Blenkinsop v Wilson
[2019] WASC 77
•13 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BLENKINSOP -v- WILSON [2019] WASC 77
CORAM: CORBOY J
HEARD: 4 MAY & 16 JULY 2018 (WITH FURTHER SUBMISSIONS ON 18 JULY 2018)
DELIVERED : 13 MARCH 2019
FILE NO/S: SJA 1061 of 2017
BETWEEN: ROSS ALEXANDER BLENKINSOP
Appellant
AND
EDWARD WILSON
Respondent
Catchwords:
Criminal law - Appeal against convictions - Breach of restraining order - Whether court granting order validly constituted - Collateral attack on order - Whether prosecution notice valid - Part 9AAA of the Corporations Act 2001 (Cth) - Whether prosecution breached duty of disclosure - Whether prosecution an abuse of process - Whether charge and prosecution for an improper purpose - Whether intention an element of the offence - Whether prosecution proved breach beyond reasonable doubt - Collateral evidence rule - Whether magistrate erred in finding that the appellant was not an expert on computer software and hardware and related matters - Whether prosecution had negatived the 'defences' provided by s 23A, s 23B and s 24 of the Criminal Code (WA) - Whether reasonable apprehension of bias - Whether actual bias - Whether appellant denied natural justice - Whether appellant received a fair trial - Whether appellant entitled to costs
Legislation:
Criminal Code (WA), s 23(1), s 23A, s 23B and s 24
Criminal Procedure Act 2004 (WA), s 21(2), s 132, s 176 and cl 5, sch 1 div 2
Result:
Leave to amend appeal notice
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | C M Beetham |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Aubertin v The State of Western Australia [2006] WASCA 229; 33 WAR 87
Bindai v Armstrong [2016] WASC 341
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 43
Cachia v Hanes (1994) 179 CLR 403
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Carney v The State of Western Australia [2010] WASCA 90
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Conomy v Maden [2016] WASCA 30
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
D v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377
De Bono v Southam [2018] WASCA 218
Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559
Dobree v Hoffman (1996) 18 WAR 36
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
GJ Coles & Coy Ltd v Goldsworthy (1985) WAR 183
Guss v Veenhuizen [No 2] [1976] HCA 57; (1976) 136 CLR 47
Higgins v The State of Western Australia [2016] WASCA 142
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Koani v The Queen [2017] HCA 42; (2017) 91 ALJR 1079
Krulow v Glamorgan Spring Bay Council [2013] TASFC 11; (2013) 306 ALR 315
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Manonai v Burns [2011] WASCA 165
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Minister for Immigration and Multi-Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Ninian v Valuer General (WA) [No 2] [2016] WASCA 170
O'Connell v The State of Western Australia [2012] WASCA 96
PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Brown [1998] AC 367
R v Falconer (1990) 171 CLR 30
R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
R v Mawji (Rizwan) [2003] EWCA Crim 3067
R v Wicks [1998] AC 92
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shaw v McGinty [2006] WASCA 231
Soia v Bennett [2014] WASCA 27
City of Mitcham v Fusco [2002] SASC 423; (2002) 124 LGERA 196
Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
La Rosa v City of Wanneroo [2006] WASC 304
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Samuels v The State of Western Australia (2005) 30 WAR 473
Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Shire of Collie v Smargiassi Nominees Pty Ltd [2017] WASC 238
Shire of Perth v O'Keefe (1964) 110 CLR 529
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
TABLE OF CONTENTS
The result..................................................................................................................................... 7
The trial and the magistrate's findings............................................................................................. 7
Some relevant principles............................................................................................................. 15
The statutory framework for the offence and its prosecution......................................................... 16
The grounds of appeal................................................................................................................ 24
Issues not considered ‑ s 78B notices and possible collateral attacks............................................ 25
The RO Act............................................................................................................................... 28
The prosecution notice................................................................................................................ 30
The constitution of the court granting the IVRO........................................................................... 34
The appellant as a 'whistleblower'................................................................................................ 36
Disclosure.................................................................................................................................. 47
The complaint allegedly made by Ms Holland on 10 October 2012.............................................. 53
Delay, adjournments and oppression........................................................................................... 56
The course of the prosecution..................................................................................................... 57
Disposition................................................................................................................................. 58
The conduct of the prosecution................................................................................................... 61
The elements of the offence......................................................................................................... 65
Burden of proof.......................................................................................................................... 67
The First Email........................................................................................................................... 68
Exhibit 3..................................................................................................................................... 68
The prosecution evidence and receipt of the First Email............................................................... 72
The issues in the trial................................................................................................................... 73
The relevance of Ms Holland's evidence...................................................................................... 74
The magistrate's findings.............................................................................................................. 74
The collateral evidence rule......................................................................................................... 75
Animosity between the appellant and Ms Holland........................................................................ 80
Other grounds relating to the evidence of Ms Holland and Senior Constable Wilson..................... 81
The appellant's credit and evidence............................................................................................. 83
Expert evidence.......................................................................................................................... 85
The appellant's claim to expertise................................................................................................ 85
Computer viruses........................................................................................................................ 87
Electrical interference.................................................................................................................. 88
Other matters............................................................................................................................. 89
Finding that the appellant sent the First Email............................................................................... 90
Defences and excuses................................................................................................................. 94
The distinction between the act and the event............................................................................... 94
The evidentiary onus................................................................................................................... 96
The appellant's evidence............................................................................................................. 97
Ms Ross' evidence...................................................................................................................... 97
The act and the event in this case................................................................................................. 98
Accident................................................................................................................................... 101
Mistake.................................................................................................................................... 101
Natural justice.......................................................................................................................... 106
Alleged bias.............................................................................................................................. 108
Costs....................................................................................................................................... 110
A final word............................................................................................................................. 113
CORBOY J:
The appellant was charged with two offences under s 61(1) of the Restraining Orders Act 1997 (WA) (RO Act). He was convicted following trial in the Magistrates Court of the charge that, on 13 April 2015, having been personally served with a violence restraining order, he breached that order by communicating with the person protected (the First Charge). The learned magistrate found there was no case to answer on the second charge.
The appellant was sentenced to a conditional release order for a period of six months with a written undertaking to pay $500 if he committed an offence during the period of the order. The magistrate also made a spent conviction order under s 45 of the Sentencing Act 1995 (WA).
The appellant applied for leave to appeal against his conviction and sentence by notice filed on 30 October 2017. The notice incorporated 46 grounds of appeal. The grounds of appeal alleged errors in respect of the appellant's conviction, except for one ground that complained the magistrate had erred by not awarding the appellant costs.
The appellant subsequently indicated he wished to add further grounds of appeal. Martino J directed the appellant file a document containing all proposed grounds of appeal. The question whether the appellant should be granted leave to amend his grounds of appeal and whether he should be granted leave to appeal in respect of any of the proposed grounds were referred to the hearing of the appeal.
The appellant subsequently filed a document entitled 'Consolidated Grounds of Appeal' which contained 498 'grounds'. A number of those grounds made multiple assertions.
Section 8(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal may be made from a decision of a court of summary jurisdiction to this court on one or more of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
The section requires a ground of appeal identify precisely the error of law and/or fact made by the court or the basis upon which the court acted without or in excess of jurisdiction or the reason why there has been a miscarriage of justice. The appellant's grounds of appeal do not meet that requirement. Although a number of grounds commence with an allegation that the magistrate made an error of fact or law, many of the 'grounds' merely contain assertions, argument and submissions.
The appellant acted in person at the trial and in the appeal. However, he is an admitted legal practitioner. It appears he has not practised in the area of criminal law. Nevertheless, it is to be expected a party with legal training would more adequately comply with the requirements for pleading grounds of appeal.
I do not propose to separately address each ground. Rather, I have grouped the grounds into categories of alleged error. Inevitably, there is some overlap between the categories for some grounds[1]. The categories are set out at [67] below.
[1] The respondent also grouped the grounds into categories of alleged error. The categories that I have adopted are different to those identified by the respondent.
The result
For the reasons that follow, I have concluded that none of the appellant's proposed grounds of appeal have a reasonable prospect of success. Accordingly, leave to appeal on each ground will be refused and the appeal will be dismissed.
The trial and the magistrate's findings
The charges alleged against the appellant related to an interim violence restraining order (the IVRO) obtained by the appellant's sister, Ms Holland. The IVRO was made on 12 September 2014. It was granted at a first hearing held before two justices of the peace in the absence of the appellant under s 26 RO Act.
The appellant and Ms Holland have a brother, Scott Blenkinsop, and two sisters, Ms Jakovich and Ms Thurtell. Their parents are Judith and Frederick Blenkinsop.
Frederick and Judith Blenkinsop created two discretionary trusts ‑ the Blenkinsop Family Trust and the Blenkinsop Family Trust No 2 (the Family Trusts). The Family Trusts were administered by corporate trustees, Blenkinsop Nominees Pty Ltd and Silverglade Pty Ltd (the Corporate Trustees). Following the death of Frederick Blenkinsop, Judith Blenkinsop appointed her children as directors of the Corporate Trustees.
Disputes developed between family members concerning the affairs of the Family Trusts, the Corporate Trustees and related matters. The disputes have been litigated in the State Administrative Tribunal, the Fair Work Commission and this court. Eventually, the Corporate Trustees were replaced with an independent trustee, Mr Herbert.
It appears that the appellant and Scott Blenkinsop were the principal protagonists in the family disputes. However, it was apparent from the evidence in the trial that there was also considerable animosity between the appellant and Ms Holland (although, an observation made by the magistrate to that effect is the subject of grounds 189 - 196).
