Mita v Hawking - [2010] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MITA -v- HAWKING [2010] WASC 215

CORAM: JENKINS J

HEARD: 21 APRIL 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: SJA 1007 of 2010

BETWEEN: DOMENIC MITA
Appellant
AND
JOHN ROBERT HAWKING
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE W TARR
File No  :PE 32638 of 2009

Catchwords:

Criminal law - Appeal against conviction - Extension of time within which to appeal - Driving across a continuous white line - Adequacy of magistrate's reasons - Statutory definition of vehicle includes a motor cycle

Legislation:

Criminal Procedure Act 2004 (WA), div 3, pt 5, pt 6
Road Traffic Act 1974 (WA), s 5
Road Traffic Code 2000 (WA), r 3, r 127(1)

Result:

Application for leave to appeal on each proposed ground of appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr I A Repper

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

JENKINS J:

The decision under appeal

This is an appeal from a decision of a magistrate sitting in the Magistrates Court at Perth on 24 September 2009. The appellant appeals against the decision to convict him of one count of driving a vehicle across a continuous white line.

Grounds of appeal

The appeal notice does not contain grounds of appeal. It includes a general grievance that the police officers who gave evidence against the appellant committed perjury. Attached to the appeal notice is a five and a half page document from the appellant which raises a number of issues. At the hearing the appellant clarified his grounds of appeal. He said that they are:
1.The learned magistrate erred in accepting the evidence of the police officers;
2.The learned magistrate erred in his attitude towards the appellant and he prejudged the appellant's case;
3.The learned magistrate erred in equating a motor cycle with a car (by referring to a 'vehicle' and a 'motor vehicle'); and
4.The learned magistrate erred in failing to indicate to the appellant that he was going to find him guilty.
The appeal notice was not filed until 2 February 2010. Thus, it was filed over three months out of time. The appellant requires an extension of time within which to appeal as well as leave to appeal on each ground. Except in exceptional circumstances, an extension of time will not be granted where there is a long and unexplained delay unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted: Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424 [28].
The appellant filed an affidavit sworn on 2 February 2010 in which he deposes that after his conviction he contacted the Police Complaints Administration Centre and submitted a complaint concerning the matter. The appellant says that he received a final response, dismissing his complaint, on 28 October 2009. The appellant says that since then he has spoken to the Corruption and Crime Commission about his complaint. He says he now appreciates that he should have appealed if he wished to overturn the magistrate's decision.
The affidavit does not explain the delay in commencing this appeal from the end of October through to the beginning of February. The affidavit does not disclose exceptional circumstances. Thus it is necessary to consider the merits of the appeal.

