Naresh v Millard - [2004] WASCA 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NARESH -v- MILLARD & ANOR [2004] WASCA 241

CORAM: ROBERTS-SMITH J

HEARD: 15 OCTOBER 2004

DELIVERED : 15 OCTOBER 2004

FILE NO/S: SJA 1092 of 2004

JAMES RAM NARESH
Appellant
AND
DAVID PERCIVAL MILLARD
KIMBERLY PHILLIP CROSS
Respondents

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P HEANEY SM
Citation  :JAMES RAM NARESH
File No  :MI 2424 of 2002

Catchwords:

Appeal - Justices - Application for leave to appeal - Applicant convicted of failing to wear seatbelt - Certificate of medical practitioner that applicant experiences significant feelings of claustrophobia when wearing seatbelt - Whether certificate sufficient for defence under reg 232(2) Road Traffic Code 2000 - Whether arguable ground of appeal

Legislation:

Justices Act 1902 (WA), s 187

Road Traffic Code 2000 (WA), reg 232

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondents : No appearance

Solicitors:

Appellant: In person
Respondents : State Solicitor

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

Nil

Case(s) also cited:

Nil

ROBERTS-SMITH J: This is an application for leave to appeal against conviction and sentence (although both of those are not specifically set out in the application) from decisions imposed by his Worship P Heaney SM sitting in the Court of Petty Sessions at Midland on 10 August 2004.
The applicant had pleaded not guilty to one charge of not wearing a seat belt, contrary to reg 232(1) of the Road Traffic Code 2000. Following a short hearing during which the learned Magistrate had evidence from the two arresting police officers and the applicant, he found the applicant guilty and imposed a fine of $200 plus costs, the applicant having had a number of previous convictions for similar offences.
The application for leave to appeal and for an extension of time within which to appeal is dated 3 September 2004 and is supported by an affidavit of the applicant sworn also on 3 September. It is made pursuant to s 186 of the Justices Act 1902 (WA) and is expressed in the following terms:
"2.The applicant be given leave to appeal the decision given on the above-mentioned complaints on 10 August 2004 by Mr Heaney SM wherein the applicant entered a plea of not guilty to two charges of not wearing a seat belt while driving a motor car and was fined a total of $268, suffered loss of points, loss of driver's licence and subsequently lost job as a taxi driver;
(a)the learned Magistrate erred by not giving enough weight on the medical certificate from the applicant's family doctor;
(b)the learned Magistrate erred in not giving any consideration of my sleeping sickness and chronic fatigue syndrome acquired at Graylands Hospital, which makes it very hard for me to meet the everyday's demand on life. As a result, I was not able to show the medical certificate any earlier."
The application also seeks that the appeal be determined at the same time as the application pursuant to s 190 of the Justices Act.
Section 186 of the Justices Act provides for the grounds upon which appeals may be made, and I take this application to be on the ground that the learned magistrate made errors of law or fact or both.
Section 187 of the Justices Act stipulates that leave to appeal shall be granted unless the appeal is frivolous or vexatious or that the grounds of appeal do not disclose an arguable case.
Regulation 232(1) of the Road Traffic Code is in the following terms:
"A person shall not occupy a seat position with a seat belt fitted in a motor vehicle and drive upon a road unless the person is wearing the seat belt, and it is properly adjusted and securely fastened."
The penalty provision provides that the penalty points during a holiday period will be six or otherwise will be three.
Certain defences are provided for in reg 232(2). Relevantly, for present purposes, that subregulation provides:
"It is a defence in proceedings for an offence against subregulation (1) for the person charged to prove that ‑
(a)the motor vehicle was travelling backwards at the relevant time;
(b)the person had a medical certificate at the relevant time and, if required to do so, the person produced the medical certificate; …"
"Medical certificate" is defined in s 230 as meaning "a medical certificate described in reg 231" and the word "produced" is defined in reg 230 as meaning "produced in accordance with regulation 231(3)". Regulation 231 provides as follows:
"(1) A medical certificate referred to in this Part must ‑
(a)be signed by a medical practitioner;
(b)certify that ‑
(i)the person is unable for medical reasons to wear a seat belt; or
(ii)because of the person's size, build or other characteristic, it would be unreasonable to require the person to wear a seat belt, while driving or travelling in a motor vehicle;
and
(c)be current at the time of the alleged offence.
(2)A medical certificate is current for the purposes of subregulation(1)(c) if, at the relevant time ‑
(a)it is specified to have effect only for a specified period and that period has not expired;
(b)it is endorsed with the words 'permanent disability'; or
(c)in any other case, a period of not more than 2 years has expired from the day of its issue.
(3)A person shall produce a medical certificate on demand to a member of the Police Force or, within a reasonable time after demand, to the Director General or to the officer in charge of any police station."
The transcript of the proceedings before the learned Magistrate on 10 August 2004 is annexed to the applicant's affidavit. After the charge was put to the applicant that at 5.40 am on Kalamunda Road, South Guildford, on 26 October 2003 he was driving a vehicle without wearing a seat belt at the time, he pleaded not guilty.
Before the prosecution case commenced His Worship asked the applicant whether the nature of his defence was that he was wearing a seat belt or that he had a reason not to wear one, to which the applicant responded that it was that he had a reason not to wear one.
The prosecuting police officer then called two witnesses. The first was Constable David Millard. His evidence was that at about 5.40 am on the morning of Sunday 26 October 2003, he was on duty in company with Senior Constable Cross. They were conducting traffic patrols in the South Guildford area in a marked police traffic sedan. Constable Millard was the driver.
They were travelling in a north-westerly direction on Kalamunda Road in South Guildford when Senior Constable Cross said something to Constable Millard and indicated a vehicle. That was a Suzuki van. The registered number was given. The van was travelling in the opposite direction to the police officers and was about five to eight metres from them.
