Remta v Police Department of Western Australia
[2007] WASC 5
•11 JANUARY 2007
REMTA -v- POLICE DEPARTMENT OF WESTERN AUSTRALIA [2007] WASC 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 5 | |
| Case No: | SJA:1089/2006 | 24 NOVEMBER 2006 | |
| Coram: | SIMMONDS J | 10/01/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Applications for leave to appeal conviction and sentence granted Appeal against conviction allowed | ||
| B | |||
| PDF Version |
| Parties: | PETER JOHN AUGUSTIN REMTA POLICE DEPARTMENT OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction and sentence Guilty plea Counsel and Justices relied on incorrect version of legislation Appeal against conviction allowed |
Legislation: | Criminal Appeals Act 2004 (WA), s 10(3) Criminal Procedure Act 2004 (WA), s 9(2) Road Traffic Act 1974 (WA), s 5(1)(d)(i), s 5(1a), s 58 Sentencing Act 1995 (WA), s 9(2), s 45 |
Case References: | Glover v Reyne [2001] WASCA 305 Samuels v The State [2005] WASCA 193 Mason v Strudwick (1993) 17 MVR 305 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
POLICE DEPARTMENT OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : JUSTICES OF THE PEACE AT PERTH
File No : PE 22202 of 2006
Catchwords:
Criminal law - Appeal against conviction and sentence - Guilty plea - Counsel and Justices relied on incorrect version of legislation - Appeal against conviction allowed
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 10(3)
Criminal Procedure Act 2004 (WA), s 9(2)
Road Traffic Act 1974 (WA), s 5(1)(d)(i), s 5(1a), s 58
Sentencing Act 1995 (WA), s 9(2), s 45
Result:
Extension of time granted
Applications for leave to appeal conviction and sentence granted
Appeal against conviction allowed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C A Ide
Solicitors:
Appellant : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Glover v Reyne [2001] WASCA 305
Samuels v The State [2005] WASCA 193
Case(s) also cited:
Mason v Strudwick (1993) 17 MVR 305
(Page 3)
- SIMMONDS J:
Introduction
1 This is an application for extension of the time to appeal and for leave to appeal in respect of a conviction for an offence under the Road Traffic Act 1974 (WA). The applicant represented himself. As I will indicate, he is a legal practitioner.
2 The decision in respect of which leave to appeal is sought was the conviction and sentence of the applicant of two Justices of the Peace sitting in the Magistrates Court of Perth. It was for an offence under the Road Traffic Act s 58. That offence is broadly described as the failure of person responsible for a vehicle to provide information to a member of the Police Force. As will soon become apparent, central to the appeal for which leave is sought is the matter of the version of the provision that was in force at the time of the offence.
3 The charge was for an offence committed on 31 August 2005, at East Perth. The applicant was legally represented. He is himself a legal practitioner who was admitted to practice in 1966. He pleaded guilty. The Justices of the Peace made a spent conviction order under Sentencing Act 1995 (WA), s 45, and imposed a sentence of a fine of $1200, while ordering costs of $100.70.
4 The application by appeal notice (criminal) (r 28) was filed on 4 September 2006. The decision of the Justices had been delivered on 17 May 2006. The time for application for leave to appeal against this decision was 28 days, unless this Court ordered otherwise: Criminal Appeals Act 2004 (WA), s 10(3). That period of 28 days expired on 14 June 2006. The application for leave to appeal was accordingly over two months late. The applicant in his affidavit in support of the application for extension of time and leave to appeal sworn on 4 September 2006 put forward an explanation for this, notwithstanding he was present in court when the Justices gave their decision, and notwithstanding that "after I received this penalty" he was told it would be "worthwhile appealing because of its severity" and "some of my legal colleagues" suggested he had a "complete and proper defence" to the charge. His explanation was he acted on a suggestion that he should write to the Attorney-General to raise the matters. The first such letter was dated 21 June 2006, and the last reply from the Attorney-General was dated 23 August 2006.
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5 The respondent's outline of submissions takes no issue with the application for extension of time. I decided to grant the application in that respect.
6 At the hearing, as I will explain, the parties treated it as one both of the application for leave and of the appeal itself.
7 After hearing argument, I decided to grant the leave sought. I also decided to allow the appeal against conviction, and to quash it, remitting the matter for rehearing before a Magistrate. I indicated that reasons would follow. These are those reasons.
