Moncur v Pilgrim
[2012] WASCA 131
•3 JULY 2012
MONCUR -v- PILGRIM [2012] WASCA 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 131 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:13/2012 | 11 MAY 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 3/07/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | BRIAN ALEXANDER MONCUR GRANT JOHN PILGRIM |
Catchwords: | Criminal law and procedure Appeal against decision Charge of driving with more than 0.08% blood alcohol Plea of guilty Whether appellant could not be guilty of offence charged Whether respondent should not have been allowed to participate in appeal because of lateness in filing written submissions |
Legislation: | Australian Human Rights Commission Act 1986 (Cth) Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 40(1)(e) Criminal Procedure Act 2004 (WA), s 71(2)(a) Criminal Procedure Rules 2005 (WA), r 67 International Covenant on Civil and Political Rights, Sch 2 Road Traffic Act 1974 (WA), s 64(1), s 65, s 70(2)(bb) Road Traffic (Breath Analysis) Regulations 1975 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA), r 31(1), r 31(2), r 31(4), r 33(1), r 33(2), r 33(3b) |
Case References: | Borsa v The Queen [2003] WASCA 254 Moncur v Pilgrim [2011] WASC 347 Windie v The State of Western Australia [2012] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MONCUR -v- PILGRIM [2012] WASCA 131 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
GRANT JOHN PILGRIM
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : MONCUR -v- PILGRIM [2011] WASC 347
File No : SJA 1053 of 2011
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Catchwords:
Criminal law and procedure - Appeal against decision - Charge of driving with more than 0.08% blood alcohol - Plea of guilty - Whether appellant could not be guilty of offence charged - Whether respondent should not have been allowed to participate in appeal because of lateness in filing written submissions
Legislation:
Australian Human Rights Commission Act 1986 (Cth)
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 71(2)(a)
Criminal Procedure Rules 2005 (WA), r 67
International Covenant on Civil and Political Rights, Sch 2
Road Traffic Act 1974 (WA), s 64(1), s 65, s 70(2)(bb)
Road Traffic (Breath Analysis) Regulations 1975 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 31(1), r 31(2), r 31(4), r 33(1), r 33(2), r 33(3b)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
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Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Moncur v Pilgrim [2011] WASC 347
Windie v The State of Western Australia [2012] WASCA 61
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1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: The appellant seeks leave to appeal against the decision of Murray J in Moncur v Pilgrim [2011] WASC 347, in which his Honour dismissed his appeal against conviction.
Background
4 At 1 am on 2 September 2010, the appellant was stopped by police on Mandurah Terrace, Mandurah, for a random breath test pursuant to s 66(1) of the Road Traffic Act 1974 (WA) (RTA). That test ascertained that he may have committed a drink driving offence. As a result he was conveyed to the Mandurah police station, where he was required by virtue of s 66(2)(a) of the RTA to undergo a breath analysis test on duly authorised self-testing equipment called the Drager Alcotest 7110 (the Drager). The test was conducted by the respondent, an authorised person within the meaning of s 65 RTA. It is not disputed that, on his first attempt, the appellant gave an insufficient sample of his breath. On his second attempt, a reading of 0.110 g of alcohol per 210 litres of breath was obtained. That reading converts, by reason of s 65A(1) of the RTA, to 0.110 g of alcohol per 100 ml of blood. The appellant was provided with a printout from the breathalyser which showed this result and the earlier insufficient sample. The printout was signed by the authorised person as required by s 68(10) RTA. A copy of this document is attached to these reasons and will be referred to later. The successful reading was calculated to 0.104 g of alcohol per 100 ml of blood at the time of driving, using the method of calculation prescribed by s 71 of the RTA.
The proceedings before the Magistrates Court
5 By a prosecution notice dated 2 December 2010, the appellant was charged with driving a motor vehicle with a blood alcohol content exceeding 0.08 g of alcohol per 100 ml of blood, contrary to s 64(1) of the RTA.
6 The prosecution notice was listed before the Mandurah Magistrates Court on 5 January 2011. The appellant did not receive notification of this court date because it was sent to the wrong address. On 5 January 2011, the charge was dealt with in the appellant's absence. The appellant was convicted, fined $1,250 with costs and his motor driver's licence was disqualified for a period of 9 months.
