JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WHITNEY -v- REGAN [2012] WASC 300 CORAM : HALL J HEARD : 23 AUGUST 2008 DELIVERED : 23 AUGUST 2012 PUBLISHED : 24 AUGUST 2012 FILE NO/S : SJA 1019 of 2012 BETWEEN : SUSAN WHITNEY Appellant
AND
NEIL REGAN
Respondent
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE P G MALONE
File No : FR 12127 of 2010, FR 12128 of 2010, FR 12129 of 2010, FR 12130 of 2010, FR 12131 of 2010
Catchwords:
Criminal law - Traffic offences - Appeal against conviction - No reasonable prospect of success of grounds - Leave to appeal refused - turns on own facts
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Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Ms K A T Pedersen
Solicitors:
Appellant : No appearance
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):Nil
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1 HALL J: On 23 August 2012 I refused the appellant's application for leave to appeal against her convictions in the Magistrates Court and dismissed this appeal. My reasons for doing so are as follows.
2 On 10 January 2012 the appellant was convicted following a trial in the Fremantle Magistrates Court of the following offences: two offences of being a driver of a vehicle who failed to stop when called upon by a police officer, contrary to s 53(1)(b) of the Road Traffic Act 1974 (WA); two offences of reckless driving, contrary to s 60(1) of the Road Traffic Act and one offence of driving a vehicle which she owned whilst there was not a valid licence in respect of that vehicle, contrary to s 15(1) of the Road Traffic Act.
3 By an appeal notice filed on 6 February 2012 the appellant sought leave to appeal against those convictions. Her grounds of appeal were very general in nature and did not comply with Criminal Procedure Rules r 65(2). For this reason the question of leave was referred to the hearing of the appeal. The appellant then wrote to the court asking that the question of leave be first determined to enable her to obtain legal aid. As the merits of the grounds could not be determined without the benefit of clarification or argument it was not possible to determine the question of leave on the papers.
4 The appellant then failed to lodge and serve an entry for hearing as required by orders made on 17 May 2012. I then convened a directions hearing on 1 August 2012. By letter sent to the appellant on 27 July 2012 she was advised that the purpose of the directions hearing was to determine the consequences of her failure to file an entry for hearing, whether the question of leave could be separately determined and, if so, when the hearing of the leave question should be held. The appellant failed to appear on 1 August 2012 and in these circumstances there was no option other than to set the matter down for a hearing. I put on record at the directions hearing why it was not possible for leave to be granted given the nature of the grounds of appeal. The transcript of the directions hearing was then sent to the appellant.
5 By letter dated 7 August 2012 the appellant was advised that the matter had been set down for a hearing on 23 August 2012. On that date the appellant did not appear. Nor did she file any written submissions.
6 Given that the appellant has failed to appear on every occasion that this matter has been listed, has failed to comply with programming orders and failed to file any clarification of her grounds of appeal or any
(Page 4) submissions in support of those grounds, it is reasonable to assume that she no longer wishes to proceed with the appeal. However, no notice of discontinuance has been filed. In these circumstances I have given consideration to whether the grounds have any merit.
7 By examining the trial transcript together with the grounds of appeal it would appear that the appellant's complaints are in essence that the police witnesses at her trial were not telling the truth and should not have been believed by the magistrate and that she was denied an opportunity to adduce evidence that she said would support her claim that she was not at the location that the offences were said to have occurred. 8 The prosecution case at trial was that on 26 November 2010 the appellant had been the driver of a vehicle owned by her. There had been attempts by the police to pull the vehicle over but these had failed because, whilst initially stopping, the vehicle had then been driven off. It was alleged that there had been a pursuit in which the vehicle had been driven in an inherently dangerous manner. Eventually the vehicle was stopped by disabling its tyres and the appellant was arrested at the scene.
9 A number of police witnesses gave evidence in regards to the attempts to stop and pursue the vehicle. There was also evidence regarding the identity of the appellant. The appellant did not deny that she had been apprehended at the scene when the vehicle was eventually stopped. However, she denied that she had been the driver and disputed the accuracy of the police evidence as to what had occurred and where it had occurred.
10 Clearly this was a case that turned significantly upon the credibility of the witnesses. The magistrate accepted the evidence of the police witnesses and rejected that of the appellant. He was satisfied on the basis of the police evidence that each of the offences was proven beyond reasonable doubt. Having examined the transcript it is plain that those conclusions were reasonably open on the evidence.
11 As regards the suggestion that the appellant was denied an opportunity to adduce evidence in her favour, the transcript shows that at the commencement of the hearing the appellant sought an adjournment so that she could obtain further evidence from the police as to their radio communications and the recordings from the global positioning systems in the police vehicles. She claimed that this information would support her assertion that the police evidence as to what occurred and where it had occurred was wrong.
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12 In opposing the adjournment the prosecution noted that the offences were alleged to have occurred more than 12 months prior to the hearing and that the matter had been listed for hearings on previous occasions. Exactly how the evidence, if it existed, could have assisted the appellant is not apparent. In the circumstances, the magistrate's decision not to grant an adjournment was plainly correct. The appellant has not sought to place any evidence before this court on the appeal that could establish that there was any evidence that would have been material to the outcome of the hearing or that would establish that the refusal of an adjournment unfairly prejudiced her defence.
13 For these reasons on 23 August 2012 I made the following orders:
1. the application for leave to appeal on all grounds is refused; 2. the appeal is dismissed;
3. the appellant is to pay the respondent's costs fixed in the sum of $1,500.