KRYSIAK -v- CARRUTHERS [2012] WASC 472 (11 December 2012)

(2) that on 25 February 2011, in Rivervale, when driving the motor vehicle registration number IDAE 730 on Kooyong Road he was not authorised under pt IVA of the Road Traffic Act 1974 (WA) to do so, having been disqualified from holding or obtaining a driver's licence under a licence suspension order made under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act).

4 The first offence is contrary to s 58 of the Road Traffic Act. The second offence is contrary to s 49.

5 The charges were listed for trial on 16 September 2011.

6 The prosecution called two witnesses, both police officers who had been on patrol on 25 February 2011. I will say more about their evidence in dealing with ground 3 of the appellant's grounds of appeal. In summary, both police officers gave evidence to the effect that:

(a) while on patrol in Rivervale, they had seen a car which appeared to be speeding;

(c) the appellant was the driver of the car which they had followed; and

(d) one of the police officers repeatedly asked the appellant to give his name and address, but the appellant failed to do so.

7 The prosecution also tendered certificates under s 101C of the FPINE Act as prima facie evidence that on 25 February 2011 the appellant was subject to a licence suspension order under the Act.

8 The appellant appeared at the trial, and crossexamined the prosecution witnesses.

9 The hearing was not able to be completed on 16 September 2011. The matter was adjourned part heard.

10 Following a further adjournment, the matter was listed for 10 February 2012. On that day, the appellant did not appear. The prosecution applied to proceed under s 55 of the Criminal Procedure Act 2004 (WA) (CPA).

11 The magistrate stated that she was satisfied from the evidence that she had heard that each of the elements of both offences had been established beyond reasonable doubt (ts 2 3). For the offence of driving under a licence suspension, the magistrate imposed a fine of $400 and a 3 month cumulative suspension of the appellant's driver's licence. For the offence of refusing to give his name and address to police, the magistrate imposed a fine of $250. Costs of $119.20 were ordered.

12 On 2 March 2012 the appellant lodged an application under s 71 of the CPA to set aside the conviction that had been entered on 10 February 2012.

13 On 9 March 2012 the appellant lodged this appeal against his conviction.

14 Consequently, on 28 March 2012, the application under s 71 was dismissed. There is no ground of appeal challenging that dismissal, and the appellant made no complaint about it in his written or oral submissions. Nor could there be any complaint, since the dismissal was required by the plain terms of s 71(5) of the CPA.

15 The appellant was also convicted of other traffic offences on other occasions in respect of which he lodged other appeals. This appeal was listed to be heard before Justice E M Heenan on 4 July 2012, together with the appellant's appeals in SJA 1083 of 2011 and SJA 1085 of 2011. At the hearing before EM Heenan J, the appellant applied for, and was granted, an adjournment of the hearing of this appeal, on the basis that he had not received sufficient notice of the hearing date.

16 Most of the appeal grounds in this appeal mirror grounds in the appellant's other appeals, which were the subject of decision by EM Heenan J. His Honour published reasons for his decision to refuse leave to appeal on all of the appellant's proposed grounds: Krysiak v McDonagh [2012] WASC 270.

17 The appellant submits, and I accept, that I am not bound by the decision of EM Heenan J in relation to the other appeals. However, I would not depart from that decision unless I were satisfied that it was wrong. I am not so satisfied. To the contrary, as I will explain in more detail, I respectfully agree with his Honour's reasons for concluding that none of the appellant's proposed grounds of appeal has any reasonable prospects of succeeding.

18 I will set out the terms of the appellant's proposed grounds of appeal in the course of dealing with them. In broad summary the appellant contends that:

(1) section 92 of the Commonwealth Constitution was infringed (grounds 1 and 2);

(2) he was wrongly convicted given the inconsistencies in the evidence of prosecution witnesses (ground 3);

(3) the police had no grounds of reasonable suspicion and their actions were unjustified (ground 4);

(4) the magistrate erred in failing to apply s 78B of the Judiciary Act 1903 (Cth) (ground 5);

(5) the appellant's conviction is inconsistent with chapter III of the Constitution (grounds 6 and 7);

(6) the appellant was denied natural justice (ground 8); and

(7) the currency in which the fines were imposed render them invalid (grounds 9 and 10).

The learned magistrate erred in law and fact and denied justice because the order from their decision is contrary to S 92 of the Commonwealth of Australia Constitution Act 1900 (IMP), in that it denies the inherent freedom of travel based on unproven allegations and presumptions.

20 EM Heenan J rejected substantially identical contentions on the part of the appellant in Krysiak v McDonagh [32] [33].

