TNR v WA Police
[2025] WASC 122
•12 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TNR -v- WA POLICE [2025] WASC 122
CORAM: LUNDBERG J
HEARD: 15 APRIL 2025 (SUPPLEMENTARY MATERIALS FILED ON 24 APRIL 2025 AND ON 2 MAY 2025)
DELIVERED : 12 JUNE 2025
FILE NO/S: SJA 1078 of 2024
BETWEEN: TNR
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1078 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B AYLING
File Number : PE XXXXX of 2024
Catchwords:
Criminal law - Appeal against vehicle confiscation order made in the Magistrates Court under s 80C(1) of the Road Traffic Act 1974 (WA) - Appellant had committed her third 'impounding offence (driver's licence)' within a five year period - Appellant driving on each occasion while her driver's licence was suspended - Magistrate determined application for confiscation in the absence of the appellant - Appellant had notified the registry of the Magistrates Court that she sought further adjournment - Appellant's correspondence not brought to Magistrate's attention - Whether error of law through a denial of procedural fairness - Error established - Turns on own facts
Criminal law - Appeal - Whether Court should substitute its own decision on appeal or remit matter to the Magistrates Court - Turns on own facts
Criminal law - Meaning of 'severe financial or physical hardship' in s 80G(5) of the Road Traffic Act 1974 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 7(1), s 8(1), s 14(1)
Road Traffic Act 1974 (WA), s 49(1)(a), s 49(3), s 78A, s 80C, s 80FA, s 80GA, s 80G
Result:
Leave to appeal granted and appeal upheld.
Matter not remitted to Magistrates Court for re-hearing.
Confiscation application granted.
Category: B
Representation:
Counsel:
| Appellant | : | T Martin |
| Respondent | : | N T Worthy |
Solicitors:
| Appellant | : | Martin Lawyers |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
De Simone v Commissioner of Taxation [2009] FCAFC 181
Frohling v Police [2011] SASC 53
Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482
Johnson v Matthews [2020] WASC 122
Ninyette v Jones [2018] WASC 317
Perovic v Police [2011] SASC 174
Re Potter; Ex parte Coppin [2013] WASC 462
Repatriation Commission v Hall (1988) 78 ALR 687
Rogers v Police [2011] SASC 215; (2011) SASR 370
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478
Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205
Sullivan v Department of Transport (1979) 20 ALR 323
Taylor v Attorney-General (SA) (1991) 55 SASR 462
Table of Contents
A. Introduction
B. The Appeal
Material filed by the appellant
Material filed by the respondent
The record of the proceedings before the Magistrate
C. Legislative framework
Legislative framework for the appeal
Legislative framework for the Confiscation Order
D. Proceedings before the Magistrates Court
E. Issues arising on this appeal
F. Whether an error of law has been demonstrated?
G. Whether the matter should be remitted?
H. The Confiscation Application
Preliminary
Requirements for a confiscation order
Findings on the evidence
Relevant principles
Conclusion
I. Conclusion and orders
ATTACHMENT A Table of Materials before the Court
LUNDBERG J:
A. Introduction
This is an appeal from a decision of a Magistrate sitting in the Perth Magistrates Court made under the provisions of the Road Traffic Act 1974 (WA) (the RTA),[1] by which the appellant's vehicle was ordered to be confiscated, in the appellant's absence. I have anonymised the name of the appellant in these reasons and the charge numbers, given the evidence includes reference to her children, two of whom are minors aged 9 and 14 years.
[1] All references to statutory provisions in these reasons are references to the RTA, unless other stated.
Prior to the hearing of the appeal, the parties clarified that the description of the vehicle in the appeal documents as a '2019 Mazda 3D Panigale V4' was an inadvertent error. The vehicle is properly, and somewhat less exotically, described as a '2019 Mazda 3' (the Mazda Vehicle).
Pursuant to the RTA, the Commissioner of Police and a court are each empowered to impound vehicles, and a court is also empowered to confiscate vehicles, where certain offences are committed. The regime is found in div 4 of pt 5 of the RTA,[2] which is headed 'Impounding and confiscation of vehicles for certain offences'.
[2] Part V of the RTA is headed 'Regulation of traffic', and provides for various driving offences, including driving while unlicensed or disqualified, dangerous and careless driving, and driving under the influence, and contains the powers to impound and confiscate vehicles.
In the present matter, it is common ground that the appellant had committed a third relevant offence within a five year period, which triggered the operation of these provisions. This led to an application being made to the Magistrates Court by the Commissioner of Police, pursuant to s 80C(1), for an order that the appellant's Mazda Vehicle be confiscated. I will refer to this as the Confiscation Application.
Subdivision 3 of pt 5 of the legislation deals specifically with the circumstances in which a Court may order that a vehicle be impounded or confiscated. The legislation identifies two forms of offences in this regard, being:
(a)an 'impounding offence (driving)'; and
(b)an 'impounding offence (driver's licence)'.
The first of these terms is defined in s 78A to include an offence against s 60 (driving in reckless manner), s 60A (driving at reckless speed) or s 62A (causing excessive noise or smoke from vehicle's tyres).[3] These offences are colloquially known as 'hoon' offences, being a phrase referred to in the explanatory material which has accompanied the more recent legislative changes.[4]
[3] The definition also extends to offences committed before the coming into operation of s 14 of the Road Traffic Amendment (Impounding and Confiscation of Vehicles) Act 2016 that was an impounding offence (driving) as defined in this section as in force when the offence was committed.
[4] See the Explanatory Memorandum for the Road Traffic Amendment (Hoons) Bill 2009 (WA) and the Second Reading Speech for the Road Traffic Amendment (Impounding and Confiscation of Vehicles) Bill 2015 (WA).
The present appeal is not concerned with any 'hoon' offences.
Rather, this appeal is concerned with the second form of the offences, being an 'impounding offence (driver's licence)', which covers unauthorised driving offences of a particular kind. The term is defined in s 78A to include an offence against s 49(1)(a), being the offence of driving a motor vehicle on a road while not authorised under the relevant legislation), where the offence was committed by a person described in certain paragraphs of s 49(3).
These persons include:
(a)a person who has applied for, but has been refused, an Australian driver licence of a kind required;[5]
(b)a person who is disqualified from holding or obtaining an Australian driver licence of a kind required, other than because he or she is no longer authorised to drive because of penalty enforcement laws;[6]
(c)a person who has held an Australian driver licence of a kind required but ceased to hold the licence, other than because the person had, before the time of the commission of the offence, voluntarily surrendered the licence, or because their licence expired, or because he or she is no longer authorised to drive because of penalty enforcement laws;[7] and
(d)a person whose authority to drive, whether under an Australian driver licence or otherwise, is for the time being suspended, other than because he or she is no longer authorised to drive because of penalty enforcement laws.[8]
[5] RTA, s 49(3)(a).
[6] RTA, s 49(3)(b).
[7] RTA, s 49(3)(ca).
[8] RTA, s 49(3)(c). This is the provision of relevance to the appellant.
