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…
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- AGLC
- Bhalsod v Perrie [2016] WASC 412
- Case
- [2016] WASC 412
- Decision Date
CaseChat Overview and Summary
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.
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