Constable Millard said that he could clearly see the driver of the vehicle was not wearing a seat belt. Accordingly he turned the police vehicle around and activated the emergency lights, indicating for the vehicle to stop. It did so a short distance away on Kalamunda Road.
Constable Millard approached the driver, who was the applicant. The officers explained that they had stopped the applicant because he was not wearing his seat belt. Constable Millard testified that the applicant readily admitted that he had not been wearing a seat belt and stated that he had a medical condition. The constable testified that he asked the applicant if he had a medical certificate to that effect and the applicant said "No".
The constable then conducted an examination of the seat belt attached to the driver's position in the vehicle and found it to be in a serviceable condition. He then issued the applicant with a traffic infringement notice and later summonsed him to appear in Court.
Cross-examined by the applicant, Constable Millard said that he did not remember that the applicant had told him why he did not have the certificate with him. The applicant put to the constable that he had told the constable he had a certificate and indeed several copies with the police and told him that he had a health condition.
Constable Cross was then called by the prosecutor. He gave essentially the same account of the incident up to the stopping of the applicant and the conversation with him. His account was that the applicant was told he had been stopped because he was not wearing his seat belt, to which he admitted he was not wearing a seat belt but said he had a medical condition.
Senior Constable Cross testified that Constable Millard then asked if the applicant had a medical certificate for this condition and the applicant stated that he did not have a medical certificate. Constable Millard then "issued the defendant with a standard $150 fine for that offence".
He was asked whether when the applicant stated he had a medical condition he elaborated on that, and Constable Cross said, "No, he just said that he had a medical condition. He said that he had a medical condition but did not have a certificate." In cross examination the applicant put to Senior Constable Cross that he had explained why he did not have the certificate with him and asked whether the constable remembered that. The constable said he was afraid he did not.
It was then put to him, "And do you remember that I said I didn't have the certificate on me right then, but I said that I didn't have the medical certificate on me right then. Do you remember that?" Answer, "No. You said you had a medical condition and you didn't have a certificate for that condition." That completed the prosecution case and the applicant then gave evidence on his own behalf.
He produced to the learned Magistrate a medical certificate dated 24 October 2004. His Worship first said that he wanted to hear what the applicant had to say about the incident on 26 October 2003.
Then his Worship said: "So what the officer said is correct?" to which the applicant answered, "93 per cent, yes." When asked about the portion that they got wrong the applicant told his Worship that he had told the police officers where the certificate was but they did not remember that. He said he told them that it was at home, which was where it was. He was then cross examined by the prosecutor and reiterated that he did not have a certificate with him at the time he was stopped and that was what he told the officers.
It was put to him that he had told them that he did not have a medical certificate but he denied that as being correct, although he said he may have said that he did not have one on the spot. The certificate, or letter, which he did produce to the learned magistrate, he said he got about 10 o'clock that day from the doctor's file, it being a copy of the original which was somewhere in his other papers.
He told the learned Magistrate that he tried to carry it with him all the time when he was driving. There was then an exchange between the prosecutor, the applicant and the learned magistrate about the content of the certificate. It is convenient to refer to that in more detail now.
The document which was produced to the learned magistrate was an original document on the letterhead of Stirk Medical Group dated 24 October 2003 addressed "To Whom It May Concern". It reads:
"Dear Sir or Madam:
Re:Tulsi Ram Naresh DOB 7/4/1949
30 Peet Rd Kalamunda, WA 6076
This man experiences significant sensations of claustrophobia when he wears a seat belt in his car.
Yours faithfully,
Dr Jack McQuade"
There are then the letters "PP" and a signature and under the signature a stamp which reads "Dr Michael CIVIL, STIRK MEDICAL GROUP" with the address and other details of that Group.
The prosecutor then said to the applicant that the certificate did not say why he could not wear a seat belt, to which the applicant's riposte was that the certificate did not, but he did. His Worship then intervened and asked why the applicant said he could not wear a seat belt. The applicant explained that he suffered from a feeling of deprivation and has several conditions that takes his concentration away from the work that he does which is driving and even walking.
He described it as claustrophobic or a feeling of deprivation. He said that he never wears a seat belt and on occasions when he has been stopped and questioned by police he has received infringement notices, not only in Australia but New Zealand as well. He said that he actually had several previous certificates which he had given to the police at East Perth and they were supposed to have the certificates on file. It was his problem that meant he could not wear a seat belt. He said he has children, a family, and until two months before had a job but the persistent charges of not wearing a seat belt had caused him to lose his licence as well. He had several previous convictions for driving without a seat belt but he had this condition all of the time.
His Worship asked whether the applicant had produced this letter in the past. The applicant said he had produced another one and continued (at t/s 9‑10):
"… Oh, another letter, yes.
And what happened to that? What; was that letter not accepted?---Oh, so … (indistinct) … I don't remember. It's - ‑ I been driving in Perth in ‑ ‑ oh, for 16 years. So everything happen every ‑ ‑ it's one ‑ ‑ one police officer followed me from James Street, Northbridge to Wellington Square at the park there, near Plain ‑ ‑ near Bennett Street and gave me a series of three infringes within about 45 minutes for seatbelt. So, such is life.