Leave to appeal
8 The application was brought under Criminal Procedure Act 2004 (WA), s 9(2), which reads:
"(2) After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding."
9 The approach that must be applied to such applications has been set out in Samuels v The State [2005] WASCA 193, at [55] – [61], per curiam, where the Court said this:
"Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to
(Page 5)
- each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.
As did the majority of the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 in a different statutory context, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria, because the circumstances of each case are infinitely various. Furthermore, it is crucial to always recognise that the test to be applied is that expressed in the statutory provision itself, not some judicial restatement or reformulation of it. That said, the following considerations may afford some useful guidance upon its application.
One approach advocated by senior counsel for the appellant which seems to us likely to have practical utility in many cases, is to ask whether the arguments in support of a ground are such as to call for a reply from the respondent: cf R v McDonald (1992) 85 NTR 1 at 3, per Asche CJ, and Gooch & Pierce v The Queen [2002] NTCCA 3 at [6], per Martin CJ, Bailey and Riley JJ. If it does not, it is unlikely to have a reasonable prospect of succeeding. Also, where a ground so suffers from a lack of clarity that the Court or Judge is unable to understand it, there would be no reasonable prospect that ground could succeed in that form.
On the other hand, what is 'reasonable' takes its colour from the circumstances. Thus, where a ground is on a point on which the law is unclear and is in a state of development, and where the ground might succeed were the point to be accepted, the ground would be unlikely to be held to have no reasonable prospect of succeeding.
The requirement for leave and the statutory test explained above call for a single Judge or this Court on such an application to give consideration to the merits of each proposed ground of appeal. That will not be a detailed consideration of all the evidence and all the issues in the case; it will be confined to the ground of appeal as particularised - but it must, of course,
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- always be a full consideration of that which is advanced in the appellant's case in support of the application. That having been done, if the Court or Judge is not positively satisfied the ground has a reasonable prospect of success, leave to appeal must be refused. Where leave is refused, sufficient reasons should be given to enable the appellant to understand why that decision was made. As the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said in Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 at 319 - 320, when the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, the grounds of refusal of leave 'should be stated, though they need not be elaborated'.
The Court was there dealing with s 5(1) of the Criminal Appeal Act 1912 (NSW), which required an appellant to have leave to appeal against sentence. The Court said that under that provision, leave to appeal would ordinarily be granted when the applicant made out a sufficiently arguable case that the sentence imposed was inappropriate in all the circumstances."
10 The grounds for appeal were set out in the appeal notice previously referred to and are numbered 1 to 11. There was also a further ground which the application by letter dated 15 September 2006 sought to add, in respect of his sentence. Although the appeal notice was expressed in terms of an appeal against conviction and not against sentence, ground 10, as I will indicate, was a ground of appeal against sentence. So too, as I have said, was the further ground. In the circumstances, without objection from counsel for the respondent, I decided to treat the application for leave to appeal as being one in respect of both conviction and sentence.
11 Before me there was considerable attention directed to the fact the conviction was obtained following a plea of guilty, by a person who was legally represented, and who was himself a legal practitioner. The applicant in his affidavit of 4 September 2006 deposes, however, that he had in 1999 suffered severe health problems from which he has progressively been recovering. This means it takes him longer to attend to financial and other stressful situations than it took him before he became ill. His affidavit also indicates he is currently practising part-time.
12 The approach to be followed in determining an application for leave to appeal against a conviction on a plea of guilty is, in my view, sufficiently set out for my purposes in Glover v Reyne [2001] WASCA 305, Roberts-Smith J (as he then was) at [58] - [60]:
(Page 7)
- "I accept the proposition urged upon me by the respondent that a court will approach an appeal following a conviction on a plea of guilty, with caution bordering on circumspection.
The rationale for this was explained by Wheeler J in Green v The Queen [2001] WASCA 162 at [100]:
'Before allowing a convicted person to withdraw the plea of guilty upon which a conviction is founded, it must appear that a miscarriage of justice has occurred. Withdrawal of a plea will only be permitted in exceptional circumstances. Some of the authorities are collected and discussed in Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993, per Wallwork J. One such circumstance is where the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it. Although the court has both the power and duty to interfere where it appears that there is a miscarriage of justice, courts approach attempts on appeal to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with "caution bordering on circumspection" because of the public interest in the finality of legal proceedings and because of the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of all of the necessary legal ingredients of the offence: see Liberti v R (1991) 55 A Crim R 120 at 122 per Kirby P.
