Dean v Legal Practice Board
[2013] WASC 155
•1 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DEAN -v- LEGAL PRACTICE BOARD [2013] WASC 155
CORAM: HALL J
HEARD: 24 APRIL 2013
DELIVERED : 24 APRIL 2013
PUBLISHED : 1 MAY 2013
FILE NO/S: SJA 1039 of 2013
BETWEEN: JAMES DEAN
Appellant
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G A BENN
File No :MI 174 of 2013, MI 175 of 2013
Catchwords:
Criminal law - Appeal from Magistrates Court - Whether appeal competent - Definition of 'decision' - Whether a decision regarding authority of the prosecutor to commence a prosecution open to appeal - Whether Legal Practice Board an authorised person - Whether a review order available as an alternative - Appeal not competent
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Procedure Act 2004 (WA), s 20, s 23
Legal Profession Act 2008 (WA), s 11, s 12, s 534, s 592
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms E R A Fulham
Solicitors:
Appellant: In person
Respondent: Legal Practice Board
Case(s) referred to in judgment(s):
Davern v Messel [1984] HCA 34; (1984) 184 155 CLR 21
Mansell v Mignacca‑Randazzo [2013] WASC 66
HALL J:
(These reasons were delivered orally and have been edited from the transcript)
Introduction
Mr James Dean, who I will for present purposes refer to as the appellant, has lodged an appeal notice seeking leave to appeal against the decision of a magistrate. There is a preliminary issue as to whether the appeal is competent. The matter was listed today to address that question.
Background
The background is as follows. On 10 December 2012 a prosecution notice was lodged with the Magistrates Court at Midland. That prosecution notice alleged that the appellant and another man had committed offences against the Legal Profession Act 2008 (WA) (LPA). In particular, it is alleged that between 11 December 2011 and 31 March 2012 the appellant had engaged in legal practice when he was not an Australian legal practitioner and had aided, counselled or procured the second named accused to do the same thing. Those alleged offences are stated to be contrary to s 12(2) of the LPA.
The appellant raised a preliminary issue in the Magistrates Court. He submitted in that court that the charges should be dismissed because the prosecution notice had not been validly completed. In particular, 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).
Relevant statutory provisions
The prosecution notice states on its face that the prosecutor is the Legal Practice Board of Western Australia. It is to be noted that sch 1 cl 3 of the CPA provides that if a prosecution is commenced by a person who is acting in the course of his or her duties as an employee of a public authority it is sufficient to name the public authority as the prosecutor, provided that the notice identifies the individual who issues the notice and it is signed in accordance with s 23(3) of the CPA.
The prosecution notice states that the name of the person issuing the notice is Anna Seghezzi who is described as a secretary. There appears to be a signature of Ms Seghezzi which is witnessed by a Justice of the Peace. This complies with s 23(3)(b) and s 23(4) of the CPA.
A prosecution is commenced when it is signed in accordance with s 23. A prosecution for an offence can only be commenced by one of the persons referred to in s 20(3) subject to any provision in another written law. One of the persons who can commence a prosecution is an authorised person.
The term 'authorised person' is defined in s 20(1). That definition relevantly means:
[A] person who is authorised to commence a prosecution for the offence under another written law or, in any other case, a person who is a public authority or an employee of a public authority.
The term 'public authority' is itself defined in s 3 of the CPA and includes:
[A] body, whether incorporated or not, or the holder of an office, being a body or office that is established for a public purpose under a written law and that under the authority of a written law performs a statutory function on behalf of the State.
The Legal Practice Board of Western Australia is a body corporate established by s 534 of the LPA. That section also provides that proceedings may be taken by the Board in its corporate name. Section 592 of the LPA provides that in any proceedings for an offence against that Act:
[S]uch proceedings may be taken in the name of the Board by a person authorised in that behalf by the Board.
The offence provision in s 12 appears in pt 3 of the LPA. Section 11 of the LPA provides that the purposes of that part are 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 and to protect consumers by ensuring that persons who carry legal work are entitled to do so.
Section 178 of the CPA provides that any objection by an accused person to a prosecution notice on the grounds that it is defective must be made before the prosecution opening address. Where a document is found to be defective, the court must order that the document is to be corrected if the defect is not material to the case and may order a correction in any other case.
I should note that in some cases a presumption as to the signature on a prosecution notice exists - see s 174 of the Criminal Procedure Act - but that only applies in respect of pt 3 to authorised investigators, not authorised persons. Accordingly, that presumption could not be availed of here, but that is of no consequence because there was no issue as to whether the person who signed the prosecution notice was an employee of the Board or had been authorised by the Board to sign on its behalf; rather, the issue related to whether the Legal Practice Board was itself authorised to commence prosecutions.
