Tey v Carpenter
[2012] WASCA 81
•10 APRIL 2012
TEY -v- CARPENTER [2012] WASCA 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 81 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:164/2011 | 6 MARCH 2012 | |
| Coram: | McLURE P BUSS JA | 10/04/12 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time to file the appellant's case dismissed Application for an order for the respondent to provide disclosure of certain information dismissed | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY MICHAEL FRANCIS CARPENTER |
Catchwords: | Criminal law Appeal against conviction No authority to drive a motor vehicle Application for an extension of time to file appellant's case Each of the proposed grounds of appeal without a reasonable prospect of success No satisfactory explanation for the continuing failure to file the appellant's case Application for an extension of time dismissed Application for an order for the respondent to provide disclosure of certain information dismissed |
Legislation: | Nil |
Case References: | Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 Tey v Carpenter [2011] WASC 263 Tey v Optima Financial Group Pty Ltd [2012] WADC 20 Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3 Tey v Plotz [2011] WASCA 194 Tey v Plotz [No 3] [2012] WASC 25 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TEY -v- CARPENTER [2012] WASCA 81 CORAM : McLURE P
- BUSS JA
- Appellant
AND
MICHAEL FRANCIS CARPENTER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MAZZA J
Citation : TEY -v- CARPENTER [2011] WASC 263
File No : SJA 1021 of 2011
(Page 2)
Catchwords:
Criminal law - Appeal against conviction - No authority to drive a motor vehicle - Application for an extension of time to file appellant's case - Each of the proposed grounds of appeal without a reasonable prospect of success - No satisfactory explanation for the continuing failure to file the appellant's case - Application for an extension of time dismissed - Application for an order for the respondent to provide disclosure of certain information dismissed
Legislation:
Nil
Result:
Application for an extension of time to file the appellant's case dismissed
Application for an order for the respondent to provide disclosure of certain information dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C J Thatcher
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
(Page 3)
Case(s) referred to in judgment(s):
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Tey v Carpenter [2011] WASC 263
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
Tey v Plotz [2011] WASCA 194
Tey v Plotz [No 3] [2012] WASC 25
(Page 4)
1 McLURE P: I agree with Buss JA.
2 BUSS JA: On 27 January 2011, the appellant (Mrs Tey) was convicted in the Magistrates Court, before Magistrate Lawrence, of driving a motor vehicle whilst not authorised, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA). She was fined $100 and ordered to pay costs of $119.20.
3 Mrs Tey appealed against conviction and sentence to the Supreme Court. On 29 September 2011, Mazza J refused leave to appeal and dismissed the appeal. He published written reasons for decision. See Tey v Carpenter [2011] WASC 263. His Honour ordered that Mrs Tey pay the respondent's costs of the appeal.
4 Mrs Tey has now appealed to this court against Mazza J's decision on the conviction appeal.
Mrs Tey's failure to file her appellant's case
5 Mrs Tey filed her appeal notice on 20 October 2011.
6 The Supreme Court (Court of Appeal) Rules 2005 (WA) require an appellant to file their case within 35 days after the date on which the appeal notice is filed.
7 Accordingly, Mrs Tey was required to file her appellant's case by 24 November 2011. She did not file her appellant's case by 24 November 2011. Indeed, she has still not filed her case.
8 By application dated 19 December 2011, Mrs Tey sought an extension of time to file her appellant's case. The application also seeks an order for the respondent to provide disclosure of certain information.
9 Mrs Tey's application is supported by her affidavits sworn 19 December 2011 and 1 March 2012.
10 It is convenient to consider whether any of Mrs Tey's grounds of appeal has a reasonable prospect of success before dealing with her application dated 19 December 2011.
The reasons of Mazza J
11 In his reasons, Mazza J set out details of the facts and circumstances relating to the alleged offence and the trial before the magistrate, as follows:
(Page 5)
- On the morning of 21 June 2009, Mrs Tey was driving a Toyota vehicle on a road in Winthrop. Two police officers, Constable Kerep and Acting Sergeant Heseltine, pulled Mrs Tey's vehicle over. Constable Kerep made inquiries about Mrs Tey's driver's licence and found that it had expired. It had, in fact, expired on 2 February 2006. As a result, Mrs Tey was issued with an infringement notice. She did not pay it. A prosecution notice was then issued and served on Mrs Tey. That notice was not issued by either Constable Kerep or Acting Sergeant Heseltine, but by another officer, Senior Constable Carpenter. The prosecution notice, as originally framed, was in these terms:
[That on 21 June 2009 at Winthrop, Mrs Tey] not being a person authorised by Part IVA of the Road Traffic Act 1974, drove a motor vehicle, namely a motor car, registered number 1AGF 387, on a road, namely Jackson Avenue.
