Taylor v Hodgson - [2013] WASC 237

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TAYLOR -v- HODGSON [2013] WASC 237

CORAM: ALLANSON J

HEARD: 10 JUNE 2013

DELIVERED : 21 JUNE 2013

FILE NO/S: SJA 1143 of 2012

BETWEEN: BRIAN DAVENPORT TAYLOR
Appellant
AND
PAUL RICHARD HODGSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E C DEVRIES
File No  :GN 3063 of 2012

Catchwords:

Road traffic - Meaning of 'built-up area' - Amendment to prosecution notice during trial - No substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Procedure Act 2004 (WA), s 132
Road Traffic Code 2000 (WA), reg 3, reg 11(2), reg 11(3)

Result:

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):

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Busby v Burrow [2012] WASC 58
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Mitchell v Myers (1955) 57 WALR 49
Simpson v Department of Environment and Conservation [2011] WASC 206
Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tey v Carpenter [2011] WASC 263

ALLANSON J: On 27 April 2012, Mr Taylor was measured doing 61 km per hour on Boyd Street, Webberton. He was charged on a prosecution notice that alleged, before it was amended at trial:
Drove a vehicle, registered number GNG3250 on a road, namely Boyd Street within a speed zone, where the numerals on the restricted sign at the beginning of the speed zone indicated a speed of 50 kilometres per hour, drove said vehicle at a speed in excess of that shown on the restricted sign, namely 61 kilometres per hour.
Mr Taylor contested the charge in the Geraldton Magistrates Court. He did not dispute the speed alleged against him. But he believed that Boyd Street had a speed limit of 60 km per hour, and disputed that it is a built‑up area subject to a 50 km per hour limit. After trial he was found guilty, although not of the charge originally brought. At the end of the prosecution case, the magistrate amended the complaint to allege driving at 61 km per hour on a road within a built‑up area. Mr Taylor was convicted and fined for that offence.

The evidence

The prosecution called three witnesses.
The first was Darryl Stewart Peden, a police senior constable. He produced a video showing Boyd Street, although it was produced on 24 October 2012, approximately six months after the events charged. Constable Peden said, in‑chief, that there were now two new signs to remind drivers it was 50 km per hour in a built‑up area.
Mr Taylor cross‑examined. The witness agreed that the signs were 'advisory' and not speed limit signs. He also agreed that they were not there in April 2012. Mr Taylor asked no further questions.
The second witness was Mark Steven Salt, an employee of Main Roads. Mr Salt said that in his role he was responsible for 'signs and lines', including traffic signs. Much of his evidence was of doubtful admissibility. In particular, the prosecutor asked him, in effect, to give his interpretation of the definition of 'built‑up area' in the Road Traffic Code 2000 (WA) and his opinion regarding whether Boyd Street fitted in that definition. Mr Salt did, however, produce a Google aerial photograph of the street, dated 9 August 2012. This photograph became exhibit 2.
Exhibit 2 had been marked to show the total length of the relevant section of Boyd Street. It included a scale, and divided the street into 100 m sections and showed the buildings or structures alongside the street. The photograph shows six 100 m sections, with a small amount left over. Despite the photograph showing a length of more than 600 m, the evidence of Mr Salt (and a marking on the exhibit) was that the street is approximately 594 m long. Mr Salt described the buildings shown on exhibit 2 as dwellings or businesses.
Mr Taylor cross‑examined. In particular, he asked whether certain structures shown on exhibit 2 should be included on Boyd Street, when their street address is Anderson Street. Mr Taylor's other primary concern, repeated on appeal, was whether one takes both sides of the road into account in determining whether a road is in a built-up area. Mr Taylor also questioned the estimate of the length of the street, suggesting it was about 30 m shorter. He did not, however, lead evidence and ultimately the only evidence was the estimate of approximately 594 m.
It also emerged in Mr Taylor's questions to Mr Salt, although somewhat confusingly, that the structures shown on exhibit 2 may not have all been there in April 2012. I am satisfied, however, that Mr Taylor did not challenge, and does not now dispute, that the structures that the magistrate took into account in determining whether Boyd Street was in a built-up area were all present in April.
The final witness was Lachlan Wesley McMath, the camera operator who set up the speed camera. Mr Taylor had some particular grievances which resulted in the testimony and cross‑examination of Mr McMath being the longest of the three witnesses. Because Mr Taylor accepted that he was doing the speed alleged in the charge, none of this evidence is relevant to the appeal.

