TEY -v- CARPENTER [2011] WASC 263 (29 September 2011)

3 The prosecutor provided Mrs Tey with copies of Constable Kerep's and Acting Sergeant Heseltine's statements. It is clear that in those statements both officers referred to Somerville Boulevard as the road on which Mrs Tey was stopped. Mrs Tey also sought statements from Senior Constable Carpenter and Mr Cappeluti. Disclosure of these statements was opposed by the prosecutor. The magistrate did not order disclosure of these statements.

4 The trial proceeded on 27 January 2011. Before any evidence was called, the prosecutor applied to amend the prosecution notice to delete the street name, Jackson Avenue, and replace it with Somerville Boulevard. Mrs Tey opposed the application. Despite this, the application was granted.

5 Constable Kerep and Acting Sergeant Heseltine each testified that they stopped Mrs Tey's vehicle on Somerville Boulevard and that she was driving the vehicle. Acting Sergeant Heseltine further testified that he had seen Mrs Tey's vehicle being driven in a southerly direction on Winthrop Drive. Mrs Tey declined to crossexamine either of them. The magistrate complied with his statutory duty under s 30 of the Magistrates Court Act 2004 (WA) by pointing out to Mrs Tey the consequences of failing to crossexamine each witness. Mrs Tey was adamant that she did not wish to crossexamine.

6 The prosecution tendered, over objection, a certificate under s 98(1b) of the Road Traffic Act 1974 (WA) (exhibit A). There is no issue that the certificate complied with the formal requirements of that subsection. Section 98(1c) provides that the certificate is evidence of the facts stated in it. The certificate is in these terms:

LICENSING SERVICES

DEPARTMENT OF TRANSPORT

EXTRACT FROM DRIVER'S LICENCE REGISTER

I[,] Michelle Aikin[,] certify that the Driver's Licence Register maintained in accordance with section 42 of the Road Traffic Act 1974 (as amended) shows that as at 21 June 2009 Motor Driver's Licence number ******* Issue date: ** **** **** Expiry date: 2 February 2006 Class(es) held C is in name of:

Tey, Kok Yong

Date of Birth: ** **** 1948

** **** Rd

**** WA ****

This certificate is issued pursuant to Section 98(1b) of the Road Traffic Act 1974

[Signed]

OFFICER AUTHORISED BY

THE DIRECTOR GENERAL

7 Mrs Tey declined to give or call evidence. She was convicted and fined $100 and ordered to pay costs of $119.20.

8 Mrs Tey now seeks leave to appeal against both her conviction and sentence. There are eight grounds of appeal. In a proposed ninth ground, Mrs Tey purports to reserve the right to amend or add to her grounds of appeal. Of course, this is not a ground of appeal. Moreover, an appellant is not permitted under the Criminal Appeals Act 2004 (WA) to 'reserve' any right under that Act. As it has turned out, Mrs Tey did not, at the hearing of the appeal, attempt to amend or add to her grounds of appeal.

9 The eight grounds of appeal are not well drafted and are repetitive. They raise the following issues:

1. Did the order for disclosure made on 23 September 2010 require the prosecution to provide Mrs Tey with statements from Senior Constable Carpenter and Mr Cappeluti? If so, did the failure to provide those statements give rise to a miscarriage of justice (grounds 3 and 4)?
2. Did the learned magistrate err on 27 January 2011 when he granted the prosecutor's application to amend the prosecution notice (ground 1)?
3. Did the learned magistrate err by allowing the prosecution to adduce the s 98 certificate into evidence (ground 5)?
4. Was it open to the learned magistrate to convict Mrs Tey on the evidence (grounds 7 and 8)?
5. Was the penalty imposed by the learned magistrate manifestly excessive (ground 6)?

10 Mrs Tey also raised whether the prosecution should have been issued in the name of Senior Constable Carpenter or in the generic name of the WA Police. This issue has been raised before by Mrs Tey in proceedings before this court and the Court of Appeal: see Tey v Plotz [2011] WASCA 194 (ground 2).

11 Finally, in oral argument, Mrs Tey submitted that the prosecution should have, but failed to, disclose a letter entitled 'Final Demand Notice' and that the prosecution should have, but failed to, call Senior Constable Carpenter and Mr Cappeluti to give evidence at trial.

12 Mrs Tey says that once an order for disclosure had been made, the prosecution had a duty to provide her with statements from Senior Constable Carpenter and Mr Cappeluti, and that the failure to disclose their statements gave rise to a miscarriage of justice.

13 An offence of driving without authority is a simple offence. Pursuant to s 60(5) of the Criminal Procedure Act, the magistrate made an order for disclosure. It was assumed that the magistrate had the power to do this. Once the order was made, the prosecutor was obliged, by s 61(5) of the Criminal Procedure Act, to serve Mrs Tey with:

1. any confessional material of the accused;
2. any evidentiary material that is relevant to the charge;
3. a copy of the accused's criminal record; and
4. any document that is prescribed.

