Perry v Carrier
[2013] WASC 299
•13 AUGUST 2013
PERRY -v- CARRIER [2013] WASC 299
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 299 | |
| Case No: | SJA:1029/2013 | 3 JULY 2013 | |
| Coram: | CORBOY J | 13/08/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction set aside Remitted to Magistrates Court of Western Australia for retrial | ||
| B | |||
| PDF Version |
| Parties: | LEANNE MICHELE PERRY PAUL ROBERT CARRIER |
Catchwords: | Criminal law and procedure Appellant convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA) Appellant not served according to sch 2 of the Criminal Procedure Act Effect of failure to serve Whether proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) could be applied |
Legislation: | Criminal Appeals Act 2004 (WA), s 14 Criminal Procedure Act 2004 (WA), s 55 |
Case References: | AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Koh v City of Joondalup [2012] WASC 493 Tallot v Matier [2012] WASC 290 Weiss v R [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL ROBERT CARRIER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : MD 436 of 2012
Catchwords:
Criminal law and procedure - Appellant convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA) - Appellant not served according to sch 2 of the Criminal Procedure Act - Effect of failure to serve - Whether proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) could be applied
Legislation:
Criminal Appeals Act 2004 (WA), s 14
Criminal Procedure Act 2004 (WA), s 55
Result:
Appeal allowed
Conviction set aside
Remitted to Magistrates Court of Western Australia for retrial
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J F Bennett
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Koh v City of Joondalup [2012] WASC 493
Tallot v Matier [2012] WASC 290
Weiss v R [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
1 CORBOY J: The appellant was charged by a prosecution notice dated 1 November 2012 that she 'drove a motor vehicle, registered number 1DSI-123, on a road, namely Great Eastern Highway, with a blood alcohol content above 0.05 grams of alcohol per 100 millilitres of blood, that blood alcohol content being calculated 0.065 grams of alcohol per 100 millilitres of blood'.
2 The matter was called at a hearing conducted in the Magistrates Court at Merredin on 6 November 2012. The appellant did not appear. The magistrate proceeded under s 55 of the Criminal Procedure Act 2004 (WA) (CP Act) to hear and determine the charge in the appellant's absence. A conviction was recorded; the appellant was fined $800 and her licence was disqualified for a period of 12 months.
3 Section 55 of the CP Act provides that:
(1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approve notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may -
(a) adjourn the charge; or
(b) hear and determine the charge in the accused's absence.
…
(4) If under subsection (2) … the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under s 20(3), the court -
(a) must presume, in the absence of evidence to the contrary -
(i) that the prosecution notice was signed by a person who was acting under s 20(3);
and
(ii) that the person had the authority to sign the prosecution notice; and
(b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5) If under subsection (4) the court convicts the accused -
(a) the prosecutor must state aloud to the court the material facts of the charge; and
(b) section 129(4) applies; and
(c) in the absence of evidence to the contrary, the court must take as proved any facts so stated.
5 Schedule 2 to the CP Act provides for postal service on individuals. Clause 3(3) provides that a court hearing notice must be posted at least 14 days before the date stated in the notice. The respondent accepted that the requirement specified in cl 3(3) could not have been satisfied in this instance - the prosecution notice was dated 1 November 2012 and the matter was dealt with by the presiding magistrate on 6 November 2012.
6 The respondent further accepted that the magistrate erred in recording a conviction under s 55 CPA but argued that the conviction should not be set aside having regard to the provisions of s 14(2) of the Criminal Appeals Act 2004 (WA) (CA Act). That section provides that the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred even if a ground of appeal might be decided in favour of an appellant.
7 In my view, the conviction should be set aside and the question of whether the proviso under s 14(2) CA Act should be applied does not arise for the reasons that follow. The matter should be remitted to the Magistrates Court of Western Australia for retrial.
The appellant's affidavit
8 The appellant made an affidavit on 7 May 2013 in which she set out the circumstances giving rise to her appeal against the conviction entered on 6 November 2012. She stated that:
(a) she had only become aware of the hearing conducted on 6 November 2012 when she received notification of her conviction in the mail; and
(b) the circumstances surrounding the offence that she had allegedly committed were that the vehicle that she was driving began 'sparking' while she was driving near Merredin. A fire then developed under the bonnet of the car and smoke entered the passenger compartment. The appellant grabbed her handbag, left the car and started to walk home to seek help. There was an unopened bottle of wine inside her handbag and she commenced consuming the wine. Approximately 'one hour and 800 metres later', the police arrived and she was subjected to a breath test. She felt intimidated by the behaviour of the police officers but answered all of their questions to the best of her knowledge.