In each application [the appellant] asserts that the learned magistrate erred in law because his decision contravened s 92 of the Commonwealth of Australia Constitution Act because the [offence] charged purports to restrict freedom of travel. However, as submitted by the respondent, s 92 applies only to 'trade, commerce and intercourse among the States' and has no application to the provisions of the Road Traffic Act which regulate driving within the confines of this State. In any event, s 92 does not preclude legislation which has the effect of regulating travel between the States: Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18, 393. As said by the entire court at 393:

'For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian's use of a highway for the purpose of his crossing or to authorise the arrest of a fugitive offender from one State at the moment of his departure into another State.'

There is no basis for suggesting that legislation which forms the part of the law of a single State designed for regulation and in the interest of public safety and orderly administration to control traffic on the roads and licensing of drivers is any impediment to the Constitutional freedom. There is no basis on this ground and leave to appeal to raise it must be refused.

21 I respectfully agree with and adopt his Honour's reasoning.

22 Section 92 is relevantly directed to legislation or conduct which impedes intercourse 'among the States'. That means intercourse between States, not entirely within a single State. The appellant's submission to the contrary must be rejected. A law will infringe the freedom of intercourse element of s 92 if and only if:

(a) the object of the law is to impede interstate intercourse; or

(b) the impediment to interstate intercourse imposed by the law is greater than is reasonably required to achieve the object of the law: AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 [41] [48], [221]; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 [38], [179], [426] [427].

23 The laws in this case did not have the object or effect of impeding interstate intercourse.

24 The appellant's s 92 contention has no reasonable prospects.

Ground 2 - section 92 and due process

The learned magistrate erred in law and fact and denied justice because they allowed the prosecution to use the Road Traffic Act 1974 (WA), sections 49(1)(a) & (3)(d) and Part IV A, both of which contravene Section 92 of the Commonwealth of Australia Constitution Act 1900 (IMP) and contravene the natural justice and due process inherent required in courts.

26 In SJA 1085 of 2011, ground 8 was in the same terms. EM Heenan J refused leave in relation to the ground, concluding that it was entirely baseless [39].

27 In so far as this ground contends that s 92 was contravened, I refer to what I have said in relation to ground 1.

28 In oral submissions, the appellant contended that ground two had a second limb based on natural justice and due process. The appellant's written and oral submissions on this topic do not reflect the relevant legal framework applying in Western Australia and in Australia generally. The decisions of courts of the United States relied on in relation to 'due process' arise in a profoundly different constitutional framework. Further, a court cannot declare legislation to be invalid on the ground that Parliament is, as the appellant submits, 'trying to subvert 800 years of common law' (appeal ts 8; see also par 40 of the appellant's written outline), and the Magna Carta does not provide a ground to declare invalid Western Australian legislation.

29 Ground 2 is without merit. I refuse leave in relation to ground 2.

The learned magistrate erred in law and fact because they made a finding of 'guilt', despite there being a reasonable doubt present due to the conflicting, unreliable, and contradictory testimony given by the 2 witnesses in this matter.

31 In both written submissions (par 46) and oral submissions (appeal ts 10) the appellant contended that it was 'open' to the court to find that, in light of the inconsistencies in the witnesses' evidence, neither account was reliable. The question on appeal is not whether any such finding is or was open. Rather, the question is whether the trial court, having had the benefit of seeing and hearing the witnesses, was obliged to have a reasonable doubt as to one of the elements of the offence and thus to acquit the appellant.

32 The question for an appeal court on an appeal ground of this character after trial by jury is whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In answering that question the court must not discount the consideration that it is the jury that is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury, unlike the appeal court, has had the benefit of having seen and heard the witnesses: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. The question of whether it was open to the jury to be satisfied of guilt beyond reasonable doubt reduces to whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the required standard: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113].

33 The same principles apply to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25 [44].

34 The appellant relies heavily on a number of inconsistencies between the testimonies of the two police officers, and in some cases internal inconsistencies in an officer's evidence. These inconsistencies relate to topics such as the location of the police car when the officers first saw the other car, the location of the other car when it was first seen, as well as other details about what happened after the officers approached the appellant. The appellant provided a table of inconsistencies summarising the matters he relied on. I will not reproduce that here, but I have taken all those matters into account.

35 The task for the magistrate was not to determine whether she was satisfied beyond reasonable doubt of the reliability and accuracy of everything said by the police officers. The question for the magistrate was whether she was satisfied beyond reasonable doubt as to the elements of the offences with which the appellant was charged.

