Citation : KRYSIAK -v- CARRUTHERS [2012] WASC 472

Criminal law - Application for leave to appeal against conviction - Driving while under licence suspension - Refusing to state name and address - Admissibility of evidence - Bias - Whether error in equating 'refuse to do so' with 'fail to do so' - Whether error in failure to set aside convictions under s 73 of the Criminal Procedure Act 2004 (WA) - Turns on own facts

Criminal Appeals Act 2004 (WA), s 9, s 18, pt 2

Criminal Procedure Act 2004 (WA), s 55, s 71, s 73

Road Traffic Act 1974 (WA), s 49, s 53

Krysiak v Carruthers [2012] WASC 472

Krysiak v McDonagh [2012] WASC 270

Krysiak v McDonagh [2013] WASCA 100

1 McLURE P: The appellant, a self-represented litigant, appeals against his convictions in the Magistrates Court for driving a motor vehicle while under licence suspension contrary to s 49 of the Road Traffic Act 1974 (WA) (RTA) and, as the driver of a motor vehicle, refusing to state his name and address when required to do so by a member of the police force, contrary to s 53 of the RTA.

2 The trial commenced before Magistrate Campione on 16 September 2011. The prosecution called two witnesses, both police officers who had been on patrol on 25 February 2011, the date of the alleged offences. The appellant appeared at the trial and cross-examined the prosecution witnesses. The trial was adjourned part heard. Following a further adjournment, the matter was listed for hearing on 10 February 2012. On that day, the appellant did not appear at the appointed time. An application was made to proceed under s 55 of the Criminal Procedure Act 2004 (WA) (CPA).

3 The magistrate stated that she was satisfied on the evidence she had heard that each of the elements of both offences had been established beyond reasonable doubt. For the offence of driving under 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.

4 The appeal against these convictions was listed for hearing before EM Heenan J on 4 July 2012 together with the appellant's appeals in SJA 1083 of 2011 and SJA 1085 of 2011. Those were appeals against his convictions for driving a motor vehicle while under licence suspension contrary to s 49 of the RTA. The offences were committed on 29 January 2011 and 15 May 2011.

5 At the hearing before EM Heenan J, the appellant applied for and was granted an adjournment of the hearing of this appeal (the adjourned appeal) on the basis of insufficient notice of the hearing date.

6 Most of the appeal grounds in the adjourned appeal mirror the grounds in the appeals before EM Heenan J who concluded that none of the grounds had any reasonable prospect of succeeding: Krysiak v McDonagh [2012] WASC 270 (Krysiak No 1). The appellant appealed to this court from the decision of EM Heenan J. This court refused leave to appeal on all grounds with the consequence that the appeals were taken to be dismissed: Krysiak v McDonagh [2013] WASCA 100 (Krysiak No 2).

7 The adjourned appeal came before Beech J in November 2012. He was satisfied that none of the grounds of appeal had any reasonable prospect of succeeding and refused leave to appeal: Krysiak v Carruthers [2012] WASC 472.

8 The appellant now appeals to this court from the decision of Beech J. The appellant requires leave to appeal for each ground of appeal against the decision of the primary judge: Criminal Appeals Act 2004 (WA), s 9, s 18. Leave will not be granted unless the ground of appeal has a reasonable prospect of succeeding.

9 At an ex parte hearing on 15 August 2013, this court heard from the appellant on the subject of whether any of his grounds of appeal had a reasonable prospect of succeeding. At that hearing the appellant sought leave to rely on documents received by the court on 12 August 2013 in which he had revised both his grounds of appeal and his written submissions. I would grant leave to do so. Of the 27 grounds of appeal, three grounds (2, 5 and 11) were withdrawn and two grounds (8 and 19) were incorporated into other grounds. The appellant also sought leave to add a new ground 11.

