Dean v Legal Practice Board
[2016] WASCA 63
•18 APRIL 2016
DEAN -v- LEGAL PRACTICE BOARD [2016] WASCA 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 63 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:147/2015 | 19 NOVEMBER 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 18/04/16 | |
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on all proposed grounds refused Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES DEAN MARK JEFFREY SIMONSEN LEGAL PRACTICE BOARD |
Catchwords: | Criminal law Unqualified person engaging in legal practice Aiding an unqualified person to engage in legal practice Convictions, sentences and costs orders recorded in the Magistrates Court of Western Australia Application for leave to appeal against decisions of a single judge of the Supreme Court |
Legislation: | Australian Constitution, s 117 Banking Act 1959 (Cth), s 5, s 9 Criminal Appeals Act 2004 (WA), s 9, s 18 Criminal Code, s 7 Criminal Procedure Act 2004 (WA), s 3, s 20, s 67, s 78 Evidence Act 1906 (WA), s 3, s 79C, s 89, s 90, s 91, s 92 Interpretation Act 1984 (WA), s 67 Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012 Legal Profession Act 2008 (WA), s 11, s 12, s 534, s 592, s 593 Magistrates Court Act 2004 (WA), s 36 |
Case References: | Attorney General v Quill Wills (1990) 3 WAR 500 Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Dean v Legal Practice Board [2013] WASC 155 Dean v Legal Practice Board [2015] WASC 260 Legal Practice Board v Adams [2001] WASC 78 Legal Practice Board v Said [2002] WASC 35 Legal Practice Board v Taylor [2005] WASC 242 Lewkowski v Lilley [2000] WASCA 14 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Smart v Albuquerque [2011] WASCA 231 West v Suzuka [1964] WAR 112 Wilson v Dobra (1955) 57 WALR 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEAN -v- LEGAL PRACTICE BOARD [2016] WASCA 63 CORAM : McLURE P
- BUSS JA
MAZZA JA
- MARK JEFFREY SIMONSEN
Appellants
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MARTINO J
Citation : DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260
File No : SJA 1026 of 2014
Catchwords:
Criminal law - Unqualified person engaging in legal practice - Aiding an unqualified person to engage in legal practice - Convictions, sentences and costs orders recorded in the Magistrates Court of Western Australia - Application for leave to appeal against decisions of a single judge of the Supreme Court
Legislation:
Australian Constitution, s 117
Banking Act 1959 (Cth), s 5, s 9
Criminal Appeals Act 2004 (WA), s 9, s 18
Criminal Code, s 7
Criminal Procedure Act 2004 (WA), s 3, s 20, s 67, s 78
Evidence Act 1906 (WA), s 3, s 79C, s 89, s 90, s 91, s 92
Interpretation Act 1984 (WA), s 67
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012
Legal Profession Act 2008 (WA), s 11, s 12, s 534, s 592, s 593
Magistrates Court Act 2004 (WA), s 36
Result:
Leave to appeal on all proposed grounds refused
Appeals dismissed
Category: B
Representation:
Counsel:
Appellants : In person (Mr Dean no appearance)
Respondent : Mr R J Nash
Solicitors:
Appellants : In person
Respondent : Legal Practice Board
Case(s) referred to in judgment(s):
Attorney General v Quill Wills (1990) 3 WAR 500
Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Dean v Legal Practice Board [2013] WASC 155
Dean v Legal Practice Board [2015] WASC 260
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Said [2002] WASC 35
Legal Practice Board v Taylor [2005] WASC 242
Lewkowski v Lilley [2000] WASCA 14
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Smart v Albuquerque [2011] WASCA 231
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
MAZZA JA:
Summary
3 In 2011, Mr William McCarthy's then wife commenced proceedings in the Family Court of Western Australia for a property settlement (the Family Court proceedings). She was represented by a legal practitioner. This practitioner gave Mr McCarthy an estimate of legal costs if the matter went to trial. Mr McCarthy was 'quite shocked' by what he was told (26 July 2013, ts 52). Mr McCarthy spoke to a friend, who suggested that Mr McCarthy speak to Mr James Dean. Mr McCarthy subsequently met with Mr Dean at Mr Dean's home. Mr Mark Simonsen attended that meeting with Mr Dean.
4 Mr Dean and Mr Simonsen agreed to provide Mr McCarthy with legal assistance in the Family Court proceedings. Mr Dean said he would assist Mr McCarthy in 'the court processes', while Mr Simonsen's role was to draft legal documents (26 July 2013, ts 54). Neither Mr Dean nor Mr Simonsen are Australian legal practitioners (26 July 2013, ts 45 - 46).
5 Mr McCarthy was told that Mr Dean's and Mr Simonsen's services would cost $5,000 (26 July 2013, ts 55). Mr McCarthy transferred that sum into a bank account nominated by Mr Dean. Mr McCarthy was told that Mr Dean and Mr Simonsen would decide between themselves as to whether there would be any split of the money; and if so, how that division would be done (26 July 2013, ts 55 - 56).
6 Mr Dean advised Mr McCarthy to make his then wife's life 'as unpleasant as possible' (26 July 2013, ts 57).
7 Mr Dean gave Mr McCarthy advice in respect of the Family Court proceedings; attended a meeting with Mr McCarthy's then wife in an attempt to settle the property dispute; attended at the Magistrates Court in respect of proceedings brought by Mr McCarthy's then wife for a violence restraining order; advised Mr McCarthy to put a caveat on the house in which his then wife lived, and assisted in the preparation of documents for an annulment of marriage. On Mr Dean's advice, Mr McCarthy applied for a violence restraining order against his then wife (VRO proceedings).
Mr Simonsen produced two versions of draft settlement agreements which were sent by email to Mr McCarthy via Mr Dean.
8 Eventually, Mr Dean informed Mr McCarthy that he no longer wished to be involved with him. Mr McCarthy asked Mr Dean to refund the $5,000 he had paid him. Mr Dean failed to do so.
9 Later, the Legal Practice Board (the Board) charged Mr Dean and Mr Simonsen by way of a prosecution notice dated 7 December 2012 and signed by its (then) Secretary, Ms Anne Maria Seghezzi, with three offences, being:
Charge 1: [Mr Dean], being a person who was not an Australian legal practitioner, engaged in legal practice contrary to section 12(2) of the Legal Profession Act 2008.
Charge 2: [Mr Dean] aided, counselled or procured [Mr Simonsen], who was not an Australian legal practitioner, to engage in legal practice contrary to section 12(2) of the Legal Profession Act 2008.
Charge 3: [Mr Simonsen], being a person who was not an Australian legal practitioner, engaged in legal practice contrary to section 12(2) of the Legal Profession Act 2008.
10 Mr Dean and Mr Simonsen pleaded not guilty. After some interlocutory proceedings, they were tried in the Midland Magistrates Court by his Honour Magistrate Roth. The trial took place on 26 July 2013 and 24 January 2014.1 On 20 March 2014, the learned magistrate found Mr Dean and Mr Simonsen guilty as charged. Mr Dean was fined $5,000 on count 1 and $1,000 on count 2. Mr Simonsen was fined $5,000 on count 3 (20 March 2014, ts 122 - 123). Mr Dean was ordered to pay costs of $9,478.44 and Mr Simonsen was ordered to pay costs of $6,947.87 (20 March 2014, ts 131).
11 Mr Dean and Mr Simonsen appealed to the Supreme Court in respect of the convictions. These proceedings were also treated as appeals against the sentences and costs orders. Martino J refused leave to appeal on all grounds and dismissed the appeals: Dean v Legal Practice Board [2015] WASC 260.
12 Mr Dean and Mr Simonsen now appeal to this court against all of Martino J's decisions.
Sections 12(2) and 12(4) of the Legal Profession Act 2008 (WA)
13 Sections 12(2) and 12(4) of the Legal Profession Act (LPA) provide:
12. Prohibition on engaging in legal practice when not entitled
...
(2) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
…
(4) It is a defence to a prosecution for an offence against subsection (2) in relation to the doing of legal work to show that the person who did the legal work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done.
