to a fine of $70, together with costs in the amount of $1,500.
The appellant seeks leave to appeal that conviction on multiple grounds.
For the reasons that follow, none of the grounds of appeal have any reasonable prospects of success and therefore, leave to appeal on each ground is refused. Accordingly, the appeal is dismissed.

Legal principles relating to an appeal

Section 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge:[1]
[1] CA Act s 6(c).
The grounds of an appeal pursuant to s 7(1) of the CA Act may be that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.
The appellant must obtain leave to appeal on each ground of appeal.[2] If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[3] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
[2] CA Act s 9(1).
[3] CA Act s 9(3).
[4] Samuels v The State of Western Australia [2005] WASCA 193.
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.[5]
[5] CA Act s 14(2).
In accordance with s 39(1) of the CA Act, the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal.[6]
[6] CA Act s 39(3).

The trial

In order to prove the charge, the prosecution was required to prove that the appellant:
(a)parked a vehicle on a reserve; and
(b)did so without the written consent of an authorised person.
At the trial, the appellant admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that on 18 November 2021, she had parked her vehicle on the 'green space vicinity' at 315 Bagot Road in Subiaco.
At the trial, the issues that arose were firstly, whether the place where the appellant parked was a 'reserve', secondly whether the appellant was given written authorisation to park there and thirdly, whether the appellant had any defence to the charge.
The appellant accepted that the central issue in dispute at trial was whether the place she had parked was a 'reserve' pursuant to the Parking Local Law.[7] In the absence of any evidence of the appellant having written authorisation to park on the green space, the second issue fell away. The appellant's evidence also raised a possible defence of honest and reasonable mistake.
[7] ts 5.
The learned magistrate explained the trial process to the appellant in detail, including the elements that the prosecution needed to prove, the way in which the trial would proceed, what constituted evidence before the court, how the appellant could cross-examine witnesses and her right to remain silent or elect to give evidence under oath.
The prosecution adduced evidence from James Kelleher, a ranger for the respondent and Kris Rogers, the manager of rangers for the respondent. The appellant elected to give evidence on her own behalf.
Mr Kelleher gave evidence that he was an officer of the respondent and authorised to exercise powers under the Local Government Act 1995 (LGA) and the Parking Local Law.[8]
[8] Exhibit 1.
Mr Kelleher was shown and asked to identify a bundle of documents and photographs relating to the issuing of the infringement and identifying the vehicle and where the vehicle was parked.[9]
[9] Exhibit 2.
Mr Rogers gave evidence that he was an officer of the respondent and authorised to exercise powers under the LGA and the Parking Local Law.[10]
[10] Exhibit 3.
Mr Rogers confirmed that a driver and vehicle search with the Department of Transport was completed and on the date of 18 November 2021, a blue 2004 Proton Jumbuck utility identified by plate vehicle 1BNH 605 was licensed to the appellant.[11]
[11] Exhibit 4.
The prosecution tendered, through Mr Rogers, certification that 315 Bagot Road, Subiaco is within the boundaries of the respondent and that the green space therein is classified as a reserve.[12]
[12] Exhibit 5.
The prosecution also tendered, through Mr Rogers, certification that the green space at 315 Bagot Road was maintained by the respondent's park services on a monthly basis from 31 July 1987 to present.[13]
[13] Exhibit 6.
Mr Rogers confirmed that there had not been any person authorised, apart from the respondent, to give permission for parking on the reserve located at 315 Bagot Road.
However, Mr Rogers did give evidence that the respondent investigated whether any other person from either leaseholder or landowner provide authorisation for the appellant to park on the green space at 315 Bagot Road. He said that the Uniting Church, the landowner, told him that no permission had been given for any vehicle to be parked on the green space and that, while Earthwise was the lessor of the property, it was a condition of its lease that it would not permit anybody to breach any of the local laws or any laws in the use of that land. The learned magistrate ruled this evidence inadmissible on the basis that it was hearsay.[14] In any event, this issue fell away as the appellant did not have written permission from anyone to park on the green space.[15]
[14] ts 64.
[15] ts 65.
Mr Rogers was shown a marked aerial photograph of Bagot Road identifying a primary school, day care centre, high-risk pregnancy hospital and the green space upon which the vehicle was parked at the time of the offence.[16]
[16] Exhibit 7.
Mr Rogers was shown a bundle of photographs of the area of the reserve.[17] These photographs identified the parking area for Earthwise, the bollards preventing vehicle access to the green space, the green space where the vehicle was parked at the time of the offence, public benches installed around a tree on the green space, the pedestrian footpath and the lack of vehicle access to the reserve.
[17] Exhibit 8.
The appellant elected to give evidence. She gave the following evidence at trial:
(a)she had always parked on the green space at 315 Bagot Road, Subiaco when she went to the Uniting Church;[18]
(b)she visited the church regularly on Thursdays since 2009;[19]
(c)there was a good line of sight and it was not dangerous to park on the green space;[20]
(d)she believed the green space was private property;[21]
(e)there were not any signs on the green space prohibiting parking;[22]
(f)the only vehicle access to the green space from the Uniting Church carpark is blocked by bollards;[23] and
(g)she obtained access to park on the green space through a pedestrian crosswalk.[24]
[18] ts 40.
[19] ts 44.
[20] ts 50.
[21] ts 52.
[22] ts 52.
[23] ts 53.
[24] ts 57.
The learned magistrate made the following findings at the conclusion of the trial:
(a)the green space where the appellant parked her vehicle was a reserve within the meaning of the Parking Local Law - this was the unchallenged evidence of Mr Rogers and exhibits 5 and 6;[25]
(b)the appellant was not given written permission by an authorised person (or anyone) to park on the reserve;[26]
(c)the appellant had an honest but mistaken belief that she was entitled to park on the reserve because she had parked there for a number of years, believed it to be the private property of the church and there were no signs preventing parking - however, this was a mistaken belief of law;[27]
(d)in any event, the appellant's belief that she could park on the reserve was not a reasonable one because of the presence of bollards over the driveway entry to the green space from the Uniting Church and the fact that the appellant drove across pedestrian access in order to park on the green space;[28]
(e)the prosecution had proved each of the elements of the charge beyond a reasonable doubt; and
(f)the appellant had not proved a defence to the charge on the balance of probabilities.[29]
[25] ts 64.
[26] ts 65.
[27] ts 65.
[28] ts 65, 66.
[29] ts 66.
On 19 October 2022, the learned magistrate entered a judgment of conviction against the appellant. The appellant was sentenced to a fine of $70 with an order for $1,500 in costs.
The appellant appeals that conviction.

