Prior v WA Police - [2024] WASC 411

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PRIOR -v- WA POLICE [2024] WASC 411
CORAM:   COBBY J
HEARD:   15 APRIL 2024
DELIVERED          :   7 NOVEMBER 2024
FILE NO/S:   SJA 1074 of 2023
BETWEEN:   ELIZABETH JUNE PRIOR
Appellant

AND

WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1074 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE VRIES
File Number            :   PE 51954/2022

Catchwords:

Criminal law - Appeal against impounding of motor vehicle - Number of previous adjournments - Order made in absence of defendant - Reasonable apprehension of bias

Legislation:

Criminal Appeals Act 2004 (WA) s 14(3)
Criminal Procedure Act 2004 (WA) s 55
Road Traffic Act 1974 (WA) s 49(1)(a), s 49(3)(b), s 80FA, s 80G(4)

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr J Kirke

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Antoun v R [2006] HCA 2; (2006) 224 ALR 51
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982

COBBY J:

On 30 December 2022 the appellant was convicted in her absence of driving whilst disqualified from holding an Australian drivers licence pursuant to s 49(1)(a) and s 49(3)(b), Road Traffic Act 1974 (WA) (the Act).
The appellant had previously been convicted of similar offences in relation to driving without a licence.
On 23 March 2023 the Western Australian Police Force applied for an order that the appellant's motor vehicle be confiscated pursuant to s 80FA of the Act.
The application first came before the Magistrate's Court on 4 May 2023, when it was adjourned due to the appellant's illness. The application was again adjourned on 25 May 2023, the appellant having advised the court that she had COVID-19, and 15 June 2023, when the appellant advised the court that she had a cardiology appointment.
When the matter next came before the court on 22 June 2023 there was no appearance by the appellant. The matter was adjourned to 20 July 2023. On that date, the appellant appeared, and the application was adjourned to allow the appellant to obtain legal advice.
On 17 August 2023, the matter became before the learned magistrate. The appellant had notified the court that she was ill and was unable to attend the court that day. She had not provided a medical certificate to the court.
At the commencement of the hearing, the learned magistrate said:
So Elizabeth June Prior says she's ill with the flu, unable to come to court today, requesting the matter be adjourned. Okay. So this application to confiscate has been on foot since 4 May. She rang on 4 May. She was not well, asked for an adjournment. Rang on 25 May to say she had COVID, requesting an adjournment. 15 June, she said she had to go to the cardiology department and would send a medical certificate.
22 June, she didn't appear. It was adjourned. 20 July 2023 she did attend and it was adjourned, and it was adjourned to allow her to get advice. In my view, she has had every ample opportunity to participate in these proceedings, and she has not done so, and she's actively, in my view, seeking to delay and avoid the proceedings. Do you wish to proceed in her absence Sergeant?
The prosecuting sergeant stated that he did, and applied for the appellant's car to be confiscated.
Her Honour then gave her reasons for ordering that the appellant's car be impounded, rather than confiscated, as follows:
So her last conviction was 30 December. This application was just on the edge, 23 March, of the 3 month period having been served on her. I am satisfied that within a period of only 6 months, she has been convicted of three impounding offences, those being no authority to drive - three no authority to drive offences committed with convictions on 13 July, 27 July and 30 December.
Seems to be a persistent course of conduct. And, as I say, given the previous contacts, repeated avoidance, it seems that she's simply avoiding the matter. I will grant the application, but I will order impounding rather than forfeiture. The vehicle to be impounded for a period of 3 months, with keys to be surrendered no later than 31 August at 4 pm. Thank you'.
I note that although her Honour erred in referring to the appellant having been convicted on 13 July, 27 July and 30 December 2022, that error was not significant. In fact, the appellant had committed the third offence of driving without a licence on 17 November 2022, being convicted on that offence on 30 December 2022. The learned magistrate's error did not alter the position, the requirement that the appellant have been convicted of two previous offences within 5 years prior to 17 November 2022 imposed by s 80C(2) of the Act being satisfied in any event.
The transcript of the hearing evidences that the learned magistrate rejected the applicant's request for an adjournment due to illness on the basis that the appellant had previously been granted adjournments on two occasions because of illness, an adjournment because of a medical appointment, had failed to appear on one occasion and, on the last occasion before the matter came before the learned magistrate on 17 August 2023, had been granted an adjournment in order to obtain legal advice.