The IVRO provided that, except as set out in part B, the appellant was not to communicate or attempt to communicate with Ms Holland by any means whatsoever, including SMS or text messages or other electronic means. Part B of the order provided that the appellant would not be in breach of the order if he:
(a)communicated with Ms Holland through a legal practitioner acting for him; or
(b)participated in and attended court events in proceedings in which Ms Holland and he were parties or witnesses.
Ms Holland alleged that on 13 April 2015 she received an email sent by the appellant (the First Email).[2] The email stated it was from 'ross B'; that it was sent at 2.52 pm on 13 April 2015 and was addressed to Chris Bailey (a lawyer acting for Judith Blenkinsop) and the associate to Allanson J, with copies ('Cc') to Kerrine and Scott Blenkinsop, Ms Holland, Ms Jakovich and Paul Donovan (a lawyer acting for Ms Thurtell). The email message stated:
Dear Chris
As Kim Scott and Tracey are no longer directors is there any point including them as parties to the action?
Regards
Ross
[2] Exhibit 3.
Ms Holland also alleged she received another email sent by the appellant on 21 April 2015 (the Second Email). That allegation was the subject of the further charge (the Second Charge).
The magistrate was satisfied at the conclusion of the prosecution case that the appellant had no case to answer on the Second Charge. The Second Email incorporated an email message from the appellant to Scott Blenkinsop and Ms Holland. However, his Honour found the Second Email had been sent to Ms Holland by her lawyer and accordingly, the appellant had not contravened the IVRO.
The prosecution called two witnesses: Ms Holland and the respondent, Senior Constable Wilson. The appellant elected to give evidence. He also called his partner, Ms Ross, as a witness.
The principal factual issues to be determined in the trial were whether the appellant had sent the First Email and whether he had breached the IVRO by sending the Second Email. The evidence in chief given by Ms Holland and Senior Constable Wilson was short. Nevertheless, the trial occupied five hearing days.
It is not necessary to provide a narrative account of the evidence presented in the trial. The evidence relevant to certain grounds of appeal is further identified below.
The appellant did not admit sending the First Email. He made a number of submissions as to why the prosecution had failed to establish his guilt beyond a reasonable doubt. The magistrate summarised those submissions in his Reasons for Decision (Reasons) as follows:
(1)the prosecution had failed to prove the appellant had sent the First Email;
(2)alternatively, the prosecution had not excluded the possibility the First Email was sent independently of the exercise of the appellant's will or had otherwise been sent by accident or mistake;
(3)if he had communicated with Ms Holland, the appellant had done so 'unwittingly and as a result of entrapment and/or other improper conduct';
(4)the appellant was protected from criminal liability as he qualified for whistleblower protection under pt 9.4AAA of the Corporations Act 2001 (Cth);
(5)the IVRO was invalid as the court that made the order was not validly constituted and therefore, lacked jurisdiction;
(6)the prosecution was invalid as the prosecution notice did not comply with the requirements of s 23 of the Criminal Procedure Act 2004 (WA) (CPA);
(7)the prosecution was not valid as the First Charge was dropped on 20 May 2016;
(8)the First Charge was invalid as it did not comply with the International Covenant on Civil and Political Rights (1976) and the Universal Declaration of Human Rights (1948), being treaties to which Australia is a signatory;
(9)the First Charge was invalid as the RO Act is inconsistent with what the appellant referred to as 'the Discrimination Act' in his written submissions and which the magistrate referred to as the 'Discrimination Act 1991 (Cth)', but which I assume was intended to be a reference to the Sex Discrimination Act 1984 (Cth) having regard to the submissions that were made by the appellant;
(10)the prosecution ought to have been stayed on the ground that it was an abuse of process as it was brought for an improper purpose and/or because of undue delay and/or because of a defect in the prosecution notices.
The magistrate made findings about the credibility of Ms Holland, Senior Constable Wilson, the appellant and Ms Ross. The magistrate accepted that, at times, Ms Holland was inconsistent and vague when answering questions put to her by the appellant, particularly about familial and trust matters, and there were occasions when she failed to recall specific details about those matters. However, her evidence had to be viewed against the background of 'vigorous and sustained cross‑examination' by the appellant and the fact that much of his cross‑examination concerned matters that were collateral to the issues to be determined. His Honour found Ms Holland was a truthful and reliable witness:
I have no reason to disbelieve or reject her evidence on the critical issue of having received an email, apparently from the [appellant] on 13 April 2015. Indeed in that regard I believe her.[3]
Having made those findings, the magistrate rejected a submission that the First Email was a concoction.
[3] Reasons [34].
Senior Constable Wilson gave evidence that he spoke to the appellant about the alleged breach of the IVRO on 18 April 2015. He stated that, after being cautioned, the appellant said he had accidently sent an email to his solicitor but had immediately retracted it. The appellant disputed he made that statement to Senior Constable Wilson and it was not part of the prosecution case that the First Email had been sent to the appellant's solicitor.[4] Nevertheless, the magistrate assumed the evidence was relied on as an admission against interest. His Honour concluded he was not prepared to rely on the evidence as it was disputed and was not recorded 'in any formal way and had not been adopted'. The magistrate otherwise rejected a number of submissions made by the appellant concerning the conduct of Senior Constable Wilson.
[4] The appellant was, at the time, unrepresented in the proceedings in this court involving the Family Trusts and the Corporate Trustees.
The magistrate observed that much of the appellant's evidence was directed to collateral issues 'only tangentially relevant to the matters in issue'. There was no particular reason to prefer the appellant's evidence to that of Ms Holland and much of the appellant's evidence was self‑serving and 'not particularly pertinent to the critical issues'.[5]
[5] Reasons [45].
His Honour further observed:
On the critical issue of whether he sent the email on 13 April 2015 [the appellant] did not give any detailed evidence of his circumstances and/or movements at the time that the email was allegedly sent. Rather than advance evidence of his own conduct at the time, he introduced a number of exculpatory theories lacking in detail as to time, place and circumstances. I did not find such to be particularly useful.[6]
[6] Reasons [45].
The magistrate accepted that Ms Ross was a truthful witness but 'her evidence as to time, place and circumstance on the relevant day was, however, quite vague'. His Honour considered Ms Ross' evidence was 'limited in value' and 'at best simply supports various speculative theories advanced by the [appellant]'.[7]
[7] Reasons [46] ‑ [47].
The magistrate concluded that Ms Holland had received the First Email - she stated she had received the email; the email was sent to her email account; and the email identified her as a recipient.[8]
[8] Reasons [51].
The magistrate further concluded that the First Email had been prepared by the appellant.[9] It was signed 'regards Ross', which was consistent with how he had signed off on other business related emails;[10] the email was sent in response to an earlier email from the lawyer acting for the appellant's mother; the email concerned the dispute between family members over the Family Trusts and it expressed the view that Ms Holland was not a director of the Corporate Trustees, a belief the appellant, in particular, held.
[9] Reasons [54].
[10] See the examples in Exhibit 43.
The remaining and principal issue the magistrate was required to determine was whether the First Email had been sent by the appellant. The appellant contended that the prosecution could not exclude beyond a reasonable doubt that the email was sent by Ms Ross waking the computer by pressing buttons on the keyboard or moving the mouse or by placing books on top of the keyboard when cleaning; or by a computer virus; or as the result of an electrical fault which interfered with the operation of the computer and caused it to send the email without human intervention.
As to those possibilities, the magistrate found:
(a)Ms Ross had no recollection of touching the computer on the date on which the First Email had been sent or placing items on the keyboard and consequently, there was no 'cogent and acceptable evidence' from which it could be concluded Ms Ross had interacted with the computer to cause the email to be sent. The suggestion that she may have done so was 'entirely speculative'.[11]
(b)The appellant claimed relevant expertise as he had a degree in electronics engineering and had worked on computers for many years. However, the magistrate considered the appellant's evidence did not address particular knowledge of the technical workings of computer viruses. Further, the appellant's evidence 'was generalised and did not go beyond issues of common knowledge'.[12]
(c)The appellant's evidence did not indicate whether his home computer had a virus on 13 April 2015 or, if it did have a virus, the evidence did not establish the nature of the virus and whether it could have caused the First Email to be transmitted without human intervention.
(d)The appellant gave evidence that a heater and his computer operated off the same power source and the heater had a faulty connection. The appellant claimed arcing may have caused the First Email to have been sent. The magistrate accepted the appellant's evidence, and that of Ms Ross, that the heater sometimes caused the power to come on despite being turned off. However, there was no evidence from which it could be concluded that the heater had been turned on and had caused an electrical arc on 13 April 2015. Further, there was no expert evidence as to the effects of arcing on the operation of the appellant's computer and in particular, its email program.
[11] Reasons [60] - [62].
[12] Reasons [66].
The magistrate concluded that the evidence to support the appellant's contention that the email was not sent as a result of a willed act by him 'was so speculative that [it] was incapable of forming a proper foundation for the defence' so 'the presumption of voluntariness had not been in any way displaced and the prosecution have disproven the possibility beyond a reasonable doubt.'[13]
[13] Reasons [82].
The appellant also suggested he may have accidently sent the First Email (for the purpose of s 23B of the Criminal Code) by pressing on the keys of the keyboard or otherwise manipulating the mouse without intending the email be sent. However, the evidence established that sending an email required 'specific controlled actions such as manipulating the mouse to facilitate the send' or by simultaneously pressing the 'control' and 's' keys on the keyboard.[14] The magistrate concluded the appellant had intentionally sent the email given those physical requirements.
[14] Reasons [91].