Mrs Tey was also served with a statement of material facts. This document was prepared by an unsworn officer, Mr Cappeluti, and referred to the road on which Mrs Tey had driven as Jackson Avenue. Mrs Tey pleaded not guilty to the charge in the prosecution notice. The matter was set down for trial on 10 September 2010. However, Mrs Tey applied for, and was granted, an adjournment of the trial on that day. The case was then adjourned to 23 September 2010, but it was not reached and had to be adjourned. On this occasion, the magistrate ordered the prosecution to provide Mrs Tey with disclosure, pursuant to s 60 and s 61 of the Criminal Procedure Act 2004 (WA).
The prosecutor provided Mrs Tey with copies of Constable Kerep's and Acting Sergeant Heseltine's statements. It is clear that in those statements both officers referred to Somerville Boulevard as the road on which Mrs Tey was stopped. Mrs Tey also sought statements from Senior Constable Carpenter and Mr Cappeluti. Disclosure of these statements was opposed by the prosecutor. The magistrate did not order disclosure of these statements.
The trial proceeded on 27 January 2011. Before any evidence was called, the prosecutor applied to amend the prosecution notice to delete the street name, Jackson Avenue, and replace it with Somerville Boulevard. Mrs Tey opposed the application. Despite this, the application was granted.
Constable Kerep and Acting Sergeant Heseltine each testified that they stopped Mrs Tey's vehicle on Somerville Boulevard and that she was driving the vehicle. Acting Sergeant Heseltine further testified that he had seen Mrs Tey's vehicle being driven in a southerly direction on Winthrop Drive. Mrs Tey declined to cross-examine either of them. The magistrate complied with his statutory duty under s 30 of the Magistrates Court Act 2004 (WA) by pointing out to Mrs Tey the consequences of failing to cross-examine each witness. Mrs Tey was adamant that she did not wish to cross-examine.
(Page 6)
- The prosecution tendered, over objection, a certificate under s 98(1b) of the Road Traffic Act 1974 (WA) (exhibit A). There is no issue that the certificate complied with the formal requirements of that subsection. Section 98(1c) provides that the certificate is evidence of the facts stated in it. The certificate is in these terms:
LICENSING SERVICES
EXTRACT FROM DRIVER'S LICENCE REGISTER
- I[,] Michelle Aikin[,] certify that the Driver's Licence Register maintained in accordance with section 42 of the Road Traffic Act1974 (as amended) shows that as at 21 June 2009 Motor Driver's Licence number ******* Issue date: ** **** **** Expiry date: 2 February 2006 Class(es) held C is in name of:
Tey, Kok Yong
Date of Birth: ** **** 1948
** **** Rd
**** WA ****
This certificate is issued pursuant to Section 98(1b) of the Road Traffic Act 1974
[Signed]
OFFICER AUTHORISED BY
THE DIRECTOR GENERAL
- Mrs Tey declined to give or call evidence. She was convicted and fined $100 and ordered to pay costs of $119.20 [1] - [7].
12 Mrs Tey relied on eight grounds of appeal before Mazza J. The grounds were poorly drafted and repetitive. His Honour identified five issues raised by the grounds, namely:
1. Did the order for disclosure made on 23 September 2010 require the prosecution to provide Mrs Tey with statements from Senior Constable Carpenter and Mr Cappeluti? If so, did the failure to provide those statements give rise to a miscarriage of justice (grounds 3 and 4)?
2. Did the learned magistrate err on 27 January 2011 when he granted the prosecutor's application to amend the prosecution notice (ground 1)?
(Page 7)
- 3. Did the learned magistrate err by allowing the prosecution to adduce the s 98 certificate into evidence (ground 5)?
4. Was it open to the learned magistrate to convict Mrs Tey on the evidence (grounds 7 and 8)?
5. Was the penalty imposed by the learned magistrate manifestly excessive (ground 6)? [9]
13 As to issue 1 (in relation to disclosure), Mazza J said:
Mrs Tey says that once an order for disclosure had been made, the prosecution had a duty to provide her with statements from Senior Constable Carpenter and Mr Cappeluti, and that the failure to disclose their statements gave rise to a miscarriage of justice.