I do not see the authorities in which this proposition is articulated as necessarily purporting to state it as a principle of law, in the sense of a legal requirement or pre-condition, but rather as a statement of practical reality. It must inevitably be the case that because an unequivocal plea of guilty is an admission of all the elements of the offence, and so sufficient of itself to found a conviction, that it would be an exceptional situation where some other consideration could reveal there was, or may have been, a miscarriage of justice despite the plea. I do not understand the authorities as meaning any more than this."
13 I take from this statement that the applicant would need to show that for the ground in question there is a reasonable prospect of success
(Page 8)
- notwithstanding the guilty plea in the circumstances of this case. As I will indicate below, I consider that standard was met in this case.
14 There is no suggestion in this case that the applicant was not in possession of all of the relevant facts. I take those facts to be the ones which are the foundations of the ground in question.
15 Before reaching those grounds, I should indicate that it became apparent at the hearing that they or some of them needed to be understood or amended so as to raise more directly the fundamental matter that the Justices had in fact convicted the appellant under a version of Road Traffic Act, s 58 which was not that in force for the purposes of the offence charged.
16 I should also preface the grounds for appeal by referring briefly to matter from the appellant's affidavit of 4 September 2006 which serves to explain his grounds.
Factual background from the appellant's affidavit
17 As I have indicated, I set out the following material in this section as it appears from the appellant’s affidavit of 4 September 2006.
18 On or about 15 August 2005 the appellant received a traffic infringement notice pursuant to s 102 of the Road Traffic Act alleging the following:
"Offence [:] Contravene a red traffic control signal by proceeding beyond the stop line
Location [:] The intersection of Wellington Street and Havelock Street, West Perth
Offence Date [:] 01/07/2005 Time [:] 4:37 pm
Vehicle No [:] MH45982 Code [:] 2602."
19 On 19 August 2005 the appellant wrote to the Police Department denying the infringement and asking for "full particulars of the infringement including" the specified matters. These included "how it is alleged or contended that I was the driver of the vehicle", who was the owner of the vehicle, and "what specific conduct alleged on my part … constitutes breach of the infringement". I note that some of this information had in fact been supplied in the notice. However, some had not, most notably, the ownership of the vehicle MH45982. The appellant had written the letter as he was uncertain whether or not he was in West
(Page 9)
- Perth that day, as the vehicle was not his, and as he could not readily identify it "at that stage".
20 As a result of his letter, the appellant was telephoned by a police officer from the Infringement Management and Operations Section. In that call the police officer informed the appellant that the vehicle MH45982 was a hire car from Mandurah. The appellant informed the officer that he had in fact hired the vehicle for three days as his own car was being repaired, and the appellant had possession of the hire car on 1 July 2005, which as has been seen was the day of the offence to which the notice related. The officer asked the appellant if he was the driver of the vehicle, and the appellant replied he did not know, nor could he remember the circumstances. In his reply to the officer, the appellant added that if he admitted he was the driver "without the benefit of knowing the circumstances I would automatically be presumed that I had committed the alleged infringement". The officer informed the appellant that if he failed to confirm he was the driver of the vehicle the appellant would be charged with an offence under s 58 of the Road Traffic Act.
The grounds of appeal
21 The originally submitted grounds of appeal against conviction as amended were as follows:
"1. The appellant did not commit an offence under section 58 of the Road Traffic Act 1974 as the member of the police force requesting the information from the appellant was aware of and knew that the appellant was the hirer and in possession of motor vehicle registered number MH45982.
2. The appellant had admitted that he was the hirer and in possession of the vehicle.
3. The infringement notice issued to the appellant was out of time for its issue and hence the request for information may not have been required or was in any event improper.
4. The Police Department should have provided the appellant with particulars of the alleged traffic offence so that he could properly address and consider the allegations made against him.
(Page 10)
- 5. It would have been unfair and highly prejudicial to the appellant if he had to decide whether to plead guilty or otherwise to the alleged traffic offence if he did not fully know the particulars of and circumstances surrounding the offence alleged to have been committed by him.
6. That if the appellant admitted that he was the driver of the vehicle at the time of the alleged traffic offence he would have been automatically been taken to be guilty and this would have been against the principals [sic] of natural justice and fairness.
7. That the police should have at least provided the appellant with sufficient information to have been able to properly consider and decide whether he was guilty of the alleged traffic offence.
