JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HUNTER -v- THE QUEEN [2001] WASCA 302
CORAM : WHEELER J
HEARD : 5 SEPTEMBER 2001
DELIVERED : 28 SEPTEMBER 2001
FILE NO/S : SJA 1072 of 2001
BETWEEN : LINDSAY HUNTER
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Justices - Leave to appeal - Conviction for driving under suspension - Defence of emergency - Constitutional issues raised before Magistrate
Turns on own facts
Legislation:
Criminal Code 1913 (WA) s 25
Judiciary Act 1903 (Cth) s 78B
Result:
Leave to appeal granted
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Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Narain v Parnell (1986) 64 ALR 561
Case(s) also cited:
Nil
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1 WHEELER J: This is an application for leave to appeal in relation to a conviction for driving under suspension. I propose to grant leave to appeal in respect of two of the grounds raised by the applicant – or, more accurately, one portion of two grounds and one further ground. The proceedings before his Worship were lengthy and I summarise briefly for the purpose of the present application.
2 On the morning of 15 February 2000 the applicant appeared in the Court of Petty Sessions in relation to three complaints. For some reason the prosecution was unable to proceed at that time and sought an adjournment in order to obtain the attendance of its witness. The applicant objected to the adjournment and submitted that the complaint should be dismissed. During the course of the submission, the applicant included comments to the effect that he was concerned at the possibility that the matter would be "hanging over my head" for any further period. His Worship adjourned until later in that day.
3 In relation to the driving under suspension, the prosecution evidence was that of a police witness who identified the applicant and recounted a conversation which he alleged had taken place with the applicant when he stopped the applicant for driving a vehicle on 3 March 1999, the date of the alleged offences. In response to the witness' notification to the applicant that the applicant's licence was under suspension, it was alleged that the applicant had said words to the effect of "I know. I'm appealing it. It's going through the courts at the moment."
4 Certified copies of two complaints were produced to the Magistrate. Although the court proceedings recorded on them were lengthy, and aspects of them were difficult to decipher, his Worship was satisfied that they each recorded convictions of the applicant in relation to previous offences which had resulted in a total period of disqualification the effect of which would have been that the applicant would not have been entitled to drive on 3 March 1999.
5 The hearing was unable to be completed on that day. It was adjourned to 3 May 2000. It is not clear to me why it did not proceed on that date. Because of the length of time which has elapsed since the hearing, it appears that some of the tapes have been destroyed and transcripts are only available for some of the relevant hearing dates. It appears from a transcript of a later hearing that his Worship had a record of some further hearing taking place on 11 or 18 July 2000, at which it appears that all that occurred was that the prosecution closed its case.
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6 Next, in an application which appears to be dated 26 February 2001, the applicant made an application to adjourn this and a variety of other matters until such date as he might obtain legal representation. In an affidavit he has provided to me, he deposes that the application was made on about 7 March 2001. The basis of the application was medical evidence. It appeared that the question of the applicant's mental state had arisen in some other proceedings and as a result fairly comprehensive reports dated early and late 2000 had been produced which were to the effect that the applicant suffered no formal psychiatric illness and that he would be fit to plead, although one report refers to a diagnosis of "chronic paranoid litigant", which was said to be more a description of a personality deviation than a treatable mental illness. However, in February 2001 the applicant's general practitioner provided him with a certificate to the effect that he was "anxious and stressed" and that his health would suffer if he were required to appear in court in "the near future". A further medical note dated 7 March 2001 referred to an assault upon the applicant on about 5 March 2001 which resulted in significant periorbital bruising and haemorrhage into the applicant's right sinus, and the comment was made again that the applicant should not appear in court without adequate legal representation, "particularly at this time". I have no record of the outcome of that application.
