SHARMA -v- HODGSON [2012] WASC 433 (16 November 2012)

4 By s 55(2) of the Criminal Procedure Act 2004 (WA) (CPA), if the court is satisfied that the accused has been served with the prosecution notice and a court hearing notice, the court is empowered to hear and determine the charge in the accused's absence. If the court exercises that power, the court may take as proved any allegation in the prosecution notice: s 55(4)(b).

5 On 25 August 2010, the matter was dealt with in the appellant's absence under s 55(2). The appellant was convicted. The court imposed a fine of $150 and $119.20 in costs.

6 More than eight months later, on 10 May 2011, the appellant filed an application to set aside the decision under s 71 of the CPA. The ground of the application was that the appellant received notice of the court date on which the decision was made, but did not appear because his bookkeeper failed to open his mail in time to advise him of the court hearing date.

7 The s 71 application was heard in the Magistrates Court on 2 June 2011. The learned magistrate dismissed the application. He observed that the hearing notice had been sent at least three weeks prior to the hearing, stating that it was the responsibility of the appellant to make arrangements for such notices to come to his attention. Further, the magistrate pointed out that the application to set aside the conviction entered in August 2010 had not been made until May 2011.

8 On 5 January 2012, the appellant filed an appeal notice and a supporting affidavit. The ground of the appeal is that 'the speed camera was set up approximately 20 metres beyond an end of school zone sign. [The appellant] had exited the school 40 km zone when [he] triggered the camera at 52 km per hour'.

9 The supporting affidavit seeks to explain the appellant's delay in instituting the appeal. The appellant's appeal was lodged well out of time. Consequently, he requires an extension of time within which to appeal. He also needs leave to appeal. Leave to appeal can only be granted if the court is satisfied that the ground of appeal has a reasonable prospect of succeeding.

Dismissal of the appeal for noncompliance with orders

10 On 16 February 2012, Hall J made the following orders:

1. The respondent is to be renamed as Paul Richard Hodgson.
2. The appellant is to lodge the following documents within 14 days of this order:

(a) a certified copy of the prosecution notice;

(b) a certified copy of the appellant's written plea of 'not guilty' to the charge;

(c) a copy of the notice of the original hearing sent by the Magistrates Court to the appellant in July 2010;

(d) transcript of the original Magistrates Court hearing held in August 2010;

(e) a certified copy of any application made by the appellant for a rehearing pursuant to s 71 of the Criminal Procedure Act 2004 (WA).

1. The documents referred to in Order 2, together with a copy of the appeal notice, affidavit of the appellant sworn on 5 January 2012 and Magistrates Court transcript of 2 June 2011 are to be served on the respondent within 21 days of the date of this order.
2. A service certificate (Form 21) is to be lodged within 2 days of the service referred to in Order 3.
3. If any of Orders 2, 3 or 4 are not complied with in the time allowed, the appeal will stand dismissed.

11 These orders were provisional orders under r 60 of the Criminal Procedure Rules 2005 (WA). The appellant did not lodge a request for a hearing in relation to the provisional orders pursuant to r 63. Consequently, those orders became final: r 63(4).

12 The appellant failed to comply with each of orders 2, 3 and 4 either in the time stipulated or, in some cases, at all.

13 Consequently, by force of par 5 of the orders, the appeal stands dismissed.

14 However, for the sake of completeness, and because the matter has been argued, I will deal with the merits of the appellant's application for an extension of time and for leave to appeal.

15 I begin by identifying the decision the subject of the appeal.

16 The notice of appeal states that the date of the decision the subject of the appeal is 2 June 2011. That is the date of the decision to refuse to set aside the appellant's conviction and to dismiss his application under s 71 of the CPA. However, for the reasons that follow, the decision the subject of the appeal is the appellant's conviction, not the dismissal of his application under s 71.

17 First, that is apparent from the grounds of appeal. The appellant's sole ground of appeal relates to the merit of his conviction, asserting his innocence. It does not refer to the s 71 application.

18 Secondly, and in any event, in my view, the decision to refuse the s 71 application is not a decision in respect of which the appellant has a right of appeal. A person aggrieved by a decision of the Magistrates Court has a right of appeal under s 7(1) of the Criminal Appeals Act 2004 (WA). Section 6 of that Act defines 'decision' to include a decision to convict an accused of a charge. It also includes a refusal to make an order that might be made as a result of a conviction or acquittal: s 6(g).

