Fazio v St John-Ayre - [2017] WASC 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FAZIO -v- ST JOHN-AYRE [2017] WASC 62

CORAM: FIANNACA J

HEARD: 23 SEPTEMBER & 26 OCTOBER 2015

DELIVERED : 17 MARCH 2017

FILE NO/S: SJA 1019 of 2014

BETWEEN: ARTURO FAZIO
Appellant
AND
MICHAEL ANTHONY ST JOHN-AYRE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G LAWRENCE & MAGISTRATE S MALLEY
File No  :FR 4106 of 2012

Catchwords:

Criminal law - Appeal - Conviction for speeding - Appellant (accused) failed to appear at hearing - Magistrate refused adjournment - Appellant (accused) convicted in his absence under s 55 Criminal Procedure Act 2004 (WA) - Appeal partially incompetent - Appeal out of time - No exceptional circumstances to warrant leave out of time - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 40(1)(e)
Criminal Procedure Act 2004 (WA), s 55, s 61(5), s 71, s 72
Magistrates Court Act 2004 (WA), s 36
National Measurement Act 1960 (Cth), s 10
Road Traffic Act 1974 (WA), s 98A
Road Traffic Code 2000 (WA), r 11(2)

Result:

Leave to appeal out of time refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr J Winton

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Cases referred to in judgment:

Bond v Mastrangelo [2013] WASC 400
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Davis v Armstrong (1993) 17 MVR 190
Dean v Legal Practice Board [2013] WASC 155
DPJB v The State of Western Australia [2010] WASCA 12
Gavin v The Queen (1992) 6 WAR 195
Genovese v City of Perth [2012] WASCA 89
Grover v Scott [2010] WASCA 164
Heedes v The Legal Practice Board [2005] WASCA 166
Heedes v The State Of Western Australia [2005] WASCA 251
Heedes v The State Of Western Australia [No 2] [2008] WASCA 142
House v The King [1936] HCA 40; (1936) 55 CLR 499
JS v The State of Western Australia [2014] WASCA 177
Kershaw v The State of Western Australia [2014] WASCA 111
Lancaster v The Queen [1989] WAR 83
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Leary v The Queen [1975] WAR 133
Macdonald v County Court of Victoria [2013] VSC 109
Mansell v Mignacca-Randazzo [2013] WASC 66; (2013) 228 A Crim R 73
Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Myers v Myers [1969] WAR 19
Opperman v The State of Western Australia [2011] WASC 25
Pallett v Paul [2007] WASC 290
Pearce v Dennis [1998] 1 Qd R 431
Radalj v Taylor (1997) 98 A Crim R 170
Re Appeal of White (1987) 9 NSWLR 427
Rendell v Douglas [2015] WASC 36
Rumsley v Taylor (1997) 142 FLR 312
Saad v Baron [2012] WASC 507
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharma v Hodgson [2012] WASC 433
Stewart v City of Belmont [2013] WASC 366
Stewart v City of Belmont [2016] WASCA 5
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Tobin v Dodd [2004] WASCA 288
Webb v The Queen (1993) 181 CLR 41
Wimbridge v The State of Western Australia [2009] WASCA 196
Wright v McMurchy [2012] WASCA 257

Table of Contents

Summary of the appeal and outcome

Background
The appeal notice
Original grounds of appeal
The appeal proceedings - A protracted history
Hearing of 26 October 2015
The need for an extension of time
Appellant's affidavit filed 16 November 2015

Delay in bringing the appeal against the decision of 17 September 2013
Ground 4 ‑ Non‑disclosure
Balance of affidavit

Appellant's written submissions
The issues to be determined arising from the appellant's affidavit and submissions
The respondent's further submissions and the appellant's response
The appeal against the decision of Magistrate Malley is incompetent
Whether any error made by Magistrate Malley would be relevant on the appeal against conviction

