Brockway v Kirk
[2019] WASC 8
•17 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BROCKWAY -v- KIRK [2019] WASC 8
CORAM: ACTING JUSTICE STRK
HEARD: 15 JANUARY 2019
DELIVERED : 15 JANUARY 2019
PUBLISHED : 17 JANUARY 2019
FILE NO/S: SJA 1044 of 2018
BETWEEN: ANDREW NICHOLAS BROCKWAY
Appellant
AND
DYLAN KIRK
Respondent
ON APPEAL FROM:
For File No: SJA 1044 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J A HAWKINS
File Number : PE 1780 of 2018
Catchwords:
Criminal law - Appeal against conviction - Extension of time to appeal - Leave to appeal - Miscarriage of justice - Prosecution for an offence under the Medicines and Poisons Act 2014 (WA) - Prosecution notice signed by a police officer - Prosecution was commenced by a person not authorised - Proper construction of the Medicines and Poisons Act 2014 (WA) s 122 - Prosecution wholly invalid
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3), s 10(3)
Criminal Procedure Act 2004 (WA), s 19, s 20(2), s 20(3)(a)(iii), s 20(4), s 20(5), s 169, s 173, s 178
Magistrates Court Act 2004 (WA), s 9, s 11
Medicines and Poisons Act 2014 (WA), s 3, s 4, s 14(4), s 122, s 137
Medicines and Poisons Regulations 2016 (WA), reg 6
Misuse of Drugs Act 1981 (WA), s 6(2), s 7B(6)
Poisons Act 1964 (WA)
Sentencing Act 1995 (WA), s 54
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | M Barone SC & R Owen |
| Respondent | : | H Richardson |
Solicitors:
| Appellant | : | Rob Owen Barrister & Solicitor |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Briggs v Houlihan [2018] WASC 301
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Jackson [1997] 2 Cr App Rep 497
R v Janceski [2005] NSWCCA 281
R v Morais (1998) 87 Cr App Rep 9
Re His Honour Magistrate Roth; Ex parte Ridge [2016] WASC 121
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Spagnolo v Flynn [2014] WASC 88
The King v Bates [1911] I KB 964
Wimbridge v The State of Western Australia [2009] WASCA 196
ACTING JUSTICE STRK:
(These reasons were delivered extemporaneously at the conclusion of the hearing. They have been edited from the transcript to correct matters of grammar and so as to include complete references in the form of footnotes.)
This is an appeal against conviction in the Magistrates Court of Western Australia of an offence under the Medicines and Poisons Act 2014 (WA).
The appellant is one of 28 appellants who have commenced separate appeals against their respective convictions in the Magistrates Court for offences under the Medicines and Poisons Act. All share the following common ground of appeal:
A miscarriage of justice was occasioned because the prosecution was commenced by a person not authorised to do so.
The ground of appeal was particularised as follows:
1.A prosecution for any offence under the Medicines and Poisons Act 2014 (WA) can only be commenced by a person authorised to do so under s 122 of the Medicines and Poisons Act 2014 (WA) and s 20(2) of the Criminal Procedure Act 2004 (WA).
2.The respondent was not authorised to commence the prosecution under s 122 of the Medicines and Poisons Act 2014 (WA).
On 28 September 2018, McGrath J ordered that the 28 appeals (known as SJA 1044 to 1064 of 2018, SJA 1068 to 1073 of 2018, and SJA 1085 of 2018) were to be heard together in a single hearing.
A joint submission was filed on behalf of all appellants in respect of the common ground of appeal. One consolidated submission was filed on behalf of all respondents in respect of:
(a)the grounds of appeal raised by the appellants; and
(b)the proposed orders on the appeal.
The respondents agree that the appeals should be allowed and the judgments of convictions set aside. It is conceded that the respondents did not have authority to prosecute the charges the subject of the appeals.
These are my reasons for allowing the appeal filed on 9 May 2018 on behalf of Andrew Nicholas Brockway, the appellant in SJA 1044 of 2018.[1]
[1] The appeal known as SJA 1044 to 1064 of 2018 were commenced on 9 May 2018; SJA 1068 to 1073 of 2018 were commenced on 16 May 2018; and SJA 1085 of 2018 was commenced on 13 June 2018.
