Bhalsod v Perrie

[2018] WASCA 108

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 8; (2000) 201 CLR 189

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commissioner of Taxation v De Vonk [1995] FCA 1715; (1995) 61 FCR 564

Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306

Director of Public Prosecutions v Sher [2000] VSC 268

Duncan v Demir [2009] VSC 37; (2009) 219 A Crim R 1

Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477

Herscu v The Queen [1991] HCA 40; (1991) 173 CLR 276

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216

Martin v Nalder [2016] WASC 138

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Morris v Kanssen [1946] AC 459

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223

Pearson v Rizos [2008] SASC 98

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328

R v Brewer [1942] HCA 33; (1942) 66 CLR 535

R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459

Sher v Director of Public Prosecutions [2001] VSCA 110; (2001) 120 A Crim R 585

Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1

X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156

Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1

TABLE OF CONTENTS

Buss P's judgment.................................................................................................................. 6

The relevant provisions of the Taxi Act

The relevant provisions of the Criminal Procedure Act

Mr Bhalsod's trial before Magistrate Heeney and his Honour's reasons for convicting Mr Bhalsod

The reasons of the primary judge for dismissing Mr Bhalsod's appeal

Mr Bhalsod's grounds of appeal

Mr Singh's trial before Magistrate De Vries and his Honour's reasons for convicting Mr Singh

Mr Singh's grounds of appeal

The issues to be determined by this court in Mr Bhalsod's appeal and Mr Singh's appeal

The first point:  was Mr Perrie authorised to issue and sign a prosecution notice in the prosecution of Mr Bhalsod and Mr Singh?:  Mr Bhalsod's and Mr Singh's submissions

The first point:  was Mr Perrie authorised to issue and sign a prosecution notice in the prosecution of Mr Bhalsod and Mr Singh?:  the determination of the point

The second point: if Mr Perrie was not authorised to issue or sign a prosecution notice in the prosecution of Mr Bhalsod, was the prosecution notice capable of being corrected under s 178 of the Criminal Procedure Act?:  Mr Bhalsod's submissions

The second point: if Mr Perrie was not authorised to issue or sign a prosecution notice in the prosecution of Mr Bhalsod, was the prosecution notice capable of being corrected under s 178 of the Criminal Procedure Act?:  the determination of the point

The third point: was the notice to produce served on Mr Bhalsod invalid because it was not authorised by s 32(7) of the Taxi Act?:  Mr Bhalsod's submissions

The third point: was the notice to produce served on Mr Bhalsod invalid because it was not authorised by s 32(7) of the Taxi Act?:  the determination of the point

Conclusion

Mazza JA's judgment

Beech JA's judgment

BUSS P:

1. The appellant in CACR 23 of 2017 (Mr Bhalsod) was convicted in the Magistrates Court of Western Australia of the offence of failing to comply with a lawful direction of the respondent (Mr Perrie), an authorised person exercising powers conferred by the Taxi Act 1994 (WA), contrary to s 32(8)(a) of the Taxi Act. Mr Bhalsod pleaded not guilty to the charge. After a trial before Magistrate Heaney he was convicted. His Honour found that Mr Bhalsod had failed to comply with a lawful direction of Mr Perrie under s 32(7) of the Taxi Act that required Mr Bhalsod to produce all of the documents specified in a notice to produce.

2. Mr Bhalsod made an application in the General Division of the Supreme Court for leave to appeal against his conviction. His application raised, relevantly, two questions. First, was the notice to produce a lawful direction under s 32(7) of the Taxi Act?  Secondly, was Mr Perrie authorised to prosecute Mr Bhalsod for failing to comply with the notice to produce?

3. Le Miere J (the primary judge) held that the notice to produce was a lawful requirement under s 32(7) of the Taxi Act. His Honour also held that Mr Perrie was authorised to prosecute Mr Bhalsod for failing to comply with the notice to produce and, in any event, s 178(2) of the Criminal Procedure Act 2004 (WA) required that the question be resolved against Mr Bhalsod. His Honour dismissed Mr Bhalsod's appeal.

4. Mr Bhalsod has now applied for leave to appeal to this court against the primary judge's decision.

5. The appellant in CACR 209 of 2017 (Mr Singh) was convicted in the Magistrates Court of two offences. The prosecution notice alleged in relation to each charge that Mr Singh was the owner of a motor vehicle which was operated as a taxi within a control area without the use of taxi plates, contrary to s 15 of the Taxi Act. Mr Singh pleaded not guilty to the charges. At the trial, before the prosecutor opened his case, Mr Singh objected to the Magistrates Court's jurisdiction to hear and determine the charges on the basis that Mr Perrie had not been authorised to commence the prosecution. Magistrate De Vries dismissed the objection. His Honour held that s 20 of the Criminal Procedure Act authorised Mr Perrie to commence the prosecution even though the Taxi Act did not expressly confer authority upon him or anyone else to commence a prosecution.  After the magistrate made his ruling, Mr Singh pleaded guilty to each charge.  He was convicted of both offences.

6. Mr Singh made an application in the General Division of the Supreme Court for leave to appeal against his convictions.  His application raised, as an issue, whether Mr Perrie was authorised to prosecute Mr Singh.

7. On 5 October 2017, Martino J ordered, pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA), that Mr Singh's appeal be dealt with by this court.

8. On 21 November 2017, Mr Bhalsod's appeal and Mr Singh's appeal were heard together by this court.

9. I would dismiss both appeals.  My reasons are as follows.

The relevant provisions of the Taxi Act

1. At the material time the relevant provisions of the Taxi Act were as follows.

2. Section 15 provided, relevantly:

   (1)A vehicle may not be operated as a taxi within a control area unless that vehicle is operated ‑ 

   (a)using taxi plates; and

   (b)in accordance with this Act.

   (2)Where a vehicle is operated as a taxi contrary to subsection (1) an offence is committed by ‑ 

   (a)the owner of the vehicle; and

   (b)the driver of the vehicle; and

   (c)the operator of the vehicle as a taxi; and

   (d)the provider of the taxi dispatch service involved, if any,

   and where the vehicle is owned or operated by more than one person each of those persons commits an offence.

3. Section 20(1)(a) provided that the Director General (being the chief executive officer of the department of the Public Service of the State principally assisting the Minister with the administration of the Taxi Act) may impose conditions on the operation of a taxi using specified taxi plates in relation to the area in which, and the hours during which the taxi may be operated and the hours during which the taxi must be operated.

4. Section 31 provided that the Director General may 'designate any officer of the Department as an authorised officer, and may otherwise appoint as many authorised officers as he or she considers necessary for the purposes of this Act'.

5. Section 32 provided, relevantly:

   (1)For the purpose of exercising his or her powers under this section an authorised officer may enter a taxi.

   (2)Where an authorised officer has reason to believe that a vehicle is being operated as a taxi he or she may ‑ 

   (a)stop the vehicle; and

   (b)direct the driver to produce for his or her inspection the appropriate driver’s licence issued under the Road Traffic Act 1974; and

   (c)direct any person to alight from, or not to enter, the vehicle; and

   (d)require information or documentation as to the use of the vehicle from the driver or any hirer or passenger, and require any such person to state his or her name and address; and

   (e)inspect the vehicle.

   (3)An authorised officer may require a plate holder, an operator or the provider of a taxi dispatch service to produce any records, books or documents relating to ‑ 

   (a)the operation of a vehicle as a taxi; or

   (b)any bonds referred to in section 36; or

   (c)the taxi dispatch service,

   and may take copies of, or extracts from, anything so produced.

   … 

   (7)Where an authorised officer has reason to believe that a person is operating a vehicle as a taxi other than in accordance with this Act or the regulations or any conditions imposed under section 20(1), he or she may require that person to answer any questions or provide any information, and to produce any records, books, documents or vehicles.

   (8)A person shall not ‑ 

   (a)disobey or fail to comply with a lawful direction or requirement of; or

   (b)furnish false information, or use improper or abusive language to, or wilfully hinder or obstruct, mislead, intimidate or threaten,

   an authorised officer exercising the powers conferred by this Act.

   Penalty:  $1 000.

6. By s 3(1), in the Taxi Act, unless the contrary intention appears:

   authorised officer means ‑ 

   (a)an officer designated or appointed under section 31; or

   (b)a member of the Police Force;

   … 

   operate means ‑ 

   (a)to drive a vehicle as a taxi; or

   (b)to own or lease taxi plates; or

   (c)to cause another person to drive a vehicle as a taxi by providing to the person ‑ 

   (i)the vehicle, under a lease or otherwise; and

   (ii)taxi plates for use on or in the vehicle, under a plate owner's lease or otherwise;

   operator means a person who operates a vehicle as a taxi;

   plate holder means the owner or lessee of taxi plates;

   plate owner's lease means the right acquired from the owner of taxi plates to use the plates for a specified period of time;

   … 

   taxi means a vehicle which is used for the purpose of standing or plying for hire, or otherwise for the carrying of passengers for reward, but does not include an omnibus licensed under the Transport Co-ordination Act 1966 or a vehicle of a class declared by the Director General under subsection (2) not to be a taxi;

   … 

   taxi plates means a set of taxi number plates issued under section 18 or 30I(2)(b);

   use as applied to taxi plates means to display, or to cause or permit another person to display, taxi plates on or in a vehicle.

The relevant provisions of the Criminal Procedure Act

1. At the material time the relevant provisions of the Criminal Procedure Act were as follows.

2. Section 20 of the Criminal Procedure Act provided, relevantly:

   (1)In this section, unless the contrary intention appears ‑ 

   authorised person in relation to an offence, means ‑ 

   (a)if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or

   (b)in any other case, a person ‑ 

   (i)who is a public authority or an employee of a public authority; or

   (ii)who is authorised in writing by a public authority to commence a prosecution for the offence.

   (2)If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.

   (3)Subject to subsection (2), a prosecution for an offence may be commenced by, and only by ‑ 

   (a)one of the following acting in the course of his or her duties ‑ 

   (i)an authorised person in relation to the offence;

   (ii)a person referred to in section 80(2)(a) to (e);

   (iii)a police officer;

   or

   (b)a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.

3. Section 23 provided, relevantly:

   (2)A prosecution notice must ‑ 

   (a)be in writing in a prescribed form; and

   (b)comply with Schedule 1 Division 2; and

   (c)contain any information prescribed; and

   (d)be signed in accordance with subsection (3) and, if necessary, subsection (4).

   (3)A prosecution notice must ‑ 

   (a)if the prosecution is being commenced by an authorised investigator, either ‑ 

   (i)be signed by the investigator alone; or

   (ii)be signed by the investigator in the presence of either a JP or a prescribed court officer;

   (b)in any other case ‑ be signed by the person who is commencing the prosecution in the presence of either a JP or a prescribed court officer.

   (4)If a prosecution notice is signed in the presence of a JP or a prescribed court officer, the JP or officer must also sign the notice.

4. Section 178 provided, relevantly:

   (1)In this section, unless the contrary intention appears ‑ 

   court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.

   (2)Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor’s opening address.

   (3)If a court document is defective in substance or form, the court, on an application by a party or on its own initiative ‑ 

   (a)must order that the document be corrected if the defect is not material to the merits of the case;

   (b)may order that the document be corrected in any other case.

   (4)If a court makes an order under this section ‑ 

   (a)the court document must be amended accordingly by the court or some person ordered to do so by the court; and

   (b)each party is entitled to a copy of the amended court document; and

   (c)the court may adjourn the case.