An offence of driving without authority is a simple offence. Pursuant to s 60(5) of the Criminal Procedure Act, the magistrate made an order for disclosure. It was assumed that the magistrate had the power to do this. Once the order was made, the prosecutor was obliged, by s 61(5) of the Criminal Procedure Act, to serve Mrs Tey with:
1. any confessional material of the accused;
2. any evidentiary material that is relevant to the charge;
3. a copy of the accused's criminal record; and
4. any document that is prescribed.
Mrs Tey made no confessional statement and had no criminal record. There was no relevant prescribed document. Accordingly, the prosecutor was obliged to provide her with 'any evidentiary material that is relevant to the charge'. Evidentiary material is defined in s 42(1) to include statements by any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence.
The question of relevancy, for the purposes of s 61(5) and s 42(1) of the Criminal Procedure Act, is not to be narrowly approached and should be viewed from the perspective of what is relevant or could be potentially relevant: see The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] - [61].
In this case, the potentially relevant issues were whether Mrs Tey was driving on 21 June 2009 and whether she was the holder of a valid driver's licence at that time. Neither Senior Constable Carpenter or Mr Cappeluti were present when the alleged offence occurred. Senior Constable Carpenter merely issued the prosecution notice. Any police officer can issue a prosecution notice: s 20(3)(a)(iii) of the Criminal Procedure Act.
(Page 8)
- There is no requirement that the officer have any other involvement in the case.
There is no requirement in the Criminal Procedure Act that the statement of material facts be prepared by an officer with involvement in the case. There is no evidence that Mr Cappeluti had any involvement in the case, other than preparing the statement of material facts.
Any knowledge that Senior Constable Carpenter or Mr Cappeluti had about Mrs Tey's driving could only have been given to them by Constable Kerep and/or Acting Sergeant Heseltine. Neither of them could say anything about her entitlement to drive.
If Mrs Tey proposed to establish that the information given to Senior Constable Carpenter and/or Mr Cappeluti about the street on which the offence occurred was wrong, that much was obvious from the prosecution notice, the statement of material facts and the witness statements of the police officers who stopped Mrs Tey's vehicle, being documents Mrs Tey had well before trial. Disclosure in the form of statements from Senior Constable Carpenter and Mr Cappeluti would have served no purpose. In the circumstances, their statements were irrelevant.
If I am wrong and there was some potential relevance to the evidence of Senior Constable Carpenter and Mr Cappeluti, and therefore their statements should have been disclosed to Mrs Tey, she has failed to demonstrate any miscarriage of justice. I accept, as a matter of principle, that a failure by the prosecution to disclose potentially relevant evidence to the defence can give rise to a miscarriage of justice: Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593. However, the failure to provide disclosure does not automatically give rise to a miscarriage of justice.
As I have already pointed out, Mrs Tey did not cross-examine either officer, and did not give evidence or call evidence. She did not dispute the police officers' evidence that she was stopped on Somerville Boulevard or Acting Sergeant Heseltine's evidence that she was driving on Winthrop Avenue. Nor did she dispute that she was not authorised to do so. In these circumstances, any failure on the part of the prosecution to provide statements from Senior Constable Carpenter and Mr Cappeluti had no consequence.
It follows from what I have already said, that the prosecution was not under any obligation to call Senior Constable Carpenter and Mr Cappeluti to give evidence at trial. In any event, any failure to call them did not give rise to a miscarriage of justice.
Grounds 3 and 4 have no reasonable prospect of success [12] - [23].
14 As to issue 2 (the application to amend), Mazza J said:
(Page 9)
- Mrs Tey says that the learned magistrate erred by allowing the prosecution's application to amend the prosecution notice at the outset of the proceedings on 27 January 2011. Mrs Tey says that the place where the offence occurred was 'a crucial element of the charge' against her, and that the amendment prejudiced her defence. She was unable to say in argument how the amendment prejudiced her defence. In support of her argument she cited City of Gosnells v Heydon [2010] WASC 344; (2010) 178 LGERA 120.
The power to amend a charge in a prosecution notice is set out in s 132 of the Criminal Procedure Act. It is a power to be exercised at the discretion of the relevant judicial officer in accordance with the section. A prosecution notice may be amended at any time before or during trial: s 132(1). Such an application may be made by the prosecutor: s 132(3). A court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor: s 132(4). Section 132(10) provides that a court may refuse to amend a prosecution notice if it is satisfied that:
(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.
