Cousins v WA Police
[2025] WASC 39
•10 FEBRUARY 2025
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 the prosecution notice was invalid. At the hearing of the application, I granted leave to appeal in relation to the first ground and refused leave in relation to the second. I allowed the appeal and made consequential orders and said reasons would be published later. These are those reasons.
Procedural matters
The appeal notice was filed on 1 February 2024. Thus, the appellant required an extension of time within which to bring the application for leave. The appellant filed an affidavit sworn on 1 February 2024 in which she gave an explanation for the delay that was to the following effect: she was stressed and overwhelmed by the proceedings, she was unable to fund legal representation, she suffered from ill‑health and the delay was consequential on her applications to have the convictions set aside under s 71 of the Criminal Procedure Act. Based on that explanation and the strength of her argument that the magistrate should not have heard the charges under s 55(4) of the Criminal Procedure Act I extended the time for the appellant to bring the application for leave to appeal.
The respondent applied for leave to rely on additional evidence on appeal. That evidence included an affidavit affirmed by the Senior Security Coordinator of the Department of Justice attaching two incident reports recorded in relation to the hearing in the Magistrates Court on 18 May 2023. The evidence provided an account of the events that took place at and following the hearing that was relevant to the magistrate's decision to proceed to hear the charges under s 55(4) of the Criminal Procedure Act. Pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), I granted the respondent leave to rely upon the additional evidence.
The appellant also applied for leave to rely on additional evidence on appeal and sought orders as follows:
(2)An Order that the Application in an appeal Dated : 6 September 2024 by the Respondent the Court strike out the Application on the grounds of it is an abuse of process, frivolous, vexatious, scandalous and improper and a witch hunt and has no merit at English Common Law under Chapter III Section : 71 to 80 Constitution Act 1900 UK and the Magna Carta 1215 and the Bill of Rights 1688 and all Imperial Laws and no evidence to the contrary can be fm1h coming by the Respondent, estoppel by acquiescence
(3)An Order that CITATION: TEY -v- PLOTZ [2010] WASC 163 be enforced that the WA POLICE are not known at Law under the Supreme Court Jurisdiction as this Miscarriage of Justice has been Perverted by the State Solicitor and now committing 'Torture' on the Appellant by the Application in an Appeal of the Respondent.
(4)An Order by the Supreme Court that Criminal Charges be brought against the State Solicitor Office for 'Torture' under the Crimes (Tortures Act 1988 (Cth) Section : 5. 6. 7. A Public Official or person acting in an official capacity, commits the offence of Torture if in Australia he/she intentionally inflicts suffering on another in the performance or purported performance of his official duties at the instigation or with the consent or acquiescence of a public official or of a person acting in an official capacity immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission
In the light of the conclusion I reached as to the strength of the appellant's ground concerning the magistrate's decision to proceed to hear the application under s 55(4) of the Criminal Procedure Act, it was unnecessary to deal with the appellant's application to adduce further evidence and for the other orders sought by her.
Procedural history of the charges
On 7 September 2022 two prosecution notices were lodged with the Fremantle Registry of the Magistrates Court. One prosecution notice charged the obstruction offence and one prosecution notice charged the three other offences. All the offending was alleged to have occurred on 5 August 2022.
The appellant appeared before the Magistrates Court on five occasions before the hearing on 18 May 2023. For present purposes it is only necessary to refer to one of those hearings being a hearing on 12 May 2023. The 12 May 2023 hearing was before the magistrate who convicted the appellant on 18 May 2023. At the 12 May 2023 hearing the appellant applied for the dismissal of the charges. It appears from the transcript that the application was based on the argument that the prosecution notices had not been signed. The magistrate referred the appellant to the decision of the Court of Appeal in Fisher v O'Hehir.[4] His Honour adjourned the application to dismiss the charges to the trial that was fixed to take place on 18 May 2023. It is apparent from the transcript that the appellant was given a court hearing notice in the presence of the magistrate. It was evident from what was said by the appellant at the 12 May 2023 hearing that the appellant wished to defend the charges.
[4] Fisher v O'Hehir [2023] WASCA 19.