On 30 April 2024, the appellant was sentenced in the Magistrates Court for an offence of no authority to drive while suspended, not being a fines suspension, in contravention of s 49(l)(a) and s 49(3)(c). This was an 'impounding offence (driver's licence)' as defined in the RTA. The appellant was sentenced to a cumulative disqualification period of 9 months and a fine of $1,000, plus court costs of $272.70.
This conviction meant the appellant had accumulated her third impounding offence within a five year period. The Confiscation Application was subsequently filed by the Commissioner on 23 May 2024. On 17 October 2024, the Court ordered, pursuant to s 80C(1), that the Mazda Vehicle be confiscated (the Confiscation Order). As explained below, the appellant was not present at that hearing.
B. The Appeal
Material filed by the appellant
The appellant now applies for leave to appeal against the Confiscation Order. In support of the application, the appellant filed an initial outline of submissions dated 21 February 2025 (AS), together with an application to admit further evidence dated 21 February 2025, supported by an affidavit from the appellant sworn 21 February 2025.
This material has been supplemented by a further outline of submissions dated 24 April 2025 (AFS) and further affidavits sworn by the appellant and her daughter on 24 April 2025. This additional material was filed in accordance with the directions the Court made at the conclusion of the substantive appeal hearing on 15 April 2025.
The sole proposed amended ground of appeal is as follows:
There was a breach of natural justice which resulted in a miscarriage of justice as a result of the order made by the learned magistrate to confiscate the Appellant's motor vehicle on 17 October 2024.
In essence, the appellant contends there was a breach of natural justice which resulted in a miscarriage of justice when the Confiscation Order was made.
As explained by the appellant, the Magistrate wrongly considered that the appellant had disengaged from the proceedings, when in fact the appellant had previously communicated with the Court by email requesting adjournments, and the appellant had communicated with the Court seeking an adjournment of the last hearing on 17 October 2024, which was not brought to the Magistrate's attention.
Material filed by the respondent
The application is opposed by the respondent. The respondent filed an outline of submissions dated 14 March 2025 (RS) and a further outline dated 2 May 2025 (RFS) in accordance with the directions made on 15 April 2025.
The respondent does not oppose the admission of the appellant's affidavit evidence on this appeal. In my view, the position adopted by the respondent in this regard is appropriate. I accept the affidavits are relevant to the appeal as they outline the manner in which the appellant maintains she was denied procedural fairness, provide a sworn explanation for her failure to appear on 17 October 2024, and advance material relevant to the orders which should be made on the appeal.
The record of the proceedings before the Magistrate
For the purposes of the appeal, and following a communication to the parties from the Court, the representatives of the parties conferred and agreed that several documents should be provided to the Court.
I have caused to be prepared a table, which is set out in Attachment A to these reasons, which identifies the documents provided to the Court. These documents, in effect, represent the record of the proceedings below. Further, the relevant circumstances of the impounding offences of which the appellant was convicted are detailed in the statements of material facts which are documents 12, 13 and 14.
C. Legislative framework
Legislative framework for the appeal
The appellant's application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).
An aggrieved party may appeal a sentence imposed as a result of a conviction.[9] The grounds of appeal may include where there has been an error of law, where a sentence has been imposed that was inadequate, and where there has been a miscarriage of justice.[10]
[9] CA Act, s 6(f) and s 7(1).
[10] CA Act, s 8(1)(a) and (b).
Leave to appeal must not be granted on a ground of appeal unless the Court is satisfied that the ground has a reasonable prospect of succeeding,[11] meaning that the ground is required to have a rational and logical prospect of succeeding.[12] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[13]
[11] CA Act, s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
[13] CA Act, s 14(2).
Even if a ground of appeal might be decided in favour of the appellant, the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[14]
[14] CA Act, s 9(3).
Pursuant to s 14(1) of the CA Act, this Court on appeal may dismiss the appeal, may allow the appeal, or may set aside or vary the decision of the court below and the sentence imposed, order made or thing done as a result of the decision. Additionally, pursuant to s 14(1)(d) of the CA Act, the Court may substitute a decision that should have been made by the court below.
If the Court exercises its power in accordance with s 14(1)(d) of the CA Act, then the Court should be satisfied that the evidence before it is sufficient to safely make a finding in respect of substituting a decision of the court below.[15]
Legislative framework for the Confiscation Order
[15] Johnson v Matthews [2020] WASC 122 [48].
Section 80C, which forms part of div 4 pt 4 of the legislation, headed 'Impounding and confiscation of vehicles for certain offences', states as follows:
80C. Impounding offence (driver's licence) by previous offender, court may confiscate vehicle of
(1) A court that convicts a person of an impounding offence (driver's licence) may, by order, confiscate a vehicle referred to in section 80GA.
(2) A court is not to make an order under subsection (1) unless it is satisfied that in the 5 years before the day on which the offence was committed the person was convicted of 2 previous impounding offences (driver's licence).
Pursuant to s 80D(1), the property in a vehicle which is confiscated under s 80C(1), among other provisions, 'vests absolutely in the State when the order is made, free from all interests, rights, titles or claims in or to the ownership or possession of the vehicle'.
Section 80G(1)(a) provides that the Commissioner cannot apply for an order under s 80C(1) for the impounding or confiscation of a vehicle unless the offender is a responsible person for the vehicle, or in the case of an order under s 80C(1), the vehicle was used in the offence, among other circumstances.
Section 80G(4) provides that:
(4)Before a court makes an order it has to give a reasonable opportunity to show cause why the order should not be made to-
(a)the driver of the vehicle;
(b)if a person other than the driver is a responsible person for the vehicle, each responsible person; and
(c)each other person, if any, who has an interest in the vehicle.
Section 80G(5) provides that:
(5) In determining whether or not to make an order other than an order under section 80A(3) or (4), the court may have regard to:
(a)whether the offence because of which the order is sought was committed with the knowledge and acquiescence of a person who has an interest in the vehicle; and
(b) whether making the order will cause severe financial hardship or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle; and
(c) any other relevant matter.
I have earlier in these reasons referred to the definition of 'impounding offence (driver's licence)' in s 78A(1), and need not repeat that here.
It is not in dispute on this appeal that the prerequisites for the application, and the making of an order under s 80C(1), were made out.
D. Proceedings before the Magistrates Court
The Confiscation Application was first listed for hearing in the Magistrates Court on 20 June 2024. The matter was adjourned to permit the appellant to obtain legal advice.
There were then a further three listings of the Confiscation Application, on 18 July 2024, 6 September 2024, and 17 September 2024. The appellant did not appear at those hearings having been granted adjournments, respectively, to permit legal advice to be obtained, because of illness, and because of work commitments.
The Confiscation Application was next listed for hearing on 17 October 2024. It is this listing which has created various difficulties for the appellant and which gives rise to the present appeal.