The proposed grounds of appeal

Mr Taylor seeks leave to appeal on two grounds:
1.The magistrate erred in law and fact when he showed extreme bias when he altered the charge before the court after the case had finished and without an application from the prosecutor and the charge before the court was not the charge that was heard on that day and there was no sign erected in the recorded area that showed the speed of the area and there was insufficient evidence to show that, in fact, the built up area was not a built up area as depicted in the Road Traffic Act.
2.The magistrate erred in law and fact when he went against all the evidence presented to the court.

The relevant legislation

The charge against Mr Taylor, before it was amended, is set out above. The conduct described came within reg 11(3) of the Road Traffic Code:
A person shall not drive a vehicle in a speed zone, at a speed exceeding, in kilometres per hour, that indicated by the numerals on the speed limit sign, at the beginning of the speed zone.
The prosecution notice, however, identified the provision breached as reg 11(2) of the Road Traffic Code.
The amendment of the prosecution notice brought the charge within the terms of reg 11(2), which provides:
A person shall not drive a vehicle in a built‑up area, at a speed exceeding 50 km/h, except within a speed zone in which a higher speed is permitted.
The restriction on speed is one of several restrictions that apply in a built‑up area. Built‑up area is defined in reg 3 of the Road Traffic Code:
Built‑up area means the territory contiguous to and including any road ‑
(a)on which there is provision for street lighting at intervals of not over 100 m for a distance of at least 500 m or, if the road is shorter than 500 m, for the whole road; or
(b)which is built up with structures devoted to business, industry or dwelling houses at intervals of less than 100 m for a distance of 500 m or more.
The effect of reg 11(2) is that it is for drivers to know whether or not they are driving in a built‑up area. The 50 km per hour speed limit applies without speed limit signs, or signs identifying the road as a built‑up area. The Code seems to work on the assumption that drivers entering a built‑up area can apply the 'elephant test': an animal may be difficult to define but is easy to recognise when you see it. But a built‑up area may not be that easy to recognise.
Boyd Street, Webberton, is a good example of the difficulty. There is no provision for street lighting, so the relevant part of the definition is par (b). Exhibit 2 shows that, for a driver entering from the east or Anderson Street end, as Mr Taylor did:
(a)To the south, approximately the first 150 m on the side of the road is vacant (and appears to be bush). There are then buildings. It is not easy to determine the distance between them from the aerial photograph. But using a ruler and the scale marked on exhibit 2, it can be shown that there is no gap of 100 m or more between structures. In one instance, it is a close thing, there is one gap of about 90 m.
(b)To the north, there are buildings for approximately the first 150 m. The northern side, for the rest of the length of the road, is bush.

The issues on appeal

Mr Taylor filed some written submissions, although he primarily presented his case orally. In his written submissions, and at the hearing of the appeal, Mr Taylor raised some questions regarding the qualification of Mr McMath to operate the speed measuring device. He accepted, however, that at trial he had not disputed that he was driving at about 60 km per hour. The question of Mr McMath's qualifications does not need to be considered on the appeal.