Proceedings prior to trial
14 Prior to trial, Mr Dean made an application to a magistrate to have the charges dismissed because, he claimed, the prosecution notice was invalid. He argued that the prosecution had not been commenced by an 'authorised person' as required by s 20 of the Criminal Procedure Act 2004 (WA) (CPA). The magistrate rejected Mr Dean's arguments and dismissed the application. Mr Dean purported to appeal to the Supreme Court against the magistrate's decision. Hall J found that the appeal was incompetent and that the decision should not be reviewed pursuant to s 36 of the Magistrates Court Act 2004 (WA): Dean v Legal Practice Board [2013] WASC 155.
The trial
Legal representation
15 Mr Dean and Mr Simonsen represented themselves at trial. The Board was represented by counsel, Mr R J Nash.
Objection to the validity of the prosecution notice
16 On the first morning, Mr Dean and Mr Simonsen objected to the validity of the prosecution notice. Their objections were confusing, but were understood by the learned magistrate to be that the Board did not have the capacity to bring the prosecution against them; and further, that Ms Seghezzi had not been properly authorised by the Board to do so. The learned magistrate rejected these submissions (26 July 2013, ts 18 - 19).
Opening addresses
17 Mr Nash then delivered an opening address in which he outlined, in some detail, the cases against the appellants. Neither Mr Dean nor Mr Simonsen delivered an opening address. Mr McCarthy was then called to testify.
The prosecution case
William John McCarthy’s testimony
18 Mr McCarthy testified in these terms.
19 In May 2011, Mr McCarthy's marriage 'disintegrated' (26 July 2013, ts 51). His then wife made an application for property settlement (26 July 2013, ts 51). At about the time the matter was set down for mediation - and, if that did not succeed, trial - Mr McCarthy received an estimate of her lawyer's costs if the proceedings were tried. He was 'quite shocked' by that sum (26 July 2013, ts 52).
20 Consequently, Mr McCarthy sought the advice of a friend, Mr Robin Kingdon (26 July 2013, ts 52). Mr Kingdon recommended that he speak with Mr Dean, who, although not a lawyer, was 'really conversant with the legal processes' (26 July 2013, ts 52). Mr McCarthy already had some knowledge of Mr Dean via a mutual interest that they had in dogs (26 July 2013, ts 52).
21 As Mr McCarthy recalled, around 14 or 15 December 2011, Mr McCarthy met with Mr Dean at Mr Dean's home in the eastern suburbs. There, he met Mr Simonsen, who was present at all material times. Mr McCarthy showed Mr Dean and Mr Simonsen some documents connected with the Family Court proceedings (26 July 2013, ts 53).
22 There was then a discussion 'as to the way forward' (26 July 2013, ts 54). According to Mr McCarthy, Mr Dean said that both he and Mr Simonsen could help him. Mr Dean said that their respective areas of expertise were different - Mr Dean would come up 'with the processes to go forward'; Mr Simonsen 'could produce the documents up to [the] High Court in different colours [sic] and deeds and settlement document[s]' (26 July 2013, ts 54). Mr McCarthy said that he asked about the cost of Mr Dean's and Mr Simonsen's services. Mr Dean told him the cost was $5,000 (26 July 2013, ts 54 - 55). Mr McCarthy testified to the effect that he asked Mr Simonsen about this, but that he (Mr Simonsen) deferred to Mr Dean (26 July 2013, ts 55). Mr McCarthy said that Mr Dean told him that, for his $5,000, he would 'get the legal representation to conclude this Family Court matter and if it meant going to the Supreme Court [sic] it would be inclusive of that $5,000' (26 July 2013, ts 55). Mr McCarthy was told by Mr Dean that this fee would be split between him and Mr Simonsen.
23 Mr McCarthy agreed to pay the $5,000 immediately. Mr Dean asked his wife to provide Mr McCarthy with their bank account details so that the payment could be transferred electronically into that account (26 July 2013, ts 55). This was done by Mr McCarthy from a Westpac account he controlled (26 July 2013, ts 58 - 59). The relevant debit transaction is recorded in Mr McCarthy's account as having taken place on 12 December 2011 to 'Payment James Dean' (26 July 2013, ts 60 - 62; exhibits 1, 2, 3).
24 Mr McCarthy said that Mr Simonsen took from him various details relevant to the Family Court proceedings; however, he (Mr McCarthy) did not have all the information at hand. Subsequently, when information was required, the line of communication was by email and it was always via Mr Dean. Thus, if Mr Simonsen sought any information from Mr McCarthy, the request would come, and Mr McCarthy's response would be, via Mr Dean (26 July 2013, ts 56; exhibit 6).
25 Mr McCarthy said that Mr Dean's advice at the meeting was 'to make life for my ex-wife as unpleasant as possible, thereby creating the environment where a negotiation and a settlement figure would be more favourable to [Mr McCarthy] … and that included seeking a violence restraining order against [Mr McCarthy's then wife]' (26 July 2013, ts 57).
26 Mr McCarthy said that, shortly after the meeting with Mr Dean and Mr Simonsen, his then wife telephoned him to inquire whether he 'still wanted to settle the property matter' (26 July 2013, ts 62). Mr McCarthy contacted Mr Dean, who suggested that a meeting be set up and that Mr Simonsen would provide a settlement agreement. On 13 December 2011, Mr Dean sent an email to Mr McCarthy in which he forwarded an email from Mr Simonsen entitled 'Deed of Settlement for Bill [sic]', together with an attached draft settlement agreement prepared by Mr Simonsen (26 July 2013, ts 62 - 68, 71; exhibits 4.1, 4.2).
27 Mr McCarthy testified that, at that time, 'numerous emails … were flying between myself and [his then wife]' (26 July 2013, ts 68). Mr McCarthy explained that, when he received an email from his then wife, he would forward it to Mr Dean, who told him how to respond (26 July 2013, ts 68 - 70; exhibit 5). Mr McCarthy would then reply to his then wife's email and send a copy to her lawyer.
28 On 14 December 2011, Mr Dean forwarded to Mr McCarthy an email from Mr Simonsen with the subject matter entitled 'Amended Deed of Settlement for Bill [sic]', together with an attached 'final' settlement agreement (26 July 2013, ts 72 - 74, 77; exhibits 7.1, 7.2). It was this document which was presented to Mr McCarthy's then wife when they met on 'that Friday', being 16 December 2011 (26 July 2013, ts 73, 77). Mr Dean accompanied Mr McCarthy to the meeting. Mr McCarthy's then wife did not accept the terms set out in the 'final' settlement agreement (26 July 2013, ts 77).
29 Straight after the meeting, Mr Dean repeated the advice that he had given him earlier 'to make life unbearable for [Mr McCarthy's then wife]' (26 July 2013, ts 77).
30 Mr McCarthy then commenced the VRO proceedings. Unbeknown to him, his then wife had, the day before, applied for a violence restraining order against him and Mr Dean (26 July 2013, ts 77 - 78, 83, 90).
31 At about this time, and based on Mr Dean's advice, Mr McCarthy lodged a caveat against his then wife's home (26 July 2013, ts 92 - 93).
32 Mr McCarthy represented himself before a magistrate in respect of the VRO proceedings. Although Mr McCarthy did not testify as to the precise date of his appearance, based on material referred to in Martino J's reasons, it was 21 December 2011 [94], [96]. The magistrate (his Honour Magistrate Young) dismissed Mr McCarthy's application. In giving evidence in support of the application, Mr McCarthy said his then wife threatened him and that he feared for his life. At trial, Mr McCarthy said in his examination-in-chief that he embellished the evidence he gave in the VRO proceedings when he said he feared for his life (26 July 2013, ts 57).
33 Mr McCarthy testified that the next step he took based on Mr Dean's advice was to apply for an annulment of the marriage. The rationale for this step was that if the annulment was granted, Mr McCarthy's then wife's permanent residency visa would be revoked (26 July 2013, ts 78 - 79). Mr Dean completed parts of the documents of the application and drafted an affidavit for Mr McCarthy to sign. The application was filed in the Family Court in January 2012 (26 July 2013, ts 79 - 82, 87 - 89; exhibits 9, 10.1, 10.2).