36 The elements of the failing to give a name and address offence were that:

(2) a police officer required him to state his name and address; and

37 The elements of the other charge, driving while unlicensed, were that:

(2) he did so at a time when his driver's licence was suspended.

38 The second element of the latter offence was proved by the certificates tendered, not by the evidence of the police officers.

39 The evidence of each of the police officers was to the effect that:

(1) they were travelling in a patrol car at 2am on 25 February 2011;

(5) the appellant was the person in that car who had been driving it; and

40 None of those propositions was challenged by the appellant in his crossexamination of the police officers. The magistrate was entitled to take that into account in making findings of fact. As required by s 30 of the Magistrates Court Act 2004 (WA), at the commencement of the trial her Honour had informed the appellant that if he failed to challenge a witness about evidence given by the witness the court may take that into account in making findings, and that if the appellant proposed to give evidence contrary to what was said by a prosecution witness, that contrary version should be put to the witness to give the witness an opportunity to comment (ts 4).

41 Further, there was no evidence to the contrary of these six propositions before the learned magistrate.

42 On appeal, the appellant invited the conclusion that the two police officers had been driving on patrol and came upon the appellant seated in a car, and when the police computer provided alerts in relation to the appellant they took the opportunity to interview the appellant (appeal ts 15). There was no evidence before the magistrate to support this hypothesis. Further, this hypothesis is radically different from the gist of what the police officers said in evidence, but it was not put to them in any way. Nor was their evidence that they followed the appellant's car before stopping him and interviewing him challenged in any meaningful way. The magistrate was not bound to find in favour of this hypothesis, or to find that it had not been excluded beyond reasonable doubt. To the contrary, there was no evidence to support the hypothesis.

43 In my opinion, the magistrate was well entitled to be satisfied beyond reasonable doubt that the appellant was driving the vehicle that was seen by the police officers.

44 For like reasons, the magistrate was entitled to be satisfied by the evidence of the police officers that the appellant had failed to provide his name and address when he had been required to do so.

45 On the appeal, the appellant provided to the court a copy of an affidavit sworn by him and statements of the two police officers. There is nothing to indicate that the appellant's affidavit or the statements were before the magistrate. Consequently, as the appellant appeared to accept on the appeal, the contents of these documents are not relevant to this appeal (appeal ts 9 10, 15). The appellant did not seek leave to rely on additional evidence on the appeal.

46 For these reasons, ground 3 has no reasonable prospects, and leave must be refused.

The learned magistrate erred in law and fact and denied justice because they allowed the lack of reasonable suspicion and the unwarranted actions of the police officers to be judicially validated, when this lack of reasonable suspicion contravenes the officers' duty to act justifiably, as per their oath, the Common Law and constitutional law.

48 The substance of this ground is not easy to identify. It appears to assert that the police officers were not legally entitled to stop the appellant, as the driver of the other car, or to require him to provide his name or address.

49 In essence, the appellant submits that a police officer must have a reasonable suspicion that an offence was committed before a driver comes under a duty to comply with a requirement of a police officer under s 53(1) of the Road Traffic Act. That contention is contrary to both authority and the plain language of s 53.

50 In Krysiak v McDonagh EM Heenan J concluded that:

Furthermore, under s 53 of the Road Traffic Act the police officers who stopped the applicant when driving were entitled to do so and to require him to show that he was, at that time, in possession of a valid driver's licence. The police officers had an absolute right to call upon the applicant; to stop his vehicle; give his name and address; and to produce his driver's licence. There was no necessity for them to hold any suspicion that he may not have had a driver's licence in order to exercise those powers. The proposed ground of appeal has no prospect of success and leave to appeal in reliance upon it must be refused [42].

51 I agree with these conclusions, which are supported by the decision of the Full Court in Richards v Stange (Unreported, WASCA, Library Nos 168 170, 2 April 1982). The appellant submits that the Supreme Court cannot bind itself (appeal ts 17). This submission reveals a fundamental misconception about the doctrine of precedent. It is basic that a single judge of this court is bound by a decision of the Full Court. It is not open for a single judge to find, as invited by the appellant, that the Full Court was 'very dismissive of the common law' (appeal ts 17). (The appellant asserts that he refers to the common law with a capital C, but I am unable to give meaning to that).

Ground 5 - section 78B Judiciary Act

53 Ground 5 asserts that the magistrate erred in failing to apply s 78B of the Judiciary Act:

The learned magistrate erred in law and fact because they failed to apply S78B. Of the Judiciary Act 1903 (Cth): '(1) Where a cause pending ... in a court of a State... involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the AttorneysGeneral of the Commonwealth and of the States, and a reasonable time has elapsed.