The appellant, having misapprehended that the hearing was scheduled for 9.30am on 16 October 2024, emailed the Magistrates Court on 15 October 2024 seeking an adjournment of the hearing or for leave to appear at the hearing via a video link. The appellant explained in her correspondence to the Magistrates Court that, as a result of a flight change, she now would be travelling on 16 October 2024 from Newman to Perth, rather than on 15 October 2024. This would obviously create some difficulties for her attendance in person but, as noted, the appellant also proposed having a video call.
In any event, the communication to the Magistrates Court, which was undoubtedly received by the Registry of the Court, did not find its way to the presiding Magistrate. I pause here to note that the response from the Registry[16] expressly informed the appellant that the hearing was in fact listed for 17 October 2024, not 16 October. The appellant has no explanation for misapprehending the date of the hearing and no explanation for why she failed to appreciate that the response from the Court identified the correct hearing date.
[16] Apparently sent by the Court on 16 October 2024 at 11.33am.
As matters transpired, the hearing proceeded on 17 October 2024, without any appearance from the appellant, and the Magistrate formed the view it was appropriate, given the number of prior hearings in the matter and the given the absence of the appellant, to proceed to determine the Confiscation Application in the appellant's absence.
The transcript of the hearing on 17 October 2024 records an unfortunately vague indication from the prosecutor that there had been several prior listings of the matter, and that the appellant had not appeared on the last two occasions. At one point, the prosecutor said there had been 8 prior listings, but then changed that to either 4 or 5 prior listings. The prosecutor then said:[17]
PROSECUTOR: There's a note that – adjournment for submissions and an adjournment for legal advice. Adjournment for unknown reason. Non-appearance.
HER HONOUR: Seems that – I don't know ---
PROSECUTOR: So the last two appearances have been non-appearance.
[17] Transcript 17 October 2024, pg 2.
The transcript then records the following observations of the Magistrate:[18]
HER HONOUR: Yes. I see. I see that the last three appearances have been before the same magistrate. There has been no extra note made by that magistrate, but as you've indicated, the accused or the respondent to this application, rather, has not attended on the last two occasions. It seems his Honour has given ample opportunity for her to engage.
In the absence of any other information to indicate that it would be appropriate for the matter to be put off for another day, I see no reason why there ought not to be action taken on the application. There's no correspondence received by the respondent to the application explaining her position. She hasn't attended today. She has been properly notified. You don't have any information to hand as to what her position is or - -
[18] Transcript 17 October 2024, pg 2 – 3.
Thereafter, the Magistrate expressly asked whether there had been any correspondence received from the appellant, to which the prosecutor responded that there had not been.
In these circumstances, it is far from surprising that the Magistrate would consider it appropriate to proceed to finally determine the Confiscation Application notwithstanding the absence of the appellant. As of 17 October 2024, the application had been on foot since 2 May 2024, which is almost 6 months, and the record of the Court indicated that the matter had been the subject of four prior listings.
However, the Magistrate was plainly unaware that the appellant had written to the Court on 15 October 2024 to seek either an adjournment or to investigate the option of a video conference call. The Magistrate also does not appear to have been properly informed as to the nature of the prior listings in the matter and the explanations previously given by the appellant for the earlier adjournments.
The appeal to this Court falls to be determined in the foregoing context.
E. Issues arising on this appeal
The submissions advanced by the parties require the Court to address two matters for the purposes of the appeal.
The first issue is to assess whether the appellant has demonstrated an error of law on the part of the Magistrate, in that there was an asserted denial of procedural fairness arising from the Magistrate's decision to determine the Confiscation Application in the appellant's absence on 17 October 2024.
The second issue is to assess whether, if an error of law is demonstrated, whether the appropriate disposition is for the matter to be remitted to the Magistrates Court for final determination, or whether this Court should substitute its own decision in respect of the Confiscation Application pursuant to the power in s 14(1)(d) of the CA Act.
F. Whether an error of law has been demonstrated?
The appellant places reliance on the administrative error by which the communication from the appellant to the Magistrates Court on 15 October 2024 was not provided to the presiding Magistrate, and by virtue of which the appellant's request for an adjournment was not brought to the attention of the Magistrate.
The appellant submits there was, in these circumstances, a breach of natural justice. That breach resulted in a miscarriage of justice when the Magistrate proceeded thereafter to grant the orders sought in the Confiscation Application, the appellant having been deprived of the opportunity to make submissions and to oppose that application.
Importantly, the appellant contends that she had not disengaged from the proceedings before the Magistrate. On the contrary, the appellant emphasises that she communicated with the Court by email on each of the prior occasions when the matter was listed, seeking an adjournment on each such occasion.[19]
[19] I refer to the email exchanges on 5 September 2024, 15 September 2024 and 15 October 2024.
The appellant candidly concedes that she ought to have been clearer in making her request for an adjournment and that the misapprehension as to the hearing date was a mistake on her part. The communication sent by the appellant indicates that she wrongly thought the hearing was listed for 16 October 2024, but was in truth scheduled for the following day. The appellant accepts she could have attended court on the scheduled hearing date, as she had returned to Perth by then. The best explanation the appellant can provide is that it was simply a memory lapse.
The appellant contends that, had the hearing on 17 October 2024 been adjourned by the Magistrate, the appellant had good prospects of succeeding in establishing that the Confiscation Application should not have been granted. The appellant has also adduced evidence through her affidavits filed in this Court which she submits is sufficient to demonstrate that the confiscation would cause 'severe financial hardship or physical hardship' within the meaning of s 80(5).
The appellant relies on the principles expressed by Beech J, as his Honour then was, in Re Potter; Ex parte Coppin,[20] as follows:
[35] Natural justice requires that a party to a case is given a reasonable opportunity to present his case. Where a party, through no fault of his own, is deprived of that entitlement, any order made against him can, prima facie at least, be set aside. Natural justice requires only that a party be given a reasonable opportunity to present his or her case. It is not the function nor the duty of the court to ensure that the party takes the best advantage of that opportunity.
[36] In my view, the provision to an affected party of an opportunity to be heard is at the heart of the hearing rule. That that is so seems to me also to be illustrated by what is required by procedural fairness when a tribunal receives information, adverse to a party's interest, that is credible, relevant and significant. In those circumstances, natural justice requires the tribunal to give that party an opportunity to deal with the adverse information.
[37] In some situations, a failure to adjourn a hearing so as to enable a party to be present or to give evidence may amount to a denial of natural justice. For example, in Opitz v Repatriation Commission, Hill J held that, in circumstances where an earthquake prevented the applicant giving evidence that would have been material, the tribunal's refusal to adjourn the hearing on that ground breached the requirements of natural justice. There are even cases in which a failure to grant an adjournment can be a breach of natural justice although no application for an adjournment was made.
[38]Whether in a particular case a failure to adjourn amounts to a denial of natural justice is a fact sensitive question to be decided in all the circumstances of the case.
…
[42] Whether the magistrate acted inconsistently with the requirements of natural justice is to be judged objectively, in light of the facts and circumstances known to the court and, perhaps, in light of any additional facts that ought to have been known by the court.
[20] Re Potter; Ex parte Coppin [2013] WASC 462.