34 In or about March 2012, Mr McCarthy attended court in answer to his then wife's application for a violence restraining order. Mr Dean attended with Mr McCarthy. Mr Dean applied to the magistrate (who was his Honour Magistrate Roth) to act as Mr Dean's McKenzie friend. This application was refused (26 July 2013, ts 28 - 29, 83).
35 Mr McCarthy said that after this appearance, Mr Dean sent him a number of emails which culminated in Mr Dean informing him that he no longer wished to be involved with him. Mr McCarthy asked Mr Dean to refund him the $5,000 which he had paid (26 July 2013, ts 83 - 84, 91). Mr Dean failed to pay the $5,000.
36 Ultimately, Mr McCarthy engaged duly-qualified legal practitioners to act on his behalf. A property settlement was negotiated and he withdrew the annulment application (26 July 2013, ts 91).
37 Mr Dean's cross-examination of Mr McCarthy was lengthy and extended into the second day of the trial (26 July 2013, ts 93 - 143; 24 January 2014, ts 11 - 22). He was given considerable latitude by the learned magistrate. It was necessary for his Honour to intervene in the cross-examination for various reasons, including, to:
(a) establish the relevance of the cross-examination (26 July 2013, ts 5, 96, 97 - 98, 101 - 103, 121 - 122);
(b) prevent Mr Dean from making statements or giving evidence from the bar table (26 July 2013, ts 106, 121, 138, 141; 24 January 2014, ts 12);
(c) prevent 'double-barrelled' questions (26 July 2013, ts 105, 114 - 115);
(d) clarify or explain Mr Dean's questions so they could be understood (26 July 2013, ts 100, 107 - 108, 112 - 114, 117; 24 January 2014, ts 12); and
(e) prevent questions on matters of law (26 July 2013, ts 120 - 121).
38 Mr Dean put a number of matters to Mr McCarthy in cross-examination which Mr McCarthy denied, including:
(a) In return for marrying him, Mr McCarthy's then wife paid him $10,000 (26 July 2013, ts 99).
(b) Mr McCarthy paid the $5,000 as a refund of a cash deposit Mr Dean's wife had paid for some kitchen benchtop work (26 July 2013, ts 102 - 103).
(c) Suggestions that the $5,000 was an investment by him in a product referred to as an 'atmospheric water generator' or Mr Dean's 'solar water idea' (26 July 2013, ts 115).
(d) Mr McCarthy 'manufactured' the emails he alleged Mr Dean had sent him (26 July 2013, ts 127, 131, 134).
(e) Mr McCarthy 'manufactured' the settlement agreements himself (26 July 2013, ts 136).
(f) Mr McCarthy drafted the annulment application himself (26 July 2013, ts 138).
39 Mr McCarthy confirmed that he was not given a receipt by Mr Dean for the $5,000 payment (26 July 2013, ts 103, 112).
40 Mr Dean cross-examined Mr McCarthy about the evidence he gave in the VRO proceedings. Mr McCarthy said 'to the best of [his] knowledge' that he said in those proceedings that his then wife had threatened his life. He accepted that she had not said this (24 January 2014, ts 13).
41 In cross-examination by Mr Simonsen, Mr McCarthy testified that:
(a) although he could send and receive emails, he was not, 'from a technology point of view', 'proficient' (24 January 2014, ts 26);
(b) he had 'no idea' how a forwarded email could be altered (24 January 2014, ts 29); and
(c) he had never corresponded directly with Mr Simonsen (24 January 2014, ts 31).
42 Mr McCarthy agreed that, in his witness statement, he said that, on 14 November 2011, he sent an email to Mr Simonsen. He explained that what he meant by that statement was that the email had been sent via Mr Dean (24 January 2014, ts 32 - 33). Mr McCarthy accepted that he made no payment himself to Mr Simonsen, nor did he see Mr Dean give Mr Simonsen any money (24 January 2014, ts 36, 38).
Banker’s affidavit of Paul Daniel Norval
43 After Mr McCarthy had concluded his evidence and was excused, Mr Nash was permitted by the learned magistrate to tender into evidence a banker's affidavit of Paul Daniel Norval sworn on 26 February 2013 in respect of an account styled in the name of Mr Dean and his wife for the period between 22 November 2011 to 21 March 2012 at Credit Union Australia Limited (24 January 2014, ts 54; exhibit 12). The records which form part of that affidavit show an entry on 12 December 2011 of a direct credit into the account of $5,000 from 'Mr William John'. 'William' and 'John' are Mr McCarthy's given names. The record also shows that on 13 December 2011, a payment was made in the sum of $2,500 to 'M and D Simonsen'.
44 The prosecution then closed its case.
The defence case
45 The learned magistrate went to considerable length to accurately explain to each of Mr Dean and Mr Simonsen their right to give evidence or remain silent. During this process, his Honour informed them that, if they wished to avail themselves of the defence in s 12(4) of the LPA, there was an onus on them to establish it on the balance of probabilities (24 January 2014, ts 59 - 66).
46 In the course of this explanation, Mr Dean asked the learned magistrate to recuse himself because he felt 'a certain amount of pressure … to give evidence …', and because he believed that the magistrate did not have his 'best interest[s] at heart' (24 January 2014, ts 60 - 61).
47 The learned magistrate rejected the application and explained that, whether or not Mr Dean or Mr Simonsen gave evidence was a matter entirely for them, and that he did not have 'anybody's best interests at heart' (24 January 2014, ts 61).
48 Neither Mr Dean nor Mr Simonsen elected to give or adduce evidence.
Closing addresses
49 Mr Nash delivered his closing address on behalf of the Board. It is unnecessary to summarise it.
50 In his closing address, Mr Dean submitted that:
(a) There was no offence under the LPA of procuring an offence under that Act and, thus, he could not be found guilty of count 2 (24 January 2014, ts 86).
(b) There was no evidence that he was carrying out a legal business (24 January 2014, ts 86 - 87).
(c) Mr McCarthy was an unreliable witness and was, as he put it, 'a complete scumbag' (24 January 2014, ts 91).
(d) The prosecution had not proved that Mr McCarthy had paid for Mr Dean and Mr Simonsen's services (24 January 2014, ts 90 - 91).
(e) The emails which had been tendered in evidence had not been proved to be genuine. Mr Dean said that the emails did not have 'source codes'. He then attempted to give evidence from the bar table as to what a source code was, only to be stopped by the learned magistrate (24 January 2014, ts 88).
(f) Mr McCarthy prepared the documents himself, and sent himself emails (24 January 2014, ts 90 - 91).
(g) Mr Dean denied charging Mr McCarthy $5,000 for legal work. He said that the $5,000 could be a refund with respect to benchtops which he and his then wife had planned to install in their home (24 January 2014, ts 91).
51 In his closing address, Mr Simonsen submitted that:
(a) Mr Dean did not conduct a business providing legal advice (24 January 2014, ts 92).
(b) Documents of the type said by the prosecution to have been drafted by him were 'readily available' from the Family Court (24 January 2014, ts 92). (No evidence to this effect was led at the trial.)
(c) Mr McCarthy was not a witness of truth (24 January 2014, ts 93).
(d) There was no evidence that he (Mr Simonsen) had engaged in legal practice (24 January 2014, ts 93).
52 After the parties' closing addresses were completed, the learned magistrate reserved his decision (24 January 2014, ts 95).
The learned magistrate's reasons for decision
53 On 20 March 2014, his Honour delivered his reasons and made the orders to which I have referred.
54 The learned magistrate found Mr McCarthy to be an honest, truthful and accurate witness upon whom he could rely, and accepted his evidence beyond a reasonable doubt (20 March 2014, ts 114 - 115). His Honour said that he was satisfied beyond reasonable doubt as follows:
[T]hat each of the accused engaged in legal practice either by preparing documentation in relation to Family Court proceedings or by giving legal advice about the appropriate course Mr McCarthy should follow in pursuit of a settlement. Further, I am also satisfied that Mr Dean procured Mr Simonsen to engage in legal work and subsequently aided him doing so by acting as a conduit between Mr Simonsen and Mr McCarthy (20 March 2014, ts 115).