5. By s 3(1), in the Act, unless the contrary intention appears:

   prosecution means proceedings in a court that allege a person has committed an offence and that are taken for the purpose of having the person tried for the offence;

   prosecution notice means a document that contains one or more charges, complied with section 23(2), and is lodged with a court of summary jurisdiction.

Mr Bhalsod's trial before Magistrate Heeney and his Honour's reasons for convicting Mr Bhalsod

1. The following account of the facts and circumstances culminating in the commencement of the prosecution of Mr Bhalsod is taken from the primary judge's reasons for dismissing Mr Bhalsod's appeal.  See Bhalsod v Perrie.[1]

   [1] Bhalsod v Perrie [2016] WASC 412 [4] - [11].

2. Mr Perrie is a senior compliance officer with On‑demand Transport, a unit within the Department of Transport which deals with on‑demand transport such as taxis and buses.

3. On 6 November 2014, Allen Lantzke, Manager Education and Compliance Passenger Services within the Department of Transport, forwarded to Mr Perrie an email sent by Milos Miljus to Mr Lantzke on 6 November 2014.  The email stated, amongst other things:

   I am sending you four receipts of Uber rides I took on 3/11/2014.  I am taxi driver myself … and I was told that Uber is illegal here in WA …

   The email attached a photograph of Mr Bhalsod's car and an 'Uber' receipt which included the driver's photograph and the words 'you rode with Kelvin'.

4. Mr Perrie then searched the Department's computerised Transport Executive Licensing Information System (TRELIS) to identify the owner of the vehicle. Mr Perrie ascertained from TRELIS that the vehicle was owned by Mr Bhalsod and had been transferred to him on 31 October 2014. Mr Perrie also ascertained from TRELIS that Mr Bhalsod held a driver's licence with an F extension which was issued on 24 February 2012. An F extension allows the licence holder to drive a vehicle carrying passengers for hire or reward. Mr Perrie also ascertained from TRELIS that on 31 October 2014 the class of insurance on Mr Bhalsod's vehicle changed to 3G. Mr Perrie gave evidence that 3G is the class of insurance applying to vehicles carrying fare paying passengers. Mr Perrie understood that Uber required their drivers to have at least an F extension on their licence and that their vehicles have class 3G insurance. After carrying out those investigations Mr Perrie formed a strong opinion that Mr Bhalsod's vehicle was being used as a taxi in breach of s 15 of the Taxi Act.

5. Section 15(1) of the Taxi Act provides that a vehicle may not be operated as a taxi when in a control area unless the vehicle is operated using taxi plates and in accordance with the Act. Mr Miljus said the ride he was given by Mr Bhalsod was within the control area. Section 15(2) provides that where a vehicle is operated as a taxi contrary to s 15(1) an offence is committed by the owner of the vehicle, the driver of the vehicle, the operator of the vehicle as a taxi and the provider of the taxi dispatch service involved, if any. The word 'taxi' is defined in s 3(1) of the Taxi Act to mean, subject to exceptions not relevant, a vehicle which is used for the purpose of standing or plying for hire, or otherwise for the carrying of passengers for reward.

1. Mr Perrie said that although he had a strong opinion that Mr Bhalsod's vehicle was being used as a taxi without taxi plates, he needed to prove the element of reward and that the driver had received reward for carrying the passenger.  Mr Perrie said the only way he could get that information was from the driver of the vehicle and he therefore drafted a notice to produce.  He signed the notice and sent it to Mr Bhalsod on 15 December 2014.

2. The notice to produce is in tabular form. Its title consists of the words 'Department of Transport Taxi Act 1994 (WA) ‑ Section 32(7)' and 'Notice to Produce'. It is addressed to Mr Bhalsod. It includes the following boxes: (emphasis added)

Investigation or inquiry

An investigation into whether a person has been operating a vehicle as a taxi otherwise than in accordance with the Taxi Act 1994 (WA), the regulations or any condition imposed under section 20(1) of the Act.

Command

You are required to produce the records, books or documents described below on or before the date and time, and using one of the methods of production specified below.

Records, books or documents to be produced

You must produce to the below named inspector all records, books or documents showing (in whole or in part), for the period 1 June 2014 to the date of this Notice:

(1) any correspondence between you and Uber, or any person associated with Uber, including but not limited to text messages or any emails to or from the email [email protected];

(2) any records of payment you have received for carrying people in your vehicle, including but not limited to payment statements issued by Uber, bank statements containing any payment from Uber, and any other records of trips taken with passengers who have used the Uber app;

(3) any contracts or agreements between you and Uber;

(4) any other documents related to carrying passengers in your vehicle for reward; and

(5) any documents relating to promotions or incentives being offered by Uber to you and/or people using the Uber smartphone application.

In relation to (1) above, you may comply by providing print outs of correspondence, or alternatively by presenting for inspection any electronic device provided to you by Uber.

In this Notice, a reference to 'Uber' means the entity or entities which operate under the name Uber, purport to represent Uber, or co‑ordinate the 'Uber Black' and 'Uber X' services

1. The notice states that the records, books or documents were to be produced by 5 January 2015 at the office of the Department in person or by post or by email. The notice states that it was issued by 'an authorised officer designated under section 31 of the Taxi Act 1994 (WA)' and is signed by Mr Perrie and dated 15 December 2014.

2. On 31 December 2014, a solicitor acting for a number of clients, including Mr Bhalsod, wrote to Mr Lantzke.  The solicitor sought an extension of time to 4 February 2015 for Mr Bhalsod, and other clients, to respond to the notice to produce.  On 2 January 2015, the Legal and Legislative Services Director, Corporate Services, of the Department of Transport informed the solicitor by email that an extension of time was granted for his clients to respond to the notices to produce by 4 February 2015.  By a letter dated 4 February 2015 to Mr Perrie, the solicitor said that he had been advised by his client, Mr Bhalsod, that compliance with the notice to produce might tend to incriminate him and that he was protected by legal privilege and that he would not provide the materials requested.

3. Mr Perrie then commenced the prosecution against Mr Bhalsod in the Magistrates Court.  The prosecution notice states that Mr Bhalsod is charged that he failed to comply with a lawful direction of Mr Perrie, an authorised person exercising powers conferred by the Taxi Act, contrary to s 32(8)(a) of the Act. The prosecution notice was issued by Mr Perrie and states that the prosecutor is the Department of Transport.

4. At the trial before Magistrate Heeney, both the prosecutor and Mr Bhalsod were represented by counsel.  Mr Perrie was the only witness.  He gave evidence‑in‑chief and was cross‑examined.

5. At the trial before his Honour a number of documents were tendered, including:

   (a)the notice to produce;

   (b)a certificate of appointment, designating Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act, dated 20 June 2011 and signed by Peter Ryan as the delegate of the Director General; and

   (c)an instrument of delegation dated 31 March 2011 and signed by the Director General.

6. The certificate of appointment dated 20 June 2011 provides, relevantly:

   For the Certificate of Appointment:

   Designation of Authorised Officer under section 31 Taxi Act 1994

   I designate James Perrie to be an authorised officer pursuant to section 31 of the Taxi Act 1994 to carry out powers of authorised officer under the act.

   Peter Ryan
   General Manager
   Passenger Services Business Unit
   Delegate of the Director General

7. The instrument of delegation dated 31 March 2011 provides, relevantly:

   Pursuant to section 6(2) of the Taxi Act 1994 (the Act), I Reece Waldock, Director General of the Department of Transport (the Department), hereby delegate the powers and duties of the Director General under the Act as set out in columns 1 and 2 of the attached Schedule to the person or persons holding or acting in the office or offices within the Department listed by position number in column 3 and described by position title in column 4 of that Schedules [sic] in relation to each power or duty.

   … 

   Schedule

   … 

Col 1 Clause	Column 2 Description	Column 3 Position No	Column 4 Position description
S.30I	Restricted hours taxi plates may be exchanged for conventional taxi plates	14025 14111 14387 14388 14231 14294	- Managing Director - Passenger Services   General Manager - Client Services Coordinator - Senior Policy and Projects Officer - Senior Policy and Projects Officer - Senior Policy and Projects Officer
S.31	Authorised officers	14025 14111	- Managing Director - Passenger Services  General Manager
S.39(4)	Infringement notices - extend time to pay	14025	- Managing Director
14111	- Passenger Services General Manager
14297	- Compliance coordinator
S.39(6)	Infringement notices - withdraw	14025	- Managing Director
14111	- Passenger Services General Manager
14297	- Compliance coordinator
S39(10)	Issue certificates to authorised officers	14025 14111	- Managing Director - Passenger Services General Manager

1. His Honour made the following findings:

   (a)Mr Bhalsod had failed to comply with Mr Perrie's directions.

   (b)The factual aspects of Mr Perrie's evidence were not disputed or contradicted.

   (c)There was no dispute that Mr Perrie was an authorised officer pursuant to s 32(7) of the Taxi Act.

   (d)Mr Perrie had overwhelming reason to believe that a person was operating a vehicle other than in accordance with the Taxi Act based on the email of 6 November 2014 from Mr Miljus to Mr Lantzke and Mr Perrie's subsequent investigations in relation to that email.

   (e)Section 32(7) of the Taxi Act confers on an authorised officer extremely wide powers to require any person to answer any questions, to provide any information and to produce any records, books, documents or vehicles.

   (f)Mr Perrie's notice to produce complied with s 32(7).

   (g)There was no dispute that Mr Bhalsod had failed to comply with an authorised officer's lawful direction or requirement.

   (h)Each and every element of the charged offence against Mr Bhalsod had been proved beyond reasonable doubt and Mr Bhalsod was therefore guilty of the offence.

   (i)Mr Perrie operated within the scope of his authority as an authorised officer under the Taxi Act and in accordance with the provisions of the Act.

The reasons of the primary judge for dismissing Mr Bhalsod's appeal

1. The primary judge found that the directions or requirements contained in the notice to produce were lawful directions or requirements for the purposes of s 32(8) of the Taxi Act. In particular:

   (a)His Honour held that s 32(7) of the Taxi Act abrogated the common law privilege against self‑incrimination. His Honour rejected the contention made on Mr Bhalsod's behalf that s 32(7) abrogates the privilege only if the person is 'found operating' a vehicle as a taxi in circumstances which give rise to a reasonable belief that the person's actions constitute a breach of the Act or the Regulations [26].

   (b)His Honour rejected the contention made on Mr Bhalsod's behalf that the power conferred by s 32(7) has a temporal connection with driving a vehicle as a taxi, so that the power to require a person to answer questions, provide information or produce documents may only be exercised at or about the time the person is driving a vehicle as a taxi [27] ‑ [30].

   (c)His Honour said that the power to require a person to answer questions, provide information or produce documents must, however, be exercised for the purpose for which the power is conferred [31].

   (d)His Honour rejected the contention made on Mr Bhalsod's behalf that the nature of the documents required to be produced under the notice to produce and the fact that those documents related to the period from 1 June 2014 to the date of the notice gave rise to the inference that the authorised officer was 'not asking about that driving at all, but wanting information about Uber' [33]. His Honour said that the information requested was relevant to the investigation or the gathering of the evidence in relation to Mr Bhalsod operating a vehicle as a taxi other than in accordance with the Act or the Regulations. The challenge to the notice to produce, on the basis that it was used for the purpose of investigating Uber, failed [33].

