Supreme Court of Western Australia
[2003] WASCA 128
•18 JUNE 2003
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | COLLINS -v- ILLICH [2003] WASCA 128 |
| CORAM | : BARKER J | ||
| HEARD | : 17 APRIL 2003 | ||
| DELIVERED | : 18 JUNE 2003 | ||
| FILE NO/S |
| ||
| BETWEEN | : RICHARD COLLINS |
Appellant
AND
PAUL STEPHEN ILLICH
Respondent
Catchwords:
Justices Act 1902 (WA) - Application for extension of time for appeal against conviction for speeding - Substantial delay - Whether exceptional circumstances or substantial miscarriage of justice - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 24
Justices Act 1902 (WA)
Road Traffic Act 1974 (WA), s 98A(1)(b), s 98A(2)
Road Traffic Code 1975, reg 1001(1)(a)
Supreme Court Rules 1971 (WA), O 65A r 2(b)
[2003] WASCA 128
Result:
Application for extension of time within which to apply for leave to appeal refused
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr C C Lomma |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Crown Solicitor |
Case(s) referred to in judgment(s):
Azaddin v The Queen (1999) 109 A Crim R 474
Heathcote v King [2002] WASCA 1
Lancaster v The Queen [1989] WAR 83
Mercer v Scantlebury, unreported, SCt of WA; Library No 980414; 27 July
1998
The Queen v McDonald [2000] WASCA 336
Case(s) also cited:
Browne v Dunn (1894) 6 R 67
[2003] WASCA 128
BARKER J
BARKER J:
Introduction
1 This is an application under the Justices Act 1902 (WA) for an extension of time to appeal against a Stipendiary Magistrate's decision. It is supported by an affidavit of the appellant sworn 18 March 2003.
Background
2 By application dated 20 March 2003, Richard Collins (the appellant)
seeks leave for an extension of time to appeal against a decision of Mr G N Calder SM made on 18 April 2001 convicting the appellant of driving a vehicle at a speed exceeding 60 kilometres per hour in a built-up area, namely Guildford Road, Bayswater, Western Australia, in contravention of reg 1001(1)(a) of the Road Traffic Code 1975 (WA) (which regulation was in effect at the time of the offence).
Regulation 1001(1)(a) provided, at the relevant time, that:
"(1) A person shall not drive a vehicle at a speed exceeding 110 kilometres per hour and shall not drive a vehicle, (a) in a built-up area, at a speed exceeding 60 kilometres per hour, except within a speed zone in which a higher speed is permitted."
4 The appellant was found guilty of exceeding the speed limit on
20 May 2000 by driving at 69 kilometres per hour in a 60 kilometre per hour zone. As a result of the conviction, the appellant was required to pay a fine of $25 with an additional $25 costs. By his affidavit sworn 18 March 2003, the appellant says he was "given an ultimatum to present matters to the court by Tuesday 4th March by the Fines Enforcement Department or else". Thus, on 20 March 2003, the appellant filed an application for an extension of time to appeal.
5 At the hearing before the learned Magistrate on 18 April 2001, the
appellant did not dispute that, at the material time and material location, he was travelling at a speed of 69 kilometres per hour. He conceded that in evidence. The learned Magistrate then considered two issues that the appellant raised in his defence. First, whether the material location was in fact a "built-up area" to which the provisions of the Road Traffic Code apply in respect of the speed limitation of 60 kilometres per hour. After considerable deliberation, evident from the transcript, the learned Magistrate concluded that the material location was in fact a built-up area.
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BARKER J
6 Secondly, the learned Magistrate identified a possible defence under
s 24 of the Criminal Code 1913 (WA), being that of an honest and reasonable but mistaken belief. On this issue, the learned Magistrate concluded that,
" although [the appellant] may have had a belief that the speed limit was 70 at the time, it wasn't a reasonably based belief and therefore a defence under s 24 has not been made out. I am satisfied that the defence has been excluded by the prosecution on the basis of the evidence presented to me … that any belief that he had wasn't a reasonably based belief."
7 In relation to this application, the first matter for consideration is
whether or not the appellant has adequate grounds for an extension of
time to appeal.
Reasons for an extension of time to appeal
The appellant seeks an extension of time to appeal and cites the following reasons in support of his application.
"(a) Having focal epilepsy it has been hard dealing with more
than daily matters anything more and things seem huge.(b) Recovering from a broken ankle. (c) Torn knee ligaments operated on at St John of God Hospital Mt Lawley. (d) Gall bladder operation. (e) "Server" [severe] flu with pneumonia. (f) Trying to deal with a course at Tuart College. (g) Shifting. (h) My mother needing to go home and see her friend and family whilst she was still able."
9 An application for leave to appeal shall, in accordance with
O 65A r2(b) of the Rules of the Supreme Court 1971 (WA), "be filed and served on the clerk of petty sessions within 21 days after the day on which the decision to which the application relates was given". On this application, the appellant is over 22 months out of time.
