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Bhalsod v Perrie

Bhalsod v Perrie

Case [2018] WASCA 108 29 June 2018

Appeal

Breach of Contract

Criminal Liability

Admissibility of Evidence

Expert Evidence

Criminal Law

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BHALSOD -v- PERRIE [2018] WASCA 108
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   21 NOVEMBER 2017
DELIVERED          :   29 JUNE 2018
FILE NO/S:   CACR 23 of 2017
BETWEEN:   KELVIN BHALSOD
Appellant
AND
JAMES PERRIE
Respondent

FILE NO/S: CACR 209 of 2017
BETWEEN: SUKHWINDER SINGH
Appellant
AND
JAMES PERRIE
Respondent

ON APPEAL FROM:
For File No:   CACR 23 of 2017
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LE MIERE J
Citation: BHALSOD -v- PERRIE [2016] WASC 412
File Number            :   SJA 1051 of 2016
For File No:   CACR 209 of 2017
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE VRIES
File Number            :   PE 19477 of 2015
PE 19478 of 2015

Catchwords:

Criminal law - Criminal procedure - Appeals against conviction - Failing to comply with a lawful direction of an authorised person exercising powers conferred by the Taxi Act 1994 (WA) - Operating a motor vehicle as a taxi within a controlled area without the use of taxi plates - Power of an authorised officer under the Taxi Act to commence a prosecution - Proper construction of s 20 of the Criminal Procedure Act 2004 (WA) - Whether respondent acted in the course of his duties in commencing the prosecutions - Presumption of regularity - Proper construction of s 32(7) of the Taxi Act - Whether a notice to produce given by an authorised officer under s 32(7) of the Taxi Act was valid - The principle of legality - Common law privilege against self-incrimination

Legislation:

Criminal Procedure Act 2004 (WA), s 3(1), s 20, s 23, s 178
Interpretation Act 1984 (WA), s 5, s 8, s 9, s 12
Public Sector Management Act 1994 (WA), s 3(1), s 34, s 35
Taxi Act 1994 (WA), s 3(1), s 6(2), s 15, s 20, s 31, s 32

Result:

CACR 23 of 2017
Leave to appeal on ground 2 refused
Appeal dismissed

CACR 209 of 2017
Leave to appeal on ground 2 refused
Appeal dismissed

Category: A

Representation:

CACR 23 of 2017

Counsel:

Appellant	:	Mr J W K Burnside QC & Mr P J Haag
Respondent	:	Mr G T W Tannin SC & Mr D M Harrop

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	State Solicitor's Office

CACR 209 of 2017

Counsel:

Appellant	:	Mr J W K Burnside QC & Mr P J Haag
Respondent	:	Mr G T W Tannin SC & Mr D M Harrop

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	State Solicitor's Office

Case(s) referred to in judgment(s):

A v Maughan [2016] WASCA 128; (2016) 50 WAR 263
AB Oxford Cold Storage Co Pty Ltd v Arnott [2005] VSCA 111; (2005) 11 VR 298
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Bhalsod v Perrie [2016] WASC 412
Cassell v The Queen [2000] HCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhalsod v Perrie

Details

AGLC: Bhalsod v Perrie [2018] WASCA 108
Case: [2018] WASCA 108
Decision Date: 29 JUNE 2018

CaseChat Overview and Summary

The appellant, Bhalsod, appealed against his conviction for operating a motor vehicle as a taxi within a controlled area without the use of taxi plates, contrary to section 18(1) of the Taxi Act 1994 (WA). The respondent, Perrie, was an authorised officer of the Department of Transport who commenced the prosecution. The appellant argued that the respondent did not act in the course of his duties, and that the notice to produce given by the respondent under section 32(7) of the Taxi Act was invalid. The case was heard in the Court of Appeal, which considered whether the respondent acted in the course of his duties in commencing the prosecutions and whether the notice to produce was valid.

The court first considered whether the respondent acted in the course of his duties in commencing the prosecutions. The court noted that section 20 of the Criminal Procedure Act 2004 (WA) provided that an authorised officer could commence a prosecution for an offence against the Taxi Act if the officer believed the offence had been committed. The court held that the respondent acted in the course of his duties in commencing the prosecution, as the respondent was authorised to do so under the Taxi Act. The court also noted that there was a presumption of regularity, which meant that the respondent's actions were presumed to be regular unless proven otherwise.

The court then considered whether the notice to produce given by the respondent was valid. The court noted that section 32(7) of the Taxi Act provided that an authorised officer could give a notice to produce to a person who they believed had committed an offence against the Taxi Act. The court held that the notice to produce was valid, as it was given in accordance with the requirements of the Taxi Act. The court also noted that the principle of legality required that the notice to produce be interpreted strictly, and that the common law privilege against self-incrimination did not apply in this context.

The court dismissed the appeal and upheld the conviction. The court held that the respondent acted in the course of his duties in commencing the prosecution, and that the notice to produce was valid. The court also noted that the appellant had not raised any other grounds for appeal.

Orders