7 On 22 May 2001 there was a further hearing of the complaint the subject of this application. On that occasion the applicant advised his Worship that all of his relevant notes and materials were stolen from him in about August 2000. There was some discussion between his Worship and the applicant which is difficult to follow but which appears to have been directed to the question of whether or not there should be an adjournment. The applicant's position was somewhat equivocal. He advised his Worship that "… my candid position is that if I can avoid jail I will get this matter over with quickly, all of them." He further said "I would like this matter dealt with to avoid the Damocles sword effect …" He said "I would like to have it dealt with. I do really want to get rid of it." There was however another matter involving a warrant of some kind which the applicant sought to have dealt with on that occasion prior to the further hearing of this complaint. His Worship did not grant that application and his failure to do so is not the subject of any proposed ground of appeal.
8 The applicant then gave evidence which was broadly to the following effect. He said that he was a breeder of rare and valuable puppies. He was very emotionally attached to the puppies, which he considered to be members of his family. On the day in question, one of the puppies
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became suddenly and seriously ill. He was very concerned about this illness, because on a previous occasion one had become suddenly ill and had died in his vehicle on the way to the vet. He therefore considered that an emergency had arisen and that it was necessary for him to drive in order to take the puppy to receive veterinary treatment. It appears from his Worship's later reasons that his Worship accepted the applicant's account in this respect.
9 The applicant denied that the conversation which was alleged by the prosecution witness had taken place. So far as the licence suspension was concerned, his evidence-in-chief was very difficult to follow but was to the effect that because of various actions which he had taken in court, he had taken the view that he was no longer under suspension. However, at the time of giving evidence, he was unable to recall the precise details of what court action had been taken as he said there had been "hundreds" of them; indeed he said to his Worship "you can go back - - pick any month in the last eight years and my licence may or may not have been suspended, and that will change next month …" In cross examination, he was asked about the manner in which his belief that he was not under suspension had arisen. The clearest exchange is to this effect:-
"Well, you formed a belief that as soon as you appeal immediately you can start driving again. Is that what you're saying?---
Yes. I believed – this is- this is where, you know - - you know did I believe in a set of facts or the law? Right? Well, my belief was that the facts consequential to a legal application were that I were thus legally – a legal – thus entitled to drive."
10 In relation to these matters, his Worship found, without being satisfied as to the precise words, that there was some comment by the applicant on 3 March 1999 to the effect that he was aware of disqualifications which had been imposed by the court and that he had appealed them. His Worship accepted that the applicant may well have obtained leave to appeal in respect of the convictions giving rise to his disqualification. However, he observed that there was nothing in any court record before him to indicate that the grant of leave to appeal was accompanied by an order staying the relevant suspension. There was before him no evidence to contradict the record endorsed upon the certified copies of complaints produced to him by the prosecution. He therefore found that the applicant had been disqualified at the relevant
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time and that the mistake as to the effect of the obtaining of leave to appeal was a mistake of law and not of fact.
11 Against that background, I turn to the grounds of appeal, which fall into a number of broad categories.
12 Grounds 1 and 2 alleged that his Worship erred in relation to all of the defences raised by the applicant pursuant to s 22, 23, 24 and 25 of the Criminal Code 1913 (WA). It appears to me that the only defences which were really live before his Worship were those of emergency (s 25) and mistake (s 24). In relation to mistake it is, in my view, very clear that a mistake about the effect of a grant of leave to appeal is a mistake of law and not of fact and could afford the applicant no defence. So far as the emergency question is concerned, however, while it seems to me that there well may have been factual difficulties in the applicant's way, the "defence" of emergency is one in relation to which there is very little law. If one accepts the applicant's account, the illness of the puppy was sudden. It is as a matter of first impression, difficult to see it as extraordinary, and there well may be difficulties in the way of the proposition that an ordinary person possessing ordinary power of self control could not reasonably be expected to have acted otherwise in the circumstances. However, the matter appears to me to be arguable and I would grant the applicant leave to appeal in respect of grounds 1 and 2 of the proposed grounds, but limited to s 25 of the Criminal Code only.