Ground 1

The issues on appeal, arise out of proposed ground 1. They are:
(a)did the magistrate show bias in amending the charge;
(b)did the magistrate amend the charge on his own motion;
(c)did the magistrate err in law or in fact when he amended the charge after the conclusion of the prosecution case; and
(d)was there sufficient evidence to show that Boyd Street was a built‑up area.
I will deal with the last point first.
This requires the court to consider the arguments raised by Mr Taylor regarding the construction of reg 3. In doing so, it is important to bear in mind that reg 3 is simply a definition provision and the real question before the court is the proper construction and application of reg 11(2).
The first issue is whether the area must be built up on both sides of the road to be a built‑up area. The regulation is dealing with an area, the territory contiguous to and including the road. It does not refer to the distance between structures but to 'intervals'. The intention, in my opinion, is to direct attention to the space on both sides of the road, and including the road, between structures.
Boyd Street runs in a straight line over the relevant section, and measuring the intervals is comparatively straightforward. There is an interval of less than 100 m if the length of the road between the point on the road nearest to the end of one structure and the point nearest to the beginning of the next is less than 100 m, even where the structures are on opposite sides of the road. The intervals on a winding road may be more difficult to ascertain.
Second, Mr Taylor questioned whether the street address of a structure is relevant. The regulation is not, on its face, concerned with address but with whether the land where the structure is situated is 'contiguous' to the road. Contiguous may mean actually touching or in close proximity. This may give rise to difficult factual questions in some circumstances, for example, where buildings are set far back from the roadway. But where there is a corner block, a structure may be on territory that is contiguous to each of the intersecting roads.
In my opinion, the magistrate in this case construed and applied the regulation correctly when he directed his attention to the 100 m 'spacings' shown on exhibit 2, and the presence of structures within those areas. There is no interval greater than 100 m between structures. Once exhibit 2 was admitted into evidence, there was sufficient evidence to show Boyd Street was included in a built‑up area and his Honour could have reached no other conclusion. Because Mr Taylor was not driving by reference to a Google aerial photograph, or using a measuring wheel, he may not have been aware that he was in a built‑up area. The regulation, as framed, has the capacity to catch those who believe they are doing the right thing.
The other issues relate to the magistrate's exercise of the power to amend a charge. The power is found in s 132 of the Criminal Procedure Act 2004 (WA). In its relevant parts, that section provides:
(1)The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.
(2)The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.
(3) A court, on the application of the prosecutor, may amend a charge.
(4)Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.
…
(7)A court that amends a charge, prosecution notice or indictment must ensure the prosecutor and the accused are each given a copy of it.
(8)If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.
…
(10)A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied ‑
(a)the amendment is material to the merits of the case;
(b)the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c)an adjournment would not overcome the prejudice.
The power to amend must be considered together with sch 1 of the Criminal Procedure Act which sets out rules governing the contents of prosecution notices. Clause 5 provides:
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must ‑
(a)describe the offence with reasonable clarity; and
(b)identify the written law and the provision of it that creates the offence; and
(c)identify with reasonable clarity ‑
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed;
and
(d)if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and
(e)if the offence relates to property, comply with clause 6(4) and (5).
The prosecution notice was not consistent with the case presented by the prosecution. The offence described required proof that there was a speed zone and a speed limit sign, and that Mr Taylor had exceeded the speed indicated on the sign. It did not require proof that Boyd Street was in a built‑up area.
From the beginning of the trial, however, the magistrate proceeded, as if Mr Taylor had been charged under reg 11(2). He put the charge to Mr Taylor as 'exceeding a speed limit in a built‑up area pursuant to section 11 subsection (2) of the Road Traffic Code'. Before any evidence was called, the magistrate suggested that the only issue was that Boyd Street was a built‑up area. Mr Taylor said there were other issues.
