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[2010] WASCA 164
General information, not legal advice.
Court of Appeal (WA)
2010-08-06
Jenkins J, McKechnie J, Lure P, Buss JA, Kechnie J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : GROVER -v- SCOTT [2010] WASCA 164
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against dismissal of single judge appeal - Extension of time within which to appeal - Driving a motor vehicle in a school zone during the school zone period at a speed in excess of 40 km per hour - Adequacy of school zone signs
Criminal Procedure Act 2004 (WA), s 55, s 71, s 72
Criminal Procedure Rules 2005 (WA), r 60, r 63
Road Traffic Act 1974 (WA), s 98A
Hands v Baker [2009] WASC 46
Lancaster v The Queen [1989] WAR 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
3 JENKINS J: The appellant appeals against the decision of a single judge (McKechnie J) to dismiss his appeal against a refusal of a magistrate to set aside his conviction in the Magistrates Court for driving a motor vehicle in a school zone during a school zone period in excess of 40 km per hour, namely 55 km per hour.
5 Even making allowance for the fact that the appellant is unrepresented, leave to appeal could not be granted on these grounds. None of the numbered paragraphs allege that McKechnie J made any specific error or identify such an error. Neither do the grounds allege error on behalf of any judicial officer. They read as a summary of what happened, or did not happen, in the course of the appellant being pulled up by the police, the Magistrates Court proceedings, the application to re-hear the charge in the Magistrates Court, the single judge appeal and this appeal. The grounds suffer from 'a lack of clarity' such that I am unable to understand what is being complained about: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [58]. Thus, none of the grounds of appeal as currently framed have any reasonable prospect of success. As the appellant is unrepresented and obviously does not understand the appeal process, I will attempt to ascertain the substance of the appellant's grievances from all the documents that have been filed and from his oral submissions. If there appears to be a ground of appeal which has some prospects of success, I will give consideration to it.
7 On 30 July 2009 McKechnie J made a provisional decision in the single judge appeal. It concluded with the following sentence:
The appeal is now dismissed for failure to comply with the Rules.
8 On the same date the provisional decision was emailed and posted to the appellant. The appellant did not file a request for a hearing within five working days after the date on which he received the provisional decision or at any other date after he received it.
9 On 14 December 2009 the appellant filed the appeal notice in the Court of Appeal.
10 It is not clear from the Criminal Procedure Rules 2005 (WA) when a provisional decision becomes the final decision of the court in a single judge appeal. Rule 63(4) says that if no party lodges a request for hearing, the provisional decision 'becomes the final decision on the matter'. Taking the view most favourable to the appellant, the provisional decision became the final decision five working days after the date on which he was served with the notice of the provisional decision. Again, taking a view that is favourable to the appellant, this would have been no later than the middle of July. Thus, this appeal was filed approximately four months out of time.
11 On the same date, the appellant filed an affidavit, also sworn on 14 December 2009. In it he said that he served away from home on a vessel at sea and could not readily follow up on court decisions and actions in a timely manner. However, that is not an explanation for the delay in filing this appeal given that the appellant had sent correspondence to the court in August 2009 which acknowledged that he had received the provisional decision and indicated that he did not intend to appeal it.
12 The affidavit also said that the appellant's reason 'for not following up in a timely manner' was his perception that his observation of the incorrect school signage may be dismissed as an opinion and he did not want to enter into any conflict with the police. He said that, around five weeks previously, he observed that the school zone signage had been modified and a new sign erected on the median strip. He said that he had not received any fines pertaining to the offence and so he believed that his concerns had been accepted, the school signs altered and any fines or demerit points dismissed. He said that it was only following his return from offshore two weeks earlier that he received a notice of intention to suspend his licence and that until then it was his view that the matter had been 'settled privately'. He said that until he received the notice of intention to suspend his licence, it would not have been possible for him to know if the matter was in fact settled and closed.
13 The offence of speeding in a school zone by more than 9 km per hour but not more than 19 km per hour, other than during a holiday period, carries two demerit points but does not carry a mandatory or discretionary period of licence disqualification. Thus, if the appellant received a notice of intention to suspend his licence it must have been because he had failed to pay a fine or he had an accumulation of demerit points.
14 During oral submissions at the hearing of the application for leave to appeal, the appellant was asked why he should be allowed an extension of time within which to appeal. His answer was unclear. I can only quote it in full:
[I]t's only due to the moral obligation I have to myself as in having not received the infringement in a timely manner. Had I received the infringement straight after I had read the decision I would have said, 'okay, this is all over, I'll settle it.' Neither did I receive a decision in a timely manner from the traffic infringement department and neither the signs were left untouched (ts 7).
15 The appellant then referred to the fact that the position of the school zone signs, which was the point he was trying to make, had altered.
16 In Lancaster v The Queen [1989] WAR 83, 85 Malcolm CJ said that it is well-settled that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
17 Whilst the delay in this matter is not as lengthy as in Lancaster or in some other cases considered by this court, in my opinion the delay in instituting the appeal given the subject matter of it, was a lengthy one. This was originally a summary prosecution and proceedings on it, including any appeal proceedings, should be dealt with in a timely manner commensurate with the seriousness of the charge. Since the appellant filed the single judge appeal he has failed to meet the time limits in both the single judge appeal and in this appeal. Thus, I am satisfied that I should apply the principle enunciated in Lancaster to the facts of this case.
