Tallot v Matier - [2012] WASC 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TALLOT -v- MATIER [2012] WASC 290

CORAM: HALL J

HEARD: 6 AUGUST 2012

DELIVERED : 6 AUGUST 2012

PUBLISHED : 13 AUGUST 2012

FILE NO/S: SJA 1047 of 2012

BETWEEN: AARON PETER TALLOT
Appellant
AND
CHRISTOPHER GRAEME MATIER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 16027 of 2012

Catchwords:

Criminal law - Obstructing a public officer - Indictable offence - Whether capable of being dealt with under s 55 Criminal Procedure Act 2004 (WA)

Legislation:

Criminal Procedure Act 2004 (WA), s 48, s 55, s 144

Result:

Appeal allowed
Conviction set aside
Remit to Magistrates Court for retrial

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr L M Fox

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

HALL J: This is an appeal against conviction. On 6 August 2012 I allowed the appeal and said that reasons for my decision would be published in due course.
The appellant was charged that on 11 March 2012 he had obstructed a public officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code (WA). The alleged facts are not relevant to this appeal. The matter at issue relates entirely to the procedure for dealing with the charge that was followed in the Magistrates Court.
On 30 March 2012 the charge was listed for mention in the Perth Magistrates Court. On that occasion the appellant appeared but declined to answer to his name. His reasons for doing so were nonsensical and need not be repeated. However, having failed to answer to his name, the prosecutor submitted that the matter could be dealt with pursuant to s 55 of the Criminal Procedure Act 2004 (WA) on the next occasion. This required that a notice be issued to the appellant. The matter was then adjourned to 13 April 2012.
On 13 April 2012 the appellant appeared but again declined to answer to his name and gave the same spurious reasons for doing so. The magistrate then told the appellant that if he would not answer to his name he should move away from the bar table and that the matter would proceed without him. Her Honour then purported to proceed under s 55 of the Criminal Procedure Act to hear and determine the charge. She found the appellant guilty and imposed a fine of $400.
Section 55 of the Criminal Procedure Act permits a Magistrates Court in certain circumstances to determine a charge and sentence an accused person in their absence. Section 55 provides as follows:
No appearance by accused and no plea of guilty
(1)This section 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, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused’s absence if the accused does not appear on that date, the court may -
(a)adjourn the charge; or
(b)hear and determine the charge in the accused’s absence.
[(3)deleted]
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused’s absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -
(a)must presume, in the absence of evidence to the contrary -
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused -
(a)the prosecutor must state aloud to the court the material facts of the charge;
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
Section 55 appears in pt 3 div 5 of the Criminal Procedure Act. Division 5 is entitled 'Procedure on charge of simple offence'. Section 48 of the Criminal Procedure Act provides that div 5 applies if an accused person is charged in a court of summary jurisdiction with a simple offence. Section 67 of the Interpretation Act 1984 (WA) provides that offences are of two kinds: indictable offences and simple offences. An offence designated as a crime or a misdemeanour is an indictable offence. An offence not otherwise designated is a simple offence.
The offence of obstructing a public officer is referred to in s 172(2) of the Criminal Code as a crime. That section provides as follows:
Obstructing public officers
(1)In this section -
obstruct includes to prevent, to hinder and to resist.
(2)A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer’s functions is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.
It is clear from this that the offence of obstructing a public officer under s 172 is an indictable offence, although it is capable of being dealt with summarily: s 40 Criminal Procedure Act, s 5 Criminal Code. It is not a simple offence and it cannot be dealt with under s 55 of the Criminal Procedure Act.
In those circumstances there was a clear error on the part of the magistrate. The magistrate's frustration with the appellant was entirely understandable, but the procedure that she adopted to deal with him was simply not open to her at law.
There can be circumstances where a court may order that proceedings in respect of an indictable offence can continue in the absence of the accused. An example of this is where an accused conducts him or herself in a manner that makes it impracticable to continue proceedings in his or her presence: s 140(1) Criminal Procedure Act. However, the magistrate was clearly not intending to exercise that power when she dealt with the matter on 13 April 2012.
Prior to the hearing of the appeal the respondent filed submission conceding that the magistrate had erred. The respondent submitted that it was an essential principle of the criminal law that in general the trial of an indictable offence be conducted in the presence of the accused person: Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 [26]. The respondent also noted that an accused has an entitlement to defend the charge and that this is expressly provided for by s 144 of the Criminal Procedure Act. The respondent submitted that the procedural irregularity that led to the appellant's conviction was such a departure from the essential requirements of the law that it went to the root of the proceedings. In these circumstances, the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) could have no application: Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ).
The concession by the respondent was properly made. The magistrate was clearly in error in proceeding under s 55 of the Criminal Procedure Act. By so proceeding the appellant was denied the opportunity of contesting the prosecution evidence, leading evidence of his own in his defence or making submissions on the evidence.
The significance of the error in relation to proceeding under s 55 was not confined to possible participation by the appellant in the proceedings. Section 55 also provides an aid to proof which would not otherwise have been available. That section allows a court to take as proved any allegation in the prosecution notice containing the charge that was served on the accused. It also allows the court to take as proved any fact stated to the court by the prosecutor as being the material facts of the charge. These aids to proof would not have been available if, as it should have been, the charge was dealt with as an indictable offence, even if dealt with summarily. Thus, even if there had been grounds for excluding the appellant under s 140 of the Criminal Procedure Act the error would nonetheless be material. In these circumstances, I concluded that the appeal must be allowed.
The appellant included 35 other grounds in his notice of appeal. Those grounds do not allege errors of fact or law and are largely a narrative of the appellant's personal circumstances and the events that unfolded before the Magistrates Court. It is unnecessary to deal with those grounds given that the appeal will be allowed on ground 36.

Orders

1.The appeal is allowed on ground 36;
2.The appellant's conviction on charge PE 16027/12 is set aside; and
3.The charge is remitted to the Magistrates Court to be determined by a different magistrate.