Details of charge and the proceedings

The prosecution notice alleged that on 23 December 2008 at Cannington the appellant:
[D]rove a vehicle, registration number 1DG 327, on a road, namely Albany Highway being a road divided longitudinally into two or more lanes, by single, continuous lines, drove [sic] across one of those lines.
This offence is contrary to the Road Traffic Code 2000 (WA) r 127(1).
Although there is a typographical error in the charge by the insertion of the second 'drove', the allegation is clear. The typographical error did not play any part in the appellant's conviction.
The appellant, who was self‑represented, entered a plea of not guilty and his trial took place before the magistrate on 24 September 2009. On the same date, the magistrate delivered his reasons and convicted the appellant of the charge. There is no appeal from the penalty which the magistrate imposed.
The prosecution called three witnesses. All three witnesses were police officers who testified that they were the occupants of a marked police vehicle which was stationary in a line of traffic in the far left hand lane of Albany Highway, at the intersection of Liege Street and Albany Highway, Cannington. The vehicle was travelling in a northerly direction. The police vehicle was approximately four cars back from the traffic lights, which were red. Each of the police officers gave evidence that they observed the appellant's Kawasaki motor cycle registration number 1DG 327 travel past the police vehicle, between it and the adjoining lane of traffic, and pull up to the traffic lights. They testified that when it did so, it crossed the continuous white line, separating the far left‑hand lane from the adjoining lane. The traffic lights then turned green. The appellant rode off, followed by the police vehicle. The appellant was pulled over and the allegation put to him that he had crossed the continuous white line separating the lanes.
It was not in dispute that Albany Highway at that intersection has a continuous white line running perpendicular to the stop line at the traffic lights. It separates the relevant two lanes of traffic and is approximately 15 ‑ 20 m long.
The respondent, Constable Hawking, was the first police witness. He said that he was the driver of the police vehicle. He testified that the solid white line running perpendicular to the stop line stopped half way down the length of the car that was stationary immediately in front of the police vehicle. The officer said that after the appellant's motor cycle had passed the vehicle immediately in front of the police car it crossed the white line and travelled from his (the respondent's) lane to the adjoining lane and back to his lane.
The respondent said that when he spoke to the appellant he (the appellant) said that he did not know that he had committed an offence. The respondent issued an infringement notice to the appellant.
The second prosecution witness was Constable William Brown. He said that he saw the appellant's motor cycle continue through the two lanes of traffic and observed it crossover the continuous white line from the lane the police car was in to the adjoining lane and then come to a stop at the front of the traffic. Constable Brown said that he was sitting in the front passenger seat and that his view of the incident was good.
The third prosecution witness was Constable David Everett Timbling. He was a probationary constable. He said that he was in the rear right‑hand side passenger seat of the police car. Constable Timbling testified that the appellant's motor cycle travelled immediately on his right in a northerly direction, splitting the traffic between lanes one and two to get to the front of the queue of traffic. He said that he saw the motor cycle cross the continuous white line from the lane the police vehicle was in into the next lane and then weave back over the line and stop in front of the traffic.
Constable Timbling said that he was present when the respondent spoke to the appellant. He said that the appellant said that he did not know that what he had done was an offence. He said that it was one of the 'perks of having a motor cycle'.
Constable Timbling said that he could see through the headrest of the driver's seat, through the driver's window and out the windscreen. He said he could see the continuous white line almost all the way to the traffic lights.
The appellant gave evidence on his own behalf. He admitted that he was the rider of the motor cycle which the police had seen travelling towards the lights at the corner of Liege Street and Albany Highway. He testified that the traffic was very heavy. He said that he did what he regularly did and that is travel through heavy traffic to the front of the traffic lights. He said that he travelled between the stationary cars and at no point was there 'any excessive amount of gap on one side and a very, very narrow gap on the other'.
This evidence appears to have been a reference to previous comments he had made when cross‑examining the police witnesses to the effect that he had travelled in a straight line between the two rows of vehicles so that he was parallel to the continuous white line at all relevant times. The appellant has made similar comments in material submitted in support of the appeal. He did not give direct evidence to that effect.
After hearing short submissions from the prosecutor and the appellant, the magistrate delivered his reasons for decision. The first issue dealt with by the magistrate was the appellant's contention that he was riding a motor cycle and not a 'vehicle'. The magistrate said that the Road Traffic Act 1974 (WA) defined 'vehicle' to include a motor cycle. The magistrate then summarised the prosecution evidence. His Honour also referred to the appellant's evidence and to the fact that the appellant had not testified that he did not cross the continuous white line. His Honour referred to the appellant's evidence that after he drove off from the lights he said he had to change lanes to move to the left and to the fact that the appellant 'showed some uncertainty' about what motorcyclists were legally permitted to do in these circumstances. The magistrate mentioned Constable Brown's evidence that the police look out for this type of offending. His Honour then said that on the evidence before him he could be satisfied beyond reasonable doubt that the appellant did cross the single white line and had therefore committed the offence.