18 Even accepting that the appellant is unrepresented and is a layperson who does not have a good understanding of the law, his explanation for his failure to seek a re-hearing of McKechnie J's provisional decision in the single judge appeal or to appeal that decision within time, is totally inadequate. A plain reading of the provisional decision and all the correspondence the appellant received from the court was to the effect that his appeal from the magistrate's decision not to set aside his conviction in the Magistrates Court had been dismissed. If he had paid any attention to the correspondence he could not have been under any misapprehension other than that the original conviction stood.
19 Whatever gloss the appellant now wishes to place on the facts, it is apparent from his correspondence in August 2009 that he was aware that the single judge appeal had been dismissed. There was no basis in fact for his view that there had been any kind of a review or quashing of the decision to convict and fine him.
20 There are no exceptional circumstances in this case for the delay in the institution of the appeal. Thus, the court should not grant an extension of time within which to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
21 The police statement of material facts states that at about 3.20 pm on Tuesday, 29 April 2008 the appellant drove his Mitsubishi motor vehicle in a northerly direction on Harborne Street, near Dodd Street, in Wembley. His car was detected by police, who were using a handheld laser speed detection device, to be travelling at 57 km per hour, which was rounded down to 55 km per hour for the purposes of the infringement notice. The 'LTI 20-20 Ultra-Lite (sic) laser speed detection device' was found by the police to be working correctly at the time of the offence. The speed allowed in the area was 40 km per hour as it was a designated school zone and within the school zone period. The police stopped the appellant and questioned him about his speed. The explanation given by the appellant was 'what time is it?' The appellant was issued with a traffic infringement notice which he elected to have heard in court.
22 A prosecution notice was issued which charged that on 29 April 2008 at Wembley the appellant drove a motor vehicle in a school zone 'where a school zone sign was erected indicating a speed of 40 km per hour, at the beginning of the school zone and during the school zone periods indicated on the school zone sign, at a speed exceeding 40 km per hour, namely 55 km per hour', contrary to s 11(6) of the Road Traffic Code 2000 (WA) (the Code).
23 The appellant says that on 29 April 2008 he attended a class in information technology in Subiaco. The class finished early at around 3.15 pm and one of his fellow students asked him to give her a lift to Wembley on the appellant's way home to Quinns Rocks. The appellant agreed to do so.
24 The appellant says that he missed seeing the school zone sign on Harborne Street, Wembley as it was obscured by a tree. However, he says that he was driving at a safe speed which was appropriate to the prevailing conditions. He says that he saw the police officers, who were measuring motorists' speed, in a timely manner and immediately stopped as signalled by them. He says that he is unsure as to whether he was driving at 55 km per hour. He says that he did not overtake any other cars and neither was his car proceeding so slowly that he was delaying other vehicles (appellant's letter to the court dated 11 June 2009).
25 The appellant says that after he stopped, the police officer told him his speed. He says that he apologised profusely and promised not to do it again. The appellant says that he told the police officer that he was unaware of the school zone. He says that the police officer did not accept his apology and issued an infringement notice to him.
26 The appellant says that a second police officer went back to Harborne Street and continued to use a handheld device to measure the speed of vehicles. The appellant says that he witnessed that police officer signalling to 'almost' all the cars that were passing by and on some occasions the officer had to jump out of the way of cars when their drivers failed to notice him. The appellant says that he apologised to the police officer again and tried to ask him to let him off with a warning on the basis that he was 'at least more vigilant than the drivers of the cars passing by'.
27 The appellant says that the police officer told him that he (the appellant) would be sorry after he paid the fine and that it was bad luck that he had been caught. The police officer told the appellant that the police had been asked to monitor that section of road for four days after the schools re-opened. In the appellant's view this indicates that the police had 'certain targets that they had to meet'.
28 The appellant made a written plea of not guilty to the charge and requested that the matter be set down for hearing on a date suitable to him. The appellant does not dispute that he was advised of the hearing date but that he did not attend court on 25 February 2009, the date set for the hearing of the charge.
29 The appellant was convicted and fined, in his absence. The prosecutor presented the facts to the court in substantially the same terms as the statement of material facts, which I have earlier summarised.
30 On the same date, the appellant applied for a re-hearing of the charge. In the application he said that the grounds of it were that he forgot as he 'was overseas' and 'then offshore'. He asked for another chance. He alleges that when he paid the fee for the application he was told, or he believed on the basis of what he was told, that the payment of the fee would ensure that his conviction was set aside and a date would be set for the hearing of the charge.
31 On 31 March 2009 the appellant appeared in the Magistrates Court at Perth for the hearing of his application for a re-hearing. After hearing submissions from the appellant, the magistrate ruled that the appellant did not have a 'disclosed defence' to the charge and dismissed the application.
32 On 28 April 2009 the appellant lodged an appeal notice against the magistrate's decision (the single judge appeal). The grounds of appeal were:
33 On 12 May 2009 the court sent a letter to the appellant advising him that a decision as to the grant of leave to appeal could not be made until the appeal notice and accompanying documentation had been served on the respondent to the appeal and a service certificate had been filed. The letter advised the appellant that if these tasks were not completed within 28 days from his receipt of the letter, the matter would be referred to a judge who may, at his or her discretion, dismiss the appeal.
