DIAO -v- WA POLICE [2026] WASC 316

[2026] WASC 316 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : DIAO -v- WA POLICE [2026] WASC 316 CORAM : FORRESTER J HEARD : ON THE PAPERS DELIVERED : 3 AUGUST 2026 FILE NO/S : SJA 1090 of 2025 BETWEEN : YING DIAO Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE M MILLINGTON File Number : MI 5568/2025 Catchwords: Criminal law - Appeal pursuant to pt 2 div 2 of Criminal Appeals Act 2004 (WA) - Application for extension of time in which to appeal - Driving while disqualified from holding or obtaining licence - Appellant failed to appear at hearing - Convicted in absence - Whether miscarriage of justice occasioned by conviction in absence of appellant -- 1 of 8 -- [2026] WASC 316 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Road Traffic Act 1974 (WA) Result: Application granted Category: B Representation: Counsel: Appellant : No appearance Respondent : Ms T Loo Solicitors: Appellant : In Person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Fazio v St John-Ayre [2017] WASC 62 Reynolds v WA Police [No 2] [2025] WASC 10 Saad v Baron [2012] WASC 507 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sharma v Hodgson [2012] WASC 433 -- 2 of 8 -- [2026] WASC 316 FORRESTER J Page 3 FORRESTER J: Introduction 1 This is an appeal lodged by the appellant against a decision of the learned magistrate to deal with the appellant in her absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CPA). 2 The respondent has conceded that the appeal should be allowed. For the reasons which follow, that concession was properly made. The appeal will be allowed and the matter remitted to the Magistrates Court to be dealt with according to law. Background 3 On 8 June 2025, the appellant was charged with an offence that, contrary to s 49(1)(a) and s 49(3)(b) of the Road Traffic Act 1974 (WA), she: drove a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2, and at the time of driving, was disqualified from holding or obtaining an Australian driver licence of a kind required, other than the result of penalty enforcement laws as described in section 49(9) of the Road Traffic Act 1974. 4 The prosecution notice reveals that the appellant failed to appear on 30 June 2025. The relevant portion of the transcript of that appearance is as follows: ORDERLY: From your D listing, Diao Ying, non-appearance. HIS HONOUR: 8 June, section 55. BLOM, MR Thank you, your Honour. 5 The facts were then read and a sentence imposed, namely a fine of $1,000. The appellant was ordered to pay costs in the sum of $300.50, and she was disqualified from holding or obtaining a driver's licence for 9 months cumulative on any disqualification then in force. 6 An application to set aside the conviction pursuant to s 71 of the CPA was refused on 3 November 2025. 7 The appellant lodged the notice of appeal on 24 November 2025. -- 3 of 8 -- [2026] WASC 316 FORRESTER J Page 4 Legal framework and general principles 8 The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).1 9 An appeal from a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision from which the appeal is made unless otherwise ordered by this court.2 10 Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,3 meaning that the ground is required to have a rational and logical prospect of succeeding.4 Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.5 11 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.6 Grounds of appeal 12 There are five grounds of appeal. It is unnecessary, given the concession by the respondent, to set them out. It is sufficient to say that, while the grounds raise a number of matters, the effect of them is that the appellant asserts that she should not have been convicted in her absence. 13 The grounds suggest that the appeal is against the refusal to set aside the conviction pursuant to s 71 of the CPA. However, there is compelling authority for the proposition that no appeal lies from such a refusal under pt 2 of the CA Act because a refusal to set aside a conviction pursuant to s 71 of the CPA does not constitute a 'decision' within the meaning of s 6 of the CA Act.7 14 In my view, the decision which the appellant can properly appeal under the CA Act is the decision to convict her in her absence on 30 June 2025. 1 CAA, s 6(f) and s 7(1). 2 CAA, s 10(3). 3 CAA, s 9(2). 4 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. 5 CAA, s 9(3). 6 CAA, s 14(2). 7 Sharma v Hodgson [2012] WASC 433 [18] - [19] (Beech J); Fazio v St John-Ayre [2017] WASC 62 [86] - [89] (Fiannaca J). -- 4 of 8 -- [2026] WASC 316 FORRESTER J Page 5 15 Accepting that to be the case, as I do, the appellant requires an extension of time in which to appeal, as her appeal was lodged well out of time. 16 However, having regard to the fact that the appellant did lodge her appeal 21 days after her application to set aside the conviction was refused, and the fact that she is self-represented, I am satisfied that there is no prejudice to the respondent and an extension of time should be granted. 17 Also having regard to the appellant's self-represented status, which requires some latitude, I intend to treat the appellant's grounds as asserting, in effect, that she has suffered a miscarriage of justice as a result of the decision. The respondent's concession, appropriately made, is to the same effect. 