Pikor v Barrett

[1989] TASSC 71

Serial No 71/1989
List "A"

CITATION:              Pikor v Barrett [1989] TASSC 71; A71/1989

PARTIES:  PIKOR
  v
  BARRETT

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 127/1988
DELIVERED ON:  20 December 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Green CJ, Crawford J

Judgment Number:  A71/1989
Number of paragraphs:  31

Serial No 71/1989
List "A"
File No FCA 127/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

GREEN CJ
CRAWFORD J
20 December 1989

Order of the Court

Appeal dismissed.

Serial No 71/1989
List "A"
File No FCA 127/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

GREEN CJ
20 December 1989

1. For the reasons published by Crawford J I agree that the appeal should be dismissed.

   List "A"

   File No FCA 127/1988

PIKOR v BARRETT

REASONS FOR JUDGMENT  FULL COURT

CRAWFORD J
20 December 1989

1. This is an appeal from orders of Cox J dismissing two motions to review orders of conviction made against the appellant.

1. On 1 August 1988 a magistrate, Mr Hill, convicted the appellant on complaint No 1742787 of driving a motor vehicle on 5 August 1987, on a public street, and when approaching a Give Way sign (road sign No 9) he failed to enter as slowly as practicable and give way to traffic in a junctioning street, contrary to reg25(3) of the Traffic (General & Local) Regulations 1956. In file No LCA 92/1988 the appellant filed a notice to review the conviction.

1. On 5 September 1988 another magistrate, Mr Hannon, convicted the appellant on complaint No 14568/87 of bringing a motor vehicle to a standstill in a public street, on 26 June 1987, such vehicle not being close to and parallel to the side of the street, contrary to reg5(1)(f)(ii) of the same regulations. In file No LCA 127/1988 the appellant filed a notice to review the conviction.

1. As already mentioned, Cox J dismissed the two motions to review the orders of conviction. By the same notice of appeal these appeals have been instituted.

Ground 1

"1THAT  His Honour erred in law by disallowing the Appellant's application for adjournment for reason that the two Transcripts of Evidence in re LCA 92 and 107 of 1988 were delivered to the Appellant:–

(a)In insufficient time; and

(b)In incomplete context."

1. Cox J heard the motions to review on Monday 3 October 1988. Copies of the transcripts of the proceedings before the magistrates were delivered to the appellant on the Thursday before. The appellant complained that a transcript was incomplete insofar as it did not include argument on a matter which was not the subject of a motion to review before the learned judge. Clearly there was no entitlement to an adjournment on such a ground. The appellant also asked the learned judge to consider granting him an adjournment to enable him to "properly prepare a brief on this transcript". This request was made at a time when he was being asked to point to a relevant passage in the transcript but was having difficulty finding it. His Honour adjourned for about a quarter of an hour but did not grant any longer adjournment than that. On the court resuming the appellant had found the relevant passage. He did not show to the learned judge, nor has he shown to this Court, that a longer adjournment was warranted or that the learned judge erred in the exercise of his discretion whether or not to grant a longer adjournment.

Ground 2

"2THAT  with regard to ground 1 of the two Notices to Review LCA 92 & LCA 107 of 1988, His Honour erred in law in holding that the Appellant is not entitled:–

(a)To call for proof whether the facsimile signatures were impressed personally by the person(s) whose the facsimile signatures purports to be; nor

(b)To seek Court's ruling on the contents of ground 1(b) of LCA 10788; or

(c)To make suplementary [sic] or another submissions under ground 6 of LCA 107 or ground 5 of LCA 912 of 1988."

1. Ground 1 in the notice to review in LCA 92,1988 was in the following terms:

"1THAT  His Worship erred in law in rejecting the Appellant's submissions that the facsimile signature appearing on the complaint and the summons thereof is irregular and the documents so stamped are void for reasons that:

(a)The pre–printed words 'A Justice of the Peace' appearing on the said documents do not repudiate the requirements of s 58(2) Evidence Act 1910.

(b)The Court cannot take judicial notice of the documents so stamped without evidence that the said stamps were impressed personally by the Justice of the Peace whose the facsimile signatures purports to be.

(c)The facsimile signatures so impressed on the relevant documents do not comply with the provisions of Rule 18 & 65 Justices Rules 1976 and s 58–(2) Evidence Act 1910–1979."