His Honour further found that:
(a)any belief the appellant may have held that Ms Holland's name did not appear in the address box for the First Email was not a reasonable belief and accordingly, the prosecution had negatived the 'defence' provided by s 24 of the Criminal Code;[15]
(b)the First Email did not refer to any alleged contravention of the Corporations Act so the sending of the email did not satisfy the requirement for whistleblower protection prescribed by s 1317AA(1) of the Corporations Act;[16]
(c)the prosecution notice was validly lodged having regard to the Criminal Procedure Regulations 2005 (WA) (CP Regulations), the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA) (Electronic Processes Facilitation Act) and the fact that the prosecutor produced a signed copy of the prosecution notice at the trial;[17]
(d)variations between the prosecution notice and the form prescribed by the CP Regulations were not material and did not invalidate the notice;[18]
(e)the amendments that were allowed to the prosecution notice did not mean a fresh prosecution had been commenced;[19]
(f)the fact that there were no documents on the court file relating to the constitution of the court that made the IVRO did not mean there had been a failure to comply with the Magistrates Court Regulations 2005 (WA) (MC Regulations) and the presumption of validity created by s 34 of the Magistrates Court Act 2004 (MC Act) had not been rebutted;[20]
(g)there is no defence of entrapment recognised in Australian Law and there was no evidence that the IVRO had been improperly obtained;[21]
(h)the international instruments to which the appellant referred did not form part of the domestic law of Western Australia in a manner relevant to the determination of the First Charge;[22]
(i)there was no relevant inconsistency for the purpose of s 109 of the Constitution between the provisions of the RO Act and the 'Discrimination Act 1991';[23]
(j)there was no evidence to support the allegation that the prosecution had been commenced for an improper purpose.[24]
[15] Reasons [100].
[16] Reasons [112] - [113].
[17] Reasons [117].
[18] Reasons [124] - [125].
[19] Reasons [128].
[20] Reasons [135] - [137].
[21] Reasons [143].
[22] Reasons [145].
[23] Reasons [147].
[24] Reasons [156] - [159].
Some relevant principles
Section 9 of the Criminal Appeals Act provides that leave of the court is required for each proposed ground of appeal. The court must not grant leave unless it is satisfied the proposed ground has a reasonable prospect of success. In Samuels v The State of Western Australia[25] the Court of Appeal stated:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.[26]
[25] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[26] Samuels v The State of Western Australia [56].
There are 'natural limitations' on an appellate court reviewing findings of fact from the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share … Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[27]
[27] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ).
Accordingly, a finding of fact based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate the finding was erroneous or where it is concluded the finding was glaringly improbable or contrary to compelling inferences.[28] A credibility based finding may also be set aside where the primary decision maker failed to use or 'palpably misused' the advantage of seeing the witnesses give their evidence.
[28] See Fox v Percy [29].
However, a distinction must be drawn between facts found on the basis of an assessment of a witness's credibility and inferences drawn from facts that were undisputed or found by the trial judge. The distinction was explained by Kirby J in CSR Ltd v Della Maddalena:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.[29]
[29] CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] ‑ [22].
The statutory framework for the offence and its prosecution
The RO Act
The RO Act, as enacted at the time the IVRO was granted, provided that a violence restraining order could be made if the court was satisfied the respondent had committed, and was likely again to commit, an act of abuse against the person seeking protection or a person seeking protection reasonably feared the respondent would commit an act of abuse: s 11A RO Act. The term 'act of abuse' was defined to mean an act of family and domestic violence or an act of personal violence. Section 6 of the Act further defined the terms 'act of family and domestic violence' and 'act of personal violence'. The definitions included behaving in a manner that was intimidating, offensive or emotionally abusive towards the person seeking protection or pursuing the person with intent to intimidate or acting in a manner that could reasonably be expected to intimidate, and which did, in fact, intimidate the person. An act of abuse also included threatening to behave in that way. Section 11A has been subsequently amended.
Section 12(1) of the RO Act (which has also been amended since the IVRO was made) provided that when considering whether to make a violence restraining order and the terms of the order the court was to have regard to various specified considerations, including the need to ensure that the person seeking to be protected is protected from acts of abuse and the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will be subjected to an act of abuse. Section 12(2) stipulated that the court was to have regard to those and certain other considerations as being of primary importance.
An application for a violence restraining order is made under s 25 of the RO Act to the Magistrates Court. The applicant may elect to have the first hearing of the application held in the absence of the respondent or proceed directly to a defended hearing. Where the applicant elects to have the first hearing held in the absence of the respondent, the registrar of the Magistrates Court is to fix a hearing for that purpose pursuant to s 26.
The first hearing is in closed court where the applicant elects to have the hearing held in the absence of the respondent. The applicant may provide evidence by affidavit in support of the application and the court must accept the affidavit in support of the matters alleged in the application and may determine the application on that evidence. At the hearing of the application, the court may make a violence restraining order which, if it is made for a period more than 72 hours, takes effect as an interim order to which pt 2A, div 4 of the RO Act applies.
Section 11 RO Act provides that a violence restraining order is to specify the name of the person for whose benefit the order is made and the name of the person on whose lawful activities behaviour restraints are imposed. The latter person is referred to in the RO Act as the person bound by the order.
Section 31 RO Act (which forms part of div 4) provides that the respondent to an interim order must complete his or her endorsement copy of the order and return it to the registrar of the Magistrates Court within 21 days of being served with the order. Section 32 provides that an interim order will become a final order if the respondent does not object or does not return the endorsement copy. The section also creates a procedure for setting aside a final order. Section 33 allows a respondent to endorse a copy of the interim order by indicating that he or she objects to the interim order becoming final. The section then provides for a hearing of the objection.
Section 61(1) provides that a person who is bound by a violence restraining order and who breaches the order commits an offence. The maximum penalty for the offence is a fine of $6,000 or imprisonment for 2 years or both.
Section 62(1) RO Act, at the time that the IVRO was made, provided that:
It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was -
(a)using a process of family dispute resolution, as defined in the Family Court Act 1997; or
(b)instructing, or acting through, a legal practitioner or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972, or using conciliation, mediation or another form of consensual dispute resolution provided by a legal practitioner; or
(c)acting in accordance with an action taken by a person or authority under a child welfare law, within the meaning of section 50B(4); or
(d)acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way.
The section was amended in 2016 to add a new paragraph (ca) that provided a defence where a person bound by a restraining order attended a court hearing in proceedings under the RO Act or any other written law. For obvious reasons, the appellant did not rely on any of the defences created by s 62.
Section 64 of the RO Act confers a right of appeal on a person aggrieved by the decision of the court to, among other things, dismiss an application for the violence restraining order or to make, vary or cancel a final order or to refuse to make, vary or cancel a final order.
The Criminal Code
Section 23(1) provides that:
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
Section 23A of the Criminal Code states:
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Section 23B of the Code provides:
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
Section 24 of the Code states:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The MC Act and the MC Regulations
The IVRO was made by two justices of the peace. Section 7 MC Act provides that the court may be constituted by two or more justices of the peace in circumstances prescribed by the regulations or another law.
Regulation 4 of the MC Regulations states:
(1)A JP must not constitute a metropolitan court, either alone or with another JP, unless he or she has been requested to do so by -
(a)a registrar; or
(b)a deputy registrar who has been directed by a magistrate or a registrar to make the request.
(2)A registrar must not request a JP to constitute a metropolitan court, and a registrar must not direct a deputy registrar to make such a request, unless -
(a)a magistrate has requested that the court be constituted by JPs; or
(b)it is not practicable for a magistrate to constitute the court at the time when and the place where the court has to sit.
Regulation 5 provides that two justices of the peace alone may deal with an application under the RO Act for a violence restraining order at a hearing in the absence of the respondent fixed under s 26(2) of the Act.
Section 32(1) of the MC Act provides that a court order takes effect according to its wording. Section 34(1) further provides that it is presumed in any case dealt with by the Court that the Court was constituted according to law and had jurisdiction to deal with the case. Section 34(7) states that those presumptions apply in the absence of proof to the contrary.
CPA and the CP Regulations
Section 21(2) CPA provides that a prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed. The prosecution is to be commenced by a prosecution notice. Section 23 states:
(1)Schedule 1 has effect in relation to prosecution notices and charges in them.
(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.
Clause 5 of sch 1 div 2 CPA provides that a charge in a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must:
(a)describe the offence with reasonable clarity;
(b)identify the written law and the provision of the law that creates the offence;
(c)identify with reasonable clarity the date when the offence was committed and where the offence was committed;
(d)if the offence is against a person, identify the person concerned.
Clause 5(2) further provides that for the purposes of cl 5(1), it is sufficient to describe an offence in the words of the written law that creates it; a charge is not defective only because an element of the offence is not stated and it is not necessary to allege any matter or particulars as to a person or thing that need not be proved or the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
Regulation 8 of the CP Regulations provides that a prosecution notice 'must be in the form of Form 3'. The regulation also specifies how a prosecution notice is to refer to more than one offence where there are multiple charges. However, s 74 of the Interpretation Act 1984 (WA) provides that 'where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used'.
Section 132 CPA concerns amending a charge. The section states:
(1)The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.
(2)The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.
(3)A court, on the application of the prosecutor, may amend a charge.
(4)Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.
…
(8)If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.
…
(10)A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -
(a)the amendment is material to the merits of the case; and
(b)the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and
(c)an adjournment would not overcome the prejudice.
Section 176 CPA provides that an order made by a court has effect according to its wording. Section 178 CPA states:
(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)This section is in addition to and does not affect the operation of section 132.
Regulations 4A and 4B CP Regulations provides that certain documents, including the forms contained in sch 1 to the regulations, may be completed and lodged electronically. Electronic completion involves an approved user entering the information required to complete the form in the court's electronic system.
Other relevant legislation
The effect of ss 6 ‑ 8 of the Electronic Processes Facilitation Act is that a document such as a prosecution notice may be prepared and lodged in an electronic form. Section 10 provides that if a provision of an Act requires a document to be signed, that requirement is taken to be satisfied if the document is authenticated in accordance with any regulations or rules of the court.