In Re Potter; Ex parte Coppin, Beech J dismissed the application for a review order of the decision which had been made by the Magistrate, which was brought on the basis the applicant had been denied natural justice. The applicant had applied to the Magistrates Court to set aside an order evicting her from her home which she rented from the Department of Housing and Works. The applicant arrived at the Court about an hour late on the day appointed for the hearing, but by then, the application had been dismissed.[21]
[21] Re Potter; Ex parte Coppin [1].
Beech J observed that, insofar as the knowledge of the Magistrates Court was concerned, the Court knew that:
(a)the initial application had been made by the Department on notice to the applicant, and had been determined by the Court in the absence of the applicant as she did not attend court;
(b) the set-aside application had been listed for 9.30am on 29 August 2013; and
(c)by 10.00am that day, the applicant had failed to appear and had not communicated with the Court.[22]
[22] Re Potter; Ex parte Coppin [43].
Beech J noted that the Court had no knowledge of the applicant's reasons for not appearing and there was no suggestion the Court should have known anything about why the applicant had failed to appear.
In these circumstances, his Honour concluded that natural justice did not require the Court to adjourn the hearing of the applicant's application to another date, or to stand the matter down and attempt to contact her.
Returning to the present appeal, the appellant's counsel also noted the provisions within the legislation requiring notice to be given to persons affected by the proposed order, and a reasonable opportunity allowed to show cause. Section 80G(3) provides that the driver of the vehicle will be regarded as having sufficient notice of the Commissioner's intention to confiscate the vehicle if the driver is given written notice 14 days before the application is made. Section 80G(4) requires that, before a court makes an order, 'it has to give a reasonable opportunity to show cause' why the order should not be made.
In response, the respondent maintained that the appellant was not denied a reasonable opportunity to be heard, rather she failed to take advantage of the opportunity afforded for reasons of her own making, namely her misapprehension as to the hearing date.
The respondent emphasised that there had been multiple hearings in the matter to that point, and the appellant's failure to appear on 17 October 2024 was fundamentally a function of her own mistake.[23]
[23] RS [3] and [49]; RFS [2].
Counsel for the respondent also drew my attention to the proceedings on 18 July 2024 at which the appellant was represented by a duty lawyer, and at which the then presiding Magistrate made it quite clear to the appellant that the application before the Court was a serious one, requiring the appellant's attention and the prompt preparation of affidavit material. The following extracts from the transcript of the proceedings on that date are relevant, which followed the short explanation given of the appellant's position by the duty lawyer:
HIS HONOUR: All right. So I'm going to keep it in front of me. I'm not going to make an order one way or another today, [the appellant]. But this is - it's stamped as effectively being certified as a copy. It's not an affidavit, and it might be beneficial if you - maybe to get some details from the duty lawyer as to where you can get some assistance. But it is a serious thing, and the evidence should be on an affidavit format. So if there could be a minor assistance type program advice - I don't know whether that's something that would be provided through Legal Aid.
DANIELLE, MS: I can find out.
HIS HONOUR: Yes. But certainly maybe get some direction as to how you can do it. There are forms downstairs, probably in the registry, that are blank affidavits, and you can just fill in the blanks and then possibly even say see letter A, and just attach a copy of that to it. But it just needs to be in an affidavit format, because then it's sworn and it constitutes evidence. So I'm just going back into my roster. If we were to do it on Wednesday, 14 August, is that convenient? Because it's not a traffic day, so if someone from specialists from traffic wanted to argue it - - -
The written submissions filed by the respondent on the question whether an error has been demonstrated, which certainly have some force, relevantly provide as follows:[24]
[24] RS [45] – [48].
[45]The Court's response to the Appellant identified that the hearing was on 17 October 2024. This should have alerted the Appellant to her error and caused her to clarify the date of the hearing with the Court. However, the Appellant did not read that email and has no explanation as to why she did not read that email.
[46] The Appellant's unexplained failure to read the email is particularly striking in circumstances where she: (a) had sought leave to appear via "video-call" at what she thought was a hearing on 16 October 2024 as an alternative to an adjournment; and (b) has not otherwise deposed to taking any further steps to clarify with the Magistrates Court the outcome of her request of 15 October 2024.
[47] From the transcript of proceedings on 17 October 2024, it is open to infer that the Appellant's correspondence was not brought to the attention of the presiding Magistrate.
[48] However, it does not follow that, as a result, the Appellant was denied a reasonable opportunity to be heard on the Application. This apparent administrative error is not the basis of the Appellant being denied a reasonable opportunity to be heard. Rather, the Appellant's failure to appear on 17 October 2024 was based on her own misapprehension as to the date of the hearing and her failure to monitor her emails in circumstances where she had not yet received a reply from the Court to her request for an adjournment or "video-call."
[49] That is, the Appellant was not deprived of a reasonable opportunity to be heard but rather it was a result of her own conduct that she did not take the best advantage of that opportunity.
[50] Even if the correspondence was brought to the presiding Magistrate's attention, it is difficult to see how a different outcome would have been reached. That is, the Magistrate would have been presented with: (a) correspondence from the Appellant requesting an adjournment or video link of the incorrect date; (b) a response from the Registry, which indicated the hearing was, in fact, on 17 October 2024; (c) information from the Appellant that she was in Perth on 17 October 2024, in circumstances where this was the fifth hearing of the matter, and the Appellant had been on notice since at least 18 July 2024 that she was required to put on 'proper submissions regarding hardship'.
[51] At the hearing, the Magistrate proceeded to make the Confiscation Order in accordance with s 80G on the basis that the Appellant had not attended Court and had otherwise not put any evidence before the Court explaining her position. The Magistrate was satisfied that the Appellant had been given 'ample opportunity' to engage.
[52] The Appellant was given several opportunities to be heard. Her own failure to attend the hearing on 17 October 2024 is not a breach of procedural fairness or a denial of natural justice.
True it is that the appellant had sought earlier adjournments of the matter, and had sufficient opportunity to prepare materials to respond to the Confiscation Application. It must also be recognised that the appellant's error as to the hearing date was self-induced.
However, I find it hard to escape the conclusion that:
(a)had the appellant's request for a further adjournment been placed before the presiding Magistrate on 17 October 2024; and
(b)had the full circumstances of the earlier adjournments of the matter been known by the Magistrate, which were objectively known to the Court having regard to the trail of correspondence,
the Magistrate is likely to have afforded the appellant a further opportunity to respond to this important application.
The present case is quite unlike the factual setting which presented before Beech J in Re Potter; Ex parte Coppin. The appellant in the present case had sought adjournments for ostensibly sound reasons on each prior occasion, which had all been granted, and had expressly sought a further adjournment on the instant occasion.
In my view, the circumstances of the present case demonstrate that an error of law arose by reason, primarily, of the administrative error through which the appellant's request for an adjournment was not provided to the Magistrate, which meant the Court below was unaware the appellant had sought an adjournment for reasons which were, at least superficially, valid. Additionally, the Magistrate appears not to have been fully informed by the prosecutor as to the circumstances of the earlier adjournments.