19 Although the matter was not argued [76], in Grover v Scott [2010] WASCA 164 [98], Jenkins J (McLure P & Buss JA agreeing) stated that a decision by a magistrate not to allow an application under s 71 of the CPA is not amenable to appeal. I would respectfully adopt that approach. Although an application under s 71 of the CPA is made following a conviction, on a proper construction of the Criminal Appeals Act I do not consider that an order under s 71 is an order that 'might be made as a result of a conviction' for the purposes of par (g) of s 6 of the Criminal Appeals Act. This does not leave a person who applies unsuccessfully under s 71 without appellate remedy. He or she can appeal against the conviction. If error is shown in the application under s 71, a miscarriage of justice in the consideration may be able to be demonstrated.

20 For these reasons, I proceed on the basis that the appellant appeals against his conviction.

21 Under s 8(1) of the Criminal Appeals Act, an appeal can be made on grounds that include, relevantly, that the court of summary jurisdiction made an error of law or fact or both, or that there has been a miscarriage of justice.

22 The appellant has not contended that the initial decision to convict, or the refusal to set aside the conviction under s 71 of the CPA, involved any error. No error is apparent in relation to these decisions. Consequently, the question is whether the appellant has demonstrated that his conviction has occasioned a miscarriage of justice.

23 The thrust of the appellant's ground of appeal, and of his submissions, involves a factual assertion that he was not guilty of the offence of which he was convicted because he was outside the school zone by the time he was photographed by the speed camera. Of course, there was no evidence to that effect before the Magistrates Court when the appellant was convicted.

24 The starting point in an appeal is that, subject to s 40, to which I will come, an appeal court must decide an appeal on the evidence and material that was before the primary court: s 39 of the Criminal Appeals Act.

25 An appeal court has power under s 40(1)(e) to admit evidence on the appeal. That will occur only if an appellant applies for leave to adduce evidence on the appeal, and leave is granted.

26 The absence of evidence to support the factual assertions inherent in the appellant's appeal was pointed out, in clear terms, in the respondent's outline of submissions dated 26 October 2012: see pars 28 33.

27 The appellant has not applied for leave to adduce evidence on the appeal.

28 In the absence of evidence from the appellant, there is no evidence to support the factual assertions made by the appellant. The appeal would fail on this ground alone.

29 For the reasons that follow, even if the appellant sought leave to adduce his evidence to the same effect as his factual assertions in his submissions, his appeal would fail.

30 If the appellant seeks to rely on new evidence, a miscarriage of justice will be established only if the new evidence demonstrates that the appellant is innocent, or demonstrates that there is sufficient doubt to conclude that the appellant should not have been convicted. The approach to the receipt of evidence on appeal was explained by Owen JA in DPJB v The State of Western Australia [2010] WASCA 12 [61] [66] as follows:

Evidence is considered to be 'fresh' if it did not exist at the time of the trial or if it could not have then been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411]. Evidence will merely be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517; Urbano v The State of Western Australia [2006] WASCA 147 [9].

The court has traditionally treated appeals based on the admission of fresh evidence differently from appeals based on the admission of new evidence. The reason is that an appeal based on fresh evidence is founded upon a different basis of appellate review from one based merely on new evidence. The rationale for allowing an appeal based on fresh evidence is that the absence of the evidence from the trial was, in effect, a miscarriage of justice: Beamish [10]; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395, 402 and 410. Conversely, the absence of new evidence from the trial does not, of itself, constitute a miscarriage of justice: Mickelberg (1989), 301.

...

As a result, an appeal based on new evidence necessarily falls into the category of cases which call upon the court's general power to set aside a conviction on the grounds that, in all the circumstances of the case, there was a miscarriage of justice.

Despite some suggestions that the difference between fresh and new evidence is no longer as significant as it once was (see, for example, Nolan v The Queen (Unreported, WASCA, Library No 970260, 22 May 1997), the distinction between the two is based on sound principle and continues to be recognised: Rinaldi v The State of Western Australia [2007] WASCA 53 [81]; Beamish [13]. The distinction also has profound consequences for the disposition of criminal appeals.

...