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10 The principles in respect of applications for an extension of time to
appeal are well established. Where the delay is substantial, as here, an extension of time will only be granted where exceptional circumstances are shown or where there has been a substantial miscarriage of justice which would remain uncorrected if the extension were not granted: Lancaster v The Queen [1989] WAR 83, at 85 per Malcolm CJ; Heathcote v King [2002] WASCA 1 at [30] per Roberts-Smith J; Mercer v Scantlebury, unreported, SCt of WA; Library No 980414; 27 July 1998 at [4] per Murray J.
In relation to a 45-month delay, Kennedy J said in Azaddin v The Queen (1999) 109 A Crim R 474 at 476 that:
"The delay in filing the application in this matter has been gross. Delays of this magnitude require a cogent explanation before the Court will be prepared to extend time. The longer the delay, the more exceptional the circumstances must be shown to have been before an extension will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension should not be granted."
Exceptional circumstances
12 In this case, the question remains whether or not the appellant's
circumstances are exceptional in light of the authorities. From the affidavit sworn 18 March 2003 and oral submissions by the appellant at the hearing, the appellant appears to have suffered serious medical problems. In his affidavit, the appellant states that:
"Most times it is difficult to handle day to day matters and plan beyond a daily basis, but in the last couple [of] years, I have been improving to some degree.
Owing to the fact of being somewhat intellectually handicapped dealing with focal epilepsy dyslectic [sic] and possible Attention Deficit Disorder as a result of numerous head injuries …
loss of sight in one eye and then more injuries later on in life …
These situations compounded the focal epilepsy which makes it very difficult to relate matters or handle day to day situation …"
In his affidavit, the appellant goes on to say that:
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"Matters have taken time owing to my difficulty in knowing how to address this situation, dealing with recovering from a severe broken ankle. Then just before the trial in this matter tearing the ligament in my right knee, which was operated on around the time of the cases hearing and ongoing matters since the hearing."
At the hearing, in an attempt to explain to the Court the time delay, the appellant said:
"I broke, my ankle in five places. I had a gall bladder operation. I tore my leg ligament. Everything was in hospital, different hospitals, and it was a rough three years actually …"
As to whether there was any particular explanation why he should not have filed an application to appeal within 21 days of 18 April 2001, the appellant told the Court:
"That was when I had the gall bladder problem and they rushed me into hospital not too long after, and then last year I tore the ligament in my knee and they operated; that was in February, so everything took a while to deal with. I had a bad enough time dealing with – because of being slightly handicapped dealing with focal epilepsy – dealing with weekly problems. It used to be day-to-day problems. Now I can handle them a bit better sort of thing."
However, Mr Collins conceded that he was not taken off to hospital or hospitalised during the 21-day period following 18 April 2001. In the particular circumstances of this application, this seems to me, to be an important factor. The appellant, perhaps in an attempt to qualify this concession, then commented that even though he was not actually hospitalised during this period:
"It's not like a gallstone that hits you all at once. You're feeling terrible for months and then when they find out what it is, then it culminates, and within 24 hours they had me in Royal Perth …"
15 Counsel for the respondent acknowledges that, "the appellant appears
to have suffered serious medical problems." However, counsel for the
respondent submits that:"The extent and timing of these problems is not specified by the appellant and it is not clear if there has been a period in the last
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22 months in which the appellant could have filed an application for leave to appeal. There is no explanation by the appellant as to why an application for leave to appeal was not commenced in the first 21 days from the date of Mr Calder SM's decision".
16 Given these circumstances and the significant delay in this matter,
counsel for the respondent submits that the appellant's medical problems should not be considered as exceptional circumstances. In addition, after considering par 2 of the appellant's affidavit which reads:
"As of last Thursday I was given an ultimatum to present matters to the court by Tuesday 4th March 2003 by the Fines Enforcement Department or else."
counsel for the respondent suggests that, "a compelling reason for the
filing of the applicant was a threat by the Fines Enforcement Registry".17 At the hearing of this matter, the appellant rejected the proposition
that the ultimatum from the Fines Enforcement Department was a
motivating factor in him filing the application dated 20 March 2003.18 Whether or not the "ultimatum" from the Fines Enforcement
Department was a motivating factor in the appellant filing the application, it is clear from the evidence before me that the appellant has suffered from various medical problems in recent years. Even so, there does not appear to me to be any "exceptional circumstance" that prevented the appellant from filing an application for leave to appeal within the specified 21-day period. As the appellant stated himself, he was not hospitalised during the relevant 21-day period. Therefore, I am of the view that, in these particular circumstances, the appellant's medical and other related problems are not exceptional circumstances and do not provide adequate grounds for an extension of time to appeal.