It should be recognised that the appellant had had earlier opportunities to respond to the Confiscation Application and file appropriate evidentiary material. It should also be restated that a 'reasonable opportunity' is not synonymous with 'every possible opportunity' or 'every opportunity', and the law does not impose upon a Court the impossible task of ensuring that a party takes the best advantage of the opportunity' to which he or she is entitled.[25]
[25] See Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; 225 FCR 482 [32]-[33] (Dowsett, Murphy and White JJ), citing Sullivan v Department of Transport (1979) 20 ALR 323, 342 (Deane J) and De Simone v Commissioner of Taxation [2009] FCAFC 181 [15] (Sundberg, Stone and Edmonds JJ).
Ultimately, though, there is a sound basis to conclude that, had the Magistrate been presented with the request for an adjournment, that adjournment would likely have been granted and, further, the appellant was thereby denied the opportunity to present her case in response to the Confiscation Application.
In my view, the error which the appellant asserts is made out. I would grant leave to the appellant to amend the grounds of appeal, grant leave to appeal in respect of the sole ground which is asserted, and allow the appeal on that ground.
G. Whether the matter should be remitted?
Having concluded that the appeal should be allowed, it is next necessary to consider whether the matter should be remitted to the Magistrates Court for final determination, or whether this Court should determine the Confiscation Application.
The respondent initially submitted that the matter should be remitted, primarily on the basis that the material relied upon by the appellant was insufficient to meet the threshold under s 80G(5)(b) of 'severe financial or physical hardship'.[26] The respondent identified a number of deficiencies in the appellant's evidence in this regard.
[26] ts 26 and RS [56].
Similarly, although for different reasons, the appellant appeared to initially seek remittal of the matter for further hearing in the Magistrates Court.
The approach I favour in the circumstances of this appeal is to proceed to determine the Confiscation Application afresh. I have reached that view for the following reasons.
First, having heard full argument on the issues on 15 April 2025 and having had an opportunity to review the affidavit material, the most efficient course in my view is for this Court to proceed to substantively determine the issue, provided that course would not cause any material prejudice to either party and the evidence is sufficient to enable proper findings to be made.
Second, I do not apprehend there to be any prejudice to the appellant from this course, given the fulsome opportunity the appellant has had to file evidentiary material and for her counsel to develop and explain her position to the Court at the hearing of the appeal and through his written submissions.
The appellant applied to adduce evidence on the appeal pursuant to s 40(1)(e) of the CA Act, in the form of her affidavit sworn on 21 February 2025. That affidavit sets out the primary evidence which the appellant wished to adduce in opposition to the Confiscation Application, and I have given leave for that affidavit to be relied upon.
Once it became apparent there were several deficiencies in the appellant's evidence as well as an evident need to provide more current evidence as to the appellant's circumstances, I made orders on 15 April 2025 to permit the appellant a further opportunity to file evidence in opposition to the Confiscation Application. I received that further affidavit material on 24 April 2025 together with an outline of further submissions.
Third, similarly I do not perceive the respondent to be materially prejudiced by the course I have proposed. Had any application for cross-examination of the deponents of the affidavit material been pressed, that application would have been allowed and the time allotted for the appeal hearing would have accommodated such a process.
Fourth, there is a public interest in determining the application in a prompt fashion rather than delay the matter further by remitting it to the Perth Magistrates Court for rehearing in some weeks' time, when that would only add to the busy workload of that Court.
H. The Confiscation Application
Preliminary
I now turn to substantively address the Confiscation Application on the merits. That application has been brought by the Commissioner of Police pursuant to s 80C(1) and s 80G(2).
As I have earlier noted, it was not in dispute on this appeal that the prerequisites for the application, and the making of an order under s 80C(1), were established by the respondent. I will therefore only briefly address those matters below. The central area of dispute was the operation and significance of s 80G(5)(b) and, to a lesser extent, s 80G(5)(c), concerning the level of hardship said to arise from an order to confiscate the Mazda Vehicle. I will focus the balance of these reasons on those matters.
Requirements for a confiscation order
Before a confiscation order pursuant to s 80C and s 80G can be made, the Court must be satisfied that:
1.First, by reason of s 80C(1), the Court must have convicted the person of an 'impounding offence (driver's licence)'. This is established on the evidence.
2.Second, by reason of s 80C(2), the Court must be satisfied that in the five years prior to the date of the most recent offence the person had been convicted of two previous such offences. This is also established on the evidence, given the most recent offence occurred on 18 March 2024 and the two prior convictions were recorded on 16 November 2022 and 30 September 2022.
3.Third, by reason of s 80GA(1)(a) and s 80GA(1)(b)(i), the offender must be the responsible person for the vehicle in question, being the vehicle used in the offence. Those matters are established on the evidence.
4.Fourth, by reason of s 80G(2), the Confiscation Application is required to be filed by the Commissioner of Police by no later than three months after the proceedings in respect of the conviction. This is also established on the evidence. Indeed, the Confiscation Application was brought within one month of the conviction being recorded.
5.Fifth, by reason of s 80G(3), the Commissioner is required to give the person written notice of the intention to make an application for an order at least 14 days before the application is made, and the notice is to be given to the driver of the vehicle or one of the other persons identified, or the Commissioner may publish a notice of the intention (in the case of any other person not identified in s 80G(3)(a)) by publishing a notice of the intention at least 14 days before the application is made, in a newspaper having a State-wide circulation. These matters are also satisfied. The Commissioner gave both written notice and published a notice in The West Australian newspaper of his intention to make the application.
It is next necessary to summarise the evidence which has been presented by the appellant on the appeal. Once the evidence has been addressed, it will be convenient to then outline the relevant principles against which that evidence falls to be considered.
Findings on the evidence
The affidavit material adduced by the appellant supports the following findings:
1.The appellant is unemployed, but has previously worked as a Moxy Operator (being the driver of an articulated haul truck) and as a personal trainer.
2.There is no evidence as to the period for which the appellant has been unemployed, nor as to the appellant's attempts to obtain employment, nor whether the loss of the Mazda Vehicle has any impact in this regard. There is also no evidence as to the source of the appellant's present income or its amount.
3.The appellant has five children, three of whom live with her. The children who reside with the appellant are 9, 14 and 18 years of age (who I will refer to as Daughter A, Son B and Daughter C). The appellant's 9 year old child, Daughter A, has dyslexia.
4.The appellant is in a de-facto relationship with her partner, and they have been together with 12 months. Her previous relationship, which lasted 23 years, ended in 2019. The appellant suffered physical and mental family violence in her prior relationship.
5.The appellant does not receive child support from her former partner.
6.The appellant suffers from severe anxiety, depression and ADHD, and is taking anxiety mediation.
7.In mid-March 2025, which is after the appeal was filed, the appellant was required to vacate her previous rental accommodation in Marangaroo, and move to North Perth. The appellant was unable to find a rental property in the Marangaroo and surrounding area, given the highly competitive rental market. The appellant's rental costs in North Perth represent a significant increase to her previous rental arrangements, from $450 per week to $1,100 per week, although her partner pays for half of that amount.