34 The appellant did not comply with the directions in the letter. He wrote a letter dated 11 June 2009 to the Chief Justice. The letter traversed many factual issues relating to the signage at the relevant school zone. The letter also included comments and criticisms of the proceedings in the Magistrates Court.
35 In respect to the single judge appeal, the appellant said that having regard to a number of specific matters:
I do not wish to take a police officer to court over this at this stage, however I want to help eliminate what I see as an issue of poor signage so one does not have to rely upon luck in these matters and if luck is a part of it then I request and hope it turns around in my favour.
36 The letter concluded by requesting that 'the matter be settled and closed in confidence following the commercial investigation'. The reference to the commercial investigation was to an investigation which he asked the Chief Justice to conduct in order to 'establish the truth in the matter'.
37 On 17 June 2009 the court wrote to the appellant advising him that his letter to the Chief Justice had been referred to a judge who had advised that 'judges do not conduct investigations but resolve disputes between parties'. The appellant was told that his dispute was with the police officer who laid the charge against him and therefore he had to serve the appeal notice and a copy of the transcript of proceedings in the Magistrates Court on the police service. Finally, the appellant was told that the judge was prepared to extend time for another 28 days. The letter concluded:
If service is not affected during that time the Judge will dismiss the appeal for failure to comply with the rules.
38 The appellant did not file a certificate of service within the given time period. On 30 July 2009 McKechnie J made a provisional decision in the appeal. The decision set out, in short terms, the history of the matter. It concluded with the following sentence:
The appeal is now dismissed for failure to comply with the Rules.
39 On 30 July 2009 the provisional decision was emailed and posted to the appellant. Accompanying it was a letter advising him that if he wished to seek a reconsideration of the judge's decision, the enclosed pro forma request for hearing should be filed within five working days from the date he received his copy of the decision. The appellant was told that if he did not file the request for hearing the court would assume that he was accepting the decision of the judge dismissing the appeal for failure to comply with the rules. The provisional decision would then become the final decision in the appeal.
40 The appellant did not file a request for a hearing within five working days after the date on which he received the provisional decision or at any other date after he received it. On 20 August 2009 the appellant wrote to the court and referred to the letter of 30 July 2009, enclosing the provisional decision. The appellant's letter referred to a number of matters which the appellant said he found hard to accept about the issue and which had made him upset. However, he concluded:
I anyhow thank you for your time, consideration and attention you have given to the matter and do sincerely apologise for any dishonour.
41 A registrar signed a certificate of conclusion of criminal appeal on 21 September 2009. On 29 September 2009 a copy of the certificate was mailed to the appellant.
42 On 7 December 2009 the appellant sent an email to the court thanking it for the action that had been taken in moving, modifying and correcting the school speed zone signs relevant to the charge.
43 On 10 December 2009 the appellant wrote to the court again advising that he had received an intention to suspend his licence. The inference from the letter is that the suspension was due to his conviction for speeding. The appellant requested an opportunity to 'cure' any fines, levies, demerit points or dishonour. The basis of this request was that he had noted that there had been recent action taken to improve the signage in the area of the school speed zone and this, to him, indicated that the defects that he had identified in the signage were correct. The appellant also requested:
It be considered that perhaps this may be settled and closed out of court privately given the recent changes to the school signage in the area.
44 By an email dated 10 December 2009 and a letter dated 14 December 2009, the appellant was advised that his appeal had been dismissed and there was no jurisdiction to stay operation of the conviction, fine or demerit points.
45 On 14 December 2009 the appellant lodged an appeal notice to the Court of Appeal which seeks to quash McKechnie J's decision made on 30 July 2009 to dismiss the single judge appeal. The draft grounds of appeal are somewhat different from those contained in the appellant's case. Given that the appellant is unrepresented and may not understand that the grounds of appeal in his case are regarded as having replaced the grounds of appeal in the appeal notice, I will state them and also attempt to deal with them:
Merits of the grounds of appeal contained in the appellant's case - does the appellant have a defence to the charge?
46 The appellant appears to have a number of grievances in respect to the charge but it is unclear which of these he relies on to establish a defence to it. I will attempt to deal with as many of the grievances as I can identify.
47 The first matter raised by the grounds of appeal is that the 'radar gun used was hand held'. No particulars are given of this ground. In the appellant's written submissions he states:
The police officer was using a handheld radar gun, the correct usage and stability of which I have concerns about.
48 The police statement of material facts which has been provided by the appellant says that the police used an 'LTI 20-20 Ultra-Lite (sic)' to measure the appellant's speed. I will assume that this is a reference to the LTI 20-20 Ultra-Lyte laser apparatus which was approved for ascertaining the speed at which a vehicle is moving in the Road Traffic (Speed and Measuring Equipment) Notice 2008 made by the Minister for Transport under the Road Traffic Act 1974 (WA), s 98A(2) and (2a). The notice was published in the Government Gazette of 6 January 2009.
