Prazmo v Urquhart - [2017] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: PRAZMO -v- URQUHART [2017] WASC 215

CORAM: MARTINO J

HEARD: 1 AUGUST 2017

DELIVERED : 1 AUGUST 2017

FILE NO/S: SJA 1103 of 2016

BETWEEN: KRZYSZTOF PRAZMO
Appellant
AND
GORDON URQUHART
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G R SMITH
File No  :JO 7022 of 2015, JO 7023 of 2015, JO 7024 of 2015

Catchwords:

Criminal law - Extension of time to appeal - Leave to appeal

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T L Beckett

Solicitors:

Appellant: In person
Respondent: McLeods Barristers & Solicitors

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

Lancaster v The Queen [1989] WAR 83
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550

MARTINO J: By a prosecution notice dated 9 June 2015 the respondent charged the appellant with three charges. The charges were the same, save as to the date of the alleged offences. Prosecution JO 7022/15 was for an offence alleged to have occurred on 6 February 2015, JO 7023/15 was for an offence alleged to have occurred on 10 February 2015 and JO 7024/15 was for an offence alleged to have occurred on 24 February 2015. In each case the charge was:
Within the District of the city of Joondalup, parked a vehicle, namely a Volvo Sedan 1CCI536, in a parking facility controlled by a sign stating: 'Authorised Vehicles Only', Without a valid parking permit displayed inside the vehicle that was clearly visible at all times while that vehicle remained parked in that parking facility and without prior written permission of the city of Joondalup, the CEO, or an Authorised Person to park within that area, contrary to clauses 3.1(4) and 9.1(1) of the City of Joondalup Parking Local Law 2013.
A trial took place on 25 February 2016 and 19 August 2016 before his Honour Magistrate Smith. On 19 August 2016 his Honour convicted the appellant of all three charges. His Honour fined the appellant $60 for each charge and ordered that the appellant pay the respondent's costs in the sum of $2,000.
By an appeal notice filed on 14 December 2016 the appellant applied for an extension of time to appeal and for leave to appeal against those convictions. On 16 February 2017 I ordered that the application for an extension of time to appeal and for leave to appeal be heard with the appeal.
The appeal was originally listed for hearing on 23 May 2017, before Fiannaca J. On 22 May 2017 the appellant telephoned my Associate and left a message on my Associate's voice mail saying that he was at Joondalup Hospital and was not able to attend court for the hearing of the appeal. Later the same day the appellant again telephoned my Associate. On this occasion he spoke to her and said that he would provide a doctor's certificate. At 2.46 pm on 22 May 2017 the appellant emailed a copy of a short medical certificate from Joondalup Hospital dated 22 May 2017 certifying that the appellant was unfit for work until 2 July 2017.
On 23 May 2017 the Associate to Fiannaca J received an email from the Acting Clinical Nurse Manager of Joondalup Hospital confirming that the appellant was an inpatient at the hospital for a period of time and that upon discharge he was issued with a certificate giving him six weeks' leave.
At 12.17 pm on 23 May 2017 the Associate to Fiannaca J sent an email to the appellant and to the solicitors for the respondent informing them that in all the circumstances Fiannaca J had decided to grant the appellant's application for an adjournment and that the appeal would be relisted in June to August. He asked the appellant to provide his unavailable dates to the Court's listings.
