JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : FITAS -v- CITY OF VINCENT [2015] WASC 329 CORAM : PRITCHARD J HEARD : 14 AUGUST 2015 DELIVERED : 14 AUGUST 2015 FILE NO/S : SJA 1102 of 2014 BETWEEN : SACHA FITAS Applicant
AND
CITY OF VINCENT
Respondent
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE P HOGAN
File No : PE 83076 of 2014
Catchwords:
Criminal law - Appeal against conviction - Leave to appeal - Failure to display a parking permit - Whether Magistrate erred in fact - Whether Magistrate erred in law - Whether reasonable prospect of success - Leave to appeal refused
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 10(3)
Criminal Code (WA), s 24 Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Cases referred to in judgment:Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493PRITCHARD J: (This judgment was delivered extemporaneously on 14 August 2015 and has been edited from the transcript.)
1 This is a hearing of an application by Mr Fitas for leave to appeal against the decision of Magistrate Hogan on 4 September 2014 to convict him of an offence contrary to cl 7.9 of the City of Vincent Parking and Parking Facilities Local Law 2007, namely for parking without displaying a valid permit. 2 In order to appeal against the decision, Mr Fitas requires leave to appeal: see s 9(1) of the Criminal Appeals Act 2004 (WA) (the Act). The Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
3 The grounds of appeal relied upon by Mr Fitas were set out in his Appeal Notice filed 31 December 2014. During the course of the hearing, I gave Mr Fitas leave to amend his Appeal Notice to substitute for the grounds in that notice, the following grounds of appeal:
4 For the reasons outlined below, I am not persuaded that there is a reasonable prospect of success on either of those grounds of appeal. Consequently, the appeal is dismissed. 5 For completeness, I note that it appears that the Appeal Notice was filed out of time, in that the decision the subject of the appeal was made on 4 September 2014 and the Appeal Notice was filed in the Court on 31 December 2014. The Act requires that an appeal be commenced within 28 days unless the Supreme Court orders otherwise.1 It is not necessary to consider the question of an extension of time to commence the appeal in this case given my conclusion in relation to the grant of leave in respect of the grounds of appeal, which will have the result that the appeal will be dismissed.
The factual background
6 At the trial before the learned Magistrate, evidence was given by a ranger employed by the City of Vincent that, on 13 April 2012 at 7.42 pm, he observed a vehicle parked on Wade Street in Perth. The evidence of the ranger was that, at that time, Wade Street in Perth was a restricted parking area and that there were signs on Wade Street indicating that parking on Wade Street was prohibited between the hours of 2.00 pm to 11.00 pm on Friday 13 April 2012, for the purposes of an event which was being held at the nearby NIB Stadium.
7 The ranger gave evidence that there was a parking sign located approximately 40 m in front of the location of the vehicle, and that there was also a smaller sign indicating a permit parking zone which was located approximately level with the vehicle. The ranger also gave evidence that, in addition to the parking signage in Wade Street itself, there was located at each entrance into Wade Street (from Bulwer Street and Ruth Street), large signage indicating parking restrictions. The ranger gave evidence that these two signs both read:
Parking zone, no parking, road or verge, from 2 pm to 11 pm, designated date Friday, 13 April 2012.2
8 The evidence of the ranger was that he inspected the vehicle in question and observed that there was no parking permit displayed in or upon it. There was no other indication that the vehicle had broken down: the tailpipe was cold and the tyres were inflated. The ranger issued a parking infringement notice in respect of that particular vehicle, addressed to the owner of the vehicle, and left it with the vehicle. 9 Other evidence led at the trial established that the vehicle in question was registered to Mr Fitas.
10 At the trial, Mr Fitas did not dispute that he parked his car on Wade Street and that he received a parking ticket. The issue which emerged on his evidence was that he was confused by the parking sign that he saw nearby to where he parked his vehicle. He said that he thought that the parking sign indicated that a permit parking zone applied only until 5.30 pm and that, as a result of the fact that it was 7.42 pm at night, it was permissible to park there without a permit.
11 In evidence was a photo of the signpost in question. The signpost in fact bore two parking signs. At the top, there was a sign indicating 'Town of Vincent, 2P, 8.00 am to 5.30 pm, Monday to Friday', and there was an arrow at the bottom of the sign pointing in both directions. Immediately underneath that sign was a further sign which said 'Permit parking zone, see permit zone signs'. It was Mr Fitas' evidence that these signs led him to believe that he was entitled to park without a permit after 5.30 pm.