The 18 May 2023 hearing
After taking appearances the following exchanges took place:[5]
HIS HONOUR: All right. Well, look, there's just something I need to raise which is going to affect how this progresses today. I have just been hearing from the parties for another matter that is listed for trial today. It involves two accused, it involves a prosecutor from the State Solicitor's Office and it involves matters which go back to November 2020, so the practical reality about today is that I can't do both trials.
...
HIS HONOUR: So the bottom line is that I'm not going to have sufficient time to resolve this, conduct the trial. Ms Cousins, just take a seat, if you wouldn't mind.
ACCUSED: I give you permission to call me Carol.
HIS HONOUR: Yes. Okay. Well, I'm not going to do that. So, Ms Cousins, the way we have to list trials in this court is, in some ways, unfortunate. We have to double, triple, sometimes even quadruple book trials, which means we list more trials than we actually have time to hear in one particular trial day. Experience, sort of dictates that approach because - you can take a seat, please - because out experience tells us that very, very frequently trials, for whatever reason, fall out at the last minute, and if we adopted a listing approach where we listed a single trial on a single trial date, the delays in setting - the delays for setting trial dates would be unreasonable. So I occasionally have to deal with a situation where there's more than one trial proceeding and I don't have enough time to do both.
[5] Transcript of the primary court dated 18 May 2023, 2 - 3.
After providing this explanation the accused addressed the magistrate very disrespectfully and when he remonstrated with her members of the public present in the court room interjected. The magistrate was required to warn that anyone interrupting the proceedings would be invited to leave.
Shortly after, the magistrate addressed the prosecutor and said, 'I'm going to have to set another trial date'. This remark prompted the following exchange:[6]
[6] Transcript of the primary court dated 18 May 2023, 4 -5.
[APPELLANT]: If you cannot hold this hearing here today - - -
HIS HONOUR: Ms Cousins - - -
[APPELLANT]: - - then this needs to be fully - - -
HIS HONOUR: - - - I'm going to ask you to stop speaking and do not interrupt me.
[APPELLANT]: Why are you shouting over me? This is my courtroom today. You've invited me here. Now you listen to what I have to say.
HIS HONOUR: Okay. So, Ms Cousins, I'm going to have an adjournment. I'm going to walk out of this court in five minutes.
[APPELLANT]: No. No, you cannot adjourn this.
HIS HONOUR: I'm going to have an adjournment, Ms Cousins.
[APPELLANT]: You cannot keep on dragging this on.
HIS HONOUR: Yes. Can I speak? Am I - - -
[APPELLANT]: You are speaking, but don't babble.
HIS HONOUR: Am I allowed to - - -
[APPELLANT]: Stick to the law. Stick to the facts and stick to the law.
HIS HONOUR: Will you do me the courtesy of allowing me to speak, or not? Am I allowed to speak?
[APPELLANT]: Yes, speak, but don't babble.
HIS HONOUR: Sit down, please. Sit down, please.
[APPELLANT]: I don't need to sit down.
HIS HONOUR: Yes, you do, because I tell you you have to.
[APPELLANT]: No, I don't.
HIS HONOUR: Okay sit down
[APPELLANT]: Where do you tell me I have to sit down?
HIS HONOUR: Everyone out please. I'm having an adjournment and I'm coming back in. Clear the court.
[APPELLANT]: You adjourned it last week because you could not - - -
HIS HONOUR: We're adjourned. Thankyou
The court room was cleared. When the hearing resumed (and I infer from the transcript and the incident reports forming part of the respondent's additional evidence that this was only a matter of minutes later) the appellant was not present in the court room and when her name was called outside the court room she did not respond. I infer that the appellant was aware that she was required to re-enter the courtroom from ground 21 of the appellant's grounds of appeal which records 'the Court Clerk calling out the name of "Carol-Maria Cousins" after we were all removed from the Court Building'.
Immediately after the adjournment and in the absence of the appellant the magistrate made the following observations:[7]
HIS HONOUR: … The matters for Ms Cousins were called earlier. Ms Cousins herself was, in my view deliberately disruptive in her interactions with the court. When the matter was called earlier she had a large number of people who were, broadly speaking, supporters who were in the gallery of the court. They became disruptive and because of the combination of those factors, I adjourned the court.