49 In Hands v Baker [2009] WASC 46 Blaxell J dismissed an appeal against a magistrate's decision dismissing a prosecution against a motorist for an offence of exceeding the speed limit. The police recorded the motorist's speed using the LTI 20-20 Ultra-Lyte. In Hands, the prosecution alleged that on 17 April 2008 (12 days prior to the date the appellant was pulled over by the police) a police officer had measured the motorist's speed using the LTI 20-20 Ultra-Lyte. The magistrate found that the LTI 20-20 speed measuring device was gazetted in 1992 as a speed measuring device but that the LTI 20-20 Ultra-Lyte had not been gazetted until after the commission of the alleged offence. He found the offence not proven. On appeal, Blaxell J found that the terms of the Minister's approval should be strictly construed, given the impact that approved equipment has on the prosecution of a motorist charged with a speeding offence. His Honour found that the Minister had approved the apparatus which bore the name LTI 20-20 and had not approved the device called the LTI 20-20 Ultra-Lyte. Thus, he found that the magistrate was correct in concluding that the offence had not been proved.
50 These reasons would appear to apply to this case. Although the appellant has not specifically raised this issue, once I have considered the merits of all the other issues which the appellant has raised, I will determine whether there would be a miscarriage of justice if an extension of time within which to appeal was not granted on this ground.
51 The second matter raised in the grounds of appeal addresses the fact that the police officer did not accept the appellant's apology for speeding. A police officer has a discretion to charge a person with an offence if he has reasonable grounds for believing that an offence has been committed. There was nothing improper in the respondent charging the appellant, even though the appellant may have apologised to him.
52 The third matter raised in the grounds of appeal is that there was inadequate signage at the start of the school zone. The appellant says that there was a school zone sign on the left-hand side of the road at the beginning of the school zone which was obscured by a tree but there was no school zone sign on the other side of the northbound lane at the same point, in between the north and southbound lanes (appellant's affidavit sworn 18 May 2010).
53 In support of these assertions, the appellant filed an affidavit sworn 31 March 2009 to which he attached a photograph which he said was taken on 21 October 2008 of Harborne Street, Wembley and the signage at the beginning of the relevant school zone. There is a fundamental problem with the photograph in that it was taken some six months after the offence occurred. However, I will assume, as the appellant does, that the photograph shows the road and signage as it was at the date of the offence.
54 The photograph was taken from a position on the left-hand verge looking north towards the start of the school zone. The road is apparently straight and flat. It has single lanes in each direction separated by a level median strip. There is a medium sized verge tree which stands between the school zone sign on the left-hand side of the road and the photographer. From the position on the verge where the photographer is standing, the foliage of the tree obscures about half the school zone sign. It is not possible to determine from the photograph whether it would obscure any of the sign for a motorist travelling northbound on Harborne Street. Logic dictates that it would obscure less of the sign than is obscured for someone standing on the verge. Printed on the road surface of the northbound lane, alongside the sign, is what appears to be the number 40 in large black lettering within a larger yellow rectangle. This would be the speed limit for the school zone. On the right-hand verge is another school zone sign which is not obscured. The school zone signs appear to be the type which are rectangular in shape, have the words 'school zone' printed at the top and underneath that is the number 40 within a red circle. Underneath the circle the hours of the school zone are printed.
55 The appellant also complains that the end school zone sign was heavily obscured by verge trees. In order to show this he has produced another photograph dated 21 October 2008. It shows an end of school zone sign which is partially obscured by foliage from nearby trees. It is not possible to say whether the sign and the foliage around it were in the same condition in April 2008. Whether it was or not, the foliage had no impact on the appellant's commission of the offence or his liability for it. A photograph taken by the appellant in March 2009 showed that those trees had been trimmed. Again, I do not know whether this was the state of the sign and the trees in April 2008.
(6) A person shall not drive a vehicle in a school zone -
(a) at a speed exceeding, in kilometres per hour, that indicated by the numerals on; and
(b) during the school zone periods indicated on,
the 'school zone' sign at the beginning of the school zone.
57 Included in the Code is a diagram of the relevant school zone signs.
58 There is a note to the definition which states that there are a number of other permitted versions of each of these signs.
59 In the Code reg 3 'road sign', 'school zone', 'school zone periods' and 'traffic sign' are defined in the following terms:
'road sign' means a board, plate, screen, road marking, or other device, whether or not illuminated, displaying words, figures, symbols or anything else to direct or warn traffic on, entering or leaving a road;
'school zone' means a carriageway or length of carriageway -
(a) defined at its beginning by means of a 'school zone' sign and at its end by means of an 'end school zone' sign; or
(b) that forms part of a network of 2 or more carriageways defined by means of -
(i) 'school zone' signs erected near the boundary of each carriageway that provides access to the network, so that a driver can only lawfully enter the network on a carriageway by passing a 'school zone' sign; and
(ii) 'end school zone' signs erected near the boundary of each carriageway that provides an exit from the area, so that a driver can only lawfully exit the network on a carriageway by passing an 'end school zone' sign;
'school zone periods' means the days (if any), and the periods (if any) during those days, that the speed limit indicated on a 'school zone' sign has effect;
...
'traffic sign' means one of the road signs, marks, structures or devices set out in Schedule 2 or 3 placed, or erected, on or near a road.
(1) Where a traffic sign or traffic-control signal indicates a requirement that is inconsistent with a provision of these regulations (other than a penalty provision), the traffic sign or traffic-control signal prevails to the extent of the inconsistency.
(2) Where a traffic sign or traffic-control signal of a kind referred to in these regulations is in existence on a road, it takes effect and operates as a traffic sign or traffic-control signal duly established for the purposes of these regulations.
