Reynolds v Nonkovic - [2023] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   REYNOLDS -v- NONKOVIC [2023] WASC 326
CORAM:   FORRESTER J
HEARD:   ON THE PAPERS
DELIVERED          :   25 AUGUST 2023
FILE NO/S:   SJA 1009 of 2023
BETWEEN:   KELLAN JOHN REYNOLDS
Appellant
AND
ZELJANA NONKOVIC
Respondent

ON APPEAL FROM:
For File No:   SJA 1009 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D SCADDAN
File Number            :   AL 2416 – 2417 of 2022

Catchwords:

Criminal law - Single judge appeal - Application for leave to appeal against convictions and sentence - Whether magistrate erred in entering judgment of convictions pursuant to s 55 of the Criminal Procedure Act 2004 (WA)

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic (Vehicles) Regulations 2014 (WA)

Result:

Leave to appeal granted in relation to grounds 1, 3 and 6
Appeal allowed
Matter remitted

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Kelly v Fiander [2023] WASC 187
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

Introduction

On 5 January 2023, the appellant was convicted in his absence, pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CPA), of two offences (AL 2416/2022 and 2417/2022) alleging that, being a person in charge of a vehicle, he failed to ensure that each number plate issued for the vehicle by the Department of Transport was rigidly fixed to the vehicle and displayed in accordance with the Road Traffic (Vehicles) Regulations 2014 (WA). He was fined $200 on each offence and ordered to pay costs in the sum of $264.30.
On 1 February 2023, the appellant filed an appeal against his conviction.
The respondent conceded that the appeal should be allowed.
For the reasons which follow, I accept that the respondent's concession was properly made. The appeal will be allowed, the convictions and sentences set aside, and the matter remitted to the Magistrates Court to be heard according to law.

Background

On 5 January 2023, the two charges were called on in the Albany Magistrates Court. After the matter was called, the following exchange took place:[1]
[1] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 5 January 2023, 1.
HER HONOUR: All right. Remain standing, please. Are you Kellan Reynolds?
ACCUSED: No, ma'am. I'm Kellan John.
HER HONOUR: Well, if you're not Kellan Reynolds, then please leave the bar table.
ACCUSED: No, ma'am. I've issued service by way of notification to honourably- - -
HER HONOUR: If you are not Kellan Reynolds- - -
ACCUSED: - - - attend here for the prosecution notice, ma'am.
HER HONOUR: - - - you are not recognised as an accused in this matter . Please leave the bar table.
ACCUSED: No. I'm here to honourably serve the - - -
HER HONOUR: I will be asking the court staff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reynolds v Nonkovic

Details

AGLC: Reynolds v Nonkovic [2023] WASC 326
Case: [2023] WASC 326
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Kellan John Reynolds, the appellant, appealed against his convictions and sentence for two offences related to failing to ensure vehicle number plates were rigidly fixed and displayed in accordance with regulations. The appellant was convicted in his absence under section 55 of the Criminal Procedure Act 2004 (WA), which allows for the hearing and determination of charges in the accused's absence under certain conditions. The primary legal issues revolved around whether the magistrate correctly applied section 55 and whether the appellant had 'appeared' before the court as required by the statute.

The court examined the interaction between the appellant and the magistrate, noting the appellant's refusal to acknowledge his name as stated in the prosecution notice. Despite this refusal, the court found that the appellant's physical presence in the courtroom constituted an 'appearance' for the purposes of section 55. The reasoning drew on the decision in Kelly v Fiander, which established that 'appearance' is determined by the presence of the person before the court, regardless of their acknowledgment of the name on the prosecution notice. The magistrate's decision to remove the appellant and proceed in his absence was thus erroneous, as it failed to properly ascertain whether the appellant was the person named in the prosecution notice.

As a result, the court granted leave to appeal on grounds 1, 3, and 6, which challenged the application of section 55. The appeal was allowed, the convictions and sentences set aside, and the matter was remitted to the Magistrates Court for rehearing. The court's decision highlighted the importance of ensuring that the accused is indeed the person named in the prosecution notice before proceeding under section 55, emphasizing procedural fairness and the correct application of the law.

Orders