The prosecution also appears to have proceeded as though the charge was under reg 11(2). It called no evidence that there was a speed limit sign, but called Mr Salt to establish whether Boyd Street met the criteria under the Code for a built‑up area. The prosecution must have been aware that the complaint was wrong, but did not apply to amend it until Mr Taylor raised it at the end of the prosecution case. Nor did the prosecution then give any explanation for why it did not apply earlier. I refer to the remarks of Heenan J in Busby v Burrow [2012] WASC 58 [87], with which I fully agree:
The responsibility for the correctness of a charge rests upon the prosecution, not on the court. If an amendment is required, and application to amend is sought, it should be by the prosecution, and as soon as possible. (authorities omitted)
Mr Taylor was not represented. Although he asked questions in cross‑examination about the number of buildings and access points on Boyd Street, he also asked questions about whether there was a speed sign and raised the terms of the prosecution notice immediately at the close of the case. I cannot assume that he understood that the police had intended to charge him under reg 11(2) and was trying to catch them out in a mistake.
At the end of the prosecution case, the magistrate asked Mr Taylor if he proposed to produce any evidence that Boyd Street was not a built‑up area. Mr Taylor said he did not. There was then a short discussion about whether Mr Taylor could produce some documents in evidence. The magistrate advised him, correctly, that none of them was admissible. The following exchange then occurred:
His Honour: Is everything else you wish to say?
Taylor, Mr: Yes. I would like to provide, as evidence, the prosecution notice which is totally incorrect.
His Honour: I have the prosecution notice. What part of the prosecution notice ‑ ‑ ‑
Taylor, Mr: Would you like to read the bit that says 'details of the alleged offence'? … Where the numerals on the restricted sign at the beginning of this speed zone indicated a speed limit of 50 km an hour. We've had evidence today from a number of people completely identifying that there are no speed signs in that street.
His Honour: Sergeant?
Prosecutor: Sir, that is a typing error by senior Constable Paul Hodgson. As you can see the allegation is the speed limit in the built‑up area. It is a typing mistake, he's from infringement management section in Perth. I therefore would seek to amend the prosecution notice.
His Honour: To what?
Prosecutor: To, 'Boyd Street within a built-up area, namely at 61 kilometres per hour'.
Taylor, Mr: We are here today replying to a prosecution notice, a prosecution notice which has proven to be incorrect.
His Honour: The prosecution can amend the prosecution notice at any time.
Taylor, Mr: Well, at trial?
His Honour: At any time. Yes, any time during the proceedings, Mr Taylor. So ‑ ‑ ‑
Prosecutor: So drove a vehicle registered number GNG3250 on a road namely Boyd Street, a built‑up area at a speed, namely 61 kilometres per hour.
His Honour: All right. The prosecution notice is amended. It makes absolutely no difference to the proceedings by the way, that on 27 April 2012 at Webberton Mr Brian Davenport Taylor drove a vehicle, registration number GNG3250 on a road, namely Boyd Street, within a built‑up area, namely 61 kilometres per hour. All right? That makes absolutely no difference to the proceedings, Mr Taylor. Is there anything else you wish to raise?
Taylor, Mr: Well, I don't accept that change, I'm sorry.
His Honour: Do you want me to refer you to the Criminal Procedure Act?
Mr Taylor then advised that he would appeal. The magistrate asked if he wished to give any evidence. Mr Taylor said no. The magistrate asked if there was anything else that Mr Taylor wished to say about whether Boyd Street is a built‑up area. Mr Taylor said no. The magistrate then said (incorrectly) that at the beginning of the trial Mr Taylor said the only issue in dispute was whether it was a built‑up area. Mr Taylor replied 'No, I don't accept that'.
The magistrate proceeded without hearing any further submissions to give his reasons for decision, and convicted Mr Taylor. He imposed the minimum penalty available.
The first issue raised in ground 1 is whether the magistrate was biased. The only matter which is argued to show bias is the fact that the magistrate amended the prosecution notice.
The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5]:
Where a party contends that actual bias exists, the applicant must show that the mind of the decision‑maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].