(3) A traffic sign or traffic-control signal marked, erected, established or displayed on or near a road is, in the absence of evidence to the contrary, presumed to be a traffic sign or traffic-control signal marked, erected, established or displayed under the authority of these regulations.
(1) An inscription on a road sign operates and has effect according to its tenor and a person who contravenes the directions of the inscription on a traffic sign commits an offence.
(2) Schedule 1 provides the meaning of certain abbreviations and symbols used on road signs.
(a) be a reasonable likeness of any representation of that sign in these regulations or the Schedules to these regulations; or
(b) comply substantially with a description of that kind of traffic sign in these regulations.
(2) A road marking is to comply substantially with a description of that kind of road marking in these regulations.
...
(4) A traffic sign is taken to comply substantially with a representation of a traffic sign in these regulations even though -
(a) the dimensions of the sign, or of anything on the sign, are different;
(b) the sign has additional information on or with it;
(c) the number on the sign is different;
(d) the sign has a different number of panels;
...
(k) there is a variation in shade or brightness between a colour on the sign and the equivalent colour (or description of a colour) in the diagram.
(5) A symbol on or in a traffic-control signal or traffic sign has effect even if the dimensions of the symbol, or of anything on the symbol, are different.
61 The Code sch 2 includes the school zone sign which appears from the appellant's photographs to have been used at the beginning of the school zone in Harborne Street in April 2008 and sch 3 contains the end school zone sign used at the end of the school zone.
62 In the appellant's affidavit sworn on 18 May 2010 he compares the school zone sign at the start of the relevant school zone to others which he has seen around Perth and photographed. One of the comparisons he has drawn is between the subject school zone sign and school zone signs which have an extended triangular orange sign on top of the standard school zone sign. However, that sign was not included in sch 2 or sch 3 of the Code as it was in April 2008. Thus, it is not an appropriate comparison.
63 The appellant has deposed that towards the end of 2009 the school zone sign in Harborne Street was modified to include the extended triangular sign. This would be consistent with the Code being amended at around that time to include it as a permitted traffic sign. I note that particular design of sign is now contained in sch 3 to the Code. The note to sch 3 says that the signs in sch 3 are 'alternative versions of the signs that may be used to regulate traffic in this jurisdiction. These signs are not included in the Australian Standard AS 1742 (Manual of Uniform Traffic Control Devices), but they may be still in use on roads in Western Australia'. Thus, even today, there is no requirement for a school zone sign to meet the appellant's preferred design.
64 Another comparison which the appellant has made is with signage at the commencement of school zones which include a sign on a median strip. In April 2008, the Code did not require the placement of a sign on a median strip.
65 The appellant submits that because the relevant school zone sign was partially obscured by a tree and did not include the orange extended triangle and was in an ordinary suburban area without any visible sign of a school, the school zone could easily be missed by a motorist.
66 If I accept the facts most favourable to the appellant, at the commencement of the relevant school zone there were school zone signs in the required statutory design, on both sides of the road. There was also a large sign painted on the roadway indicating that the speed limit within a school zone period was 40 km per hour. There was also an end school zone sign at the end of the school zone.
67 The school zone sign on the left-hand side of the road at the start of the school zone was, at worst, partially obscured to a motorist approaching the commencement of the school zone. Even if it was totally obscured, a motorist who was paying due attention to the roadway would have had ample notice of the school zone from the sign on the right-hand side of the road and the painted roadway. Further, the sign on the left-hand side of the road would have been apparent to a motorist, when their vehicle was a short distance from it. There is no substance in this complaint.
68 The fourth matter raised by the grounds of appeal is that the statement of facts provided by the police did not include a true record of the conversation between him and the police officer at the scene. In the circumstances of this offence, and even assuming the substance of the conversation was as stated by the appellant, the substance of the conversation is and was irrelevant to his liability for the offence.
69 The fifth matter raised by the grounds of appeal is that the Magistrates Court failed to set aside the appellant's conviction and list it for a re-hearing as the appellant claims it had agreed to do.
70 As I have stated, the appellant was convicted in his absence. The Criminal Procedure Act 2004 (WA) s 71(2) states:
...
(2) If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused -
(a) did not receive notice of the court date on which the conviction occurred;
(b) did not receive such notice in enough time to enable the accused to appear on the court date; or
(c) received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.
The Criminal Procedure Act s 72 states:
(1) If an application made under section 71(1) is made within 21 days after the date of the decision to which it relates, the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.
(2) If an application made under section 71(2) -
(a) is made within 21 days after the date of the decision to which it relates; and
(b) is not made by an accused who is in custody and who seeks to be released on bail until the hearing at which the charge is dealt with again,
the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.
(3) If an application is made under section 71(3), then irrespective of whether the associated application made under section 71(2) was made within 21 days after the date of the decision to which it relates or not, the court, without hearing the parties, may grant the application if it is satisfied that there is a reasonable prospect of the application made under section 71(2) succeeding.
(4) If an application made under section 71(1), (2) or (3) is not granted, respectively, under subsection (1), (2) or (3) of this section, the court must -
(a) as the case requires, set a date for the hearing of the application made under section 71(1) or (2);
(b) set a date for the hearing of the application made under section 71(3), if any, which may be a date before the date set under paragraph (a); and
(c) issue an approved notice to the parties advising them of the hearing date or dates, as the case requires.