By letter dated 29 May 2017 the Court informed the parties that the appeal was listed for hearing on 1 August 2017 at 10.00 am. The appellant did not attend the hearing of the appeal. My Associate telephoned the appellant who said that he thought that the appeal was listed for hearing on 1 October 2017 and that he was unable to attend court as his leg was in a moon boot. I decided that as the appellant had been given notice of the appeal and there had been a late application for an adjournment in May the appeal should proceed on 1 August 2017. I requested that my Associate telephone the appellant and tell him that the appeal would be proceeding and that he could appear in person or by telephone. The appellant informed my Associate that he would like to appear by telephone. My Associate informed him that the hearing would commence at 11.30 am, over an hour after their telephone conversation. The appellant has appeared by telephone and addressed me and so appeared on the hearing of the appeal, pursuant to r 59 of the Criminal Procedure Rules 2005 (WA).
At the commencement of the hearing the appellant applied for an adjournment of the appeal. He confirmed that he had received the Court's letter of 29 May 2017 informing him of the hearing of the appeal on 1 August 2017 and said that he had the letter in front of him, but said that he had overlooked it. I took the view that where there had been an earlier adjournment of the appeal and the appellant had received the Court's letter of 29 May 2017 he had received adequate notice of the hearing and sufficient time to prepare for the hearing. I refused the application for an adjournment.
The appellant then addressed me on the applications. After he had done so the appellant asked for an adjournment to obtain medical evidence supporting his application for an adjournment. I refused the second application for an adjournment. It appeared to me that the appellant was well enough to address me on the telephone, as he had done.
In support of his application for an extension of time to appeal the appellant has filed an affidavit made on 1 February 2017 in which he has deposed that the reason he was late in filing his appeal notice is that he was physically assaulted on 22 August 2016 and that he was severely injured and had still not recovered. Attached to the appellant's affidavit is a copy of a report from an Emergency Department Medical Officer at Royal Perth Hospital dated 22 August 2016.
That report states that the appellant presented to the Emergency Department on 21 August 2016 at 23:34. The appellant said that he had been punched multiple times to the ribs as he was getting out of his car. The diagnosis was: +Injury - +Bruise/Contusion – Chest. His pain was relieved with Panadeine forte. He was provided with a script for that medication and discharged for follow up by his General Practitioner.
An appeal against the decision of Magistrate Smith cannot be commenced later than 28 days after the date of his Honour's decision, unless the Supreme Court orders otherwise: s 10(3) Criminal Appeals Act 2004 (WA). The time limited to appeal expired on 16 September 2016. The medical report of 22 August 2016 confirms that the appellant has reported that he has been assaulted and that the appellant suffered multiple bruises for which he required analgesic medication. The appellant's affidavit and the attached medical report do not provide a reasonable basis for the failure to lodge the appeal notice in time. Nevertheless an extension of time can be granted if a miscarriage of justice will result if an extension of time is not granted: Lancaster v The Queen [1989] WAR 83, 85.
The appeal notice has three grounds of appeal. Leave of the Supreme Court is required for each ground of appeal. The Court must not give leave unless it is satisfied that the ground has a reasonable prospect of success. Unless the Court gives leave to appeal on at least one ground of appeal the appeal is to be taken to have been dismissed: s 9 Criminal Appeals Act 2004.
The grounds of appeal are:
1.Failure by Mr T L Beckett to produce full disclosure within twenty eight days prior to the trial.
2.The witness prosecution was not a credible witness.
3.Joondalup parking inspectors tampered with photo evidence and parking tickets.