8.The appellant spends approximately $250 per week on groceries.
9.The appellant's partner is a FIFO worker who is in Perth only one week per month. The appellant's partner owns a Gladiator Jeep Truck which is described as a large vehicle. He does not permit other people to drive that vehicle. The appellant's children are thus not permitted by the appellant's partner to drive that vehicle.
10.Daughter C has deposed that she believes she would be unable to drive the Gladiator Jeep Truck, even if permitted to do so, as she has only been driving for some 8 months and remains on her P-Plates.
11.The Mazda Vehicle which is the subject of the Confiscation Application was purchased by the appellant in 2021 for $37,500, for which the appellant paid around $29,000 in cash with the balance being subject to finance. As of February 2025, the balance owing on that debt was $2,000. The appellant saved for three years in order to purchase the Mazda Vehicle.
12.The Mazda Vehicle is now principally used by Daughter C. Until recently, Daughter C used the Mazda Vehicle for her job as an on-the-road salesperson, but that employment has now ceased. Daughter C resigned from that employment in mid-March 2025 to assist the appellant with her tasks at home. Daughter C has indicated that she hopes to find work as an on-the-road salesperson in the future with less hours than her previous position.
13.Daughter C has been assisting the appellant by driving Daughter A and Son B to and from school using the Mazda Vehicle, and transporting them to extra-curricular activities and medical appointments. Daughter A is required to attend two medical appointments each week, in a suburb which is now closer to their place of residence. Daughter C also drives the appellant to various shops in order to purchase weekly groceries.
14.Daughter A attends a college in Balga and Son B attends a college in Ashdale, both of which were relatively close to the appellant's previous residential address in Marangaroo. The appellant has estimated that the travel time to those colleges from her North Perth address is around 3 times longer in the case of the Balga college (from 7 minutes to 20 minutes) and over 5 times longer in the case of the Ashdale college (from 4 minutes to 22 minutes).
The appellant has deposed that, in the event the Mazda Vehicle remains confiscated, both she and her family will suffer financial hardship and physical hardship as she 'will be unable to transport [her] two children to and from their school, to their extra-curricular activities, and [her youngest daughter] would struggle to attend her medical appointments twice a week'.[27] The appellant has not been authorised to drive for some time and has deposed that she relies heavily on Daughter C to drive the appellant and her other children to and from various places. The period of the appellant's disqualification was 9 months from 30 April 2024, and ought to have now expired.
[27] Appellant's affidavit sworn 24 April 2025 [27].
Daughter C has deposed that, in the event the Mazda Vehicle remains confiscated, she will suffer financial hardship and physical hardship because she 'would be unable to assist [her] siblings and family with the Family Tasks and [she] would be unable to obtain suitable part time work as a salesperson, given that [she] would need to balance any future work commitments with the required Family Tasks'.[28]
Relevant principles
[28] Daughter C's affidavit sworn 24 April 2025 [10]. The 'Family Tasks' are identified as those in point [13] of par [85] of these reasons.
The principles applicable to the operation and scope of s 80C and s 80G of the RTA may be stated as follows:
1.A confiscation application brought pursuant to s 80C(1) in respect of an 'impounding offence (driver's licence)' is controlled by the terms of s 80C, s 80GA and s 80G.
2.The requirements to be satisfied by the Commissioner of Police in respect of such an application are described in the following provisions:
(a)s 80C(2), as to the necessity to show the offender has been convicted of two previous such offences in the five years prior to the date of the most recent offence;
(b)s 80GA(1), to show the offender is a responsible person for the vehicle;
(c)s 80G(2), as to the manner in which, or the time within which, the application must be brought; and
(d)s 80G(3), as to the notice requirements.
3.The onus falls on the Commissioner to satisfy the Court these requirements have been met.
4.The Court is empowered by s 80FA(1) to entertain an alternative outcome to a confiscation order, namely to order that the vehicle be impounded for no more than 6 month. The appellant did not raise the possibility of ordering that the Mazda Vehicle be impounded and, for reasons I will explain, I do not consider that to be an appropriate disposition in any event.
5.Assuming the requirements identified above are satisfied, and the Court does not consider the impounding alternative is an appropriate disposition, the Court has a discretion under s 80C(1) whether to make the confiscation order, where the relevant offence is an 'impounding offence (driver's licence)'. It may make such an order in addition to the other sentencing dispositions already imposed in respect of the instant offence. It is not bound to do so. The Court retains a broad discretion whether to make the confiscation order, if that is an appropriate sentencing disposition following the person's conviction for a relevant offence, such as an offence of driving while not authorised contrary to s 49(1)(a). The fact that the legislation empowers a court to make a confiscation order in addition to any other penalty indicates a legislative intention to create a measure of hardship over and above the prescribed penalties, to act as a deterrent to repeat offenders in an endeavour to bring home to them the seriousness of their actions.[29]
[29] Frohling v Police [2011] SASC 53.
6.This position may be contrasted with the situation where an 'impounding offence (driving)' is concerned. By operation of s 80G(6A), in respect of 'hoon offences', the Court 'is required to make an order that may be made' under s 80A(3) or s 80A(4)[30] 'unless it is satisfied that the order would cause severe financial or physical hardship to a person, other than the driver of the vehicle, who has an interest in the vehicle or is the usual driver of the vehicle'. Absent satisfaction of the relevant hardship requirements, the Court must grant the application for an order for the confiscation of a vehicle used in the commission of a third 'hoon offence'. This point of difference was noted by McGrath J in Ninyette v Jones.[31]
[30] Both of which relate to 'impounding offences (driving)'.
[31] Ninyette v Jones [2018] WASC 317.
7.Prior to the introduction of that provision, pursuant to s 80G(5), the Court retained a broad discretion to determine whether or not to grant an application for the impounding or confiscation of a vehicle in respect of the 'hoon' type offences. The regime now confines the scope of the Court's discretion in dealing with applications for confiscation of a vehicle in those circumstances. In contrast, the broad discretion remains in relation to 'impounding offences (driver's licence)'.
8.In exercising the discretion found in s 80C(1), and by reason of s 80G(5), the Court may have regard to the matters in (a), (b) and (c) thereof. Those matters concern whether the instant offence was committed with the knowledge and acquiescence of the person with an interest in the vehicle, whether the order will cause severe hardship of a financial or physical nature to the person with an interest in the vehicle or the usual driver, and any other relevant matter.
9.The use of the formulation 'may have regard' does not, on its own, indicate one way or another whether the matters which follow are intended to be exhaustive or merely indicative. That issue typically requires a constructional analysis to be undertaken.[32] That said, the breadth of the phrase 'any other relevant matter' in s 80G(5)(c) effectively renders this constructional issue less important in this instance.
[32] South Sydney Council v Royal Botanic Gardens [1999] NSWCA 478 [18] (Spigelman CJ, with Beazley and Fitzgerald JJA agreeing); Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 [110] (Ward JA).
