JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WILLIAMSON -v- HODGSON [2010] WASC 95
CORAM: MAZZA J
HEARD: 27 APRIL 2010
DELIVERED : 27 APRIL 2010
FILE NO/S: SJA 1107 of 2009
BETWEEN: HARLEY ROBERT WILLIAMSON
Appellant
AND
PAUL RICHARD HODGSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P G MALONE
File No :MI 2540 of 2009
Catchwords:
Criminal law - Application for leave to appeal against conviction and sentence - Speeding offence - Alleged defence under s 45 of the Criminal Code - Alleged right to trial by jury - Alleged breaches of United Nations International Covenant on Civil and Political Rights - Alleged bias by learned magistrate - Alleged secession by the applicant - Alleged constitutional invalidity of Magistrates Courts - Alleged invalidity of prosecuting entity - Sentence not excessive - No arguable grounds - Leave refused - Appeal dismissed
Legislation:
Commonwealth Constitution, s 80, s 123
Criminal Appeals Act 2004 (WA), s 9(2), s 10(3)
Criminal Code (WA), s 45
Criminal Procedure Act 2004 (WA), pt 4
Magistrates Court Act 2004 (WA), s 11
Road Traffic Act 1974 (WA), s 58A, s 102A
Road Traffic Code 2000 (WA), r 11(3)
Result:
Leave to extend time refused
Leave to appeal refused
Appeal dismissed
Category: C
Representation:
Counsel:
Appellant: In person
Respondent: Ms M J Paterson
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Gamage v State of Western Australia [2008] WASCA 49
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v Shire of Greenough [2006] WASCA 260
Glew v The Governor of Western Australia [2009] WASC 14
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Samuels v State of Western Australia [2005] 30 WAR 473
MAZZA J:
(This judgment was delivered extemporaneously on 27 April 2010 and has been edited from the transcript)
Before me is Mr Williamson's application for an extension of time within which to appeal, his application for leave to appeal and his appeal against conviction and sentence.
Background
By a prosecution notice dated 13 January 2009 Mr Williamson was charged with driving his vehicle in excess of the speed limit contrary to r 11(3) of the Road Traffic Code 2000 (WA). The charge was heard by the learned magistrate on 23 June 2009. Mr Williamson was found guilty and fined $75 and ordered to pay costs of $114.20.
The facts of the case are very simple and not in dispute. They were in fact all admitted by Mr Williamson at the hearing. On 17 February 2008 Mr Williamson was driving his vehicle on a road in Glen Forrest. A radar device recorded the vehicle travelling at 89 km per hour in an 80 km per hour speed zone. Despite these admissions Mr Williamson maintained he was not guilty of the offence.
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- Williamson v Hodgson [2010] WASC 95
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- [2010] WASC 95
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CaseChat Overview and Summary
The court considered Mr Williamson's arguments concerning the alleged breaches of the UN Covenant, noting that provisions of an international treaty do not form part of Australian law unless incorporated by statute. The court further found that the relevant sections of the Road Traffic Act were not inconsistent with the UN Covenant, and even if they were, this would not render the entire Act invalid. The court also dismissed the argument that the UN Covenant was part of the law to be applied by the magistrate, reaffirming that treaties not incorporated into municipal law cannot directly create individual rights and obligations.
Regarding the alleged bias by the magistrate, the court examined whether a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial and unprejudiced mind to the resolution of the case. The court found no basis for such an apprehension, concluding that the magistrate had not acted in a manner that would undermine public confidence in the administration of justice. The court also noted that Mr Williamson's other claims, including the alleged invalidity of the Magistrates Court and the prosecuting entity, as well as the alleged right to trial by jury, did not present arguable grounds for appeal.
Ultimately, the court found that Mr Williamson had not demonstrated arguable grounds for leave to appeal, and the application was dismissed. The court did not consider it necessary to address the excessiveness of the sentence, as the appeal was dismissed on other grounds.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The position is simply stated by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, where at 286 ‑ 287 Mason CJ and Deane J said:It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. Mr Williamson submitted that s 58A and s 102A of the Road Traffic Act are inconsistent with the UN Covenant. In brief terms, these sections provide that when an infringement notice is left on a vehicle, the licence holder of that vehicle, called the responsible person, is deemed responsible for that infringement notice unless he or she informs the police of the identity of the infringing driver. Moreover, a responsible person, if requested by a police officer to give information about the driver, commits an offence if that driver fails to make reasonable measures to comply with the request. With respect, Mr Williamson's submission on this point is misconceived. First, the provisions are not inconsistent with the UN Covenant. Second, even if they were the inconsistency does not make every provision in the Road Traffic Act and the Road Traffic Code invalid. Third, Mr Williamson was not charged as a responsible person. He was identified as the driver and admitted that he was. Fourth, the UN Covenant is not in any event part of the law to be applied in the case by the learned magistrate. This submission cannot succeed. However, this is not the only submission that Mr Williamson made based on the UN Covenant. Mr Williamson alleged that the learned magistrate treated him in such a way as to infringe his rights under article 14 of the UN Covenant. Essentially, this is an allegation of actual or at least apprehended bias and I will treat it as such. Mr Williamson alleges that the learned magistrate did not bring an impartial and unprejudiced mind to the case. The tests for actual and apprehended bias were set out in Gamage v State of Western Australia [2008] WASCA 49. There Steytler P said [54]:There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. … In Johnson v Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said [11] ‑ [12]:[T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. 'If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision'. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial'. (footnotes omitted)