Stearman v Taylor
[2014] WASC 247
•15 JULY 2014
STEARMAN -v- TAYLOR [2014] WASC 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 247 | |
| Case No: | SJA:1134/2013 | 4 APRIL 2014 | |
| Coram: | CORBOY J | 15/07/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHILIP MICHAEL STEARMAN AMY JEAN TAYLOR |
Catchwords: | Criminal law Appeal against conviction Appellant claimed to be entitled to a trial by jury on a charge for a simple offence in a court of summary jurisdiction Leave to appeal refused as no reasonable prospects of success |
Legislation: | Commonwealth Constitution, s 80 Criminal Appeals Act 2004 (WA), s 9 Criminal Investigation (Identifying People) Act 2002 (WA), s 16(6) Criminal Procedure Act 2004 (WA), s 55, s 71 Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3)(c), s 53(2A) |
Case References: | CBFC Ltd v Chairtopoulos [2009] SASC 30 Essenberg v R [2002] QCA 4 Glew v Shire of Greenough [2006] WASCA 260 Glew v White [2012] WASC 100 Glew v White [2012] WASCA 138 Jackson v Western Australia Police [2014] WASC 72 Krysiak v McDonagh [2012] WASC 270 Lawrence v The King [1933] AC 699 R v Hallocoglu (1992) 29 NSWLR 67 R v Jones (1998) 72 SASR 281 R v Jones (No 2) [1972] 1 WLR 887; [1972] 2 All ER 731 R v O'Neill (2002) 81 SASR 359 Saad v Baron [2012] WASC 507 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Williamson v Hodgson [2010] WASC 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
AMY JEAN TAYLOR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : NO 332 of 2013, NO 333 of 2013, NO 334 of 2013
Catchwords:
Criminal law - Appeal against conviction - Appellant claimed to be entitled to a trial by jury on a charge for a simple offence in a court of summary jurisdiction - Leave to appeal refused as no reasonable prospects of success
Legislation:
Commonwealth Constitution, s 80
Criminal Appeals Act 2004 (WA), s 9
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(6)
Criminal Procedure Act 2004 (WA), s 55, s 71
Road Traffic Act1974 (WA), s 49(1)(a), s 49(3)(c), s 53(2A)
Result:
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J Berson
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
CBFC Ltd v Chairtopoulos [2009] SASC 30
Essenberg v R [2002] QCA 4
Glew v Shire of Greenough [2006] WASCA 260
Glew v White [2012] WASC 100
Glew v White [2012] WASCA 138
Jackson v Western Australia Police [2014] WASC 72
Krysiak v McDonagh [2012] WASC 270
Lawrence v The King [1933] AC 699
R v Hallocoglu (1992) 29 NSWLR 67
R v Jones (1998) 72 SASR 281
R v Jones (No 2) [1972] 1 WLR 887; [1972] 2 All ER 731
R v O'Neill (2002) 81 SASR 359
Saad v Baron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Williamson v Hodgson [2010] WASC 95
- CORBOY J:
The appeal and the result
1 The appellant was charged with three offences. It was alleged that on 2 February 2013 he:
(a) refused to stop a vehicle that he was driving when called upon to do so by a member of the police force, contrary to s 53(2A) of the Road Traffic Act 1974 (WA);
(b) drove a vehicle whilst not being a person authorised by pt IVA of the Road Traffic Act and being a person whose authority to drive was suspended, contrary to s 49(1)(a) and s 49(3)(c) of the Road Traffic Act;
(c) refused to supply his personal details when requested by a police officer to do so, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA).
2 The trial of those charges was listed to be heard on 5 September 2013 by a magistrate sitting in the Magistrates Court at Northam. The appellant appeared in person on that day. He claimed that he was entitled to be tried before a jury and, in effect, applied for a date to be fixed for a trial by jury. The magistrate refused that application, stating that the appellant had been charged with simple offences under State law.
3 There then followed a vigorous exchange between the appellant and the magistrate in which the appellant maintained that he was entitled to a trial by jury under s 80 of the Constitution and the magistrate endeavoured to explain the procedure for conducting a trial in the Magistrates Court. The exchange culminated in the appellant leaving the court, claiming that the magistrate was acting unlawfully.
4 The magistrate initially sought to prevent the appellant from leaving the courtroom, but eventually he advised the prosecutor to allow the appellant to depart. The magistrate indicated that he would proceed with the prosecution under s 55 of the Criminal Procedure Act 2004 (WA) (CPA), hesitated and then invited the prosecutor to call evidence so as to hear and determine the charges. The prosecutor called Ms Taylor and the appellant was convicted on each charge. He was fined, disqualified from driving for a period of 9 months and ordered to pay the costs of the prosecution.