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7 The appellant subsequently became aware of the penalty imposed upon him and, on 28 April 2011, he applied to set aside the decision made in his absence, on the ground that he had not received the summons: s 71(2)(a) of the Criminal Procedure Act 2004 (WA). In support of the application, the appellant provided the magistrate with a letter, in which he said that he was 'unable' to dispute the blood alcohol reading, but wanted to deliver a plea in mitigation.
8 On 18 May 2011, without objection from the prosecution, the conviction was set aside. The appellant then pleaded guilty and made a plea in mitigation. The appellant did not dispute the blood alcohol reading, but said that he 'didn't intentionally intoxicate' himself. He said that he had 'two beers' and he believed that this alcohol, combined with the effect of prescription medication, led to the calculated blood alcohol reading of 0.104 g of alcohol per 100 ml of blood.
9 For reasons that are not material, the magistrate adjourned the proceedings to 8 June 2011. On that day, the appellant told the magistrate that he had sought legal advice and that advice was to the effect that the accuracy of the blood alcohol measurement 'may be regarded as questionable': ts 3, 8 June 2011.
10 The magistrate said that he had in front of him a 'form 3'. A 'form 3' is a certificate issued under the Road Traffic (Breath Analysis) Regulations 1975 (WA) (the Regulations), which certifies that a sample of breath was taken by an authorised person by means of a designated self-testing apparatus. A 'form 3' also includes the result of the analysis. This certificate is prima facie evidence of the matters therein: s 70(2)(bb) RTA. The form 3 was not tendered as an exhibit before the magistrate and it was not adduced in evidence before Murray J or this court.
11 The magistrate considered that the appellant was, in substance, applying to withdraw his plea of guilty. He refused the application, saying:
You pleaded guilty on 18 May so I'm satisfied that's a properly entered plea of guilty on the basis of the information that's in front of me: ts 5, 8 June 2011.
The appeal to Murray J
12 Before Murray J, the appellant argued that his plea of guilty and the conviction and sentence that followed should be set aside because, on the facts, he was not guilty of the offence.
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13 Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), his Honour permitted the appellant and the respondent to adduce additional evidence at the hearing of the appeal. The appellant filed an affidavit, dated 26 August 2011. That affidavit annexed the statement of material facts prepared by the respondent on 26 May 2011, the printout produced by the Drager and an instruction manual for the Drager.
14 An affidavit by Sergeant Gregory John Hay, sworn on 29 November 2011 (the day before the hearing of the appeal) was filed by the respondent. Sergeant Hay is an approved person, within the meaning of s 65 of the RTA, to operate amongst other things, the Drager. In that affidavit, he stated that the Drager has an internal clock and it is the time that is recorded by that clock that is used on the printout. However, for other purposes under the RTA, it is the time taken from the apprehending officer's watch that is relevant. Further, the instruction manual referred to in the appellant's affidavit is for a European version of the Drager, which has never been used in Western Australia. The Western Australian police force has its own instruction manual. That manual was annexed to Sergeant Hay's affidavit: annexure GH3 (WA manual).
15 The appellant filed his written submissions well before the hearing of the appeal. Some of the appellant's arguments relied upon the European instruction manual for the Drager and were factually inaccurate. The principal argument made by the appellant in his written submissions, was that the blood alcohol analysis obtained from the breathalyser was invalid. His argument was as follows. The statement of material facts provided to the appellant, stated that the appellant was 'summonsed' at Mandurah at 1.20 am on 2 December 2010. However, the printout produced by the Drager showed that the start time of the analysis was 1.18 am and that, at 1.20 am, the appellant gave an insufficient sample of his breath. It was not until 1.22 am, that a valid result was obtained. The appellant submitted that at the time he was said to have been 'summonsed', no valid breath analysis had occurred.
16 At the hearing of the appeal on 30 November 2011, the appellant objected to the fact that the respondent's outline of submissions, which was in electronic format, had not been delivered to the court as required by the Consolidated Practice Direction 2.1, par 22, no later than two clear working days before the hearing. The respondent's outline of submissions was delivered on 28 November 2011, but was not served on the respondent until the following day. Once served, the appellant wrote to his Honour seeking that the respondent's outline of submissions be ruled
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- 'inadmissible', or alternatively, that the hearing of the appeal be adjourned for at least 4 to 6 weeks.