The subsequent conviction
9 Transcript provided to the court indicates that the appellant was charged sometime after 6 November 2012 with driving a motor vehicle while disqualified from driving. That offence was committed on 27 November 2012. A conviction was entered on 8 January 2013 pursuant to s 55 of the CP Act. The appellant was fined $400 and disqualified from driving for 9 months cumulative on the disqualification imposed on 6 November 2012.
The application to set aside
10 The appellant appeared in the Magistrates Court held in Merredin on 23 January 2013 on an application to set aside her convictions. The learned magistrate noted that the application was made approximately two months after the conviction entered on 6 November 2012 and stated that, '[g]iven that you were aware of the matter so soon after and then took no application, the application will be refused'. The appellant protested that she had been innocent of the charge of driving with a blood alcohol level in excess of 0.05 gms but the magistrate responded, '[p]roceed by way of appeal if you wish, but I am not prepared to set aside the convictions' (ts 3, 23 January 2013).
The notice of appeal and application for leave
11 The appellant commenced this appeal by notice dated 7 March 2013. The notice referred only to the conviction entered on 6 November 2012. The notice stated three proposed grounds of appeal:
(a) 'I wasn't notified of the court date';
(b) 'I was breathalysed one hour and I had walked roughly 800 metres away from my burnt vehicle'; and
(c) 'I wasn't subjected to a second breath analysis test'.
12 On 26 April 2013, Hall J ordered that the appellant's application for an extension of time within which to commence her appeal and the application for leave to appeal be heard at the same time as the appeal.
Section 55 of the CP Act
13 The structure of s 55 of the CP Act provides for a sequence of events and effects:
(a) the court may 'hear and determine' the charge in the absence of the accused if on a court date it is 'satisfied' that the accused has been served with the prosecution notice 'containing the charge' and a court hearing notice notifying the accused of that date (s 55(2));
(b) if the court decided to 'hear and determine' the charge in the accused's absence, the court may take as proved any allegation 'in the prosecution notice containing the charge that was served on the accused' (s 55(4)) (emphasis added);
(c) if under s 55(4) the court convicts the accused, the prosecutor must state aloud to the court the material facts of the charge and in the absence of evidence to the contrary, the court must take as proved any facts so stated (s 55(5)).
14 The significance of the requirement that the accused person has been served with the prosecution notice and court hearing notice according to the provisions of the CP Act is obvious from the nature of the power conferred by s 55. That is confirmed by the terms of the section. There may be a hearing in the absence of the accused at which the charge may be determined if the court is satisfied about service. A conviction may be recorded under s 55(4). The hearing and determination of whether the accused is guilty of the offence charged is conducted on the basis of the facts alleged in the prosecution notice 'that was served on the accused'. That is, the facts founding a conviction are those alleged in a prosecution notice that has been served.
The respondent's approach to the appeal
15 As has been noted, the respondent accepted that the magistrate had erred in proceeding under s 55 of the CP Act but argued that the proviso in s 14(2) of the CA Act should be applied so that the conviction recorded against the appellant should stand. Accordingly, the respondent filed affidavits made by two police officers. The officers stated the circumstances in which they allege that the appellant was requested to provide a breath sample for analysis and the results of the analysis. The respondent argued that the court should find that a substantial miscarriage of justice had not occurred having regard to the evidence contained in the affidavits made by the police officers.
Section 55 of the CP Act and the proviso
16 The High Court has repeatedly emphasised that the application of the proviso contained in provisions such as s 14(2) of the CA Act involve questions of statutory construction. Accordingly, 'it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category of "fundamental defects" in a trial … The question presented by the proviso is whether there has been a "substantial miscarriage of justice"': Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 [23]. Similarly, in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ cautioned that:
What was said in Wilde v The Queen about the possibility that some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presupposition of the trial as to deny the application of the proviso is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. Rather, as both Wilde and Weiss acknowledged, the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances. What was said in Wilde did no more than avert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical [54].
17 The passage in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 to which that caution was directed appears in the joint judgment of Brennan, Dawson Toohey JJ:
[T]he proviso [formerly provided in s 689 of the Criminal Code (WA)] was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' …; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon a jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso … (372) - (373).
