Citation : GENOVESE -v- CITY OF PERTH [2011] WASC 68

Criminal law - Appeal against conviction - Parking offence - New evidence - Meaning of 'footpath' within cl 3.4(3)(f) of the City of Perth Parking Local Law 1991 - Leave to appeal refused

City of Perth Parking Local Law 1999, cl 1.4, cl 1.6, cl 1.7, cl 2.4, cl 3.4(3)

DPJB v The State of Western Australia [2010] WASCA 12

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Genovese v City of Perth [2011] WASC 68

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Rinaldi v The State of Western Australia [2007] WASCA 53

2 BUSS JA: By a prosecution notice dated 17 June 2010, the appellant was charged with an offence, namely that on 29 December 2009 at Hay Street, Perth, he did stop a vehicle on or over a footpath, contrary to cl 3.4(3)(f) of the City of Perth Parking Local Law 1999 (the Local Law).

3 The appellant pleaded not guilty to the alleged offence.

4 On 22 September 2010, there was a trial before Magistrate P G Malone in the Magistrates Court at the Central Law Courts on the corner of Hay Street and Irwin Street, Perth.

5 The prosecutor called Donald Mitchell, an experienced parking officer employed by the respondent, which is a local government. Mr Mitchell said in evidence that on 29 December 2009 he saw a silver motorcycle, registration no 1EG-848, parked on the footpath outside the Central Law Courts on Hay Street, Perth. He issued an infringement notice in the form prescribed under the Local Law.

6 The prosecutor tendered in evidence a photograph that Mr Mitchell had taken of the motorcycle while it was parked on the footpath. Also, the prosecutor tendered a certificate under s 98(2) of the Road Traffic Act 1974 (WA), which stated that on 29 December 2009 the appellant was the licensed owner of the motorcycle.

7 The appellant was convicted. He was fined $100 and ordered to pay costs of $89.70.

8 At the trial before the magistrate, Mr Mitchell gave this evidence:

On Tuesday, 29 December 2009 I was allocated this area of Perth to patrol. Whilst patrolling along Hay Street, outside the [Central Law Courts], at approximately 11.15 hours I observed the silver motorcycle, registration number 1EG-848, parked on the footpath outside the law courts (ts 2).

9 Mr Mitchell said that after satisfying himself that the motorcycle 'had no reason to be on the footpath', he issued an infringement ticket (ts 2).

10 The motorcycle was parked outside the Central Law Courts. As I have mentioned, the trial before the magistrate occurred in that building. There was an exchange between the magistrate and Mr Mitchell as to the precise location where the motorcycle was parked (ts 3).

11 Mr Mitchell added, in response to a question from the prosecutor, that, as depicted in the photograph, the motorcycle was parked near a wheelchair access ramp that leads into the building (ts 3).

12 The appellant's defence at trial was, in essence, that he had no recollection of having parked his motorcycle outside the Central Law Courts on the day in question and that he had not been issued with an infringement notice. He gave evidence to that effect at trial.

13 The magistrate, in the course of delivering his reasons for convicting the appellant, said:

Mr Mitchell was designated to patrol this area. At 11.15 he saw this motorcycle, did all the usual checks to make sure that there wasn't an understandable problem with it and three minutes later issued a traffic infringement notice and in the process took a photograph of the motorcycle and that was tendered. It clearly shows it is parked outside of Central Law Courts at what I described - and I spoke to Mr Mitchell about it - more or less midships or in the middle of Central Law Courts on clearly what is a footpath area (ts 20).

14 The appellant made application to the Supreme Court for leave to appeal against conviction.

(1) the magistrate erred in law because he had no jurisdiction to hear and determine any matter relating to a modified penalty pursuant to the Local Law;

(2) the magistrate erred in law because he failed to pay any or sufficient heed to the appellant's contention that the prosecution's case, resting on cl 3.4(3)(f) (expressed in the prosecution notice as '3.43F') of the Local Law, 'does not exist';

(3) the magistrate erred in law because he failed to pay any or sufficient heed to the appellant's contention that the prosecution failed to tender into evidence a copy of a parking ticket allegedly issued.