Mrs Tey was aware from, at the latest, 23 September 2010, when she was provided with Constable Kerep's and Acting Sergeant Heseltine's statements, that they would each be saying that she drove on Somerville Boulevard. Mrs Tey had ample time before trial to deal with this aspect of the case. The amendment only sought to ensure that the prosecution notice conformed with the evidence that was going to be called as to the road on which it was alleged Mrs Tey was stopped. The amendment was made before either officer had given evidence. Mrs Tey had ample opportunity to cross-examine about the discrepancy and make whatever forensic point she wanted to about it. She was specifically asked about this by the magistrate: 27 January 2011, ts 8. She still declined to cross-examine.
Mrs Tey's view of what the crucial issue was at the trial is misconceived. The crucial issue (other than whether she had a valid driver's licence) was whether she was driving on a road. Whether that road was Jackson Avenue or Somerville Boulevard was not important in a legal sense. If she was driving on either road she was guilty of the offence.
City of Gosnells v Heydon does not assist Mrs Tey. That case involved the City's appeal against a decision by a magistrate to acquit the respondent of a charge of leaving vehicles on a verge. Jenkins J dismissed the appeal. She agreed with the magistrate that there was insufficient evidence to sustain the charge. Jenkins J noted that the evidence may have sustained a charge of placing vehicle parts or wrecks on a verge. She
(Page 10)
- considered whether an application to amend the charge might be allowed. Leaving aside the issue of whether a charge could be amended on appeal, Jenkins J said that she would have refused such an application because 'it would substantially alter the nature of the allegations against [the respondent]' and would prejudice his defence: [66].
In the present case, the nature of the allegations were not substantially altered by the amendment. They were the same, in that it was said that Mrs Tey was driving on a road in Winthrop. Further, as Mrs Tey must have known well before trial that Constable Kerep and Acting Sergeant Heseltine would say that she drove on Somerville Boulevard, she was not taken by surprise and had ample time to deal with the allegation. The amendment did not cause her any prejudice. The learned magistrate did not err in the exercise of his discretion to allow the amendment to the prosecution notice.
Ground 1 has no reasonable prospect of success [24] - [30].
15 As to issue 3 (the s 98 certificate), Mazza J said:
Mrs Tey objected to the tender of the s 98 certificate at trial on the basis that it was wrong. Mrs Tey did not explain what the error was in the certificate. The basis for the admissibility of the certificate is found in s 98 of the Road Traffic Act. That section relevantly provides:
98. Proof of certain matters
(1) In any prosecution or proceedings for an offence against this Act an averment in the prosecution notice that any person is or was an owner of, or a responsible person for, a vehicle or became an owner of, or a responsible person for, a vehicle on any date or that any person is or was not the holder of any particular licence (either personal or in respect of any vehicle), or that the vehicle was driven or used on a road or any place to which the public is permitted, whether on payment of a fee or otherwise, to have access shall be deemed to be proved in the absence of proof to the contrary.
…
(1b) For the purposes of any prosecution or proceedings for an offence under this Act or verifying the accuracy of information provided under Part IVA to another Australian driver licensing authority, the Director General or a person authorised by the Director General may issue a certificate stating that a fact specified in the certificate appears in or is derived from the driver’s licence register under Part IVA or another record kept by the Director General under this Act.
(Page 11)
- The certificate complied with the requirements of s 98(1b). It was thus admissible. Its contents were sufficient to prove the element of the offence that Mrs Tey did not have, on 21 June 2009, a valid driver's licence, there being no evidence to the contrary.
Ground 5 has no reasonable prospect of success [31] - [33].
16 As to issue 4 (was it open to the magistrate to convict?), Mazza J said:
The only evidence before the magistrate was the evidence of Constable Kerep and Acting Sergeant Heseltine and the s 98 certificate. Apart from Mrs Tey's objection to the tender of the s 98 certificate, this evidence was unchallenged. I also note that the averment in the prosecution notice (as amended) that Mrs Tey was driving on Somerville Boulevard was, by virtue of s 98(1) of the Road Traffic Act, deemed proved in the absence of proof to the contrary. There was no contrary evidence before the learned magistrate. Conviction was not only open to the magistrate on the evidence, it was inevitable.
Grounds 7 and 8 have no reasonable prospect of success [34] - [35].