Rule 12 of the Magistrates Court (General) Rules 2005 (MC General Rules) provides for lodging a document electronically on the Magistrates Court's website. The rule further provides that a document that must be signed by or on behalf of a person cannot be lodged electronically under the rule unless the document is lodged by the person who signed it. Further, a document lodged electronically that is signed by the person by whom it is lodged is authenticated for the purposes of the Electronic Processes Facilitation Act if the court's website records the identity of the person who lodged the document and the name of the person who signed the document is stated in the electronic version of the document at any place where the person's signature is required.
The grounds of appeal
As mentioned, the grounds of appeal have been grouped into categories of alleged error. The categories are set out below in the order in which they have been dealt with in the reasons that follow. The order approximates the course of the prosecution rather than the order in which the grounds have been pleaded in the appellant's notice of appeal:
(a)the RO Act - grounds 442 - 447; 481;
(b)the prosecution notice - grounds 55; 59; 111 - 115; 165 and 166; 420 - 422; 424 - 427; 480;
(c)the constitution of the court making the IVRO ‑ grounds 135 ‑ 140; 428 - 435;
(d)the appellant as a whistleblower ‑ grounds 37 - 40; 104; 416 ‑ 418; 436 - 441;
(e)disclosure by the prosecution - grounds 1 - 8;
(f)delay, adjournments and 'oppression' - grounds 32 - 36; 64 - 71; 178 - 185; 224; 231 - 241; 340 - 342; 456 - 460; 464 and 465;
(g)the conduct of the prosecution: misrepresentation by the prosecutor; improper purpose; 'fraud on the court'; failure to act as a model litigant; and abuse of process - grounds 29 and 30; 162 - 164; 436 - 441; 448 - 455; 461 - 463; 479;
(h)the elements of the offence and burden of proof ‑ grounds 13 ‑ 16; 43 and 44; 46 and 47; 131 and 132; 277 ‑ 282 (dealing with whether the prosecution was required to prove a mental element); 147; 484 and 485 (concerning the burden of proof);
(i)the First Email - grounds 22 - 24; 26 - 28; 96 - 98; 99 - 102; 108 ‑ 110; 141 - 151; 156 - 161; 173 - 175; 186 - 188; 256 and 257; 268; 291 and 292; 296 and 297; 326 - 328; 353 and 354; 476;
(j)the prosecution evidence and credibility - grounds 19 ‑ 21; 72 ‑ 82; 90 - 95; 189 - 212; 298 - 304; 211 and 212; 293 - 295; 303 and 304; 311; 423; 486 - 491;
(k)the evidence of the appellant and Ms Ross and their credibility ‑ grounds 83 - 89; 170 - 172; 227- 237; 305 - 310;
(l)expert evidence - grounds 116 - 130; 252 - 255; 258 - 261; 348 ‑ 352; 355 - 363; 367 - 373;
(m)finding that the appellant sent the First Email ‑ grounds 99 ‑ 102; 141 - 151; 187 and 188; 213 - 226; 312 - 340; 374 - 381; 477 and 478;
(n)defences, excuses and related issues concerning the finding that the appellant sent the First Email - grounds 11 - 18; 43 - 45; 48 and 49; 131; 133 and 134; 167 - 169; 242 - 255; 262 - 267; 269 ‑ 276; 284; 339 - 354; 364 - 373; 382 - 415; 466 - 469;
(o)natural justice - grounds 9 and 10; 31; 50 - 59; 103 - 107; 239 ‑ 244; 419; 482 and 483;
(p)bias - grounds 25; 31; 60 - 63; 164; 471 - 475; 480;
(q)costs - grounds 176 and 177; 288 - 290.
In considering the grounds of appeal and the Reasons, I have:
(a)read the trial transcript and inspected the exhibits;
(b)asked for and been provided with a copy of the parties' written closing submissions in the trial - the submissions did not form part of the materials provided by either the Magistrates Court or, initially, the parties in the appeal;
(c)read the parties' written closing submissions;
(d)reviewed the parties' written and oral submissions in the appeal.
Issues not considered ‑ s 78B notices and possible collateral attacks
The appellant raised several issues in the trial which he characterised as 'jurisdictional issues' and which concerned not only the jurisdiction of the court to hear and determine the charges, but also the jurisdiction of the court that granted the IVRO. Further, the challenge to the jurisdiction of the latter court was not confined to submissions about the court's jurisdiction 'in the strict sense'[30] but extended to matters such as whether Ms Holland's application for the IVRO was an abuse of process and whether the RO Act was inconsistent with Commonwealth legislation or international treaties to which Australia is a signatory.
[30] See M Leeming, Authority to Decide - The Law of Jurisdiction in Australia (2012) at 1.1.
The magistrate apparently assumed it was open to the appellant to raise the validity of the IVRO and arguments about the circumstances in which the order was made as part of the prosecution of the charges. The way in which the prosecution was conducted most likely informed his Honour's approach. It is clear from the trial transcript that his Honour was acutely aware of the appellant's status as a self-represented litigant; his Honour was anxious not to curtail any arguments put by the appellant. Further, the prosecutor did not object to submissions made by the appellant on the ground that they raised matters that were irrelevant to, or could not be considered as part of, the determination of the charges. Moreover, the appellant's arguments were generally collapsed into a single, compendious submission that, for example, Ms Holland was motivated by an improper purpose in seeking the IVRO and in making a complaint to the police and the respondent had joined in the alleged abuse by bringing the First and Second Charges (the appellant's submissions in this respect did not draw a clear distinction between Ms Holland, the respondent and the prosecutor ‑ indeed, a number of the appellant's submissions in the trial and the appeal simply referred to 'the State').
As a consequence of the approach taken, the magistrate did not consider whether any of the 'jurisdictional issues' raised by the appellant constituted an impermissible collateral attack on the IVRO or whether it was necessary for notices to be issued under s 78B of the Judiciary Act 1903 (Cth). In the appeal, the respondent again did not raise as an issue whether any of the appellant's grounds constituted a collateral attack on the IVRO and neither party referred to the possibility that s 78B notices might be required.
Having regard to the approach adopted by the parties, I do not propose to consider, in substance, those issues. I will make some further, but limited, observations to ensure that the parties fully understand why they have been noted but not further considered.
As for s 78B notices, the appellant alleged that there is s 109 of the Constitution inconsistency between the RO Act and the Sex Discrimination Act.[31] The relevant ground is dealt with below, but there is no arguable basis for the allegation of inconsistency. Accordingly, I did not direct that notices be given under s 78B: see O'Connell v The State of Western Australia[32] (a matter that is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation) and Shaw v Jim McGinty in his capacity as Attorney General[33] (if the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all).
[31] The appellant simply referred to "Federal and State discrimination legislation" and the magistrate erroneously referred to the "Discrimination Act 1991". As noted earlier, I have assumed that the appellant and the magistrate intended to refer to the Sex Discrimination Act.
[32] See O'Connell v The State of Western Australia [2012] WASCA 96 [90].
[33] Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231.
The decision of Martino J in Bindai v Armstrong[34] indicates that there may be cases in which an accused person can be acquitted of a charge under s 61(1) RO Act by establishing that the relevant restraining order was not validly made ‑ that is, the order was made by a court that lacked jurisdiction because an essential precondition to its exercise had not been satisfied. In such a case, the order has no legal effect and, accordingly, an allegation of breach must fail. However, three points should be made about his Honour's decision in Bindai v Armstrong.
[34] Bindai v Armstrong [2016] WASC 341. See also Cramphorn v Bailey [2012] WASC 462 in which Hall J considered an argument on appeal from conviction for an offence against s 61(2) RO Act that a police order was invalid as it had not been served on the person protected. His Honour had that service was not essential to the validity of the order notwithstanding the requirement for service imposed by s 30E RO Act.
First, as his Honour recognised, there is a distinction between a statutory provision that makes the exercise of jurisdiction conditional on the actual existence of a fact (if the fact does not actually exist the court lacks jurisdiction) and a provision that makes the exercise of jurisdiction conditional on the decision‑maker forming an opinion about the existence of a fact (the court has jurisdiction over the subject matter so long as the decision-maker has formed the required opinion and that is so even if the fact does not actually exist).
Second, many statutory provisions that affect the exercise of a court's jurisdiction do not, as a matter of construction, impose requirements that are essential to the existence of jurisdiction. The provisions condition the exercise of the court's powers rather than the existence of jurisdiction in the strict sense.
Third, a collateral attack in proceedings on an order made by a court in earlier proceedings may, in some instances, be impermissible. The appellant in R v Wicks[35] was prosecuted for failing to comply with a notice issued by a local authority requiring remedial work to a building. He sought to defend the charge by alleging that the authority had acted in bad faith and had been motivated by immaterial considerations in issuing the notice. The trial judge held that it was not open to the appellant to question the propriety of the decision to issue the notice in the criminal proceedings. That decision was upheld by the Court of Appeal and the House of Lords. It was said that whether a defendant, charged with failing to comply with an order made under statutory powers, was entitled to defend a criminal charge by challenging the lawfulness of the order depended on the construction of the statute under which the prosecution was brought and whether the statute indicated which forum was appropriate to challenge the validity of the order. A statute might require the prosecution to prove that the order was not open to challenge on any ground in prosecuting a breach or provide that it was a defence to show that the order was open to challenge. On the other hand, the statute might merely require that the order appear formally valid and had not been set aside or quashed. In that case, the making of the order could not be collaterally attacked in the prosecution on grounds such as that the order had been made in bad faith or for an improper purpose.
[35] R v Wicks [1998] AC 92.