The appellant was sentenced on 25 January 2018 for the following four offences:
(a)PE 1777 of 2018, for contravening s 6(2) of the Misuse of Drugs Act 1981 (WA) for the possession of cannabis;
(b)PE 1778 of 2018, for contravening s 6(2) of the Misuse of Drugs Act for the possession of dimethyltrptamine;
(c)PE 1779 of 2018, for contravening s 7B(6) of the Misuse of Drugs Act for the possession of drug paraphernalia; and
(d)PE 1780 of 2018, for contravening s 14(4) of the Medicines and Poisons Act for the possession of dexamphetamine.
Only the conviction for contravention of the Medicines and Poisons Act is the subject of this appeal.
Extension of time
An appeal against decision cannot be commenced later than 28 days after the date of the decision unless the court orders otherwise.[2]
[2] Criminal Appeals Act 2004 (WA) s 10(3).
The appeal notice was filed on 9 May 2018, about three and a half months out of time.
The test for the grant of an extension of time to appeal is whether it is in the interests of justice to grant an extension.[3]
[3] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [108], applied in Briggs v Houlihan [2018] WASC 301 [47].
Where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[4]
[4] Robertson v The State of Western Australia [2009] WASCA 83 [9].
Merely showing that there are reasonable prospects of demonstrating that the conviction was a miscarriage of justice is not sufficient. Something more has to be shown, otherwise there would be no practical consequence ever flowing from the failure to appeal within time.[5]
[5] Wimbridge v The State of Western Australia [2009] WASCA 196 [21], citing Bardsley [113] ‑ [114].
Exceptional circumstances are not closed. A compelling explanation for the delay would generally constitute exceptional circumstances.[6]
[6] Wimbridge [20].
In support of the application for extension of time, the appellant relies on the affidavit of Robert Francis Owen, a legal practitioner with the care and conduct of this matter on behalf of the appellant, filed on 9 May 2018.
Mr Owen deposes that on 25 January 2018, the appellant was convicted in his absence of one count of unlawfully possessing a controlled or prescription drug contrary to s 14(4) of the Medicines and Poisons Act. Mr Owen was neither counsel nor solicitor for the appellant at that time.
Mr Owen further deposes that:
(a)in March 2018, he was contacted by the Western Australian Police Force (WAPOL). WAPOL indicated that it had identified a number of prosecutions that were invalidly commenced. The prosecutions were initiated by police officers of WAPOL for offences under the Medicines and Poisons Act;
(b)during late March 2018 and early April 2018, he was contacted by approximately 33 people who had received letters from WAPOL regarding their convictions under the Medicines and Poisons Act;
(c)on about 9 April 2018, the appellant contacted him regarding a letter he had received from WAPOL which, among other things, advised him to seek legal advice in respect of appealing the conviction;
(d)prior to receiving the letter from WAPOL, the appellant was not aware that police officers were not authorised to prosecute offences under the Medicines and Poisons Act; and
(e)he received instructions from the appellant to obtain the appellant's criminal history in order to identify the convictions, if any, related to offences under the Medicines and Poisons Act.
Mr Owen deposes to the steps and time taken after that to secure the appellant's criminal history, and to confirm that the appellant had a relevant conviction. He also obtained the relevant prosecution notice, and confirmed that the prosecution was purportedly authorised by WAPOL and was capable of being appealed.
Given the nature of the appeal, additional time was taken by Mr Owen waiting to receive instructions from other potential appellants.
The explanation provided by Mr Owen is compelling. The respondent does not oppose the application for an extension of time, and there is no evidence before me of any prejudice to the respondent if an extension of time is granted. However, before determining whether an extension of time should be granted, the merits of the appeal should be considered.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA). The appellant requires leave to appeal.[7] The court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.[8] That means that the ground must be judged to have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[9] If leave to appeal is refused, the appeal is taken to be dismissed.[10]
[7] Criminal Appeals Act 2004 (WA) s 9(1).
[8] Criminal Appeals Act 2004 (WA) s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[10] Criminal Appeals Act 2004 (WA) s 9(3).
It is appropriate that the question of extension of time to appeal and the application for leave to appeal be heard together with the appeal.
Ground 1
Was the respondent authorised to commence the prosecution against the appellant for an offence under the Medicines and Poisons Act?
