Backshall v The City of Greater Geraldton
[2016] WASC 347
•28 OCTOBER 2016
BACKSHALL -v- THE CITY OF GREATER GERALDTON [2016] WASC 347
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 347 | |
| 28/10/2016 | |||
| Case No: | SJA:1056/2016 | 27 OCTOBER 2016 | |
| Coram: | MARTINO J | 27/10/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DONALD THOMAS BACKSHALL THE CITY OF GREATER GERALDTON |
Catchwords: | Criminal law Application for leave to appeal Authority of magistrate |
Legislation: | Criminal Appeals Act 2004 (WA) |
Case References: | Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hedley v Spivey [2012] WASCA 116 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
THE CITY OF GREATER GERALDTON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE D POTTER
File No : GN 1402 of 2016
Catchwords:
Criminal law - Application for leave to appeal - Authority of magistrate
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hedley v Spivey [2012] WASCA 116
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
- MARTINO J:
(This is an edited version of reasons delivered at the hearing on 27 October 2016.)
1 The appellant was charged in the Magistrates Court at Geraldton that between 21 January 2016 and 12 February 2016 within the district of the City of Greater Geraldton, being a person who was served with a copy of a Building Order, without reasonable excuse failed to comply with the order, contrary to s 115 of the Building Act 2011 (WA).
2 He pleaded not guilty. A trial took place. The appellant has not lodged a transcript of the trial, but it appears that it took place on 15 June 2016 before Magistrate Potter. His Honour reserved his decision, which he delivered on 14 July 2016. He found the appellant guilty of the charge.
3 The learned magistrate fined the appellant $2,500 and awarded costs of $5,000 to the respondent.
4 By an appeal notice lodged on 5 August 2016 the appellant purported to appeal to the Court of Appeal against the learned magistrate's decision. The appeal must be to a single judge of this court - s 13(1) Criminal Appeals Act 2004 (WA). The Supreme Court registry treated the appeal as an appeal to a single judge.
5 The notice of appeal does not specify whether the appeal is an appeal against conviction or an appeal against sentence or both. It says only that the appellant 'applies to the Court of Appeal for leave to appeal against the above decision'. The draft grounds of appeal are:
1. The Magistrate was wrong in law when he claimed to have Authority over Donald Thomas Backshall and that he sat in a lawful court.
2. The Magistrate was wrong in law when he decided his company gathering was a lawful court contrary to HCA 29 of 2009 paragraph 18.
3. The Magistrate was wrong in law when he decided that the trading company, the City of Greater Geraldton ABN 55907677173 could and did have authority over me and my land when they did not have a wet ink contract that complies with the 2001 Corporation Act (Cth) and the Australian Securities and Investment Act 2001 (Cth).
4. The Magistrate was wrong in law when he decided a decision of the Tax Department did not prove that the Councils are Trading Companies.
5. The Magistrate was wrong in law when he decided that the Trading Company, the State Government of Western Australia ABN 072526008 and all of its subsidiary trading companies had any authority in law when every man, woman, child, courts and judges are subject to the Commonwealth Constitution and all laws made pursuant to it.
6. The Magistrate was wrong in law when he showed complete bias towards me and in doing so committed fraud on me and the lawful courts authorised by the Commonwealth Constitution Act UK 1900 and the Commonwealth Constitution 1901.
6 The appellant has lodged a service certificate certifying that he served the respondent with a copy of the appeal notice on 1 August 2016. The respondent has not filed a notice of respondent's intention.
7 On 12 October 2016 my Associate wrote to the appellant informing him that his appeal was listed for hearing today for the purpose of determining whether leave to appeal should be granted.
8 Section 9 of the Criminal Appeals Act provides:
(1) The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.
(2) After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3) Unless the Supreme Court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
9 Section 14(1)(d) of the Criminal Appeals Act enables a single judge of the court to hear and decide any application made during the appeal in the absence of any party other than the applicant. This hearing is to hear and decide the appellant's application for leave to appeal.
10 Grounds of appeal 1 - 5 are vexatious and have no basis in law. It is well settled that the Magistrates Court has authority to determine cases brought before it under Western Australian statutes: Hedley v Spivey [2012] WASCA 116 and the cases referred to in that decision by McLure P.
11 At the hearing today I asked the appellant how the learned magistrate had showed bias towards him as alleged in ground of appeal 6. He said that the magistrate was biased because he was paid by the same paymaster as the council and both are servants of a trading corporation.
12 An allegation of actual bias has to be judged by the state of mind of the judge in question, and that has to be done, for the most part, on the basis of what the judge has said or done: Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33].
13 An allegation of a reasonable apprehension of bias is to be determined by the test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [33].
14 There is no substance to the allegation of bias. The allegation of bias is not based on anything that the learned magistrate said or did. There is also no basis for any allegation of apprehended bias. A fair minded lay observer would not reasonably apprehend that the learned magistrate might not bring an impartial and unprejudiced mind to the case. The appellant has no prospect of succeeding on that ground, nor on any of the other grounds of appeal.
15 After hearing from the appellant I informed the appellant that his grounds of appeal were inadequate and I enquired whether he wished to apply to amend them. I said that I would give him a reasonable time to do so. He said that he did not wish to amend his grounds of appeal. He said that I do not exist.
16 As none of the grounds of appeal have any reasonable prospect of succeeding leave to appeal is refused and the appeal is dismissed.
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