The question whether it is open to challenge an earlier order in subsequent proceedings was also discussed in Director of Housing v Sudi[36] and Krulow v Glamorgan Spring Bay Council.[37] In this case, there may have been an issue as to whether the appellant was entitled to defend the First Charge on the grounds such as that the IVRO had been obtained for an improper purpose or whether allegations of that kind could only be raised in proceedings under s 33 RO Act, with a right of appeal under s 64. However, as has been indicated, it is not proposed to further consider the issue having regard to the way in which the parties conducted the prosecution and the appeal. I would only add that there are policy considerations that may bear upon the question of statutory construction that is involved - at least where, as in this case, what is sought to be attacked is an order of the court. As a matter of policy, court orders should be obeyed unless and until set aside. Further, there is a public interest in finality.
[36] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559.
[37] Krulow v Glamorgan Spring Bay Council [2013] TASFC 11; (2013) 306 ALR 315.
The RO Act
At trial, the appellant submitted the RO Act did not comply with the requirements of the International Covenant on Civil and Political Rights (1976) and the Universal Declaration of Human Rights (1948) and accordingly, the Act was invalid and the charges against him could not be maintained. The magistrate rejected that submission, observing that 'those international instruments do not form part of the domestic law of Western Australia in a manner that is relevant to the determination of this charge'.[38]
[38] Reasons [145]. The magistrate's finding is challenged in grounds 442 & 481.
His Honour was right to reject the appellant's submission on that basis. The fact that Australia is a signatory to various international agreements may be relevant to the interpretation of legislation under the 'Teoh' principle:
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.[39]
[39] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ & Deane J).
Some doubt has been expressed about the basis for that principle[40] but, in any event, the principle does not provide a basis for contending that legislation such as the RO Act is 'unconstitutional' and 'invalid'.
[40] See, for example, Pearce DC and Geddes RS, Statutory Interpretation in Australia (2014, 8th ed) at 3.13.
The appellant further contended that the RO Act 'discriminates based on gender as the vast majority of offenders are male' so that the Act is 'unconstitutional and invalid as it is an affront to State and Federal discrimination Acts and is not for good government'.[41] The magistrate observed that there is no relevant inconsistency for the purposes of s 109 of the Constitution between the RO Act and what he referred to as the 'Discrimination Act 1991' (but which I have taken to mean the Sex Discrimination Act as there is no Commonwealth Discrimination Act).
[41] Grounds 444 & 445.
There is no inconsistency between the RO Act and the Sex Discrimination Act. Each Act covers different subject matters and give effect to particular, and different, policy and social concerns.
Further, there is no question of interpretation of the RO Act that could require consideration of the Equal Opportunity Act 1984 (WA). The Acts cover different subject matters and there is no inconsistency between the two Acts that would require reconciliation by a process of statutory interpretation.
It is necessary to make two further comments. First, there can be no doubt that the RO Act was within the legislative power conferred by s 2 of the Constitution Act 1889 (WA) on State Parliament. Second, if, as the appellant asserts, the majority of respondents to applications under the RO Act are male (and it must be remembered that the Act provides for a variety of orders and not just violence restraining orders), that is a consequence of social, cultural and related factors and not some form of discrimination that has been given legislative sanction.
There is no merit in the allegations made in grounds 442 - 447 and 481.
The prosecution notice
The appellant alleged that:
(a)the prosecution notice did not comply with the requirements of s 23 CPA as it was not signed and was not 'on the right form' and accordingly, the notice, the charge and the prosecution were invalid - linked to those allegations was a further complaint that the magistrate erred in permitting the prosecutor to produce a signed copy of the notice at the commencement of the trial;[42]
(b)the magistrate erred by concluding that the Interpretation Act 'took precedence' over the CPA;[43]
(c)the magistrate erred in permitting the respondent to amend the prosecution notice;[44]
(d)the effect of amending the prosecution notice was that the prosecution was commenced outside the 12 month period stipulated by s 21(2) CPA;[45]
(e)the decision of the Court of Appeal in Calandra v Civil Aviation Safety Authority[46] was 'not good law' as it leads to absurd results and the magistrate erred in applying the decision.[47]
[42] Grounds 111 - 112; 420 - 422.
[43] Grounds 113 - 115.
[44] Grounds 59, 165 - 166.
[45] Grounds 165, 166 & 424 - 427.
[46] Calandra v Civil Aviation Safety Authority [2015] WASCA 31.
[47] Ground 480.
The respondent's application to amend the prosecution notice was made at the commencement of the trial. The notice originally alleged that the appellant 'having been personally served with a violence restraining order … breached that order by emailing the protected person'.[48] Accordingly, the effect of the amendment proposed and allowed was to delete the words 'emailing the protected person' and substituting the words 'communicating with the person protected'.
[48] Exhibit 17.
The appellant opposed the application to amend on the grounds that he was taken by surprise; he did not know the case he was required to meet as a result of the amendment; and he did not know the effect the amendment might have on his legal position, particularly on submissions about 'jurisdictional issues' that he intended to make.[49]
[49] ts 2 & ff (20 May 2016).
The magistrate allowed the application to amend and offered to adjourn the trial to enable the appellant to consider the effect of the amendment. The appellant declined the offer - although, at the time that the offer was made the appellant was primarily concerned with arguing that the amendment should not be permitted given the time that had elapsed since the prosecution notice had been lodged. In the event, the magistrate considered that the prosecution had to be adjourned pursuant to s 132(8) CPA once the amendment was allowed.[50] No doubt his Honour reached that conclusion in light of the appellant's submissions concerning the possible effect of the amendments.
[50] ts 16 (20 May 2016).
As the prosecutor correctly observed when applying for the amendment, the actual way in which the appellant was alleged to have breached the IVRO was a particular of the charge. The offence was sufficiently described for the purpose of cl 5 of sch 1 div 2 of the CPA without specifying the act that constituted the alleged breach - the 'means' by which the offence was allegedly committed. Further:
(a)the amendment did not alter the prosecution case - the breach alleged at trial was sending an email to Ms Holland on the date particularised in the charge and consequently, the appellant was not prejudiced by the amendment;
(b)the effect of the amendment was not to allege a new offence for the purpose of s 21(2) CPA - the amendment merely specified the alleged breach by reference to the terms of the IVRO and the prosecution of the charge against the appellant was not time barred.
As mentioned, the appellant contended the prosecution notice did not comply with s 23 CPA as the notice was on the 'wrong form' and was not signed. That submission was made by reference to the prosecution notices tendered as exhibit 17 and exhibit 18, which were the prosecution notices the appellant stated had been served on him. The layout of those prosecution notices was a little different to the layout shown in Form 3, sch 1 to the CP Regulations. However, contrary to the appellant's allegation in ground 421, the prosecution notices served on the appellant contained all the information specified by Form 3 and accordingly, the notices were 'in the form of Form 3' in every substantive respect. The prosecution notices complied with the requirements of reg 8 of the CP Regulations; indeed, the prosecution notices served on the appellant were in a form that is commonly used in the Magistrates Court. The notices were not invalid having regard to their contents.
The magistrate did not find that the Interpretation Act 'took precedence' over the CPA. In any event, the CPA and CP Regulations prescribe the content and form of a prosecution notice. Neither the Act nor the Regulations specify the consequences of a departure from what is prescribed, whereas s 74 of the Interpretation Act provides generally for the consequences for a departure from a prescribed form. The magistrate did not make an error in dealing with the appellant's submissions that the prosecution notice was invalid.
It is apparent from comments made by the magistrate that the prosecution notice had been electronically completed and lodged as permitted by the CP Regulations, read with the Electronic Process Facilitation Act. The prosecution notices served on the appellant reflected that fact. Accordingly, the notices did not bear the respondent's signature but rather contained a statement as to the date on which the notice was signed and the name of the respondent as the person who had signed the notices. The notices accorded with the Electronic Process Facilitation Act and the MC General Rules. The signature of the respondent was authenticated by compliance with the Rules.
Further, the prosecutor produced at trial the signed prosecution notice and the magistrate was satisfied that the requirements of s 23 CPA had been met by a combination of Electronic Process Facilitation Act, the CPA Regulations, the MC General Rules and the production of signed prosecution notice by the prosecutor.[51] The magistrate was right to conclude that the requirements of s 23 CPA had been satisfied in that way.
[51] ts 15 (20 May 2016). The magistrate mistakenly referred to the Electronic Transactions Act 2011 (WA) in his oral reasons. He corrected the statutory reference in his Reasons at [117].
Moreover, the magistrate did not err by permitting the prosecutor to produce a signed copy of the notice in response to the appellant's submissions. The signed copy was not 'inadmissible' on the question of the validity of the notices once the appellant had put that matter in issue and having regard to the statutory provisions relating to the electronic filing of documents.[52]
[52] Ground 55. The respondent was not required to serve a copy of the signed notice on the appellant prior to trial having regard to the statutory provisions relating to electronic filing and the prosecution's obligations of disclosure.
Those conclusions are sufficient to dispose of the grounds of appeal concerning the prosecution notice and the amendment of the charge. However, one further matter should be mentioned.
The appellant relied on the decision of the New South Wales Court of Criminal Appeal in R v Janceski[53] to contend, in effect, that strict compliance with the requirements of s 23 and cl 5 of sch 1 div 2 of the CPA was a precondition to the exercise of the magistrate's jurisdiction to hear and determine the charges alleged against him. The Court of Criminal Appeal held in that case that a prosecution was null and void as the indictment did not comply with the requirements of Criminal Procedure Act 1986 (NSW). However, as McLure P explained in Russell v The State of Western Australia,[54] there are material differences between the CPA and its New South Wales equivalent. Further, s 132 and s 178 CPA demonstrate a clear and unequivocal statutory intention that a failure to comply with those provisions of sch 1 div 2 concerning indictments does not necessarily invalidate an indictment and deprive a superior court of jurisdiction.[55]
[53] R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10.
[54] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326.