Where the evidence is fresh, in order to allow the appeal the court need only be satisfied that in the light of all the admissible evidence (including the evidence at trial) there is a significant possibility that a jury, acting reasonably, would have acquitted the accused: Rinaldi [82]; de La EspriellaVelasco [157]; Beamish [14]; Mickelberg (2004) [416]; Mickelberg (1989), 275.

An appellant faces a higher hurdle in overturning a jury's verdict on the basis of new evidence. It is not enough merely to show an increased chance of acquittal. For the appeal to succeed, the new evidence must be strong enough to show that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted: de La EspriellaVelasco [158]; Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 676; Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [16]; Martinez v The State of Western Australia [2007] WASCA 143 [220] [225].

31 The appellant's written and oral submissions assert that the speed camera was outside the school zone. Even if what was asserted factually in those submissions were in the form of sworn evidence, that would fall well short of demonstrating that the appellant should not have been convicted. The appellant's assertion that the camera was outside the school zone rests on a very slender foundation. He says there was no tree on which to secure a camera within the school zone. He has produced some photographs, taken well after the events in question, that he says support his position. The fact that the photos were taken months later substantially reduces what could be drawn from them. In my view, the appellant has not produced any cogent evidence or other factual material to contradict the sworn evidence of the operator of the speed camera, supported by contemporaneous records, that the camera was placed near the driveway to the Cannington train station park and ride car park, in the middle of the school zone.

32 If the appellant sought and obtained leave to adduce his evidence, the respondent would have leave to rely on the sworn evidence in the affidavit of the operator of the speed camera.

33 The appellant submits that the evidence of the operator supports the appellant's case in that:

(a) the operator says that a speed camera must be fixed to something solid like a tree or light pole;

(b) the operator also says that the speed camera must be placed somewhere where there is sufficient room for the operator to park his vehicle;

(c) the appellant says there were no trees in the school zone, only a tree 20 metres past the end of the school zone;

(d) this was also the only position where the operator had sufficient space to park his vehicle; and

(e) thus it is to be inferred that the speed camera was attached to that tree.

34 I reject the appellant's submissions that the evidence of the operator supports the appellant's case.

35 The operator's evidence explains the steps he took in locating the speed camera, and its location, as follows:

(a) the school zone signs are on Sevenoaks Street, about 200 metres apart;

(c) as you approach from the northwest, the school zone signs are before the school and before the railway station;

(d) coming from that direction, after the school zone signs there is a park and ride car park on the left of Sevenoaks Street, opposite the school;

(e) the operator placed the camera on the verge next to the driveway into that car park;

(f) that driveway is in the middle of the school zone, being about 100 metres from each of the school zone signs, and 200 metres northwest of where Sevenoaks Street intersects with Cecil Avenue at traffic lights;

(g) the operator used his tripometer to estimate the distance between the camera and each school zone sign, and used his street directory to estimate the distance to Cecil Avenue;

(h) the operator recorded these distances and the location of the speed camera that day on the 'deployment location diagram' that is annexed to the affidavit;

(i) it is to be inferred from the diagram that the speed camera was tied or secured to the sign on the verge very near to the driveway into the park and ride car park; and

(j) the diagram shows that the operator parked his car on the verge just past the driveway.

36 The appellant asserts that there is a second entrance to the park and ride car park, located further southeast, beyond the school zone. Even if that is accepted or assumed, the operator's evidence is clearly to the effect that the camera was placed at the first entrance (coming from the northwest) to the car park. That is the effect of the operator's evidence as a whole, as already outlined. Moreover, the deployment location diagram shows that the driveway is at the northwest end of the car park.

37 In my view, nothing asserted by the appellant gives rise to any reasonable ground to doubt the evidence of the operator of the camera, which is supported by contemporaneous records. Moreover, given that the task of the operator on the day was to set up a camera in the school zone, following complaints from the school, it might be surprising if he had set up the camera outside the school zone. I consider the operator's evidence better accords with the objective probabilities than the version of events advanced by the appellant.

38 For these reasons, even if the appellant had sought and obtained leave to adduce his factual assertions as evidence, such evidence would fall well short of meaning there was sufficient doubt that the appellant should not have been convicted.

39 I am satisfied that the conviction of the appellant has not involved or occasioned any miscarriage of justice.

40 For these reasons, the appellant's proposed appeal has no reasonable prospects of success. Consequently, leave to appeal should be refused, the appellant's application for an extension of time within which to appeal should be refused, and the appeal dismissed.