55 The learned magistrate said that the defence under s 12(4) of the LPA did not arise (20 March 2014, ts 115).
Proceedings before Martino J
56 Martino J treated the proceedings before him as appeals by each of Mr Dean and Mr Simonsen against their convictions, sentences and costs orders. His Honour observed that there were ten proposed grounds of appeal. Martino J considered that paragraphs 14 and 15 of the appellants' outline of submissions raised two further proposed grounds of appeal. All of these proposed grounds required a grant of leave to appeal.
Proposed grounds of appeal
57 With respect to each of their applications for leave to appeal against conviction, the appellants alleged, in substance, that:
(a) The Board had no authority to prosecute Mr Dean and Mr Simonsen (paragraph 14 of the appellants' outline of submissions).
(b) The prosecution against them infringed s 117 of the Australian Constitution (the Constitution) (paragraph 15 of the appellants' outline of submissions).
(c) The learned magistrate erred by holding that s 7(d) of the Criminal Code applied to a prosecution brought under the LPA (proposed ground 10).
(d) The learned magistrate erred in his construction of the term 'legal practice' in s 12(2) of the LPA (proposed ground 4).
(e) The learned magistrate erred in denying the appellants the opportunity to cross-examine Mr McCarthy on certain testimony he gave in the VRO proceedings brought against his then wife which, they asserted, contradicted evidence Mr McCarthy gave in the proceedings before the learned magistrate (proposed ground 7).
(f) A miscarriage of justice occurred on the basis that the learned magistrate was biased against them and conducted the trial in an unbalanced way (proposed ground 5).
(g) The learned magistrate 'assumed' the appellants had breached the LPA (proposed ground 6).
(h) The learned magistrate erred in holding that, for an offence to be proved under s 12(2) of the LPA, the Board did not have to establish beyond reasonable doubt that the alleged offender had received payment for the legal work that had been performed. The learned magistrate also erred by holding that the onus was on the alleged offender to establish on the balance of probabilities any defence under s 12(4) of the LPA (proposed ground 2).
(i) The learned magistrate erred in admitting into evidence the emails that Mr McCarthy said had been sent to him by Mr Dean (including emails Mr Dean forwarded from Mr Simonsen) and vice versa (proposed grounds 3 and 8).
(j) The learned magistrate erred in admitting into evidence the banker's affidavit referred to at [43] of these reasons (proposed ground 9).
58 With respect to each of their applications for leave to appeal against sentence, the appellants alleged that the fines they were each ordered to pay were manifestly excessive (proposed ground 1).
59 With respect each of their applications for leave to appeal against the costs orders, each appellant alleged that the award of costs was excessive because the Board (and the learned magistrate) had caused the trial to go longer than it reasonably should have (proposed ground 1).
Martino J’s disposition of the appeals
60 His Honour held that none of the proposed grounds of appeal had any reasonable prospect of succeeding; refused leave to appeal in respect of each ground; and dismissed the appeals [117].
Disposition of the application for leave to appeal against conviction
61 In relation to the appellants' application for leave to appeal against conviction, his Honour held as follows:
(a) As to paragraph 14 of the appellants' outline of submissions, the Board had the authority to bring the criminal prosecutions against Mr Dean and Mr Simonsen by reason of s 534 and s 592 of the LPA. Further, the then Secretary of the Board had been given the authority to commence the prosecution, and she was a person authorised under s 20 of the CPA to do so [75].
(b) As to paragraph 15 of the appellants' outline of submissions, there was no basis to any suggestion that the prosecution infringed s 117 of the Constitution [82].
(c) As to proposed ground 10, the learned magistrate was correct in holding that s 7(d) of the Criminal Code applied to offences under the LPA[86].
(d) As to proposed ground 4, the learned magistrate's construction of the term 'legal practice' in s 12(2) of the LPA was correct and in accordance with authority [90].
(e) As to proposed ground 7, the learned magistrate did not err in refusing the appellants the opportunity to cross-examine Mr McCarthy on the testimony he gave in the VRO proceedings. His Honour said there was no substance to the allegation that the evidence Mr McCarthy had given in the VRO proceedings was inconsistent with the evidence he gave in the prosecution brought by the Board [99] - [102].
(f) As to proposed ground 5, there was no basis for the allegation that the learned magistrate was biased against Mr Dean and Mr Simonsen, or that the trial had been conducted in an unbalanced way [105].
(g) As to proposed ground 6, there was no basis to assert that the learned magistrate had assumed that Mr Dean and Mr Simonsen had breached the LPA [106].
(h) As to proposed ground 2, the learned magistrate correctly held that it was not an element of an offence under s 12(2) of the LPA that the Board must prove that the alleged offender was remunerated for his or her legal work. His Honour found that the onus was upon the alleged offender to prove the defence under s 12(4) of the LPA on the balance of probabilities [107] - [111].
(i) As to proposed grounds 3 and 8, the emails between Mr Dean and Mr McCarthy and vice versa were properly admitted into evidence [112] - [113].
(j) As to proposed ground 9, the banker's affidavit was properly admitted into evidence pursuant to s 92 of the Evidence Act1906 (WA) [114].
Disposition of the applications for leave to appeal against sentence and cost orders
62 As to proposed ground 1, his Honour held that:
(a) The fines were not manifestly excessive [115].
(b) There was no merit to each appellant's complaint about the order for costs made against him [116].
The appeal to this court
The proposed grounds of appeal
63 The appellants have filed a joint appellants' case. The proposed grounds of appeal read:
1. The appeal judge erred in finding that the appellants [sic] grounds of appeal had no reasonable prospect of success and that the respondent had established a clear and convincing proof beyond reasonable doubt in refusing the appellants [sic] grounds of appeal.
2. The appeal judge erred in taking a blanket approach in dismissing the appellants [sic] grounds of appeal in not giving due consideration of the individual factors in relation to each of the appellants [sic] charges and the weight of the evidence in accepting questionable evidence put forward by the respondent.
3. The appeal judge erred in finding that the respondents [sic] were entitled to commence a criminal prosecution given that the respondent was a self-funded private entity and did not comply with provisions of the criminal procedures act [sic] and criminal code [sic] as an authorised public entity and that the respondent is acting in excess of their authority under the legal profession act [sic] which has no provision for criminal prosecutions.
4. The appeal judge erred in finding that any aspect of the legal practice act [sic], if contravened offends the criminal code [sic] except in respect to contempt of court. When in any statute, statutory rule, local law, by law or other instrument, public or private, the term felony or misdemeanour is used, or reference is made to an offence by the name of felony or misdemeanour, it shall be take [sic] that reference is intended to refer to an offence which is a crime under the provisions of the code.
64 At the hearing of the application for leave to appeal, which Mr Dean did not attend, each appellant was, out of fairness, given leave to file supplementary written submissions (appeal ts 2 - 7). Mr Dean and Mr Simonsen subsequently filed separate supplementary written submissions.
65 The proposed grounds of appeal are confusing and difficult to understand. The written submissions (including the supplementary submissions) only add to the confusion and incomprehension. Moreover, they raise issues in addition to those which appear to be raised in the proposed grounds of appeal.
66 The first part of proposed ground 1, which asserts that Martino J erred in 'finding that the appellants' grounds of appeal had no reasonable prospect of success' is a general assertion which, as will become apparent from these reasons, is without merit. The second part of the proposed ground, if taken literally, appears to suggest that, in the proceedings before Martino J, the respondent was obliged to demonstrate beyond reasonable doubt that the appellants' grounds of appeal had not been made out and that Martino J erred in failing to so find. The appellants' suggestions completely misapprehend the nature of an appeal. It is trite to observe that the onus is upon the appellant to persuade an appellate court that any ground of appeal should succeed. Martino J did not err in this respect.
67 The second proposed ground of appeal, which alleges that Martino J took 'a blanket approach' to the appeals, is unsustainable. It is patent, having regard to his Honour's reasons, that he accurately identified the issues to be decided and that he dealt with those issues individually, according to their merit.
68 The third proposed ground of appeal appears to raise the question of whether the Board was authorised to commence prosecutions against the appellants. As I will explain, the Board was plainly authorised to commence the prosecutions.
69 The fourth proposed ground of appeal is incomprehensible and nonsensical and does not reflect any finding made by Martino J. It has no merit.
Disposition of the appeal
70 Having closely examined the appellants' case and all of the written submissions, I have discerned the following issues with which I will now deal.