The trial

At the commencement of the trial the learned Magistrate ensured that the appellant wished to proceed to trial. The appellant confirmed that he did. The appellant made application for disclosure, saying that disclosure had not been provided. The learned Magistrate said that he would immediately give the disclosure to the appellant. He made enquiry of counsel appearing for the respondent who informed his Honour that the first offence was alleged to have been committed on 6 February at approximately 10.00 am, the second offence on 10 February at 10.15 am and the third offence on 24 February at 10.55 am and that the allegations were that on the first two occasions the appellant parked the car when he was not the holder of a permit and on the third occasion the appellant was the holder of a permit, but that when he parked the car he did not have the permit displayed. His Honour informed the appellant that was all the disclosure that he needed.
The respondent tendered in evidence a certificate from the Department of Transport certifying that the vehicle register maintained in accordance with s 14 of the Road Traffic (Vehicles) Act 2012 (WA) recorded that on 6, 10 and 24 February 2015 a Volvo sedan registration number 1CCI536 was licensed to the appellant, a certificate that under s 9.41(3) of the Local Government Act 1995 (WA) that between 6 February 2015 and 24 February 2015 inclusive Lakeside Drive Joondalup was within the City of Joondalup and the Government Gazette of 19 August 2013 containing the City of Joondalup Parking Local Law 2013.
The one witness called by the respondent was Leanne Murphy. Ms Murphy was the parking officer who issued the infringement notices which eventually resulted in the charges. She gave evidence that Volvo sedan registration number 1CCI536 was parked without displaying a valid parking permit as particularised in each of the charges and produced photographs she took and the infringement notices that she issued. Ms Murphy gave evidence that her practice when issuing infringement notices is to check to ensure that the car does not have a flat tyre.
The appellant gave evidence that the infringement notices were not issued on the dates for which he had been charged and that he had a flat tyre on his Volvo.
On 19 August 2016 the appellant called Mr Tony Zampogna who gave evidence that he had seen the Volvo standing on a jack. Mr Zampogna's evidence was that this was in February or March 2015, but he could not recall the dates.
The appellant also called his daughter Natalia Prazmo. Ms Prazmo gave evidence that in around January 2015 the appellant moved into Lakeside Drive, Joondalup. The appellant's Volvo got a flat tyre in around January 2015 and she helped the appellant to jack up the car. The car remained on the jack for a few days. Ms Prazmo was not sure when the car was jacked up. It could have been just a few days after the appellant moved in.

The learned Magistrate's reasons

The learned Magistrate gave reasons for his decision on 19 August 2016. His Honour correctly stated the legal principles. He summarised the evidence he had heard. His Honour concluded that he accepted the evidence of Ms Murphy who he found to be a convincing and believable witness. His Honour rejected any suggestion that she got the dates wrong or that she was telling lies and he found that the photographs which she took were all taken correctly on the dates of which she gave evidence. His Honour said that the appellant's evidence was disjointed and vague, that at times he contradicted himself and he found his evidence to be entirely unconvincing. His Honour was satisfied beyond reasonable doubt that the appellant was guilty of each charge.

Ground of Appeal 1

The first ground of appeal is that the respondent failed to produce full disclosure within 28 days prior to trial. The prosecutions were for simple offences which were not prescribed as listed simple offences as defined in s 60(1) of the Criminal Procedure Act 2004 (WA). A magistrate had not ordered, under s 60(5) of the Criminal Procedure Act that the respondent provide disclosure to the appellant and so there was no disclosure obligation under s 61 of the Act. The charges were not complex. The learned Magistrate was correct when he said on 25 February 2016, after ensuring that the appellant was provided with full particulars of the charges, that was all the disclosure that the appellant needed. This ground of appeal has no reasonable prospect of success and there would be no miscarriage of justice if an extension of time were not granted for the appellant to raise it.

Grounds of Appeal 2 and 3

In ground of appeal two the appellant contends that the prosecution witness was not a credible witness. In ground of appeal three the appellant contends that the respondent's parking inspectors tampered with photo evidence and parking tickets.
The learned Magistrate found that Ms Murphy was a convincing and believable witness whose evidence he accepted. He was satisfied beyond reasonable doubt by her evidence that each of the charges was proved.
An appeal by the appellant would be by way of a rehearing: r 64 Criminal Procedure Rules 2005 (WA). A court conducting an appeal by way of rehearing should not interfere with a judge or magistrate's findings of fact unless those findings are demonstrated to be wrong by incontrovertible facts or uncontested testimony or are glaringly improbable or contrary to compelling inferences: Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43].
The learned Magistrate was in the best position to assess the evidence, including the credibility of the evidence that he heard. I can detect no error in his findings of fact. I can see no basis upon which I could conclude that his Honour made an error in accepting the evidence of Ms Murphy.
These grounds of appeal have no reasonable prospect of success and there would be no miscarriage of justice if an extension of time were not granted for the appellant to raise them.
I do not grant an extension of time to appeal. The appeal is dismissed.