PROSECUTOR: Did you go to court on those occasions?---See, together with this, I have also ‑ ‑ from 97 I have - ‑ I was ‑ ‑ I'm given condition similar to chronic fatigue. I sleep quite a lot. When I drive taxi I sleep between fares. And it's ‑ ‑ life is hard. I was taken into mental asylum by police. The other paper, it tell bit of a ‑ ‑ bit of story about that, if you want to read it again, my Worship.
HIS WORSHIP: Well, no; I'm just interested in the 26th of October 03?---Yes. So ‑ ‑ so I've given if you're interested in that occasion I've told you. I have - ‑ I never wear ‑ ‑ never, ever wear seatbelt, and I'm not suicidal.
PROSECUTOR: But has a doctor said that you don't have to wear a seatbelt?---Doctor has not right to tell ‑ ‑ say that. She is not a lawyer, not a ‑ ‑ not a judge or ‑ ‑
Okay. So a doctor has not told you that you don't have to wear a seatbelt.
HIS WORSHIP: Well, he makes the point it's not for doctors to be telling people."
The other document to which reference was there being made is one which is annexure B1 to the applicant's affidavit and begins with the words, "Our reference: Griffith the Detective." I shall return to that in just a moment.
Following the cross examination of the applicant the learned Magistrate referred to the relevant provisions of the Road Traffic Code relating to medical certificates in the context of the requirement to wear a seat belt. The applicant said that he thought the certificate met all the requirements of what the learned Magistrate had read out.
His Worship then inquired how it was that two days before the alleged offence the applicant went to get the medical certificate. The applicant explained that this was just one and he had already given the police several of them, but they had taken no notice of it.
There was then some discussion about how many copies had previously been provided and again why or how it was that the applicant had gone to get a certificate only two days before the alleged offence. Those inquiries really had no bearing, it seems to me, on the efficacy or otherwise of the certificate, nor the matters which were really in issue before the learned Magistrate.
It is apparent from the face of the document and from the applicant's explanation that the certificate as signed by Dr Civil was signed by him for Dr McQuade as being a copy of the earlier document signed by Dr McQuade, the copy of which was on the surgery file.
The learned Magistrate drew the applicant's attention to the fact that the certificate did not say that because of the applicant's medical condition he was unable to wear a seat belt. At t/s 13 to 14 there appear these passages.
"Well, if he chose to write that, he hasn't written that you can't wear a seatbelt when you're driving a car, and that's what he should have written. So this certificate is not good enough?‑‑‑My Worship, you and I just agreed that he had no ‑ ‑ he is not in a position ‑ ‑ he is not ‑ ‑ it is not his job to tell what ‑ ‑
He can say, 'This man's condition is so bad that he should not be required to wear a seatbelt when he drives his car.' He can say that. He doesn't say that. He just says that you suffer claustrophobia when you wear a seatbelt in your car?‑‑‑And I explained that to you.
No. What we're looking at is the certificate has to tell me certain things. Not ‑ ‑ ?‑‑‑Does the law enforcement in the court want to go and have a go at my doctor? It's entirely your choice if you want to do that.
No. It's not my choice. It's your duty ‑ ‑ ?‑‑‑It's not my duty. The thing is ‑ ‑
It's your obligation to bring along an appropriate certificate. Now, I presume ‑ ‑ that's why I asked you why this is dated the 24th. I presume 2 days before you went along to the doctor and you said, 'I need a certificate so that I don't have to wear a seatbelt when I drive a car.' Is that right?‑‑‑Yes. I just told you I have got several.
Hang on. Hang on. Answer the question. You went along to the doctor and said, 'Look, I need a certificate to tell me that when I drive a car I can't wear a seatbelt'?‑‑‑And that's what he gave me.
No, he didn't. He didn't give you that. And maybe he didn't give you that because it's not correct. All he said here is:
'This man experiences claustrophobia when he wears a seatbelt.'
That's not ‑ ‑ the doctor didn't go further and say, 'This man should not be required ‑ ‑ because of his condition he should not be required to wear a seatbelt in his car.'?‑‑‑I think the court needs discussion among these ‑ ‑ my Worship, I request not to play with English to me, because I'm not English.
You're the one playing with English. I'm just reading straight English here. I'm just telling you what it says?‑‑‑Yeah. The thing is, beside that I have already explained you in detail how I feel, and that should be accepted.
HIS WORSHIP: It's not accepted. It's not accepted ‑ ‑ ?‑‑‑So please yourself.
‑ ‑ because the Act clearly says ‑ ‑ ?‑‑‑I will appeal if ‑ ‑ I might appeal.
Well, you can appeal. But the Act tells me what the ‑ ‑ what the doctor has to say, and it says that it has to certify that the person is unable, for medical reasons, to wear a seatbelt. All it says here is you've got claustrophobia when you wear a seatbelt?‑‑‑My Worship, I have told you explaining ‑ ‑ I have explained you thoroughly, as good as I can my ‑ ‑ my disability or sickness on oath, and it's entirely on you what you do with it.
How long have you had this condition?‑‑‑Didn't I say? Years now.
Years. Yeah. Right. Anyway ‑ ‑ so the doctor would have been aware of it, and if he was ‑ ‑ if he was aware of it he would have put it on the certificate. He hasn't put it on there?‑‑‑Yeah. Another doctor ‑ ‑ I lived in Ferndale before, or Lynwood. I went to this Fiji Indian doctor where ‑ ‑ Fiji, the country I come, he ‑ ‑ he told me that he cannot write that certificate one, because it's not convenient to him, because the police will ‑ ‑ he will not have ‑ ‑ have a copy and police will ring up his surgery to inquiry, and we have got no staff to that. So that was his problem, isn't it?"
That was the end of the exchange between the learned Magistrate and the applicant and his Worship immediately then said:
"Anyway. I find this charge proven, and I'm satisfied that you're guilty of the charge of driving without ‑ ‑ driving when failing to wear a seatbelt, because the certificate doesn't excuse you from wearing a seatbelt. Right. So the charge is proven. …"