Did the Board have the power to bring the prosecution against Mr Dean and Mr Simonsen?
71 Each appellant submits that the Board did not have the power to bring the prosecution against them because criminal prosecutions under the LPA can only be brought by the police or the Director of Public Prosecutions. These submissions are incorrect.
72 Section 12, which I have already set out at [13] of these reasons, appears in pt 3 of the LPA. Section 11 expresses the purposes of pt 3 as:
11. Purposes
(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;
(b) to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
73 The Board is a body corporate established pursuant to s 534 of the LPA. Section 534(3) of the LPA provides that proceedings may be taken by or against the Board in its corporate name. Section 592(1) of the LPA provides that any proceedings for an offence against the LPA may be taken in the name of the Board by a person authorised in that behalf by the Board. Section 592(2) stipulates that all proceedings for offences against the LPA are to be heard by a court of summary jurisdiction constituted by a magistrate.
74 The appellants submit that these provisions should be construed to mean that the Board can only bring civil, and not criminal, proceedings. This construction is contrary to the plain statutory language of the provisions to which I have referred.
75 The effect of the provisions is that the Board is expressly authorised to bring proceedings in the Magistrates Court for an offence against s 12 of the LPA.
Did Ms Seghezzi commence the prosecution in her private capacity?
76 Section 20 of the CPA sets out who can commence a prosecution. Section 20(5) states that a person cannot commence a prosecution in his or her private capacity unless another written law expressly provides otherwise.
77 The appellants submit that Ms Seghezzi brought the prosecution in her private capacity; thus, the proceedings were commenced unlawfully. This submission cannot be accepted.
78 Relevantly, s 20(3) of the CPA states that a prosecution for an offence may be commenced by, and only by, the persons referred to in s 20(3)(a) or s 20(3)(b). One such person is an 'authorised person' in relation to the offence: s 20(3)(a)(i). The term 'authorised person' is defined in s 20(1) of the CPA to mean:
20. Who can commence a 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.
80 At the trial in the Magistrates Court, counsel for the Board tendered a certificate issued under s 593(6)(c) of the LPA, dated 19 July 2013 and signed by John Syminton, Chairperson of the Board, specifying that:
(a) Ms Seghezzi held the office of Secretary of the Board when the prosecution notice was signed;
(b) the Board had authorised Ms Seghezzi to commence the prosecution against Mr Dean and Mr Simonsen in the name of the Board; and
(c) Ms Seghezzi was authorised to sign the prosecution notice on behalf of the Board.
81 As I have already observed, and as Martino J held at [75] of his reasons, the Board was authorised by reason of s 534 and s 592 of the LPA to bring the prosecution in its own name against the appellants. As such, the Board plainly comes within the definition of 'authorised person' in s 20(1)(a) of the CPA. Martino J also expressed the view that the Board was a 'public authority', as defined in s 3 of the CPA, within s 20(1)(b). As to this, his Honour said:
In any event, it is, in my view, a public authority within the definition in s 3 of the Criminal Procedure Act. It was established under the Legal Profession Act. Its functions are conferred under that Act or any other Act. The purposes of pt 3 of that Act are to protect the public interest in the proper administration of justice by ensuring that legal work is done by qualified persons and so to protect consumers.
The Board is a body established under a written law for the public purposes of protection of public interest in the administration of justice and the protection of consumers and, under the authority of the Legal Profession Act, it performs the statutory functions provided for in the Act on behalf of the State [76] - [77].
82 I respectfully agree with his Honour. As the Board was an authorised person, it could commence the prosecution against the appellants pursuant to s 20(3) of the CPA. Ms Seghezzi was, at the material time, the Board's Secretary. She was duly authorised by it to sign the prosecution notice on its behalf. Ms Seghezzi did not commence the prosecution in her private capacity.
Does s 7(d) of the Criminal Code apply to a prosecution under s 12 of the LPA?
83 Section 7 of the Criminal Code relevantly reads:
7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence. (emphasis added)
…
85 Mr Dean's submission cannot be accepted. Although s 12 of the LPA does not, itself, provide for an offence of counselling or procuring another to commit an offence against that section, this does not mean that there is no such offence. As Murray J explained in Lewkowski v Lilley [2000] WASCA 14 [14], the provisions of s 7 of the Criminal Code have long been held to apply to all offences punishable by the criminal law of Western Australia and not just offences in the Criminal Code: see also Wilson v Dobra (1955) 57 WALR 95 and West v Suzuka [1964] WAR 112. Section 7(d) of the Criminal Code thus applies to the offences created by s 12 of the LPA. It follows that Mr Dean could be charged and convicted of an offence contrary to s 12 of the LPA on the basis that he counselled or procured Mr Simonsen to commit such an offence.
Did the prosecution infringe s 117 of the Constitution?
86 Having regard to s 117 of the Constitution, the appellants assert that the Board discriminated against them because it chose to commence criminal, and not civil, proceedings against them. Further, it is said that similar bodies to the Board in other States have not dealt with persons said to be unlawfully engaged in legal practice by criminal prosecution.
87 Section 117 of the Constitution prohibits discrimination against a resident of a State on the basis of that person's residency in that State. Specifically, s 117 reads:
117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
89 None of the statutes of Western Australia that are relevantly applicable in this case discriminate between the residents of this State and residents of other States. Section 117 of the Constitution is relevantly concerned with the text of State laws. Section 117 has no application.
90 In any event and for the sake of completeness, there is no basis to the appellants' allegations of discrimination. As I have explained, the Board was entitled to bring criminal proceedings against the appellants. Further, there is nothing apart from bare assertion which demonstrates that similar bodies to the Board in other States do not deal with cases like this one by criminal prosecution.
In order to prove an offence under s 12(2) of the LPA, does the Board need to prove beyond reasonable doubt that the offender received remuneration for doing any legal work?
91 The text of s 12(2) and s 12(4) is set out in [13] of these reasons.
92 Section 78(3) of the CPA stipulates:
78. Exceptions etc., proof of in simple offences
…
(3) If a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does.
93 The word 'exception' is defined in s 78(1) of the CPA to include a condition, excuse, exemption, proviso and qualification.
94 The appellants submit that s 12(2) and s 12(4) of the LPA, when read together, should be construed so that an element of an offence contrary to s 12(2) is that the Board must prove beyond reasonable doubt that the alleged offender was paid or remunerated for his or her legal work. Accordingly, they submit that the learned magistrate erred in deciding that the effect of s 12(4) was to provide for a defence, the onus of which was upon the defendants (that is, Mr Dean and Mr Simonsen) to prove on the balance of probabilities. The appellants allege that Martino J should have found that the magistrate had erred in this respect.
95 An offence under s 12(2) of the LPA is made out if the Board proves each of the elements beyond reasonable doubt, being that:
(a) the defendant must not engage in legal practice;
(b) in the State of Western Australia;
(c) unless the defendant is an Australian legal practitioner.
96 An offence contrary to s 12(2) of the LPA is a simple offence: s 67 of the Interpretation Act 1984 (WA). Section 12(4) of the LPA is an exception, as defined in s 78(1) of the CPA, in respect of the simple offence set out in s 12(2). Accordingly, by virtue of s 78(3) of the CPA, s 12(4) does not apply unless the defendant proves, on the balance of probabilities, that it does.
97 No error of law was made either by the magistrate or by Martino J. In any event, the evidence that the learned magistrate accepted established beyond reasonable doubt that s 12(4) did not apply.
Were the emails inadmissible?
98 The appellants maintain that the emails which were admitted into evidence in the proceedings before the learned magistrate were inadmissible. The emails in question were those that Mr McCarthy said he received from Mr Dean (whether directly from Mr Dean or which had originated from Mr Simonsen and been forwarded to him by Mr Dean), and Mr McCarthy's responses to those emails.
99 The principal submission made on behalf of the appellants is that the emails were inadmissible because they may have been manufactured.
100 The emails were plainly relevant to the question of whether the appellants had committed offences against s 12(2) of the LPA; specifically, whether the appellants had engaged in legal practice (charges 1 and 3), and whether Mr Dean had procured or counselled Mr Simonsen to commit such an offence (charge 2). As Mr McCarthy either transmitted or received the emails, he was able to give evidence in respect of them.