14 Mrs Tey made no confessional statement and had no criminal record. There was no relevant prescribed document. Accordingly, the prosecutor was obliged to provide her with 'any evidentiary material that is relevant to the charge'. Evidentiary material is defined in s 42(1) to include statements by any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence.

15 The question of relevancy, for the purposes of s 61(5) and s 42(1) of the Criminal Procedure Act, is not to be narrowly approached and should be viewed from the perspective of what is relevant or could be potentially relevant: see The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] [61].

16 In this case, the potentially relevant issues were whether Mrs Tey was driving on 21 June 2009 and whether she was the holder of a valid driver's licence at that time. Neither Senior Constable Carpenter or Mr Cappeluti were present when the alleged offence occurred. Senior Constable Carpenter merely issued the prosecution notice. Any police officer can issue a prosecution notice: s 20(3)(a)(iii) of the Criminal Procedure Act. There is no requirement that the officer have any other involvement in the case.

17 There is no requirement in the Criminal Procedure Act that the statement of material facts be prepared by an officer with involvement in the case. There is no evidence that Mr Cappeluti had any involvement in the case, other than preparing the statement of material facts.

18 Any knowledge that Senior Constable Carpenter or Mr Cappeluti had about Mrs Tey's driving could only have been given to them by Constable Kerep and/or Acting Sergeant Heseltine. Neither of them could say anything about her entitlement to drive.

19 If Mrs Tey proposed to establish that the information given to Senior Constable Carpenter and/or Mr Cappeluti about the street on which the offence occurred was wrong, that much was obvious from the prosecution notice, the statement of material facts and the witness statements of the police officers who stopped Mrs Tey's vehicle, being documents Mrs Tey had well before trial. Disclosure in the form of statements from Senior Constable Carpenter and Mr Cappeluti would have served no purpose. In the circumstances, their statements were irrelevant.

20 If I am wrong and there was some potential relevance to the evidence of Senior Constable Carpenter and Mr Cappeluti, and therefore their statements should have been disclosed to Mrs Tey, she has failed to demonstrate any miscarriage of justice. I accept, as a matter of principle, that a failure by the prosecution to disclose potentially relevant evidence to the defence can give rise to a miscarriage of justice: Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593. However, the failure to provide disclosure does not automatically give rise to a miscarriage of justice.

21 As I have already pointed out, Mrs Tey did not crossexamine either officer, and did not give evidence or call evidence. She did not dispute the police officers' evidence that she was stopped on Somerville Boulevard or Acting Sergeant Heseltine's evidence that she was driving on Winthrop Avenue. Nor did she dispute that she was not authorised to do so. In these circumstances, any failure on the part of the prosecution to provide statements from Senior Constable Carpenter and Mr Cappeluti had no consequence.

22 It follows from what I have already said, that the prosecution was not under any obligation to call Senior Constable Carpenter and Mr Cappeluti to give evidence at trial. In any event, any failure to call them did not give rise to a miscarriage of justice.

23 Grounds 3 and 4 have no reasonable prospect of success.

24 Mrs Tey says that the learned magistrate erred by allowing the prosecution's application to amend the prosecution notice at the outset of the proceedings on 27 January 2011. Mrs Tey says that the place where the offence occurred was 'a crucial element of the charge' against her, and that the amendment prejudiced her defence. She was unable to say in argument how the amendment prejudiced her defence. In support of her argument she cited City of Gosnells v Heydon [2010] WASC 344; (2010) 178 LGERA 120.

25 The power to amend a charge in a prosecution notice is set out in s 132 of the Criminal Procedure Act. It is a power to be exercised at the discretion of the relevant judicial officer in accordance with the section. A prosecution notice may be amended at any time before or during trial: s 132(1). Such an application may be made by the prosecutor: s 132(3). A court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor: s 132(4). Section 132(10) provides that a court may refuse to amend a prosecution notice if it is satisfied that:

(a) the amendment is material to the merits of the case;

(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and

(c) an adjournment would not overcome the prejudice.

26 Mrs Tey was aware from, at the latest, 23 September 2010, when she was provided with Constable Kerep's and Acting Sergeant Heseltine's statements, that they would each be saying that she drove on Somerville Boulevard. Mrs Tey had ample time before trial to deal with this aspect of the case. The amendment only sought to ensure that the prosecution notice conformed with the evidence that was going to be called as to the road on which it was alleged Mrs Tey was stopped. The amendment was made before either officer had given evidence. Mrs Tey had ample opportunity to crossexamine about the discrepancy and make whatever forensic point she wanted to about it. She was specifically asked about this by the magistrate: 27 January 2011, ts 8. She still declined to crossexamine.