17 At the outset of the hearing on 30 November 2011, the matters raised by the appellant in his letter were canvassed. His Honour proposed that the appeal hearing proceed. His Honour told the appellant that he was soon to retire. His Honour said that if, at the end of oral argument, there was material that the appellant was not able to put to the court or had insufficient time to prepare, the appellant could tell him, with a view to that material being submitted to the court in writing after the hearing. The appellant agreed to this proposal: ts 4.
18 In the course of the appellant's oral submissions to his Honour, he provided the court with a document which responded to the outline of submissions filed by the respondent. His Honour considered the document to have 'comprehensively' dealt with the various points made by the respondent: ts 6. At the end of the hearing, nothing was said by Murray J or the appellant about the need to file further submissions.
Murray J's decision
19 Murray J found that the appellant consciously entered his plea of guilty, in that he had accepted the existence of the facts which would constitute the elements of the offence: Moncur v Pilgrim [29]. He said that the evidence of Sergeant Hay, as to the discrepancy between the time stated on the statement of material facts and the time shown on the printout produced by the breathalyser, was explained by the breathalyser using its internal clock, while the time shown on the statement of material facts was taken from the apprehending officer's watch: Moncur v Pilgrim [19], [20].
20 His Honour found that there was no evidence of any misuse of the breathalyser equipment and that the evidence before him failed to demonstrate that the appellant could not, as a matter of law, be found guilty of the offence.
The appeal to this court
21 The appellant seeks leave to appeal on six grounds. The grounds are, to some extent, confusing and repetitious.
22 Grounds 1, 2 and 4 can be dealt with together. The appellant submits that the respondent should not have been allowed to participate in the appeal before Murray J because he filed his notice of respondent's intention to be heard and his written submissions late (ground 2). In any
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- event, the appellant submitted that in view of the respondent's late written submissions and the matters in Sergeant Hay's affidavit, his Honour should have acceded to the appellant's request to adjourn the proceedings and he erred by not doing so (ground 1). The appellant also submits that the hearings both before the magistrate and Murray J were unfair because he was not legally represented and did not have 'sufficient time to deal with the issues raised in these proceedings' (ground 4).
23 Grounds 3, 5 and 6 are all, in substance, a submission that, based on the evidence produced before Murray J, he could not on the evidence, as a matter of law, have been found guilty of the offence and accordingly his Honour erred in not allowing his appeal.
The appellant's submissions
24 The appellant submitted that the respondent filed his notice of intent to take part in the appeal, 'well in excess of the 7 days as stated within the Criminal Procedure Rules 2005, reg [sic] 67 and/or Supreme Court (Court of Appeal) Rules 2005 (WA), reg [sic] 31(1), (2) and (4)'. Further, it was said that the respondent should have filed his outline of submissions and any affidavit, within 21 days after receiving the appellant's submissions and affidavit on 26 August 2011, pursuant to Supreme Court (Court of Appeal) Rules 2005 (WA),r 33(1)(2) and (3b). Instead, they were not filed and served upon him until 29 November 2011. As a result of these failures, the respondent should have been excluded from participating at the hearing before Murray J, on 30 November 2011.
25 The appellant further submitted that because he did not receive the respondent's submissions and Sergeant Hay's affidavit until 29 November 2011, he had insufficient time to prepare his case and that his Honour should have adjourned the hearing. Moreover, he says that his human rights have been breached, in particular his asserted right under the Australian Human Rights Commission Act 1986 (Cth), to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.
26 The appellant argued that, in any event, the evidence before Murray J, was such that he could not have been found guilty of the offence and that the plea of guilty should be set aside. He repeated the argument made to Murray J, concerning the discrepancies in the times recorded on the statement of material facts and the printout produced by the breathalyser machine. In addition, the appellant made a submission which he said showed that the breath analysis result produced by the Drager was invalid. The appellant referred to the WA manual. He noted,
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- that in an illustration on page 5 of this manual, the printout shown of a valid breath analysis included the words 'sufficient sample'. These words, he observed, did not appear on the printout which had been given to him on 2 December 2010 by the police. He further noted that, according to the WA manual, when a subject gave an insufficient sample, the words 'test discontinued' should be printed near the base of the document. These words did not appear on the printout he had been provided: par 4.2 of the WA manual.