101 The mere possibility that the emails were manufactured by Mr McCarthy was not a proper basis to refuse their admission into evidence. In any event, the learned magistrate accepted Mr McCarthy's evidence that he had not manufactured the emails. I agree with Martino J's conclusion that the learned magistrate was correct to admit the emails into evidence.
Did the learned magistrate conduct the trial unfairly?
102 The appellants submit that the learned magistrate conducted the trial unfairly towards them. In his supplementary written submissions, Mr Dean alleges that the learned magistrate 'adopted a harsh rigid stance when dealing with [them]' while 'accepting everything from the respondent unhindered'; and that both appellants were 'unsettled, uncertain and very intimidated' by the way in which the learned magistrate conducted the trial (supplementary written submissions of James Dean, paragraph 10).
103 I have perused the entire record of proceedings before the learned magistrate. There is no merit to the submission that the magistrate conducted the trial unfairly towards either appellant. The learned magistrate's interventions in the proceedings were appropriate, and there is nothing to suggest that either Mr Dean or Mr Simonsen were in any way intimidated by them. There is nothing to suggest that the learned magistrate favoured one party over another.
Was the affidavit evidence of Paul Daniel Norval admissible?
104 I have already referred in general to the contents of Mr Norval's affidavit sworn on 26 February 2013. The affidavit was admitted into evidence over objection from Mr Dean and Mr Simonsen (24 January 2014, ts 50 - 54). Mr Norval relevantly deposed as follows:
1. This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know is false, or do not believe to be true.
2. …
3. I am employed as Manager, Banking Support Operations, by Credit Union Australia Limited. I have been employed by Credit Union Australia Limited for twenty seven (27) years and have held this position since 1 July 2006. My duties include conducting investigations into the keeping of accounts as requested by various government bodies. I hold a position of responsibility in relation to the keeping of business records and documents at Credit Union Australia Limited.
4. I am duly authorised to swear Affidavits on Credit Union Australia Limited's behalf.
5. Credit Union Australia Limited is engaged in the business of finance and is a deposit taking institution.
6. Credit Union Australia Limited conducts its business of banking in Queensland, New South Wales, Victoria, Western Australia and the Australian Capital Territory.
7. I have examined the records of Credit Union Australia Limited in relation to account number 10644441.
8. By reviewing these records I can state that James Dean, born 22 April 1943, jointly holds [a] general savings account with Frances Dean.
9. Exhibited hereto and identified by the letter 'A' are certified copies of statements of accounts owned by James Dean, covering the period 22 November 2011 to 21 March 2012.
10. I certify that I have checked the attached statement extracts against all available records of Credit Union Australia Limited and, to the best of my knowledge, they are a true copy of original account statements.
11. I can state that at the time that the statements were made, they were part of the ordinary records of Credit Union Australia Limited, and were made during the usual and ordinary course of business.
105 Sections 89 to 92 of the Evidence Act are as follows:
89. Banker's book entries are evidence of transactions etc.
Subject to this Act -
(a) any entry in a banker's book shall be evidence of the matters, transactions, and accounts therein recorded; and
(b) a copy of any entry in a banker's book shall be evidence of the entry and of the matters, transactions, and accounts therein recorded.
90. Banker's books, proof of
(1) A copy of an entry in a banker's book shall not be received in evidence, unless it is first proved -
(a) that the book was, at the time of the making of the entry, one of the ordinary books of the bank; and
(b) that the entry was made in the usual and ordinary course of business.
(2) Such proof may be given by a partner or officer of the bank, and may be given either orally or by affidavit.
91. Banker's books, copies to be certified
A copy of an entry in a banker's book shall not be received in evidence unless it is certified to be a true copy of the entry in such manner as is approved by the court.
92. Bank accounts, bank officer may give evidence about
In any legal proceedings in which it is necessary to prove -
(a) the state of an account in the books of any bank; or
(b) that any person had not an account or any funds to his credit in such books,
it shall not be necessary to produce any such book, but evidence of the state of such account, or that no such account or funds existed, may be given either orally or by affidavit by any officer or clerk of such bank who has examined such books.
106 The term 'bank' is defined in s 3 of the Evidence Act as follows:
(a) an ADI (authorised deposittaking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or
(b) a bank constituted by a law of a State, a Territory or the Commonwealth;
107 Section 5 of the Banking Act 1959 (Cth) defines an 'authorised deposit-taking institution' to mean 'a body corporate in relation to which an authority under subsection 9(3) is in force'. Subsection 9(3) allows the Australian Prudential Regulation Authority to grant a body corporate an authority to carry on banking business in Australia.
108 The term 'bankers' books' is defined in s 3 of the Evidence Act as follows:
bankers' books and expressions referring to bankers' books include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank however such books are compiled, recorded or stored, whether in written form or on microfilm or by electronic process or otherwise;
109 The purpose of these provisions is to modify the rule against hearsay and to facilitate the proof of banking records made in the ordinary course of business.
110 The evidence contained in Mr Norval's affidavit was relevant to prove that a payment of $5,000 - which Mr McCarthy said he had made into a bank account nominated by Mr Dean - had, in fact, been made; and that Mr Dean had an interest in that account. Further, it was relevant to prove that the sum of $2,500 had been transferred from Mr Dean's account to an account in which Mr Simonsen had an interest.
111 The relevant provisions of the Evidence Act make clear that, for the affidavit to be admissible, it was necessary for the Board to prove that:
(a) Credit Union Australia Limited was a bank as defined in s 3;
(b) the relevant entries were made in a bankers' book which was, at the time of the making of the entry, one of the ordinary books of Credit Union Australia Limited;
(c) the entry was made in the usual and ordinary course of business;
(d) Mr Norval was a partner or officer of Credit Union Australia Limited; and
(e) the copy of the bankers' books sought to be received in evidence was certified as a true copy of the entry.
112 It appears from paragraph 5 of Mr Norval's affidavit that Credit Union Australia Limited was a deposit-taking institution and thus came within the definition of 'bank' in s 3 of the Evidence Act.
113 It may readily be accepted that the records of entries made in a savings account held by a customer come within the wide definition of bankers' books in s 3 of the Evidence Act. Such records are part of the ordinary books of a bank. It is plain that credit and debit entries of the type made in the account held by Mr Dean and his wife were made as part of the usual and ordinary course of business of Credit Union Australia Limited. It is clear from paragraph 3 of Mr Norval's affidavit that he was, at the time that he swore the affidavit and at the time the entries were made, an officer of Credit Union Australia Limited. Further, the copies of the bank statements were certified as required by s 91 of the Evidence Act. The statutory conditions for admissibility were complied with; accordingly, Mr Norval's banker's affidavit was admissible pursuant to s 89 to s 92 of the Evidence Act.
114 In any event, if the statements of accounts exhibited to Mr Norval's affidavit were not admissible pursuant to s 89 to s 92 of the Evidence Act, they were nonetheless admissible pursuant to s 79C(2a) of the Evidence Act as a business record. Further or alternatively, Mr McCarthy's direct evidence of the payment of $5,000, in accordance with the instruction given to him by Mr Dean, was plainly admissible.
115 Finally, and in any event, for the reasons I have already given, it was not necessary for the Board to prove, as an element of the offence under s 12(2) of the LPA, that each appellant had been paid or remunerated, or had been promised or expected pay or remuneration, for the legal work he had done.
Should the learned magistrate have recused himself?
116 As I apprehend the submissions of Mr Dean and Mr Simonsen, their principal complaint is that the learned magistrate should have disqualified himself because, in all the circumstances, a fair-minded lay observer might reasonably apprehend that he would not bring an impartial and unprejudiced mind to the resolution of the issues involved in the case: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293 - 294 (Mason, Murphy, Brennan, Deane & Dawson JJ). The question of whether a judicial officer should recuse him or herself on this basis must be determined objectively.