The appeal

On 16 November 2022, the appellant filed an appeal notice seeking leave to appeal the conviction. The grounds of appeal were stated as 'error of law, error of fact.'
On 3 March 2023, orders were made for the application for leave to appeal to be heard together with the appeal. The appellant was also given leave to file an amended notice of appeal by 28 March 2023. Orders were made for the appellant to file an outline of submissions by 2 May 2023 and the respondent to file an outline of responsive submissions by 30 May 2023.
On 28 March 2023, the appellant filed an amended notice of appeal attaching documents entitled 'Minute of proposed amended grounds of appeal' and 'Outline of submission in support of the application and the appeal to Amended Grounds of Appeal' (sic). I will refer to these as the grounds of appeal and outline of submissions respectively.
The grounds of appeal set out 70 separate grounds of appeal and the outline of submissions referred to 29 'points'. However, for reasons which I will outline and based upon the submissions which the appellant made at the hearing of the appeal, the grounds of appeal and outline of submissions can be dealt with by reference to categories or 'themes' as opposed to individual grounds of appeal.
The respondent filed an outline of responsive submissions on 30 May 2023 and also filed an affidavit of Mr Rogers sworn on 29 May 2023 (Rogers Affidavit). The Rogers Affidavit was filed by the respondent in response to the appellant's submission that the respondent had not complied with its disclosure obligations prior to the trial in the Magistrates Court. I granted leave for the respondent to rely upon the Rogers Affidavit pursuant to s 40(1)(e) of the CA Act.
The appellant filed a further outline of submissions on 18 July 2023 which effectively responded to the affidavit of Mr Rogers. I granted leave for the appellant to rely upon those responsive submissions.
I also take into account that the appellant represented herself at the appeal hearing and at the trial. The considerations to be applied when dealing with litigants in person were set out in Tobin v Dodd & Ors [2004] WASCA 288 [13] - [14]. I apply these principles when considering the appellant's appeal.

