Cousins v WA Police - [2025] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COUSINS -v- WA POLICE [2025] WASC 39
CORAM:   TOTTLE J
HEARD:   31 JANUARY 2025
DELIVERED          :   31 JANUARY 2025
PUBLISHED           :   10 FEBRUARY 2025
FILE NO/S:   SJA 1007 of 2024
BETWEEN:   CAROL MARIA COUSINS
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1007 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE N LEMMON
File Number            :   FR 5620 of 2022 & FR 5621 of 2022

Catchwords:

Criminal law - Single judge appeal - Whether hearing and determination of the charges under s 55 of the Criminal Procedure Act 2004 (WA) was a miscarriage of justice - Miscarriage of justice established - Turns on own facts

Criminal law - Single judge appeal - Validity of prosecution notice - Whether prosecution notice invalid because prosecutor identified as Western Australia Police Force - No invalidity - Whether physical signature required in prosecution notice lodged electronically

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Extension of time within which to apply for leave granted
Leave granted to the respondent to adduce additional evidence
Leave to appeal granted
Appeal allowed
Matter remitted for hearing before a different magistrate

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Z Clifford

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Cases referred to in decision:

Fisher v O'Hehir [2023] WASCA 19
Saad v Baron [2012] WASC 507
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tey v Plotz [2010] WASC 163

TOTTLE J:

Introduction

On 18 May 2023 the appellant was convicted of three offences, namely speeding,[1] failing to provide personal details,[2] and obstructing a police officer.[3] The convictions followed a hearing at which the magistrate had decided to hear and determine the charges in the appellant's absence under s 55(4) of the Criminal Procedure Act 2004 (WA). A charge of failing to comply with a direction to stop was dismissed at the request of the prosecutor. The conviction for the obstruction offence was set aside following an application made by the appellant under s 71 of the Criminal Procedure Act.
[1] Exceeding the speed limit by more than 10 kilometres per hour contrary to s 11(3) of the Road Traffic Code2000 (WA), charge number FR 5620/2022.
[2] Failing to provide personal details contrary to s 32(4) of the Road Traffic (Administration) Act2008 (WA), charge number FR 5621/2022.
[3] Obstructing a public officer contrary to s 172(2) of the Criminal Code Compilation Act 1913 (WA), charge number FR 5623/2022.
The appellant represented herself before the magistrate and conducted her own appeal. The appeal notice contained 74 grounds. Many of the grounds did not raise valid legal arguments. Rather they invoked pseudo‑law concepts. That said, two appeal points could be distilled from the grounds. The first was that it was not open to the magistrate to convict the appellant in her absence and the second was that…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Cousins v WA Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 39
Decision Date: 10 FEBRUARY 2025

CaseChat Overview and Summary

The appeal before the court involved the respondents, the WA Police, and the applicant, Cousins. The dispute centred around the legality of Cousins' conviction, which was determined by a single judge under section 55 of the Criminal Procedure Act 2004 (WA). Cousins contended that the hearing and determination of the charges amounted to a miscarriage of justice. The court was required to determine whether the single judge's determination was indeed a miscarriage of justice, the validity of the prosecution notice, and whether the physical signature requirement applied to notices lodged electronically.

The court held that the single judge's determination was a miscarriage of justice. This conclusion was based on the unique facts of the case, which were not present in previous cases that had upheld the validity of single judge determinations. The court found that the single judge erred in not considering the merits of the application for a stay of proceedings, and in not giving due weight to the principles of open justice and the right to a fair hearing. The court also dismissed Cousins' argument that the prosecution notice was invalid because it identified the prosecutor as the Western Australia Police Force, rather than an individual prosecutor. The court held that this did not render the notice invalid, as the requirement was to identify the body responsible for prosecution, not an individual prosecutor. Finally, the court held that the physical signature requirement did not apply to prosecution notices lodged electronically, as the statutory language was permissive rather than mandatory.

The court allowed the appeal, quashed the conviction, and ordered that a new hearing be conducted before a different magistrate. The court also directed that the WA Police pay Cousins' costs of the appeal.

Orders