17 As to issue 5 (penalty), Mazza J said:
The maximum penalty for a first offence contrary to s 49(1)(a) of the Road Traffic Act is a $300 fine. Although Mrs Tey had an otherwise unblemished traffic record, she had been driving for over 3 years without a valid driver's licence. A penalty which was one-third of the maximum was plainly within the realms of a sound sentencing discretion and was not manifestly excessive.
Ground 6 has no reasonable prospect of success [36] - [37].
18 Mrs Tey also raised before Mazza J, in ground 2, whether the prosecution should have been issued in the name of Senior Constable Carpenter or in the generic name of the WA Police. Mazza J held that there was no merit in this contention. He noted that Mrs Tey had raised this issue in other cases. In Tey v Plotz [2011] WASCA 194, this court decided that a prosecution should be in the name of a specific police officer rather than the WA Police. Mazza J found, in the present case, that whether the prosecution was initiated by a named police officer or using the pseudonym of the WA Police made no difference to the merits of the case before the magistrate or the appeal before him. His Honour therefore concluded that ground 2 had no reasonable prospect of success [38] - [39].
19 Finally, Mazza J dealt with another argument raised by Mrs Tey in oral submissions in relation to disclosure:
(Page 12)
- In argument, Mrs Tey submitted that the prosecution should have disclosed to her a document that had been sent to her entitled 'First Demand Notice'. This was a letter sent to her after she failed to pay the infringement notice. The letter is irrelevant to the proceedings before the magistrate. In any event, Mrs Tey had the document [40].
Mrs Tey's proposed grounds of appeal to this court
20 Mrs Tey set out eight proposed grounds of appeal in an annexure attached to her appeal notice. Like the appeal notice, the annexure is dated 20 October 2011.
21 At the hearing before this court, we were informed that Mrs Tey had served on the respondent an amended appeal notice and an amended annexure setting out seven proposed grounds of appeal. The amended appeal notice and the amended annexure are dated 26 October 2011. These documents had not been filed. However, the hearing was thereafter conducted on the basis that the proposed grounds of appeal in the annexure dated 26 October 2011 reflect the case that Mrs Tey wishes to advance in the appeal to this court.
22 The proposed grounds of appeal read:
1. The learned Justice erred in law by accepting the Magistrate's decision allowing the Prosecutor on day of the trial the 27 January 2011 to amend the PROSECUTION NOTICE filed on the 9th December 2009 by altering the name of the street in the Notice to Summerville Boulevard to agree with the contents of the witnesses' statements.
2. The Prosecutor failed to produce before Magistrate Lawrence originals of documents of the alleged offence prior to the hearing for disclosure by the prosecution pursuant to s 60 and s 61 of the Criminal procedure Act, and the learned Justice had not questioned the prosecution further. Therefore, has the Appellant been denied procedural fairness? Yes.
3. The learned Judge erred in upholding the decision of the Magistrate in the Court below in that: -
(a) His Honour did not give any or any sufficient weight to the effect of the amendment on the Appellant's defence.
(b) the contradiction between the Prosecution Notice and the Prosecutor's Statement of Material Facts reflected on the credit of the constables giving rise to a reasonable doubt about the appellant's guilt.
(Page 13)
- 4. The appellant was humbled by the learned Judge's indiscreet decision to advertise in paragraph 6 on page 5 of the Judgment delivered on 29 September 2011 [2011] WASC 263 an extract of the Appellant's Driver Licence showing an expiry date. ' --- for the reasons which I now publish---' This document was accessible nationwide by the Australian public. And although certain information was deleted, it gave the full name of the Appellant, the year of birth to reveal the Appellant's age, the State where the Appellant resides. This extract told one side of the story. If it was intended to incriminate the Appellant in case SJA 1021 of 2011, the other side of the story must be told to the Australian public to be just and fair which relates to CACR 36 and CACR 37 of 2011 in the WA Court of Appeal. Has there been a breach of Privacy Act against the Appellant? In the Appellant's opinion, Yes.
5. The case must be proved BEYOND REASONABLE DOUBT to convict and sentence the appellant, and in case SJA 1021 of 2011, it had not. See judgment delivered on 29 September 2011 in reference to paragraphs 27 and 29.
6. No private nor independent person was called upon by the Prosecutor to give evidence apart from the two police officers before the Magistrate.