(5) At the hearing of an application made under section 71(1) or (2) the court may grant the application if it is satisfied that it is in the interests of justice to do so.
(6) At the hearing of an application made under section 71(3) the court may grant the application if the court is satisfied -
(a) that there is a reasonable prospect of the application made under section 71(2) succeeding; and
(b) that it is in the interests of justice to do so.
(7) The court dealing with an application made under section 71 need not be constituted by the same person or persons who constituted the court that made the decision to which the application relates.
71 This allegation seems to be related to material in correspondence from the appellant to the effect that after missing the original hearing of the charge in the Magistrates Court, the appellant was told by somebody at the court that the conviction would be set aside and listed for another hearing if he made an additional payment. He says that he promptly did that. However, he was not granted the hearing.
72 The appellant appears to misunderstand the law. If an application to set aside a conviction is made within 21 days after the date of the decision, the court may grant the application without hearing the parties. However, there is no obligation on the court to do so and if it does not exercise that power, the court must list the application for hearing. This is the process that occurred in this case.
73 The Magistrates Court followed the procedure set out in the Criminal Procedure Act. Any misunderstanding of the law which the appellant had, could not have influenced the decision made by the magistrate on the hearing of his application to set aside the conviction and can not impact on the decision of this court.
74 The sixth matter raised by the grounds of appeal is that the appellant's sworn evidence was not accepted at the hearing of the application for a re-hearing and nor did the court provide the appellant with an opportunity to get further legal advice or evidence.
75 The sworn evidence which the appellant sought to rely on was his affidavit sworn 31 March 2009. I have read that affidavit and it raises a number of the issues that I have already referred to. In addition, the appellant says that by the time he was pulled up the children from the school had gone. He says that there were no crossing wardens or children seen in the area of the school or in the area that his vehicle was stopped. The appellant also says that in the previous 10 years he had not received any indication to suggest that he had been speeding. He says that his vehicle is for private use only and that it was not engaged in any commercial activity or transporting any passengers at the time of the alleged infringement. The appellant said that on all the grounds that he had raised in the affidavit, being that:
the charge ought to be dismissed. The appellant also annexed a number of photographs of the relevant school zone signage and other school zone signage.
76 There may be an issue as to whether an offender can appeal from an evidentiary decision made during the course of a hearing of an application under the Criminal Procedure Act s 71 or a decision to refuse an application under s 71 as a party can only appeal from a 'decision' as that word is defined in the Criminal Appeals Act 2004 (WA) pt 2, which governs appeals from courts of summary jurisdiction. However, I will not determine that issue as the court has not heard submissions in respect of it.
77 There is no material in the affidavit which indicates that the appellant should not have been convicted of the charge or that the magistrate ought to have allowed his application to have his conviction set aside and the charge re-heard. As I have explained, the school zone signage met the requirements of the Code. The reasons why the appellant failed to see the signage which was visible if he had been paying proper attention, the road conditions, the appellant's manner of driving other than his speed, the absence of school children and other pedestrians, the appellant's personal circumstances and his good driving record were not matters relevant to his guilt of the offence. Even if the magistrate had received the affidavit, it would not have altered her decision.
78 In any event, the magistrate who heard the application to set aside the conviction requested the appellant to explain to her the basis of his application. The appellant was given a number of opportunities by the magistrate to make such an explanation. Whilst doing so, he did not suggest to the magistrate that he was not speeding or that school zone signage did not exist. The magistrate provided the appellant with an opportunity to be heard on the application. The requirement of law that the appellant be given an opportunity to be heard did not require the magistrate to accept the appellant's affidavit or to adjourn the application for a further hearing. The magistrate was correct to hold that the matters presented to her by the appellant did not disclose that he had a defence to the charge.
79 The seventh matter raised in the grounds of appeal is that the respondent was not present or represented in the court during the hearing of the application to re-hear the charge. The appellant contends that the magistrate acted on behalf of the police.
80 The Criminal Procedure Act s 72(4) provides that if an application for a re-hearing is not dealt with on the papers, the court must, amongst other things, issue an approved notice 'to the parties advising them of the hearing date'. There is no indication on the transcript that the police were represented at the hearing of the application. The appellant says that there were police officers present but they said nothing. This may be because they were not called upon or because they were not appearing for the respondent in respect to this application. There does not appear to be any obligation on behalf of a respondent to appear on the hearing of such an application.
81 The onus was on the appellant to persuade the magistrate that it was in the interests of justice to grant his application. The absence of a representative of the respondent and/or a failure of a representative to make submissions to the magistrate did not prejudice the appellant in respect to his obligation.
82 The second limb of this ground is a complaint that the magistrate acted on behalf of the police. There is no substance in this complaint. The magistrate questioned the appellant quite vigorously in an attempt to discern whether he had a defence to the charge. She was entitled to do so in order to test whether the appellant had satisfied her that it was in the interests of justice to grant the application.
83 It is difficult to discern the point made in par 8 of the grounds of appeal. It appears to be that the appellant's position has been vindicated by the replacement of the speed zone signage in the relevant area. For the reasons that I have given, the speed zone signage that existed at the time of the offence met the legal requirements that existed at the date of the offence. It is irrelevant if the signs have subsequently been altered.