18 On 10 June 2026, I was advised that the respondent intended to lodge submissions conceding that the appeal should be allowed. In those circumstances, on the application of the appellant, I made an order that the appellant have leave to appeal her conviction. Merits 19 Section 55 of the CPA empowers the court to hear and determine a charge of a simple offence in the accused's absence. It relevantly provides: (1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea. (2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may – (a) adjourn the charge; or (b) hear and determine the charge in the accused's absence. … (4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the -- 5 of 8 -- [2026] WASC 316 FORRESTER J Page 6 prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court – (a) must presume, in the absence of evidence to the contrary – (i) that the prosecution notice was signed by a person who was acting under section 20(3); and (ii) that the person had the authority to sign the prosecution notice; and (b) may take as proven any allegation in the prosecution notice containing the charge that was served on the accused. (5) If under subsection (4) the court convicts the accused – (a) the prosecutor must state aloud to the court the material facts of the charge; and (b) section 129(4) applies; and (c) in the absence of evidence to the contrary, the court must take as proved any facts so stated. 20 Pursuant to s 18 of the CPA, 'court date' for a charge in a prosecution notice includes the first court date for the notice. It is not asserted that the conditions in s 5(1) were not satisfied in this case. 21 The required form and content of a 'court hearing notice' are set out in s 33 of the CPA. 22 As Lemonis J observed in Reynolds v WA Police [No 2]: If the conditions set out in s 55(1) are met, s 55(2) and s 55(4) mandate that the following steps occur in order for the charge to be heard and determined in the accused's absence without evidence being called: (1) The court must be satisfied that the accused has been served with the notices specified in s 55(2). That is, the prosecution notice containing the charge and an additional notice notifying the accused of the hearing date and of the fact that the court may deal with the charge in the accused's absence if the accused does not appear. -- 6 of 8 -- [2026] WASC 316 FORRESTER J Page 7 (2) The court exercises the discretion to hear and determine the charge in the accused's absence. (3) The court determines that the prosecution notice is signed by a person who purports to be a person authorised to do so acting under s 20(3) of the CPA. (4) The court must then presume, in the absence of evidence to the contrary, that the prosecution notice was validly issued. (5) The court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. This is not mandatory. Rather, 'the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence'.8 In summary, the court must be satisfied of the matters set out at (1) and (3) above and must exercise the discretions set out at (2) and (5). Section 55 facilitates a quick and efficient hearing in the accused's absence. However, that does not mean there is no hearing at all. This is made clear by the language of s 55(2), which empowers the court to hear and determine the charge in the accused's absence.9 23 The learned magistrate did not expressly state that he was satisfied either that the appellant had been served with the prosecution notice or a court hearing notice which notified the appellant of the court date, and notified the appellant that the court may deal with the matter in her absence if she did not appear. 24 It may be accepted that, in some circumstances, it is possible to infer that a magistrate has satisfied themselves of the requirements of s 55(2) of the CPA. However, in this case, there is nothing in the transcript of the proceedings or the evidence adduced by either party from which such an inference can be drawn. 25 With respect to the learned magistrate, it is unclear to what his reference to '8 June' referred. That is the date on which the charge was commenced, and no indication was given as to any other relevance of that date. While the learned magistrate may have viewed documents electronically in the course of the hearing, there is no indication that he did so. Further, as this was the first court date involving the matter, there is nothing which suggests the learned magistrate must otherwise have been aware of information satisfying the criteria in s 55(2). 8 Saad v Baron [2012] WASC 507 [58]. 9 Reynolds v WA Police [No 2] [2025] WASC 10 [97] - [98]. -- 7 of 8 -- [2026] WASC 316 FORRESTER J Page 8 26 In the circumstances, the respondent conceded that it was not open on the available evidence to draw the inference that the learned magistrate had satisfied himself of the preconditions in s 55(2), as he was obliged to do before hearing and determining the charge in the appellant's absence. That concession must be accepted. 27 The appellant has not had a trial according to law. There is no room for the application of the proviso. The appeal must be allowed. 28 Accordingly, the conviction will be set aside and the matter remitted to the Magistrates Court for a trial according to law. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CA Associate to the Hon Justice Forrester 3 AUGUST 2026 -- 8 of 8 --