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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Blenkinsop v Wilson [2019] WASC 77
Case
[2019] WASC 77
Decision Date
CaseChat Overview and Summary
The appellant, Blenkinsop, appealed against his convictions for breaching a restraining order. The matter was heard in the Supreme Court of Western Australia. The appellant argued that the court granting the order was not validly constituted, that the prosecution notice was not valid, and that the prosecution breached its duty of disclosure. The appellant further contended that the prosecution abused process and that the charge and prosecution were for an improper purpose. Additionally, the appellant argued that the offence required intention as an element and that the prosecution did not prove the breach beyond reasonable doubt. The appellant also challenged the magistrate's findings on his expertise in computer software and hardware, and whether the prosecution had negated certain defences. The appellant further alleged that he was denied natural justice, did not receive a fair trial, and was entitled to costs.
The court considered the arguments raised by the appellant. Regarding the validity of the court granting the order, the court found that the issue was not properly before it as it amounted to a collateral attack on the order. As for the prosecution notice, the court found that it was valid. The court also found that there was no breach of the duty of disclosure or abuse of process. The court further held that the charge and prosecution were not for an improper purpose. The court rejected the appellant's argument that intention was an element of the offence and found that the prosecution proved the breach beyond reasonable doubt. The court held that the appellant was not an expert on computer software and hardware, and that the prosecution had negated certain defences. The court also found that there was no actual bias or denial of natural justice, and that the appellant received a fair trial. Finally, the court held that the appellant was not entitled to costs as the legislation governing awarded costs in criminal proceedings was not void.
The Supreme Court of Western Australia dismissed the appeal and upheld the appellant's convictions. The court found that the appellant's arguments were without merit and that the trial was conducted fairly. The court held that the appellant was not entitled to costs as the legislation governing awarded costs in criminal proceedings was not void. The appellant's appeal was dismissed, and his convictions were upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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]. 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).