I return now to the other document referred to before the learned Magistrate, being annexure B1 to the applicant's affidavit. The applicant sought to have the learned magistrate read that during the hearing but his Worship declined to do so.
The document concerns events in May 2004, February 1997 and March or April 2004. I will not set it out in full. It is enough to mention that in it the applicant recounts an incident which he says occurred on 22 May 2004 when he answered a call for a taxi to pick up a group of men from Rivervale to Rose's Hotel in North Fremantle.
He describes in some detail what occurred in the taxi and it appears to relate to a Detective Griffith. He makes a number of allegations about the conduct of the police officers who he says they were and then refers to another incident following other memories also coming back to him after reading in the newspaper that half a dozen detectives had terrorised some American students in Fremantle and he was wondering if they were the same people as had been in his taxi on 22 May 2004.
He mentions that one person named was a detective who in 1997 put him into a mental asylum and at the same time had his child stolen from school and refers subsequently to picking up a group of men from Burswood casino and suggests that at the time of writing the document it occurred to him that they were the same detective and friends and recounts conversations about homosexuality and various other things.
That is enough, I think, to indicate that none of the material in that document had any evidential basis and certainly no relevance to nor bearing upon the charge before the learned Magistrate and he was clearly right in refusing to have regard to it.
I accept that the applicant's proposed appeal is not frivolous nor vexatious. He has a legitimate and genuine interest, purpose and intent in seeking to bring his appeal.
The question, it seems to me, is whether or not he has an arguable ground of appeal. The applicant certainly had a medical certificate which on its face covered the date of the driving with which we are concerned. The issue before his Worship was whether that met the legislative requirements.
Regulations 231 and 232(1) of the Road Traffic Code are quite clear in their terms. There is no ambiguity which would attract rules of statutory construction which might otherwise give some scope for a conclusion that a certificate in the terms this one was would be sufficient in substance to meet the requirements of reg 231.
That regulation requires the certificate to expressly state on its face that for medical reasons the person is unable to wear a seat belt. This certificate simply does not say that. It does say that the applicant experiences significant sensations of claustrophobia when he wears a seat belt in his car. It says nothing further.
In his affidavit, which is very brief, the applicant simply states as follows:
"2.I never wear seat belt in any vehicle because I suffer from claustrophobia and acute feeling of deprivation.
3.I also suffer from Chronic Fatigue which is the side effect from the treatment of alleged delusion.
4.I get very tired and I struggle to meet demands on my life and as a result miss many.
5.I could not take my medical certificate to police in time and eventually forgot all about it.
6.I drive taxi and sleep between fares as a result, I suffer from reduced income.
7.The first time I went to see my family doctor about claustrophobia, was in 1989. The doctor's name is Dr, (sic) J.N. Singh at 174 Ferndale Crescent, Ferndale, Western Australia 6147.
8.I am a person who is aggrieved by the decision made on charge 2424/04 and all other charges of failing to wear seat belts.
I seek to appeal that desision (sic)."
The applicant's condition, as such, is not in issue. What is in issue, as I have indicated, is whether or not the letter or certificate from the doctor complies with the statutory requirements. The regulation requires the certificate to expressly state on its face that for medical reasons the person is unable to wear a seat belt. As I have said, this one does not say he is unable to wear a seat belt because of his medical condition. One might speculate that is what the doctor intended to convey, as suggested by the applicant, and that what the doctor meant was that because of the applicant's significant sensation of claustrophobia, the applicant is unable to wear a seat belt. But one could as readily speculate that whilst desirous of accommodating this patient's wishes to the extent he could, the doctor felt himself unable to certify the applicant's sensation of claustrophobia was so significant that he is, for that reason, unable to wear a seat belt.
I express no view about that, one way or the other. I mention it only because of the applicant's submission to me and because one cannot assume what the doctor meant to say nor why he cast the terms of the certificate in the way he did. The fact is the certificate does not say that because of his medical condition the applicant is unable to wear a seat belt. That being so, the learned magistrate was undoubtedly correct in his finding that the certificate afforded the applicant no defence under reg 232(2)(b) of the Code. The elements of the offence being proved (and indeed admitted) the conviction then was certain.
The proposed appeal against conviction cannot possibly succeed. The appeal against conviction is not arguable and leave to appeal against conviction must be refused. That, however, does not dispose of the matter.
The learned Magistrate imposed a fine of $200. Regulation 232(1) provides that the maximum penalty for the offence is six penalty units during the holiday period or otherwise three penalty units. "Holiday period" is defined in reg 3(2) of the Code. I do not need to refer to that. It is sufficient to say that 26 October 2003 did not fall within a holiday period as there defined.
The statutory maximum penalty was therefore three penalty units which translates to $150 (s 5(1)(a)(b) of the Road Traffic Act 1974 (WA)). His Worship accordingly imposed a fine which was more than the statutory maximum. He presumably thought the six penalty unit penalty applied. That would have been a maximum of $300. The fine imposed was two thirds that amount. Under the circumstances leave to appeal against sentence must be granted. I do not consider there to be a need to require the applicant to give notice under s 190(1) of the Justices Act as the outcome of an appeal in respect of that is inevitable and it is in the interests of justice that the matter be dealt with without further hearing. The appeal against sentence must succeed and I will accordingly allow the appeal against sentence, set aside the fine of $200 and substitute a fine of $100. There will be orders accordingly. Leave to appeal against conviction is refused. Leave to appeal against sentence is granted. The fine of $200 is set aside. A fine of $100 is substituted.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NARESH -v- MILLARD & ANOR [2004] WASCA 241 (S)