1. Ground 1 in the notice to review in LCA107/1988 was in the following terms:

"1        THAT  His Worship erred in law in issuing no reasons for:

(a)Rejection of the Appellant's submissions that the complaint and the summons are void for non–compliance with Rules 18 and 65 Justices Rules 1976 and s 58–(2) Evidence Act 1910–1979.

(b)Barring the Appellant from submission to the Court the precedent of R v His Honour Judge PJ Roe (1951) IR 172 and other similar precedents."

1. An inspection of the complaints in both matters does not reveal any facsimile signatures. They both appear to have been signed personally by the complainants and by a person by the name of "CF Walton" underneath whose signature appears, in both complaints, the printed words, "Signature of Justice of the Peace receiving the complaint". Those words are in fact part of the prescribed form which is Form 1 in Schedule 1 of the Justices Rules 1976.

1. Ground 1 in both notices to review raised the provisions of s58(2) of the Evidence Act 1910 and r18 and 65 of the Justice Rules 1976. Rule 18 can be disposed of without difficulty. It was rescinded in 1981. Rule 65 provides:

"65 — All summonses and warrants shall be signed by the justice issuing them."

This rule does not apply to complaints, only to summonses and warrants.

1. Section 58(2) of the Evidence Act 1910 provides:

"58(2)  The words 'Justice of the Peace' or the letters 'JP' after the signature to any magisterial act shall be prima facie evidence that the person whose signature it purports to be is a justice of the peace having jurisdiction in the matter."

1. The appellant's arguments were:

(i)That it is not sufficient that the words "Justice of the Peace" or the letters "JP" appear underneath the signature. The person who signs must himself write or affix those words or letters.

(ii)A defendant is entitled to call on the complainant to prove that in fact a justice of the peace did sign the complaint or the summons and in such event, the prosecution must strictly prove it.

(iii)Alternatively to (ii), if the signature was affixed with a rubber stamp, a defendant is equally entitled to call for proof that a justice of the peace affixed the stamped facsimile signature.

(iv)That on the hearing of complaint No 1742787 he called for proof but the magistrate ruled that it was a matter for him to disprove, not for the prosecution to prove.

(v)That on the hearing of complaint No 1456887 the magistrate made a similar ruling.

1. The copy of the summons issued on complaint No 17427/87 which is contained in the appeal book, appears to bear a stamped facsimile of the signature of "CF Walton" underneath which appear the words "A Justice of the Peace" which are part of the printed form. The summons issued on complaint No 14568/87 appears to bear the stamped facsimile signature of "DJ England" under which stamped facsimile signature has also been stamped "DJ England" and underneath that name the letters "JP". Also appearing underneath the stamped facsimile signature of DJ England are the printed words "A Justice of the Peace" which are part of the printed form of the summons.

1. It is clear that in the case of the two summonses, the words "Justice of the Peace" did appear after the signature and by virtue of s58(2) that is prima facie evidence that the persons whose signatures they purported to be were justices of the peace having jurisdiction in the matter.

1. In the case of the complaints the words appearing under the signature were not simply "Justice of the Peace" but "Signature of Justice of the Peace receiving the complaint". The extra words were not sufficient to take the matter away from s58(2). It also applies to the signatures on the complaints.

1. Both magistrates and Cox J ruled that the signatures were prima facie evidence that they were subscribed by a justice of the peace having jurisdiction in the matter, and that if the appellant wished to establish otherwise the onus was on him to establish it by evidence.

1. The appellant cited The State v His Honour Judge PJ Roe [1941] IR 172. In that case it was said at p186 that a rubber facsimile may be used to affix a signature "but, when the device is questioned by a man entitled to call for proof, the affixing of the stamp by the Justice must be proved, either by the Justice himself or by another witness who can swear positively to the making by the Justice of the particular signature questioned". That case is inapplicable to the facsimile signatures appearing on the summonses in this case because of the provisions of s58(2). There was no similar statutory provision referred to in the Irish case. Section 58(2) cannot be read down. Where it provides that the words "Justice of the Peace" or the letters "JP" shall be prima facie evidence then due effect must be given to it.

1. This ground of appeal therefore fails.

1. The appellant's argument also appears to be defeated by s47 of the Evidence Act 1910 which provides that all courts shall take judicial notice of the official signature of every person who holds or has held inter alia the office of justice of the peace and the fact that such person holds or has held such office, if the signature purports to be attached or appended inter alia to any judicial or official document. (As to the effect of the section see Holland v Jones (1917) 23 CLR 149).