Application for extension of time ‑ Whether there are exceptional circumstances
Application for extension of time ‑ Whether miscarriage of justice established
Whether a miscarriage of justice will result ‑ Consideration of the merits of the appeal

(a) Whether Magistrate Lawrence erred in not disqualifying himself

(b) Whether the magistrate erred in refusing the adjournment on 19 September 2013

(c) Whether the evidence produced by the appellant on appeal establishes that he was incapable of attending court on 19 September 2013

(d) Whether the prosecution failed to comply with its disclosure obligation, resulting in a miscarriage of justice

(e) Whether the appellant has established that he has an arguable defence to the charge

Conclusions

FIANNACA J:

Summary of the appeal and outcome

The appellant seeks leave to appeal against his conviction in the Magistrates Court of Western Australia for a traffic offence, and against the sentence and other orders made as a consequence of the conviction.
On 19 September 2013, in the Fremantle Magistrates Court, Magistrate Lawrence convicted the appellant in his absence, pursuant to s 55 of the Criminal Procedure Act 2004 (WA), of the offence of driving a vehicle at a speed in excess of 50 kilometres per hour in a built-up area, contrary to r 11(2) of the Road Traffic Code 2000 (WA).[1] He was fined $150, and ordered to pay costs of $125.70.
[1] Magistrates Court of Western Australia Prosecution Notice FR 4106/12.
The case had had a tortuous history. It had been listed for trial on that day after a previous conviction in the appellant's absence had been set aside. He was aware of the listing. He failed to attend. He faxed a letter to the court that morning indicating he was unfit, both mentally and physically, to attend, but he did not provide medical evidence to support his claim. A medical record forwarded with the fax was for June 2013.
The appellant applied to have the conviction set aside pursuant to s 71(2) of the Criminal Procedure Act. On 11 February 2014, Magistrate Malley refused the application. The appellant relied on his fax to the court sent on the morning of 19 September 2013 as disclosing a good reason why he did not appear. Magistrate Malley did not agree.
The appellant's appeal is pursuant to s 7 of the Criminal Appeals Act 2004 (WA). Under that section, a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court, constituted by a single judge sitting in the General Division, against the decision. 'Decision' is defined in s 6 to mean any of nine specific types of decision that may be made by a court of summary jurisdiction. The grounds on which an appeal may be brought are specified in s 8, and are essentially, for present purposes, that the magistrate made an error of law or fact or that there has been a miscarriage of justice. Section 9 provides that leave is required for each ground of appeal, and must not be given unless the Court is satisfied that the ground has a reasonable prospect of succeeding.
The appellant filed his notice of appeal on 11 March 2014. Although the 'decision' against which he was appealing was specified to be the conviction, sentence and other consequential orders, the notice identified the decision of Magistrate Malley on 11 February 2014 as the decision from which he was appealing, and all but one of his grounds of appeal concerned aspects of the hearing before that magistrate, and only that magistrate. For reasons outlined below, to the extent that the appeal purported to be against the decision of Magistrate Malley, it was incompetent.
With leave, the appellant amended his notice of appeal to include the decision of Magistrate Lawrence. To that extent, the appeal is out of time, and the appellant requires leave to appeal out of time.
Ultimately, for the reasons that follow, I would refuse leave to appeal on all grounds. The appeal is therefore taken to be dismissed.