CORAM: ROBERTS-SMITH J

HEARD: 15 OCTOBER & 29 NOVEMBER 2004

DELIVERED : 15 OCTOBER 2004

SUPPLEMENTARY
DECISION :29 NOVEMBER 2004

FILE NO/S: SJA 1092 of 2004

BETWEEN: JAMES RAM NARESH
Applicant
AND
DAVID PERCIVAL MILLARD
KIMBERLY PHILLIP CROSS
Respondents

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR P HEANEY SM
Citation  :JAMES RAM NARESH
File No  :MI 2424 of 2002

Catchwords:

Appeal - Justices - Applicant's appeal against sentence previously allowed - No notice given to respondent - Respondent's subsequent application for order that judgment allowing the appeal against sentence be recalled and set aside - Grounds of error of law and denial of procedural fairness - Power to recall unperfected orders

Appeal - Justices - Application for leave to appeal to Full Court against refusal of leave to appeal against conviction - Whether arguable

Legislation:

Road Traffic Code 2000 (WA), reg 9 and reg 232

Result:

Respondent's application granted
Applicant's applications dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondents : Mr J F O'Sullivan

Solicitors:

Applicant: In person
Respondents : State Solicitor

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

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bailey v Marinoff (1971) 125 CLR 529
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
McAdam v Robertson (1999) 73 SASR 360
Norman v Norman (1992) 6 WAR 372
Pittalis v Sherefettin [1986] QB 868
Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 82
Re Heaney SM; Ex parte Naresh [2004] WASCA 241
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256

Case(s) also cited:

Commissioner of Police v Tanos (1958) 98 CLR 383
J v Lieschke (1987) 162 CLR 447
Kioa v West (1985) 159 CLR 550