The first issue to be determined is whether the respondent was authorised to commence the prosecution against the appellant for an offence under the Medicines and Poisons Act. For the reasons set out below, he was not.
The prosecution of the appellant for an offence under the Medicines and Poisons Act (charge number PE 1780 of 2018) was commenced by the filing of a prosecution notice signed by the respondent, Constable Dylan Kirk, an officer of WAPOL. The alleged offence was a contravention of s 14(4) of the Medicines and Poisons Act, for the possession of dexamphetamine.
The Criminal Procedure Act 2004 (WA) pt 3 applies to and in relation to prosecutions in courts of summary jurisdiction.[11]
[11] Criminal Procedure Act 2004 (WA) s 19.
The Criminal Procedure Act s 20 (which section is reproduced in its entirety at sch A to these reasons) specifies who may commence a prosecution. The Criminal Procedure Act s 20(3)(a)(iii) provides that a prosecution for an offence may be commenced by a police officer acting in the course of his or her duties. However, s 20(3)(a)(iii) is subject to s 20(2), which provides as follows:
If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.
The Criminal Procedure Act s 20(4) also relevantly provides that s 20 'does not affect the operation of an enactment that requires a person's consent, approval or authority to be given for the commencement of a prosecution for an offence.'
The Medicines and Poisons Act is a written law that limits who may commence a prosecution for an offence.
The Medicines and Poisons Act is an act to regulate and control the manufacture and supply of medicines and poisons. By pt 2 of that Act, various offences are created, including the offence under s 14(4) of being in possession of a Schedule 4 or 8 poison.[12]
[12] Schedule 4 and 8 poison is defined in the Medicines and Poisons Act 2014 (WA) s 4, the Medicines and Poisons Regulations 2016 (WA) reg 6, and the Standard for Uniform Scheduling of Medicines and Poisons Sch 4 and Sch 8.
The Medicines and Poisons Act s 122 provides that '[a] prosecution for an offence under this Act may only be commenced by the CEO or by a person authorised by the CEO to do so.' The CEO is the Chief Executive Officer of the department of the Public Service principally assisting in the administration of the Medicines and Poisons Act.[13]
[13] Medicines and Poisons Act 2014 (WA) s 3.
The following are not in dispute.[14]
(a)At all relevant times, the Department of Health was the department of the Public Service principally responsible for the administration of the Medicines and Poisons Act.
(b)At no point in time did the CEO of the Department of Health authorise WAPOL officers to commence prosecutions under the Medicines and Poisons Act.
(c)The respondent did not seek or obtain the authorisation of the CEO of the Department of Health to commence the prosecution the subject of this appeal.
[14] Joint appellant submissions in respect of the common ground of appeal filed 8 August 2018 par 8. These matters are common for all 28 appeals.
The prosecution commenced by the respondent was not a prosecution commenced in accordance with the Medicines and Poisons Act. By operation of the Medicines and Poisons Act s 122 and the Criminal Procedure Act s 20(2) and (3), the respondent was not authorised to commence the prosecution of the appellant for an offence under the Medicines and Poisons Act s14(4).
What are the consequences of an unauthorised person commencing a prosecution?
I now turn to consider the consequences of the respondent having commenced the prosecution. For the reasons set out below, the consequence is that the prosecution of the appellant under the Medicines and Poisons Act s 14(4) was invalid.
I agree with the appellant's submission that this is a question of statutory construction. The appellant relies on the decision of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority.[15] It is useful to have regard to pars 91 to 93 of that decision, in their entirety.
[15] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91].
[91]An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92]Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said 'a clause is directory where the provisions contain mere matter of direction and nothing more'. In R v Loxdale, Lord Mansfield CJ said '[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory'. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been 'substantial compliance' with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:
'substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.'
[93]In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'. (footnotes omitted)
Was it a purpose of the Medicines and Poisons Act that a prosecution commenced in breach of s 122 should be invalid?
I agree with the appellant's submissions as to the proper construction of s 122, and that a purposive approach is to be adopted.[16]
[16] Joint appellant's submissions in respect of the common ground of appeal filed 8 August 2018 pars 17 ‑ 27.
