Swift v Rogers - [2020] WASC 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SWIFT -v- ROGERS [2020] WASC 20
CORAM:   TOTTLE J
HEARD:   16 JANUARY 2020
DELIVERED          :   4 FEBRUARY 2020
FILE NO/S:   SJA 1082 of 2019
BETWEEN:   RICHARD RONALD SWIFT
Appellant
AND
PETER EDWARD ROGERS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E CAMPIONE
File Number             :   PE 43201 of 2018, PE 43202 of 2018, PE 43203 of 2018, PE 43204 of 2018

Catchwords:

Criminal law - Appeal against conviction - Procedural fairness - Whether magistrate denied appellant right to object - Whether magistrate provided impermissible assistance to prosecution - Practical fairness - Appeal dismissed

Criminal law - Criminal procedure - Validity of prosecution notice - Whether electronically generated prosecution notice did not bear signature of prosecutor - Prosecution not invalidated

Legislation:

Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA)
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2)
Criminal Procedure Act 2004 (WA), s 23, s 24, s 172(3)(a)(i)
Criminal Procedure Regulations 2005 (WA), reg 8
Legal Profession Act 2008 (WA), s 12(2)
Magistrates Court (General) Rules 2005 (WA), r 46B(1)
Magistrates Court Act 2004 (WA), s 34(4)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal on all grounds refused.
Appeal dismissed.

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr S Pack

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Blenkinsop v Wilson [2019] WASC 77
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
O'Connell v The State of Western Australia [2012] WASCA 96
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sprlyan v Wyborn [2019] WASC 227

TOTTLE J:

Introduction

On 23 May 2019 the appellant was convicted of four road traffic offences following a trial in the Magistrates Court. The appellant seeks leave to appeal against those convictions.
The offences were committed on 17 August 2018 and were as follows:
(a)failure to comply with the requirement of a member of the Western Australian Police Force to provide a sample of his breath for a preliminary test contrary to s 67A(1) of the Road Traffic Act 1974 (WA) (RTA);
(b)failure to comply with the requirements of a member of the Western Australian Police Force to provide a sample of his breath for analysis contrary to s 67(2)(a) of the RTA;
(c)failure to comply with the direction of a police officer to provide any or all his personal details, contrary to s 32(4)(a) of the Road Traffic (Administration) Act 2008 (WA);
(d)driving a motor vehicle, on a road, whilst not being a person authorised by Pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended, contrary…

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 Swift v Rogers

Details

AGLC: Swift v Rogers [2020] WASC 20
Case: [2020] WASC 20
Decision Date: 4 FEBRUARY 2020

CaseChat Overview and Summary

In the case of Swift v Rogers, the appellant, Swift, sought an appeal against his conviction in the Magistrates’ Court. The appeal was centred on claims of procedural unfairness during his trial, specifically alleging that the magistrate did not allow him to object to questions posed by the prosecutor during the examination-in-chief of the prosecution witnesses and that the magistrate provided impermissible assistance to the prosecution. The appeal also contested the validity of a prosecution notice that was electronically generated and did not bear the prosecutor’s signature.

The central legal issues for the court to decide were whether the appellant was denied a fair trial due to the alleged procedural missteps by the magistrate and whether the electronically generated prosecution notice was valid. The court examined whether the appellant’s right to a fair trial was compromised by the magistrate’s actions and if the lack of a physical signature on the prosecution notice invalidated the prosecution.

The court found that while the appellant believed he was unable to object to questions during the examination-in-chief, this was a misunderstanding of the procedural explanation provided by the magistrate. The court held that the trial was conducted in a conventional manner and that there was no reasonable basis for objection to the prosecutor's questions. The court also ruled that the absence of a physical signature on the prosecution notice did not invalidate the prosecution, as it was an acceptable practice within the legal framework. The appeal was dismissed as it did not demonstrate any reasonable prospects of success regarding the procedural fairness or the validity of the prosecution notice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As referred to at [19] the magistrate was obliged to ensure that the appellant received a fair trial according to law. The essence of this ground of appeal is that there was a lack of procedural fairness as the appellant was under a misapprehension that he was unable to object to questions asked by prosecutor in the course of the examination-in-chief of the prosecution witnesses. As the respondent submitted, however, fairness is not an abstract concept; rather, it is essentially practical.[18][18] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]-[38] (Gleeson CJ). I accept that the appellant may have been under the misapprehension that he was not permitted to object to the prosecutor's questions in the course of the examination-in-chief of the first prosecution witness. This was a misunderstanding on his part of the explanation of the procedure that the magistrate had given in response to the appellant's 'objections' to things that had been said by her Honour and by the prosecutor. The misapprehension subsisted, however, only during the evidence-in-chief of the first prosecution witness. I have considered the questions asked by the prosecutor in the course of his examination of the first witness and the evidence given by that witness. The examination was conducted in an orthodox manner and there was no reasonable basis to object to the questions asked. Even though the appellant may have disagreed with the evidence elicited from the witness - or, to use his term, 'objected' to it - the evidence was admissible. It was evidence of facts that were uncomplicated. In his closing submissions the appellant developed arguments about the admissibility of the prosecution evidence, which were rejected by the magistrate, and which were unrelated to the complaint raised by this ground of appeal. I am comfortably satisfied that no practical unfairness was suffered by the appellant and that this ground of appeal has no reasonable prospects of success and I refuse leave to appeal in relation to it. During cross-examination of the first prosecution witness the appellant asked the witness whether he had seen an affidavit prepared by him that the appellant said he had posted to prosecution. The witness said he had not seen the affidavit and the appellant attempted to tender the affidavit. The magistrate rejected the tender. The transcript recorded the exchange between the magistrate and the appellant:[19][19] ts 109.HER HONOUR: Well, no. You're entitled to cross-examine, but you can't produce it as evidence.ACCUSED: In conclusion then? My closing statement, sorry.HER HONOUR: If there's something that's relevant in the affidavit, then you're entitled to question the officer about it. But it's - - - ACCUSED: This is my affidavit.HER HONOUR: Okay. I gathered that.ACCUSED: Sorry.HER HONOUR: But it's not the process that you just hand it up to me, and I accept it as evidence. That's not how it works, so.ACCUSED: That's what the prosecution did.HER HONOUR: Is there something in there that's relevant?ACCUSED: Yes. It hasn't been rebutted for a start. No one has actually wrote back, and said, 'This is - doesn't mean anything.' So my understanding of the law is a [sic] unrebutted affidavit stands a truth in commerce; an unrebutted affidavit stands as a truth in law; an unrebutted affidavit stands as a fact in judgments.HER HONOUR: These are criminal proceedings, not civil proceedings.ACCUSED: Okay.HER HONOUR: And there haven't been any directions given by the court - not that I'm familiar with it ever happening - for affidavits to be filed. So he said he hasn't seen it, so I think that's the end of it.