Background

On 22 April 2012, the appellant was charged on a prosecution notice with the offence under r 11(2) of the Road Traffic Code. The offence was alleged to have been committed on 15 October 2011.
On 23 May 2012, the appellant entered an endorsed plea of not guilty to the charge and the matter was adjourned to 13 June 2012 for allocation of a trial date. A notice issued to the appellant to attend that hearing.
On 13 June 2012, the appellant attended court and the matter was adjourned to 11 July 2012 for mention only. The parties were ordered to provide disclosure pursuant to the Criminal Procedure Act. The appellant attended court on 11 July 2012. On that date a trial hearing was listed for 11 April 2013.
The appellant failed to attend the trial hearing on 11 April 2013, and he was convicted pursuant to s 55 of the Criminal Procedure Act. As will appear below, that provision empowers the court to hear and determine a charge when an accused fails to appear on the date set down for hearing of the charge, provided the court is satisfied the accused has been served with the relevant prosecution notice and a hearing notice informing him of the hearing date and that the matter may be dealt with in his absence if he does not appear. If the court decides to hear and determine the charge, it may take as proved any allegation in the prosecution notice without the need to hear evidence.[2]
[2] Criminal Procedure Act s 55(4).
On 14 May 2013, the appellant successfully applied to the Magistrates Court to have that conviction set aside pursuant to s 71(2) and s 72 of the Criminal Procedure Act. Again, as will appear below, s 72 empowers the court to set aside a conviction entered pursuant to s 55 if certain grounds under s 71(2) are made out, one such ground being that there was 'some good reason' why the accused did not appear, which was the ground relied upon by the appellant.
After the conviction of 11 April 2013 was set aside, a new trial hearing was listed for 19 September 2013 in the Fremantle Magistrates Court.
The appellant failed to attend the hearing on 19 September 2013. At about 9.00 am he sent a letter to the court by facsimile in which he said:
Please be advised that I am physically unwell this morning and unable to attend the proposed "trial" today in the aforementioned matter, due to physical and mental illness issues.
He went on to say that WA Police were well aware of those issues and he enclosed a document. A copy of that document has not been filed in these proceedings, but from the context of (a) what the appellant said in the letter, (b) what Magistrate Lawrence said on 19 September 2013 and (c) what was said by the appellant during the subsequent proceedings before Magistrate Malley, it would appear it was a medical certificate from the Fremantle Mental Health Services dated 11 June 2013.
The prosecutor appearing before Magistrate Lawrence initially indicated he would be seeking an adjournment to a mention date, because of the appellant's letter and the medical certificate. However, Magistrate Lawrence noted that the medical document was dated in June and it did not substantiate the appellant's claim that he was feeling unwell that day (i.e. on 19 September 2013). The prosecutor then said that, in that case, he would seek to proceed under s 55 of the Criminal Procedure Act. The magistrate then convicted the appellant in his absence pursuant to that section on the basis that the allegation in the prosecution notice was taken as proved. The allegation, as read by the prosecutor, was that:
At 4.37pm on 15 October 2011 [the appellant] was driving a Toyota Land Cruiser on Bull Creek Drive in Bull Creek, seen travelling at a speed in excess of the area speed limit of 50 kilometres per hour. Officers using LTI22 laser speed measuring equipment trained the laser on his vehicle, obtained a reading of 66 kilometres per hour, alleging he travelled at 64 kilometres per hour in a 50 kilometre zone.
Magistrate Lawrence imposed a fine of $150 on the appellant and ordered that he pay court costs of $125.70.
The appellant applied to have the second conviction set aside pursuant to s 71(2) of the Criminal Procedure Act. That section provides, relevantly, as follows:
71.Making an application to set aside
(1)…
(2)If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused ‑
(a)did not receive notice of the court date on which the conviction occurred; or
(b)did not receive such notice in enough time to enable the accused to appear on the court date; or
(c)received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.
…
(5)A court must refuse an application made under this section if ‑
(a)the application is made in respect of a decision after an appeal against the decision has been commenced under the Criminal Appeals Act 2004; or
(b)after the application is made in respect of a decision and before it is decided, an appeal against the decision is commenced under the Criminal Appeals Act 2004.
Section 72 sets out the manner in which the court is to deal with an application under s 71(2). It provides, relevantly:
72.Dealing with application to set aside
…
(2)If an application made under section 71(2) ‑
(a)is made within 21 days after the date of the decision to which it relates; and
(b)is not made by an accused who is in custody and who seeks to be released on bail until the hearing at which the charge is dealt with again,
the court, without hearing the parties, may grant the application if it is satisfied that the grounds of the application are made out by the application and any supporting evidence.
…
(4)If an application made under section 71(1), (2) or (3) is not granted, respectively, under subsection (1), (2) or (3) of this section, the court must ‑
(a)as the case requires, set a date for the hearing of the application made under section 71(1) or (2); and
(b)…
(c)issue an approved notice to the parties advising them of the hearing date or dates, as the case requires.
(5)At the hearing of an application made under section 71(1) or (2) the court may grant the application if it is satisfied that it is in the interests of justice to do so.
…
(7)The court dealing with an application made under section 71 need not be constituted by the same person or persons who constituted the court that made the decision to which the application relates.
The appellant's application to have the second conviction set aside was heard by Magistrate Malley on 11 February 2014, again in the Fremantle Magistrates Court. It appears from the transcript of those proceedings that the appellant had filed an affidavit in which he deposed to facts about his health on 19 September 2013, and he relied on that in support of an argument that there was good reason why he had not appeared at court on that day. He did not rely on any other ground.
The affidavit before Magistrate Malley has not been filed in the appeal proceedings. It appears, however, from the exchange between the appellant and his Honour, that it annexed and referred to the letter and medical certificate sent to the court on 19 September 2013. Magistrate Malley noted that there was no medical certificate to support the appellant's claims in his affidavit about his health problems on 19 September 2013 that allegedly prevented him from attending court. His Honour was not prepared to accept the appellant's assertions in his affidavit that he was physically unable to attend court, in the absence of 'substantive' evidence to support his claims. It is implicit in his Honour's remarks that he was not satisfied, therefore, that the appellant had established there was some good reason for his failure to appear on 19 September 2013. His Honour refused the application.

