TRAILL-NASH v Messer
[2004] WASCA 11
•27 JANUARY 2004
TRAILL-NASH -v- MESSER [2004] WASCA 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 11 | |
| 27/01/2004 | |||
| Case No: | SJA:1108/2003 | 22 JANUARY 2004 | |
| Coram: | MILLER J | 22/01/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision of Magistrate dismissing complaint set aside Matter remitted for rehearing before a different Magistrate | ||
| B | |||
| PDF Version |
| Parties: | ROBERT JOHN TRAILL-NASH WILLIAM MOFFAT MESSER |
Catchwords: | Practice and procedure Court of Petty Sessions Complaint Dismissal without hearing Prosecution precluded from presenting any case |
Legislation: | Justices Act (WA) 1902 Road Traffic Code (WA) 2000 |
Case References: | Baines v Woodhouse [2000] WASCA 55 Metaxas v Ferguson (1991) 4 WAR 272 Smith v Brown [1978] WAR 157 R v Bennison (1995) 14 WAR 318 Walsh v Giumelli [1975] WAR 114 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WILLIAM MOFFAT MESSER
Respondent
Catchwords:
Practice and procedure - Court of Petty Sessions - Complaint - Dismissal without hearing - Prosecution precluded from presenting any case
Legislation:
Justices Act (WA) 1902
Road Traffic Code (WA) 2000
Result:
Appeal allowed
Decision of Magistrate dismissing complaint set aside
Matter remitted for rehearing before a different Magistrate
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms R C Panetta
Respondent : No appearance
Solicitors:
Appellant : State Solicitor
Respondent : No appearance
Case(s) referred to in judgment(s):
Baines v Woodhouse [2000] WASCA 55
Metaxas v Ferguson (1991) 4 WAR 272
Smith v Brown [1978] WAR 157
Case(s) also cited:
R v Bennison (1995) 14 WAR 318
Walsh v Giumelli [1975] WAR 114
(Page 3)
1 MILLER J: This appeal was heard on 22 January and at the conclusion of the hearing I allowed the appeal, set aside the decision of the learned Magistrate dismissing complaint AR 5438/03 in the Court of Petty Sessions at Perth and remitted the matter to the Court of Petty Sessions for rehearing before a different Magistrate. I undertook to give reasons for that decision and these are the reasons.
2 The respondent was charged in the Court of Petty Sessions at Armadale that on 13 February 2003 at Como he drove a motor vehicle on Davilak Crescent, where a stop sign was erected to face him at the approach to its intersection with Ley Street and having proceeded therefrom, failed to give way to a vehicle on the intersecting road, contrary to the provisions of reg 50(3) of the Road Traffic Code (WA) 2000. The respondent's address given on the complaint was Port Hedland and presumably for this reason, the matter was transferred to the Perth Court of Petty Sessions where on 29 August 2003, it came before Ms E Woods DCM. On that day the learned Magistrate pointed out to the prosecuting officer that she had in her possession a written document written by the respondent in response to having been served with a complaint. Her Worship said:
"HER WORSHIP: Mr Messer has sent in a very detailed document telling us about his side of the story. He's indicated that he wants to plead not guilty and he wants the matter to be heard in Hedland. Because I think he's living there, it would seem, that's where he comes from."
3 The document to which the learned Magistrate was referring was some three pages in length and constituted a contest by the respondent with the Statement of Material Facts with which he had been served. He concluded the statement by suggesting that the matter was not one which justified police investigation and pointed out that as he had transferred from Perth to Port Hedland to take up a new job, he could neither afford the time nor expense to attend Court in Perth and would either like the case heard in Hedland or if not, would like the contents of his letter to be read in his defence. He added that if he was forced to attend at Perth Court or plead guilty, he would plead guilty. The last statement is difficult to understand but perhaps it means that if the respondent was compelled to travel to Perth to defend the matter he would rather plead guilty than do so.
4 On 29 August 2003 the learned Magistrate was told by the prosecuting officer that there were three civilian witnesses in Perth and
(Page 4)
- hence it was not practicable to transfer the matter to Port Hedland. The learned Magistrate decided that the case would be adjourned. She made available to the prosecuting officer a copy of the respondent's letter and requested that the prosecution "think about or speak to the … whoever about it". I take this to mean that the learned Magistrate was suggesting that the prosecution should look carefully at whether it was worthwhile to proceed with the case.
5 The matter came back before the learned Magistrate on 5 September 2003, at which time her Worship said that she had adjourned the case to give the prosecution the opportunity to have a look at the matter and see whether it was worth going on with. Her Worship then asked whether the respondent had a record. The prosecuting officer responded that there was no record.
