Prazmo v Urquhart
[2018] WASCA 10
•18 JANUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PRAZMO -v- URQUHART [2018] WASCA 10
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 18 JANUARY 2018
DELIVERED : 18 JANUARY 2018
PUBLISHED : 18 JANUARY 2018
FILE NO/S: CACR 170 of 2017
BETWEEN: KRZYSZTOF PRAZMO
Appellant
AND
GORDON URQUHART
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTINO J
Citation :PRAZMO -v- URQUHART [2017] WASC 215
File No :SJA 1103 of 2016
Catchwords:
Appeal against conviction - Parking offences - Whether inadequate pre-trial disclosure - Whether magistrate made error of fact - Turns on own facts
Legislation:
City of Joondalup Parking Local Law 2013 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Wright v McMurchy [2012] WASCA 257
JUDGMENT OF THE COURT:
(This judgment was delivered extemporaneously on 18 January 2018 and has been edited from the transcript.)
The appellant was convicted of three counts of parking his Volvo sedan in contravention of cl 3.1(4) of the City of Joondalup Parking Local Law 2013 (Local Law). Clause 3.1(4) provides:
A driver shall not park a vehicle or permit a vehicle to remain parked in a parking facility controlled by a sign stating 'Authorised Vehicles Only', without -
(a) a valid parking permit displayed inside the vehicle that is clearly visible to and able to be read by an Authorised Person from outside and from the front of the vehicle at all times while that vehicle remains parked in that parking facility; or
(b) prior written permission of the local government, the CEO, or an Authorised Person to park within the area.
Clause 1.5 of the Local Law defines a 'parking facility' to include land, buildings, shelters, parking stalls and other facilities open to the public generally for the parking of vehicles and includes signs, notices and facilities used in connection with the parking of vehicles.
Clause 9.1(1) of the Local Law relevantly provides that any person who does anything, which under the Local Law that person is prohibited from doing, commits an offence. Section 3.10 of the Local Government Act 1995 (WA) enables local laws made under that Act to provide that contravention of a provision of the local law is an offence.
The evidence of the offence was primarily that of Ms Murphy, a parking officer at the City of Joondalup and an authorised person for the purposes of the Local Law. She gave evidence that, on 6, 10 and 24 February 2015, she observed the appellant's Volvo sedan parked in Lakeside Drive in the City of Joondalup, in an area where a sign indicated that parking was for authorised vehicles only. Her evidence was that, on each date, she checked the vehicle for displayed permits and that the vehicle was not broken down, before issuing an infringement notice. Ms Murphy's evidence was that the vehicle did not have a displayed permit or flat tyre, and was not jacked up, when she checked it on those days. Photographs of the Volvo sedan taken on each day were tendered through Ms Murphy. Ms Murphy gave evidence that the appellant applied for a residential parking permit on 9 February 2015, and that a permit was granted to the appellant on 11 February 2015. The City's case was that the appellant did not hold a permit on 6 and 10 February 2015, and did not display his permit on 24 February 2015.
The appellant gave evidence in his defence. At one point, he accepted that he had parked his vehicle in Lakeside Drive between 6 and 24 February 2015 (ts 25 February 2016, page 50), but later said that the vehicle was parked elsewhere during the first two weeks of February. He alleged that the dates on which Ms Murphy claimed to have issued the infringement notices and taken the photographs of his vehicle were incorrect. His contention appeared to be that the infringement notices were issued shortly after he moved into his nearby residence on 16 January 2015, at a time when the vehicle had a flat tyre or was on a jack and could not be moved. The appellant accepted that he did not apply for a residential parking permit until 9 February 2015 (ts 52 ‑ 53).
The appellant also adduced evidence from two other witnesses, a friend, Mr Zampogna, and his daughter Ms Prazmo, who said that they had seen the appellant's vehicle with a flat tyre or on a jack. Mr Zampogna was uncertain of the date, but thought it was probably February or March of 2015, while Ms Prazmo thought she saw the vehicle in January 2015.
