SMITH -v- WA POLICE [2025] WASC 201 (22 May 2025)

When a confiscation order may be made under the Road Traffic Act

1. Section 80C of the Road Traffic Act provides:

(1) A court that convicts a person of an impounding offence (driver's licence) may, by order, confiscate a vehicle referred to in section 80GA.

(2) A court is not to make an order under subsection (1) unless it is satisfied that in the 5 years before the day on which the offence was committed the person was convicted of 2 previous impounding offences (driver's licence).

1. Section 80GA(1) provides that the Commissioner cannot apply for an order under s 80C(1) for the confiscation of a vehicle unless the offender is a responsible person for the vehicle,[3] and in the case of an order sought under s 80B(1) or s 80C(1), the vehicle is used in the offence.[4]
2. Section 80G(4) requires that prior to the exercise of the court's discretion to make a confiscation order under s 80C(1), the court has to give a reasonable opportunity to show cause why the order should not be made to, amongst others, the driver of the vehicle and if a person other than the driver is a responsible person for the vehicle, each responsible person.
3. Section 80G(5) of the Road Traffic Act provides that in determining whether or not to make an order the court may have regard to whether making the order will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle and any other relevant matter.

The circumstances in which the confiscation order was made in this case

1. On 9 April 2024, Mr Smith was convicted, on a guilty plea, of one count of driving contrary to an extraordinary licence condition, under s 38(1)(a) of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
2. By an application dated 1 May 2024, the Commissioner of Police applied for an order under s 80G of the Road Traffic Act for the confiscation of the motor vehicle that Mr Smith had been driving at the time he committed the offence.
3. On 12 June 2024, the confiscation application came on for hearing before Magistrate Atkins in the Mandurah Magistrates Court. Mr Smith represented himself. He indicated that he wished to oppose the application. Magistrate Atkins indicated that the application would need to be adjourned and recommended that Mr Smith seek legal advice. Mr Smith asked that the matter be transferred to Narrogin and the matter was adjourned to the Narrogin Magistrates Court on 23 July 2024.
4. On 23 July 2024, the confiscation application came on for hearing before Magistrate O'Donnell in the Narrogin Magistrates Court. Mr Smith was present and was represented by Ms Paton from the Aboriginal Legal Service. The matter was adjourned to allow Ms Paton's office to obtain a copy of the application and to permit Mr Smith to put on affidavit evidence, if he wished. Her Honour asked that any materials be provided by the Friday before the next hearing. The matter was adjourned to 20 August 2024.
5. On 20 August 2024, the confiscation application again came on for hearing before Magistrate O'Donnell. Mr Smith was initially again represented by Ms Paton from the Aboriginal Legal Service, although she withdrew during the course of the hearing and Mr Smith then represented himself.
6. At the commencement of the hearing, Ms Paton asked Magistrate O'Donnell whether she had received an affidavit that had been filed that morning. She replied 'No. It was due by Friday'.
7. Ms Paton said that her office had contacted Mr Smith on Friday and he had contacted their office the day before the hearing. Ms Paton said that they would seek more time if her Honour required a more 'robust' affidavit but that it would seem that Mr Smith and his family would suffer financially if his car was confiscated.
8. Magistrate O'Donnell said that the affidavit was short and she would read it. Her Honour asked Ms Paton about the relevance of what the affidavit said about Mr Smith's children.
9. Ms Paton submitted that Mr Smith had shared parenting arrangements of three children and because he lived in Newdegate, the nearest hospital was 53 km away. Ms Paton submitted that Mr Smith had an extraordinary driver's licence that permitted him to travel to Lake Grace.
10. Ms Paton submitted that the car was worth about $8,000.00, was the biggest asset that Mr Smith's family owned, he had little money in the bank and they were 'doing it tough'.
11. Ms Paton further submitted that Mr Smith had been told by his employer that he might need to drive to Exmouth for work.
12. Her Honour raised with Ms Paton that Mr Smith's current extraordinary driver's licence did not permit him to travel for medical reasons and Ms Paton indicated that they would apply for a variation. Her Honour observed that such an application may or may not be granted. Ms Paton said that her instructions were that the extraordinary driver's licence did permit travel for medical reasons.
13. Mr Smith then interjected that some of the things that Ms Paton had said were not things he had instructed her to say.
14. Ms Paton then indicated that she wished to withdraw from the application. Her Honour granted that application.
15. Mr Smith said that he had all of the documents he wished to provide to the court when the matter had been before the Mandurah Magistrates Court but they had refused to accept them and had insisted that he get representation.
16. Magistrate O'Donnell said that Mr Smith's affidavit was not filed on time. He replied that 'there's isn't in short notice [sic]'.
17. Her Honour said he had a month to file the affidavit and Mr Smith said that he had only found out about the need to file the affidavit on Friday. Her Honour said this was 'rubbish' because he had been present at the hearing on 23 July 2024 and knew the affidavit was required.
18. Mr Smith asked why his car should be impounded because he was caught five times in five years. He said to her Honour that without his car he and his children would be stranded.
19. Magistrate O'Donnell said that she would grant the application. She did not give details reasons for granting the application but referred to the number of impound offences that Mr Smith had committed and his record. Mr Smith spoke over her Honour as she was trying to speak. At one point her Honour observed that Mr Smith could have filed a more fulsome affidavit.