   (e)His Honour rejected the contention made on Mr Bhalsod's behalf that the power conferred by s 32(7) is confined to demanding materials directly related to the relevant conduct. His Honour said that the documents which Mr Perrie required Mr Bhalsod to produce were sufficiently related to Mr Bhalsod's conduct giving Mr Perrie reason to believe that Mr Bhalsod was operating a vehicle as a taxi other than in accordance with the Act or the Regulations [35] ‑ [42].

   (f)His Honour concluded that the requirement to produce documents pursuant to the notice to produce was within the scope of s 32(7) and involved a proper exercise of the power conferred by that provision [42].

2. The primary judge found that Mr Perrie was authorised to commence the prosecution in the course of his duties.  In particular:

   (a)His Honour noted that neither the Taxi Act nor any other written law limits who may commence a prosecution for an offence against s 32(8) of the Taxi Act. Mr Perrie was not appointed under s 182 of the Criminal Procedure Act to prosecute offences. It was common ground that Mr Perrie was an 'authorised person' as defined in s 20(1)(b)(i) of the Criminal Procedure Act. Accordingly, the critical question was whether Mr Perrie was 'acting in the course of his … duties' within s 20(3)(a)(i) of the Criminal Procedure Act in commencing the prosecution against Mr Bhalsod [45].

   (b)His Honour said that the question of Mr Perrie's status as a person with the authority to commence a prosecution for an offence against s 32(8) was separate and distinct from the elements of the offence. Mr Perrie's authority to prosecute was a prerequisite to commencing a prosecution for the offence, but it was not an element of the offence charged. Although the elements of the offence must be proved beyond reasonable doubt, Mr Perrie's authority to commence the prosecution need only be proved on the balance of probabilities [52].

   (c)His Honour observed that the evidence in relation to whether Mr Perrie was acting in the course of his duties in commencing the prosecution was limited.  The evidence was to the following effect:

   Mr Perrie was a senior compliance officer with the Department's On‑demand Transport Unit.  That unit dealt predominantly with on demand transport services such as taxis and omnibuses.  The senior compliance officer is responsible for the licensing issues in regards to passenger vehicles.  They do reviews on vehicles that hold licences to carry passengers for hire or reward such as taxis, small charter vehicles, tour and charter vehicles.  Mr Perrie investigated complaints that were received.

   An instrument of delegation and a certificate of appointment were also received in evidence. Section 6(2) of the Taxi Act provides that the Director General may by an instrument of delegation delegate to an officer of the Department any of the powers or duties of the Director General under the Act, other than the power of delegation. The Director General executed an instrument of delegation by which he delegated, amongst other things, the powers and duties of the Director General under s 31 of the Taxi Act to the passenger services general manager. Section 31 of the Taxi Act provides that the Director General may designate any officer of the Department as an authorised officer. The General Manager Passenger Services by a certificate of appointment designated Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act to carry out powers of an authorised officer under the Act. The powers of authorised officers under the Taxi Act include the powers of authorised officers under s 32. However, s 32 does not expressly provide that an authorised officer may commence a prosecution for an offence contrary to s 32(8).

   The magistrate also had before him the prosecution notice.  The respondent submits that by issuing the prosecution notice in his name Mr Perrie asserted that he was authorised to commence the prosecution.  The prosecution notice states that the prosecutor is the Department of Transport and that the person issuing the notice is Mr Perrie and his official title is Acting Team Leader.  That is an implied assertion by Mr Perrie that in issuing the prosecution notice he was acting in the course of his duties with the Department of Transport.

   Mr Perrie gave evidence that on numerous occasions he sought legal advice on the contents and form of the Notice to Produce before it was sent. The Legal and Legislative Services Director Corporate Services of the Department of Transport wrote to the appellant's solicitor in response to correspondence about the Notice to Produce [53] ‑­ [56].

   (d)His Honour held that the presumption of regularity applied and it was to be presumed, in the absence of evidence to the contrary, that Mr Perrie was acting in the course of his duties when he commenced the prosecution. His Honour added that the 'rule of presumption [did] little more than reflect the probative value of the evidence that Mr Perrie was acting in the course of his duties' [60]. His Honour then said:

   There are many judicial statements concerning the amount of evidence required to rebut the presumption.  It is not necessary to explore that matter.  In this case, there is no evidence to the contrary.  The appellant suggests that the Certificate of Appointment adduced in evidence limited Mr Perrie's powers to those of an authorised officer under the Taxi Act which do not include the power to commence prosecutions. The Certificate of Appointment designates Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act.  It does not limit his powers in any way.  It gives rise to no inference that his duties do not include the commencement of prosecutions.

   Mr Perrie gave evidence.  He was cross examined about the drafting and sending of the Notice to Produce.  He was not cross‑examined about his authority to commence the prosecution.  The question of whether Mr Perrie had authority to commence the prosecution was not raised by the appellant until the closing address of counsel for the appellant.

   On the whole of the evidence it is to be inferred that Mr Perrie commenced the prosecution acting in the course of his duties [61] ‑ [63].

Mr Bhalsod's grounds of appeal

1. Mr Bhalsod relies on two grounds of appeal.

2. Ground 1 alleges, in essence, that the primary judge erred in finding that the directions or requirements contained in the notice to produce were lawful directions or requirements, for the purposes of s 32(8) of the Taxi Act, in that:

   (a)the preconditions for the exercise of power under s 32(7) of the Taxi Act were not satisfied; and

   (b)there was an insufficient connection between the directions or requirements contained in the notice to produce, on the one hand, and the alleged conduct giving rise to the belief that Mr Bhalsod was operating his motor vehicle as a taxi, contrary to s 15(1) of the Taxi Act, on the other.

3. Ground 2 alleges, in essence, that the primary judge erred in finding that Mr Perrie was authorised to commence the prosecution in the course of his duties.

4. On 1 April 2017, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

Mr Singh's trial before Magistrate De Vries and his Honour's reasons for convicting Mr Singh

1. Mr Singh's trial in the Magistrates Court was listed to begin on 19 June 2017.

2. Prior to the prosecutor's opening address, defence counsel for Mr Singh submitted that the Magistrates Court had no jurisdiction to hear the charges brought against Mr Singh because the prosecution had not been lawfully instituted.  Defence counsel argued that Mr Perrie, who commenced the prosecution, was not authorised to do so, nor did his duties extend to the commencement of the prosecution.

3. The prosecution notice states that the prosecutor is the Department of Transport and that the person issuing the notice is Mr Perrie and his official title is Acting Team Leader.

4. At the hearing before Magistrate De Vries on the issue raised by defence counsel for Mr Singh, four documents were tendered by consent.

5. The first document was the certificate of appointment dated 20 June 2011, designating Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act, which I have set out at [33] above.

6. The second document was the instrument of delegation dated 31 March 2011, which I have set out at [34] above.

7. The third document was a written statement dated 14 August 2015 made by Mr Perrie.  The document reads, relevantly:

   1.I am employed by the Department of Transport (Department) as a Senior Compliance Officer and Acting Team Leader within On‑demand Transport section (previously known as Passenger Services Business Unit).

   2.I have been employed in this role for 4 years.  Prior to working in this role, I worked as a Research Officer and Intelligence Analyst for the Western Australia Police for 4 years.

   … 

   4.As a Senior Compliance Officer and Acting Team Leader I am responsible for conducting enquiries into alleged breaches of the Taxi Act 1994 (WA) (Act), the Transport Coordination Act 1966 (WA) and any subsidiary legislation relating to the operation of vehicles as a taxis or omnibuses.

   5.I am appointed as an authorised officer (No: 629) under section 31 of the Act.

8. The fourth document was a job description form for a senior compliance officer within the Department of Transport.  The document reads, relevantly:

   DEPARTMENT OF TRANSPORT

   360.20786.1; SENIOR COMPLIANCE OFFICER

   POSITION DETAILS

   Classification/Level     Level 3

   Award/Agreement       PSA

   Org Unit360.Compliance

   Physical Location        East Perth

   REPORTING RELATIONSHIPS

   Number of Positions Supervised         0

   SUPERVISOR

   Position Number  360.14297.1

   Position Title  Compliance Coordinator

   Classification/Level  Level 5

   KEY WORK DESCRIPTION

   This section provides a brief summary of the key functions of the position

   Undertakes investigation and assessments of a complex nature relating to compliance with legislation and standards administered by the Passenger Services Business Unit.

   Inspects and reports on vehicles, equipment and record keeping standards compliance in accordance with relevant legislation and the Omnibus Operator Standards Scheme.

   Administers the penalty and prosecution processes with regard to contraventions of legislation.

   Undertakes practical assessment of prospective taxi drivers.

   … 

   DUTIES

   INVESTIGATIONS & COMPLIANCE

   Undertakes investigation and assessments of a complex nature relating to compliance with legislation and standards administered by the Passenger Services Business Unit and prepares investigative reports, prosecution briefs and recommendations on appropriate penalties.

   Assists the Compliance Coordinator in the development, implementation and maintenance of compliance programs, policies and procedures.

   Coordinates and assists with field audits and surveys to ensure compliance with legislation and policies administered by the Business Unit.

   Liaise with and provides assistance to Compliance Officers, members of the taxi and omnibus industries and community to improve their understanding of and compliance with legislation and policies administered by the Business Unit.

   OPERATOR ASSESSMENT

   Inspects and reports on vehicles, equipment and record keeping standards compliance in accordance with relevant legislation and the Omnibus Operator Standards Scheme.

   Undertakes practical assessment of prospective taxi drivers.

   Assesses omnibus operators vehicle maintenance and fatigue management procedures and processes in accordance with the Omnibus Operator Standards Scheme and relevant legislation.

   Liaises with operators and users in relation to the Omnibus Operator Standards Scheme and provides advice, training and assistance when required to omnibus operators.

   PROSECUTIONS

   Administers the penalty and prosecution processes with regard to contraventions of legislation and standards, including liaising with legal representatives.

   Represents the Department in legal proceedings, including appearances in Court.

   Issues infringement notices, caution and vehicle defect notices for breaches of legislation.

   OTHER

   Represents the Department on external committees and working parties when required.

   Other duties as requested.

1. At the hearing Mr Perrie gave evidence in relation to whether the prosecution against Mr Singh had been lawfully instituted.  Mr Perrie said in evidence:

   (a)when he applied for the position of senior compliance officer with the Department of Transport he was told that 'it would be a requirement for [him] to commence a prosecution' (ts 49); and

   (b)after he was appointed as a senior compliance officer he was 'made an authorised officer under the Taxi Act' (ts 49).

2. In his reasons for decision, his Honour noted that it had been agreed by the parties that:

   (a)the Department of Transport is a public authority;

   (b)the Department of Transport administers the Taxi Act;

   (c)Mr Perrie is and at all material times was an employee of the Department of Transport; and

   (d)Mr Perrie was designated an 'authorised officer' pursuant to s 31 of the Taxi Act.

3. Magistrate De Vries found that:

   (a)the Department of Transport was a 'public authority' within s 20(1)(b)(i) of the Criminal Procedure Act; and

   (b)Mr Perrie was an 'authorised person', in relation to the offences charged, within s 20(1)(b)(i) of the Criminal Procedure Act, in that at all material times he was an employee of a public authority (that is, of the Department of Transport).