The language of s 122 (reproduced at par 31 above), in particular the use of the word 'only', provides a clear and direct limitation on the power to institute a prosecution under the Medicines and Poisons Act. The purpose of s 122 is to vest the power to institute a prosecution under the Medicines and Poisons Act only in the CEO of the Department of Health, and his or her delegates. The inferred parliamentary intention was for the relevant decision‑maker to turn his or her mind to the facts of the case and the questions of public interest, and make a decision as to whether or not to commence a prosecution.[17]
[17] The applicant referred to R v Janceski [2005] NSWCCA 281 [77] ‑ [78], discussing R v Jackson [1997] 2 Cr App Rep 497 and R v Morais (1998) 87 Cr App Rep 9.
Had the parliament remained silent on the question of who may commence prosecutions under the Medicines and Poisons Act, the 'default' position under s 20(3) of the Criminal Procedure Act would have applied, permitting police officers to commence prosecutions. In this regard, I agree that it is notable that the predecessor to the Medicines and Poisons Act, the Poisons Act 1964 (WA)[18] was silent on the question of who had authority to commence prosecutions. The express inclusion of s 122, when considered in light of the language of the section, is an indication that parliament considered the institution of prosecutions under the Medicines and Poisons Act to be more appropriately placed under the control of the CEO of the Department of Health, than any other body or authority.
[18] The Poisons Act 1964 (WA) was repealed by the Medicines and Poisons Act 2014 (WA) (No 13 of 2014) s 137 as at 30 January 2017 (see s 2(b) and Gazette 17 January 2017 p 403).
Giving careful consideration to the legislation as a whole, I find that it was the purpose of the legislation that a prosecution commenced in breach of s 122 should be invalid. This is reinforced by the express proviso in the Criminal Procedure Act s 20(2), ensuring that the specific provisions of the Medicines and Poisons Act take precedence over the "default" position provided in the Criminal Procedure Act s 20(3), when no other written law applies.
Is the Criminal Procedure Act s 178 a provision which can be used to correct the defect?
The Criminal Procedure Act s 178 (which section is reproduced in its entirety at sch B to these reasons) concerns defects in court documents. For the purpose of s 178, a court document expressly includes a prosecution notice.[19]
[19] Criminal Procedure Act 2004 (WA) s 178(1).
I now turn to consider whether s 178 is a provision which can be used to correct the defect, being the issue of a prosecution notice by the respondent for an offence under the Medicines and Poisons Act, without the authorisation of the CEO of the Department of Health.
The section provides that any objection by an accused to a prosecution notice on the ground that it is defective must be made before the prosecutor's opening address.[20] That did not occur in this case, although I do not find that to be determinative of the issue.[21] The appellant was not aware of the defect until after the conviction was entered.
[20] Criminal Procedure Act 2004 (WA) s 178(2).
[21] Re His Honour Magistrate Roth; Ex parte Ridge [2016] WASC 121 [102] (Martino J).
In any event, it is clear from the terms of s 178 that, in some circumstances, operation of that section will oblige the court to correct a defect in a prosecution notice, but in other circumstances, confers upon the court a discretion. As noted on behalf of the appellant, in Calandra v Civil Aviation Safety Authority,[22] Martin CJ stated:
… s 178 is plainly intended to be a remedial provision, the objective of which is to prevent deficiencies in originating criminal processes causing criminal proceedings to miscarry. If the relevant defect is not material to the merits of the case, the obligation imposed by the section upon the court requires the court to take all necessary steps to remedy the defect. The apparent objective of the section would be almost entirely thwarted if other provisions in the Act were construed as giving rise to incurable invalidity in the absence of strict compliance.
[22] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [28].
The availability of s 178 to correct an error in the person signing a prosecution notice has been considered in a number of cases.[23]
[23] Spagnolo v Flynn [2014] WASC 88; and Ridge.
As was acknowledged in the authorities, in some cases, non‑compliance with the condition regulating the commencement of a prosecution would be of such a nature as to render the proceedings wholly ineffective. In such cases, the non‑compliance was not a 'defect' amenable to correction pursuant to s 178. Examples provided included:[24]
(a)prosecutions commenced by a person acting in his or her private capacity, in contravention of the requirements of the Criminal Procedure Act s 20(5);
(b)prosecutions commenced by way of an initiating process signed by a person knowing that he or she is not authorised to do so, in contravention of the requirements of the Criminal Procedure Act s 173; and
(c)prosecution commenced without the necessary prior consent of the responsible minister: see Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223.