I've made a decision on security grounds and to ensure that the court can function as it ought to, that when the matter was recalled, that only the accused, Ms Cousins, would be entitled to enter and appear in the court, that is that the court would, otherwise, be closed. So that directive, I assume, has been communicated to, perhaps, Ms Cousins, perhaps, to others, but I'm now in a situation where Ms Cousins has, apparently, left the court and has not appeared when her names were called, or when her name was called, for the matter to be resumed. So that's for the transcript. That's what has occurred this morning.
[7] Transcript of the primary court dated 18 May 2023, 5 - 6.
I accept without reservation the magistrate's description of what had occurred in the court.
The prosecutor invited the magistrate to deal with the charges under s 55 of the Criminal Procedure Act on the basis that the appellant had not appeared. In response to that invitation the magistrate proceeded as follows. First, his Honour sought confirmation from the prosecution that it had complied with its disclosure obligations. Next, he dismissed the failure to comply with a direction charge. His Honour then turned to consider whether it was open to him to proceed under s 55. His Honour referred to s 60(7) which provides that on the date for the trial of a charge a court may proceed to conduct a trial if all the parties appear but otherwise may proceed under s 53, s 54 or s 55, as the case may require (it is only s 55 that is relevant in the present case). The magistrate then made the following remarks:[8]
Now, the power under section 55 can be exercised where, on a court date for a charge, the prosecutor appears, and the accused does not, and the accused has not pleaded guilty to the charge.
Well, it's certainly the case that in relation to the three remaining charges, the accused has not pleaded guilty. In terms of the accused's appearance, it is the case that the accused appeared in court when her name was called initially. The matter was effectively stood down. She has declined to appear when the matter was called back on. I consider that, in those circumstances, she has failed to appear in relation to those charges, and on that basis, I have the power to record convictions and deal with her under s 55 of the Criminal Procedure Act. Record convictions under s 55 of the Criminal Procedure Act.
[8] Transcript of the primary court dated 18 May 2023, 8.
The facts of the offences were read aloud by the prosecutor. The magistrate imposed the following fines, for the speeding offence a fine of $200, for the failing to provide personal details a fine of $250 and for the obstruction offence a fine of $750. The appellant was ordered to pay court costs of $264.30.
Leave to appeal
Part 2 of the Criminal Appeals Act 2004 (WA) governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[9] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[10] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[11] If leave to appeal is refused, the appeal is taken to be dismissed.[12]
[9] Criminal Appeals Act 2004 (WA) s 9(1).
[10] Criminal Appeals Act 2004 (WA) s 9(2).
[11] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[12] Criminal Appeals Act 2004 (WA) s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[13]
[13] Criminal Appeals Act 2004 (WA) s 14(2).
The convicting the appellant in her absence ground
The statutory provision
Section 55 of the Criminal Procedure Act provides:
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may —
(a)adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
...
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court —
(a)must presume, in the absence of evidence to the contrary —
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused —
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
The authorities
In Saad v Baron,[14] Beech J (as his Honour then was) made the following observations about s 55:[15]
When s 55 applies, the court has two options. It can adjourn the charge. The other option is for the court to 'hear and determine the charge in the accused's absence'. If this latter option is taken, the guilt of the accused is decided in a radically different legal framework than generally applies in a criminal case. Rather than the prosecution being required to lead evidence to prove the offence beyond reasonable doubt, the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. Secondly, the accused is denied the opportunity to contest the prosecution evidence or make submissions on the evidence. See s 55(4) and Tallot v Matier [[2012] WASC 290] [12]].
...
In a situation where an accused does not appear at all, whether in person or by counsel, the purpose and rationale of s 55 may readily be deduced. In that situation, two things can safely be said that explain s 55. First, the accused has chosen not to contest the charges. That may reflect the absence of interest in or concern about the charge, or it may reflect the absence of any issue with what is alleged. Secondly, there is no-one in the court to dispute the prosecution case. In those circumstances, the legislature has evidently determined that proof by the prosecution is unnecessary. The process is, as expressed by both counsel, 'streamlined' by permitting the court to take any allegation in the prosecution notice to be proved, without evidence. (transcript references omitted)
[14] Saad v Baron [2012] WASC 507.
