Kwok v Gordon - [2023] WASC 325

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KWOK -v- GORDON [2023] WASC 325
CORAM:   TOTTLE J
HEARD:   24 AUGUST 2023
DELIVERED          :   24 AUGUST 2023
FILE NO/S:   SJA 1015 of 2023
BETWEEN:   MICHELE KWOK
Appellant

AND

DARYL GORDON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A MAUGHAN
File Number            :   JO 10600/2022

Catchwords:

Single judge appeal - Application for leave to appeal against conviction and sentence - Whether magistrate erred in entering judgment of conviction pursuant to s 55 of the Criminal Procedure Act 2004 (WA) - Leave to appeal granted - Appeal allowed

Legislation:

Criminal Procedure Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)

Result:

Leave to appeal against judgment of conviction granted
Appeal against judgment of conviction allowed
Conviction set aside
Matter remitted to Magistrates Court

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms J Kasbergen

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Kelly v Fiander [2023] WASC 187

TOTTLE J:

On 13 January 2023, the appellant was convicted of the offence of failing to give information identifying the driver or person in charge of a vehicle contrary to s 34(2) of the Road Traffic (Administration) Act 2008 (WA). A fine of $350 was imposed and the appellant was ordered to pay costs in the sum of $264.30. The appellant has applied for leave to appeal against the conviction.
At the hearing in the Magistrates Court the learned magistrate determined that it was open to him to proceed under s 55 of the Criminal Procedure Act 2004 (WA). In summary, this provision confers power on a court to hear a charge if an accused person does not appear provided that the court is satisfied that the accused has been served with the prosecution notice or an approved notice informing the accused of the hearing date.
It appears that the magistrate was satisfied that the appellant had not appeared for the purposes of s 55 of the Criminal Procedure Act. This is so because in an exchange with the appellant she was initially equivocal as to whether she was in fact the accused and further said, 'I'm not the person that's summonsed here today'.
In response to this statement the magistrate said that the appellant should stand in the back of the court and he would deal with the charge in the absence of the accused under s 55 of the Criminal Procedure Act. The approach adopted by the magistrate was the same as that adopted by the magistrate whose decision was the subject of appeal in Kelly v Fiander [2023] WASC 187, a recent decision of Vandongen J (as his Honour then was).
The appellant relies on 57 grounds of appeal. By grounds 28 to 34 the appellant challenges the magistrate's decision to proceed under s 55 of the Criminal Procedure Act and contends in effect that it was not open to the magistrate…

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.

Continue reading Kwok v Gordon

Details

AGLC: Kwok v Gordon [2023] WASC 325
Case: [2023] WASC 325
Decision Date

CaseChat Overview and Summary

Michele Kwok, the appellant, appealed against her conviction for failing to provide information identifying the driver of a vehicle as required by the Road Traffic (Administration) Act 2008 (WA). Daryl Gordon, the respondent, represented by the State Solicitor's Office, defended the conviction. The case originated in the Magistrates Court of Western Australia, presided over by Magistrate A Maughan, and was subsequently appealed to the Supreme Court of Western Australia.

The legal issue before the Supreme Court was whether the magistrate correctly exercised the power under s 55 of the Criminal Procedure Act 2004 (WA) to proceed with the hearing in the absence of the accused. The appellant argued that she had, in fact, appeared before the court, despite her equivocation when asked if she was the accused. The court had to determine if the magistrate erred in proceeding under s 55 when the appellant was physically present and had appeared before the court.

The Supreme Court, in granting leave to appeal, found that the magistrate had erred in entering a judgment of conviction under s 55. The court held that the appellant was indeed present and had appeared before the court, contrary to the magistrate's determination. This error led to a miscarriage of justice. The court noted that the appellant's equivocation did not negate her presence and that proceeding under s 55 without clear justification was inappropriate. The appeal was allowed on this ground, and the conviction was set aside. The case was remitted to the Magistrates Court to be dealt with by another magistrate.

In summary, the Supreme Court allowed the appeal, set aside the conviction, and remitted the matter for further proceedings. The court held that the magistrate's decision to proceed under s 55 constituted an error that resulted in a miscarriage of justice.

Orders