10.The relevant 'hardship' to consider, by reason of s 80G(5)(b), is that of 'a person who has an interest in the vehicle' and 'the usual driver of the vehicle'. This may include the person who was the driver of the vehicle at the time of the offence.[33]
[33] Compare the language employed in s 80G(6A).
11.It is evident from the text of the legislation that a demonstration of hardship in the relevant sense identified in s 80G(5)(b) is not determinative of the application, although in a particular case it may prove to be a critical feature. The Court retains a broad discretion whether to make the confiscation order, if that is an appropriate sentencing disposition following the person's conviction for a relevant offence, such as an offence of driving while not authorised contrary to s 49(1)(a).
12.The offender or the party resisting the confiscation order will bear the onus of establishing that confiscation would cause severe financial or physical hardship.[34] It will be incumbent upon that person to adduce evidence necessary to satisfy the Court that the finding of severe hardship in the relevant sense should be made.[35] It has been said that this will usually require evidence of the assets and income of the person or persons involved, particularly if the contention is that financial hardship will result.[36]
[34] Rogers v Police [2011] SASC 215; (2011) SASR 370 [49] (White J).
[35] Rogers v Police [50] (White J).
[36] Rogers v Police [50] (White J).
13.The phrase 'severe financial or physical hardship' is not defined in the legislation. The phrase and its constituent elements should be given their ordinary and natural meaning.
14.The ordinary meaning of the adjective 'severe' is 'harsh; harshly extreme' or 'grave'.[37] The ordinary meaning of the noun 'hardship' is 'a condition that bears hard upon one; severe toil, trial, oppression, or need' or 'to cause to suffer privations'.[38] It is not a synonym for 'suffering'.[39] The concept of 'severe financial hardship' does not require proof of destitution, applying the judicial interpretation which has been given to that phrase in the social security context.[40]
[37] Macquarie Dictionary online.
[38] Macquarie Dictionary online.
[39] Perovic v Police [2011] SASC 174 (White J).
[40] Repatriation Commission v Hall (1988) 78 ALR 687, 694 (Sweeney, Davies and Enfield JJ).
15. Evidently, the legislation recognises that a degree of hardship, that is ordinary hardship, may follow from the confiscation of a person's vehicle, but mere hardship alone will be insufficient to resist the order being made.[41] If circumstances of hardship alone were acceptable as a basis to resist an order for confiscation, it would serve to frustrate the purpose of the legislation.
[41] Frohling v Police [2011] SASC 53.
16.In Frohling v Police,[42] Nyland J in the Supreme Court of South Australia considered the same phrase in similar South Australian legislation, being the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA). Her Honour concluded that 'something more than ordinary hardship' is required to be established,[43] endorsing earlier observations to a similar effect of Debelle J in Taylor v Attorney-General (SA).[44] Nyland J held:[45]
The fact that s 4(1) empowers a court to make an impounding order in addition to any other penalty indicates an intention by Parliament to create a measure of hardship over and above the prescribed penalties to act as a deterrent to those, such as the appellant, who are repeat offenders in an endeavour to bring home to them the seriousness of their actions.
17.Each such application will need to be examined on its facts, and will be fact-sensitive. Relevant matters which are likely to fall for consideration in assessing the financial and physical position of the party resisting the confiscation application include:
(a)the financial value of the vehicle which the Commissioner is seeking to confiscate;
(b)the financial position of the offender and the usual driver of the vehicle, their respective available assets and income, and their respective employment status;
(c)the demonstrated use to which the vehicle has been put by the offender or the usual driver of the vehicle in the period preceding the application;
(d)whether the vehicle forms a necessary or relevant part of the employment position of the offender or of the usual driver of the vehicle;
(e)the impact of the loss of the vehicle on the offender or the usual driver of the vehicle; and
(f)the availability of other means of transport to permit the offender or the usual driver of the vehicle to attend to their education, medical and family needs, including the availability of other vehicles within the family and the availability of public transport and ride-share options.
[42] Frohling v Police [2011] SASC 53.
[43] Frohling v Police [18].
[44] Taylor v Attorney-General (SA) (1991) 55 SASR 462.
[45] Frohling v Police [21].
The necessary matter upon which the legislation places its focus is whether the confiscation will cause 'severe' hardship, in the sense of a harsh or grave impact, or harsh or grave privation. The relevant 'hardship' to consider, by reason of s 80G(5)(b), is that of 'a person who has an interest in the vehicle' and 'the usual driver of the vehicle'. This may include the person who was the driver of the vehicle at the time of the offence.[46] In the present case, the 'hardship' to examine is relevantly the hardship occasioned to:
(a)The appellant (being the registered owner of the vehicle and thus a person with an interest in the Mazda Vehicle);[47] and
(b)Daughter C (who is or has been the usual driver of the Mazda Vehicle).
Conclusion
[46] Compare the language employed in s 80G(6A).
[47] Noting the broad definition of the term 'interest' in the legislation: see RTA, s 78A(1) ('interest' means a legal or equitable interest, right or title in or to the ownership or possession of the vehicle).
The essence of the appellant's opposition to the making of an order for confiscation of the Mazda Vehicle is that the loss of the vehicle will not only cause her financial loss, given the value of the vehicle itself, but there will be hardship to her family and to her through the loss of the vehicle given the transport difficulties which would flow therefrom.
In particular:
(a)the Mazda Vehicle would not be available to allow Daughter C to service the transport needs of the appellant's two younger children, in relation to schooling, medical and associated matters;
(b)the Mazda Vehicle would not be available to allow Daughter C to attend to the family's shopping needs; and
(c)the Mazda Vehicle would not be available to allow Daughter C to obtain work as an on-the-road salesperson.
Against the foregoing, the evidence which was led by the appellant does not adequately, in my mind at least, explain the nature of the difficulties which are said to preclude the use of the public transport system to meet the transport needs of her and the family. Given the appellant and Daughter C are both presently unemployed, and thus have time to travel together with the younger children, the asserted difficulty of the younger children travelling alone on public transport, or through ride share options, seems to evaporate entirely, or at least greatly recede.
Further, the distances which are required to be travelled are not overly significant. The locations of the schools, extra-curricular activities and medical appointment are all within the Perth metropolitan region, and seem to be all less than 30 minutes from the family's rental home. The position may be contrasted with persons living in regional or remote locations in the State where much greater distances are often needed to be travelled for educational, medical and other purposes.
I have also been troubled by the dogmatic insistence on the part of the appellant's partner, as revealed on the evidence, that his vehicle cannot be used. That would not strike me as a sound basis to exercise the discretion in this case against making a confiscation order. It is not open to a family member to simply dictate the non-use of a vehicle in order to strengthen the family's objection to a confiscation application. There must be a legitimate or valid reason for the asserted unavailability of an additional vehicle.