5 The appellant applied under s 71 CPA to set aside the decisions of the magistrate. The ground for the application was that the appellant had been denied a trial by jury under s 80 of the Constitution.
6 The application was heard by on 4 November 2013 by the same magistrate who had convicted the appellant. Again, there was a vigorous exchange between the appellant and the magistrate in which the appellant contended that he had been entitled to a trial by jury under s 80 of the Constitution. The magistrate refused the application.
7 The appellant commenced an appeal from his conviction by a notice dated 21 November 2013. The notice stated that the date of the decision the subject of the appeal was 4 November 2013. The respondent contended that the decisions from which the appellant sought to appeal were made by the magistrate on 5 September 2013 when he recorded a conviction on each charge (the notice of appeal stating that the appellant applied for leave to appeal against his conviction). Accordingly, the respondent contended that the appellant required leave to appeal out of time.
8 The appellant proposed three grounds of appeal by his notice of appeal:
(a) the Magistrate was wrong in law and fact when he refused me a trial by Jury under s 80 of the Commonwealth Constitution 1901 therefore committing a Tort against me;
(b) the Magistrate was wrong in law and fact when he refused me a trial by Jury under the provisions of Magna Carta, also committing a Tort against me;
(c) the Magistrate was wrong in law and fact when he entered a plea for me and dealt with the offences in summary jurisdiction against my will, therefore placing me into peonage and committing a Tort against me.
9 The appellant focused in his oral submissions in the appeal on what he contended was his right to a trial by jury under s 80 of the Constitution. Indeed, the appellant stated at a directions hearing in the appeal that he had only attended to enable the court to fix the date for his trial by jury. That hearing had been convened to raise with the parties whether it was arguable that the magistrate had erred by:
(a) proceeding to record convictions under s 55 CPA in circumstances where the appellant had initially attended the court and appeared on 5 September 2013; and/or
(b) failing to give the appellant a proper opportunity to be heard on his application under s 71 CPA.
10 Section 9 of the Criminal Appeals Act 2004 (WA) provides that the leave of the court is required for each proposed ground of an appeal. The court must not grant leave unless it is satisfied that the proposed ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court of Appeal stated:
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 [56].
11 Leave for the appellant to appeal on each of his proposed grounds of appeal should be refused applying that test. None of the proposed grounds of appeal have a reasonable prospect of succeeding for the reasons that follow. It is not necessary to determine whether the appellant requires leave to commence his appeal out of time.
Proposed ground of appeal 1 - Section 80 of the Constitution
12 Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. The offences with which the appellant was charged were neither indictable nor were they offences against any law of the Commonwealth; they were offences created by State legislation. As Hall J observed in dismissing an identical proposed ground of appeal in Glew v White [2012] WASC 100:
The offences to which s 80 relates are those created by laws made by the Federal parliament pursuant to its legislative powers which have derived from the Constitution: Spratt v Hermes (1965) 114 CLR 226, 244 (Barwick CJ). The offences in this case were not Commonwealth offences but State offences. Section 80 has no application to State offences: Birch v The Queen (1994) 12 WAR 292; Williamson v Hodgson [2010] WASC 95 [12].
13 The appellant did not have any entitlement to a trial by jury pursuant to s 80 of the Constitution and the magistrate did not err as alleged by the appellant (and see Glew v White [2012] WASCA 138).
Proposed ground of appeal 2 - Magna Carta
14 Commissioner Sleight dealt with a submission that a magistrate had erred in refusing an application for trial by jury under Magna Carta in Jackson v Western Australia Police [2014] WASC 72. As his Honour observed (at [19 - 21]):
The Magna Carta comprised of 37 statutes. For the purposes of this matter the relevant provision is chapter … 29. It provides as follows:
'No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.'
The statutes of the Parliament of the United Kingdom of general application in force on 1 June 1829 were inherited into the law of Western Australia if they were suitable for local conditions: Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345, 356 (Griffith CJ); Rogers v Squire (1978) 23 ALR 111, 116. On this basis it appears the Magna Carta became a part of the law of Western Australia but it was not a statute that had paramount force. This means that statutes of Western Australia operate to repeal provisions of the Magna Carta either expressly or impliedly to the extent that the statutes are inconsistent with or repugnant to the provisions of the Magna Carta: Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649, 653; Vincent v Ah Yeng (1906) 8 WALR 145; Shaw v The State of Western Australia Attorney General Mr Jim McGinty [2004] WASC 144.