7. The judgment delivered on 29 September was in contravention of law and facts.
The merits of proposed ground 1
23 Proposed ground 1 is, in substance, identical to issue 2/ground 1 in the appeal before Mazza J.
24 For the reasons given by Mazza J, proposed ground 1 has no reasonable prospect of success.
The merits of proposed ground 2
25 Proposed ground 2 is similar to issue 1/grounds 3 and 4 in the appeal before Mazza J.
26 As Mazza J notes at [13] of his reasons, upon the magistrate making an order for disclosure, the prosecutor was bound, by s 61(5) of the Criminal Procedure Act 2004 (WA), to serve Mrs Tey with:
(a) any confessional material of Mrs Tey that was relevant to the charge;
(b) any evidentiary material that was relevant to the charge;
(Page 14)
- (c) a copy of Mrs Tey's criminal record; and
(d) any document that is prescribed.
27 There was no confessional material of Mrs Tey, she did not have a criminal record and there was no relevant prescribed document. In these circumstances, the prosecutor's obligation was to provide her with any evidentiary material that was relevant to the charge.
28 For the reasons given by Mazza J, in the context of issue 1/grounds 3 and 4, if any evidentiary material that was relevant to the charge was not served on Mrs Tey (and, his Honour found, there was no such failure), then it is not reasonably arguable that, as a result, a miscarriage of justice occurred.
29 Further, there is no reasonable argument, on the material before the magistrate or Mazza J or this court, that any failure by the prosecutor to produce 'originals of documents of the alleged offence' (emphasis added) constituted a denial of procedural fairness or gave rise to a miscarriage of justice.
30 Proposed ground 2 has no reasonable prospect of success.
The merits of proposed ground 3
31 Proposed ground 3 is, in essence, a complaint about Mazza J's reasoning and conclusion in relation to issue 2/ground 1 and issue 4/grounds 7 and 8.
32 It is not reasonably arguable that Mazza J made an error of the kind alleged in proposed ground 3.
33 For the reasons given by Mazza J, the magistrate did not make an error on 27 January 2011 when he granted the prosecutor's application to amend the prosecution notice, and it was open to the magistrate to convict Mrs Tey on the evidence.
34 Proposed ground 3 has no reasonable prospect of success.
The merits of proposed ground 4
35 Proposed ground 4 alleges that the appellant was 'humbled' by Mazza J's inclusion in his reasons for decision of a certificate under s 98(1b) of the Road Traffic Act that was tendered by the prosecution at trial.
(Page 15)
36 The matters complained of by Mrs Tey in proposed ground 4 have no merit. In any event, those matters do not bear upon the correctness of the magistrate's decision to convict Mrs Tey of the offence with which she was charged.
37 Ground 4 has no reasonable prospect of success.
Proposed grounds 5, 6 and 7
38 Proposed grounds 5, 6 and 7 are, in substance, identical to issue 3/ground 5 and issue 4/grounds 7 and 8 in the appeal before Mazza J.
39 For the reasons given by Mazza J, proposed grounds 5, 6 and 7 have no reasonable prospect of success.
The merits of Mrs Tey's application for orders that the respondent provide disclosure of certain information
40 In her application dated 19 December 2011, Mrs Tey seeks an order that:
The Respondent (Prosecution) to provide full disclosure pursuant to s 60 and s 61 of the Criminal Procedure Act by the 29 February 2012 as was ordered by the Magistrate in the Fremantle Magistrates Court before trial.
41 Mrs Tey deposes in her affidavit sworn 19 December 2011:
4. In the Primary court, the Fremantle Magistrates Court, the Respondent was ordered to provide disclosure under s 60 and s 61 of the Criminal Procedure Act but failed to do so.
5. On 14 December 2011, I attended the Supreme Court central Office to inspect the court file SJA1021 of 2011. I found transcripts of proceedings, a certified prosecution notice which I provided to the Supreme Court. I found only one document in A4 size which was forwarded to the Supreme Court from the Fremantle Magistrates Court. The one-page document was Exhibit A - a certified copy from Public transport Centre, of my Driver's Licence Registration showing issued date and expiry date. It appears that the Respondent (Prosecutor) had not lodged with the Fremantle Magistrates Court those other documents such as Statement of Material Facts, Witness Statements, infringement notices which were sent to me.
42 It is not clear from Mrs Tey's application or her affidavit evidence what documents she claims were in existence but not disclosed to her pursuant to s 60 (which is concerned with the procedure on a plea of not
(Page 16)
- guilty) and s 61 (which is concerned with disclosure by the prosecutor) of the Criminal Procedure Act.