[15] Saad v Baron[58] ‑ [62].
The respondent relied on the Court of Appeal's decision in Fisher v O'Hehir. The facts of Fisher v O'Hehir may be summarised as follows:
(a)The offender had a court hearing on 21 October 2019. The matter was initially called on at 9.54 am. At that time the offender was not present at court. The magistrate said that he would give the appellant until 10.15 am to arrive and that if he did not, he would deal with the charges in the appellant's absence, and if he did appear he would adjourn the application to 2.15 pm being the time at which the prosecution's witness would be available. The magistrate decided to adjourn the hearing to 2.15 pm.
(b)The offender arrived at court at approximately 10.20 am and he appeared before the court. The offender was told that the matter had been adjourned until 2.15 pm. The offender said that he would not attend because of his ill health.
(c)The offender subsequently handed a statutory declaration to the court registry which said that he would not attend in the afternoon.
(d)The matter was recalled at approximately 11.00 am after the magistrate had been provided with a copy of the statutory declaration. The offender was not present. The magistrate then determined the charges in the absence of the offender.
The offender appealed against his conviction and on appeal the judge held that the magistrate was entitled to recall the matter and convict and sentence the offender in his absence. The offender appealed to the Court of Appeal and the appeal was dismissed. Relevantly for the purposes of the present case, the grounds of appeal included reliance on a contention to the effect that the offender had been denied the opportunity to participate in his defence because he has not been informed of the hearing that took place at 11.00 am. When addressing this ground of appeal, the Court of Appeal made the following observations:[16]
It is usual that a very large number of matters are listed before a Magistrates Court in a single day. The magistrate must manage the court list and determine the order and timing of calling on matters for hearing. Although s 75 of the Criminal Procedure Act contemplates that a matter may be adjourned to a later time on the same day, there is a distinction between an adjournment of a matter and the management of the court's daily list by making determinations as to when matters will be called on and standing matters over. In our view, the magistrate did not adjourn the trial but rather was merely managing the court list by indicating when on the day the matter was listed for trial the hearing would begin.
Of course, the exercise of the magistrate's power to manage his or her list must be exercised in a manner which is procedurally fair to all parties. However, fairness is essentially a practical concept. There was no practical unfairness in the present case in calling the appellant's matter back on when he had made it plain that he was not waiting until 2.15 pm and would not be appearing at that time. Nor, in those circumstances, was there any practical unfairness in dealing with the matter in the appellant's absence after the appellant did not respond to his name being called in the court precincts. The appellant was not deprived of any opportunity to participate in the proceedings given that he had made it plain that he would not be participating and was in the process of leaving the court to return home for the day. (citations omitted)
Consideration
[16]Fisher v O'Hehir [20] ‑ [21].
The respondent's contentions were as follows:
22.Fisher v O'Hehir establishes that the Magistrate had the power to convict the appellant in her absence under s 55 of the CP Act in circumstances where:
(a)the appellant had attended court and appeared earlier in the day;
(b)the Magistrate had stood the matter down; and
(c)the Magistrate recalled the matter, and the appellant failed to appear.
23.The dispositive question in this appeal is whether the exercise of the power in s 55 of the CP Act in the circumstances of this case gave rise to 'practical unfairness' (to adopt the expression used in Fisher v O'Hehir). For the following reasons, the respondent submits that the power was exercised fairly and, accordingly, there was no miscarriage of justice.
24.In this case, the appellant was informed that her trial could not proceed that day. Following this, the appellant became antagonistic and belligerent. Following an exchange between the Magistrate and the appellant, the Magistrate said:
HIS HONOUR: Everyone out please. I'm having an adjournment and I'm coming back in. Clear the court.
ACCUSED: You adjourned it last week because you could not …
HIS HONOUR: We're adjourned. Thank you.
25.In the circumstances, it was clear that the Magistrate was managing the court's list to respond to the poor behaviour of the appellant and her supporters. This is evident from the fact that his Honour informed the court that he was coming back in and the fact that his Honour had yet to set a new hearing date for the matter.