Miscarriage of justice
19 Given that the explanation for the delay in this case does not provide
an adequate basis for allowing an extension of time, the Court must consider whether there would be a miscarriage of justice if an extension of time were not granted: Lancaster v The Queen (supra) at 85 per Malcolm CJ. Furthermore, it must be a miscarriage so significant as to justify an exercise of the discretion to extend time by some 22 months so that it can be corrected: The Queen v McDonald [2000] WASCA 336 at
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[10] per Pidgeon, Wallwork and Parker JJ. It is necessary therefore to
look at the merits of the proposed appeal.
Proposed grounds of appeal
20 From the appellant's application and affidavit, it appears that
essentially the appellant has three grounds of appeal. In summary they are
that:
"(i)
the Learned Magistrate erred in dealing with the matter by acting without jurisdiction as the complaint was invalid;"
(ii)
the learned Magistrate erred in failing to consider the fact that other speed signs on the road had been replaced;
(iii)
the learned Magistrate erred in finding that the speed limit in the relevant area was 60 kilometres per hour.
First ground of appeal: Acting without jurisdiction as complaint invalid
21 The first ground of appeal is that the learned Magistrate erred in
dealing with the matter by acting without jurisdiction, as the complaint
was invalid. The particulars supplied in support of this ground are that:
"(i) [t]he learned Magistrate erred in that the camera operator did not have the authority to designate the area any less than a 70 kilometres per hour area; and (ii) the camera operator had not sought authority … to operate his camera in the specific spot."
At the hearing held on 18 April 2001, the camera operator, Mr Barry John Bryce, (page 3 of the transcript) stated:
"I'm a camera operator authorised by the commissioner of police to operate a multinova. I have got certificates to that effect. One of these certificates is for the multinova and the other one is for the stationary radar, the Falcon custom radar."
Section 98A(1)(b) of the Road Traffic Act 1974 (WA) provides that,
" … in this section – "authorised person" means – in relation to
speed measuring equipment –
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(i) a member of the Police Force; or
(ii) a person certified by the Commissioner of Police as being competent to use the equipment".
24 Section 98A(1) of the Road Traffic Act defines "speed measuring equipment" as "apparatus of a type approved by the Minister pursuant to subsection (2)" which provides that:
"The Minister may, from time to time, by notice published in the Government Gazette, approve of types of apparatus for ascertaining the speed at which a vehicle is moving and may, by notice so published, revoke any such approval."
25 At the hearing on 18 April 2001, the prosecutor tendered as exhibits
the certificates that confirmed that Mr Bryce is an "authorised person" in relation to speed measuring equipment in accordance with s 98A(1)(b)(ii) of the Road Traffic Act, as well as extracts from the Government Gazette which confirmed that the "speed measuring equipment" in use on 20 May 2000 was in accordance with s 98A(2) of the Road Traffic Act. The learned Magistrate explained the relevance of these exhibits (at page 4 of the transcript) to the appellant in these terms:
"Mr Collins, the reason the prosecutor wants to prove those is because he's going to be relying on a provision of the Traffic Act which says that if the minister approves speed measuring equipment then if there's evidence given of the use of that equipment in relation to a vehicle and of a speed having been obtained then that's prima facie evidence of those facts. Do you have any objection to those?"
26 The appellant told the Magistrate (at page 4 of the transcript) that he
had " no objection" to the documents being tendered as exhibits. In addition, as previously noted, the appellant did not dispute that, at the material time and material location, he was travelling at a speed of 69 kilometres per hour.
27 In this case, the evidence indicates that the camera operator had the
authority to operate the speed measuring equipment that was used on 20 May 2000. Whether or not he had specific authority to operate the camera in the material location is not immediately clear from the evidence. However, given that s 98A(6) of the Road Traffic Act provides that:
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"The Commissioner of Police may, either generally or as provided by the instrument of delegation, delegate to any person the performance of the Commissioner's functions under this section, other than this power of delegation"
I am prepared to accept that the camera operator had the authority of his line manager to operate the camera in the material location on 20 May 2000, and that his line manager had the authority, delegated by the Commissioner of Police, to approve the area where the camera operator used the speed measuring equipment.
28 With regard to the appellant's claim that the camera operator did not
have the authority to designate the area any less than a 70-kilometre per hour area, the camera operator gave the following evidence (page 6 of the transcript):
"The speed limit in that area was defined by the street lighting – regular street lighting and housing; defined as a built -up area. The speed zone in that area changes to a 70-kilometre zone approximately 1 kilometre past my location. This is defined by two speed signs displaying 70 kilometres per hour."
29 The appellant asked the camera operator (page 11 of the transcript),
"When you go to different areas who told you that was a 60 or 70 kilometre area". The camera operator responded, "Well, if it's a 70 kilometre area, then they have a 70 kilometre sign there".
