Wilson v Garlett - [2012] WASC 506

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WILSON -v- GARLETT [2012] WASC 506

CORAM: ALLANSON J

HEARD: 7 NOVEMBER 2012

DELIVERED : 7 NOVEMBER 2012

FILE NO/S: SJA 1086 of 2011

BETWEEN: MAXWELL HUGH WILSON
Appellant
AND
LARRY GARLETT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT
File No  :KA 1176 of 2011, KA 1178 of 2011, KA 1931 of 2011

Catchwords:

Criminal law - Appeal against conviction - Conviction entered in absence of accused - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Criminal Code, s 172
Criminal Procedure Act 2004 (WA), s 25, s 55, s 75, s 79
Criminal Procedure Rules 2005 (WA), r 61
Judiciary Act 1903 (Cth), s 78B
Road Traffic Act 1974 (WA), s 49 s 53

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Dr J Walsh
Respondent: Ms L A Eddy

Solicitors:

Appellant: Darroll Nelson & Co
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

ALLANSON J: On 16 January 2011 Mr Wilson was stopped by police for a licence check and random breath test. It is not necessary to detail what followed. It is sufficient to say that things escalated, resulting in Mr Wilson being charged with three offences:
(a)driving while he was not authorised to do so and while his licence was disqualified: Road Traffic Act 1974 (WA) s 49(1)(a) and s 49(3)(d);
(b)refusing to give his name and address: Road Traffic Act s 53( 1) (a); and
(c)obstructing a public officer in the performance of that officer's functions: Criminal Code (WA) s 172(2).
The two offences under the Road Traffic Act are simple offences. The offence under the Criminal Code is a crime. Although it may be dealt with summarily, some of the provisions of the Criminal Procedure Act 2004 (WA) apply only to simple offences, and do not apply.
On 25 July 2011, Mr Wilson was convicted in his absence in the Magistrates Court at Kalgoorlie. In proceeding in his absence, the court acted under s 55 of the Criminal Procedure Act. Under that section the court had the option to adjourn the charge or to hear and determine it in his absence. The court chose to proceed and convicted him on each charge.
Mr Wilson seeks leave to appeal from those decisions. His appeal notice sets out eight grounds of appeal, although they are effectively the factual particulars supporting one complaint: Mr Wilson was represented, arrangements had previously been made that the hearing on 25 July would be a directions hearing and his counsel would attend by telephone from Melbourne. The court, in those circumstances, was wrong to proceed under s 55.
Although it is not raised in the grounds of appeal, the State Solicitor, appearing on behalf of the respondent, concedes that the magistrate erred in law in dealing with the offence of obstructing a public officer by the procedure under s 55 of the Criminal Procedure Act. That concession is properly made and the conviction and fine on that charge (KA 1178/11) should be set aside, and the charge remitted to the Magistrates Court for determination according to law.
There is a procedural step required in order to give effect to this result. The leave of this court is required for each ground of appeal: Criminal Appeals Act 2004 (WA) s 9(1). Ground 7 of the existing grounds is in these terms:
The court acted contrary to law (and its own Orders) and all principles of judicial (and prosecutorial) behaviour and contrary to the interests of justice and acted prejudicially to the defendant.
Some parts of this ground are clearly untenable. The general allegation that the court acted contrary to law in proceeding under s 55 on this charge can be sustained. It would have been preferable were the grounds of appeal amended, but the circumstances of the appeal did not permit that. I will return to the question of leave.
There are different issues with respect to the other two charges. To explain my reasons it is necessary to give some brief background.
These matters first came before the court in Kalgoorlie on 5 May 2011. Mr Wilson attended and was represented by Dr Walsh of the Melbourne bar. Dr Walsh was instructed by the firm of Darroll Nelson & Co, also from Victoria. Dr Walsh appeared by telephone.
The court dealt initially with an error in the prosecution notice for the charge under s 53 of the Road Traffic Act. The notice failed to comply with sch 1, cl 5 of the Criminal Procedure Act. The prosecutor sought to discontinue the prosecution on that charge, and the magistrate dismissed it for want of prosecution under s 25(3) Criminal Procedure Act. That did not operate as an acquittal of Mr Wilson: Criminal Procedure Act s 79. It was open to the police to file a fresh prosecution notice, and they did.
Dr Walsh advised the court that the defence raised matters under the Australian Constitution, requiring notices under s 78B of the Judiciary Act 1903 (Cth). The magistrate expressed the view that while the defence asserted that there was a constitutional issue, the matters it was putting forward did not give rise to any constitutional point and it was unnecessary to issue the s 78B notices. It was agreed that the matter would be adjourned to a further directions hearing on 25 July 2011, when Dr Walsh would again appear for Mr Wilson by telephone. The magistrate asked that the instructing solicitor, Mr Nelson, file a notice of appearance with the court. She also asked Dr Walsh to have his instructing solicitor confirm 'on that morning, a number that we can contact you by audio link'. At the end of the hearing there was a further exchange between Dr Walsh and the magistrate where her Honour said she was going to issue a notice to attend for Mr Wilson on that day, but 'because if you're appearing and you have instructions from him, then Mr Wilson is excused from appearing'. The transcript continues:
Walsh, Mr: I see. So the notices would have the effect that if I appear, even by an audio link, he's excused from appearing in person.
Her Honour: Look, we would allow you to enter a plea for a refuse name on his instruction, because it's a simple offence, then we can list the matter for hearing, so we can do that. I mean, Mr Wilson can attend if he wants to, but at the end of the day, as long as counsel is appearing on simple matters, in this state you can appear on his behalf … So I've given you leave to appear by video link.
A notice was issued to Mr Wilson under s 75 of the Criminal Procedure Act. It advised that each charge had been adjourned 'for mention' to 25 July 2011 at 2.15 pm 'when a date for hearing and determination may be set'. The notice was only with respect to the two charges that have been adjourned, and not the proposed substituted charge. It contained the warning: 'If you do not appear at the time and place specified below the court may hear and determine the charges in your absence'.
In an affidavit filed in support of his appeal, Mr Wilson states that he attended the court about a week before the hearing and gave details of the phone number to be used.
The matter came on again before her Honour on 25 July 2011 at 2.33 pm. Mr Wilson did not appear. The magistrate was advised by her judicial support officer that there was no appearance and proposed to deal with the charges under s 55. The prosecutor then began to outline the facts. After a short time, the magistrate interrupted and asked, 'before you just go on, has Mr Wilson been called outside today?' When her Honour was advised that he had, the magistrate said: 'All right and he has made no appearance at all today? Okay. Yes, thanks.' Later, her Honour commented that Mr Wilson was meant to be represented by Dr Walsh and the court had heard nothing from Dr Walsh.
The court proceeded and convicted on each charge.
This is the substance of the facts asserted in the grounds of appeal.
In addition, Mr Wilson asserts that Dr Walsh was waiting in his rooms in Melbourne at the number which had been pre‑arranged, and no call came through. Dr Walsh rang the court and was told that the matter had already been completed and the court had adjourned for the day. There is, however, no evidence to support those allegations.
It was initially contemplated that this matter could be dealt with on the papers. Dr Walsh would not appear as counsel, but would file an affidavit confirming the facts in the notice of appeal. In the week before the hearing, the court was advised that Dr Walsh was no longer instructed and he would not be filing an affidavit. At the hearing of the appeal, Dr Walsh appeared by telephone to advise the court that he had no instructions, and to seek leave for his instructing solicitor, Mr Nelson, to cease to act. Dr Walsh advised the court that he believed Mr Wilson was aware of the court date. I granted leave.
Mr Wilson had not attended court. Under r 61 of the Criminal Procedure Rules 2005 (WA), the court may proceed on an appeal in a party's absence. Because of the view I had formed that the appeal should be allowed, after considering the detailed and balanced written submissions that had been presented by the respondent, I was satisfied that I could proceed in Mr Wilson's absence with no injustice to him.
The respondent accepted that if the court was satisfied of the facts particularised in the notice of appeal, it could find there had been a miscarriage of justice. Again I think the concession was properly made. I was, initially, concerned how to proceed in the absence of an affidavit from Dr Walsh. I am, however, satisfied from the transcript of the proceedings on 25 July, in particular the interruption by the magistrate to enquire whether Mr Wilson had been called outside, and the absence of on the transcript of any reference to an attempt to call Dr Walsh, that either the arrangements made on 5 May were inadvertently overlooked or there was a misunderstanding about what was required to be done. Had the court attempted to contact Dr Walsh and been unsuccessful, it would at least have been in a position to decide whether it should proceed to hear and determine the charges in the absence of Mr Wilson, or to adjourn the hearing, with full knowledge of the facts.
In the circumstances I am satisfied that there was a miscarriage. Again the procedural issue of leave arises. I am prepared to grant leave on the eight grounds of appeal on the basis that they are, in effect, particulars of a single ground which is most clearly expressed in ground 7.
On that basis I would grant leave and allow the appeal with respect to each of the three charges: KA 1931/11, KA 1176/11 and KA 1178/11. In each case the magistrate's order that Mr Wilson be convicted and fined should be set aside. In respect of KA 1931/11, the order that Mr Wilson pay the respondent's costs of $121.95 should be set aside.
In each case the charge should be remitted to the Magistrates Court for determination according to law.
There is no reason to believe that the miscarriage was caused by anything other than an oversight. There is no basis for making any order as to how the court should be constituted on the rehearing or how it should deal with the case.