6 Her Worship then continued:
"HER WORSHIP: I mean, do we need to worry about -- I mean, he's fairly adamant in his letter and I appreciate he probably didn't stop, but the reality is, he's got no traffic convictions, no record.
MALE SPEAKER: Ma'am, I think that probably the easiest or the best solution would be to -- for me to contact the arresting officer. Proper protocol would suggest that I contact him before proceeding and perhaps --
HER WORSHIP: You've got authority to do this now.
MALE SPEAKER: Well, ma'am, it is, but if I were to -- I'd done something like this --
HER WORSHIP: I'll just do it.
MALE SPEAKER: There may be other circumstances we're not aware -- we've just got his side.
HER WORSHIP: Yeah. I'm sure there are. We'll dismiss it. Well, I will. You can blame me when he gets … (indistinct) …
MALE SPEAKER: No worries, ma'am. I will. Thanks, ma'am.
HER WORSHIP: Just say, 'She was having a bad day. She wouldn't let me talk. She just did it'. Okay."
(Page 5)
7 The appellant was given leave by Pullin J on 2 October 2003 to appeal the decision of the learned Magistrate to dismiss the complaint on the grounds that her Worship erred in that she:
"(a) acted without or in excess of jurisdiction or in the alternative erred in law in dismissing the complaint without giving the Prosecution an opportunity to present its case; or
(b) erred in law, in taking into account irrelevant considerations, namely that the Respondent did not have prior traffic convictions or a criminal record."
8 A Court of Petty Sessions in the State of Western Australia has no inherent jurisdiction. It's jurisdiction is entirely statutory. This was made clear in Smith v Brown [1978] WAR 157 by Burt CJ at 159 as follows:
"The jurisdiction of courts of petty session is entirely statutory. They have no inherent jurisdiction: Walsh v Giumelli [1975] WAR 114 at 116, per Jackson CJ. If the power exists its source must be found within the statute law either expressly or by 'implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction' which, as the name indicates, requires no authorizing provision': R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7, per Menzies J."
9 A Court of Petty Sessions may determine whether or not a proceeding falls within the jurisdiction of the Court, or whether it is an abuse of the process of the Court, and if so, dismiss a complaint without further hearing, but that is a power pursuant to s 137 of the Justices Act (WA) 1902 and not an exercise of inherent jurisdiction: Metaxas v Ferguson (1991) 4 WAR 272 per White AJ at 276.
10 However, it is fundamental to proceedings in a Court of Petty Sessions that a party to the proceedings must be allowed an adequate opportunity of putting his case. No Court can dismiss a complaint without getting the prosecution the opportunity to present the case. Whether it fails for want of jurisdiction or abuse of process of the Court is another question. The opportunity to present the case before any decision is made remains fundamental. This is well summed up in Judicial Review of Administrative Action (de Smith, 4th ed) at 212:
(Page 6)
- "One who is entitled to be heard orally, or who is given an oral hearing in pursuance of a discretion conferred by statutory or other formal rules, must be allowed an adequate opportunity of putting his own case. If he has a right to appear, it will, of course, be a breach of natural justice for the tribunal to refuse, deliberately or through inadvertence, to hear him at all."
11 In a more practical way it was put in Baines v Woodhouse [2000] WASCA 55 by Scott J at [7] as follows:
"The end result of that is that the prosecution never did have their day in court and whilst it is not for me to comment on whether or not the complaints as they are, or as amended, can be made out, it seems to me that the prosecution should be given their day in court so that they can proceed with presenting such evidence as they have before the court below."
12 In the present case the learned Magistrate clearly took the view that no good purpose would be served by the Court determining the prosecution which was before her. She may have been right about that. However, she was not entitled to dismiss the complaint without allowing the prosecution the opportunity either to adjourn and seek instructions from somebody in authority as to whether the matter should proceed, or alternatively, to at least present the case in support of the prosecution. Further, her Worship was not entitled to determine the matter on the basis of a lack of prior convictions.
13 When the learned Magistrate took it upon herself to dismiss the complaint it seems that her sixth-sense told her that she was really unable to do so. The comment "just say 'she was having a bad day. She wouldn't let me talk. She just did it'." seems to acknowledge that her Worship was acting against her better judgment and against the rules of natural justice in doing what she did. I can only say that her Worship did indeed have a bad day and as a result, it was necessary at the hearing of this appeal to uphold both grounds of appeal, allow the appeal, set aside the decision to dismiss the complaint and remit the matter for rehearing before a different Magistrate.
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