[24] Joint appellants' submissions in respect of the common ground of appeal filed 8 August 2018 par 39; Spagnolo [34]; and Ridge [95].
In this case, the relevant authority, the CEO of the Department of Health, had not made any decision to institute proceedings. In this case, I find that the unauthorised commencement of the prosecution the subject of the appeal was not a defect in the court document amenable to correction under the Criminal Procedure Act s 178.[25] The defect was of such a nature as to render the prosecution of an offence under the Medicines and Poisons Act wholly ineffective.
Is the Criminal Procedure Act s 169 available to validate the prosecution?
[25] The King v Bates [1911] I KB 964.
By way of assistance to the court, counsel for the respondent referred the court to the Criminal Procedure Act s 169 (which section is reproduced in its entirety at sch C to these reasons), which deals with prosecutions determined by a court without jurisdiction. While the respondent referred the court to the section, the respondent's position was that, in this case, it is not open to validate the prosecution, nor did the respondent intend to rely upon s 169 in order to seek to validate the prosecution.
For completeness, I note that I have had regard to the submissions filed on behalf of the respondent, and the oral submission made on behalf of the appellant at the hearing of this appeal. Consistent with the position advanced, I find that the jurisdiction of the Magistrates Court to hear charges alleging the commission of simple offences is conferred by the Magistrates Court Act 2004 (WA) s 9 and s 11, and not by the Criminal Procedure Act.[26] Accordingly, defects in the procedure for commencing prosecutions do not deprive the Magistrates Court of jurisdiction.[27] I find that the court had jurisdiction in respect of these matters, so the question of whether s 169 is applicable in this instance does not arise.
[26] Respondent's outline of submissions pars 8 ‑ 11, and footnote 5 which references Calandra [25] (Martin CJ, Mazza JA & Hall JA agreeing).
[27] Respondent's outline of submissions par 10; Calandra [25].
Re‑sentencing for global penalty imposed
The Sentencing Act 1995 (WA) s 54(1) allows the court, when sentencing an offender for two or more offences that are founded on the same facts, or form, or are part of, a series of offences of the same or a similar kind, to impose a single fine for all of the offences.
The appellant was sentenced on 25 January 2018 for the four offences identified in par 8 of these reasons, and received a single fine in the amount of $950 for the same.
If a fine is imposed under the Sentencing Act s 54(1) and on appeal a conviction for one of the offences (or more than one) is quashed, the appeal court may substitute a fine of another amount for the fine imposed.[28]
[28] Sentencing Act 1995 (WA) s 54(3).
The prosecution case was summarised as follows before the Magistrate:[29]
The facts are at 10.00 pm on Saturday, 16 December 2017, the accused was driving a motor vehicle. The police have stopped the accused for the purpose of licence check and breath test. After speaking with the accused, there were (indistinct) grounds under s 23 Misuse of Drugs Act to perform a basic search on a person's vehicle. During the search, police ‑ during the search of the vehicle police have located a blue tobacco tin under the passenger seat, close to the centre console.
The tobacco tin contained less than one gram of loose cannabis. Accused was cautioned in relation to the item, and made full admissions to ownership (indistinct) his explanation for this was 'I smoke it every now and then'. Further to this, same time, and date, the place, during the search the tobacco tin also contained 1 gram of a ‑ ‑ ‑ …Dimethamphetamine, sir, DMT.
Accused was cautioned again in relation to this, admitted full ownership. Stated, 'It's DMT and was given to me by a friend.' Further, during the same search, within the same blue tobacco tin, there was one glass smoking implement and one glass - sorry, a blue glass smoking implement and a gold glass smoking implement. accused's explanation for this, 'They are mine to smoke cannabis.'
And further, same time, date, and place, within the accused's backpack police located a plastic container containing 18 dexamphetamine tablets within. The accused has never held a prescription for these tablets, and his explanation was they were given - 'I was given them by a mate.'
[29] ts 2, 3 (25 January 2018).
The Magistrate made the following observations:[30]
Matter proceeding in the absence of Mr Brockway, being satisfied service was proven. No appearance by him with respect to four charges relating to a roadside stop on 16 December 2017 at Kenwick. By way of a search of his vehicle, found in possession of a nominal amount of cannabis, less than one gram cannabis leaf. Also found in possession of a gram of DMT, commonly known, said it was given to him and made full admissions it was for his own personal use.