Ground 1

The appellant submits that the magistrate should not have accepted the police officers' evidence as they were not in a position to see his motor cycle cross the continuous white line. The basis of this submission is that as the police car was in a line of traffic, the police officers would not have been able to see the continuous white line on the roadway, adjacent to the cars in front of the police vehicle.
Constable Hawking was the driver of the police vehicle and the appellant rode his motor cycle straight past him. The appellant did not put to Constable Hawking that he was not in a position to see what he said he observed. This is understandable as the driver of a motor vehicle would most likely be able to see the roadway ahead of him, between the line of traffic he was in and an adjacent line of traffic on his right.
The appellant asked Constable Brown how he could see past the vehicle in front of him. Constable Brown said:
Our training trains us not to pull up immediately behind other cars in case we get a priority job that we have to take off quickly. So in all instances we always pull up and park the police car, allowing us enough room to take off in a hurry rather than put it in reverse and try and back up in traffic, and in this instance Senior Constable Hawking had placed the police car with enough distance between us and the front car, which gave us all a clear view of the white line (ts 9).
He was then asked whether the view was all the way to the traffic lights and the constable said that his view was all the way to the stop line.
In examination‑in‑chief Constable Timbling said that he could see between the headrest of the driver's seat through the driver's window and the windscreen. He said that he could see the continuous white line almost all the way until the traffic lights. I also note that Constable Timbling was directly behind the driver and, thus, the appellant rode directly alongside and then past him.
The appellant did not adduce evidence to the effect that it was impossible for the police officers to have seen what they said they observed. He made some allegations from the bar table to this effect.
As a matter of common sense, whether or not a person travelling in a car can see a motor cycle ahead of them manoeuvring between two lines of traffic so as to cross a solid line marking depends on a number of factors. These factors include their seating position in the car, the size of their vehicle or the vehicles ahead, how close their car is to the adjacent lane, the position within the lane of the vehicle in front of them, the camber of the road, whether the road is straight or whether it curves, even slightly, left or right and how close their vehicle is to the vehicle in front. A bald allegation from the appellant at the bar table to the effect that it was not possible for the police witnesses to see what they said they saw did not assist the appellant to weaken the police officers' evidence that they saw the appellant commit the offence.
The magistrate was entitled to accept the evidence of the three police officers. It was not 'inconsistent with facts incontrovertibly established by the evidence'. Neither was it 'glaringly improbable': Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron & McHugh JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29] (Gleeson CJ, Gummow & Kirby JJ), [66] (McHugh J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 [21] (Kirby J, Gleeson CJ agreeing).
It is not surprising that the magistrate relied on the evidence of the police officers which was given in an apparently credible manner, which was without any substantial inconsistencies and which was not directly contradicted by other evidence. His decision to do so does not indicate error on his part.
On the other hand, the appellant failed to give direct evidence that he had not crossed the continuous white line. He acknowledged that he had driven between the two lines of vehicles in heavy traffic. It is similarly unsurprising that the magistrate found that the appellant's evidence did not cause him to doubt the evidence of the three police witnesses.
The magistrate was required to give his reasons for accepting the police officers' evidence: Magistrates Court Act 2004 (WA) s 31(1). It is true that the reasons given by the magistrate did not address whether or not the police witnesses could have physically seen what they claimed to have been able to see. This is despite the fact that it was a major part of the appellant's closing submissions that one or more of the police officers would not have been able to see what they testified they had seen.
Even if I accept that the magistrate erred in failing to give reasons for finding that the police witnesses' evidence as to what they said they saw the appellant do was credible, I need not allow the appeal if the evidence in substance supported his Honour's decision: Criminal Appeals Act 2004 (WA) s 14(3).
For the reasons given earlier as to the strength of the prosecution evidence and the lack of evidence to support the appellant's case, I am of the opinion that even if the magistrate erred in failing to give any or sufficient reasons for accepting the police officer's evidence, the appeal ought not be allowed on this basis as the evidence in substance supported his Honour's decision.