26.The matter was then re-called and the appellant did not appear. The appellant did not attend the courtroom when her name was called. There was no unfairness in recalling the matter in circumstances where the appellant should have been aware that her matter was not complete for the day.
27.However, in addition to the foregoing matters, the evidence before this Court on appeal establishes that the appellant was positively aware that the matter was being recalled and made a deliberate decision to not go back to the courtroom.
...
32.The evidence compels the conclusion that the appellant was aware that her matter was being recalled. In those circumstances, it must be concluded that the appellant made a deliberate decision to no longer engage in the court process. Like in Fisher v O'Hehir there can be no practical unfairness in dealing with a matter under s 55 of the CP Act when an accused, aware that the matter is being called on, decides to no longer participate in the court process.
33.In circumstances where there was no practical unfairness in convicting the appellant in her absence, the appeal should be dismissed insofar as it relates to the convictions in the appellant's absence.
Before proceeding any further I must record my strong disapproval of the grossly disrespectful attitude displayed by the appellant towards the magistrate. Judges of this court frequently comment on the high volume of work undertaken by magistrates. They are on the front line in the administration of justice in this State. The pressure of their work is intense and generates considerable stress. Magistrates deserve the utmost respect from the members of the community they serve and not disrespect of the nature shown by the appellant and those who interrupted the proceedings before the magistrate in this case.
Section 55 of the Criminal Procedure Act provides the court with a summary method of hearing the charges in the absence of the accused. The court is empowered to take as proven any allegation in the prosecution notice without requiring the prosecution to lead evidence and the accused is denied the opportunity to contest the evidence and make submissions. It is no small matter to deprive an accused of the opportunity to defend a criminal charge and care must be taken both to ensure that the conditions that enliven the jurisdiction conferred by s 55(2) have been satisfied and that discretion to hear and determine the charge in the accused's absence should be exercised having regard to all the relevant circumstances. The relevant circumstances may include what the court knows of the accused's intentions in relation to the charges and what the court knows of the circumstances surrounding the accused's absence.
It is trite to observe the outcome of every case depends on its own facts. The following features of this case are significant and distinguish it from Fisher v O'Hehir. In his opening remarks the magistrate had stated in unequivocal terms that the trial of the charges could not take place that day. Relatedly, before adjourning the court, his Honour had said, 'I'm going to have to set another trial date'. The magistrate knew that the appellant intended to defend the charges and she had appeared in person on the trial date apparently ready to proceed. Objectively, the impression created by the magistrate's remarks to the effect that the trial could not proceed and he would need to set another date was that there could and would be no hearing and determination of the charges that day. Of course, the appellant should have answered the call for her to re‑appear in the court room and continue to participate in the proceedings but having created the impression that the hearing could and would not proceed on the date set for trial, in my respectful view, it was unjust for him to exercise his discretion to proceed to hear the charges under s 55(4) of the Criminal Procedure Act. His Honour's discretion miscarried and there was a miscarriage of justice.
The validity of the prosecution notices ground
The appellant raised two points. First, the prosecution notices recorded the prosecutor as 'Western Australian Police Force' and there is no such entity. Secondly, the prosecution notices were not signed by the person issuing the notice, that is the respondent.
As to the first point, the appellant referred to the decision of Tey v Plotz,[17] in which Jenkins J had noted that:[18]
The WA Police is not a person, a corporation, a statutory body, a public authority or corporation sole. it is not a body known to the law other than as a 'sufficient' name of a prosecutor as provided for in the Criminal Procedure Act sch 1. Neither is WA Police a 'public authority' as that term is defined in the Criminal Procedure Act.
Generally speaking, a court does not have jurisdiction over a person or legal entity unless they are joined before the court as a party or unless they are treated by statute as if they were a party. Unless a person or other legal entity is joined as a party to a legal proceeding, they are not bound by a decision of the court in that proceeding: Templeton v Leviathan Pty Ltd (1921) 34 CLR 34, 70. A corollary to this principle is that a party which does not exist as a legal entity can not sue or be sued as such misnomer would give rise to a risk that any order made by a court in the proceedings would be unenforceable against that party.
