TNR v WA Police - [2025] WASC 122

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 122
Decision Date: 12 JUNE 2025

CaseChat Overview and Summary

In the case of TNR v WA Police, the appellant contested the confiscation of her vehicle under section 80C(1) of the Road Traffic Act 1974 (WA), following a determination by the Magistrates Court that she had committed her third 'impounding offence' within five years while her driver's licence was suspended. The appellant argued that the proceedings were unfair as she had not been given a reasonable opportunity to respond to the confiscation application, as her request for an adjournment was not brought to the magistrate's attention. The court was required to determine whether the error in the proceedings amounted to a denial of procedural fairness, and if so, whether the matter should be remitted to the Magistrates Court for redetermination or whether the Court of Appeal should determine the application afresh.

The Court of Appeal found that the appellant had indeed been denied procedural fairness, as there was a sound basis to conclude that the magistrate would likely have granted an adjournment had the request been brought to their attention. This conclusion was based on the fact that the appellant had earlier opportunities to respond and file appropriate evidentiary material. The court further noted that 'reasonable opportunity' does not equate to 'every possible opportunity' or 'every opportunity'. The Court of Appeal granted leave to the appellant to amend the grounds of appeal, allowed the appeal on the sole ground asserted, and proceeded to determine the confiscation application afresh, considering the evidence presented by the appellant and the respondent.

The Court of Appeal concluded that determining the confiscation application afresh was the most efficient course, as it had heard full argument on the issues and reviewed the affidavit material. The court also noted that there would be no material prejudice to either party from this course, given the fulsome opportunity the appellant had to file evidentiary material and for her counsel to develop and explain her position to the Court. The court accepted the appellant's affidavit as evidence in support of her position on the appeal. The final orders of the Court of Appeal are not provided in the text, but it is likely that they would include a determination on the confiscation application and potentially an order for the return of the appellant's vehicle if the confiscation was deemed unjustified.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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.