Titelius v The State of Western Australia
[2008] WASC 288
•28 NOVEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TITELIUS -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 288
CORAM: McKECHNIE J
HEARD: 28 NOVEMBER 2008
DELIVERED : 28 NOVEMBER 2008
FILE NO/S: SJA 1084 of 2008
BETWEEN: RICHARD TITELIUS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 17747 of 2008
Catchwords:
Courts and judges - Allegation of bias against magistrate and prosecutor - Turns on own facts - No reasonable prospect of success
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Police v Creedon [1976] 1 NZLR 571
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McKECHNIE J: This is an application for leave to appeal. The appellant was charged with failing to stop at a stop sign and pleaded not guilty. There was no infringement notice issued and the matter proceeded upon summons. The prosecution called two witnesses, both police officers, as to their observations and what the appellant was alleged to have said.
The appellant gave evidence and called two witnesses. There is no dispute that the appellant drove through the stop sign. The issue raised was whether under the Criminal Code (WA) s 24, there was an honest and reasonable but mistaken belief which operated as an excuse, the prosecution bearing the onus of disproving that.
The magistrate was satisfied that the prosecution had proved its case and fined the appellant $200. I am told that the cost of an infringement notice, had one been issued was $150.
The appellant seeks leave to appeal on three grounds which are properly particularised and may be summarised as follows:
(1)Bias of Magistrate;
(2)Bias of the Prosecutor.
Those are the only two grounds that challenge the conviction.
The third ground is that there was 'No circumstance of aggravation of the offense' and which challenges the extent of the fine.
Grounds against conviction
When the hearing commenced and before evidence was led there was the following interchange. After the charge had been read and the plea taken the magistrate said:
HIS HONOUR: Now, before we proceed, Mr Titelius, as we are all aware I have known you for many years.
TITELIUS, MR: Yes.
HIS HONOUR: Is there - do you have any difficulty with me handling this case?
TITELIUS, MR: No. I don't if it's okay with the prosecution then I consent to you hearing the case.
HIS HONOUR: Yes. All right. Well, I will ask it.
TITELIUS, MR: Determine it according to law.
HIS HONOUR: That's right, yes. Okay. Sergeant, you have no objection?
PROSECUTOR: No, sir. If you are happy to deal with the matter I am happy for you to do so.
HIS HONOUR: Any difficulty I will have any other magistrate will have too because we have all known Mr Titelius for many years.
PROSECUTOR: Yes, sir.
HIS HONOUR: As well have you.
And so the matter proceeded. The test for bias is laid down by the High Court in two cases: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. There are two types of bias - one which can be waived and one which cannot. I am inclined to think this falls into the category of the bias that can be waived or perception of bias that can be waived, but in any event I have carefully read the transcript several times to determine the allegation that the magistrate intervened in a way that showed bias. It seems to me there was no meaningful intervention by the magistrate in the case of Constable Greenough. In the course of the cross‑examination of Constable Rock there were some interventions by the magistrate to keep the matter relevant, and those appear for example on pages 27 and 28. The officers, as I have said, were the only witnesses for the prosecution.
After lunch the appellant gave evidence during which the magistrate asked some questions designed, it would appear, to clarify and understand the evidence and particularly to understand the assertion of an honest and reasonable but mistaken belief. The respondent was then cross‑examined.
He called David Hoy of the Town of Vincent concerning the pruning of trees and then called Sharon Healy of the traffic services office of Main Roads who responded to an inquiry about the visibility requirements for stop signs. At the conclusion of her evidence, the matter moved to submissions. At page 52 his Honour said:
HIS HONOUR: If you've got some submission in respect of the law - - -
TITELIUS, MR: Yes, on the law, sir, yes.
HIS HONOUR: It has be pertinent to this matter. We are not just going to sit and listen to a whole pile of cases that in one court decided this and in another court decided that because they've all got different facts. They all have different factual situations.
The prosecutor made very brief submissions. The respondent then made submissions during which the magistrate asked questions about the photographs and what was shown in the photographs. The appellant made reference to Police v Creedon [1976] 1 NZLR 571. The magistrate declined to take a copy but asked for the relevant parts to be read.
There was an interjection by the prosecutor. There was some interchange but further parts were read. The magistrate stopped the appellant, pointing out material factual differences between the situation in Creedon and the present case and concluded at page 62:
HIS HONOUR: As I have said before, Mr Titelius, this is not a political debate subject to rhetoric where you have to have an answer to every question.
TITELIUS, MR: Yes.
HIS HONOUR: We are looking at facts here.
At page 64 of the transcript the magistrate delivered judgment. He noted there was no dispute that the appellant did not stop his vehicle at the stop line or stop sign. The appellant had conceded he did go through the stop sign but relied on s 24. The magistrate rejected that on the basis that it could not be a reasonable belief. There is no direct challenge to that finding as such and that finding was open on the evidence.
I have, as I said, read the transcript several times. There can be no reasonable apprehension in an interested bystander that the magistrate was biased or acted in a biased manner. Even if there was the perception of bias the appellant could and did waive objection to the magistrate sitting in judgment.
Under the Criminal Appeals Act 2004 (WA) I cannot grant leave unless I am satisfied there are reasonable prospects of success. That is expanded in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, and that is the test I apply. In relation to ground (1) Bias of Magistrate - I am not satisfied that there is any arguable case of bias in respect of the magistrate and refuse leave on that ground.
Ground (2) Bias of the Prosecutor - I have been through the transcript and there is no evidence in the transcript that the prosecutor displayed a bias against the appellant. Naturally, the prosecutor was an adversary. He did not act, as I can see in the transcript, in any way with impropriety.
The appellant has asserted facts this morning about the relationship between he and the prosecutor which may or may not be true. I am in no position to judge that, but there is a different question of bias in relation to a party representing the other side and a judicial officer who can be expected to be unbiased.
That is not to say that in appropriate cases a party acting may display bias to such an extent that there has not been a fair trial. I am unable to say that there is any reasonable prospect of success on this ground on any test. Reading the transcript, it does not seem that the prosecutor strayed beyond a proper role or that the trial miscarried. Leave on this ground is refused.
Ground about penalty
I turn to the final ground which is 'No circumstances of aggravation of the offense'. The magistrate increased the fine from $150 to $200. It is true that there were no circumstances of aggravation, there was no other traffic and no traffic accident. It might well have been a case where the magistrate could have exercised his discretion to impose a fine equivalent to that of an infringement notice.
The fact that he did not, however, does not of itself demonstrate error. I consider the fine was in the appropriate range having regard to the maximum. There is no rule that says that a magistrate must fine only an amount equivalent to an infringement notice after a trial. In my view, although the magistrate might have done so, the fact that he did not does not display error and the ground does not enjoy reasonable prospects of success.
The magistrate imposed costs and costs normally follow the event in the Magistrates Court and no error in his discretion is shown in imposing costs. In my view, applying the Criminal Appeals Act 2004 (WA) test as I must, no ground has reasonable prospects of success and therefore leave to appeal is refused.
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