84 The ninth matter raised by the grounds of appeal is that the appellant received, what he has described as, an 'increased penalty' a long time after the single judge appeal was dismissed. There is other material in the appellant's affidavits and correspondence to the effect that the appellant feels aggrieved because he was led to believe that because the signs had been improved he had some how been relieved of the conviction and its penalty.
85 The provisional decision in the single judge appeal, and correspondence from the court relating to it, made it clear to the appellant that his appeal against the decision of the magistrate to allow him a re-hearing of the charge had been dismissed. Nothing that the court did could have led him to believe that his liability to meet the penalty imposed at the time of conviction had been quashed. Any delay on behalf of the authorities in enforcing that penalty and any additional consequences imposed on the appellant because he failed to pay the penalty are irrelevant to whether the appellant should have leave to appeal or the merits of his appeal.
86 The tenth matter raised by the grounds of appeal is that the court did not re-list the appeal. The registry was correct to not re-list the single judge appeal as it was dismissed by the order of McKechnie J.
87 The eleventh matter raised by the grounds of appeal is that the appellant did not receive a 'proper response' from the Police Commissioner to his offer to settle the matter out of court. This is not a complaint that can be the subject of an appeal.
88 The final matter raised by the grounds of appeal is that the appellant made his decision to pursue this appeal. It is his right to do so, but the exercise of that right is not a ground of appeal or a reason to grant him an extension of time within which to appeal.
Merits of the grounds of appeal contained in the appeal notice - does the appellant have a defence to the charge?
89 There are two issues raised by the grounds of appeal in the appeal notice which was filed by the appellant. One of them is that the original school zone signage was obscured by a tree and was incorrectly displayed. I have dealt with those matters earlier in these reasons. For the reasons which I have given earlier, the school zone signage met the legal requirements of the Code. There is no substance in this complaint.
90 The second is that the appellant wants his conviction in the Magistrates Court quashed so that he can have a hearing as to whether he is guilty of the charge. He says that it was hard for him to 'keep on top of court procedures' because he was away at sea.
91 The fact is that the appellant failed to appear at the hearing of the charge in the Magistrates Court. Pursuant to the Criminal Procedure Act s 55, the Magistrates Court heard and determined the charge.
92 The Criminal Procedure Act enabled the appellant to apply to have the conviction set aside and a new date set for the hearing of the charge. At the hearing of such an application made under the Criminal Procedure Act s 71(2), the Magistrates Court may grant the application if it is satisfied that it is in the interests of justice to do so: Criminal Procedure Act s 72(5). When deciding whether it is in the interests of justice to do so, the court should take into account whether the applicant has made out any of the grounds in s 71(2).
93 During oral submissions at the hearing of the application for leave to appeal, the appellant said that he failed to appear in the Magistrates Court because he had some hearings listed in the Family Court and he was busy preparing documents for them. He said that he 'mistook that date'. Later, he said that the date slipped his mind because he was attending to Family Court matters. In the application to set aside the conviction, the appellant said that he forgot the hearing date because he was overseas and then offshore. The appellant concedes that he had received notice of the court date in enough time to enable him to appear on it.
94 The appellant's various explanations for failing to appear do not meet the standard of 'some good reason'. What is a good reason will depend on all the circumstances of the case. In this case, the appellant was simply careless as to the date on which he was required to appear for the hearing of the charge.
95 However, when dealing with the application at a hearing pursuant to s 72(5), a magistrate has a wider discretion to grant an application to set aside a conviction and grant a re-hearing if he or she is satisfied that it is in the interests of justice to do so. This means that the court may weigh in the balance matters such as prejudice to the other party if a re-hearing is granted, relevant case management principles, the affect of the conviction and any penalty on the applicant, whether the applicant has a good defence to the charge and the reason for the non-appearance at the original hearing. There is not a closed list of factors that may be considered.
96 In this case, the magistrate rightly focused on whether the appellant had a good defence to the charge as being the deciding factor as to whether it was in the interests of justice to grant a re-hearing. When asked by the magistrate to explain his defence, the appellant referred to the fact that the school zone signs were not properly displayed and visible. He conceded that there was a sign at the commencement of the school zone and that there was probably a yellow painted mark on the roadway. He referred to the fact that the signs were 'poorly maintained' in that they were 'concealed by a bush'. For the reasons given earlier in these reasons, the matters raised by the appellant did not indicate that he had a good defence to the charge.
97 Further, the magistrate noted that the explanation given in the written application for a re-hearing which was completed by the appellant was inconsistent with what he orally told her and, indeed, with what the appellant has told this court.
98 As I have said, a decision by a magistrate not to allow an application under the Criminal Procedure Act s 71 is not amenable to appeal. However, I have considered whether the magistrate made an error in refusing to grant the application, on the basis that if she had done so, there may be some basis for considering whether the conviction of the appellant was a miscarriage of justice which ought not to be allowed to stand. The magistrate did not make any error in refusing to allow the application.
Did McKechnie J err in dismissing the single judge appeal?
99 The next issue to consider is the appellant's submission that McKechnie J erred when he dismissed the single judge appeal because the appellant had failed to comply with the Criminal Procedure Rules.
100 On 28 April 2009, the appellant lodged an appeal notice against the magistrate's decision to refuse his application under the Criminal Procedure Act s 71(2). I will consider whether McKechnie J erred in dismissing the single judge appeal for failing to comply with the Criminal Procedure Rules.