Merits of the appeal (grounds 1, 2 and 4)
27 The respondent did not file its notice of intention late. Rule 67 of the Criminal Procedure Rules provides that on being served, a respondent may lodge a notice of intention, but must do so within 7 days of service, failing which, the respondent is not entitled to take part in the appeal. The appellant's service certificate, shows that on 3 August 2011 the appellant served his notice of appeal upon the office of the Director of Public Prosecutions. The following day, 4 August 2011, the notice of the respondent's intention was filed. The file relevant to the appeal before Murray J shows that the appellant originally served, as the respondent, the learned magistrate at the Mandurah courthouse. The magistrate did not file a notice of respondent's intention. No doubt this is because the magistrate is not the proper respondent to the appellant's appeal. In other words, the appellant initially served the wrong respondent.
28 On 12 August 2011, Hall J made orders with respect to the appellant's appeal from the decision of the magistrate. Relevantly, his Honour ordered:
1. ...
2. If the appellant is seeking to argue that his plea of guilty on 18 May 2011 was not a proper plea and should be set aside, then any evidence he wishes to rely upon in support of that argument must be provided in the form of an affidavit and any such affidavit is to be filed and served within 14 days.
...
6. The parties must comply with Consolidated Practice Directions published 22 January 2009, pt 2 entitled 'Submissions and authorities' available at Hall J did not make any order concerning affidavits filed on behalf of the respondent. So far as the filing of submissions is concerned, that was governed by the Consolidated Practice Directions and not by the
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- provisions of the Supreme Court (Court of Appeal) Rules,which relate to Court of Appeal proceedings (which the proceedings before Murray J were not). Paragraphs 21 and 22 of the Consolidated Practice Direction 2.1, allow a respondent to choose whether to deliver to the court an outline of submissions either in paper format or electronic format. If the latter format is chosen, then the document is to be delivered by email to the court, no later than two clear working days before the hearing.
30 The respondent should have delivered its submissions in electronic format, no later than 27 November 2011. By delivering them to the court on 28 November 2011, the respondent was one day late.
31 It does not follow that because submissions are filed late, that a judge must refuse to have regard to them. The consequences for failing to comply with the relevant practice direction are not prescribed and are for the court to decide, having regard to all the circumstances of the case.
32 In the present case, the respondent's failure to comply with the relevant practice direction, by one day, may have conceivably given rise to the adjournment of the appeal, but it could not reasonably have resulted in the respondent being, in effect, shut out of the proceedings. Whether or not an adjournment of proceedings should be granted is a discretionary decision. Accordingly, the question to be answered is whether his Honour erred in the exercise of his discretion by not granting the appellant the adjournment that he sought.
33 His Honour's approach to the question of an adjournment, was appropriate and fair in the circumstances. His Honour allowed oral argument to proceed on the basis that, if the appellant wished to file further submissions in writing to deal with any matters he had not been able to put to the court, he could do so. Significantly, the appellant agreed to this course. Further, in the course of oral submissions, the appellant handed to his Honour the document which Murray J considered to have comprehensively dealt with the points made by the respondent. The respondent did not seek to make any further written submissions at the conclusion of the proceedings or during the two weeks after Murray J reserved his decision.
34 In light of this procedure, any unfairness caused by the respondent filing his written submissions one day late, along with the affidavit of Sergeant Hay, was justly dealt with.
35 There is no merit in the submission that the appellant's human rights were violated. There is nothing in the Australian Human Rights
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- Commission Act 1986 (Cth) (AHRC Act), which requires the appellant to be legally represented in relation to a drink driving offence, either at first instance or on appeal. The appellant referred to the International Covenant on Civil and Political Rights (ICCPR), which has been included in Sch 2 of the AHRC Act and in particular to Article 14. However, the ICCPR has not been incorporated into Australian domestic law.