10 The majority of the grounds of appeal raise substantially the same legal contentions rejected by EM Heenan J and this court in Krysiak No 1 and Krysiak No 2 respectively. The grounds of appeal in this category are grounds 1, 4, 6, 7, 9, 10, 12, 13, 14, 15, 16, 18, 20, 21, 22, 23, 25. Leave to appeal is refused on these grounds. They have no reasonable prospect of succeeding for the reasons given in those decisions and by Beech J.

11 The remaining grounds of appeal are in the following terms:

1. The learned magistrate erred in law and/or fact in finding the witness testimony was credible and admitting it into evidence, despite there being significant reasonable doubt present due to the conflicting, unreliable, and contradictory testimony on many crucial elements of both charges; much of the evidence given by the two police constables not being probative, the learned magistrate should have excluded the relevant, non-credible testimony from evidence as the witnesses' credibility had been impugned on significant elements of both charges.
2. The learned judge erred in law and/or fact by demonstrating an apprehension of bias, not taking proper judicial notice, and not giving proper lines of lawful reasoning in making his decision on several grounds of the appeal.
3. The learned judge erred in law and/or fact in failing to hold/find that the 'beyond reasonable doubt threshold' had been reached in this matter, as the witnesses were shown to be unreliable and not credible in their testimony, and had made court statements inconsistent with, and contrary to, their prior sworn statements on major elements of both charges, and this should not have been enough to satisfy the magistrate.
4. The learned judge erred in law and/or fact because he made errors of judgment, which resulted in an errant decision that denied justice.
5. The learned judge erred in law and/or fact in finding/holding that the term 'failed to do so', as given in evidence, is the equivalent to the term 'refused to do so', which is the wording of the second charge, and, as there was no evidence presented of a refusal, thereby applied the incorrect reasoning to his judgment in the second charge and the subsequent decision.

12 The proposed new ground 11 is in the following terms:

Both the learned magistrate and the learned Judge erred in law and/or fact because they failed to set aside the two decisions despite the fact that I had a reasonable excuse for attending the trial hearing belatedly, thereby denying me procedural fairness and natural justice.

13 There is no arguable basis for the assertion in ground 3 that the evidence of the police officers was inadmissible. Further, having read the trial transcript, I am satisfied that it was unarguably open to the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt on both charges largely for the reasons given by Beech J. Leave to appeal on these grounds must be refused.

14 There is a derivative aspect to this ground which is to the effect that because Beech J agreed with EM Heenan J in respect of the overlapping grounds, the bias of EM Heenan J tainted the position of Beech J. This court in Krysiak No 2 concluded that the claim of bias against EM Heenan J did not have any reasonable prospect of succeeding. In any event, a derivative claim of this nature is unsustainable and falls short of raising an arguable ground.

15 Other particulars of this ground include that Beech J gave inadequate reasons and adopted the views of EM Heenan J without independent analysis or reasoning. There is no merit in either claim. Beech J's reasons are more than adequate to deal with the appellant's grounds. Further and in any event, having regard to their obvious lack of legal merit, further analysis or discussion of the grounds beyond that in EM Heenan J's judgment was not required. Leave to appeal must be refused.

16 This is a 'sweeper' ground that seeks to explain why the primary judge erred in dealing with the appellant's grounds of appeal against the magistrate's decision. It does not require independent analysis. Leave to appeal should be refused.

17 The appellant contends the primary judge erred in equating 'refuse to do so' with 'failed to do so'. In the course of addressing ground 3, the primary judge said:

[T]he 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 [44].

As the primary judge noted in [36] the relevant element of the offence under s 53 of the RTA is that the appellant refused to state his name and address after being required to do so by a police officer.

18 The word 'failed' has a range of meanings including 'chose not to' which is equivalent to refused. An intentional failure in response to what is required is a refusal. That is clearly its meaning in the primary judge's reasons when regard is had to context.

19 Moreover, the evidence was indeed that the appellant had refused to provide his name and address when he had been required to do so. Police Officer Carruthers said:

[The appellant] continued to question me about me not appreciating his rights under the Bill of Rights and not abiding by the constitution. I again repeated to him that as part of my investigation he was obliged to provide me with his details, personal details, being place of abode, date of birth and name and address. He failed to do so (ts 9).