The Criminal Code sets out a code of offences and how they are to be dealt with, either by indictment or summarily. That code clearly covers the field and either expressly or impliedly repeals any provision of the Magna Carta which may be interpreted as giving a right of trial by jury. Using the language of Griffith CJ in Chia Gee v Martin the contention that a law is invalid because it is not in conformity with the Magna Carta is not one for 'serious refutation'.
15 The observation of McPherson JA in Essenberg v R [2002] QCA 4 is to the same effect - although it also addresses in passing the misconception that was embodied in the appellant's proposed ground of appeal:
I suppose it will help no one to be told that as a matter of history Magna Carta did not guarantee trial by jury because, at the time Magna Carta was introduced, there was no such thing as a jury. But that is history, and is really, in a sense, beside the point. The simple fact is that it is enough to say here that the legislatures of the Australian States … have complete power to repeal Magna Carta or to amend it, either expressly or by passing legislation … that is or may be inconsistent with it.
16 Section 3 CPA defines offences as being either indictable or simple offences. The section further defines a simple offence as an offence that is not an indictable offence and an indictable offence as a 'crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily'. The reference to dealing with an indictable offence summarily is to an 'either way' offence. Section 3 CPA provides that an 'either way charge' is an 'indictable charge' (that is, a charge of an indictable offence) that 'by virtue of the Criminal Code section 5, or another written law, may be tried either on indictment or summarily'.
17 The offences created by s 53(2A) and s 49(1)(a) of the Road Traffic Act and s 16(6) of the Criminal Investigation (Identifying People) Act are not specified to be crimes or described as indictable offences. Consequently, they are simple offences.
18 The procedure that applies when an accused person is charged in a court of summary jurisdiction with a simple offence is specified by div 5 and 6 of pt 3 CPA. The procedure provides for a trial by the court not by a jury. The Magistrates Court is, of course, a court of summary jurisdiction: see the definition of a court of summary jurisdiction in s 5 of the Interpretation Act 1984 (WA). See also, Williamson v Hodgson [2010] WASC 95 [15] (Mazza J).
19 Accordingly, State Parliament has expressly repealed Magna Carta to the extent, if at all, that it provides for trial by jury.
Proposed ground of appeal 3
20 Section 55 CPA applies if, on a court date for a charge, the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge. In those circumstances, the court may adjourn the charge or hear and determine the charge in the accused's absence if the court is satisfied that the accused has been served with the prosecution notice containing the charge and a court hearing notice. Section 55(4) provides that the court may take as proved any allegation in the prosecution notice containing the charge if it proceeds in the accused's absence. Further, s 55(5) provides that where the accused is convicted in his or her absence, the prosecutor must state aloud to the court the material facts of the charge and, in the absence of evidence to the contrary, the court must take as proved any facts so stated for the purpose of sentencing.
21 Accordingly, s 55 permits a magistrate to 'hear and determine' a charge in the absence of the accused. The section contains provisions that facilitate proof of matters relevant to the hearing and determination of the charge. However, it was open to the magistrate to require the prosecutor to adduce evidence to prove the charges alleged against the appellant even if he chose to proceed under s 55 CPA (and see later in these reasons).
22 It is to be noted that s 55(1) refers to the failure by an accused person to 'appear' on a court date for a charge. In CBFC Ltd v Chairtopoulos [2009] SASC 30, White J observed [19]:
In the context of r 75.14 it is clear enough that parties may 'appear' in the relevant sense either in person or by counsel. That is to say, there are two means by which a party may appear. However, whichever means is used, parties 'appear' in the requisite sense only if they present themselves for the trial. Parties who are present in the body of the courtroom when the action is called on for trial but who do not announce themselves, in person or by counsel, do not 'appear' in the sense required by r 75.14. Nor do parties who present at the bar table (in person or by counsel) but only for the purposes of seeking an adjournment of the trial. Such persons do not 'appear' before the court for the trial.
23 Those observations were cited with approval by EM Heenan J in Krysiak v McDonagh [2012] WASC 270. His Honour considered in that case the circumstances in which a magistrate may proceed under s 55 CPA where an accused person attends on a court date but refuses to cooperate with the orderly and efficient conduct of a trial.