117 Mr Dean and Mr Simonsen suggested that a reasonable apprehension of bias arose from:
(a) the fact that the learned magistrate had refused to allow Mr Dean to act as Mr McCarthy's McKenzie friend in Mr McCarthy's then wife's VRO application;
(b) the learned magistrate's refusal to allow Mr Dean access to a transcript of Mr McCarthy's evidence in the VRO proceedings;
(c) Mr Dean's feeling that the learned magistrate placed him under pressure to give evidence, and that he did not have Mr Dean's 'best interests at heart'; and
(d) the manner in which the learned magistrate conducted the trial.
118 These matters, either in combination or by themselves, would not give rise to a fair-minded lay observer entertaining a reasonable apprehension that the learned magistrate would not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceedings.
119 As to the first matter, the learned magistrate raised his involvement in the VRO proceedings with the parties during the first morning of the trial. Both Mr Dean and Mr Simonsen acceded to the magistrate proceeding to hear the case (26 July 2013, ts 30 - 32). As to the second matter, the learned magistrate did not err in refusing Mr Dean's application. Even if his Honour did err, that would not be a proper basis for recusal. As to the third matter, nothing that his Honour said, when explaining to Mr Dean and Mr Simonsen their right to give evidence and the effect of s 12(4) of the LPA, placed any pressure upon them to give evidence. Further, it was not part of his Honour's judicial function to have 'the best interests' of the appellants (or the respondent) 'at heart'. Finally, there is nothing in the way that his Honour conducted the proceedings which was improper or unbalanced or in any way capable of conveying a reasonable apprehension of bias on the learned magistrate's part.
120 I am mindful that, in the proceedings before Martino J, each appellant swore an affidavit in support of the allegation of apprehended bias on the part of the learned magistrate.2 The affidavits each referred to 35 portions of the trial transcript which, it was said, demonstrated the allegation. Martino J held that there was no merit in the allegation [105]. His Honour's conclusion was correct.
121 In case Mr Dean and Mr Simonsen are alleging actual bias on the part of the learned magistrate, there is no basis for such an allegation.
Did the learned magistrate err in refusing to allow Mr Dean and Mr Simonsen the opportunity to cross-examine Mr McCarthy on an alleged prior inconsistent statement?
122 The background to this issue requires some explanation.
123 At trial, Mr McCarthy's evidence was to the effect that Mr Simonsen drew up the draft deed of settlement. In cross-examination, Mr McCarthy denied that he had himself drafted the documents.
124 At a directions hearing on 17 October 2013, Mr Dean sought access to a transcript of Mr McCarthy's evidence in the VRO proceedings (17 October 2013, ts 4). Mr Dean submitted to the learned magistrate, in effect, that Mr McCarthy gave evidence in the VRO proceedings which was contradictory to the testimony he had given at the trial. Mr Dean did not explain to the learned magistrate the precise nature of the contradictions. It appeared to his Honour that any contradictions were directed to 'collateral matters' going only to Mr McCarthy's credit (17 October 2013, ts 5 - 6). The learned magistrate ruled, inter alia, that Mr Dean was bound by any answers Mr McCarthy gave on such matters, and that the answers could not be contradicted by the evidence Mr McCarthy had given in the VRO proceedings. His Honour refused to grant Mr Dean access to the transcript (17 October 2013, ts 11).
125 In the proceedings before Martino J, Mr Dean sought to allege, in effect, that the learned magistrate erred by preventing him from cross-examining Mr McCarthy regarding a portion of his evidence given in the VRO proceedings. The relevant portion of this evidence was as follows:
Okay. Well, what's your intention from this point on in terms of finalising your separation or divorce or resolving the property issue?---I've made an offer to her last - I don't want to lie. Last Thursday, I think it was. I had assistance - I drew up a deed of agreement for sale. I met her at her offices, handed to her. She took it away with her without signing it and said we will hear from her.Okay?---So my intention is I really sorted out the financial aspect that I can purchase her share based on the understanding of the quantum that was involved and now I'm waiting for her and then it was after her receiving that and making those statements which were (indistinct) it's that - you know, just saying, "I will get back to you." This was - happened on that following Saturday.
Now, you've indicated that you've - you've got some legal advice, have you?---Not legal advice as such. I'm just using friends and acquaintances to help go through the processes and - - -
Okay. All right so - - -?- - - further bumbling along the best I possibly can.
All right. So was thedeed drawn up by lawyers or just by yourself?---It was drawn up by - not by a lawyer, as such. It was drawn up by somebody that has a. legal connotation - sorry, that's probably the wrong word. Legal sort of connection; he knows the right wordings and all that kind of thing. But yes.
All right (indistinct)?---If it was to be done, it would be done correctly and signed and sealed and delivered I think is the right words.
All right. Well, has your wife got a lawyer involved in the matter?---Yes, she has (21 December 2011, ts 3). (emphasis added)
126 Martino J held that the question of whether or not Mr McCarthy prepared a draft settlement agreement for his then wife to sign was not a collateral matter as it related to a fact in issue in the prosecution, namely whether Mr Simonsen prepared that deed [100]. However, his Honour held that, when the portion of Mr McCarthy's testimony is considered in its entirety, the evidence that he gave in the VRO proceedings was not inconsistent with the testimony Mr McCarthy gave in the Board's prosecution [101]. Martino J concluded that, as the evidence Mr McCarthy had given in the VRO proceedings was not inconsistent, it was not admissible in the proceedings before the learned magistrate [102].
127 Mr McCarthy's testimony in the proceedings below was, as I have said, that he did not prepare the draft settlement agreement; but rather, that Mr Simonsen prepared them. This is, in substance, what Mr McCarthy said in his evidence in the VRO proceedings. His statement 'I had assistance - I drew up a deed of agreement for sale' must be read in the context of the testimony that follows. A few moments after this statement, Mr McCarthy elaborated upon this evidence, saying that the draft settlement agreement 'was drawn up by somebody that has a … legal sort of connection; he knows the right wordings and all that kind of thing'. This is consistent with his testimony that Mr Simonsen was the author of the draft settlement agreement.
128 As there is no inconsistency between Mr McCarthy's testimony in the VRO proceedings and in the proceedings below, the learned magistrate did not err by preventing Mr Dean's proposed cross-examination and Martino J did not err by upholding that decision.
Were the verdicts unreasonable?
129 The appellants allege, in effect, that the verdicts of not guilty were 'against the evidence or the weight of the evidence' and were 'unreasonable and cannot be supported having regard to the evidence' (joint appellants' case, paragraph 17). I take this to mean that the appellants now allege that the verdicts of guilty were unsafe or unsatisfactory. The proposed grounds of appeal before Martino J did not include such a proposed ground (or grounds) of appeal.
130 The legal principles which apply to this ground were described by this court in Smart v Albuquerque [2011] WASCA 231 [12] - [16] in these terms:
The appellant's complaint is that McKechnie J erred in finding that it was open to the learned magistrate to convict him. The appellant says, in effect, that the conviction was unsafe or unsatisfactory.
The test for whether a verdict is unsafe or unsatisfactory is whether, upon the whole of the evidence, the appellate court finds that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493. In making its assessment, the appellate court must not disregard or discount the consideration that the finder of fact, in this case, the magistrate, was entrusted with the primary responsibility of determining guilt or innocence, or that the magistrate had the benefit of having seen and heard the witnesses. On the contrary, the appellate court must pay full regard to these considerations: M v The Queen (493).
In M v The Queen, the majority explained the application of the test in the following terms:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (with whom Gleeson CJ and Heydon J relevantly agreed) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
… whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt [M v The Queen (1994) 181 CLR 487, 492 - 493]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (original emphasis)
In The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44], Buss JA (with whom McLure P and Mazza J agreed) said that these principles applied by analogy to a trial by judge alone or before a magistrate. See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; and Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [78] - [79]. It is clear enough from [22] of McKechnie J's reasons that he understood and applied these principles.
131 The appellants submit that Mr McCarthy was not a witness of the truth, and that it was not open to the learned magistrate to convict based on his evidence. To support this submission, the appellants alleged that:
(a) Mr McCarthy was not entirely truthful in the evidence he gave in the VRO proceedings.
(b) The emails that Mr McCarthy said he received from Mr Dean and Mr Simonsen could have been manufactured.
(c) Mr McCarthy fabricated the draft settlement agreements, and there was no evidence that Mr McCarthy had paid $5,000 as remuneration for Mr Dean's and Mr Simonsen's legal services.