There was no indication whether the prosecutor had opposed any of the previous adjournments.
I accept that, in those circumstances, the learned magistrate had power, pursuant to s 55 of the Criminal Procedure Act 2004 (WA), to proceed to determine the matter in the absence of the appellant, it being clear that the appellant had received reasonable notice of the application. The learned magistrate expressed the view, however, that the appellant was actively engaged in delaying the proceedings before any application to proceed with the application in the absence of the appellant had been made.[1]
[1] ts 2, 17 August 2023.
Further, in giving reasons for ordering that the car be impounded, the learned magistrate again referred to the appellant's perceived 'repeated avoidance' and her Honour's view that the appellant was 'simply avoiding the matter', indicating that the learned magistrate had not (in the very short time between her determining to proceed and determining the application itself) discarded her view of the appellant's conduct.
At the hearing, before determining to make an order confiscating or impounding the appellant's car, the learned magistrate was required to determine whether the criteria set out in s 55(2) of the Criminal Procedure Act had been satisfied before exercising the discretion thereby conferred to proceed to determine the matter in the appellant's absence, and, having determined to proceed, to determine whether the appellant had been given a reasonable opportunity to show cause why such an order should not be made, as required by s 80G(4) of the Act.
It was unnecessary for the learned magistrate to express any view as to whether the appellant was actively seeking to delay and avoid the proceeding, there having been no suggestion by the prosecutor that the appellant was not, in fact, ill.
The question is therefore whether the learned magistrate's statements to the effect that the appellant was actively seeking to delay and avoid the proceedings should be regarded as evidence of actual bias on the part of the learned magistrate or as giving rise to an apprehension of bias, either in the exercise of the discretion to proceed to determine the application or in making the order that the appellant's car be impounded.
In this regard, the appellant appeared on the own behalf in the appeal. Unsurprisingly in those circumstances, her notice and grounds of appeal did not raise any question of bias. Commendably, counsel for the respondent did not oppose the appellant being permitted to raise the question of bias when I raised the issue with him in the course of argument.
As the test whether the learned magistrate's conduct gave rise to a reasonable apprehension of bias is the more favourable to the appellant, I consider the matter on that basis.
The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide.[2]
[2] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6].
The test is concerned with the possibility that the fair-minded lay observer might think that the judicial officer might be biased, rather than the probability that he or she is biased.[3]
[3] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 [28].
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[4] the fair-minded observer was described as follows:
Being 'fair minded', the observer 'is neither complacent nor unduly sensitive or suspicious'. Yet the observer is cognisant of "human frailty" and is all too aware of the reality that the judge is human. The observer understands that 'information' [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making. (Citations omitted) [47]
[4] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65.
The suggested source of disqualification may arise in the course of the hearing.[5]
[5] Antoun v R[2006] HCA 2; (2006) 224 ALR 51 [23], [30], [56], [85].
In my view, when regard is had to the fact that the learned magistrate expressed her view of the appellant's conduct before any application to proceed was made, that there was nothing to suggest that the previous adjournments granted by the court had been without proper basis, and that it was unnecessary to express her view as to the appellant's failure to appear in order to determine the application, the hypothetical fair minded lay observer might reasonably conclude that the learned magistrate might not have brought an impartial and unprejudiced mind to the determination of the issues before her, including whether she should proceed to determine the application in the absence of the appellant.
How a judicial officer has actually determined the dispute where there has been a finding of apprehended bias is irrelevant.[6]
[6] Ebner v Official Trustee [7]; Antoun v R [2] - [3].
The consequence of a finding of apprehended bias is jurisdictional, in that the court as constituted was deprived of jurisdiction to determine the application. It is therefore unnecessary that to express any view as to whether a substantial miscarriage of justice has occurred.
I will accordingly grant leave to appeal and allow the appeal. I will hear the parties as to what other orders should be made to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
7 NOVEMBER 2024