4. His Honour referred to relevant parts of Mr Perrie's witness statement and relevant parts of the job description form for a senior compliance officer within the Department of Transport.

5. Magistrate De Vries concluded that 'administering the prosecution's process by definition includes commencing prosecutions', that it was 'clear that [Mr Perrie] commenced prosecutions routinely' and that it was 'clearly part of his role as a senior compliance officer' (ts 42).  His Honour said that whether or not an authorised person who commences a prosecution is acting in the course of his or her duties is a question of fact which may be established by circumstantial evidence from which it may be inferred that the authorised person was acting in the course of his or her duties.  His Honour was satisfied 'as a matter of fact that [Mr Perrie] was acting in the course of his duties when he commenced [the] prosecution [against Mr Singh]' (ts 42).  His Honour was satisfied that Mr Perrie had lawfully commenced the prosecution and that the prosecution was valid.

6. After Magistrate De Vries made his ruling, defence counsel for Mr Singh informed his Honour that 'without surrendering the jurisdictional point, and without consenting to jurisdiction, Mr Singh will enter a plea of guilty' (ts 43).  The charges were then put to Mr Singh who, relevantly, pleaded guilty.  His Honour entered judgments of conviction.

Mr Singh's grounds of appeal

1. Mr Singh relies on two grounds of appeal.

2. Ground 1 alleges, in essence, that the magistrate erred in deciding that:

   (a)the signatory to the prosecution notice was lawfully authorised to commence the prosecution; and

   (b)the requisite authority to commence the prosecution was provided lawfully, on the basis that the issue was one of fact and not one of statutory construction,

   for the purpose of satisfying the requirements of s 20(3)(a)(i) of the Criminal Procedure Act.

3. The particulars of ground 1 assert:

   (a)a condition precedent to satisfying the requirements of s 20(3)(a)(i) of the Criminal Procedure Act is a provision in the Taxi Act identifying and conferring the requisite authority to commence the prosecution; and

   (b)the Taxi Act does not contain a provision conferring the requisite authority to commence a prosecution.

4. Ground 2 alleges, in essence, that the magistrate should have found that the prosecutor did not have authority to commence the prosecution.

5. On 23 October 2017, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.

The issues to be determined by this court in Mr Bhalsod's appeal and Mr Singh's appeal

1. Mr Bhalsod's appeal and Mr Singh's appeal to this court were heard together.

2. Senior counsel for Mr Bhalsod and Mr Singh said he had three points.  The first operated in relation to both appeals.  The second and third operated only in relation to Mr Bhalsod's appeal.

3. The first point alleged that Mr Perrie was not authorised to issue or to sign a prosecution notice in the prosecution of Mr Bhalsod or Mr Singh.

4. The second point alleged in relation to Mr Bhalsod's prosecution that the prosecution notice was not capable of being corrected under s 178 of the Criminal Procedure Act because it was not a prosecution notice in the form defined in that Act in that it was not signed in accordance with the requirements of s 23.

5. The second point is contingent upon the first point being established.

6. The third point alleged in relation to the prosecution of Mr Bhalsod that the notice to produce was not valid because it was not authorised by s 32(7) of the Taxi Act. The alleged invalidity was based on two contentions. First, the notice to produce was 'too wide'. It should have been confined to the period of four days during which Mr Perrie knew that Mr Bhalsod had the vehicle in question. Secondly, s 32(7) should not be construed 'so widely' as to remove the common law privilege against self‑incrimination (appeal ts 2).

7. I will address each of the three points in turn.

The first point:  was Mr Perrie authorised to issue and sign a prosecution notice in the prosecution of Mr Bhalsod and Mr Singh?:  Mr Bhalsod's and Mr Singh's submissions

1. Senior counsel for Mr Bhalsod and Mr Singh submitted that the phrase 'acting in the course of his or her duties', within s 20(3)(a)(i) of the Criminal Procedure Act, requires that the person commencing the prosecution, or the public authority by whom the person is employed, be expressly authorised, by the statute creating the offence, to commence the prosecution.  It was submitted that, absent such express authorisation, the employee cannot be regarded as 'acting in the course of his or her duties'.

2. It was contended that Mr Perrie was not authorised to commence either of the prosecutions, pursuant to s 20(3)(a)(i) of the Criminal Procedure Act, because his prescribed duties did not include commencing prosecutions.

3. Senior counsel referred to Martin v Nalder.[2]  He submitted that 'arguably the Director General has power' to commence a prosecution for an offence against the Taxi Act, but no other employee of the Department of Transport has that power (appeal ts 3).

   [2] Martin v Nalder [2016] WASC 138 [72] - [73].

4. Later, in the course of argument at the hearing, senior counsel advanced the following proposition:

   If, in this case, for example, the Director General had delegated, validly, to authorised officers a power to prosecute, that would be a circumstance where there is no specific statutory power to prosecute but there would be power to prosecute in fact (appeal ts 14).

5. Senior counsel referred to s 6(2) of the Taxi Act which provides that the Director General may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to an officer of the Department or any other person any of the powers or duties of the Director General under the Taxi Act, other than the power of delegation.

The first point:  was Mr Perrie authorised to issue and sign a prosecution notice in the prosecution of Mr Bhalsod and Mr Singh?:  the determination of the point

1. The Taxi Act created the offences of which Mr Bhalsod and Mr Singh were convicted. However, neither s 32 nor any other provision of the Taxi Act expressly authorised Mr Perrie or the Department of Transport to commence the prosecutions that were brought against Mr Bhalsod and Mr Singh.

2. Section 20(1)(b)(i) of the Criminal Procedure Act provides, relevantly, that in s 20, unless the contrary intention appears, 'authorised person', in relation to an offence, means 'a person who is a public authority or an employee of a public authority'.

3. Section 23 of the Criminal Procedure Act specifies the formal requirements of a prosecution notice. Section 23(2) provides, relevantly, that a prosecution notice must be signed in accordance with s 23(3). By s 23(3)(a), if the prosecution is being commenced by an 'authorised investigator' (as defined in s 18), the prosecution notice must be signed, relevantly, by the investigator. By s 23(3)(b), in any other case, the prosecution notice must be signed, relevantly, by the person who is commencing the prosecution.

4. By s 3(1) of the Criminal Procedure Act, in that Act, unless the contrary intention appears, 'public authority' means, relevantly, 'a department of the Public Service'.

5. By s 3(1) of the Taxi Act, in that Act, unless the contrary intention appears, 'department' means 'the department of the Public Service of the State principally assisting the Minister with the administration of [the] Act'.

6. Section 5 of the Interpretation Act 1984 (WA) provides that, in that Act and every other written law, 'Public Service' has the meaning given by the Public Sector Management Act 1994 (WA).

7. By s 3(1) of the Public Sector Management Act, the term 'Public Service' means 'the Public Service as constituted under section 34'. Section 34 provides that the Public Service is constituted by, amongst other things, 'departments'. By s 3(1), the term 'department' means a department established under s 35.

8. Section 35 of the Public Sector Management Act reads, relevantly:

   (1)The Governor may, on the recommendation of the Commissioner ‑ 

   (a)establish and designate departments; and

   (b)amalgamate or divide existing departments and designate the resulting department or departments; and

   (c)abolish departments; and

   (d)alter the designations of existing departments.

   (2)Notice of any act by the Governor under subsection (1) is to be published in the Gazette.

   (3)An omission to publish a notice under subsection (2) does not invalidate the act of the Governor.

9. The word 'Minister', appearing in the definition of 'department' in s 3(1) of the Taxi Act, is not defined in the Taxi Act.  However, s 5 of the Interpretation Act provides that, in that Act and every other written law, 'Minister' has the meaning given in s 12 of the Interpretation Act. Section 12(a) provides, relevantly, that a reference in a written law to 'the Minister' shall be construed as 'a reference to the Minister of the Crown to whom the administration of the Act … in which … the term is used, is for the time being committed by the Governor'.

10. By a notice published in the Gazette on 9 December 2014, it was 'notified for public information that the Governor, in Executive Council, has approved the administration of Departments, Authorities, Statutes and Votes being placed under the control of respective Ministers, on and from 8 December 2014, as set out in the accompanying schedule'.[3]

    [3] Western Australia, Government Gazette, No 193 (9 December 2014) 4609 - 4634.

11. The accompanying schedule provided that the administration of the Taxi Act was committed to the Minister for Transport.  Also, the Department of Transport was listed under the heading 'Minister for Transport' and the Taxi Act was listed under the heading 'Department of Transport'.

12. I am satisfied that, at all material times, the Department of Transport has been a department established and designated by the Governor on the recommendation of the Public Sector Commissioner under s 35 of the Public Sector Management Act, and has therefore been a 'public authority' as defined in s 3(1) of the Criminal Procedure Act.

13. I am also satisfied that, at all material times, Mr Perrie was an 'authorised person', in relation to the charged offences in question, within s 20(1)(b)(i) of the Criminal Procedure Act, in that he was an employee of a public authority (that is, an employee of the Department of Transport).

14. The critical issue concerning Mr Perrie's authority to issue and sign the prosecution notices, in the prosecution of Mr Bhalsod and Mr Singh, is whether Mr Perrie issued and signed the prosecution notices 'acting in the course of his … duties [as] an authorised person in relation to the [alleged offences]', within s 20(3)(a)(i) of the Criminal Procedure Act.

15. In other words, did Mr Perrie issue and sign the prosecution notices acting in the course of his duties as an employee of the Department of Transport in relation to the alleged offences?

16. The question whether a person is authorised to commence a prosecution is separate and distinct from the guilt or innocence of the accused.  The prosecutor's authority to commence a prosecution is not an element of the charged offence.  The authority need only be proved on the balance of probabilities.[4] 

    [4] Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1, 12 ‑ 13 (Mason CJ & Dawson J; Gaudron J agreeing); AB Oxford Cold Storage Co Pty Ltd v Arnott [2005] VSCA 111; (2005) 11 VR 298 [26] (Nettle JA; Byrne AJA agreeing); Pearson v Rizos [2008] SASC 98 [23] - [24] (Gray J).

17. In Western Australia, it is not unusual (and it was not unusual before the enactment of the Criminal Procedure Act) for statutes to create offences without expressly conferring authority upon any person to commence prosecutions for those offences.  Indeed, there are numerous statutes of that kind.  The Taxi Act is merely one example.

18. Before the enactment of the Criminal Procedure Act, the legislative framework was that, in general, anyone could bring a complaint under the Justices Act 1902 (WA) (repealed). See s 42 of the Justices Act.  A complaint was the predecessor of a prosecution notice in respect of a summary offence.  In those circumstances, it was unnecessary for a statute creating an offence expressly to confer authority upon a particular person or persons to commence prosecutions for the offence.

19. At common law (that is, independently of s 19 of the Interpretation Act), this court is permitted, in construing a statutory provision, to have regard to the words used by Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.  The context includes reference to the legislative history of the provision and any relevant reports of law reform bodies which describe the matters requiring legislative reform.  See CIC Insurance Ltd v Bankstown Football Club Ltd;[5] Newcastle City Council v GIO General Ltd.[6]

    [5] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

    [6] Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113 (McHugh J).