132 I have carefully considered and weighed the evidence led at trial. In my opinion, it was well open to the learned magistrate to be satisfied beyond reasonable doubt of the guilt of each appellant.
133 As I read the trial record, Mr McCarthy's evidence was clear, coherent and consistent. It appears from his testimony that he was in need of legal assistance with respect to the Family Court proceedings. He was concerned about the cost of engaging lawyers and he decided, upon the recommendation of Mr Kingdon, to approach Mr Dean. It was open to the learned magistrate to conclude that Mr McCarthy met with Mr Dean and Mr Simonsen. On Mr McCarthy's evidence, it is very clear that Mr Dean and Mr Simonsen agreed to perform legal work on Mr McCarthy's behalf. Mr Dean agreed to provide Mr McCarthy with legal advice, while Mr Simonsen's role was to draw up legal documentation. Mr McCarthy testified that Mr Dean informed him that his and Mr Simonsen's legal services would cost $5,000 and that, during the course of the meeting, he electronically transferred that sum into a bank account nominated by Mr Dean. Mr McCarthy's testimony on this matter is corroborated by the bank records produced in Mr Norval's banker's affidavit. Those records show that a payment was made into a Credit Union Australia Limited account held by Mr Dean and his wife on 12 December 2011, and a transfer from that account to Mr Simonsen in the sum of $2,500, being Mr Simonsen's share of the $5,000 fee.
134 There is nothing to support the appellants' contentions (particularly those of Mr Dean) that the $5,000 payment made by Mr McCarthy to Mr Dean was a refund for renovation work Mr McCarthy was asked to do in Mr Dean's kitchen, but was not ultimately performed. Nor is there any evidence to support the suggestion that the $5,000 was paid to Mr Dean by way of an investment in Mr Dean's 'atmospheric water generator' or 'solar water' project. The appellants point to the absence of a receipt and say that an experienced businessman such as Mr McCarthy would have sought such a document, had he made such a payment. Mr McCarthy accepted that he did not seek a receipt and explained that he did not ask for one as the payment was not business-related (26 July 2013, ts 112 - 112). That explanation is understandable and rational.
135 Mr McCarthy's evidence is also corroborated, in large measure, by the emails showing that Mr Dean gave Mr McCarthy legal advice. It is also clear that Mr Simonsen drew up draft settlement agreements for Mr McCarthy which were provided to him by email via Mr Dean (referred to in [26] and [28] above). The allegations that the emails were somehow manufactured by Mr McCarthy, or that Mr McCarthy himself drew up the draft settlement agreements, are completely baseless. The work carried out by both appellants was plainly legal work as defined in s 12(1) of the LPA, and it was well open for the learned magistrate to conclude that the appellants were engaged in legal practice, as that term is understood: see Barristers' Board v Palm Management Pty Ltd [1984] WAR 101, 107 and other cases, including Attorney General v Quill WillsLtd (1990) 3 WAR 500; Legal Practice Board v Adams [2001] WASC 78; Legal Practice Board v Said [2002] WASC 35 and Legal Practice Board v Taylor [2005] WASC 242.
136 While it is true that Mr McCarthy admitted that, in the VRO proceedings, he exaggerated the nature of the threats allegedly made to him by his then wife, he did so openly and without hesitation. The exaggeration was not such as to require the rejection of or a reasonable doubt as to his evidence. It was well open to the learned magistrate to accept Mr McCarthy's evidence, particularly as it was, to a significant degree, supported by the banking records, the emails, and the draft settlement agreements and the documents that were prepared in respect of the annulment proceedings.
137 The evidence established that the appellants were working together to provide legal advice to Mr McCarthy, and that they were paid $5,000 to do so. Mr Dean was the person from whom Mr McCarthy obtained legal advice. Mr Dean acted as the liaison between Mr McCarthy and Mr Simonsen over the drafting of the settlement agreements. In this respect, Mr Dean clearly aided or counselled or procured Mr Simonsen to engage in legal practice. It was an admitted fact that neither Mr Dean nor Mr Simonsen were Australian legal practitioners. Having regard to the evidence of payment to which I have referred, there was no basis upon which the appellants could avail themselves of the defence in s 12(4) of the LPA.
138 The record does not reveal any deficiency which gives rise to a significant possibility that the appellants are innocent. The verdicts of guilty were well and truly open on the evidence and were, in my view, completely justified.
Were the fines manifestly excessive?
139 The learned magistrate delivered comprehensive sentencing remarks. As neither Mr Dean nor Mr Simonsen take issue with any matter of fact or law referred to by his Honour, it is unnecessary to repeat those remarks in detail. The learned magistrate quite properly referred to the purpose of the relevant provisions in the Act being 'to protect the community and ensure that people who do carry out legal work or legal practice are suitable qualified to do so and are suitably supervised in their conduct' (20 March 2014, ts 121). His Honour found that each of the appellants engaged in deliberate misconduct. The learned magistrate observed that neither appellant was remorseful and could not claim, as a mitigating factor, a plea of guilty (20 March 2014, ts 122). The learned magistrate had express regard to the financial circumstances of the appellants, and reduced the fines that his Honour would have otherwise imposed to take into account that matter. In assessing the total fine to be paid by Mr Dean, the magistrate had regard to, in effect, the necessity to avoid double punishment (20 March 2014, ts 122 - 123).
140 Martino J found that the fines imposed were not manifestly excessive. His Honour expressed the view that they were 'appropriate sentences for the offending behaviour' by each appellant [115].
141 The appellants contend that Martino J erred in not finding that the fines were manifestly excessive. This contention has no merit. In my opinion, having regard to the sentencing factors referred to by the learned magistrate, the fines imposed were within a sound exercise of the sentencing discretion. They were not unreasonable or plainly unjust. The fines were not manifestly excessive and Martino J did not err in so finding.
Were the orders for costs excessive?
142 On 20 March 2014, the Board sought, and was ultimately granted, a costs order against Mr Dean and Mr Simonsen pursuant to s 67(2) of the CPA. The Board submitted detailed bills of costs calculated having regard to the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012. The learned magistrate gave close consideration to the Board's bills of costs and reduced some of the items (20 March 2014, ts 130 - 131).
143 The appellants submit that the Board conducted the trial in such a way so as to unduly increase the costs that were payable by them. It is also suggested that costs were increased because the trial was delayed as a result of the learned magistrate having to deal with other matters.
144 Martino J, in his Honour's reasons, considered these arguments. His Honour concluded that the trial was conducted fairly and efficiently, and that the appellants' complaints had no merit [116].
145 On my assessment of the trial record, there is no reasonable basis for the appellants' complaints. If anything, the length of the trial was attributable to the way in which the appellants chose to conduct their defence. The learned magistrate was well placed to make an assessment as to the appropriate allowance for costs in this case. I would not conclude that the learned magistrate's assessment was erroneous. Martino J did not err in concluding that the complaints made by the appellants regarding the costs allowance had no merit.
146 In case the appellants' submissions may be understood as alleging that the learned magistrate erred in the exercise of his Honour's discretion in making an order for costs in favour of the Board, there is no merit to that allegation. The decision to make a costs order in favour of the Board was well open to the learned magistrate and was not erroneous.
Conclusion and orders
147 In my opinion, none of the proposed grounds of appeal - or, for that matter, any of the other complaints made by the appellants - have a reasonable prospect of succeeding. Accordingly, leave to appeal should be refused on all grounds and the appeals must be taken to have been dismissed: see s 9 read with s 18 of the Criminal Appeals Act 2004 (WA).
148 The orders that I would make are as follows:
1. Leave to appeal on all proposed grounds is refused.
2. The appeals are dismissed.
1 Mr Dean brought an application, unsuccessfully, on 17 October 2013 to adjourn the trial listing of 24 January 2014 to a later date (17 October 2013, ts 103 - 104).
2 Affidavits of James Dean sworn on 5 March 2015 for the purpose of ‘Apprehension of Bias (per court order 20/2/2015)’; affidavit of Mark Simonsen sworn on 5 March 2015 for the purpose of ‘Apprehension of Bias (per court order 20/2/2015)’.
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