30 The appellant asked the camera operator (page 14 of the transcript),
"Do you check speed signs that you're in a right area, that people have the right sort of warning before you get to your camera?" The camera operator responded:
"Yes, definitely. I always drive along that way on the approach to it and I drive away from it and I check where the 70 sign is because I know it's there – I make sure it hasn't changed – and then I go back in the direction I originally came from and make sure that no more signs have been placed there from the time I showed up."
31 In relation to this issue, counsel for the respondent submits that,
contrary to the appellant's claim, the camera operator did not designate the speed limit of any area. Rather, he gave evidence as to the speed limit in the relevant area. I accept this submission. I do not consider that this
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ground of appeal supports the appellant's claim that a miscarriage of
justice will occur if an extension of time is not granted.
Second ground of appeal: speed limit signs on the road replaced
32 The second ground of appeal is that the learned Magistrate erred in
failing to consider the fact that other speed signs on the road had been replaced. The particulars supplied in support of this ground are that the learned Magistrate:
" … erred in that knowing other signs had been replaced from King William Street to 1,000 metres before the sign in question, which was also missing … This in itself showed a deliberate miscarriage of justice. The sign was replaced on the 1st December 2002 when a lot of areas were down sized (speed reduced) most to 50km/hr others from 80km/hr to 70km/hr others from 70km/hr to 60km/hr."
33 Counsel for the respondent submits that this ground of appeal is
misconceived for two reasons. First, the learned Magistrate did consider the fact speed signs had been erected after the date of the offence. This is confirmed at page 35 of the transcript which reads:
"I accept that there is a 60 sign which has now been put up just past King Edward Road and before – probably before Slade Street, the Slade Street intersection but that wasn't up at the time. Again that's what Mr Bryce's evidence was."
34 Secondly, counsel for the respondent submits that the fact that speed
signs were erected after the date of the offence is irrelevant to determining what the speed limit was at the time of the offence, and even if it was relevant, the speed sign that was erected was a 60 kilometre per hour sign, which counsel for the respondent contends, is consistent with the finding of the learned Magistrate that this was the speed limit at the time of the offence.
35 I accept these submissions. From the evidence presented, I do not
consider that this is a ground of appeal that supports the appellant's claim that a miscarriage of justice will occur if an extension of time is not granted.
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Third ground of appeal: speed limit in the area 70 and not 60 kilometres per hour
36 This issue is not included as a ground of appeal on the appellant's
application dated 20 March 2003, but it is apparent from the appellant's affidavit and oral submissions on the hearing of the matter that he submits that the material location had a 70 kilometre per hour speed sign prior to the date of the offence which was removed after it was knocked down. The evidence of Mr Bryce (page 11 of the transcript) was:
"There's an absence of speed signs in that area and it was a built-up area. … Well, if it's a 70-kilometre area, then they have a 70 kilometre sign. This did not have a 70 kilometre sign there."
Similarly, the evidence of the appellant (page 19 of the transcript) was:
"[t]here are no speed signs here at all …"
and that there was no speed sign at the material location on the day of the offence. However, at page 21 of the transcript, the appellant also states that "there used to be a 70 kilometre speed sign here."
37 Counsel for the respondent submits that whether or not a there was a
70 kilometre per hour speed sign prior to the date of the offence, which was removed after it was knocked down, is irrelevant to the charge as the evidence that there was no speed sign on the day of the offence is not in dispute. Counsel for the respondent further submits that even if it is accepted that there had been a 70 kilometre per hour sign prior to the date of the offence, no miscarriage of justice results as the evidence suggests that if such a sign existed, it had not been present for a considerable period of time. This is supported by the appellant's evidence (page 32 of the transcript):
"People would not have been aware over the months of this sign being knocked down or whatever happened to it and as the other constable has said that he was aware of there having been a traffic blockade there where the guy sped off the side and had knocked down a few signs – I think it was 2 or 3 years ago. Nothing has been done to replace it."
38 Given that there was no speed sign present at the material location on
the day of the offence, the learned Magistrate, in accordance with the Road Traffic Code 1975, had to decide whether the material location was in fact a built-up area. As previously stated, the learned Magistrate
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concluded, after significant deliberation, that the material location was a
built-up area.39 Accordingly, in all of the circumstances, I do not consider that this
"ground of appeal" supports the appellant's claim that a miscarriage of
justice will occur if an extension of time is not granted.
It is unnecessary, in these circumstances, for the Court to deal with the respondent's other submissions.
Conclusion
41 For the reasons expressed above, there is insufficient merit in the
proposed grounds of appeal to justify the extension of time to appeal against the Magistrate's decision. The appellant has also failed to demonstrate there is likely to be a substantial miscarriage of justice which would remain uncorrected if his application for leave for an extension of time to appeal is not granted. Accordingly, the application for an extension of time to appeal is refused.
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