The appellant's contention
The appellant's argument to the magistrate was that it had not been established that the Legal Practice Board was, and I quote, 'an authorised public authority' under the CPA. The appellant appears by this term to be conflating two concepts, 'authorised person' and 'public authority'. As the provisions I have referred to make clear, a person who is an employee of a public authority is an authorised person. There is no requirement for the public authority to itself be authorised.
The only questions might be whether the person who signed was authorised by the Legal Practice Board under s 592 of the LPA or, alternatively, whether the Legal Practice Board is a public authority. Having regard to the purposes referred to in s 11 of the LPA, it is difficult to conceive how, when exercising its power to bring prosecutions under pt 3 of the LPA the Legal Practice Board could be acting as anything other than a public authority. As to the first question, as I have noted, there was no issue raised as to whether Ms Seghezzi had been authorised under s 592.
The appellant has sought to argue that the magistrate erred by failing to take into account s 80(2) and s 182 of the CPA. Section 80(2) relates to persons who are authorised to commence prosecutions in superior courts. Section 182 relates to a power of the Governor to appoint persons to prosecute offences who are not otherwise authorised. The power of an authorised person to commence a prosecution is not dependent on either of those sections. The power of an authorised person is an independent power under s 20(3), which section also separately refers to s 82 and s 182.
Perhaps unsurprisingly, the magistrate dismissed the appellant's preliminary application to have the charges dismissed. His Honour's reasons were brief but he stated that in his view the Legal Practice Board is an authorised person by virtue of s 592 of the Legal Profession Act and s 20(1)(a) of the Criminal Procedure Act; that is, to say that the person who signed was authorised under another written law. It is that decision that the appellant seeks leave to appeal.
Is the appeal competent?
The proceedings in the Magistrates Court have not been concluded. The charges have been set down for a hearing on 26 July 2013. Accordingly, there has been no conclusion of those charges, either by way of conviction or acquittal.
The right to appeal to this court from a decision of a magistrate arises from s 7 of the Criminal Appeals Act 2004 (WA) (CAA). Appeals are entirely creatures of statute and the rights of appeal must be determined by the words of the CAA: See Davern v Messel [1984] HCA 34; (1984) 184 155 CLR 21 and Mansell v Mignacca‑Randazzo [2013] WASC 66 [32].
Section 7 of the CAA provides that 'a person who is aggrieved by a decision of a magistrate may appeal to the Supreme Court'. The word 'decision' as used in s 7 is defined in s 6 of the CAA. The types of decisions referred to include a permanent stay, a conviction or an acquittal. They are decisions with a final character. There is very good reason for this. It prevents the disruption of criminal proceedings by appeals of rulings and interlocutory decisions. That is not to say such rulings can never be raised in an appeal; they can, but only in the context of an appeal from a final decision.
In this case there has been no final decision. The decision appealed from does not fall within any of the limbs of the definition of 'decision' in s 6. In these circumstances the appeal is incompetent and must be dismissed.
Is a review order open as an alternative?
I note that there is a power under s 14 of the CAA for the court to make an order under s 36 of the Magistrates Court Act 2004 (WA) (MCA) when deciding an appeal.
Section 36 of the MCA is the statutory replacement for prerogative writs in respect of magistrates. That provision is not limited to decisions of a final quality; however, it does require that there be an error of the type referred to in that section. These are errors of the type that was formerly amenable to prerogative writs. Jurisdictional error of the type alleged here would be a ground for a s 36 review order; that is to say, an error as to whether the jurisdiction of the Magistrates Court had been properly invoked by the valid commencement of a prosecution.
However, the appellant cannot avail himself of that option for the following reasons. First, the relevant power in s 14 of the CAA assumes the existence of a competent appeal. That power is an alternative remedy for dealing with such an appeal. It cannot be used to justify the continuation of an incompetent appeal. If it were otherwise, the limitation created by the definition in s 6 of the CAA would be to no purpose.
Secondly, a review order is a discretionary remedy and there are powerful reasons not to exercise such a discretion where to do so would interrupt continuing criminal proceedings. That is particularly so where the appellant has an appropriate alternative remedy of an appeal at the completion of those proceedings in the event that he is convicted.
Thirdly, there is no obvious merit in the arguments raised by the appellant before the magistrate. Even if the appellant had commenced these proceedings as an application for a review order, they would have been foredoomed to fail.
Conclusion
For those reasons this appeal is incompetent. It seeks to appeal a decision that cannot be appealed under the CAA as it does not fall within s 6 of that Act. Accordingly, leave must be refused and the appeal dismissed.
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