16 Jenkins J refused to grant leave to appeal on grounds (1) and (3). She granted leave on ground (2), but dismissed the appeal. See Genovese v City of Perth [2011] WASC 68.

17 The appellant has applied to this court for leave to appeal against the decision of Jenkins J.

18 Originally, the appellant relied on three grounds of appeal. At the hearing on 2 December 2011, he abandoned grounds 1 and 2 (appeal ts 12). The remaining ground, as set out in the appellant's case dated 16 August 2011, reads:

Fresh evidence has become available and adduced in this appeal since the conviction and if the magistrate in the primary court, or the judge [in] the single judge appeal had heard the evidence they would have acquitted the appellant.

19 The point sought to be raised in the remaining ground was not in issue before Jenkins J. Also, the point was not in issue before the magistrate.

20 A judge or magistrate does not make an error of law or fact by failing to take into account a matter that was not in issue between the parties. An appellant who seeks to rely on such a matter must persuade the appellate court that a miscarriage of justice has occurred as a result of the matter in question not having been taken into account.

The appellant's application to adduce new evidence in the appeal

21 By an application in the appeal filed on 20 May 2011, the appellant sought leave to adduce additional evidence in the appeal. The application is supported by affidavits of the appellant sworn 20 May 2011 and 19 July 2011.

22 The additional evidence comprises, in essence, material in the affidavit sworn 19 July 2011, including several maps annexed to that affidavit which purport to show, amongst other things, the lot boundary of the Central Law Courts on Hay Street.

23 In this affidavit, the appellant deposes, relevantly:

1. I rely upon a bundle of maps of the location at which the offence relating to this appeal is alleged to have occurred. Annexed hereto and marked **'HPG 1'**is a true copy of a bundle of maps described as Attachments 'A 1-4'.
2. I verily state that at the time of trial I did not know the correct location where the offence is alleged to have occurred for the following reasons;

(1) The prosecution notice was vague in that it did not specify a location other than making reference to 'Hay Street, Perth'.

(2) The prosecution did not provide disclosure before the trial.

1. Having regard to the facts deposed to above, it was impossible for me to foresee or regard as relevant at the trial the additional evidence that is annexed herein.
2. In late February 2011 subsequent to the single judge appeal I visited the location where the offence is alleged to have occurred. There was a considerable overhang of roof projection from the building in a northerly direction towards Hay Street. I was not aware of this fact before this time. The scooter was parked against the wall within the overhang.
3. On about 1 March 2011, I telephoned the City of Perth to enquire if the overhang was contained within the lot boundary or if it projected onto the footpath.
4. On 3 March 2011, I attended the City of Perth and had a conference with the Town Planner Mr Luke Aitken in order to clarify this issue and other various concerns in relation to location, lot boundaries, building lines and set-backs which are not evident visually. Annexed hereto and marked 'HPG 1 (Attachment A 1)' is a true copy of a City of Perth map depicting the Central Law Courts and adjacent buildings provided to me by Mr Aitken dated 3 March 2011.
5. On the same day I was informed by Mr Aitken that I could access the information described at paragraph 10 above by visiting the City of Perth website at http//www.Intramaps Public.
6. By reason of the sequence of the events as deposed to at paragraphs 8 - 11 above I could not have been expected to adduce the new evidence in the single judge appeal.
7. The prosecution alleged at the trial that the scooter was parked on the footpath. Annexed hereto and marked 'HPG 2' is a true copy of the photo exhibit of the scooter tendered into evidence by the prosecution. It is clear that the scooter is up against the wall of the building.
8. Annexed hereto and marked 'HPG 1' are true copies of 3 Attachments 'A 2-4' evidencing that as a matter of factual correctness the scooter is parked within some 3.9 meters inside the boundary of Lot 744 on DP 9924 and within the building line, but not on or over a footpath as alleged and convicted.

24 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

25 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

26 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

27 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).