Ground 2

The appellant's grievances are:
1.that prior to him coming into court, the magistrate appeared to have been talking in court to the police officers involved in his case; and
2.the magistrate was rude to him. For example, he interrupted him and told him to take his hands out of his pockets.
As requested by the appellant, I have listened to the audio recording of the proceedings before the magistrate. The recording starts with the preceding matter before the magistrate. The magistrate reads a charge to another accused. The prosecution asks for that matter to be stood down for five minutes and the magistrate advises that accused to wait in the back of the court. The appellant's matter is then called. I infer that at this point the appellant is out of court and somebody leaves the court to call his name outside the courtroom. There is an approximately 25‑second delay before the magistrate is heard to address the appellant, in person. During that period there are some very short, inaudible comments on the recording. They appear in the main to be between the magistrate and the female judicial support officer or similar person. They do not support the view that the magistrate was inappropriately discussing the appellant's case with any person prior to the appellant coming into court.
The appellant's impression as he came into court was that the magistrate was talking to others in the court. This impression may well have been caused by the fact that the magistrate was dealing with another matter immediately prior to the appellant being called into court. There is nothing on the recording to support the appellant's claim that the magistrate was talking about his case with the prosecutor or police witnesses before he entered court.
The audio recording reveals that the appellant challenged the magistrate from the commencement of the hearing. The magistrate responded by adopting a slightly derisory tone towards the appellant. However, the magistrate remained civil and told the appellant that his (the appellant's) role during the prosecution case was to ask questions of the prosecution witnesses and that he would have an opportunity to give evidence at a later time. The appellant continued to make statements from the bar table. On a number of occasions the appellant said that he wanted an explanation of the law relating to riding a motor cycle between lines of stationary traffic. The magistrate had to cut him off otherwise it seemed that the appellant would have continued to make speeches from the bar table and the course of the trial would have been disrupted.
At the end of the prosecution evidence, the appellant gave evidence. The magistrate then asked the appellant whether he wished to address him. The appellant continued to ask the magistrate questions and appeared to expect the magistrate to answer immediately any query he had about the relevant traffic law. During the appellant's oral submissions the magistrate said that he would like the appellant to take his hands out of his pockets. Again, the magistrate used a civil tone of voice.
After the magistrate delivered his reasons for finding the charge proved and convicting the appellant, the appellant started to dispute the facts with the magistrate. The magistrate again cut him off. The appellant was rude to the magistrate and the magistrate responded in kind. He finalised the matter. This was wise as the appellant was obviously upset and was finding it difficult to accept that the magistrate had found the charge proven.
The magistrate was entitled to tell the appellant to take his hands out of his pockets. This was not an unreasonable request given that the appellant was in a court addressing a magistrate. Otherwise, the magistrate's approach to the appellant was appropriate, especially given the appellant's challenging manner towards his Honour. There was nothing said by the magistrate to indicate that he prejudged the appellant's case. This ground of appeal has no prospects of success.

Ground 3

The regulation under which the appellant was charged, r 127(1), prohibits a person from driving a 'vehicle' across a single continuous line which longitudinally divides a portion of the road. Relevantly, 'vehicle' is defined in the Road Traffic Code r 3 to have the same meaning as the term has in the Road Traffic Act. The Road Traffic Act s 5 defines 'vehicle' to include:
(a)every conveyance, not being a train, vessel or aircraft, and every object capable of being propelled or drawn, on wheels or tracks, by any means; and
(b)where the context permits, an animal being driven or ridden.

Self‑evidently, the definition of vehicle for the purposes of the Road Traffic Code r 127(1) includes a motor cycle. The appellant appears to believe that r 127(1) should not apply to people who ride motor cycles. As I have stated, it does. There was nothing the magistrate could do, nor anything I can do, to change this law. This ground has no prospects of success.

Ground 4

The appellant's grievance is that the magistrate should have told him that he intended to find him guilty. By failing to do so, the appellant implies that he was denied the opportunity to either produce further evidence or to make further submissions. The appellant does not complain that he was not given an opportunity to be heard on an issue which the magistrate found against him. Rather, the appellant apparently thought, albeit wrongly, that it was clear to the magistrate that the police officers' evidence was false and he was taken by surprise when he was found guilty.
The general procedure on a charge of a simple offence is set out in the Criminal Procedure Act 2004 (WA) div 3, pt 5 and pt 6. Any accused is entitled to defend a charge and to cross‑examine any witnesses called by the prosecutor and call, examine and re‑examine any witness: s 144. An accused is also entitled to give a closing address, immediately after the prosecutor has given a closing address: s 145. There is no statutory or common law requirement on a judicial officer to give an indication to an accused that he or she is going to find a charge proven. To do so would usually constitute an error of law as it would indicate that the judicial officer had prejudged the case. This ground has no prospects of success.

Conclusion

As none of the appellant's grounds of appeal have any prospects of success and there are no exceptional circumstances justifying the delay in instituting the appeal, an extension of time within which to appeal is refused, leave to appeal is refused and the appeal is dismissed.