ROBERTS-SMITH J: On 26 October 2003 the complainant issued to the defendant a traffic infringement notice with a penalty of $150 for driving without a seat belt in contravention of reg 232(1) of the Road Traffic Code 2000 ("the Traffic Code"). The defendant did not pay the infringement notice and accordingly on 10 August 2004 the matter proceeded to trial in the Court of Petty Sessions at Midland before his Worship Mr P Heaney SM. The defendant was convicted and fined $200.
The defendant subsequently appealed against both conviction and sentence and also sought to have his application for leave and the appeal heard at the same time, as provided for in s 190 of the Justices Act 1902.
The application for leave and the appeal were heard at the same time before me on 15 October 2004, I having determined there was no need for the complainant to be given notice of the appeal. That conclusion I came to as the result of a view which I then held that the learned Magistrate had applied an incorrect understanding of the penalty provision applicable to this offence, and that accordingly the outcome of the defendant's appeal in respect of that would be inevitable. On that view it seemed to me, in the interests of justice, that the matter be dealt with without further hearing.
The defendant's application for leave to appeal against his conviction was refused but I gave him leave to appeal against sentence and allowed his appeal in that respect. As to the application for leave to appeal against conviction, I concluded at [51] of my reasons for decision, (Re Heaney SM; Ex parte Naresh [2004] WASCA 241), that the proposed appeal against conviction could not possibly succeed. It was not arguable and leave to appeal accordingly had to be refused.
What was in issue there was the question whether or not a letter or certificate from Mr Naresh's doctor complied with the statutory requirement, embodied in reg 231 and reg 232(1) of the Traffic Code.
The regulations require a medical certificate to expressly state on its face that for medical reasons the person to which it refers is unable to wear a seat belt. The certificate tendered before his Worship simply did not say that. All it did say was that the defendant experiences significant sensations of claustrophobia when he wears a seat belt in his car.
As I observed in my reasons for decision at [49], the defendant's condition as such was not in issue. What was in issue was whether or not the doctor's certificate complied with the statutory requirement. I came to the conclusion that his Worship had been quite correct in finding that it did not. That being so, as I have said, there was no prospect the appeal against conviction could succeed.
As to the applicant's appeal against sentence, the learned Magistrate had imposed a fine of $200. I referred to the fact that reg 232(1) provides that the maximum penalty for the offence is six penalty units during the holiday period or otherwise three penalty units. "Holiday period" is defined in reg 3(2) of the Traffic Code. The date of the offence, namely, 26 October 2003 did not fall within a holiday period as there defined. I then went on to say at [53]:
"The statutory maximum penalty was therefore three penalty units which translates to $150 (s 5(1a)(b) of the Road Traffic Act 1974 (WA)). His Worship accordingly imposed a fine which was more than the statutory maximum. He presumably thought the six penalty unit penalty applied. That would have been a maximum of $300. The fine imposed was two thirds that amount. Under the circumstances leave to appeal against sentence must be granted. I do not consider there to be a need to require the applicant to give notice under s 190(1) of the Justices Act as the outcome of an appeal in respect of that is inevitable and it is in the interests of justice that the matter be dealt with without further hearing. The appeal against sentence must succeed and I will accordingly allow the appeal against sentence, set aside the fine of $200 and substitute a fine of $100. There will be orders accordingly ... "
On 5 November 2004, the complainant applied for leave to appeal against my decision quashing the sentence and substituting a fine of $100. The application came before me on 17 November 2004. At that time I had been informed that the defendant had lodged a document with the registry seeking leave to appeal to the Full Court from my decision refusing leave to appeal against conviction. However, that document was not then available to me.
Having heard the basis of the complainant's application, I gave leave to the complainant to amend his application to include an application for an order that the judgment on sentence given on 15 October 2004 be recalled and set aside. I also ordered that the complainant serve a copy of those orders and any further submissions on the defendant within seven days. Mr Naresh has confirmed this morning that that was done.
The complainant's amended application for leave to appeal, including now an application for orders that my reasons in judgment of 15 October be recalled and varied so as to dismiss the defendant's application for leave to appeal against sentence, was filed on 23 November 2004. I have now before me also the defendant's document dated and filed 11 November 2004, being a renewed application for leave to appeal from my decision made on 15 October.