28 In my opinion, the appellant could, by the exercise of reasonable diligence, have obtained the additional evidence before the trial. If, as he alleges, the appellant was uncertain before the trial as to the precise location where he had parked his motorcycle, he could have sought clarification from the respondent, which had in its possession the photograph of the motorcycle that the prosecutor tendered in evidence. Also, there is no reason why the appellant, in the exercise of reasonable diligence, could not have obtained the information and other material referred to in or annexed to his affidavit sworn 19 July 2011.

29 Accordingly, this court may not allow the appeal, on the basis of the additional evidence, unless the appellant persuades this court that the evidence establishes his innocence or raises such a doubt that this court is satisfied that he should not have been convicted.

30 The appellant said at the hearing before this court:

Anyway, I don't have an issue if it's treated as new evidence (appeal ts 13).

31 I would grant leave to adduce the additional evidence for the purpose of determining whether the remaining ground of appeal has any merit.

The appellant's submissions on the remaining ground of appeal

32 The appellant said in his oral submissions that he was asserting in effect that if a 'footpath' is 'within a lot boundary' then it is not a 'footpath' for the purposes of cl 3.4(3)(f) of the Local Law (appeal ts 18).

33 The appellant's written submissions read, relevantly:

The appellant contends there are substantial vagaries in the evidence presented that come to light with the benefit of the new evidence adduced in this appeal. (see application to adduce new evidence filed 20 May 2011)

The pavement appears much wider than a standard width footpath and in the absence of any signage the following is not clear or understood;

(1) The width of the 'footpath' or put another way; where does the footpath extend to or cease.

(2) Where is the lot boundary?

(3) Where does the building extend to? [3] - [4]

34 The relevant provisions of the Local Law are these.

This local law (except for clause 2.4) applies throughout the district but not to a parking station that -

(a) is not owned, controlled or occupied by the City; or

(b) is owned by the City but is leased to another person.

36 The term 'district' is defined in cl 1.4 to mean, in effect, the local government district of the respondent.

37 The term 'parking station' is defined in cl 1.4 to mean 'any land, building or other structure used predominantly for the stopping and parking of vehicles, whether or not a fee is charged, and includes an attended parking station but does not include a road or reserve'.

38 The place where the appellant parked his motorcycle was not a 'parking station', as defined. It was not within the exception relating to parking stations in cl 1.7.

39 By cl 2.4(1) of the Local Law, a person must not stop or park a vehicle on land without the consent of the owner or occupier of the land on which the vehicle is stopping or parked. The provisions of cl 2.4 are confined in their application to land in respect of which there is an 'owner' (as defined in cl 1.4) or an 'occupier' (as defined in cl 1.4).

40 Clause 3.4(3) of the Local Law provides, relevantly:

A person must not stop or park a vehicle so that any portion of the vehicle is -

...

(f) on or over a footpath, pedestrian crossing, children's crossing or a place for pedestrians;

...

(a) 'park' is defined to mean 'permit a vehicle, whether attended or unattended, to remain stationary', subject to exceptions that are not relevant;

(b) 'vehicle' is defined to include, in effect, a motorcycle; and

every footpath, lane or other place -

(a) intended for the use of pedestrians only, or in the case of a dual use path, for the use of pedestrians and bicycle cyclists only; or

(b) ordinarily used by pedestrians and not by vehicles or, in the case of a dual use path, by pedestrians and bicycle cyclists and not by vehicles other than bicycles.

42 The term 'pedestrian' is not defined in the Local Government Act 1995 (WA) or the Local Law.

43 However, cl 1.6 of the Local Law provides that, where a term is used but is not defined in the Act or the Local Law and that term is defined in the Road Traffic Act or the Road Traffic Code, then, unless the context otherwise requires, the term is to have the meaning given to it in the Road Traffic Act or the Road Traffic Code.

44 At all material times, the term 'pedestrian' has been defined in reg 3 of the Road Traffic Code 2000 (WA) to mean:

any person on foot or in a perambulator, or a physically disabled person in an unmotorised wheelchair or in a motorised wheelchair, and includes -

(a) a person pushing a perambulator or wheelchair; and

(b) a person wheeling a bicycle or a wheeled toy, if the person is completely dismounted from the bicycle or wheeled toy; and

(c) a person in or on a wheeled recreational device or a motorised scooter; and

(d) a person under 12 years of age in or on a wheeled toy.