Why leave to appeal is required and when it will be given

1. As I have mentioned, under the Criminal Appeals Act, a sentence imposed by the Magistrates Court may be appealed to the Supreme Court[5] on the grounds that the Magistrates Court made an error of law or fact, or of both law and fact;[6] or there has been a miscarriage of justice.[7]
2. Leave to appeal is required for each ground.[8] An application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act.
3. Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[9] meaning that the ground is required to have a rational and logical prospect of succeeding.[10] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[11]
4. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[12] Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13]
5. Section 39 of the Criminal Appeals Act provides that subject to an appeal court's power under s 40 to admit new evidence, the appeal court must decide the appeal on the evidence and material that was before the lower court.
6. Section 40(1)(e) of the Criminal Appeals Act provides that for the purposes of dealing with an appeal, an appeal court may admit other evidence. The power in s 40(1)(e) is wide, and should be exercised in the context of an appeal against an order made as a result of a conviction if the evidence shows that a different order should have been made by the court at first instance, that is, that a miscarriage of justice has occurred, or that the decision-maker at first instance has made an error.[14]

1. As I have mentioned, the appeal notice states that the ground of appeal is 'New evidence/Support letters'.
2. On 11 October 2024, Mr Smith filed a minute of proposed amended ground of appeal which stated the grounds of appeal to be:

I have support letters that I did not provide due to family issues. Parent of my grandchildren. On drugs, family violence. Unhealthy environment for my grandchildren that day I went to court on 2 of September I was emotionally exhausted and was not in the right frame of mind. I hope the evidence that I have provided will help me and my family to keep our vehicle.

1. The same day Mr Smith filed an affidavit which attached:

(1) a letter from the Department of Community Protection dated 22 August 2024;

(2) a letter from the Indigie Resource Group dated 21 August 2024;

(3) a memorandum regarding consideration for granting an extraordinary driver's licence signed by Sergeant Joshua Egan Reid and dated 14 June 2023;

(4) a memorandum regarding an application for a Department of Communities property in the Perth Metropolitan area signed by Sergeant Reid and dated 6 February 2023; and

(5) an undated 'notice of result of hearing' regarding a hearing held on 27 March 2024 concerning variations to an extraordinary driver's licence.

1. Both the letter from the Department of Community Protection dated 22 August 2024 and the letter from the Indigie Resource Group dated 21 August 2024 are dated after the hearing before Magistrate O'Donnell on 20 August 2024. They are therefore not materials that she could have taken into account.
2. The letter from the Department of Community Protection states that Mr Smith is involved in the care of his child Ramesses. The letter states that while Ramesses is in his care, he might need to take him to the nearest local hospital in Lake Grace, or to the local CPFS office. The letter asks that these matters be taken into account when considering Mr Smith's licensing arrangements.
3. The letter from the Indigie Resource Group states that they were waiting for information from a client regarding whether to employ Mr Smith. The letter stated that part of the job description was for him to have reliable transport. The letter asks that the impounding of Mr Smith's vehicles be removed as this may hinder his chance of employment.
4. The memorandum from Sergeant Egan dated 14 June 2023 refers to the difficulties Mr Smith has with transport in Newdegate and supports Mr Smith's application for an extraordinary licence. Sergeant Egan's other memorandum expresses support for Mr Smith to move to Perth.
5. The 'notice of result of hearing' refers to various changes being made to Mr Smith's extraordinary driver's licence, including the removal of being able to drive to Lake Grace once a week for medical treatment.
6. The affidavit stated that this was new evidence which was not provided on 2 September due to emotional stress and exhaustion.