I shall deal with the complainant's application first. I have already indicated the basis upon which my decision on 15 October to deal with the defendant's application in respect of sentence instanter and without notice to the complainant. However, I accept Mr O'Sullivan's submission that that was founded on a mistake or misapprehension on my part.
Regulation 232(1) of the Traffic Code specifies that the following penalty applies:
"Points: during a holiday period 6; otherwise 3.
Modified penalty (in each case) 3 PU".
A reference to a number of penalty units is a reference to an amount in dollars that is that number multiplied by 50; (s 5(1)(a)(vi) of the Road Traffic Act 1974).
Regulation 9 of the Traffic Code sets out how penalties are to be imposed for a breach of the Code. It provides relevantly as follows:
"(1)A person who contravenes or fails to comply with any of the provisions of these regulations, commits an offence.
(2)A person who commits an offence against these regulations is liable to a penalty not exceeding 16 penalty units and, for a subsequent offence, to a penalty not exceeding 32 penalty units.
(3)For the purposes of subregulation (2), an offence against these regulations shall be regarded as a subsequent offence if the person by whom it is committed has previously committed an offence against these regulations, or against the Road Traffic Code 1975.
(4)The offences in this Code that are followed by a penalty expressed as a "modified penalty" are offences that are prescribed for the purposes of section 102 of the Act, and the modified penalty directly following the offence is the prescribed penalty in respect of that offence, if dealt with under that section, in the manner prescribed in the Road Traffic (Infringements) Regulations 1975.
(5)The offences in this Code that are followed by a penalty expressed as a number of "points" are offences that are prescribed for the purposes of section 103 of the Act, and the number of points directly following the offence is the prescribed number of points to be recorded against a person convicted of that offence."
It can be seen from those regulations that the reference to points in reg 232(1) is a reference to demerit points as explained by reg 9(5) of the Traffic Code. Furthermore, the modified penalty applies only if the offence is dealt with by way of a traffic infringement notice pursuant to s 102 of the Act and in the manner prescribed in the infringement regulations.
Mr O'Sullivan, counsel for the complainant, submits that as in this case the defendant did not pay the prescribed penalty the modified penalty provision no longer applies and that which does accordingly is the general penalty provision in reg 9(2) of the Traffic Code.
On that basis the maximum penalty was therefore $800, (16 penalty units) or $1600, (32 penalty units) for a second or subsequent offence. As the defendant had previously been convicted of an offence against the Traffic Code the maximum penalty available to the learned Magistrate was $1600.
I accept those submissions as to the proper construction of the penalty provisions of the Road Traffic Act and Traffic Code insofar as they apply to this case.
Against that background it follows that I was in error both in dispensing with the giving of notice to the complainant and in giving the defendant leave to appeal against sentence and allowing his appeal. There was no error by the learned Magistrate. The question then becomes whether the appropriate course is to give the complainant leave to appeal to the Full Court or whether I should recall my reasons and judgment and correct them.
It seems to me in the circumstances, given my conclusions expressed above as to the relevant statutory provisions, that it would be a pointless and wasteful exercise to refer the matter to the Full Court. Judgment has not been perfected and it is therefore both possible and, in my view, appropriate, for me to recall my reasons and decision and correct them.
True it is that it is a well-settled rule that once an order of a court has been passed or entered or otherwise perfected in a form that correctly expresses the intention with which it was made the court has no jurisdiction to alter it; Bailey v Marinoff (1971) 125 CLR 529, per Gibbs J at 539. However, where the reasons for the decision have been published but the orders have not otherwise been perfected the orders can be withdrawn, altered or modified: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, per Brennan, Dawson, Toohey and Gaudron JJ at 265.
I acknowledge that the power to recall an order is to be exercised judicially and not capriciously. It is a power that should be exercised sparingly and consistently with the general principle that once the proceedings have been concluded in the hearing of them and final orders pronounced that should be regarded as the end of the matter unless something affirmatively can be brought to the attention of the court to show that an injustice would be done by allowing the order to remain as pronounced: Norman v Norman (1992) 6 WAR 372, per Murray J at [30].
The authorities establish that an order can be recalled of the judge's own motion where he or she is sure that the judgment was wrong substantively and not just as a matter of form: Pittalis v Sherefettin [1986] QB 868 at 882 and Norman v Norman (supra) per Murray J at [35].
In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ said at 302 and 303:
"These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."