8. That in the circumstances the appellant was not guilty of any offence under section 58 of the Road Traffic Act.
9. The decision of the Magistrates Court was bad both in law and in fact.
10. The monetary penalty or fine imposed on the appellant was in all the circumstances excessive and not consistent with the offence of which the appellant was convicted.
11. That the presiding Justices of the Peace erred in law and in fact by imposing a monetary penalty or fine of $1,200 as the maximum fine for a first offence under section 58 the Road Traffic Act at the time of the alleged offence was then prescribed as $600."
22 It will be seen there is some repetition in these grounds, between ground 4 and 7. There is also some overlap, between most of the other grounds and ground 9.
23 In the event, the appellant addressed no argument to me as to ground 3. For the most part the appellant's oral submissions to me went to grounds 1 and 2, and grounds 4 to 7, read with ground 9.
24 There was no argument addressed to the matter of the application for leave to appeal against sentence. The respondent's written outline of submissions conceded ground 11. At the hearing I indicated leave to
(Page 11)
- appeal on grounds 10 and 11 would necessarily have had to have been given, and that appeal allowed. However, as I have determined the appeal against conviction should be allowed, it is not necessary to consider what order would then have been appropriate.
The grounds of appeal as they emerged at the hearing
25 At the hearing before me, it emerged that the basis of the appeal lay in the error as to the version of s 58 of the Act in force at the time of the offence to which I have previously referred. It was an error apparently made by counsel for the appellant at the trial as well as by the Justices.
26 That error meant that the appellant's plea of guilty was without a proper appreciation of the charge against him. It was not clear to me that, had the appellant had the benefit of that appreciation, his plea would have been the same. Had he pleaded not guilty, and the matter gone to trial, there might have been a different result, although I should add that I am not altogether convinced on that latter account.
27 However, as a consequence of these conclusions it seems to me that this is an exceptional case where the considerations I have described reveal a miscarriage of justice may have occurred.
28 I now explain those conclusions.
29 Road Traffic Act, s 58, as that section stood at the time of the offence, read:
"Any owner of a vehicle and any person to whom for the time being the possession or control of a vehicle may be entrusted shall, if required by a member of the Police Force, give any information which it is in his power to give, which may lead to the identification of any person who was driving or who was in charge or control of the vehicle when an offence under this Act, is alleged to have been committed.
Penalty: For a first offence, 12 PU.
For a subsequent offence, 24 PU."
30 Of significance to the application for leave to appeal is the following part of s 5(1a) of the Road Traffic Act:
"(1a) In provisions of this Act dealing with penalties for offences –
(Page 12)
- (a) these abbreviations are used:
PU for penalty unit or penalty units;
and
(b) a reference to a number of PU is a reference to an amount (in dollars) that is that number multiplied by 50."
31 I also note Sentencing Act 1995 (WA), s 9(2), which as at the date referred to was as follows:
"(2) If the statutory penalty for an offence is a fine of a particular amount or a particular term of imprisonment, then that penalty is the maximum penalty that may be imposed for that offence and, unless the statutory penalty –
(a) is a mandatory penalty; or
(b) includes a minimum penalty,
a lesser penalty of the same kind may be imposed."
"(1) A responsible person for a vehicle commits an offence if –
(a) an offence against any written law is alleged to have occurred of which the driving or being in charge of the vehicle is an element;
(b) a member of the Police Force requests the responsible person to give information which may lead to the identification of the driver or person in charge of the vehicle at the time of the alleged offence;
(c) the responsible person has, or could reasonably have ascertained, the information; and
(d) the responsible person fails to give the information.
- Penalty: For a first offence by an individual, 24 PU.
For a subsequent offence by an individual, 48 PU.
For an offence by a person other than an individual, 100 PU.
…
- (3) In subsections (1) and (2) –
responsible person includes a person to whom the possession or control of the vehicle was entrusted at the time of the alleged offence referred to in subsection (1)(a) or (2)(a), as the case may be."
33 I note that there was no material difference in the Road Traffic Act's provision as to the dollars indicated by "PU". There was in the later version an elaboration of the meaning of "responsible person", in s 5(1)(d)(i) which would had application in this case, although it would have not seem to have made a difference to the matters the case raised.
34 It will be seen that the later version uses a term, "responsible person", not used in the earlier version, although that version's corresponding language, for persons other than owners, of "person to whom for the time being the possession or control of a vehicle may be entrusted", would appear to be very similar if not a precise equivalent.