24 The meaning of the word 'appear' when used in s 55 CPA was also considered in detail by Beech J in Saad v Baron [2012] WASC 507. His Honour was concerned with whether s 55 CPA could apply when an accused person appeared by counsel. However, his Honour considered that the interpretation of s 55 that he favoured was consistent with the observations of White J in CBFC - see at [75] - [76].
25 It was open in this instance to the magistrate to proceed under s 55 CPA once the appellant had stated that he intended to leave the courtroom following the magistrate's refusal to fix a date for a trial by jury. The exchange between the magistrate and the appellant made it clear that the magistrate intended to proceed in the absence of the appellant if he chose to leave the court.
26 However, as previously noted, the magistrate hesitated after stating that he would proceed under s 55 CPA. He then said to the prosecutor:
Actually no. We won't go that way. Put your witness on the stand.
27 Accordingly, it appears that the magistrate decided that it was not appropriate to hear and determine the charges under s 55 CPA; he required the prosecutor to adduce evidence to prove the charges rather than rely on the facilitative provisions of s 55(4). As the respondent accepted, a trial was then conducted pursuant to s 65 CPA. It was in those circumstances that the additional issues were raised at the directions hearing for consideration in this appeal.
28 It should be noted that the appellant made no submissions about the fact that the magistrate proceeded to conduct a trial in his absence. He did not contend that he had been denied natural justice notwithstanding that the issue had been expressly raised in the directions hearing. His complaint was that he had been denied a trial by jury, not that the magistrate had proceeded in his absence. So far as the appellant was concerned, the magistrate had no jurisdiction to hear and determine the charges once the appellant had asserted what he regarded as being his entitlement to a trial by jury.
29 In my view, the magistrate was entitled to proceed to hear and determine the charges once the appellant had left the courtroom. On one view, he retained the power to convict the appellant conferred by s 55 CPA notwithstanding that he had apparently eschewed relying on that section. The power conferred by s 55 is to hear and determine a charge if the prescribed jurisdictional pre-conditions have been satisfied. Section 55(4) is facilitative - the court 'may' take as proved any allegation in the prosecution notice containing the charge. Section 55 does not preclude the court requiring proof of the charge by other means - most obviously, by requiring that the prosecutor present evidence.
30 However, it is not necessary to further determine this issue as it was, in any event, within the power of the magistrate to proceed with the trial of the charges once the appellant had voluntarily left the court. As Beech J explained in Saad, the CPA does not compel an accused person to be present in court when a charge of a simple offence is heard and determined. That reflects the position at common law where a distinction was drawn between the trial of misdemeanours (for which the accused was not required to be present) and the trial of a felony (for which the accused was required to be present): Lawrence v The King [1933] AC 699; see also the discussion in the judgment of Hunt CJ in R v Hallocoglu (1992) 29 NSWLR 67. Even in the case of felonies, there is a line of authority suggesting that a trial judge had a discretion to proceed with the trial where the accused was voluntarily absent: R v Jones(No 2) [1972] 1 WLR 887; [1972] 2 All ER 731.
31 In R v Jones (1998) 72 SASR 281 and R v O'Neill (2002) 81 SASR 359, the South Australian Court of Criminal Appeal and the Full Court of the Supreme Court of South Australia held that a presiding judicial officer had a discretion to proceed with a trial in the absence of the accused regardless of the seriousness and classification of the charged offence. An accused person may waive their right to be present and give evidence at their trial. As Martin J observed in O'Neill, there are sound policy reasons why an accused person should be bound by a deliberate decision to be absent from their trial, subject to the ultimate consideration that a substantial miscarriage of justice cannot be allowed to stand [46]. In my view, there was no substantial injustice caused by the magistrate proceeding in the absence of the appellant, having regard to the circumstances in which he chose to leave the court and the evidence that was subsequently presented by the prosecutor.
32 An issue concerning the conduct of the application made by the appellant under s 71 CPA was raised at the directions hearing. The sole ground relied on by the appellant in the application was his assertion that he was entitled to a trial by jury. The exchange between the appellant and the magistrate on that point was short and sharp but, in my view, the conduct of the application was not unjust to the appellant having regard to the fact that he was solely concerned with his claimed entitlement to a trial by jury.
33 Finally, no notice was issued pursuant to s 78B of the Judiciary Act 1903 (Cth) either prior to the hearing before the magistrate or in this appeal. However, no notice was necessary for the reasons explained by EM Heenan J in Krysiak; see also Glew v Shire of Greenough [2006] WASCA 260 [28].
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