54 The appellant's proposed grounds of appeal seek to invoke a number of provisions of, or protections derived from, the Commonwealth Constitution, including s 92, s 115 (see grounds 9 and 10) and the requirements of chapter III. Consequently, the appellant submits, the magistrate erred in failing to adjourn proceedings to allow notices to be given under s 78B of the Judiciary Act.

55 EM Heenan J rejected an identical contention in Krysiak v McDonagh [26] [30]. His Honour cited many authorities which firmly establish that a contention that is trivial, unarguable, frivolous or vexatious does not involve or give rise to a matter arising under the Constitution or involving its interpretation. Where the alleged constitutional issue is unarguable or vexatious, there is in truth no constitutional issue at all. See also Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; O'Connell v State of Western Australia [2012] WASCA 96 [90].

56 For the reasons explained in dealing with the other grounds of appeal, the constitutional issues sought to be raised by the appellant are devoid of legal merit and do not give rise to any constitutional issue.

57 Moreover, the appellant did not mention s 78B notices or any of these contentions to the magistrate, so it is difficult to see force in a complaint that the magistrate should have adjourned to permit s 78B notices to be served.

The learned magistrate erred in law and fact and denied justice because the Magistrates Court is not a valid court pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (IMP), as it is incorporates Fines Enforcement Registry, and also the Magistrates Court Act does not contain an oath of allegiance to the source of all judicial jurisdiction in Western Australia, the Crown, denying the Court jurisdiction.

59 Ground 6 contains two contentions. The first asserts that the Magistrates Court is not a valid court under chapter III of the Constitution because it incorporates the Fines Enforcement Registry. The second asserts that the Magistrates Court is not a valid court under chapter III because it does not contain an oath of allegiance to the source of all judicial jurisdiction in Western Australia, namely the Crown.

60 I reject the second contention as unarguable. I adopt the reasons of EM Heenan J in Krysiak v McDonagh [37].

61 In his first contention, the appellant argues that:

(a) an infringement notice contains only an unproven allegation, and yet can lead to a licence suspension notice by the Registrar;

(b) the Registrar under the FPINE Act is an officer of the Magistrates Court and the functions of the Registrar are taken to be functions of that court: s 7(2);

(c) any notice, order or warrant issued by the Registrar is to be taken to be a notice or a warrant issued by the Magistrates Court: s 7(3);

(d) by s 103 of the FPINE Act, the rules of natural justice do not apply to anything done by the Registrar;

(e) consequently, the FPINE Act confers on the Magistrates Court functions that are repugnant to the exercise of judicial power, namely acting without regard to the requirements of natural justice; and

(f) further, 'the legislation makes the magistrate[s court] a proxy of the executive government (appeal ts 23).

62 The appellant's submissions relied heavily on the decision of the High Court in State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, and the decision of Kourakis CJ in Bell v Police [2012] SASC 188, especially at [68], [74] [76], [78] [79]. In my view, it is not necessary to analyse those decisions in detail for the purposes of determining this application for leave to appeal. That is because the legislative scheme of the FPINE Act is different, in a fundamentally important respect, from the legislative schemes considered in those cases.

63 In Totani and in Bell, the central vice in the legislation in question could be summarised in this way. The legislation in each case required that, in substance, the court give effect to decisions of the executive. The legislation gave the court so little independent decisionmaking function as to render the court an instrument of the executive, contrary to the essential requirement of the judicial function of independence and impartiality: Totani [83], [436], [479] [481]; Bell [78] [82].

64 I will outline the scheme of pt 3 of the FPINE Act before identifying the critical feature of that scheme which means that a like conclusion to that drawn in Totani and Bell could not be drawn in relation to the FPINE Act.

65 The legislative scheme can be relevantly summarised as follows. After an infringement notice is sent and final demand is served under s 14, the infringement notice can be registered under s 16. Once registered, the Registrar must issue an order to the person to pay or elect to have the charge heard and determined by a court: s 17. If the recipient fails to pay or elect, the Registrar may issue a notice of intention to suspend a licence under s 18. If there is no payment or election within 28 days thereafter, the Registrar can make a licence suspension order: s 19.

66 For present purposes, in my view, the critical feature of the scheme is the right of the recipient to elect to have the merits of the allegation in the infringement notice dealt with by the court through issue of a prosecution notice. See, s 14(4)(b) and s 21. The recipient of a final demand can make an election: s 14(4)(b), s 15(c). The recipient of an order to pay or elect can make an election under s 21: s 17(3)(b), s 18(1)(c). Again, following receipt of a notice of intention to suspend the licence, the recipient may make an election under s 21: s 19(1)(c); and thereby avoid a licence suspension order. After a licence suspension order is made, the recipient can still make an election under s 21, which will have the effect of cancelling the licence suspension order: s 20(1).