35 It will also be seen that the later version is concerned with the failure to supply information which may lead to the identification of the driver or person in charge of the vehicle (rather than the person driving or in charge or control)for the purposes of an offence of which driving or being in charge of a vehicle is an element, where the person requested to supply it "has, or could reasonably have ascertained, the information" (emphases supplied). The earlier version did not, it seems to me, clearly relate to offences of which the driving or being in charge or control of the vehicle was an element. Perhaps of greatest significance for this case, the earlier version was concerned with a failure to supply information which might lead to the identification of the driver or person in charge of the vehicle where the person requested to supply information which "it is in his power to give". It is not clear to me the two provisions have equivalent meanings in the last respect I have emphasised
(Page 14)
36 It should be noted that the prosecution notice in this case appears to have used language distinctive of both versions of the legislation, in the respects emphasised below:
"[The accused,] being the person responsible for a vehicle, registered number MH45982 when required by a member of the Western Australian Police Force to give information which it was in his power to give, which may have lead the identification of any person who was driving or in charge or control of the said vehicle when an offence under the Road Traffic Act is alleged to have been committed on Wellington Street, West Perth on 1st of July 2005 failed to give such information."
37 In this case, the appellant's grounds of appeal 1 and 2, and 4 to 7, went to matters, as he put them to me, of what he had the "power to give" in the circumstances. He had the "power" to give the information he was the hirer of the vehicle at the time of the offence, and thus "for the time being in possession or control of the vehicle", and in fact he supplied that information, at least in the sense of confirming he was the hirer of the vehicle. He did not have the "power" to give the information he was the driver at the relevant time because when asked for the information he did not have the particulars of the alleged offence he said he needed to confidently admit he was the driver. Indeed in his conversation with the officer on or about 27 August 2005 to which I referred earlier the appellant had explained to the officer the failure to supply information concerning whether or not he was the driver in terms of the lack of those particulars in those terms. His counsel in his plea in mitigation to the Justices referred to that "impasse" between the appellant and the officer (17 May 2006, TS 3).
38 I also note that both the appellant's counsel and the Justices appear to have proceeded on the basis of the later version of the legislation. This would appear from their shared assumption that the penalty for a first offence was $1200 (see TS 4). That was, of course, the maximum penalty on the later version of the legislation, but twice the maximum penalty under the earlier version.
39 However, it is not clear to me that the appellant was indeed in a stronger position under the earlier version of the legislation than under the later one. It is not clear to me that the information as to the appellant being the driver of the vehicle was more readily described as information he could "reasonably have ascertained" than information he had the "power to give". However, in view of the difference in the wording of the
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- two forms of the provision, the defendant might, in my view, have been advised, or himself have concluded, that he would press the argument under a plea of not guilty.
40 I appreciate that the appellant appears to have largely determined his position by reference to his wish to have the matter dealt with simply, through a plea of guilty on which he would seek to obtain a spent conviction order. His counsel's plea in mitigation was principally concerned with the matter of such an order. However, I am not convinced that the appellant might not have acted differently had he been properly advised or at least had the benefit of having before him the correct version of the legislation.
41 In view of this conclusion, I put aside the appellant's further contention before me that he had no further information to supply as he had already supplied one of the two categories of information in both provisions, being information as to who was in possession or control (or charge or control) of the vehicle. It seems to me that this matter was one in respect of which on the facts of this case the two versions of s 58 did not materially differ. This is apart from the question of the soundness or otherwise of the argument. However, I do not need to reach a final conclusion on either aspect of the matter.
Conclusion and order
42 It follows that I would, as I have indicated, extend the time for an application for leave to appeal against both conviction and sentence, grant leave to appeal against both, and allow the appeal against conviction.
43 I have also concluded that the appropriate order is to quash the conviction and remit the matter for trial before a Magistrate. The appellant put to me that I should simply quash the conviction, by which I understood him to mean that I should also dismiss the prosecution, on the basis the prosecution notice was defective. I have already noted that the notice appears to have used at least some of the language of the version of a version of s 58 of the Road Traffic Act which was not that in force at the time of the offence. However, I do not consider that is a matter on which it is appropriate for me to rule. On a retrial of the prosecution, it would be appropriate for the court to consider any submissions the accused might make as to the form of the prosecution notice.
44 I will hear from the parties as to any further orders I should make, including any order as to costs.
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