1. I do not consider that leave to appeal should be granted for three reasons.
2. First, it seems likely that Mr Smith no longer wishes to pursue the appeal. He indicated as much to Forrester J on 9 April 2024. Although he has not filed a discontinuance, he did not appear at the hearing of the application for leave to appeal or respond to enquiries from my chambers.
3. Secondly, although Mr Smith has failed to properly explain the nature of his appeal, the materials that he has filed indicate that he wishes to put evidence before this Court that was not before Magistrate O'Donnell. I do not consider that Mr Smith has satisfactorily explained why the available material was not put before Magistrate O'Donnell. Nor has he made any application for leave to adduce evidence on the appeal.
4. The affidavit he filed on 11 October 2024 suggests that the material that he now wishes to rely upon was not put before Magistrate O'Donnell because of 'family issues' and because he was emotionally exhausted when he appeared before her Honour.
5. The affidavit fails to acknowledge that Mr Smith told Magistrate O'Donnell that he had all of the papers that he needed when he initially appeared before the Mandurah Magistrate's Court on 12 June 2024.
6. The affidavit also fails to acknowledge that the hearing on 23 July 2024 had been adjourned to 20 August 2024 to permit Mr Smith to prepare an affidavit. The affidavit fails to meaningfully address how the 'family issues' prevented him gathering the material within the month allowed.
7. The affidavit also misstates the date of the hearing. The hearing took place on 20 August 2024, not on 2 September 2024, as stated in the affidavit. Two of the letters that Mr Smith now wishes to rely upon were written after the hearing. His affidavit fails to address why these letters were not obtained earlier.
8. Thirdly, in any event, it is not evident from the material before me that Mr Smith's appeal has any reasonable prospects of success.
9. The sole basis of the appeal seems to be that Mr Smith wishes to put 'new evidence' before this Court. The materials that Mr Smith has filed do not allege that Magistrate O'Donnell made an error of fact or law.
10. As I have indicated, the power in s 40(1)(e) of the Criminal Appeals Act to admit other evidence will only be exercised if the evidence shows that there has been a miscarriage of justice, or that the decision-maker at first instance made an error.
11. It is not apparent to me that the letters that Mr Smith seeks to rely upon establish that there has been a miscarriage of justice, or that Magistrate O'Donnell made an error. Nor has Mr Smith sought to explain why this is the case.
12. Indeed, it is not apparent to me that the letters raise anything material that was not submitted to Magistrate O'Donnell by Ms Paton. Ms Paton submitted that Newdegate was isolated, Mr Smith had care of his children and might need to get medical care and that the confiscation of Mr Smith's vehicle might cause him financial hardship and affect his ability to work. To the extent that the letters address matters beyond the submissions made, it is not apparent to me why those matters are material or assist Mr Smith.
13. While it is the case that Ms Paton withdrew from representing Mr Smith, it is not apparent to me from my review of the transcript that Magistrate O'Donnell made the confiscation order because she did not accept that the matters Ms Paton submitted were established.
14. It is true that at one point Magistrate O'Donnell commented that Mr Smith could have addressed matters he submitted in a 'more fulsome affidavit'. However, on my reading of the transcript, that comment was addressed to a submission that Mr Smith made that he used his motor vehicle to assist needy members of his local community. This was not a submission that Ms Paton had made on his behalf. I note that Mr Smith has not sought to put any evidence about the assistance he provides to members of his local community before this Court.
15. Ultimately, Magistrate O'Donnell's reasons indicate that she made the confiscation order, not because Mr Smith had failed to provide evidence to substantiate the submissions that Ms Paton had made, but rather because of the repeat nature of his offending.
16. Given that the further evidence that Mr Smith seeks to rely upon does not raise anything material that was not already before Magistrate O'Donnell, if it is alleged that there has been a miscarriage of justice, it is not apparent to me why that is the case. If it is alleged that Magistrate O'Donnell made an error, it is not apparent what that error was.

1. For these reasons I would refuse leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Criminal Appeals Act s 8(1)(b).

[2] Criminal Appeals Act s 9.

[3] Road Traffic Act s 80GA(1)(a).

[4] Road Traffic Act s 80GA(1)(b)(i).

[5] Criminal Appeals Act s 6(f) and s 7(1).

[6] Criminal Appeals Act s 8(1)(a)(i).

[7] Criminal Appeals Act s 8(1)(b).

[8] Criminal Appeals Act s 9(1).

[9] Criminal Appeals Act s 9(2).

[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[11] Criminal Appeals Act s 9(3).

[12] Sami v Duggan [2011] WASC 304 [38].

[13] Criminal Appeals Act s 14(2).

[14] Johnson v Matthews [2020] WASC 122; (2020) 91 MVR 491 [26] (Smith J); Li v Skala [2018] WASC 353 [67] (Pritchard J); Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [96] - [101] (Buss P & Newnes JA agreeing); and in the context of an appeal against sentence in Suleiman v The State of Western Australia [2017] WASCA 26 [53] (Buss P, Mazza & Mitchell JA agreeing).