13 The third ground alleges an error in fact or law in the learned Magistrate in continuing to hear the matter once the applicant had raised "issues of the unconstitutional nature of the matter". There is no transcript setting out what constitutional issues may have been raised, but the applicant has referred to them to the best of his recollection in an affidavit sworn 17 September 2001 in support of the application. In broad terms, he alleges that the fines enforcement legislation which led to at least one of his licence suspensions is oppressive, contrary to federal bankruptcy legislation, and an interference with communication, since the motor vehicle is a practical means of communication. Section 78B of the Judiciary Act 1903 provides that 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 has been given to the Attorneys General of the Commonwealth and the States. It seems to me unlikely, based upon the broad assertions contained in the applicant's affidavit, that it could reasonably be said that the cause "really and substantially" involved a matter arising under the constitution or involving
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its interpretation (see Narain v Parnell (1986) 64 ALR 561). However, this too seems to me to be a matter which is arguable, and I would grant the applicant leave in relation to ground 3 of the proposed grounds.
14 Grounds 4, 6 and 7 in effect complain of his Worship's failure to adjourn the hearing. This is a discretionary decision with which the Court will be slow to interfere. In this case, the medical certificates upon which the applicant relies are not such as to suggest that the matter should not have been heard on either of the dates upon which the hearing of evidence took place. Further, the applicant's own comments recorded on the transcript suggest that he was anxious that the matter should proceed expeditiously. There is also of course a question of public interest and of fairness to the prosecution, to which his Worship properly had regard. In the light of those matters, and particularly in the light of the applicant's comments which are recorded on the transcript, it is my view that these grounds are unarguable and I would not grant leave in respect of them.
15 Ground 5 appears to be a complaint about the sentence imposed by his Worship. However, his Worship appears to have imposed the minimum fine and a 9 months' disqualification in relation to this offence. This ground appears to me to be unarguable and I would not grant leave in respect of it.
16 Finally, grounds 8 to 12 inclusive all appear to complain of his Worship's reliance upon the certified copies of the court record produced to him; in effect, as I understand it, it is submitted that in the light of the possibility, raised by the applicant, that the relevant penalties had been quashed or perhaps stayed, that his Worship could not have been satisfied beyond reasonable doubt that his licence had been suspended on the relevant date. However, the position was that there was clear evidence before his Worship of suspensions which did encompass the relevant date. Against that, there was set only the applicant's belief that, as a result of an application which he could not precisely recall, he had obtained leave to appeal, and that his belief was that that did have the effect of staying the relevant suspensions, or one of them. In my view it is not arguable that evidence of such a tenuous nature could have given rise to a reasonable doubt, and I would not grant the applicant leave to appeal in relation to grounds 8 to 12 inclusive.
17 I add that the applicant seeks what is in effect a declaration that his current extraordinary licence is a current and valid licence. The question of the effect of any extraordinary licence which he may have obtained at any time is one which is not a live issue in this application, and I make no
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order in relation to it. It seems to me that that is a matter in relation to which the applicant will have to seek his own legal advice.
Conclusion
18 In summary, I would grant the applicant leave to amend his application for leave to appeal in terms of the document filed by him on 5 September 2001, and grant him leave to appeal in respect of his conviction for driving under suspension upon grounds 1 and 2 (but limited to s 25 of the Criminal Code) and three of the grounds contained in that application. I would further order that:-
• The appeal be heard by a single Judge.
• Within 21 days the applicant serve on the respondent his application for leave to appeal, the affidavits filed in support of the application and a copy of these reasons.
• Within 28 days of this order the applicant enter the appeal for hearing.
• Within 7 days after the appeal has been entered for hearing the applicant, on notice to the respondent, attend before the listing co-ordinator to fix a date for hearing of the appeal.
• At least 7 days before the date fixed for hearing the appeal, the applicant file books of appeal containing all material required by the Registrar.