[17] Tey v Plotz [2010] WASC 163.
[18] Tey v Plotz [15] ‑ [16].
Relevantly, however, the point decided by Jenkins J in Tey v Plotz was, that even though WA Police was not a legal entity, the identification of WA Police as the prosecutor was entirely regular because cl 3(2)(a) of sch 1 of the Criminal Procedure Act provided that if a prosecution is being commenced by a police officer it is sufficient to name 'WA Police' as the prosecutor.
As to the appellant's second point, that is the prosecution notices were not signed by the respondent, in Fisher v O'Hehir the Court of Appeal explained why the requirement to sign a prosecution notice was satisfied by the operation of various statutory provisions that permitted the lodgement of documents electronically. The Court of Appeal's explanation was as follows:[19]
[19] Fisher v O'Hehir [33].
The respondent is a police officer. Section 20(3)(a)(iii) of the Criminal Procedure Act authorises a police officer to commence a prosecution for an offence. Under s 21(3) of that Act:
A prosecution is commenced on the day on which a prosecution notice, signed in accordance with section 23, is lodged with the court in which the prosecution is being commenced, whether or not the notice has been served on the accused.
Section 23(2)(d) of the Criminal Procedure Act requires that a prosecution notice 'be signed by the person who is commencing the prosecution'.
Section 24(2) of the Criminal Procedure Act requires that a prosecution notice be lodged in a manner prescribed by rules of court.
Under r 13A(1) of the Magistrates Court (General) Rules 2005 (WA), as in force on 12 October 2015, an 'approved user' may lodge a document electronically by providing the information required for the completion of the document by means of the courts electronic system.
The term 'approved user' of the courts electronic system was defined to mean a person:
(a)who is authorised by the CEO under regulation 5A to use the courts electronic system; and
(b)whose identity is verified by the courts electronic system each time the person uses the system[.]
Part 2 of the Courts and Tribunals (Electronic Process Facilitation) Act 2013 (WA) relevantly makes provision for the use of technology in relation to court proceedings and the record of court proceedings. That part applies to the Criminal Procedure Act and the Magistrates Court Act 2004 (WA). Section 8 of Courts and Tribunals (Electronic Process Facilitation) Act provides that, where a document lodged with a court is required or permitted to be in writing, the document may be lodged electronically in accordance with any regulations or rules of the court. Under s 10(1) of that Act:
If, under a provision of an Act to which this Part applies, a document is required to be signed, certified or sealed by any person, that requirement is to be taken to be satisfied if the document is authenticated in accordance with any regulations or rules of court.
Rule 13A(3) of the Magistrates Court (General) Rules provides:
A document lodged electronically under this rule that is to be signed by or on behalf of the person lodging it is authenticated for the purposes of the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 section 10 if —
(a)the courts electronic system records the identity of the person who lodges the document; and
(b)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.
(citations omitted)
The respondent's name was stated in the relevant section of the electronically lodged prosecution notices and thus the requirement that the respondent sign the prosecution notice was satisfied pursuant to the provisions outlined by the Court of Appeal in the passages cited above.
Conclusion and orders
The application for leave to appeal succeeds on the ground that there was a miscarriage of justice occasioned by the magistrate hearing and determining the charges under s 55 of the Criminal Procedure Act. The appeal will be allowed on that basis. The application for leave to appeal is otherwise dismissed.
The following orders were made:
(a)The appellant's time for filing an application for leave to appeal is extended to 1 February 2024.
(b)The respondent be granted leave to adduce evidence in the form of the affidavit of Kieran Fernandez affirmed on 30 August 2024.
(c)The appellant be granted leave to appeal in respect of charges FR 5620/2022 and FR 5621/2022 on the ground that there was a miscarriage of justice occasioned by the magistrate hearing and determining the charges under s 55 of the Criminal Procedure Act 2004 (WA) and the appeal be allowed for both charges on that basis.
(d)The appellant's convictions on charges FR 5620/2022 and FR 5621/2022 are set aside and are remitted to the Magistrates Court at Fremantle for trial before a different magistrate.
(d)The application for leave to appeal be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
10 FEBRUARY 2025
7
2