20. The status of private prosecutions was examined by Mr MJ Murray in his report, The Criminal Code: A General Review (1983) (506 ‑ 512).  Mr Murray referred to the provisions of the Criminal Code (WA) at that time which dealt with the capacity to bring private prosecutions equivalent to prosecutions upon indictment by the Crown. He observed that there was no right of prosecution, as that phrase would normally be understood, at that level. Mr Murray also referred to private prosecutions for summary offences. He noted that the Justices Act at that time did not restrict 'the right to bring a complaint and the view generally taken is that unless a particular statute vests the right to bring a complaint in a particular statutory officer any person may bring proceedings' (506).  He also noted that there was 'no such restriction in relation to complaints of indictable offences, whether or not punishable summarily, and therefore an offence defined in the Code may be prosecuted on complaint by any person' (506).  Mr Murray acknowledged that it was not within the scope of his report to recommend an alteration to that situation, but there was in his view '[a] good argument for introducing a restriction upon that capacity' (506).  Mr Murray explained his view as follows:

    [I]n my view … a capacity [to bring private prosecutions upon indictment] is wrong in principle.  From time to time it is suggested … that the prosecutrix in case of a charge of a sexual offence should have her own representation by counsel in the proceedings, both at committal stage and at trial.  I have always opposed such notions for the same reason as I suggest that the capacity for private prosecution is inherently wrong.

    The matter was touched upon in the recent UK Royal Commission but not I think carried to its logical conclusion.  The fact is that a prosecution of a criminal offence must be brought, if it is properly brought, in the community interest to secure the punishment and rehabilitation of an offender who has transgressed the community's rules by which its society is properly governed … In my view the criminal court is not the appropriate place to ventilate a private grievance or pursue a personal vendetta.  The civil courts are available for those purposes and it should be stressed that in opposing private prosecution of criminal proceedings I am not in any way denying access to the courts or a judicial remedy to any private citizen.  I am merely suggesting that there is an appropriate forum for such an action and the criminal court is not the place (510 ‑ 511).

21. The explanatory memorandum to the Bill which upon enactment became the Criminal Procedure Act stated in relation to proposed s 20:

    [Section 20] [p]rovides for who may commence a prosecution.  In The Murray Report: the Review of The Criminal Code prepared for the Attorney-General issued in June 1983 by the Hon Justice Murray ('The Murray Report'), it was recommended that private prosecutions be abolished.  After extensive consultation, it was decided to adopt that recommendation, and extend it to simple offences also (3).

22. So, the apparent purpose or object underlying the enactment of s 20 of the Criminal Procedure Act was to prescribe that prosecutions in a summary court may only be commenced by (subject to other written laws) the person specified in s 20(1). It is to be expected that the specified persons will, by virtue of their office or employment, act in the public interest in commencing a prosecution.

23. In Herscu v The Queen,[7] the appellant was convicted on two counts of official corruption under s 87(2) of the Criminal Code (Qld). Section 87(2), read with s 87(1), provided, relevantly, that any person who corruptly gave or offered to give the holder of any public office any property or benefit of any kind on account of any act or omission by the office‑holder 'in the discharge of the duties of his office' was guilty of a crime. It was alleged that the appellant, through his solicitors, had corruptly paid money to a company which acted as the agent or nominee of the Minister for Local Government and Main Roads for the purpose of having the Minister attempt to ensure that a local council, as the planning authority, approved changes in access to a shopping centre which the appellant was developing. The Minister was responsible for the supervision and control of the Local Government Department and the Main Roads Department and for the administration of the relevant statutes. However, the Minister had no specific power to make representations concerning the alteration of conditions attaching to a planning approval. The High Court dismissed the appellant's appeal. Mason CJ, Dawson, Toohey and Gaudron JJ held that the phrase 'duties of his office' in s 87 of the Criminal Code (Qld) was not confined to specific statutory duties. The phrase should be read in the sense of 'functions of his office' (282). The phrase included the performance of a function which it was for the public official to perform, whether or not the official was legally obliged to perform it in a particular way or at all.

    [7] Herscu v The Queen [1991] HCA 40; (1991) 173 CLR 276.

24. A number of observations may be made about the phrase 'acting in the course of his or her duties [as] an authorised person in relation to the [alleged offences]', within s 20(3)(a)(i) of the Criminal Procedure Act:

    (a)The words 'acting in the course of his or her duties' do not have a legal or technical meaning distinct from their ordinary and natural meaning.

    (b)The duties of an authorised person, in a particular case, are to be determined having regard to the facts of the particular case, including the terms of the person's contract of employment, and any relevant statutory provisions.

    (c)An authorised person will be 'acting in the course of his or her duties [as] an authorised person' if the person performs the actions in the discharge of his or her duties or functions as an employee of the public authority.

    (d)An authorised person will be 'acting in the course of his or her duties [as] an authorised person in relation to the [alleged offences]' if the person performs the actions in the discharge of his or her duties or functions as an employee of the public authority and, also, those actions are connected with the alleged offences (emphasis added).

1. In A v Maughan,[8] the second respondent, Ms Baker, had been appointed to the positions of Authorised Officer of the Corruption and Crime Commission (WA) (the Commission) pursuant to s 184 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act), and Special Constable pursuant to s 35 of the Police Act 1892 (WA). The terms of her appointment to Special Constable were limited in that the powers conferred could only be exercised while she was stationed at the Commission and for the limited purposes of investigations or operations of the Commission. Ms Baker was responsible for the conduct of an investigation by the Commission into the applicant's alleged misconduct as a police officer. Ms Baker signed two prosecution notices instituting criminal proceedings against the applicant in the Magistrates Court for alleged offences under the Criminal Code (WA). The applicant contended that the Magistrates Court did not have jurisdiction to entertain the charges on the ground that the proceedings were not lawfully instituted as the prosecutor who signed the prosecution notices (that is, Ms Baker) had no lawful authority to do so. This court held that the Commission's powers and functions did not extend to the prosecution of persons in respect of matters investigated by the Commission which were otherwise unrelated to the administration and enforcement of the legislation establishing the Commission. Martin CJ (McLure P agreeing generally & Corboy J agreeing) said:

   Because the Commission's functions do not include the prosecution of the applicant, Ms Baker cannot have been acting in the course of her duties as an officer of the Commission when she commenced the criminal proceedings against the applicant. It follows that she was not authorised to commence a prosecution by s 20(3) of the [Criminal Procedure Act], and the proceedings which she commenced against the applicant are, and always have been, invalid. It follows that those proceedings must be quashed, and this court should make an order to that effect [135].

   [8] A v Maughan [2016] WASCA 128; (2016) 50 WAR 263.

2. So, the critical question in Maughan was whether the Commission's powers and functions included the prosecution of the applicant for offences under the Criminal Code (WA). This court held that they did not. Martin CJ observed that '[t]he offences with which the applicant has been charged by Ms Baker have no connection with [the CCC Act], or the administration of [the CCC Act] by the Commission' [107]. The functions and duties of Ms Baker, for the purposes of s 20 and s 23 of the Criminal Procedure Act, were co‑extensive with those of the Commission.Accordingly, Ms Baker was not acting in the course of her duties, within s 20(3)(a) of the Criminal Procedure Act, in commencing the prosecution.

3. In my opinion, the phrase 'acting in the course of his or her duties', within s 20(3)(a)(i) of the Criminal Procedure Act, does not connote or require, either in its ordinary and natural meaning or in the context in which it appears, that the person commencing the prosecution, or the public authority by whom the person is employed, be expressly authorised, by the statute creating the offence, to commence the prosecution.  In particular, the absence of such express authorisation does not require the conclusion that the employee cannot be regarded as 'acting in the course of his or her duties'.

4. As I have observed, an authorised person will be 'acting in the course of his or her duties [as] an authorised person', within s 20(3)(a)(i) of the Criminal Procedure Act, if the person performs the actions in the discharge of his or her duties or functions as an employee of the public authority.  The phrase does not connote or require, in its ordinary and natural meaning or the context in which it appears, the existence of express authorisation of the actions in question.

5. If the conditions specified in s 20(3) of the Criminal Procedure Act for the commencement by an authorised person of a prosecution for an offence are satisfied, no separate delegation to the person is necessary unless the delegation is required by another written law. 

6. Ascertaining the duties and functions of an authorised person in a particular case will ordinarily involve matters of fact or matters of mixed law and fact.

7. Section 31 of the Taxi Act provides that the Director General may designate any officer of the Department of Transport as an authorised officer. At all material times, Mr Perrie was designated as an authorised officer pursuant to s 31. By virtue of that designation, Mr Perrie had the powers conferred on an authorised officer by s 32 and other provisions of the Taxi Act. Those powers included the power conferred by s 32(7), which provides that where an authorised officer has reason to believe that a person is operating a vehicle as a taxi, other than in accordance with the Act or the Regulations or any conditions imposed under s 20(1) of the Act, the authorised person may require that person to answer any questions or provide any information, and to produce any records, books, documents or vehicles.

8. The prosecution notice issued against Mr Bhalsod states that the prosecutor is the Department of Transport and that the person issuing the notice is Mr Perrie.  Mr Perrie's official title is stated to be Acting Team Leader.  Those provisions of the prosecution notice constitute an implied assertion by Mr Perrie that, in issuing the prosecution notice against Mr Bhalsod, Mr Perrie was performing or discharging his duties or functions as an employee of the Department of Transport in connection with the alleged offence.

9. Mr Perrie's evidence in the proceedings against Mr Bhalsod in the Magistrates Court did not include evidence that he was authorised to commence a prosecution.  Defence counsel for Mr Bhalsod did not elicit any evidence from Mr Perrie on this issue in cross‑examination.

10. The question of Mr Perrie's authority to commence the prosecution was not raised by defence counsel for Mr Bhalsod before the prosecutor's opening address and no submissions on the point were made by defence counsel prior to closure of the prosecution's case.

11. In Morris v Kanssen,[9] a case concerned with the purported appointment of a company director, Lord Simonds (Viscount Simon, Lord Thankerton, Lord Porter & Lord Uthwatt agreeing) said:

    One of the fundamental maxims of the law is the maxim 'omnia praesumuntur rite esse acta'.  It has many applications. … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order (475). 

    [9] Morris v Kanssen [1946] AC 459.

12. In Minister for Natural Resources v New South Wales Aboriginal Land Council,[10] McHugh JA observed that the 'natural home' of the maxim referred to by Lord Simonds in Morris is public law (164).  His Honour elaborated:

    Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.  Thus a person who acts in a public office is presumed to have been validly appointed to that office:  M'Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318 ‑ 319.

    [10] Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164. See also Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156 [95] - [101] (Eames J).

13. McHugh JA went on to refer to a particular application of the maxim as stated in Broom's Legal Maxims (10^th ed, 1939), 642:

    … where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution.  In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown (164).

14. So, it is well established that there is a presumption that acts and duties of a public official, and that acts and duties of an official nature, have been regularly and properly performed.

15. The presumption applies not only in civil proceedings, but also in criminal cases.  See R v Brewer;[11] Cassell v The Queen.[12]

    [11] R v Brewer [1942] HCA 33; (1942) 66 CLR 535, 548 (Latham CJ & McTiernan J).

    [12] Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189 [17] (Gleeson CJ, Gaudron, McHugh & Gummow JJ).

16. The presumption of regularity is a rebuttable presumption of law.  If the basic fact is established then an inference should be drawn as to the existence of the presumed fact unless there is evidence to the contrary.  See Director of Public Prosecutions v Sher;[13] Sher v Director of Public Prosecutions.[14]

    [13] Director of Public Prosecutions v Sher [2000] VSC 268 [163] - [164] (Gillard J).

