JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TEY -v- PLOTZ [No 2] [2011] WASC 34
CORAM: JENKINS J
HEARD: 17 SEPTEMBER 2010
DELIVERED : 16 FEBRUARY 2011
FILE NO/S: SJA 1139 of 2009
SJA 1033 of 2010
BETWEEN: KOK YONG TEY
Appellant
AND
MARTIN DANIEL PLOTZ
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :PE 41286 of 2009
Catchwords:
Criminal law - Appeal against conviction - Failing to comply with request to give police personal details - Whether request was lawfully made - Whether request was made for an improper purpose - Whether appellant failed to comply with request - Whether appellant had a reasonable excuse for not complying with the request - Prosecution failed to seize CCTV footage
Criminal law - Appeal against sentence - Failing to comply with request to give police personal details - Whether magistrate properly assessed appellant's ability to pay a fine - Whether magistrate improperly took into account adverse material in the presentence reports
Criminal law - Review of provisional decision - Offender's application for leave to appeal from decision in Magistrates Court criminal proceedings - Identity of the respondent to the appeal - Prosecutor named as WA Police - Prosecution commenced by a police officer
Legislation:
Criminal Appeals Act 2004 (WA), Pt 2, s 14(2)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16, s 16(6)
Criminal Investigations Act 2006 (WA), s 27
Criminal Procedure Act 2004 (WA) s 42, s 61(5)(e), s 78
Criminal Procedure Rules 2005 (WA), r 63, r 68(1)
Sentencing Act 1995 (WA) s 39(2), s 41, s 53
Result:
Provisional decision confirmed
Leave to appeal on each ground refused
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J R Ludlow
Respondent: Ms R Young
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Hounslow v Woodward [2007] WASC 27
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
The State of Western Australia v Mohamed (No 2) [2007] WASC 311
JENKINS J: On 20 November 2009 in the Magistrates Court at Perth Kok Yong Tey was convicted, after trial, of failing to comply with a request to give police her personal details. She was fined $500. Mrs Tey appeals against both her sentence and conviction.
In both the notices of appeal against conviction and sentence, Mrs Tey named 'WA Police' as the respondent. In Tey v Plotz [2010] WASC 163 I gave reasons for deciding that the titles of the appeals should be amended to substitute…
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- AGLC
- Tey v Plotz [No 2] [2011] WASC 34
- Case
- [2011] WASC 34
- Decision Date
CaseChat Overview and Summary
The court found that the police had failed to prevent the Department of Transport from destroying CCTV records that were relevant to the prosecution, which put the prosecutor in a position where they could not comply with their obligation to disclose all relevant evidence. The court also found that the magistrate erred in law by not considering whether the prosecutor had proved beyond reasonable doubt that the police officer had not failed to take into account a relevant consideration in deciding to exercise their statutory power. The court found that the appellant had a reasonable excuse for not complying with the police request, as she had already provided her personal details to other authorities and had offered to show the police officer a letter from the Attorney-General containing her name and address, which the officer had rejected.
The court allowed the appeal against conviction and ordered a retrial. The court also allowed the appeal against sentence and ordered a resentencing hearing. The court found that the magistrate had improperly taken into account adverse material in the pre-sentence reports and had not properly assessed the appellant's ability to pay a fine. The court ordered that the appellant be given an opportunity to make submissions on her ability to pay a fine and that the resentencing hearing be conducted in her absence if she was unable to attend.
