Tey v City of Perth
[2006] WASCA 211
•3 OCTOBER 2006
TEY -v- CITY OF PERTH [2006] WASCA 211
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 211 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:61/2006 | 3 OCTOBER 2006 | |
| Coram: | STEYTLER P WHEELER JA | 3/10/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | KOK YONG TEY CITY OF PERTH |
Catchwords: | Turns on own facts |
Legislation: | City of Perth Parking Local Law 1999 Criminal Code (WA), s 22, s 24 |
Case References: | Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TEY -v- CITY OF PERTH [2006] WASCA 211 CORAM : STEYTLER P
- WHEELER JA
- Applicant
AND
CITY OF PERTH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN J
File No : SJA 1114 of 2003, SJA 1115 of 2003
Catchwords:
Turns on own facts
Legislation:
City of Perth Parking Local Law 1999
Criminal Code (WA), s 22, s 24
(Page 2)
Result:
Extension of time to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER P: I agree with Wheeler JA.
2 WHEELER JA: There are a variety of applications made by the applicant. She seeks an extension of time to appeal a decision of Pullin J refusing leave to appeal against conviction, in respect of two convictions. She also seeks certain interim orders relating to the suspension of her licence. I would refuse the extension of time on the basis that neither appeal can possibly succeed.
3 The background is as follows. The two offences in question were parking offences. Referring to the original appeal numbers in this Court, number 114 of 2003 related to an offence allegedly committed on 3 August 2002, and there is a transcript in relation to that matter. Number 115 of 2003 is an offence allegedly committed on 14 August, and in relation to which we have no materials. However, the applicant has been able to describe the circumstances of that latter offence and for present purposes I am content to accept the circumstances as they have been explained by her.
4 In relation to 114, the charge was that the applicant had parked at 1.41 pm in Lake Street, Northbridge in an area set aside for vehicles of a different class under the by-laws. The by-laws in question are the City of Perth Parking Local Law 1999 and the relevant by-law for the purpose of that charge is 2.3, which provides:
"A person must not stop or park a vehicle in a parking facility if by a sign it is set apart for the stopping or parking of vehicles of a different class."
5 By reason of the definition in 1.4 "a parking facility" includes roads and parking areas, whether a fee is charged or not, and for completeness, I should mention also that 1.5 of the by-laws provides that an arrow is taken to be pointing in the direction that it would point if the sign were parallel with the boundary. By-law 1.9 provides for the way in which signs are to be applied. Signs apply to a part of a road beyond the sign, and between that sign and the next sign. The effect of that is that the sign does not have to be immediately adjacent to the parking area, in order to apply to that parking area.
6 In relation to the Lake Street charge, the evidence of the parking inspector was that the applicant's vehicle was parked in the road at the relevant time. It is not disputed that it was a Saturday. It was approximately 1.39 pm. The sign is described in this way in the
(Page 4)
- transcript, again in a way which was not disputed at trial, and which was not disputed by the applicant today. The sign said, "Monday to Friday, 8.00 to 5.30, two-hour ticket parking; 8.00 to 12-noon on Saturday, two-hour ticket parking". It seems from her Honour's reasons that those portions of the sign were in green. It then said, "No parking, police vehicles excepted, other times." That seems to have been in red.
7 At the relevant time, on that evidence, the parking facility was set aside for police vehicles only, a different class of vehicle obviously from vehicles of members of the public such as the applicant. An infringement notice was issued and was not paid.
8 There was cross-examination of the parking inspector before her Honour. That was not always easy to follow. A photograph of the sign was at one stage shown to the witness and he accepted that it did show the sign as it was, save that he was not sure whether there was or was not a tow-away sign in addition at the relevant time. Much of the cross-examination was directed at whether there was a tow-away sign, but that is not relevant to the question of whether the sign set the area aside for vehicles of a different class. A number of photos were tendered.
9 The applicant gave evidence, the thrust of which was that she thought she could park at the time in that place. She did not look at all of the sign; she just looked at it quickly and it was her view that the no parking portion of the sign should be more prominent if the sign was not to be confusing.
10 Her Honour's reasons were as follows. She set out what the sign said. She said that the thrust of the applicant's evidence was that she saw in green, "Saturday 12 noon ticket parking" and did not read further, did not really register anything further in terms of the sign and had made suggestions about how the sign could be improved. Her Honour expressed the view that the relevant signs were at the front and back of the parking area, which was not disputed. She went on to make some observations in relation to whether or not the signs could be considered to be misleading.
11 It is a question of law whether a sign satisfies the description in the by-laws of one "setting aside the area for vehicles of a different class". In my view, it is clear from the description given in the evidence and not disputed at trial that the sign did set aside that area at the time at which the applicant parked, for police vehicles only.
(Page 5)
12 The applicant raises before us a question of whether the sign was such as to confuse or mislead a member of the public who reads quickly. That seems to be a matter about which views may differ. Her Honour thought that the sign was not misleading. Pullin J thought that it could be. However, as a matter of law the question of whether the sign could confuse, or whether the applicant was in fact confused, is irrelevant. That is because the effect of the mistake is governed by s 22 and s 24 of the Criminal Code (WA). Section 22 provides:
"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence unless knowledge of the law by an offender is expressly declared to be an element of the offence."
13 Section 24 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."
14 In summary, s 24 provides that a mistake of fact may be a defence. A mistake as to whether the area is set aside for parking by vehicles of a different class, where there is a sign setting the area aside, is one of law. A case which is closely analogous, in my view, is Ostrowski v Palmer[2004] HCA 30; (2004) 218 CLR 493, a decision of the High Court. In that case a commercial fisherman went to the office of the Fisheries Department and asked for copies of regulations relating to current seasons for the rock lobster fishing zones. He was given copies of regulations and notices which left out a regulation relating to a prohibition of fishing in a particular zone. He thought he had a complete copy of the regulations. He fished in that zone and he was charged. The High Court held that he was rightly convicted, as his mistake was one of law (relating to whether it was lawful to fish in the zone) and not a mistake of fact.
15 This appeal therefore cannot succeed.
16 In relation to the other conviction, the circumstances as briefly outlined by the applicant were: that she had parked in Hay Street; that there was a sign relating to whether she could park in that area; but that the sign was a little distance away from where she parked, over a walkway, and that she had not seen it. The only sign that she saw was one relating to a tram car pick-up, which obviously was not relevant to
(Page 6)
- whether it was possible to park or not. In effect, her defence was that she was not aware that there was a sign that applied to that area. However, as I have noted, the by-laws provide, by by-law 1.9, for the way in which signs apply and the sign, even if over the other side of the walkway, would continue to apply until one reached another sign having a different effect. That mistake also was a mistake of law.
17 These proposed appeals, therefore, cannot succeed. As the applicant was properly convicted it follows that there is no good reason why the Court should consider the question of her fine suspension. Those fines were imposed in respect of offences of which she was properly convicted, and she remains liable to pay them.
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