    [14] Sher v Director of Public Prosecutions [2001] VSCA 110; (2001) 120 A Crim R 585 [8] (Brooking, Batt & Buchanan JJA).

17. In Sher, a statutory provision enabled a 'prescribed person' to issue a summons in respect of prescribed summary offences. A 'prescribed person' was defined as a member of the police force who had served for at least two years. The prosecution in question was brought by a police officer who held the rank of senior constable. He described himself in the summons as a 'prescribed person'. Although there was evidence before the court that the informant was a senior constable, there was no evidence that he had served in the police force for at least two years. Defence counsel submitted that it was necessary, as part of the prosecution case, for the informant to prove that he was a 'prescribed person'. The informant did not give evidence to that effect. The issue was not raised with the informant in cross‑examination. Gillard J held that the basic fact established in the case was that the summons had been signed by a member of the police force who held the rank of senior constable and who had asserted in the summons that he was a 'prescribed person' [165]. His Honour concluded, on the basis of the presumption of regularity, that it was legitimate to infer that 'a senior constable would not issue a summons unless he was a prescribed person' [165]. On appeal, the Court of Appeal of Victoria affirmed Gillard J's decision. Brooking, Batt and Buchanan JJA said his Honour's decision was 'manifestly correct on all points' [8].

18. If an accused does not object that the prosecutor's authority has not been proved, the authority will be presumed in accordance with the presumption of regularity.  If the accused does object, the prosecutor must prove his or her authority on the balance of probabilities.  See Palos Verdes Estates Pty Ltd v Carbon;[15] Sher [160] ‑ [161] (Gillard J); Sher [8] (Brooking, Batt & Buchanan JJA); AB Oxford Cold Storage Co [26]; Duncan v Demir.[16]

    [15] Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223, 227 (Malcolm CJ).

    [16] Duncan v Demir [2009] VSC 37; (2009) 219 A Crim R 1 [42] - [43], [45] - [46] (Kyrou J).

19. In the present case, the basic facts established at Mr Bhalsod's trial were that:

    (a)At all material times, Mr Perrie was a senior compliance officer with the Department of Transport's On‑demand Transport Unit.

    (b)At all material times, the On-demand Transport Unit dealt predominantly with services provided by taxis and omnibuses.

    (c)At all material times, Mr Perrie's duties as a senior compliance officer included investigating complaints received by the Department of Transport relevant to the On‑demand Transport Unit.

    (d)At all material times, Mr Perrie was designated as an authorised officer pursuant to s 31 of the Taxi Act.

    (e)At all material times and by virtue of that designation, Mr Perrie had the powers of an authorised officer under the Taxi Act including the powers conferred by s 32.

    (f)As I will explain in dealing with senior counsel for Mr Bhalsod and Mr Singh's third point in the appeal to this court, the notice to produce served on Mr Bhalsod was a lawful direction by Mr Perrie under s 32(7) of the Taxi Act.  Mr Bhalsod failed to comply with the notice to produce.

    (g)Mr Perrie was named on the prosecution notice issued against Mr Bhalsod as the person issuing the notice.  Mr Perrie signed the prosecution notice.

    (h)In the prosecution notice, Mr Perrie impliedly asserted that, in issuing the prosecution notice, he was performing or discharging his duties or functions as an employee of the Department of Transport in connection with the alleged offence.

20. I am satisfied, on the basis of those facts and in the absence of evidence to the contrary, that the primary judge was entitled to apply the presumption of regularity and to conclude that Mr Perrie was acting in the course of his duties, as an authorised person in relation to the offence in question, in commencing the prosecution against Mr Bhalsod for the alleged offence.

21. As I have mentioned, the question of Mr Perrie's authority to commence the prosecution was not raised by defence counsel for Mr Bhalsod before the prosecutor's opening address, and no submissions on the point were made by defence counsel prior to closure of the prosecution's case.

22. It follows that the primary judge did not err in finding that Mr Perrie was authorised to commence, and was acting in the course of his duties in commencing, the prosecution against Mr Bhalsod for the alleged offence.  Mr Perrie was authorised to issue and sign the prosecution notice in the prosecution of Mr Bhalsod.  Mr Perrie's authority did not require or depend on a delegation from the Minister or the Director General.  No delegation was required by the Taxi Act or another written law.

23. In the present case, the basic facts established at Mr Singh's trial were that:

    (a)At all material times, Mr Perrie was a senior compliance officer with the Department of Transport's On‑demand Transport Unit.

    (b)At all material times, the On-demand Transport Unit dealt predominantly with services provided by taxis and omnibuses.

    (c)At all material times, Mr Perrie's duties as a senior compliance officer included conducting inquiries into alleged breaches of the Taxi Act.

    (d)At all material times, Mr Perrie was designated as an authorised officer pursuant to s 31 of the Taxi Act.

    (e)At all material times and by virtue of that designation, Mr Perrie had the powers of an authorised officer under the Taxi Act including the powers conferred by s 32.

    (f)When Mr Perrie applied for the position of senior compliance officer with the Department of Transport he was informed that 'it would be a requirement for [him] to commence a prosecution' (ts 49).

    (g)The Department of Transport's job description form for a senior compliance officer stated that a senior compliance officer '[u]ndertakes investigation and assessments of a complex nature relating to compliance with legislation and standards administered by the Passenger Services Business Unit' and '[a]dministers the penalty and prosecution processes with regard to contraventions of legislation and standards' and '[r]epresents the Department in legal proceedings'.

    (h)The functions and duties of investigating and assessing compliance with legislation and standards combined with administering prosecution processes include, by necessary implication, the commencement of prosecutions.

    (i)At all material times, Mr Perrie had routinely commenced prosecutions for offences under the Taxi Act. 

    (j)Mr Perrie was named on the prosecution notice issued against Mr Singh as the person issuing the notice.  Mr Perrie signed the prosecution notice. 

    (k)In the prosecution notice, Mr Perrie impliedly asserted that, in issuing the prosecution notice, he was performing or discharging his duties or functions as an employee of the Department of Transport in connection with the alleged offences.

24. I am satisfied, on the basis of those facts and in the absence of evidence to the contrary, that Magistrate De Vries was entitled to conclude that 'as a matter of fact … [Mr Perrie] was acting in the course of his duties when he commenced [the] prosecution [against Mr Singh]' (21 July 2017, ts 42), that Mr Perrie had lawfully commenced the prosecution against Mr Singh and that the prosecution was valid.

25. His Honour did not err in finding that Mr Perrie was authorised to commence, and was acting in the course of his duties in commencing, the prosecution against Mr Singh for the alleged offences.  Mr Perrie was authorised to issue and sign the prosecution notice in the prosecution of Mr Singh.  Mr Perrie's authority did not require or depend on a delegation from the Minister or the Director General.  No delegation was required by the Taxi Act or another written law.

26. The present appeals are distinguishable from Maughan.  The offences with which the applicant in Maughan had been charged had no connection with Ms Baker's functions or duties under the CCC Act. In those circumstances, Ms Baker was not 'acting in the course of … her duties', within s 20(3)(a)(i) of the Criminal Procedure Act, in commencing the prosecution.  By contrast, in the present appeals, the prosecutions were for offences against the Taxi Act; the prosecutions were commenced by a person (namely Mr Perrie) employed by the Department of Transport; and the Department was the department of the Public Service of the State principally assisting the Minister with the administration of the Taxi Act.  In the case of Mr Bhalsod, the application of the presumption of regularity, in the context of the basic facts established at Mr Bhalsod's trial and the absence of evidence to the contrary, enabled the conclusion to be drawn that Mr Perrie was authorised to commence, and was acting in the course of his duties in commencing, the prosecution against Mr Bhalsod for the alleged offence; and, in the case of Mr Singh, the basic facts established at Mr Singh's trial and the absence of evidence to the contrary, enabled the conclusion to be drawn that Mr Perrie was authorised to commence, and was acting in the course of his duties in commencing, the prosecution against Mr Singh for the alleged offences.

27. It is unnecessary to examine the correctness of senior counsel for Mr Bhalsod and Mr Perrie's proposition that Mr Perrie would have been acting in the course of his duties in commencing the prosecutions if the Director General had signed an instrument of delegation, pursuant to s 6(2) of the Taxi Act, delegating to Mr Perrie the power to commence the prosecutions, even though the Taxi Act does not confer an express power on the Director General to commence prosecutions.

28. Senior counsel for Mr Bhalsod and Mr Singh's first point in the appeal to this court fails.

The second point: if Mr Perrie was not authorised to issue or sign a prosecution notice in the prosecution of Mr Bhalsod, was the prosecution notice capable of being corrected under s 178 of the Criminal Procedure Act?:  Mr Bhalsod's submissions

1. Senior counsel for Mr Bhalsod submitted that if Mr Perrie was not authorised to issue or sign a prosecution notice in the prosecution of Mr Bhalsod, the prosecution notice was not capable of being corrected under s 178 of the Criminal Procedure Act because it was not a prosecution notice in the form defined in that Act in that it was not signed in accordance with the requirements of s 23.

The second point: if Mr Perrie was not authorised to issue or sign a prosecution notice in the prosecution of Mr Bhalsod, was the prosecution notice capable of being corrected under s 178 of the Criminal Procedure Act?:  the determination of the point

1. The premise on which senior counsel for Mr Bhalsod's second point is based has not been made out.  As I have explained in dealing with the first point, Mr Perrie was authorised to issue and sign the prosecution notice in the prosecution of Mr Bhalsod.  It is therefore unnecessary to deal with the second point.

The third point: was the notice to produce served on Mr Bhalsod invalid because it was not authorised by s 32(7) of the Taxi Act?:  Mr Bhalsod's submissions

1. Senior counsel for Mr Bhalsod submitted that the notice to produce was invalid for two reasons. First, the notice to produce was 'too wide'. The phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act, is confined to circumstances where the conduct occurs 'at or about the time the s 32(7) power is exercised'. The notice to produce should have been confined to the period of four days during which Mr Perrie knew that Mr Bhalsod had the vehicle in question. Secondly, s 32(7) should not be construed 'so widely' as to remove the common law privilege against self‑incrimination (appeal ts 2).

2. It was contended that the preconditions for the exercise by Mr Perrie of the power under s 32(7) of the Taxi Act were not satisfied. It was also argued that there was an insufficient connection between the directions or requirements contained in Mr Perrie's notice to produce, on the one hand, and the alleged conduct giving rise to Mr Perrie's belief that Mr Bhalsod was operating his motor vehicle as a taxi, contrary to s 15(1) of the Taxi Act, on the other.

The third point: was the notice to produce served on Mr Bhalsod invalid because it was not authorised by s 32(7) of the Taxi Act?:  the determination of the point

1. I will reproduce, for ease of reference, the critical provisions of the Taxi Act.

2. Section 32(7) of the Taxi Act provides that where an authorised officer 'has reason to believe that a person is operating a vehicle as a taxi other than in accordance with this Act or the regulations or any conditions imposed under s 20(1)', he or she 'may require that person to answer any questions or provide any information, and to produce any records, books, documents or vehicles'.