[55] Russell v The State of Western Australia [28].
Russell v The State of Western Australia was referred to with apparent approval by Martin CJ in Calandra v Civil Aviation Safety Authority in the context of a 'defective' prosecution notice rather than an indictment.[56] In Calandra, a prosecution notice that required signing in the presence of a justice of the peace had been signed in the presence of a justice of the peace appointed in and for the State of New South Wales rather than a justice of the peace in and for the State of Western Australia. Accordingly, the prosecution notice did not strictly comply with the requirements of s 23 CPA and it was contended on appeal that the Magistrates Court lacked jurisdiction to hear and determine the charge on which the appellant had been convicted.
[56] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 (Mazza & Hall JJ agreed with the reasons of Martin CJ).
The Court of Appeal held that the jurisdiction of the Magistrates Court did not depend on the execution of a valid prosecution notice complying in all respects with the requirements of s 23 CPA. A non‑complying notice could be amended under s 178; indeed, the court is required to correct a document such as a prosecution notice if it is defective but the defect is not material to the merits of the case and the court retains a discretion to correct a defect in any other case. Section 178 is a remedial provision that is intended to prevent defects in originating processes causing criminal proceedings to miscarry. It would be inconsistent with the section to construe the CPA as requiring strict compliance with the requirements of s 23 for a prosecution notice to be valid and the court to have jurisdiction to hear and determine the charge alleged by the notice.
The magistrate rightly found that there were no defects in the prosecution notice in this case. However, his Honour would have been required to correct the notice if there had been any defect unless the defect was material to the merits of the case - and even then, the court would have retained a discretion to permit an amendment. Plainly, the 'defects' alleged by the respondent were not material to the merits of the case.
Finally, there is no merit in the appellant's submission that the magistrate ought to have refused to follow Calandra. The magistrate was bound to follow what was a unanimous decision of the Court of Appeal, as is this court. There is also no basis for the submission that the decision leads to absurd results.
The constitution of the court granting the IVRO
The appellant stated that he had inspected the court file for Ms Holland's application for the IVRO and had been unable to locate any document establishing that a direction had been given under reg 4 of the MC Regulations. He contended the prosecution bore an onus to prove that the IVRO had been validly made and accordingly, it was required to produce proof that a direction had been given under the regulation.
There is nothing in the MC Regulations or the MC Act which requires the registrar to create a document recording the matters to which reg 4 and reg 5 refer. Section 26(2) of the RO Act requires the registrar to fix a hearing date and the fixing of that date, and the listing of the application before two justices of the peace, may constitute the request to which reg 4(1) refers. MC Regulation 4(2) permits a registrar to determine that it is not practicable for a magistrate to constitute the court at the time when, and in a place where, the court is to sit to determine an application under s 26 of the RO Act. The MC Regulations do not require the registrar to formally record that determination and it would be most surprising if there was any document recording such a determination apart from the listing of the application before two justices of the peace. The absence of any document recording a determination under reg 4 is not, in my view, 'evidence to the contrary' for the purposes of s 32(7) of the MC Act.[57]
[57] That was the finding made by the magistrate: Reasons [135] - [137].
Further, the question whether compliance with the MC Regulations conditions the jurisdiction of two justices of peace to hear an application under s 26 of the RO Act is to be determined according to the principles identified in Project Blue Sky Inc v Australian Broadcasting Authority.[58] The question is whether the legislative purpose of the MC Regulations is that a hearing convened without first complying with reg 4 is invalid; that is, whether compliance with reg 4 is intended to be a necessary precondition to the exercise of jurisdiction under reg 5. In my view, that is not the intended effect of reg 4. The regulation is procedural and administrative in nature and a breach would not invalidate the exercise of the power clearly conferred by reg 5 on two justices of the peace. That is especially given the subject matter of the court's jurisdiction - violence restraining orders that will often be granted urgently and in circumstances where there is an immediate apprehended threat of violence or abuse towards the person who seeks protection.
[58] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
There was no evidence that would displace the presumptions provided for by s 32 MC Act and there was merit in the allegations made in grounds 135 - 140 and 428 - 435.
The appellant as a 'whistleblower'
The appellant alleged that he was a whistleblower within the meaning and for the purpose of pt 9.4AAA of the Corporations Act 2001 (Cth). That part provides various forms of protection to a discloser where information is disclosed in certain circumstances. In particular, s 1317AA provides (so far as is relevant to the appellant's submissions):
(1)A disclosure of information by a person (the discloser) qualifies for protection under this Part if:
(a)the discloser is:
(i)an officer of a company; or
…
(b)the disclosure is made to:
…
(iii)a director, secretary or senior manager of the company;
…
(c)the discloser informs the person to whom the disclosure is made of the discloser's name before making the 25852
(d)the discloser has reasonable grounds to suspect that the information indicates that:
(i)the company has, or may have, contravened a provision of the Corporations legislation; or
(ii)an officer or employee of the company has, or may have, contravened a provision of the Corporations legislation; and
(e)the discloser makes the disclosure in good faith.
(2)A reference in sub‑section (1) to a person contravening a provision of the Corporations legislation includes a reference to a person committing an offence against, or based on, a provision of this Act.
Section 1317AB provides that if a person makes a disclosure which qualifies for protection under pt 9.4AAA, the person is not subject to any civil or criminal liability for making the disclosure. Section 1317AC further states:
Actually causing detriment to another person
(1)A person (the first person) contravenes this subsection if:
(a)the first person engages in conduct; and
(b)the first person's conduct causes any detriment to another person (the second person); and
(c)the first person intends that his or her conduct caused detriment to the second person; and
(d)the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.
Threatening to cause detriment to another person
(2)A person (the first person) contravenes this subsection if:
(a)the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and
(b)the first person:
(i)intends the second person to fear that the threat will be carried out; or
(ii)is reckless as to causing the second person to fear that the threat will be carried out; and
(c)the third person makes the threat because a person:
(i)makes a disclosure that qualifies for protection under this Part; or
(ii)may make a disclosure that would qualify for protection under this Part.
…
Threat
(4)For the purposes of subsection (2), a threat may be:
(a)express or implied; or
(b)conditional or unconditional.
Section 1317AE of the Corporations Act creates an offence if (so far as is relevant) where:
(a)a person makes a disclosure of information (the qualifying disclosure) that qualifies for protection under pt 9.4AA;
(b)the qualifying disclosure relates to a contravention or possible contravention of a provision of the Corporations legislation;
(c)the qualifying disclosure was made to a director of the company;
(d)the offender is a director of the company;
(e)the offender discloses either the information disclosed in the qualifying disclosure or the identity of the person who made the disclosure or information that is likely to led to the identification of that person (the confidential information);
(f)the confidential information is information that the offender obtained directly or indirectly because of the qualifying disclosure; and
(g)the offender is the person to whom the qualifying disclosure was made.
Section 1317AE(2) provides that a disclosure of confidential information is authorised if it is made to ASIC, APRA, a member of the Australian Federal Police or to someone else with the consent of the person who made the qualifying disclosure.
Similarly, it was not reasonably possible in the circumstances that the First Email was sent by appellant clicking on the 'send' icon in his email program by an unwilled act. The cursor would have to have been positioned on the icon and the relevant mouse button pushed.
As the magistrate concluded, there was no evidence that discharged the evidentiary onus that the First Email had been sent independently of the exercise of the appellant's will. Accordingly, the presumption that the email was sent as a result of a conscious and deliberate act by the appellant was not rebutted.
Accident
The appellant referred throughout his grounds of appeal to 'accident or mistake'. Further, he contended that that the magistrate did not understand his submissions on accident and mistake - in particular, that the relevant accident or mistake was not in sending the First Email but in sending the email with Ms Holland as an addressee.[251]
[251] Ground 284.
The appellant also alleged that his Honour misunderstood what constituted an accident in law. The appellant contended that an accident - and a mistake - were unintended events.[252] The appellant made further allegations about the nature of an accident in grounds 392 - 402 that indicated that his primary submission was that he did not intend to send the First Email to Ms Holland and that an accident was an unintended event.
[252] Ground 369.
However, the prosecution can negative s 23B in any one of three ways: by proving beyond a reasonable doubt that the accused intended the event to occur or the accused did foresaw the event occurring or the event was reasonably foreseeable by a person in the position of the accused. In this case, once it was found that the appellant consciously and deliberately sent the First Email, it was reasonably foreseeable that the email would be received by Ms Holland. Section 23B of the Code would not apply for that reason regardless of the appellant's subjective intentions. The remaining question would be whether the appellant had an honest and reasonable but mistaken belief that the First Email did not include Ms Holland's email address.
Mistake
As noted, the appellant equated accident and mistake with an unintended event. That was made clear from an example repeated at several points in the appellant's grounds: 'if I worked in a restaurant and carried 5300 dishes to the kitchen and I dropped one dish, any reasonable person would conclude that was an accident or mistake. Any reasonable person would not conclude that I intended to drop a dish'.[253] However, s 23B and s 24 of the Code are not solely concerned with the accused's intention and the appellant's grounds proceeded on a misconception about the meaning of accident and mistake in law.
[253] Ground 17.
The act or omission to which s 24 of the Code refers is the act or omission with which the accused has been charged. The section, like s 23A, incorporates subjective and objective components. Consequently, the prosecution can negate the application of s 24 by proving beyond a reasonable doubt that the accused person did not hold a belief in a particular state of things or the belief was not honestly held or that it was an unreasonable belief. The objective component must be determined by reference to the personal attributes of the accused person. The question is whether the accused's belief was reasonable; not whether a reasonable person would have formed the same belief.[254]
[254] Aubertin v The State of Western Australia [2006] WASCA 229; 33 WAR 87.