102 I have already considered the substance of these grounds of appeal. They have no merit.
103 Further, although the appeal was lodged within time, the appellant failed to comply with other time limits set by the court. By letter dated 12 May 2009, the appellant was advised that a decision as to the grant of leave to appeal could not be made until the appeal notice and accompanying documentation had been served on the respondent to the appeal and a service certificate had been filed. The letter gave the appellant 28 days from his receipt of the letter to complete those tasks.
104 The Criminal Appeals Act s 10(5) provides that:
On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on -
...
(b) the other party or other parties to the proceedings before the court of summary jurisdiction.
105 The Criminal Appeals Act s 10(1) provides that an appeal must be commenced and conducted in accordance with that division of the Act and the rules of court.
106 The Criminal Procedure Rules r 60(1) state that any document lodged under the rule must be served on the respondent personally, unless he or she is in custody. Rule 60(7) states that as soon as practicable after serving the respondent, the appellant must lodge a Form 21 (service certificate).
107 The appellant did not comply with the requirements of the Act, the rules or the letter of 12 May 2009, either within 28 days or at any later time. The appellant did write to the court outlining what he saw as the basis of his appeal.
108 On 17 June 2009, the appellant was advised that he had a further 28 days to serve the relevant documents and to obtain and serve a copy of the transcript of proceedings. He was further advised that if service was not effected during that 28 days the judge would dismiss the appeal for failure to comply with the rules.
109 As I have already stated, the appellant did not comply and file a certificate of service within the given time period. Consequently, on 30 July 2009, McKechnie J made a provisional decision dismissing the appeal. The appellant was given a further five days from the date of his receipt of the decision to file a request for a hearing. He did not file such a request.
110 The Criminal Procedure Rules r 60(1) states that in a single judge appeal a judge has the general jurisdiction to make a decision on the judge's own initiative on the basis of the documents lodged and without requiring the parties to attend a hearing. Although it does not say so expressly, this jurisdiction appears to encompass the making of a decision which finalises an appeal. Rule 63 says that if a provisional decision is made, a registrar must serve the parties with written notice of it. If a party wants a hearing of the matter that gave rise to the provisional decision, the party must lodge a request for a hearing within five working days after the date on which the party is served with the notice of the provisional decision. Rule 63(4) states that if no party lodges such an application (Form 25), the provisional decision becomes the final decision on the matter.
111 The appellant failed to comply with the Criminal Appeals Act s 10(5) and Criminal Procedure Rules r 60. He then failed to comply with the directions of the court designed to facilitate his compliance with those provisions.
112 In oral submissions at the hearing of the application for leave to appeal to this court, the appellant was asked why he failed to comply with the directions in the single judge appeal. In effect, the appellant said that the conviction was not something that he wanted to fight over. Also, he was not comfortable with taking a police officer to court. He also agreed that another matter that he took into account was that he had seen the improvement made in the signage in the area. None of these matters justify the appellant's failure to comply with the Act and the directions of the court in the single judge appeal. No error has been shown in the decision of McKechnie J to dismiss the single judge appeal.
Determination of the application for an extension of time
113 I have carefully examined all the matters raised by the appellant. None of the matters raised by him in the application before the magistrate under the Criminal Procedure Act s 71(2) to have the conviction set aside and the charge re-heard or in the single judge appeal have any merit.
114 The only issue which I have discovered that may have some merit is whether the speed measuring device used to measure the appellant's speed was a gazetted speed measuring device for the purposes of the Road Traffic Act s 98A. In my opinion, for the following reasons, that issue does not warrant the granting of an extension of time within which to appeal to this court. First, the appellant has never denied that he was travelling at 55 km per hour when his speed was measured by the respondent. Secondly, the appellant did not raise the issue of the accuracy of the measurement of his speed either in the hearing before the magistrate or the single judge appeal. Thirdly, the appellant has not directly raised the issue of the scientific accuracy of the speed measuring device in his appeal to this court. His concern was with the way that the police officer was holding the device. Fourthly, the mere fact that the speed measuring device was not gazetted in accordance with s 98A, does not mean that the respondent could not prove the offence. It simply means that the respondent could not rely on the deeming provision in the Road Traffic Act s 98A(3), which provides that the speed at which a vehicle was moving as ascertained by the use of approved speed measuring equipment is prima facie evidence of the speed at which that vehicle was moving at the time of the use of that equipment in relation to that vehicle. At a hearing of the charge, the respondent would be able to call other evidence as to the fact that the LTI 20-20 Ultra-Lyte was a scientific instrument which accurately measured speed and which had measured the appellant's speed on this occasion. Fifthly, there is a public interest in the finality of proceedings and that public interest should be weighed in the balance when considering whether there would be a miscarriage of justice if an extension of time was not granted.
115 Having regard to these matters, the conviction of the appellant did not constitute a miscarriage of justice and the maintenance of that conviction, particularly given that the appellant has never denied speeding in the school zone, does not constitute a miscarriage of justice. An extension of time within which to appeal McKechnie J's decision to dismiss the single judge appeal ought to be refused, leave to appeal refused on each of the proposed grounds of appeal and the appeal dismissed.
(2005) 30 WAR 473