It is clear that the jurisdiction is not exercised to enable a party to improve upon an argument it has put or merely to demonstrate that a decision is wrong: McAdam v Robertson (1999) 73 SASR 360, per Doyle CJ at [38]; and see Rayner v Australia and New Zealand Banking Group Ltd [2002] WASCA 82 per Wheeler J at [3].
In the present case my misapprehension as to the application of reg 9 of the Traffic Code arose through no fault of the complainant and was not a matter upon which it could be said I had decided previously where the party had a full opportunity to be heard.
In the circumstances this seems to me to be one of those rare cases in which the judgment not having been perfected it is appropriate and in the interests of justice to recall my reasons and decision in respect of sentence and to vary them. I shall so order.
The judgment given on 15 October will be varied by including a finding that the penalty imposed by the learned Magistrate was entirely within the range of a proper exercise of sentencing discretion and not infected by any demonstrable error. That being so, there is no arguable ground of appeal against sentence and the defendant's application for leave to appeal against sentence must be refused.
I turn now to the defendant's renewed application for leave to appeal to the Full Court against my decision refusing leave to appeal against the conviction entered by the learned Magistrate. The proposed grounds of appeal set out in the defendant's notice dated 11 November 2004 are as follows:
"(a)the learned judge erred by not giving enough weight on the medical certificate from the applicant's family doctor.
(b)the learned judge erred by not giving any consideration to the acute sense of claustrophobia experienced by the applicant when tied down or locked up.
(c)the learned judge erred by getting embroiled in the interpretation of the wordings in the medical certificate and the law.
(d)the learned judge in the embroilment drifted from the fact that the applicant's medical condition is real and very physical.
(e)the learned judge erred by not giving any respect to the applicant's personal being and right as human.
(f)the learned judge lacked discretionary ability and could not compare with the ability of New Zealand police force which accepted the copy of the same medical certificate and cancelled the infringement incurred on Jervois Road, Auckland, New Zealand."
It will be recalled that my reason for refusing the defendant leave to appeal against conviction was that the proposed appeal was not arguable. An arguable case is not one that is not merely capable of being argued but one that is reasonably argued, in the sense that it has some prospect of success - see Dempster v National Companies & Securities Commission (1993) 9 WAR 215 per Malcolm CJ with whom Walsh and Anderson JJ agreed at [5].
Given my earlier conclusion to which I still adhere that the wording of reg 231(1)(b)(i) of the Traffic Code is unambiguous and that the medical certificate simply does not comply with the statutory requirement, there remains no prospect that the defendant could succeed in arguing that the medical certificate in question constituted a defence.
Mr Naresh in his submissions before me today argued that as he gave evidence before the learned magistrate as to his claustrophobic condition and the effect upon that of a requirement to wear a seat belt then even were the medical certificate not to comply with the requirements of the regulations, it would not matter because there was still sufficient evidence in the form of the testimony from him to satisfy the court that he by reasons of health is unable to wear a seat belt.
Unfortunately for Mr Naresh that is not sufficient. The statutory defence is not simply that there be some evidence before the court of that, but that it be in the form of a medical certificate which is expressed in the terms required by the regulations. As I have said, the certificate here was found by his Worship not to comply with the requirements of the regulations and his Worship was clearly correct in that conclusion.
That being so, the proposed appeal against my decision is likewise, in my view, unarguable and accordingly Mr Naresh's renewed application for leave to appeal against my decision of 15 October to the Full Court must be dismissed. I will order accordingly.