1. It is accordingly my conclusion that the learned magistrates and the learned judge were correct in coming to the conclusion that if the appellant wished to establish that the purported signatures were insufficient, it was a matter for him to prove.

Ground 3

"3THAT  in connection with the contents of grounds 2 and 3 of LCA 92/88, His Honour ought to have held:–

(a)That the witness ought to remain out of hearing of the Court until called upon to give evidence.

(b)That His Worship should not himself call the witness to give evidence.

(c)That for reason of the hostile witness and the aggregate defects in the conduct of the trial by His Worship, the trial as a whole miscarried."

1. Only one prosecution witness was called, Constable Bowerman. His evidence was confined to the facts surrounding the appellant's manner of driving. The transcript does not reveal whether he was in court for all of the proceedings prior to him being called to give evidence. If he was he would have heard the arguments caused by the appellant's technical objections to the form of the complaint and summons. No possible injustice could have occurred. Constable Bowerman could not have heard anything as a result of which he might have been tempted to tailor his evidence, as suggested by the appellant. There is no merit in Ground 3(a) before this Court. The appellant cited R v Bicannin (1976) 15 SASR 20 but it provides no support for the ground of appeal, on the facts which may have occurred.

1. Ground 3(b) has no basis. The transcript does not reveal that the learned magistrate called Constable Bowerman to give evidence. In his affidavit in support of the motion to review the appellant said that upon rejection of his submissions that the complaint and the summons were irregular, "His Worship without reference to the Prosecuting Officer, invited the Police Officer then present in the Court to give his evidence in support of the complaint before the Court". But the appellant expressly declined to suggest that the learned magistrate called the Constable as his own witness. The transcript reveals that the examination–in–chief was conducted by the prosecutor. At its strongest, the appellant's argument appears to be that the learned magistrate, knowing that Constable Bowerman was the witness proposed to be called by the prosecutor, and having disposed of the technical objections, asked the constable to take the stand. This is no basis for a successful appeal. No miscarriage of justice could have occurred. The appellant cited R v Apostilides (1984) 154 CLR 563 in which the High Court stated at p575 general propositions applicable to the conduct of criminal trials in Australia, particularly in relation to the calling of witnesses by the Crown and the calling of witnesses by the trial judge. The facts established by the appellant do not show that anything was done by the learned magistrate contrary to the propositions stated by the High Court.

1. Ground 3(c) was not argued by the appellant. It was not made out.

Ground 4

"4THAT  the Acting Registrar acted without or in excess of his jurisdiction by arbitrarily removing from the list the summons dated 41088 in re LCA 92/88."

1. Cox J dismissed the motions to review on 3 October. On the next day the appellant filed a summons seeking "leave to further address the Court on the contents of the Transcript of Evidence showing that the Learned Magistrate erred in law and acted without or in excess of his jurisdiction". A date for hearing the summons was given, for 7 October, but the Acting Registrar withdrew it from hearing, explaining by letter to the appellant that Cox J would not be sitting at that time and that, as his Honour had given his decision, "it is now a matter for appeal to the Full Court if you so desire". There is no basis upon which the appeal from the orders of the learned judge could be upheld on this ground. The hearing before the learned judge had been completed. His Honour had ordered that the motions be dismissed. The appellant had no right to a further hearing.

Ground 5

"5THAT by reason of the contents of grounds 2, 3 & 4 of LCA 107/88, His Honour ought to have held that His Worship fell so far outside his normal discretionary limits amounting to an error of law and his Order ought to be set aside."

1. Ground 2 in the notice to review in LCA 107/88 stated as follows:

"2THAT His Worship ought to have held that by reason of the second complaint made on the 8th. day of January, 1988 under the provisions of s 54–(3) Traffic Act 1925, the Prosecution thereby abandoned the first complaint made on the 5th day of October, 1987 under the provisions of the Traffic (General & Local) Regulations 1956."