3. By s 3(1), in the Taxi Act, unless the contrary intention appears:

   authorised officer means ‑ 

   (a)an officer designated or appointed under section 31; or

   (b)a member of the Police Force;

   … 

   operate means - 

   (a)to drive a vehicle as a taxi; or

   (b)to own or lease taxi plates; or

   (c)to cause another person to drive a vehicle as a taxi by providing to the person ‑ 

   (i)the vehicle, under a lease or otherwise; and

   (ii)taxi plates for use on or in the vehicle, under a plate owner’s lease or otherwise;

   operator means a person who operates a vehicle as a taxi;

   plate holder means the owner or lessee of taxi plates;

   plate owner's lease means the right acquired from the owner of taxi plates to use the plates for a specified period of time;

   … 

   taxi means a vehicle which is used for the purpose of standing or plying for hire, or otherwise for the carrying of passengers for reward, but does not include an omnibus licensed under the Transport Co-ordination Act 1966 or a vehicle of a class declared by the Director General under subsection (2) not to be a taxi;

   … 

   taxi plates means a set of taxi number plates issued under section 18 or 30I(2)(b);

   use as applied to taxi plates means to display, or to cause or permit another person to display, taxi plates on or in a vehicle.

4. Section 8 of the Interpretation Act provides that a written law shall be considered as 'always speaking' and, whenever a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to every part of the law according to its 'true spirit, intent, and meaning'.

5. Section 9 of the Interpretation Act provides that where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

6. The general principles of statutory construction were summarised by this court in Director General of Department of Transport v McKenzie.[17]  It is unnecessary to repeat the summary.

   [17] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306 [45] ‑ [48] (Buss P; Murphy JA & Beech J agreeing).

7. I merely note that the function of a definition in a statute is not, except in rare cases, to enact substantive law.  Rather, its function is to provide aid in construing the substantive enactment that contains the defined term.  The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment.  See Kelly v The Queen;[18] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd.[19]

   [18] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J).

   [19] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J).

8. As I have mentioned, senior counsel for Mr Bhalsod argued that the phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act, is confined to circumstances where the conduct occurs 'at or about the time the s 32(7) power is exercised'.

9. It is necessary, in evaluating the merit of that argument, to focus on the relevant text, context and purpose of the Taxi Act.

10. I begin with the relevant text.

11. The phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act, must be construed by reference to the definition of 'operate' in s 3(1) of the Taxi Act and having regard to s 8 and s 9 of the Interpretation Act. 

12. The definition of 'operate' in s 3(1) of the Taxi Act has a broad connotation.  The definition expands upon the ordinary and natural meaning of 'operate' in the context of driving a vehicle.

13. The expression 'is operating' is a verb in the present continuous or the present progressive tense.  The word 'is', in the expression 'is operating', is a primary auxiliary verb.  It informs the tenses, moods or voices of other verbs.  The word 'operating', in the expression 'is operating', is the present participle of the verb 'operate'.

14. The expression 'is operating' connotes that a present action or event is in progress.  Ordinarily, the expression indicates an activity that is presently happening, but whose termination can be expected at some point.  The expression may, depending on the context, also indicate an event that is in progress or an action that is being repeated.  The event that is in progress or the action that is being repeated may be part of a developing pattern or a continuing arrangement.

15. When the phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act, is construed by reference to the definition of 'operate' in s 3(1) of the Taxi Act and having regard to s 8 and s 9 of the Interpretation Act, it is apparent that the power conferred on an authorised officer by s 32(7) to require a person to answer any questions or provide any information, and to produce any records, books, documents or vehicles, will be enlivened if the authorised officer has reason to believe that the person:

    (a)is driving a vehicle as a taxi other than in accordance with the Taxi Act or the Regulations or any conditions imposed under s 20(1); or

    (b)owns or leases taxi plates other than in accordance with the Taxi Act or the Regulations or any conditions imposed under s 20(1); or

    (c)is causing another person to drive a vehicle as a taxi by providing to the other person:

    (i)the vehicle, under a lease or otherwise; and

    (ii)taxi plates for use on or in the vehicle, under a plate owner's lease or otherwise.

16. The definition of 'operate' in s 3(1) of the Taxi Act, having regard to s 8 and s 9 of the Interpretation Act, shows that the phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act, refers not merely to a person who is actually driving a vehicle as a taxi, but also, amongst others, to any other person who has caused the person actually driving to drive that vehicle as a taxi by providing the vehicle and the taxi plates.

17. A person who has caused the person actually driving to drive the vehicle as a taxi, by providing the vehicle and the taxi plates, may not be present when an authorised officer stops the vehicle pursuant to s 32(2)(a) of the Taxi Act. 

18. The breadth of the definition of 'operate' in s 3(1) of the Taxi Act, having regard to s 8 and s 9 of the Interpretation Act, enables an authorised officer to exercise his or her powers under s 32(7) of the Taxi Act in relation to persons who are not actually driving a vehicle as a taxi and, also, in relation to persons who are not present when the officer stops the vehicle.

19. The powers of an authorised officer under s 32(7) of the Taxi Act are exercisable not only in relation to the vehicle being driven as a taxi, but also in relation to other vehicles. That is plain from the concluding phrase in s 32(7), which empowers an authorised officer to require a person who the officer has reason to believe is operating a vehicle as a taxi to produce 'any records, books, documents or vehicles' (emphasis added).

20. The scheme of the Taxi Act does not contemplate or mandate that there will or must be personal interaction between an authorised officer exercising the powers conferred by s 32(7), on the one hand, and any person with respect to whom those powers are being exercised, on the other.

21. In my opinion:

    (a)the phrase 'is operating a vehicle as a taxi', within s 32(7) of the Taxi Act; and

    (b)the question whether an authorised officer has reason to believe that a person 'is driving a vehicle as a taxi', other than in accordance with the Taxi Act or the Regulations or any conditions imposed under s 20(1), within s 32(7),

    includes, but is not confined to, a single or discrete present action of operating or driving a vehicle. 

22. Both the phrase 'is operating a vehicle as a taxi' and the phrase 'is driving a vehicle as a taxi' include, but are not confined to, operating or driving a vehicle in the course of a single or discrete journey. 

23. Crucially, for the purposes of Mr Bhalsod's appeal, those phrases extend to operating or driving a vehicle as a taxi as an incident of a continuing arrangement, including a continuing arrangement which has been subsisting for a significant period.

24. In my opinion, the ordinary and natural meaning of the language in s 32(7) of the Taxi Act, construed by reference to the definition of 'operate' in s 3(1) of the Taxi Act and having regard to s 8 and s 9 of the Interpretation Act, permits an authorised officer to make a requirement of a person who the officer has reason to believe is operating a vehicle as a taxi other than in accordance with the Taxi Act or the Regulations or any conditions imposed under s 20(1), not only while the contravention is believed to be occurring, but also after the contravention is believed to have taken place.

25. Also, in my opinion, the ordinary and natural meaning of the language in s 32(7) of the Taxi Act, construed by reference to the definition of 'operate' in s 3(1) of the Taxi Act and having regard to s 8 and s 9 of the Interpretation Act, shows that the exercise of the powers conferred by s 32(7) is not confined to circumstances where the conduct occurs 'at or about the time the s 32(7) power is exercised'; that is, is not confined to circumstances where the conduct occurs at or about the time the requirement is made.

26. The requirement specified in s 32(7) of the Taxi Act that a person answer any questions or provide any information, and produce any records, books, documents or vehicles, will often be unable to be satisfied immediately if the requirement is made of a person who is at the time engaged in actually driving a vehicle as a taxi. 

27. In my opinion, the ordinary and natural meaning of the language in s 32(7) of the Taxi Act, construed by reference to the definition of 'operate' in s 3(1) of the Taxi Act and having regard to s 8 and s 9 of the Interpretation Act, permits an authorised officer to require a person, who the officer has reason to believe has contravened the Taxi Act etc, to answer any questions or provide any information, and to produce any records, books, documents or vehicles, even though the answers or information are not immediately known to the person or the items are not immediately possessed by the person.

28. I turn to the relevant context.

29. Section 15(1) of the Taxi Act prohibits a vehicle from being operated as a taxi within a 'control area' (as defined in s 3(1)) unless that vehicle is operated using taxi plates and in accordance with the Taxi Act. By s 15(2), where a vehicle is operated as a taxi contrary to s 15(1) an offence is committed by the owner of the vehicle, the driver of the vehicle, the operator of the vehicle as a taxi and the provider of the 'taxi dispatch service' (as defined in s 3(1)) involved, if any.

30. If an authorised officer has reason to believe that a vehicle is being operated as a taxi contrary to s 15(1) of the Taxi Act, the authorised officer is empowered under s 32(7), relevantly, to require the driver of the vehicle to answer any questions or provide any information, and to produce any records, books, documents or vehicles, so as to establish that the driver has committed an offence under s 15(2). There is no reason in principle to construe s 15, read with s 32, as not also empowering the authorised officer to require the driver to nominate the person who had provided the driver with the vehicle and the taxi plates and then to require the nominated person to answer similar questions or provide similar information, and to produce similar records, books, documents or vehicles.

31. Section 32 of the Taxi Act is concerned with the powers of authorised officers. Each of subs (1), (2), (3), (4) and (7) of s 32 confers powers on an authorised officer. Each of subs (5), (6) and (8) of s 32 creates an offence. Section 32 confers numerous powers on an authorised officer. Some of those powers (for example, those conferred by s 32(2)) are exercisable only when the vehicle is being actually driven as a taxi. However, other powers (for example, those conferred by s 32(3) and s 32(4)) are not exercisable only when a vehicle is being actually driven as a taxi.

32. The contextual features of s 15 and s 32 of the Taxi Act, to which I have referred, confirm that the requirement specified in s 32(7) is not confined to a requirement made of the driver of a vehicle at or about the time the driver is engaged in actually driving the vehicle as a taxi.

33. I turn to the relevant purpose.

34. The long title of the Taxi Act states, relevantly, that it is an Act to provide for the effective administration of the taxi industry.  It is apparent, on a fair reading of the Taxi Act as a whole, that the Act is concerned with, relevantly, the regulation of the taxi industry, including the prohibition of various practices and activities in connection with operating a vehicle as a taxi. The evident purpose or object of s 32 and other provisions of pt 4 of the Taxi Act is to facilitate the enforcement of the regulatory framework created by the Act and the detection and prosecution of breaches of the Act.

35. If the submissions of senior counsel for Mr Bhalsod in relation to the proper construction of s 32(7) of the Taxi Act were to be adopted, the utility of the powers of an authorised officer under s 32(7) would be significantly truncated. The evident purpose or object of s 32(7) is to permit an authorised officer who has reason to believe that a person is operating a vehicle as a taxi in contravention of the Taxi Act etc, but who does not have sufficient evidence to prosecute the person for the suspected contravention, to obtain evidence which may substantiate the authorised officer's belief.

36. The evident purpose or object of s 32(7) of the Taxi Act is consistent with the ordinary and natural meaning of the provision; in particular, that the requirement specified in s 32(7) is not confined to a requirement made of the driver of a vehicle at or about the time the driver is engaged in actually driving the vehicle as a taxi and is not confined to circumstances where the conduct occurs at or about the time the requirement is made.