67 Thus, it is relevantly always open to the recipient of one of the documents in this scheme to choose to have the merits of the allegation dealt with in the Magistrates Court. That feature of the statutory scheme means that the appellant's contention is without substance. There is no reasonable prospect of concluding that this statutory scheme so impinges on the independence and impartiality of the court as to render it invalid. Whenever a recipient of an infringement notice so elects, the recipient's guilt of the alleged offence will be determined by the court in the usual way, acting entirely independent of the executive and any party. For that reason, in my opinion, ground 6 is without merit and I would refuse leave in relation to it.

Grounds 7 and 8 - chapter III and natural justice

The learned magistrate erred in law and fact and denied justice because they relied upon the decisions of the 'Fines Enforcement Registry' ('FER'), being 'fines suspensions' issued by 'FER', which is not a valid court of record and is not a court pursuant to Chapter III of the Commonwealth of Australia Constitution Act 1900 (IMP) and therefore the use of FER 'orders' offends the principles and provisions of Chapter III.

The learned magistrate erred in law and fact and denied natural justice because they relied upon the orders made by the 'FER' which, via sect.103 of the 'Fines PAINE Act', deny the rules of natural justice, and do not constitute proper evidence, and the Magistrates Court is bound to recognise the rules of natural justice.

69 Grounds in the same terms were relied on in Krysiak v McDonagh and rejected by EM Heenan J [38] [41]. I respectfully adopt his Honour's reasoning, with which I entirely agree.

70 In his submissions, the appellant refers to s 103 of the FPINE Act. As I have explained, that applies to the conduct of the Registrar; it does not apply to a magistrate hearing a charge under a prosecution notice.

71 There is nothing inconsistent with natural justice in the presumptive provisions in s 101C of the FPINE Act. That section provides as follows:

(a) that a licence suspension order was made under this Act;

(b) of the details of a licence suspension order and of the matter to which it relates;

(c) that a licence suspension order had not, at a particular time, been cancelled;

(d) that a document issued under this Act has been served on a person in accordance with section 5;

(e) of any matter relevant to the service of a document issued under this Act,

may be given by tendering a certificate to that effect in the prescribed form signed by the Registrar.

(2) Unless the contrary is proved, it is to be presumed that anything required to be done as a precondition to taking any action under this Act was done and was done in accordance with the law.

(3) Unless the contrary is proved, it is to be presumed that a certificate purporting to have been signed by the Registrar was signed by a person who at the time was the Registrar.

72 Like many such provisions in relation to summary offences, this section creates a presumption that can be rebutted if the contrary is proved. There is nothing contrary to natural justice in that. Moreover, in his case, had he attended at the resumption of his trial in February 2012, the appellant could have attempted to rebut the presumptive effect of the certificate tendered at his trial. His application under s 71 of the CPA was dismissed and, as I have observed, he makes no complaint about that. There is no basis for any contention that the appellant was denied natural justice.

The learned magistrate erred in law and fact by contravening Section 115 of the Commonwealth of Australia Constitution Act 1900 (IMP) by making an order for an alleged monetary penalty in Australian dollars knowing that it cannot be paid as there is no gold or silver coin available as a legal tender in payment of an alleged debt, being the alleged penalty in the order ($400 plus $119.20).

The learned magistrate erred in law and fact by issuing a monetary penalty in terms of Australian dollars, which are not precisely legally defined, and payment of which cannot be made as it would breach the Currency Act 1965 (Cth), as there is no currency in circulation above $2 and no valid currency available to pay an alleged debt above $20.

74 Grounds in identical terms were rejected by EM Heenan J [43] [46]. I agree with his Honour's conclusions. The appellant submits that there is more to his contentions on these grounds than was dealt with by his Honour. However, I am unable to discern any additional contentions that are legally meaningful. Significant parts of the appellant's written submissions in support of these grounds are, to my mind, unintelligible. Part of the appellant's submissions fixed on the 'definition' of the Australian dollar. However, I am unable to give any legal significance or consequence to what he submits on this topic. I am not satisfied that these grounds have any reasonable prospect of succeeding.

75 For these reasons I am satisfied that none of the appellant's proposed grounds of appeal has any reasonable prospects of succeeding. Accordingly, leave to appeal on each ground must be refused. Thus the appeal is taken to have been dismissed: s 9(3) of the Criminal Appeals Act 2004 (WA).