Dean v Seghezzi
[2017] WASC 12
•20 JANUARY 2017
DEAN -v- SEGHEZZI [2017] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 12 | |
| Case No: | SJA:1077/2016 | 20 JANUARY 2017 | |
| Coram: | MARTINO J | 20/01/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES DEAN MARK SIMONSEN ANNE SEGHEZZI LEGAL PRACTICE BOARD (WA) MAGISTRATE P A ROTH |
Catchwords: | Criminal appeal Second appeal against conviction |
Legislation: | Criminal Appeals Act 2004 (WA) |
Case References: | A v Maughan [2016] WASCA 128 Dean v Legal Practice Board [2015] WASC 260 Dean v Legal Practice Board [2016] WASCA 63 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 JS v The State of Western Australia [2014] WASCA 177 Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- MARK SIMONSEN
Appellants
AND
ANNE SEGHEZZI
First Respondent
LEGAL PRACTICE BOARD (WA)
Second Respondent
MAGISTRATE P A ROTH
Third Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P A ROTH
File No : MI 174 of 2013, MI 175 of 2013, MI 176 of 2013
Catchwords:
Criminal appeal - Second appeal against conviction
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellants : In person
First Respondent : No appearance
Second Respondent : Mr R J Nash
Third Respondent : No appearance
Solicitors:
Appellants : In person
First Respondent : No appearance
Second Respondent : Legal Practice Board
Third Respondent : No appearance
Case(s) referred to in judgment(s):
A v Maughan [2016] WASCA 128
Dean v Legal Practice Board [2015] WASC 260
Dean v Legal Practice Board [2016] WASCA 63
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
JS v The State of Western Australia [2014] WASCA 177
Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
- MARTINO J:
(This is an edited version of reasons delivered on 20 January 2017)
1 On 13 October 2016 the appellants filed an appeal notice seeking leave to appeal against decisions of his Honour Magistrate Roth delivered on 20 March 2014 in which his Honour found the first-named appellant, Mr Dean, guilty of two offences against the Legal Profession Act 2008 (WA), and the second-named appellant, Mr Simonsen, guilty of one offence against the Act, imposed fines on the appellants and ordered them to pay costs.
2 The appellants have filed service certificates certifying that they have served the respondents with the appeal notice. Only the second respondent, the Legal Practice Board (WA) (LPB), has filed a notice of respondent's intention.
3 The hearing today is to determine whether the appellants should be granted leave to appeal. The appellants and the second respondent have filed outlines of submissions in accordance with directions that I have made.
4 This is the second appeal by the appellants against the same decisions of Magistrate Roth. Their previous appeal was dismissed by me: Dean v Legal Practice Board [2015] WASC 260 (Dean WASC). An appeal against my decision was dismissed by the Court of Appeal: Dean v Legal Practice Board [2016] WASCA 63 (Dean WASCA).5 The first paragraph of the appellants' outline of submissions is in the following terms:
1 As His Honour, has previously dealt with a matter between the appellants and the second respondent, the appellants are concerned that His Honour will not have objectively in dealing with this appeal and treat this appeal ab initio.
6 At the hearing today I enquired of the appellants whether they were applying for me to disqualify myself from hearing the application by reason of my having determined the earlier appeal. Mr Simonsen said that he was not making that application. Mr Dean said that he was not making that application 'with reservations'.
7 An allegation of actual bias has to be judged by the state of mind of the judge in question, and that has to be done, for the most part, on the basis of what the judge has said or done: Michael Wilson & Partners Pty Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33].
8 An allegation of a reasonable apprehension of bias is to be determined by the test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [33].
9 In my decision in Dean WASC I endeavoured to determine the appeal according to law. The Court of Appeal dismissed the appeal against my decision. There is nothing that I have said or done in that appeal which can suggest that I am biased against the appellants and there is nothing that can lead to a reasonable apprehension of bias. I do not disqualify myself from hearing the application for leave to appeal.
10 The grounds of appeal contained in the appeal notice are as follows:
1. The applicants contend that the Magistrates Court of Western Australia had no jurisdiction to entertain the charges brought against the applicants because the proceedings in that court were not lawfully instituted as Ms Anne Seghezzi who signed the prosecution notice had no lawful authority to do so. (A -v- MAUGHAN [2016] WASCA 128)
2. That Ms Anne Seghezzi as an employee of the Legal Practice Board did not have lawful authority as the signatory to the prosecution notice to commence a criminal prosecution against the applicants
3. That the Legal Practice Board ('Board') was not authorised as a lawful authority to commence or to have criminal prosecution powers against the applicants
4. That it was not the intention of Parliament to authorise the Legal Practice Board (a privately-funded board) to have criminal prosecution powers
5. That this application for review raises issues of general importance in this State as they relate to the proper construction and effect of the legal profession act (LPA) in regards to the criminal prosecution powers of the board under the act and in conjunction with the criminal procedures act (CPA)
11 The appellants require leave to appeal for each of their grounds of appeal: s 9(1) Criminal Appeals Act 2004 (WA). The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding: s 9(2). Unless the court gives leave to appeal on at least one ground of appeal the appeal is to be taken to have been dismissed: s 9(3).
12 Grounds of appeal 1 - 4 raise the issue of whether the prosecutions of the appellants were validly commenced. Ground of appeal 5 does not raise any ground which is not raised by the previous grounds. Ground 5 is, in effect, a submission that the previous grounds of appeal raise issues of general importance.
13 The issue raised in grounds of appeal 1 - 4 was raised by the appellants in their earlier single judge appeal: Dean WASC [12] and their appeal to the Court of Appeal: Dean WASCA [63]. The Court of Appeal has held that the prosecutions were validly commenced. Since the decision in Dean WASCA the Court of Appeal has delivered its decision in A v Maughan [2016] WASCA 128 in which it held that a prosecution commenced by an officer of the Corruption and Crime Commission was not validly commenced. The decision in A v Maughan turned on the provisions of the Corruption and Crime Commission Act 2003 (WA). The reasoning in A v Maughan does not provide any basis to doubt the decision of the Court of Appeal in Dean WASCA, which is binding on me.
14 In any event, the appellants have only one opportunity to appeal, which they have exercised and exhausted. They cannot commence a second appeal. An appeal is a creature of statute. In JS v The State of Western Australia [2014] WASCA 177 the Court of Appeal held that, in the case of an appeal to the Court of Appeal from a decision of a superior court, s 27(3) of the Criminal Appeals Act allowed only one opportunity to appeal. Section 9 of the Criminal Appeals Act, which deals with appeals from courts of summary jurisdiction, is in all relevant respects in the same terms as s 27. It follows that JS v The State of Western Australia establishes that in the case of an appeal from a court of summary jurisdiction there is only one opportunity to appeal. That opportunity has been exercised. The appeal was dismissed. The appellants cannot appeal a second time.
15 None of the grounds of appeal has a reasonable prospect of success. I refuse leave to appeal. The appeal is taken to have been dismissed.
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