The magistrate accepted that the appellant believed that the First Email did not include Ms Holland's email address. It is not clear that the magistrate addressed whether the appellant actually held that belief at the time that the email was sent as distinct from what, as a matter of reconstruction, the appellant thought must have been his state of mind. The appellant was unable to recall anything about the preparation and sending of the email. Consequently, there was no direct evidence as to the appellant's belief that the First Email did not include Ms Holland as a recipient. Indeed, there was no evidence as to how the alleged mistake occurred.
In Higgins v The State of Western Australia, Mazza JA observed:
With respect to the subjective element of the defence, the criminal law does not exculpate an accused merely because a reasonable person in the position of the accused might have held the belief in question. That does not mean that the accused must give evidence as to the relevant belief, but there must be some evidence (whether in the prosecution or defence case) capable of showing, directly or by inference, that the accused actually held the belief: R v Cutts [2005] QCA 306 [48] (Williams JA). (emphasis added)[255]
[255] Higgins v The State of Western Australia [82].
Consistent with that statement, it has been held there must be evidence from which it might reasonably be concluded that the accused had a positive belief in a state of things: Burt CJ observed in GJ Coles & Coy Ltd v Goldsworthy, 'it must be a positive belief because the extent of the criminal responsibility is not to be greater "than if the real state of things had been such as he believed to exist" '.[256] That requirement has been questioned[257] but remains good law. In any event, on any view of s 24 the accused must have formed some relevant belief about - turned their mind to - the act or omission with which they have been charged, otherwise mere inadvertence would be sufficient to excuse an accused person from criminal responsibility for that act or omission.
[256] GJ Coles & Coy Ltd v Goldsworthy (1985) WAR 183, 187.
[257] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia (7th ed 2015), 12.11.
The appellant gave evidence that he had communicated with the lawyers acting in the proceedings involving family members and with others about the IVRO. The first communication was by email sent on 13 September 2014, principally to the lawyers acting in the proceedings.[258] The email referred to the IVRO and advised the recipients that they were not to communicate with Ms Holland directly or indirectly on the appellant's behalf.
[258] Exhibit 31.
The appellant sent a further email to Ms Holland's lawyer on 2 April 2015 stating, among other things, that the appellant had requested Ms Holland advise the other directors of the Corporate Trustees that they should not include her email address in the address bar of their emails as that could result in the appellant sending an email directly to Ms Holland.[259]
[259] Exhibit 36.
It may be inferred from that evidence the appellant did not intend to breach the IVRO by sending an email to Ms Holland - that is, he would not have intended to send the First Email to her. However, the evidence did not establish that the appellant had actually turned his mind to whether Ms Holland's address was included in the addressees to the First Email at the time that it was sent. At most, the evidence was that, as a matter of reconstruction, the appellant must have believed that the First Email did not include Ms Holland's email address because his intention generally was not to breach the IVRO by communicating with her. It is arguable whether evidence to that effect would have been sufficient to discharge the evidentiary onus resting on the appellant. However the respondent did not seek to support the magistrate's finding on mistake on this basis.
Contrary to the appellant's assertions in his grounds of appeal, a belief that has been carelessly formed is not a reasonable belief; that is, a mistake that has been made negligently is not a reasonable mistake in law.[260] The magistrate found that the prosecution had proven beyond a reasonable doubt that the appellant's belief was not reasonable as 'it was not reasonable [the appellant] failed to take care to ensure in this instance that Ms Holland's email address was not included' in the First Email[261]. In my view, the magistrate was right to make that finding.
[260] See, for example, the comment by Burt CJ in GJ Coles & Coy Ltd v Goldworthy that '[o]ne can readily agree that a mistake made carelessly is not a reasonable mistake' (187).
[261] Reasons [100].
The appellant gave no evidence that he took any steps to ensure that the First Email did not include Ms Holland's email address prior to sending the email (he had no recollection of preparing and sending the email) and there was no other evidence from which it could be inferred that he had taken steps to confirm that the email did not include Ms Holland as a recipient. The email sent to various lawyers and others on 13 September 2014 (exhibit 31) advised that they were not to communicate with Ms Holland on his behalf. The email to Ms Holland's lawyers sent on 2 April 2015 (exhibit 32) indicated that he was aware of the possibility that he could unintentionally send an email to Ms Holland by replying to an email that included her address. However:
(a)the email to Ms Holland's lawyer sought confirmation that Ms Holland had requested the other directors of the Corporate Trustees not to send him emails that included Ms Holland's email address - the email complained that he had previously requested that Ms Holland take that step but he had not received confirmation that she had done so;
(b)there was no evidence that Ms Holland had done as the appellant had requested by 13 April 2015;
(c)the email was only sent to Ms Holland's lawyers and not to the other lawyers acting in the legal proceedings about the family disputes, including Mr Bailey.
Consequently, there was no reasonable basis upon which the appellant could believe that the email sent by Ms Bouman did not include Ms Holland's email address if that email provided the template for the First Email. Alternatively, there was no reasonable basis for a belief that the First Email did not include Ms Holland's address if some other unidentified email provided the template for the email (that is, the First Email was written in reply to some other email) and obviously, there could be no basis for such a belief if the appellant had actually prepared the address bars for the First Email.
The appellant was well aware of the seriousness of breaching the IVRO - it was put in very strong terms in his email of 13 September 2014. He was also well aware of the risk that he might unintentionally breach the IVRO by sending an email direct to Ms Holland in the course of replying to an email received from another person. That was evidenced by his email of 2 April 2015. Moreover, the appellant's grounds of appeal accepted that it was foreseeable that the appellant might send an email direct to Ms Holland.[262]
[262] Grounds 277 - 282.
Further, the First Email was not addressed to a large number of recipients. The 'copied to' address bar only included four addresses, with Ms Holland appearing as the addressee. It could not have been difficult to check that her address did not appear in the addresses to the email.
The submission that the appellant may have 'failed to notice' that the address bars included Ms Holland's email address is simply an admission that he either did not turn his mind to whether her address had been included in the address bars or he was careless in sending the First Email.
Similarly, the appellant's submissions in his supplementary submissions that he was receiving numerous emails at the relevant time, including a number that incorporated Ms Holland's email address, merely highlighted that any request that he might have made that emails with her address not be sent to him had not been complied with to his knowledge. The fact that he may have been receiving numerous email with Ms Holland's email address did not establish that he had reasonable grounds for believing the First Email did not include Ms Holland's address. Rather, it was evidence that, to his knowledge, there was a real risk that any email to which he replied could include her address and that he needed to carefully check the addresses of any emails that he sent.
The only reasonable inference to be drawn from the evidence is that the appellant was careless in sending the First Email or he did not advert to the possibility that it might contain Ms Holland's email address despite being aware of the risk that it might do so and the importance of not breaching the IVRO by communicating directly with her. Either way, there were no reasonable grounds for any belief that the appellant may have held that the First Email did not include Ms Holland's email address.
Natural justice
The appellant alleged that:
(a)he did not get a fair trial as the magistrate made too many errors and because of differences in the magistrate's treatment of the prosecutor and the appellant;[263]
(b)the magistrate failed to consider, or misunderstood, submissions made by the appellant;[264]
(c)the appellant was denied procedural fairness due to delays in prosecuting the charge;
(d)the trial was procedurally unfair as the magistrate applied one rule in determining the admissibility of evidence for the prosecution and a different, stricter rule for the appellant.[265]
[263] Grounds 31 & 50 - 59.
[264] Grounds 9 & 10; 103 - 107; 419; 482 & 483.
[265] Grounds 239 - 244 (delay and the admission of evidence).
I have carefully reviewed the trial transcript, exhibits, the parties' closing submissions and the Reasons. I am satisfied that there was no merit in the appellant's allegation that he did not get a fair trial. The appellant was given considerable latitude in conducting his defence. The magistrate respected the appellant's position as a self‑represented litigant throughout the trial. His Honour was conscious of his obligation to ensure a fair trial according to law and to conduct the trial in accordance with due process, fairly and impartially.
I have concluded that his Honour did not make 'many' errors as the appellant alleged. However, the fact that a primary decision‑maker has made errors, either during a trial or in reasons that are subsequently delivered, does not mean that the trial was unfair or that a party was denied natural justice.
The appellant's closing written submissions occupied 55 pages.[266] The magistrate was not required to deal with every submission made by the appellant. Section 31 of the MC Act applies to both civil and criminal proceedings (see the definition of 'case' in s 3). The section specifies what the reasons delivered by a magistrate must contain. The section does not relieve a magistrate from the duty owed by all judicial officers to provide reasons that expose the process by which a decision has been reached.[267] However, that does not mean that the magistrate was required to deal with every submission made by the appellant. His Honour was only required to engage with the central elements of the appellant's case.[268] The magistrate's reasons satisfied that obligation. Further, the magistrate adequately explained how he reasoned to his finding that the appellant was guilty of the First Charge.
[266] The submissions were typed in single space with a small font size.
[267] See Manonai v Burns [2011] WASCA 165.
[268] See Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 [112].
As for the evidence in the trial, much of the appellant's closing submissions concerned matters that were irrelevant or, at best, collateral to the primary issue to be determined ‑ whether the prosecution had proven beyond a reasonable doubt that the appellant had sent the First Email. His Honour's reasons dealt adequately with the matters that were relevant to the determination of that issue.
The grounds of appeal referred to two matters on which it was alleged that the magistrate had failed to consider or understand the appellant's submissions: his submissions regarding 'pressing the wrong keys on the keyboard' and his claims about pt 9.4AAA of the Corporations Act. I have already considered the appellant's submissions on each of those matters. I have concluded that there was no miscarriage of justice even if the magistrate did not deal with every aspect of the appellant's submissions on those matters. The question of the alleged effect of delay in the prosecution has also been dealt with above.