How many times would you say you asked the accused for his personal particulars?---Five.

At any stage did he give you those personal particulars?---No, it was [not until] we located his motor driver's licence that we were able to identify him. I then showed him his driver's licence and said, 'Is this you,' and he confirmed his identity.

When you were asking for his personal details, personal particulars, what wording did you use for your request?---Exactly along the lines of, 'I'm investigating an offence under the Road Traffic Act. I require your details as I need to conduct my investigation, your details being your name and date of birth and place of address' (ts 13).

20 The evidence of Police Officer Lewis was to the same effect:

Now, you said earlier that you heard a number of times Constable Carruthers ask the occupant for their details. How many times would you say you heard that occur?---Not sure entirely. I would say probably two, maybe three times. It may have been more.

You're also saying that the response was always in the negative to that question of asking for details, or a no response?---Yep, there was no response to my request for the driver's details, that's correct.

...

You are being asked to quote exactly what you said to the driver?---Exactly? From my memory, it would have been, 'You are required to provide your details to police when requested as per the Road Traffic Act of 1974' (ts 35).

21 The appellant's intentional failure to provide what was repeatedly required of him is a refusal for the purposes of the offence. This ground is without merit.

22 On 2 March 2012 the appellant filed an application under s 71 of the CPA to set aside the convictions that had been entered in his absence on 10 February 2012. On 9 March 2012 the appellant filed his appeal against his convictions.

23 On 28 March 2012 the appellant's s 71 application came before Magistrate Heaney. The magistrate's initial position was that he would grant the application. However, his position changed when he became aware that the appellant had also failed to appear when the summons first came before the Magistrates Court. On that occasion the charge was also dealt with under s 55 of the CPA and in June 2011 the appellant successfully applied to have the convictions set aside. Having regard to the history of the matter Magistrate Heaney dismissed the application under s 71.

24 However, as the primary judge correctly observed, the dismissal of the s 71 application was required by s 71(5) of the CPA.

25 Section 71 of the CPA relevantly provides:

(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 -

(c) received [notice of the court date on which the conviction occurred] in enough time to enable the accused to appear on the court date but did not appear for some good reason.

(5) A court must refuse an application made under this section if -

(b) after the application is made in respect of a decision and before it is decided, an appeal against the decision is commenced under the Criminal Appeals Act 2004.

26 Thus Magistrate Heaney had no alternative but to dismiss the s 71 application. The appellant now relies on s 73 of the CPA which provides:

Whether or not an application is made under section 71, a court on its own initiative may make an order that sets aside a decision it has made in a party's absence on a charge and that orders that the charge be dealt with again, if it is satisfied that it is in the interests of justice to do so.

27 Only the court that made the order (that is, the Magistrates Court) has the power under s 73 of the CPA to set the convictions aside. At no time has the appellant filed an appeal against the decision of Magistrate Heaney dismissing the s 71 application or from his failure to exercise the power under s 73 of the CPA. The only appeal filed by the appellant is from the decision of Magistrate Campione to convict the appellant. There was no sworn evidence of the appellant before Magistrate Heaney that disclosed an arguable defence to the charges.

28 It was only after the primary judge noted that there was no appeal from the decision of Magistrate Heaney that the appellant made a late application to this court to challenge the failure to set aside the convictions under s 73. It is far too late in the day to appeal against that decision. The appellant has elected to exercise his rights of appeal (with leave) from the convictions under pt 2 of the Criminal Appeals Act. In any event, the appellant has not established that the Magistrates Court

erred in failing to exercise its power under s 73 of the CPA. New ground of appeal 11 is without merit.

29 No ground of appeal has a reasonable prospect of succeeding. Accordingly, leave to appeal should be refused on all grounds with the consequence that the appeal is taken to be dismissed.