45 The context in which the term 'pedestrian' is used in cl 3.4(3)(f) of the Local Law does not require that the term bear a meaning different from the definition in the Road Traffic Code.

46 The appellant's motorcycle was not a 'wheeled recreational device' or a 'motorised scooter', as defined in reg 3 of the Road Traffic Code, for the purposes of the definition of 'pedestrian'.

The merits of the remaining ground of appeal

47 The critical part, for present purposes, of cl 3.4(3)(f) of the Local Law, read with the definition of 'footpath' in cl 1.4, prohibits a person from stopping or parking a vehicle (including a motorcycle) so that any portion of the vehicle is on or over any footpath, lane or other place:

(a) intended for the use of pedestrians (as defined in reg 3 of the Road Traffic Code) only; or

(b) ordinarily used by pedestrians (as defined) and not by vehicles.

48 The additional evidence relied on by the appellant does not establish that he parked his motorcycle within the boundaries of the lot on which the Central Law Courts are constructed. The photograph tendered in evidence by the prosecutor shows that the motorcycle was parked on a paved, level surface and that the motorcycle was in the vicinity of (but not touching) a wheelchair access ramp that leads into the building. The maps annexed to the appellant's affidavit sworn 19 July 2011 do not depict the place where the appellant's motorcycle was parked or the location of the ramp. Also, it is not apparent from the photograph where the motorcycle was parked relative to the roof projection referred to in par 8 of that affidavit.

49 The magistrate was not confronted with these difficulties. It is evident from the trial transcript (in particular, the discourse between the magistrate and the prosecutor) that his Honour was, unsurprisingly, well aware of the location of the wheelchair access ramp on Hay Street. The lack of clarity in the material before this court as to the precise location of the appellant's motorcycle on the day in question is acknowledged in pars (3) and (4) of the appellant's written submissions. See [33] above.

50 This absence of clarity is sufficient to require that leave to appeal be refused on the remaining ground of appeal, with the result that the appeal must be dismissed. As I have mentioned, the additional evidence is new, as distinct from fresh, evidence. It does not establish that the appellant is innocent. Also, it does not raise such a doubt that I am satisfied that he should not have been convicted.

51 I will, however, for the sake of completeness, assume that the place where the appellant parked his motorcycle was within the boundaries of the lot on which the Central Law Courts is constructed.

52 I am unable to discern from cl 2.4 or cl 3.4(3), in the context of the Local Law as a whole, an intention that the prohibition in cl 2.4(1) should exhaustively regulate parking within the boundaries of a lot in the Perth central business district on which is constructed a public building.

53 The photograph discloses that the place where the appellant parked his motorcycle was a 'footpath' within cl 3.4(3)(f) read with the definition of 'footpath'. That is, it was a place intended for the use of pedestrians only. This intention is to be inferred from the following:

(a) the paved, level surface of the place in question and the area surrounding it;

(b) to the extent revealed by the photograph, the paved, level surface extends, without interruption, north from the wheelchair access ramp towards Hay Street;

(c) the apparent absence of any barriers, fences or other obstructions to access by pedestrians who wish to walk on and across the place in question and the area surrounding it;

(d) the apparent absence of any temporal or other restrictions imposed by the owner or occupier of the lot on pedestrians seeking to walk on and across the place in question or the area surrounding it; and

(e) the character of the Central Law Courts as a public building to which members of the public will necessarily require and be given access.

54 The only reasonable inference open on the whole of the evidence (that is, the evidence adduced at trial and the additional evidence) is that:

(a) the owner or occupier of the lot has extended an implied invitation to members of the public to use the space in question and the area surrounding it as a pathway or thoroughfare for the purpose of ingress to and egress from the Central Law Courts; and

(b) the paved, level surface shown in the photograph adjoins, and is a continuation of, the footpath on the road verge.

55 I would grant leave to adduce the additional evidence. However, leave to appeal should be refused and the appeal dismissed.