43 As I have mentioned, Mazza J considered Mrs Tey's claims that she was not given proper disclosure [12] - [22], [40]. His Honour found that the statements not received by Mrs Tey (being statements from Senior Constable Carpenter and Mr Cappeluti, who were not present when the alleged offence occurred) were not relevant to matters in issue at the trial and, as a result, no miscarriage of justice occurred as a result of their non-disclosure [16] - [22]. Also, his Honour found that the letter sent to Mrs Tey after she failed to pay the infringement notice was irrelevant to the proceedings before the magistrate and, in any event, Mrs Tey had the document [40].
44 It is not reasonably arguable that any of these findings was wrong or that Mazza J made any material error of fact or law in the course of making them.
45 Mrs Tey has not established any basis for the making of an order for disclosure. The application for this order should be dismissed.
The merits of Mrs Tey's application for an extension of time to file her appellant's case
46 In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms 'as the justice of the case may require'. His Honour said:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257, at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86, at 92; Jess v Scott (1986) 12 FCR 187, at 194 - 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg
(Page 17)
- [1967] VR 871, at 872; Hughes, at 263 - 264; Mitchelson v Mitchelson (1979) 24 ALR 522, at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200, at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933, at 935.
'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion' (459).
48 In her affidavit sworn 19 December 2011, Mrs Tey states that in January 2009 she suffered a fracture to her right knee, and in December 2009 she suffered a supraspinatus tendon tear to her right shoulder. She asserts that she experiences ongoing pain as a result of these injuries. She also asserts that she is an outpatient at Fremantle Hospital 'under specialist care for [her] right shoulder' and that she has been 'programmed to begin physiotherapy' in early 2012. In her affidavit sworn 1 March 2012, Mrs Tey annexes a variety of medical reports and medical certificates.
49 It is not apparent from Mrs Tey's affidavits, or the annexures to those affidavits, how the injuries or her medical condition adversely affect her ability to conduct litigation either in person or by briefing a lawyer.
50 Indeed, since December 2009, Mrs Tey has commenced and conducted numerous pieces of litigation. For example:
(a) In Tey v Plotz [2011] WASCA 194, Mrs Tey briefed counsel to appear for her in an appeal heard in this court on 28 July 2011.
(b) In the present case, Mrs Tey appeared in person before Mazza J when the appeal was heard on 12 September 2011, and she prepared and filed various documents relating to those proceedings, both before and after the hearing.
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- (c) In Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3, Mrs Tey appeared in person before Commissioner Gething in the District Court on 9 December 2011 in an appeal by her against a decision of a deputy registrar of the court. It is evident from the Commissioner's reasons that Mrs Tey prepared and filed various documents relating to the proceedings before the hearing.
(d) In Tey v Plotz [No 3] [2012] WASC 25, Mrs Tey appeared in person before Hall J in the Supreme Court on 12 January 2012 in connection with applications by her in three single judge appeals for orders that costs orders, and proceedings to enforce them, be stayed, pending the resolution of further appeals. It is evident from his Honour's reasons that Mrs Tey prepared and filed various documents relating to those proceedings before the hearing.
(e) In Tey v Optima Financial Group Pty Ltd [2012] WADC 20, Mrs Tey appeared in person before Commissioner Gething in the District Court on 3 February 2012 in connection with an application by her for leave to appeal from an order as to costs made by a judge of the District Court. It is evident from the Commissioner's reasons that Mrs Tey prepared and filed various documents relating to those proceedings before the hearing.
51 In my opinion, Mrs Tey should not be granted an extension of time to file her appellant's case. My reasons are these. First, none of the proposed grounds of appeal has a reasonable prospect of success. Secondly, Mrs Tey has not given a satisfactory explanation for her failure to file her appellant's case by 24 November 2011 or her continuing failure after that date to file her case. It is apparent from the pieces of litigation to which I have referred that Mrs Tey has been capable of preparing and filing various documents, and appearing in person, in several pending proceedings in mid to late 2011 and early 2012. I am not persuaded that Mrs Tey's injuries or her medical condition have prevented her from preparing and filing her case. Each of the reasons I have given is sufficient, of itself, to require that the extension of time sought by Mrs Tey be refused.
Conclusion
52 The application dated 19 December 2011 should be dismissed.
53 The appeal should be listed before this court for the purpose of hearing from the parties as to whether the appeal should be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules.
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