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
At the hearing of the application for leave to appeal I gave Mrs Tey leave to rely on proposed substituted grounds of appeal against conviction which are:1.Magistrate Wheeler and the learned trial Magistrate erred in law and in fact in failing to rule that the prosecution should not be permitted to proceed, on the grounds that the prosecutor had failed to prevent the Department of Transport from destroying its closed circuit television records containing evidence relevant to important issues in dispute in the prosecution, and had therefore also:a.put himself into a position where he would be, and was, unable to comply:i.with his common law obligation to disclose all relevant evidence to the Appellant; ii.with s 61(5)(e) of the Criminal Procedure Act 2004 (WA) if lawfully required to do so; andb.put the Appellant into a position where she would be, and was, unable to obtain the closed circuit television records even by serving a subpoena on the Department of Transport;with the result that there was a miscarriage of justice. 2.The learned trial Magistrate erred in law in failing to consider whether the prosecutor had proved beyond reasonable doubt that Constable Plotz had not failed to take into account a relevant consideration in deciding to exercise his statutory power under s 27(1) of the Criminal Investigation Act 2006 (WA), with the result that there was a miscarriage of justice.Particulars of matters raising a question whether Constable Plotz had failed to take into account a relevant considerationThe Statement of Material Facts alleged that Constable Plotz had exercised his statutory power, and there was evidence before the Magistrate indicating that Constable Plotz had purported to exercise his statutory power, under s 16 of the Criminal Investigations (Identifying People) Act 2002 (WA) for the purpose of giving an order under s 270) of the Criminal Investigation Act 2006, but there was no allegation, nor any evidence, to the effect that in deciding to make that order Constable Plotz had taken into account the matters he was required by s 27(3) of the Criminal Investigation Act 2006 to take into account in making any such order.3.The learned trial Magistrate erred in law in failing to consider whether the prosecutor had proved beyond reasonable doubt that Constable Plotz had not purported to exercise his statutory power under s 16 of the Criminal Investigations (Identifying People) Act 2002 (WA) for an improper purpose, with the result that there was a miscarriage of justice.Particulars of evidence raising possible improper purposeThere was evidence before the trial Magistrate raising an issue as to whether Constable Plotz had purported to exercise the relevant statutory power as part of a strategy by Constable Plotz, another police officer, and an officer or officers of the Department of Transport, aimed at facilitating the wrongful infringement of the Appellant's lawful right to transact business with the State of Western Australia in respect of the renewal of her driver's licence, and, in particular, at preventing her from re entering the office of the Department of Transport to transact such business.4.In considering whether Constable Plotz had validly made a statutory request for the Appellant's name, the learned trial Magistrate erred in law in failing to take into account the relevant fact that as at the date of the alleged offence the Appellant had recently supplied the first law officer of the State, the Attorney‑General, with her name and address, and that, to the knowledge of the relevant police officers at the relevant time, the Attorney‑General had even more recently responded to the Appellant's communication by sending her a letter bearing her name and address, with the result that there was a miscarriage of justice.5.In considering whether Constable Plotz had validly made a statutory request for the Appellant's name, the learned Magistrate erred in law in failing to take into account:a.the Appellant's uncontradicted evidence to the effect that immediately before the alleged offence had allegedly taken place, the Appellant had supplied an employee of the Department of Transport, a person named Alison, with the Appellant's name, address, and date of birth;b.other evidence to the effect that the Department of Transport had been responsible for calling the relevant police officers to the place where the alleged offence had allegedly later taken place; andc.the prosecutor's election not to call Alison as a witnesswith the result that there was a miscarriage of justice.6.In considering whether Constable Plotz had made a valid statutory request for the Appellant's name, the learned trial Magistrate erred in law in failing to take into account the prosecutor's and his fellow police officer's relevant admissions under oath that the Appellant had offered outside the relevant premises of the Department of Transport shortly prior to the alleged occurrence of the alleged offence to show the fellow police officer the original letter from the Attorney‑General bearing her name and address, and that the fellow police officer had rejected that offer, with the result that there was a miscarriage of justice.7.Further or alternatively, the learned trial Magistrate erred in law in failing to consider whether the Appellant had a reasonable excuse for not complying with any valid statutory request that might have been made by Constable Plotz for her name, and, in particular, in failing for that purpose to consider:a.the fact, not disputed by the prosecution witnesses, that the Appellant had recently given her name and address to the first law officer of the State, the Attorney‑General;b.the Appellant's uncontradicted evidence to the effect that immediately before the alleged offence had allegedly taken place, the Appellant had supplied an employee of the Department of Transport, a person named Alison, with the Appellant's name, address, and date of birth;c.the prosecutor's election not to call Alison to contradict that evidence;d.other evidence to the effect that the Department of Transport had been responsible for calling the relevant police officers to the place where the alleged offence had allegedly later taken place;e.the fact, not disputed by the prosecution witnesses, that the Appellant had at least waved a bank card with her name on it in front of the relevant police officers before exiting the premises of the Department of Transport;f.the Appellant's evidence to the effect that in fact she had held the bank card in such a manner that her name on it could have been read by the relevant police officers while she was holding it in front of them;g.the fact, not disputed by the prosecution witnesses, that the Appellant had offered to show Constable Plotz's fellow police officer the original letter from the first law officer of the State setting out her name and address;h.the fact, not disputed by the prosecution witnesses, that the fellow police officer had rejected that offer;with the result that there was a miscarriage of justice.