12 When he cross-examined the ranger at the trial, Mr Fitas suggested to the ranger that the signage was inadequate. Mr Fitas referred to what he said was a sign that had replaced the original sign some time after the date of the offence. The photograph of the parking sign that the ranger was shown in cross-examination by Mr Fitas certainly made clearer the fact that parking was not permitted on various specified dates at all, but that permit holders were excepted. In respect of other times, outside the specified dates, a further parking sign specified the position with respect to parking. Unfortunately, the evidence given by the ranger in relation to that matter was a little unclear. The ranger said he was not able to confirm that a new sign had actually replaced the sign that was in place when the parking ticket was issued in relation to Mr Fitas' car.
13 Mr Fitas was also cross-examined as to whether he had walked down the street to see any other signage applicable in relation to the parking permit zone, and he indicated that he did not do so. In his view, there should have been an additional sign stating that there was another sign further along the road.
14 Mr Fitas was also cross-examined about the location of other signs in the vicinity and whether he made attempts to see those other signs. It was put to him that
[i]f [he] had walked to the front of [his] vehicle [he] would have observed the large sign which relates to no parking [on the] verge on that designated date between the hours of 2 pm and 11 pm.3
15 And Mr Fitas answered:
I don't think so. I don't think so, because I went back to the second picture. There was no sign whatsoever at the end of the cul-de-sac. No, not even one single sign. So I don't quite – I dispute that, I don't quite agree.4
16 It was put to him again that, if he had walked 40 m in front of his vehicle, he would have seen another sign at the end of a nearby cul-de-sac. He denied the existence of any such sign. 17 The only specific evidence in relation to signs at the entrance to Wade Street from Bulwer Street and Ruth Street was the evidence given by the ranger, to which I have already referred, which was to the effect that, at each entrance to Wade Street, there was a large sign indicating the parking restrictions, and permit requirements, on designated dates, including the day in question.
The reasons for decision of the learned Magistrate
18 In her reasons for decision, the learned Magistrate accepted the evidence of the ranger as to the existence of the parking signs at the entrances to Wade Street from Bulwer Street and from Ruth Street, and as to the signs on Wade Street itself, including the sign adjacent to Mr Fitas' vehicle. As I have said, the fact that Mr Fitas' car was parked on Wade Street at the time, and the fact that he had been issued with a parking infringement, were not in dispute.
19 The learned Magistrate then turned to consider Mr Fitas' evidence as to the sign and his beliefs about it. Her Honour observed:
Mr Fitas explained that he saw 5.30, this was about 7.30-ish, a bit later, so he thought I'm fine and he assumed that the permit parking zone sign applied to the 8 until 5.30 pm period. He said there was nothing to direct him to go looking for, or to explain where the permit zone signs were. Subsequent to being given the ticket, which he found under his windscreen shortly after having left the vehicle ... he was very confused.
Her Honour then went on to observe that the evidence established that there had been a change in the signage used by the Town of Vincent to make clearer the parking requirements when special events were being held.
20 The Magistrate then said:
So I accept Mr Fitas' evidence that he was confused by this sign ... and as a result of his confusion, mistakenly believed that he was fine to park there, given that it was after 5.30 pm, and I accept that that was an honest mistake. Now, the question then is whether it was a reasonable mistake, because that's what the law requires, that the mistake has to have been one that was reasonably made. Now, as drivers of vehicles, we are required to take notice of all road signs, whether it be a stop sign or a give way sign, whatever. The unchallenged evidence before the court is that at both entrances to Wade Street there was erected signs saying "Parking zone. No parking road or verge, 2 pm to 11 pm, designated date, Friday 13 April 2012". It seems to me that that's a very clear direction. There's no parking in that zone being entered being 2 pm and 11 pm.
I accept that Mr Fitas entered the street, he didn't see that sign, he saw exhibit 5, which I've already observed is - I accept that he was confused by it. It's not very clear. But there was an alert at the entry to the street, whichever entry he took, referring to the times, 2 pm to 11 pm, which I would have thought, if one looks at this objectively, that the person going into the street should have been alerted that there was no parking available in that street on that day between 2 pm and 11 pm.