Finally, there was no basis for the allegation that the magistrate applied different rules on the admissibility of evidence that favoured the prosecution. The allegation rested on matters that have already been considered, such as the prosecutor being able to produce a signed copy of the prosecution notice and the appellant's claim that he was prevented from obtaining evidence relating to the Final Order hearing. A review of the trial transcript and exhibits indicates that the magistrate gave the appellant considerable latitude in cross-examining Ms Holland and adducing evidence - particularly in relation to the disputes about the operation and management of the Family Trusts and the Corporate Trustees.
Further, the appellant was not denied access to relevant materials by either the prosecution or by the magistrate's rulings on the law. The prosecution was not obliged to obtain for the appellant the transcript of the Final Orders hearing nor was there a breach of the duty to disclose in relation to the alleged complaint by Ms Holland on 10 October 2012.
Alleged bias
The appellant applied for the magistrate to recuse himself at the hearing on 21 November 2016. The application was based on rulings made by the magistrate at the hearing held on 20 May 2016 at which his Honour allowed the respondent to amend the prosecution notice.
In the recusal application, the appellant contended that there was a perception of bias as the magistrate had allowed the prosecutor to adduce inadmissible evidence in the application to amend the prosecution notice; the magistrate had allowed the application with the unjust result that the respondent was permitted to commence a prosecution outside the time limit imposed by s 21(2) CPA; and the magistrate had referred to an authority concerning s 23 of the CPA (Calandra v Civil Aviation Safety Authority) without giving the appellant an opportunity to make submissions regarding that decision.
The onus of establishing the facts upon which an allegation of apprehended bias is made lies on the party making it. The test to be applied is whether a fair, open‑minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide.[269] The application of that test involves two steps. First, it requires the identification of what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a logical connection established between that matter and the feared deviation from the course of deciding the case on its merits.[270]
[269] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
[270] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
The fair‑minded lay observer is taken to be a reasonable person who will appreciate that the judicial officer being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial'.[271] The test is objective and it is assumed the lay observer will base their opinion on a fair assessment of the judicial officer's conduct in the context of the hearing as a whole.
[271] Johnson [12].
There is no merit in the grounds of appeal that alleged the magistrate erred in refusing to recuse himself. The matters identified by the appellant were that:
(a)the magistrate erred in refusing the recusal application;[272]
(b)there was a perception that the magistrate would not assess the evidence objectively and dispassionately or would be hostile to the appellant because the appellant had asked his Honour to recuse himself and because the application had been refused;[273]
(c)the appellant perceived the magistrate to have been biased and accordingly, the appellant was prejudiced - and the prosecution benefitted from the magistrate's actual or perceived bias;[274]
(d)the magistrate made rulings that favoured the prosecution and which were erroneous;[275]
(e)the magistrate allowed the respondent to amend the prosecution notice and in doing so referred to a decision that had not been mentioned in argument on the validity of the prosecution notices (Calandra v Civil Aviation Safety Authority).[276]
[272] Ground 60.
[273] Grounds 61; 166; 470 - 475.
[274] Grounds 62 & 63
[275] Grounds 25, 31 & 470.
[276] Ground 480.
As to those matters:
(a)A fair minded observer would not conclude that the magistrate was, or was likely to be, biased merely as a result of hearing, determining and refusing a recusal application - otherwise, judicial officers would be placed in the absurd position of being required to recuse themselves on refusing a recusal application.
(b)The test of apprehended bias is objective - the appellant's subjective perception is irrelevant and, in any event, there was no evidence in the transcript that the appellant resigned himself to the outcome of the prosecution.
(c)As has been noted, the magistrate did not make 'many errors' in his rulings and the fair minded observer would not have concluded that his Honour was, or was likely to be, biased merely because of rulings on the law such as permitting the prosecutor to amend the prosecution notice. Obviously, there is a difference between making an error of law and a perception of bias.
(d)The magistrate did not consider that his decision on the validity of the prosecution notices was final. His Honour addressed the issue again in the Reasons. The appellant understood that was to be so as he made submissions on the issue, including on the decision of the Court of Appeal in Calandra v Civil Aviation Safety Authority, in his written closing submissions. Further, the magistrate did not rely on the decision as a substantive part of his reasoning; the reasons why his Honour concluded that the prosecution notices were valid are set out at [113] - [125] of the Reasons.
The appellant added actual bias to apprehended bias in ground 62. Actual bias by prejudgment is a state of mind which disables a decision‑maker from undertaking, or renders him or her unwilling to undertake, any proper evaluation of the materials that are relevant to the decision to be made; the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whether through evidence or argument.[277] An allegation of actual bias must be 'distinctly made and clearly proved'.[278] The appellant's allegation was not distinctly made nor was it clearly proved. A review of the trial transcript establishes that there was no basis for alleging that the magistrate prejudged the question of the appellant's guilt.
[277] See Minister for Immigration and Multi-Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. See also Ninian v Valuer General (WA) [No 2] [2016] WASCA 170.
[278] Minister for Immigration and Multi-cultural Affairs v Jia Legeng [69].
Costs
The appellant alleged that the magistrate erred by failing to:
(a)order the appellant be paid his costs;[279]
(b)order the prosecution pay the appellant's disbursements;[280]
(c)find that the law that prevents a self-represented litigant from recovering costs is 'unconstitutional' and legislation governing the awarded costs in criminal proceedings was void as against public policy.[281]
[279] Ground 288.
[280] Ground 289.
[281] Grounds 176, 177 & 290.
In relation to the last allegation, the appellant contended:
The legislation relating to costs in criminal matters is unconstitutional as the Crown can seek its costs against the accused but the accused could not seek its costs against the Crown, if the accused is a lawyer … [and] … as there is no provision for 'special costs' if the Crown has acted unconscionably, in breach of its model litigant duties and/or frivolously and/or vexatiously and/or has abused court processes by using a baseless claim to coerce a guilty plea.[282]
[282] Grounds 176 - 177.
A successful party to criminal proceedings in a court of summary jurisdiction may recover costs ‑ s 67(1) CPA. Section 67 is subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Costs Act). Section 5 of the Official Costs Act provides that a successful accused in an 'official prosecution' is entitled to costs. Section 7 of the Act enables a partly successful accused to obtain an award of costs where the accused satisfies the court that they incurred additional costs by reason of being charged with an offence or offences in respect of which they were successful. The awarded costs will be limited to the additional costs incurred.
An official prosecution is defined by the Official Costs Act to mean 'proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of their office'. The expression 'costs' is defined to mean any expenses 'properly incurred by an accused and are due and payable, or paid by the accused to another person or as court fees'. The amount of costs ordered, other than court fees, is to be determined in accordance with the scale fixed from time to time by a costs determination made under the Legal Profession Act 2008 (WA).[283]
[283] Official Prosecutions Act, s 6(5).
The Official Costs Act does not modify the principle that costs are awarded by way of a partial indemnity for legal and other expenses actually incurred by a successful party.[284] Consequently, a self‑represented litigant is not entitled to an award of costs to compensate for time spent in preparing for and attending legal proceedings. An exception to that general rule was recognised in London Scottish Benefit Society v Chorley, Crawford & Chester.[285] The Chorley exception was acknowledged by the High Court in Guss v Veenhuizen [No 2].[286] In Dobree v Hoffman,[287] the Full Court of this court held that the Chorley exception did not apply to State courts in this jurisdiction. In Soia v Bennett,[288] the Court of Appeal overruled the decision of the Full Court in Dobree v Hoffman. The result is that a successful solicitor litigant in person may recover costs pursuant to the Chorley principle.
[284] Cachia v Hanes (1994) 179 CLR 403.
[285] London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872.
[286] Guss v Veenhuizen [No 2] [1976] HCA 57; (1976) 136 CLR 47.
[287] Dobree v Hoffman (1996) 18 WAR 36.
[288] Soia v Bennett [2014] WASCA 27.
However, the rationale underlying the Chorley exception means that it can only apply where the litigant in person has a legal entitlement to recover legal costs; that is, when the solicitor litigant has a current practising certificate entitling him or her to charge for the relevant legal services.[289]
[289] See GE Dal Pont, Law of Costs (3rd ed), 7.38.
The appellant is an admitted legal practitioner who did not hold a current practising certificate prior to or during the trial. Consequently, he did not have an entitlement to legal costs under the Chorley exception.
The appellant was entitled to any disbursements that could properly be claimed under the Official Costs Act and which related solely to the Second Charge. The magistrate awarded the appellant costs incurred in obtaining the trial transcripts.[290] I have been unable to identify any error by the magistrate in making that order.
[290] ts 11 (17 October 2017).
There was no merit in the appellant's allegation that the Official Costs Act is 'unconstitutional' and void as against public policy. Plainly, it was within the power of State Parliament to enact the legislation. An accused person who is successful in a prosecution on indictment is not entitled to costs. Opinions might reasonably differ on the policy considerations that underpin that rule and the rule that a litigant in person has no entitlement to costs.[291] However, there is no basis for contending that legislation that gives effect to the latter rule is void.
[291] See, for example, G E Dal Pont, 'Law of costs' (3rd ed) at 7.31 ‑ 7.33.
A final word
The appellant's grounds of appeal did not expressly allege that the finding of guilt was unreasonable in that the verdict was unsafe and unsatisfactory. The approach to be taken by an appeal court in considering an allegation that a verdict was unreasonable was explained by the High Court in R v Baden-Clay.[292] The ultimate question is whether the court thinks upon the whole of the evidence it was open to the decision-maker to be satisfied beyond reasonable doubt that the accused was guilty. I have reviewed all the evidence that was presented in the trial of the First Charge and, in my view, it was open to the magistrate to be satisfied of the appellant's guilt beyond a reasonable doubt.
[292] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy13 MARCH 2019
7
31
2