'Themes' of the Grounds of Appeal and Outline of Submissions

The matters raised in the grounds of appeal, outline of submissions and responsive submissions fall within one of the following categories:
(a)failure of the respondent to comply with the LGA;
(b)admission of inadmissible hearsay evidence;
(c)non-disclosure of relevant material to the appellant by the prosecution; and
(d)the conviction cannot be supported or is unsatisfactory having regard to the evidence as a whole.
The appellant's outline of submissions and responsive submissions raised a number of additional grounds of appeal including:[30]
(a)that the appellant's name was capitalised;
(b)that the prosecution notice was not stamped, sealed and signed by the court registry and/or signed by the person commencing the prosecution, that is the respondent; and
(c)Mr Kelleher trespassed on the green space area where the appellant parked her car.
[30] Grounds of Appeal 1 to 23.
It is not entirely clear what the remainder of the grounds of appeal relate to - they appear to challenge the general jurisdiction of the courts and judicial officers. They are largely non-sensical. Such arguments have been repeatedly rejected by the Court of Appeal as being completely devoid of merit, frivolous and vexatious.[31]
[31] Hedley v Spivey [2012] WASCA 116 [7], [20]; Hopes v Australian Securities and Investments Commission [2017] WASCA 108.
Further, the appellant gave her appearance at trial as 'Michele … from the family Kwok'.[32] It appears from this and a number of the grounds of appeal and 'points' in the outline of submissions, that the appellant attempts to deploy what has been referred to by Vandongen J (as his Honour then was) in Kelly v Fiander[33] as the 'strawman duality theory'. There is no merit in such a contention.
[32] Appeal ts 2.
[33] Kelly v Fiander [2023] WASC 187 at [6].
I therefore, limit my consideration to each of the themes of the grounds of appeal that I have identified.

Failure of the respondent to comply with the LGA

The appellant submitted that, pursuant to s 3.3 of the LGA the result the respondent has no authority over Crown land.
Section 3.3 of the LGA provides that nothing in the act prevents the Crown or a person acting on the Crown's behalf from exercising the Crown's originating authority over the land. This section does not apply to the green space in the way that the appellant contends that it does.
There is no reasonable prospect of success for any grounds of appeal that relate to the alleged failure of the respondent to comply with the LGA.

Admission of inadmissible hearsay evidence

The appellant says the certificate of Robert Wylie dated 12 October 2022 confirming that the green space at 315 Bagot Road is maintained by the respondent's park services (Exhibit 6) was inadmissible because Mr Wylie, the author of the document, was not called to give evidence.
The respondent says that Exhibit 6 was admissible pursuant to s 9.41(3) of the LGA which provides:
9.41(3)Proving ownership, occupancy, and other things by certificate
3. Evidence as to whether anything -
(a)is within a local government's district; or
(b)belongs to a local government; or
(c)is vested in, or is under the care, control, or management of, a local government,
may be given by tendering a certificate signed by the CEO of the local government, or an employee of the local government who purports to be authorised by the CEO to so sign, and containing a statement as to the matter about which evidence is sought to be given.
I find that Exhibit 6 was admissible pursuant to s 9.41(3) of the LGA. There is no reasonable prospect of success of any ground of appeal that alleges inadmissible hearsay evidence was adduced.

Non-disclosure of relevant material to the appellant by the prosecution

The appellant submitted that the prosecution failed to disclose all relevant material to her as was required by s 35 and s 42 of the Criminal Procedure Act 2004 (CPA).
Section 19 the CPA outlines that pt 3, which contains s 35 and s 42, applies to all prosecutions in courts of summary jurisdiction.
Section 37 of the CPA specifies that div 4, which contains s 42, applies if an accused is charged in a court of summary jurisdiction with an indictable offence. Therefore, s 42 of the CPA does not apply to summary offences.
Section 35 of the CPA provides that, where a prosecution notice is served on an accused that contains one or more charges of simple offences (that are not prescribed simple offences, and the prosecutor is not a police prosecutor), the prosecutor must serve the accused with:
(a)the accused's criminal record if they have one;
(b)the prosecutor's intention if they intend to tender any of the accused's criminal record to the court;
(c)any document that is prescribed; and
(d)an approved notice advising the accused of the existence of any confessional material of the accused.
On 30 September 2022, Mr Rogers met with the appellant in person at the Perth Magistrates Court. Prior to appearing before the learned magistrate, Mr Rogers spoke with the appellant and showed her the following evidence collected by the respondent (which became the exhibits during the trial on 19 October 2022);[34]
1.Certificate certifying James Kelleher as officer of City of Subiaco (Exhibit 1);
2.Bundle of documents relating to the issuing of the infringement (Exhibit 2);
3.Certificate certifying Kris Rogers as an officer of City of Subiaco, authorised to conduct prosecutions (Exhibit 3);
4.Certificate of evidence issued by Department of Transport in relation to vehicle 1BNH 605 (Exhibit 4);
5.Certificate from Colin Cameron certifying 315 Bagot Road, Subiaco as within the boundaries of the city and that the green space therein is classified as a reserve (Exhibits 5 and 6);
6.Marked aerial photograph of Bagot Road (Exhibit 7); and
8.Bundle of photographs of the area of reserve (Exhibit 8).
[34] Rogers Affidavit.
The appellant had notice of the charge by virtue of being provided with the prosecution notice, which included a statement of material facts. The appellant had the opportunity to meet with the prosecution prior to the first appearance, the prosecution showed the appellant the documents they sought to reply upon and notified the appellant that the prosecution would seek an order for costs if they were successful.
The prosecution did not intend to tender the accused's criminal record (if any) to the court nor any confessional material of the appellant.
I am satisfied that the appellant was provided with all relevant material prior to the trial. There is no reasonable prospect of success of any ground of appeal that alleges non-disclosure by the prosecution.