And that the permit parking zone should have alerted the person to, if they wanted to park there, try and find out what the permit was, but really, Mr Fitas didn't have a permit and there was a sign at the entry stating, "No parking". So I'm not able to conclude that the honest mistake that was made was reasonably made, so for that reason I have found the charge proven.5
21 Mr Fitas was fined $85 and ordered to pay costs. He was also granted a spent conviction order.Ground 1: the learned Magistrate erred in fact in finding that the applicant entered Wade Street
22 There is no reasonable prospect of success in respect of this ground of appeal. The uncontested evidence of the ranger was that, located at each entrance into Wade Street from Bulwer Street and Ruth Street, was large signage indicating the relevant parking restrictions for the street.
23 Mr Fitas accepted that his car was parked on Wade Street. His argument appears to be that he only travelled a very small distance into Wade Street from Ruth Street from where he had come. But nevertheless, the evidence of the ranger clearly established that there were signs at each entrance to Wade Street and, quite clearly, the presence of Mr Fitas' car on Wade Street indicated that he had entered Wade Street having passed those signs.
24 There is no reasonable prospect of success in respect of this ground of appeal, and leave to appeal is refused.
Ground 2: the learned Magistrate erred in concluding that the applicant's belief was not reasonable
25 It seems to me to be arguable that the learned Magistrate erred insofar as she implicitly appears to have characterised the evidence given by Mr Fitas as establishing that he was operating under a mistaken belief as to a state of facts, or, alternatively, of mixed fact and law, which could give rise to a claim of honest and reasonable mistaken belief under s 24 of the Criminal Code (WA). It seems to me that the evidence given by Mr Fitas at trial could properly have been characterised as evidence that Mr Fitas was operating under the mistaken belief that he was permitted to park where he parked his car without a permit at the relevant time. That would constitute a mistake of law, in respect of which s 24 has no application. As McHugh J observed in Ostrowski v Palmer:6
[I]t is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law. Such beliefs are mistakes of law, not mistakes of fact.
26 Even proceeding for the moment on the basis that the mistake characterised by the learned Magistrate from Mr Fitas' evidence was a mistake as to the meaning of the parking sign in question, a mistake of that kind appears to me to be very close to being characterised as a mistake of law. 27 For present purposes, however, I will proceed on the assumption that Mr Fitas' mistaken belief could properly be characterised as a mistake of fact. Nevertheless, in my view, there is no reasonable prospect of success on the ground of appeal that the learned Magistrate erred in concluding that Mr Fitas' belief was not reasonable, having found herself to be satisfied that the belief was honestly held. Section 24 of the Criminal Code (WA) provides:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
28 The meaning of the requirement of reasonableness was considered by McLure JA (as her Honour was then) in Aubertin v The State of Western Australia.7 Her Honour said8 (with whom Roberts-Smith and Buss JJA agreed)9:
For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.
29 In her reasons for decision in relation to the question of the reasonableness of Mr Fitas' belief, the learned Magistrate made a reference to the evidence of the existence of the parking signs at the entrances to Wade Street. Her Honour considered those signs constituted a very clear direction that no parking was permitted without a permit in the requisite hours on the requisite day. Her Honour also referred to the permit parking zone sign to which I have already referred, which her Honour considered should have alerted an observer to try and find out what the applicable permit requirement was. 30 In the course of her reasons, her Honour made reference to looking at the question 'objectively'. As McLure JA observed in Aubertin, the requirement that the mistaken belief be reasonable imports a mixed (objective and subjective) standard. There was nothing in the evidence before the learned Magistrate to suggest that there were particular characteristics of Mr Fitas which should have been taken into account in considering the subjective aspect of that reasonableness question or which suggest that the learned Magistrate failed to properly apply that test of reasonableness.
31 In those circumstances, I am not persuaded that there is any reasonable prospect of success in respect of the second ground of appeal and leave to appeal on that ground is refused as well.
32 The consequence of the application for leave to appeal being refused on each ground is that the appeal will be dismissed as a matter of the operation of the Act. To avoid any confusion, I will make an express order to that effect.
Orders
1. The applicant has leave to amend the grounds of appeal so that they read:
2. Leave to appeal in respect of each of grounds 1 and 2 is refused. 3. The appeal is dismissed.
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1Criminal Appeals Act 2004 (WA) s 10(3).2 ts 11.3 ts 32.4 ts 32.5 ts 40.6Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [46].7Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87.8Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [43].9Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [1], [72].