18 In Weiss v R [2005] HCA 81; (2005) 224 CLR 300, the High Court considered the meaning and effect of the proviso contained in s 568(1) of the Crimes Act 1958 (VIC). That section provided that the Court of Appeal may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The High Court observed:
No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted to trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind [44] - [45]. (original emphasis)
19 The High Court held in AK v The State of Western Australia that there had been a substantial miscarriage of justice and the proviso did not apply where a trial judge sitting alone had failed to set out his findings of fact on a central issue, contrary to s 120(2) of the CP Act. The High Court observed in Baiada Poultry, that the decision in AK v The State of Western Australia shows that merely because 'a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred' [29].
20 Three points that are relevant to the determination of this appeal may be taken from the authorities to which reference has been made:
(a) the High Court identified in Weiss a negative proposition - it could not be said that a substantial miscarriage of justice had not occurred unless the appellate court was persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt;
(b) the High Court also indicated in Weiss that it would be appropriate to order a retrial regardless of evidence that might establish the guilt of the accused/appellant beyond a reasonable doubt where there had been a 'significant denial of procedural fairness'; and
(c) there may be other irregularities that are so fundamental to the proper conduct of a trial that a retrial should be ordered without recourse to the proviso.
21 In Tallot v Matier [2012] WASC 290, Hall J considered an appeal against a conviction entered in the absence of the appellant under s 55 of the CP Act where the offence alleged was an indictable not simple offence. Accordingly, the charge could not be determined under s 55.
22 His Honour observed that the error in relation to proceeding under s 55 was not confined to the appellant being denied an opportunity to participate in the proceedings:
Section 55 also provides an aid to proof which would not otherwise have been available. That section allows a court to take as proved any allegation in the prosecution notice containing the charge that was served on the accused. It also allows the court to take as proved any fact stated to the court by the prosecutor as being the material facts of the charge. These aids to proof would not have been available if, as it should have been, the charge was dealt with as an indictable offence, even if dealt with summarily [13].
23 In Koh v City of Joondalup [2012] WASC 493, Beech J referred to the observations of Hall J in Tallot reproduced above and continued:
In short, the result of the wrongful application of s 55 is that there has not been a trial at which the guilt of the appellant has fallen for determination. That is, to say the least, an unusual context for application of the proviso. Generally, the proviso is invoked by a respondent to an appeal who submits that the evidence properly admitted at trial proved beyond reasonable doubt the guilt of the appellant.
In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44], the court emphasised the need to focus on the statutory language of the proviso. However, their Honours said that one proposition can be stated; it is a necessary (but not sufficient) condition for the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt.
The limited material before me does not satisfy me beyond reasonable doubt of the accused's guilt. In any event, where the wrongful invocation of s 55 has deprived the appellant of his right to have his guilt determined at a trial, even if, contrary to my view, the material satisfied me beyond reasonable doubt of guilt, I would be extremely hesitant to invoke the proviso. See, for example, Weiss [45] - [46] ([32] - [34]).
Conclusion
24 In my view, the proceedings conducted by the learned magistrate that resulted in the appellant's conviction on 6 November 2012 involved a 'significant denial of procedural fairness' for the reasons identified by Hall J in Tallot at [12] - [14]. The nature of the procedural defect was such that a retrial should be ordered without recourse to the proviso contained in s 14(2) of the CP Act.
25 I am unable to see how the proviso could arise where the Magistrates Court records a conviction under s 55 of the CP Act in circumstances where it lacked jurisdiction. The negative proposition for the application of the proviso to which the High Court referred in Weiss - that it could not be said that a substantial miscarriage of justice had not occurred unless the appellate court was persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt - could not be satisfied in those circumstances. No evidence will have been properly admitted; no fact can be properly deemed to have been proved. Accordingly, there will be no evidentiary or factual foundation for the determination of the accused's guilt. The respondent's approach would require the appeal court to receive evidence and determine questions of contested fact on appeal under the guise of considering whether the proviso applied. That is to conduct a trial within an appeal.
26 However, Beech J left open the question of whether the proviso could apply on an appeal from a conviction improperly recorded under s 55 of the CP Act in Koh and it is not necessary for me to finally determine the question to resolve this appeal.
27 The appellant should be granted an extension of time within which to appeal and leave to appeal. The appeal will be allowed and the conviction set aside.
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