The conviction cannot be supported or is unsatisfactory having regard to the evidence as a whole

I understood the appellant's submissions to be that her conviction was unreasonable, and could not be supported, having regard to the evidence before the learned magistrate. The essence of the appellant's submissions were that:
(a)315 Bagot Road, Subiaco was private land and was not designated as a 'reserve' on the certificate of title for the land;
(b)the respondent had no authority over the land unless a management order was listed on the certificate of title (which was not);
(c)the green space was not listed as a reserve under the parks and reserves listed on the respondent's website;
(d)parking on the green space was custom and practice for the volunteers of Earthwise, the lessor of the land, and therefore, as a volunteer for Earthwise, the appellant did not require written authorisation to park on the privately owned green space;
(e)neither Earthwise, as the lessor, nor the Anglican Church, as the owner, had asked her to move her vehicle from the green space;
(f)it was not inherently dangerous to park on the green space as access to the green space could be obtained by driving over the kerb and the footpath and that such an action would only be unlawful if the vehicle was obstructing a footpath and/or if the vehicle was being driven dangerously, neither of which the appellant did in gaining access to park on the green space; and
(g)there were not any parking signs on the green space to indicate that parking was not permitted.
In determining such an appeal ground, I am required to consider whether, upon the whole of the evidence, I could be satisfied beyond a reasonable doubt that the appellant was guilty of the offence.[35]
[35] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
The prosecution adduced evidence in the form of a certificate from Colin Cameron, the chief executive officer of the respondent, certifying that 315 Bagot Road, Subiaco is within the boundaries of the respondent and that the green space therein is classified as a reserve.[36] As I have outlined, the certificate may be tendered as evidence pursuant to s 9.41(3) of the LGA. I am therefore satisfied that the green space area at 315 Bagot Road, Subiaco was a reserve for the purposes of the Parking Local Law.
[36] Exhibit 5.
The evidence comprising the photographs of the green space and surrounding areas clearly shows that bollards prevented vehicle access to the green space area and that the only way for a vehicle to access that area was to drive over a footpath. The photographs also show that there are park benches situated around the large tree on the green space area.[37] I am satisfied that, in these circumstances, the respondent did not need to install a 'no parking sign' in the green space area.
[37] Exhibit 8.
In accordance with the Parking Local Law, the appellant was required to have written permission from an authorised person to park on the green space area. The appellant did not adduce any evidence of such written permission. The appellant confirmed, at the hearing of the appeal, that she did not have written permission from anyone to park on the green space. In the absence of written permission, the issue of whether a person was 'authorised' to give permission is a moot point.
Finally, I find that a defence of honest and reasonable mistake, pursuant to s 24 of the Criminal Code (WA) (Code), is not available to the appellant on the basis of the evidence adduced at trial. Even on the most favourable view of the evidence for the appellant, the appellant had an honest, but mistaken, belief that she was legally permitted to park on the green space. Section 22 of the Code provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence unless knowledge of the law by an offender is expressly declared to be an element of the offence.
Knowledge of the law is not an element of the offence in this case and therefore, a mistaken belief as to the law does not give rise to a defence.
In any event, any mistaken belief by the appellant that she was permitted to park on the green space was not a reasonable belief. The appellant, on her own evidence at trial before the learned magistrate, gained access to the green space by mounting a footpath through a pedestrian crossing and had to leave the area in the same manner. It is irrelevant that she was of the view that she was a safe driver and people would have ample warning of her vehicle. It is clearly not objectively reasonable for anyone to park on the green space.
There is no reasonable prospect of success on any ground of appeal that allege the conviction cannot be supported or is unsatisfactory having regard to the evidence as a whole.

Conclusion and final orders

There is no reasonable prospect of success on any of the grounds of appeal. Leave to appeal on all grounds of appeal is refused. The appeal is dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Hon Justice Whitby
17 AUGUST 2023