27 Mrs Tey's view of what the crucial issue was at the trial is misconceived. The crucial issue (other than whether she had a valid driver's licence) was whether she was driving on a road. Whether that road was Jackson Avenue or Somerville Boulevard was not important in a legal sense. If she was driving on either road she was guilty of the offence.

28 City of Gosnells v Heydon does not assist Mrs Tey. That case involved the City's appeal against a decision by a magistrate to acquit the respondent of a charge of leaving vehicles on a verge. Jenkins J dismissed the appeal. She agreed with the magistrate that there was insufficient evidence to sustain the charge. Jenkins J noted that the evidence may have sustained a charge of placing vehicle parts or wrecks on a verge. She considered whether an application to amend the charge might be allowed. Leaving aside the issue of whether a charge could be amended on appeal, Jenkins J said that she would have refused such an application because 'it would substantially alter the nature of the allegations against [the respondent]' and would prejudice his defence: [66].

29 In the present case, the nature of the allegations were not substantially altered by the amendment. They were the same, in that it was said that Mrs Tey was driving on a road in Winthrop. Further, as Mrs Tey must have known well before trial that Constable Kerep and Acting Sergeant Heseltine would say that she drove on Somerville Boulevard, she was not taken by surprise and had ample time to deal with the allegation. The amendment did not cause her any prejudice. The learned magistrate did not err in the exercise of his discretion to allow the amendment to the prosecution notice.

Issue 3 - the s 98 certificate

31 Mrs Tey objected to the tender of the s 98 certificate at trial on the basis that it was wrong. Mrs Tey did not explain what the error was in the certificate. The basis for the admissibility of the certificate is found in s 98 of the Road Traffic Act. That section relevantly provides:

(1) In any prosecution or proceedings for an offence against this Act an averment in the prosecution notice that any person is or was an owner of, or a responsible person for, a vehicle or became an owner of, or a responsible person for, a vehicle on any date or that any person is or was not the holder of any particular licence (either personal or in respect of any vehicle), or that the vehicle was driven or used on a road or any place to which the public is permitted, whether on payment of a fee or otherwise, to have access shall be deemed to be proved in the absence of proof to the contrary.

...

(1b) For the purposes of any prosecution or proceedings for an offence under this Act or verifying the accuracy of information provided under Part IVA to another Australian driver licensing authority, the Director General or a person authorised by the Director General may issue a certificate stating that a fact specified in the certificate appears in or is derived from the driver's licence register under Part IVA or another record kept by the Director General under this Act.

...

32 The certificate complied with the requirements of s 98(1b). It was thus admissible. Its contents were sufficient to prove the element of the offence that Mrs Tey did not have, on 21 June 2009, a valid driver's licence, there being no evidence to the contrary.

Issue 4 - was it open to the magistrate to convict?

34 The only evidence before the magistrate was the evidence of Constable Kerep and Acting Sergeant Heseltine and the s 98 certificate. Apart from Mrs Tey's objection to the tender of the s 98 certificate, this evidence was unchallenged. I also note that the averment in the prosecution notice (as amended) that Mrs Tey was driving on Somerville Boulevard was, by virtue of s 98(1) of the Road Traffic Act, deemed proved in the absence of proof to the contrary. There was no contrary evidence before the learned magistrate. Conviction was not only open to the magistrate on the evidence, it was inevitable.

35 Grounds 7 and 8 have no reasonable prospect of success.

36 The maximum penalty for a first offence contrary to s 49(1)(a) of the Road Traffic Act is a $300 fine. Although Mrs Tey had an otherwise unblemished traffic record, she had been driving for over 3 years without a valid driver's licence. A penalty which was onethird of the maximum was plainly within the realms of a sound sentencing discretion and was not manifestly excessive.

38 I will deal briefly with the issue of whether the prosecution should have been issued in the name of Senior Constable Carpenter or the WA Police. As I said earlier in these reasons, Mrs Tey has raised this issue in other cases. Recently, in Tey v Plotz, the Court of Appeal decided, generally adopting the reasons of Jenkins J at first instance, that a prosecution should be in the name of a specific police officer rather than the WA Police. Whether the prosecution was initiated by a named police officer or using the pseudonym of the WA Police makes no difference to the merits of the case before the magistrate or this appeal.

40 In argument, Mrs Tey submitted that the prosecution should have disclosed to her a document that had been sent to her entitled 'First Demand Notice'. This was a letter sent to her after she failed to pay the infringement notice. The letter is irrelevant to the proceedings before the magistrate. In any event, Mrs Tey had the document.

41 None of Mrs Tey's grounds of appeal have a reasonable prospect of success. Accordingly, leave to appeal is refused on all grounds and the appeal is dismissed.