This ground is erroneous. There was one complaint and it was dated 5 October 1987. There was not a second complaint. However, the appellant drew to the attention of the learned magistrate that he had received a summons (not a complaint it must be emphasised) dated 8 January 1988 which stated that the complaint was made on 5 October 1988. This was obviously a typographical error as was pointed out by the learned magistrate at the hearing on 5 September 1988. His Worship overruled the appellant's argument on this, at the same time pointing out that the appellant was in fact present in court. Section 31(4) of the Justices Act 1959 provides that no objection shall be taken or allowed to a summons in respect of an alleged defect therein, in substance or in form, but the justices may adjourn the hearing if it appears to them that the defendant has been prejudiced. No ground for an adjournment was suggested or made out. No prejudice was claimed. The appellant did advance an argument that the complaint had not been laid within six months of the alleged commission of the offence but of course he was referring to the summons served on him, and not to the complaint which charged him with the offence.

1. Ground 3 in the notice to review in LCA107/88 asserted:

"3THAT  His Worship ought to have held that the complaint is irregular for reasons of non–compliance with the provisions of Rule 15 Justices Rules 1976., and dismiss the complaint for irregularity."

That rule requires that a complaint should include a specific reference to the particular regulation alleged to be contravened. The complaint, in its original form, alleged a parking infringement contrary to reg5(i)(f) of the Traffic (General & Local) Regulations 1956. That regulation provided:

"5–(1)  Subject to any provisions prescribed in these regulations in relation to a special case or place, a person who drives a vehicle or drives or leads an animal on a public street shall comply with such of the following rules of the road as are applicable in the circumstances–

…

(f)   when bringing a vehicle or driven or led animal to a standstill–

(i)he shall, in the case of a two–way street or dual carriage–way, keep on the left side of the carriageway; or

(ii)he may, in the case of a one–way street, keep on either the left or right side of the carriageway,

and shall keep the vehicle or animal close to the side of the street and parallel thereto, except where road sign No 31 is erected, when the vehicle or animal shall be kept wholly within a space as indicated by that sign;"

The appellant's case was that the complaint should have specified reg5(1)(f)((i) or 5(1)(f)(ii) and not simply 5(1)(f). The complaint alleged a failure to bring the vehicle to a standstill close to and parallel to the side of the street. He was not charged with any offence constituted, or partly constituted, by anything contained in sub–paras(i) and (ii). Whether the alleged offence was committed in a one–way street or a two–way street was immaterial to the offences charged. No ground for prejudice was asserted by the appellant. He claimed that, not knowing under which regulation he was charged, he could not prepare his defence and this, he said, was "highly prejudicial". This claim was not explained further and appears to be totally without merit.

1. The learned magistrate, unnecessarily it seems to me, ordered that the complaint be amended by adding "(ii)" after "5(1)(f)". The power to amend is contained in s31(3) of the Justices Act 1959.

1. Ground 4 in the notice to review in LCA 10788 stated:

"4THAT  His Worship acted without or in excess of his jurisdiction by making the two amendments to the original complaint of the 5th October, 1987 without granting to the Appellant an adjournment to prepare his defence to the amended complaint."

As I understand it, there were two amendments made. One was to amend the reference to the date of the complaint, as it was stated in the summons received by the appellant, from 5 October 1988 to 5 October 1987. The other was to amend the reference to the regulation breached so that the complaint referred to reg5(1)(f)(ii) instead of reg5(1)(f). The appellant demonstrated no prejudice and therefore no ground for an adjournment. He was equally able to prepare his defence before and after the amendments. In any event, neither amendment was necessary.

Ground 6

"6THAT HIS HONOUR omitted to issue reasons for rejection of ground 5 of LCA–107/88."

1. Ground 5 in the notice to review was in the following terms:

"5THAT  His Worship ought to have held that the marked–up parking space on the road–way is a private property whilst the parking meter is running and consequently:

(a)The Police Officer concerned had no right to enter the private property without search warrant.

(b)The Regulation 5–(1)(f) Traffic (G & L) 1956, do not apply." [sic]

Cox J ruled as follows:

"It is said that because the area of roadway in question was a metered space, it was private property and not subject to the Regulations. There is no substance in this proposition and the applicant could produce no authority to support it."

1. That passage contains the reasons of the learned judge for rejecting ground 5. I agree with them. The regulation creates an offence. It was found to be proven. There is no basis in law for the defence suggested by the appellant. He cited no authority, except to make some vague reference to an unidentified decision in the United Kingdom concerning a council car park. There is no merit in this ground whatsoever.

1. It is therefore my opinion that all of the grounds of appeal fail. The appeal should be dismissed.