Also found in possession of two smoking implements, also stating they were his. Further, found in possession of 18 dexamphetamine tablets with no relevant prescription for them. Does have a record. It's fairly dated, but it is not significant. The most serious offending relates to the dexamphetamine. It's obviously a concerning drug, and it wasn't a nominal amount. So, noting all of that, it will be a global penalty to deter him and others in offending in a similar manner. On this occasion, it's going to be a fine of $950, one set of costs 190.85. There will be orders for destruction across all matters.
[30] ts 3 (25 January 2018).
On behalf of the appellant, it was submitted that the offence under the Medicines and Poisons Act was the offence before the court with the greatest maximum penalty; and the court was invited to resentence by imposing a fine of an amount less than $950.[31]
[31] ts 14 (15 January 2019).
In all of the circumstances, I consider that the penalty imposed by the Magistrate on 25 January 2018 no longer reflects the criminality of the appellant's conduct. That is because the most serious offending related to the dexamphetamine, the possession of which is the subject of the charge which has now been successfully appealed.
I have had regard to the seriousness of the remaining charges and the record of the accused. In all of the circumstances, a global fine of $500 will replace the global fine of $950. The order that the appellant pay the respondent's costs in the amount of $190.85 will not be disturbed.
Conclusion
For the reasons set out above, leave to appeal is granted, the appellant is granted an extension of time to appeal, and the appeal is allowed. I will make orders in the following terms.
1.The time to file the appeal is extended to 9 May 2018.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The conviction for PE 1780 of 2018 is set aside.
5.The fine imposed on 25 January 2018 of $950 is set aside. The cost orders made on 25 January 2018 will not be disturbed.
6.A fine in the amount of $500 is imposed for PE 1777 of 2018, PE 1778 of 2018, and PE 1779 of 2018 pursuant to the Sentencing Act 1995 (WA) s 54(1).
7.No order as to costs in the appeal.[32]
[32] The parties agreed that the appeal be determined with no order as to costs.
I note that I have also allowed the other 27 appeals substantively, adopting in each the reasons set out above at pars 10 to 48.
Schedule A - Criminal Procedure Act 2004 (WA) s 20
20.Who can commence prosecution
(1)In this section, unless the contrary intention appears -
authorised person in relation to an offence, means -
(a)if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or
(b)in any other case, a person -
(i)who is a public authority or an employee of a public authority; or
(ii)who is authorised in writing by a public authority to commence a prosecution for the offence.
(2)If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.
(3)Subject to subsection (2), a prosecution for an offence may be commenced by, and only by -
(a)one of the following acting in the course of his or her duties -
(i)an authorised person in relation to the offence;
(ii)a person referred to in section 80(2)(a) to (e);
(iii)a police officer;
or
(b)a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.
(4)This section does not affect the operation of an enactment that requires a person's consent, approval or authority to be given for the commencement of a prosecution for an offence.
(5)A person acting in his or her private capacity cannot commence a prosecution, unless another written law expressly provides otherwise.
(6)This section does not limit the functions of the DPP under the Director of Public Prosecutions Act 1991.
Schedule B - Criminal Procedure Act 2004 (WA) s 178
178.Defects etc. in court documents
(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.
Schedule C - Criminal Procedure Act 2004 (WA) s 169
169.Prosecution determined by court without jurisdiction
(1)In this section, unless the contrary intention appears -
jurisdictional error, in relation to a charge against a person being dealt with by a court, means an error of fact or law that is material to whether the court has jurisdiction to deal with the charge.
(2)If a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of a jurisdictional error -
(a)the court's determination has full force and effect; and
(b)anything done as a result of the determination is lawful.
(3)If a court that does not have jurisdiction to deal with a charge against a person determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to -
(a)that court; or
(b)if the determination is subject to an appeal, the court dealing with the appeal,
for an order varying or setting aside the determination.
(4)The court to which such an application is made may either -
(a)refuse the application; or
(b)vary the determination and any sentence imposed or other order made as a result of the determination; or
(c)set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person,
and may make any necessary consequential orders.
(5)If a court is dealing with an appeal in relation to the determination, subsection (4) is in addition to the court's powers on the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Associate/Orderly to the Honourable Acting Justice Strk
17 JANUARY 2019
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