As to this, the evidence is very weak. The evidence is that the partner's vehicle is a larger vehicle, described as a Gladiator Jeep Truck. However, I do not place much store in the asserted difficulty on the part of Daughter C, only briefly described by her, that because of her limited driving experience she is unable to drive this larger vehicle. Further, the appellant did not point to any legislative or regulatory restriction in this regard. In general terms I found the appellant's explanation, and her daughter's explanation, as to the unavailability of the partner's vehicle to be uncaringly.
In my view, the present matter should be approached on the basis that this is a two-vehicle family. Indeed, the partner of the appellant (being the owner of the second vehicle) is not present in Perth for three weeks every month.[48] It would be entirely open for that second vehicle to be made available for use by Daughter C, to attend to the needs of the family. Put another way, a decision by the appellant's partner to refuse the use of that vehicle does not support the appellant's position in resisting the present Confiscation Application, and the apparent availability of the vehicle in fact undermines the appellant's position on this application, in my view.
[48] Appellant's Affidavit sworn 21 February 2025 [25].
As to the financial circumstances of the appellant, despite having a fulsome opportunity to do so, only limited information of the appellant's financial circumstances has been forthcoming on the appeal. The appellant has provided evidence that she spends $550 on rent at present and around $250 on groceries per week. The appellant is presently unemployed but has not provided any additional detail in this regard, including how long she has been unemployed, whether she is actively looking for work in her fields of experience, or as to her broader financial position. The evidence does not address whether the appellant's partner contributes to household costs beyond rent. The respondent's criticisms of the state of the appellant's evidence in this regard are valid, in my view.[49]
[49] RFS [9].
The evidence also indicates that Daughter C resigned from her employment as an on-the-road salesperson to assist the appellant with tasks. I accept the submission of the respondent that this hardship arises by virtue of her mother's driving disqualification. The affidavit evidence otherwise does not suggest that a confiscation order would prevent Daughter C from seeking gainful employment, although it may inhibit it somewhat.
In all the circumstances, I am not satisfied the appellant has demonstrated that an order for confiscation of the Mazda Vehicle would cause her, or her eldest daughter, severe financial or physical hardship. The difficulties which would follow from the making of such an order fall within the usual range of hardships one can anticipate will arise when a vehicle is forcibly confiscated. But, as noted earlier, mere hardship alone is not sufficient.
If circumstances of mere hardship alone were acceptable as a basis to resist an order for confiscation, it would serve to frustrate the purpose of the legislation.
In my view, having regard to all of the evidence adduced on this appeal and the record of the proceedings below, the discretion vested in the Court by s 80C(1) should be exercised to make the order sought by the Commissioner. Such an order is appropriate given the appellant's conduct in committing these multiple serious offences over a five year period, all of which involved the appellant being the driver of the Mazda Vehicle in question and thus having knowledge and acquiescence of the commission of the offences.
Further, I am not satisfied that there is any basis to conclude that the order would cause 'severe financial or physical hardship' to the appellant or her eldest daughter, and there are no other relevant matters which I consider militate against the order which is sought.
Finally, as noted at [88(4)] above, the possibility of ordering the impounding of the Mazda Vehicle under s 80FA(1) for a period not exceeding 6 months was not raised by the appellant. That would not be an appropriate disposition in any event. I take that view given the circumstances of the commission of the three offences upon which the Confiscation Application was brought, as is apparent from the statements of material facts. The appellant was convicted of three offences, each being an 'impounding offence (driver's licence)', within a period of approximately 18 months (between 24 August 2022 and 18 March 2024). The frequency of the commission of these offences by the appellant, the first of which occurred within days of her licence being suspended, and the second occurring less than two months later, demonstrate the need for an overall disposition for the third offence which reflects the seriousness of the appellant's conduct.
Conclusion and orders
For the foregoing reasons, I will order that:
1.The appellant has leave to amend the grounds of appeal as set out in the application in an appeal dated 21 February 2025.
2.Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), the appellant has leave to rely upon the affidavits sworn by the appellant on 21 February 2025 and 24 April 2025 in support of the appeal, and the affidavit sworn by her eldest daughter on 24 April 2025 in support of the appeal.
3.The appellant has leave to appeal on the amended ground of appeal.
4.The appeal is allowed on that ground.
I will hear from the parties as to the appropriate orders which should now be made to address the confiscation order made by the Magistrate pursuant to s 80C and s 80G, in light of these reasons. It appears to me that the appropriate orders, subject to hearing from the parties, would be to set aside the Magistrate's confiscation order, to allow the Confiscation Application, and to make the confiscation order afresh in light of the conclusion I have reached on this appeal.
I will also hear from the parties as to the costs order which should be made on the appeal.
ATTACHMENT A
Table of Materials before the Court
| No. | Document | Date |
| Prosecution notice | ||
| 1 | Prosecution notice PE XXXXX of 2024 | 9 April 2024 |
| Confiscation Application | ||
| 2 | Section 80G notice of intention to make application to a Court for an order to impound/confiscate a vehicle | 2 May 2024 |
| 3 | Instrument of Authorisation | 5 May 2018 |
| 4 | Affidavit of Andrew Fay Marinucci | 6 May 2024 |
| 5 | Newspaper public notice | 9 May 2024 |
| 6 | Confiscation Application – Form 6 | 23 May 2024 |
| Transcript of Confiscation Application hearings | ||
| 7 | Transcript of proceedings in the Magistrates Court | 18 July 2024 |
| 8 | Transcript of proceedings in the Magistrates Court | 17 Oct 2024 |
| Email Communications between the appellant and the Magistrates Court[50] | ||
| 9 | Email exchange between the appellant and the Perth Magistrates Court stating the appellant had COVID and a chest infection, with a response from the Customer Service Officer of the Court stating the correspondence would be placed on the file for the presiding Magistrate. | 5 Sept 2024 |
| 10 | Email exchange between the appellant and the Perth Magistrates Court stating the appellant had would be working in the north returning on 23 September 2024 and seeking permission for a video attendance, with a response from the Customer Service Officer of the Court stating the correspondence would be placed on the file for the presiding Magistrate and the Magistrate would 'consider the request to call in and potentially be in touch tomorrow'. | 15 & 16 Sept 2024 |
| 11 | Email exchange between the appellant and the Perth Magistrates Court referring to the hearing at 9.30am (in effect, on 16 October) stating the appellant's flight had changed, noting the appellant would return later on 16 October, and seeking an adjournment or permission for a video attendance, with a response from the Customer Service Officer of the Court stating the correspondence had 'been filed for the attention of the presiding Magistrate' on 17 October 2024. | 15 & 16 Oct 2024 |
| Material facts for the impounding offences | ||
| 12 | Statement of material facts Brief No XXXXX (relating to the offence on 24 August 2022) | 2 Sept 2022 |
| 13 | Statement of material facts Brief No XXXXX (relating to the offence on 16 October 2022) | 19 Oct 2022 |
| 14 | Statement of material facts Brief No XXXXX (relating to the offence on 18 March 2024, the subject of charge PE XXXXX of 2023) | 4 April 2024 |
[50] Produced to the Court by the appellant at the hearing on 15 April 2025 (ts 4 – 5).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
12 JUNE 2025
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