36 Grounds 1, 2 and 4 have no reasonable prospect of success.
Merits of the appeal (grounds 3, 5 and 6)
37 The law relating to an appeal against conviction after a plea of guilty is well-established. It is not easy to persuade a court to set aside a plea of guilty. There must be a strong case to do so. Ordinarily, an appellant is bound by the plea he or she made at first instance. Although cases where a court will set aside a plea of guilty cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, a setting aside of a plea of guilty. They are:
1. where the appellant did not understand the nature of the charge or did not intend to admit guilt;
2. if upon the admitted facts, the appellant could not, in law, have been guilty of the offence; or
3. where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
See Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing); Windie v The State of Western Australia [2012] WASCA 61 [31] (Mazza JA, McLure P & Newnes JA agreeing).
38 Of these three well recognised circumstances, only circumstance 2 could conceivably apply to the present case.
39 The question is whether, upon the admitted facts, the appellant could not in law have been guilty of the offence, not whether the appellant may not have been guilty of the offence.
40 Murray J was correct, for the reasons that he gave, to reject the appellant's submission that the discrepancy between the time he was 'summonsed' on the statement of material facts and the times shown on the breathalyser printout gave rise to a doubt that the breathalyser equipment was, in some way, misused. The discrepancy was explained by the
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- Drager having an internal clock, which may not have been set to the same time as the respondent's watch.
41 There is nothing in the submission that the printout produced by the breathalyser machine should have included the words 'sufficient sample'. The text of the WA manual makes no mention of the words 'sufficient sample' appearing on the printout to a valid test. It is clear from this, that the picture in the WA manual was for illustrative purposes only.
42 Finally, I turn to the appellant's argument that the words 'test discontinued' did not appear on the printout that he had been provided with, even though his initial test was not valid because he had produced an insufficient sample.
43 The appellant argued that this indicates a defect, either in the machine or in the way the test was conducted, such that the subsequent successful breath analysis is invalid. Specifically, the appellant submitted that the subsequent successful analysis could have been contaminated by the breath he supplied for the initial unsuccessful analysis.
44 The printout provided to the appellant reveals that, prior to the appellant providing what turned out to be an insufficient sample, the machine displayed the words 'self test correct' and 'zero test correct'. According to the WA manual, the Drager performs a diagnostic test of its internal functions which, if successful, will result in the words, 'self test correct', being displayed. During a zero test, the machine purges itself with ambient air and then tests for any background alcohol. The words, 'zero test correct', means that there is no background alcohol in the ambient air.
45 If the self-test or zero test mechanisms fail, the breathalyser will not provide an analysis.
46 The printout provided to the appellant shows that, at all times, the self test and zero test mechanisms were functioning correctly. Between the initial unsuccessful analysis and the second analysis, which yielded a successful result, the breathalyser both self tested and zero tested correctly. There is nothing to indicate that the breathalyser was in any way contaminated by the insufficient sample taken on the first test.
47 It must be accepted that the words, 'test discontinued', do not appear on the printout, as apparently required by the WA manual. That absence is unexplained. However, there is nothing in the WA manual which indicates that, if the words, 'test discontinued', are not printed, there is any
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- defect in the machine or that the machine was operated contrary to the WA manual.
48 The appellant did not address an argument to this court or the courts below that the respondent had operated the Drager contrary to the Regulations. The Regulations provide that for the purpose of analysing a sample of a person's breath using self-testing equipment such as the Drager, that equipment shall be operated in accordance with the instructions set out in Part 3 of the second schedule: reg 5(b). That schedule sets out five items which are essentially the steps which must be taken to properly operate the breathalyser equipment. It is not necessary to set out those items in these reasons. What is significant is that there is no evidence that the steps mandated in the schedule were not taken.
49 The onus is upon the appellant to establish that, on the evidence, he could not, as a matter of law, have been convicted of the offence. It is insufficient for the appellant to demonstrate merely that he may not have been convicted. I am not satisfied, on the evidence, that the appellant could not have been convicted of an offence, contrary to s 64 of the RTA.
50 Grounds 3, 5 and 6 have no reasonable prospects of success.
Conclusion and orders
51 None of the appellant's proposed grounds of appeal have any reasonable prospects of success. The appeal must therefore be dismissed: s 9 read with s 18 of the Criminal Appeals Act.
52 I make the following orders:
1. Leave to appeal is refused on all grounds.
2. The appeal is dismissed.
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Annexure
2
3
8