The test of apparent bias requires consideration of whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [78] ‑ [84], [132], [139].
The exercise of the power to amend, in the circumstances of this trial, could not itself evidence bias, nor give rise to a reasonable apprehension of bias. Once the prosecutor applied to amend, the magistrate was required to consider and rule on that application. His Honour appears to have accepted, without question, the prosecution submission that it was a typing mistake. He also expressed the view that the amendment made no difference to the proceedings. For the reasons given below, I am not satisfied that his Honour gave Mr Taylor a proper opportunity to be heard on the application, or gave proper consideration to the exercise of his discretion whether to amend. But even if his Honour did err in that way, that does not show prejudgment, partisanship or hostility so as to support an allegation of bias. Nor has Mr Taylor shown that a reasonable observer might reasonably apprehend that the magistrate might not bring an impartial mind to the question.
The next issue is whether the magistrate amended the charge on his own motion, indeed, this appears to be part of the factual basis for the complaint of bias. The foundation of this complaint is wrong in fact. The transcript shows that the prosecutor applied to amend after Mr Taylor pointed out the error in the prosecution notice. It is unnecessary in this case to consider the relationship between s 132(2) and (3) of the Criminal Procedure Act, and whether the latter subsection shows an intention that the power to amend a charge should not be exercised on the court's own initiative.
The more general issue is whether the decision to amend was wrong in law or fact. The power to amend is broad: Simpson v Department of Environment and Conservation [2011] WASC 206 [80]; Busby v Burrow [2012] WASC 58. It is to be exercised at the discretion of the relevant judicial officer, in accordance with s 132: see, for example, Tey v Carpenter [2011] WASC 263; Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61. It includes the power to amend to a different offence, at least where the new offence is similar in nature and character to the original complaint: Mitchell v Myers (1955) 57 WALR 49. Both Starling v Ostrowski and Mitchell v Myers are decisions under s 46 of the Justices Act 1902 (WA). The language of the Criminal Procedure Act is consistent with a broader discretion than under the earlier legislation.
On consideration of the transcript, three matters are apparent. First, the transcript, if read literally, shows an error when the magistrate said that the prosecution can amend the prosecution notice. That may have been nothing more than a slip, his Honour intending to refer to the prosecution being able to apply for an amendment. This court should not read the transcript of proceedings in a busy court with a view to finding error where it may simply be a poor choice of words.
Second, the transcript leaves room for doubt about whether the magistrate turned his mind to the discretionary nature of the decision he was to make. His Honour simply invited an application from the prosecution. The only indication that he may have turned his mind the discretionary nature of the power he was exercising is his comment that 'it makes absolutely no difference to the proceedings'. No reference was made to power to refuse an amendment and the matters set out in s 132(10).
A third and related point is that the magistrate gave Mr Taylor no opportunity to be heard on whether the amendment should be made. This may be because his Honour assumed that Mr Taylor had accepted that the only issue in dispute was whether Boyd Street was a built‑up area. But that assumption was incorrect. Mr Taylor had not accepted that, and said so. He said there were other issues. Some of them may have been misguided. But the cross‑examination of Constable Peden shows that Mr Taylor regarded the presence of signs in April 2012 as relevant to the case that had been alleged against him.
In my opinion, the magistrate erred in not properly considering the application to amend, and in not hearing Mr Taylor on the question. Mr Taylor was a litigant in person. On such a point, his Honour could have explained what was happening, and the matters relevant to the power to amend a charge, without compromising his impartiality.
The conclusion of error is not, in itself, sufficient to allow the appeal. The respondent submits that there was no substantial miscarriage of justice, and under s 14(2) of the Criminal Appeals Act 2004 (WA), I may dismiss the appeal. A substantial miscarriage may occur where there has been a serious departure from the prescribed processes for trial. In my opinion, this is not limited to a failure to follow those processes legislatively prescribed but may include a breach of natural justice. But it is still necessary to consider the facts of the particular case to determine whether, in this instance, the failure to hear from Mr Taylor caused a substantial miscarriage.
Not every departure from the rules of natural justice will entitle a party to a new trial: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. I am satisfied that there was not any real reason why the amendment should have been refused. The amendment raised no new issues. The trial had been conducted on a common basis that Mr Taylor had driven along Boyd Street at 61 km per hour. The evidence had dealt with whether Boyd Street was part of a built‑up area, and Mr Taylor had cross‑examined on that issue. Even though Mr Taylor did not accept that whether Boyd Street was a built‑up area was the only issue in the case, he must have appreciated it was an issue. The magistrate offered Mr Taylor the opportunity to give evidence after the amendment had been made, but he refused.
Despite the error in the proceedings, I am satisfied that there was no substantial miscarriage of justice. To allow the appeal and return the matter to the Magistrates Court would be futile.

Ground 2

Proposed ground 2 is so general that it adds nothing to the issues that the court must determine on this application. I refuse leave on ground 2.

Result

For these reasons I would grant leave for ground 1, but dismiss the appeal on that ground. The appeal is dismissed.