37. The broad discretionary powers conferred on an authorised officer by s 32(7) of the Taxi Act must be construed subject to the text, scope and purpose of the legislation. The text, scope and purpose of s 32(7), having regard to the Act as a whole, indicate that there must be a connection between the questions a person is required to answer, the information the person is required to provide and the records, books, documents or vehicles the person is required to produce, on the one hand, and the authorised officer's belief (based on reason) that the person is operating a vehicle as a taxi other than in accordance with the Taxi Act etc, on the other. However, there is no basis in the text, scope or purpose of the legislation to require that the questions, information or things sought to be answered, provided or produced under s 32(7) must be 'directly connected' to the conduct of the driver of the vehicle. Section 32(7) contemplates that the powers conferred on an authorised officer may be exercised in respect of all persons 'operating' a vehicle as a taxi other than in accordance with the Taxi Act etc.

38. The primary judge was correct, for the reasons he gave, in concluding that there was a sufficient connection between Mr Perrie's belief that Mr Bhalsod was operating a vehicle as a taxi other than in accordance with the Taxi Act and the Regulations, on the one hand, and each of the classes of documents that Mr Perrie required Mr Bhalsod to produce, on the other. Mr Perrie's evidence was that he considered the items he sought related to potential offending by Mr Bhalsod against the Act or the Regulations. Mr Perrie believed that Mr Bhalsod may have been unlawfully operating a vehicle as a taxi. On the basis of his knowledge that Uber had commenced operations in Western Australia on or about 1 June 2014 and on the basis of his belief that Mr Bhalsod was operating a vehicle as a taxi under the auspices of Uber, Mr Perrie sought information to establish the period during which Mr Bhalsod had been unlawfully operating a vehicle as a taxi.

39. By the principle of statutory construction known as the principle of legality, common law rights are not to be regarded as abrogated by statute unless Parliament has used language which manifests a clear intention to do so.  The effect of the principle of legality is that common law rights will not be taken by a court to have been displaced by statute unless Parliament's intention to do so is 'expressed with irresistible clearness'.  See Electrolux Home Products Pty Ltd v Australian Workers' Union;[20] Momcilovic v The Queen;[21] R v Independent Broad‑based Anti‑corruption Commissioner.[22]

    [20] Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21] (Gleeson CJ).

    [21] Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ).

    [22] R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459 [40] (French CJ, Kiefel, Bell, Keane, Nettle & Gordon JJ).

40. It is a fundamental principle of the common law that in criminal proceedings an accused cannot be convicted of a charge unless the prosecution proves the charge beyond reasonable doubt.  The accused cannot be compelled to assist the prosecution in the proof of the alleged offence.  See X7 v Australian Crime Commission;[23] Independent Broad‑based Anti‑corruption Commissioner [41] - [47].

    [23] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [159] (Kiefel J).

41. In Independent Broad‑based Anti‑corruption Commissioner, French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ held that the principle that an accused person cannot be compelled to assist the prosecution to discharge its burden of proof should not be extended to apply when the person has not been charged and there is no prosecution pending [48] ‑ [52].

42. In Zanon v The State of Western Australia,[24] Mitchell J (Buss JA relevantly agreeing) observed:

    (a)The capacity of Australian Parliaments, acting within their constitutional limits, to modify common law principles (including those the subject of the principle of legality) has not been doubted [215].

    (b)Statutory provisions may require an accused to provide information which may assist the prosecution in proving an offence or anticipating evidence to be adduced by the accused at trial. For example, s 62 of the Criminal Procedure Act requires an accused, at least 14 days before trial, to serve on the prosecution, written notice of any alibi evidence which the accused intends to give or adduce and any expert evidence which the accused intends to adduce [217].

(c)Steps taken pursuant to statutory provisions which modify or abrogate common law principles the subject of the principle of legality will not occasion a miscarriage of justice [218].

[24] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.

1. In my opinion, the text of s 32(7) of the Taxi Act manifests a clear intention to abrogate the common law privilege against self‑incrimination. The powers of an authorised officer under s 32(7) apply in respect of a person who the officer has reason to believe has committed an offence by operating a vehicle as a taxi other than in accordance with the Taxi Act etc. As I have mentioned, the evident purpose or object of s 32 and other provisions of pt 4 of the Taxi Act is to facilitate the enforcement of the regulatory framework created by the Act and the detection and prosecution of breaches of the Act. If s 32(7) did not abrogate the privilege then the powers conferred by s 32(7) would be otiose.[25]

   [25] See the reasoning and conclusions in relation to analogous provisions in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, 343 (Mason ACJ, Wilson & Dawson JJ); Commissioner of Taxation v De Vonk [1995] FCA 1715; (1995) 61 FCR 564, 583 (Hill & Lindgren JJ). See also Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, 511 (Brennan J).

2. Senior counsel for Mr Bhalsod's third point in the appeal to this court fails.

Conclusion

1. None of the grounds of appeal relied on by Mr Bhalsod and Mr Singh has been made out.

2. Leave to appeal should be refused on ground 2 of Mr Bhalsod's appeal and ground 2 of Mr Singh's appeal.

3. Both appeals should be dismissed.

MAZZA JA:

1. I agree with Buss P.  I also agree with Beech JA's additional reasons why the appellants' first point fails.

BEECH JA:

1. The statutory framework, the facts, and other background are all set out in the reasons of Buss P.  As Buss P explains, the appellants

raise three points.  I agree with Buss P in relation to points 2 and 3.  I also agree that, for the reasons given by Buss P, the appellants' first point fails.  I set out below my further reasons for rejecting the first point.

1. The appellants' primary submission was that in order that a person is 'acting in the course of his or her duties' in commencing a prosecution, within the meaning of s 20(3)(a) of the Criminal Procedure Act 2004 (WA) (the CPA), it is necessary that the person, or the public authority of which he or she is an employee, be expressly authorised to commence a prosecution by the statute creating the offence, or by another written law.[26]  Ultimately, the appellants accepted that the respondent would have been acting in the course of his duties, in commencing the prosecution of the appellants, if the Director General had signed an instrument of delegation delegating the power to commence a prosecution to the respondent, even though the Taxi Act 1994 (WA) does not expressly confer a power to commence prosecutions on the Director General.[27] 

   [26] Appeal ts 6 ‑ 8.

   [27] Appeal ts 14 ‑ 15.

2. The merits of this construction must be evaluated by reference to the text, context and object of s 20 read as a whole. The terms of s 20 are set out in Buss P's reasons at [17]. In my opinion, for the reasons that follow, the text and structure of s 20 as a whole create an insuperable obstacle to the appellants' construction of the phrase 'acting in the course of his or her duties'.

3. This phrase is found in the opening words of par (a) of s 20(3), following which there are three subparagraphs. Thus, it is plain from the statutory text that the phrase applies to each of subpars (i) ‑ (iii). On the face of it, the phrase would be expected to bear the same construction in its application to each of the three subparagraphs.

4. In this regard, it is instructive to set out the five categories of situation to which subpars (i) ‑ (iii) apply. The three subparagraphs apply to five categories of situation, because subpar (i) itself applies to three categories. That is because 'authorised person in relation to the offence' in subpar (i) is defined in s 20(1) to encompass three categories of situation. The definition of 'authorised person in relation to an offence' is to be inserted into the cognate phrase in s 20(3)(a)(i).

5. The categories of situation to which s 20(3)(a) applies are as follows:

   (1)a person or class of person who is authorised under a written law to commence a prosecution for the offence;[28]

   (2)a person who is a public authority or an employee of a public authority;[29]

   (3)a person who is authorised in writing by a public authority to commence a prosecution for the offence;[30]

   (4)a person referred to in s 80(2)(a) ‑ (e) of the CPA, namely the Attorney General, the Solicitor General, the State Solicitor, the DPP or a member of the DPP staff appointed in writing by the DPP as an authorised officer;[31] and

   (5)a police officer.[32]

   [28] Section 20(3)(a)(i), read with s 20(1)(a).

   [29] Section 20(3)(a)(i), read with s 20(1)(b)(i).

   [30] Section 20(3)(a)(i), read with s 20(1)(b)(ii).

   [31] Section 20(3)(a)(ii), read with s 80(2)(a) ‑ (e).

   [32] Section 20(3)(a)(iii).

6. The first and third of these categories are defined by reference to the existence of authority to commence a prosecution.  In the first category, the authority arises under a written law; in the third, by writing by a public authority.  Thus, these categories broadly encompass what, on the appellants' submission, is required in order that the authorised person is 'acting in the course of his or her duties'. 

7. Significantly, the second category applies when, and only when, no person or class of person is authorised by a written law to commence a prosecution.  That is clear from the opening words, 'in any other case', in s 20(1)(b). 

8. In that framework, the phrase, 'acting in the course of his or her duties', cannot be read as importing a requirement that the person is authorised by statute to commence the prosecution. To do so would mean that the second category would never have any practical content. That is because satisfaction of the appellants' requirement of authority under the statute, said to arise from the opening phrase in s 20(3), would mean that the case was, anyway, within the first category of authorised persons in relation to an offence. Moreover, insofar as the appellants accept that a person authorised in writing by a public authority, such as by an instrument of delegation, may be acting in the course of his or her duties, that encompasses the third category, leaving the second category devoid of content.

9. Further, the appellants' construction of the phrase, 'acting in the course of his or her duties', makes no sense if it is applied to the first and third categories, as it would merely require what is already an express element of those two categories of the definition of 'authorised person in relation to an offence'.  In other words, application of the appellants' construction to the first and third categories would leave the phrase with no work to do.  The appellants submit that, in cases within the first and third categories, the phrase does different work, namely that it requires that the authorised person is not going off on a frolic of their own or playing out a private grudge.[33] Thus, on the appellants' construction, when the phrase is applied to the second category, it does work of a different character while, presumably, also doing work of the same character (namely, excluding the private grudge). On the face of things, there is no apparent reason for the phrase to have content of a different character when applied to one category of authorised person or another. Rather, it would be expected that the phrase has a coherent and consistent connotation. There is nothing in the text or structure of s 20 to justify giving the phrase a differential meaning and character in its application to different categories of the situations to which, by s 20(1), it is made applicable.

   [33] Appeal ts 12 ‑ 15.

10. In my opinion, the phrase 'acting in the course of his or her duties' has a single coherent meaning.  The object of the requirement that an authorised person be so acting is apparent from the statutory history outlined by Buss P.[34]  I agree with Buss P that an authorised person will be 'acting in the course of his or her duties', as an authorised person in relation to alleged offences, if the person performs the relevant actions in the discharge of his or her duties or functions as an employee of the public authority and those actions are connected with the alleged offences. 

    [34] [89] ‑ [94].

11. The appellants rely heavily on the decision of this court in A v Maughan.[35]That decision is distinguishable in a critical respect from the present case.  The decisive consideration in A v Maughan was that the Corruption and Crime Commission, of which the second respondent, Ms Baker, was an officer, had no power to prosecute and its functions did not include prosecution.  It was for that reason that Ms Baker was not acting in the course of her duties in commencing the prosecution.  The Commission had purported to authorise her to do so, thus no question of her personal authority arose.[36]  As the Chief Justice explained in A v Maughan:[37]

    Because the Commission's functions do not include the prosecution of the applicant, Ms Baker cannot have been acting in the course of her duties as an officer of the Commission when she commenced the criminal proceedings against the applicant. 

    [35] A v Maughan [2016] WASCA 128; (2016) 50 WAR 263.

    [36] A v Maughan [107].

    [37] A v Maughan [135].

12. For the reasons given by Buss P, and for these additional reasons, point 1 fails.

13. I agree with the orders proposed by Buss P.

    I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

    DR
    RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS

    29 JUNE 2018