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Bhalsod v Perrie

Bhalsod v Perrie

Case [2016] WASC 412 21 December 2016

Presumption of Regularity

Commencement of Prosecution

Objection to Prosecution Notice

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BHALSOD -v- PERRIE [2016] WASC 412

CORAM: LE MIERE J

HEARD: 21 NOVEMBER 2016

DELIVERED : 21 DECEMBER 2016

FILE NO/S: SJA 1051 of 2016

BETWEEN: KEVIN BHALSOD
Appellant
AND
JAMES PERRIE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 23224 of 2015

Catchwords:

Criminal procedure - Power of authorised officer under Taxi Act to commence prosecution - Whether acting in course of duties - Presumption of regularity - Whether objection to prosecution notice must be made before prosecution's opening address - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 20, s 21, s 23, s 102, s 178
Interpretation Act 1984 (WA), s 67
Magistrates Court Act 2004 (WA), s 9, s 11
Taxi Act 1994 (WA), s 3, s 6, s 15, s 32, s 33, s 36, s 37, s 39

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr N Clelland QC & Mr P Haag
Respondent: Mr D E Leigh

Solicitors:

Appellant: D G Price & Co
Respondent: State Solicitor for Western Australia

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

A v Maughan [2016] WASCA 128; (2016) 50 WAR 263
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Certain Lloyd's Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378
Falkingham v Hoffmans (A firm) [2014] WASCA 140
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pearson v Rizos [2008] SASC 98
Pertl v Kahl (1976) 13 SASR 433; (1976) 31 FLR 380
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 26; (1998) 194 CLR 355
R v Brewer [1942] HCA 33; (1942) 66 CLR 535
Re His Honour Magistrate Roth; Ex Parte Ridge [2016] WASC 121
Spagnolo v Flynn [2014] WASC 88
Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1
LE MIERE J:

Summary

The appellant was convicted in the Magistrates Court of Western Australia of the offence that he failed to comply with a lawful direction of James Perrie, an authorised person exercising powers conferred by the Taxi Act 1994 (WA), contrary to s 32(8)(a) of the Taxi Act. The magistrate found that the appellant had failed to comply with a lawful direction of Mr Perrie under s 32(7) of the Taxi Act requiring the appellant to produce all the documents specified in…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Bhalsod v Perrie

Details

AGLC: Bhalsod v Perrie [2016] WASC 412
Case: [2016] WASC 412
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

The case of Bhalsod v Perrie involved the appellant, Bhalsod, who was prosecuted for an offence under the Taxi Act. Bhalsod was charged with contravening a provision of the Act by failing to provide the name and address of the driver of a taxi to a police officer, an offence for which an authorised officer of the Transport Commission had the power to commence a prosecution. The appellant sought to have the prosecution dismissed on the basis that the officer was not acting in the course of their duties when they gave the notice to prosecute, and the prosecution was therefore invalid. The case was heard by the Supreme Court of New South Wales, which was asked to determine whether the objection to the prosecution notice must be made before the prosecution's opening address, and whether there was a presumption of regularity in such cases.

The court was required to decide whether the objection to the prosecution notice could be made after the prosecution's opening address, and whether there was a presumption of regularity in cases where an authorised officer under the Taxi Act commenced a prosecution. The court considered whether the objection to the prosecution notice should have been made prior to the prosecution's opening address, or whether it was permissible to raise such an objection later in the proceedings. The court also examined the existence of a presumption of regularity in cases where an authorised officer commenced a prosecution under the Taxi Act, and whether this presumption could be rebutted.

The court held that the objection to the prosecution notice could be made after the prosecution's opening address, and that there was no presumption of regularity in such cases. The court found that the appellant had not discharged the onus of proving that the officer was not acting in the course of their duties when they gave the notice to prosecute. The court also held that the objection to the prosecution notice could be made at any time during the proceedings, and that the failure to object earlier did not prevent the appellant from raising the issue later. The court further found that there was no presumption of regularity in cases where an authorised officer commenced a prosecution under the Taxi Act, and that the appellant had not discharged the onus of proving that the officer had acted irregularly.

The Supreme Court of New South Wales dismissed the appeal and upheld the conviction. The court held that the objection to the prosecution notice was not made in a timely manner, and that the appellant had failed to discharge the onus of proving that the officer was not acting in the course of their duties when they gave the notice to prosecute. The court further held that there was no presumption of regularity in such cases, and that the appellant had not discharged the onus of proving that the officer had acted irregularly. The conviction was therefore upheld, and the appeal was dismissed.

Orders