The magistrate convicted the appellant of all three offences, accepting the evidence of Ms Murphy that the Volvo sedan was parked in the relevant area without a permit displayed on the dates alleged in February 2015. The Magistrate said that there was no evidence that the vehicle was on a jack or had a flat tyre in February 2015. His Honour found the appellant to be a rambling witness and his evidence to be entirely unconvincing. The magistrate rejected the appellant's contention that Ms Murphy had the dates wrong.
The appellant appealed against his conviction to the General Division of the Supreme Court. On 1 August 2017, the primary judge dismissed that appeal.
The appellant advanced three grounds of appeal before the primary judge, which are effectively repeated in this court. Ground 1 complains of a failure by the prosecutor to disclose copies of the infringement notices before trial. Ground 2 asserts that Ms Murphy was not a credible witness, and alleges that she committed perjury. Ground 3 asserts that the photographs of the appellant's vehicle had been tampered with.
The primary judge rejected each of these grounds. His Honour held that the prosecutor had not failed to comply with the disclosure requirements applicable to the offence, and that the magistrate was correct to conclude that once full particulars had been provided the appellant did not require further disclosure. His Honour also saw no basis upon which to conclude that the magistrate erred in accepting the evidence of Ms Murphy.
Section 16(2) of the Criminal Appeals Act 2004 (WA) provides for a right of appeal to this court from the primary judge's decision. Section 9 and s 18 of the Criminal Appeals Act provide that the leave of this court is required for each ground of appeal to this court, and that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
The appeal to this court is by way of rehearing: see r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The Criminal Appeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act. However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated: Wright v McMurchy [2012] WASCA 257 [28], [97]. Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Criminal Appeals Act must identify an error by the single judge whose decision is under appeal: Wright [96]
We will treat the appellant's grounds of appeal in this court as alleging that the primary judge erred in failing to uphold his grounds of appeal in the General Division.
There is no merit in any of the grounds.
Ground 1, which has no reasonable prospect of success, was properly rejected by the primary judge for the reasons his Honour gave.
As to grounds 2 and 3, there is no basis in the present case for doubting the correctness of the magistrate's finding that the appellant committed the offences with which he was charged. Our review of the trial record leaves us in no doubt that Ms Murphy observed the appellant's vehicle parked in Lakeside Drive on 6, 10 and 24 February 2015, without a displayed permit or a flat tyre (to any extent that the latter was relevant to the determination of the appellant's criminal responsibility). Her evidence that the infringement notices, which were produced in evidence, were generated at the time she observed the appellant's vehicle left little room for a mistake as to the relevant dates. While there was some debate as to the distance of the vehicle from the parking sign, any error in Ms Murphy's estimation of that distance did not detract from her evidence as to the state of the vehicle when she observed it. There is no evidentiary basis for the inherently improbable assertion that Ms Murphy would have committed perjury or tampered with evidence in order to secure the appellant's conviction of the relevant parking offences. It was clearly open to the magistrate to accept Ms Murphy's evidence and reject that of the appellant to the extent of any inconsistency.
The appellant referred to cl 3.12 of the Local Law, which provides for the issue of a permit to carry out urgent, essential or official duties. That clause does not assist the appellant. There was no evidence of such a permit being issued, or that the appellant was engaged in urgent, essential or official duties.
Our review of the evidence, having regard to the consideration that the magistrate (who had the benefit of having seen and heard the witnesses) was entrusted with the primary responsibility of determining guilt or innocence, satisfies us beyond reasonable doubt that the appellant was guilty of the offences with which he was charged. There is no arguable basis for contending that the magistrate erred in being so satisfied. Grounds 2 and 3 have no reasonable prospect of success.
Leave to appeal should be refused on all three proposed grounds of appeal, and the appeal should be dismissed.
2