The appeal notice

On 11 March 2014, the appellant filed an appeal notice in which he identified the decision from which he was appealing as 'Conviction for speeding … Driving in excess of speed limit'. As required by the appeal notice form, he then particularised the sentence imposed and other orders made as a result of the conviction. The notice then sets out 'Appeal details' as follows and requires the appellant to delete or rule through the options that do not apply:
1.The appellant applies to the court for leave to appeal against the above conviction.
2.The appellant applies to the court for leave to appeal against the above sentence.
3.The appellant applies to the court for leave to appeal against the above order made as a result of conviction.
4.The appellant applies to the court for leave to appeal against the above decision.
The appellant did not delete any of the particulars. Although that would tend to suggest that the appellant was appealing against the penalty imposed and other consequential orders, as well as the conviction, neither in the grounds of appeal nor in submissions did the appellant identify error in the sentencing or the making of the consequential orders. The appeal is against the conviction. If the appeal were allowed, the penalty and other consequential orders would be set aside in any event.
The appeal notice originally identified the date of the decision appealed from as 11 February 2014 and the magistrate who made the decision as Magistrate Malley. Putting to one side for the moment the question of the competency of an appeal against a decision refusing to set aside a conviction under s 72 of the Criminal Procedure Act, the original particulars in the appeal notice identifying the date of the decision and the magistrate who made the decision were clearly incorrect. Magistrate Malley did not convict the appellant. The conviction was entered by Magistrate Lawrence on 19 September 2013 and remained in effect unless and until it was set aside. Magistrate Malley refused the application to set it aside, but he did not thereby convict the appellant.
The error was identified by the respondent who recognised that the appellant's intention was to appeal against his conviction and that one of the grounds of appeal appeared to concern, in part, the decision of Magistrate Lawrence. Consistently with the conduct of a model litigant, the respondent did not object to the appellant amending the appeal notice to identify the decision‑maker as Magistrate Lawrence and the date of the decision as 19 September 2013.
At the hearing before me on 26 October 2015, after the need for the amendment was explained to the appellant, he applied to amend the appeal notice to include Magistrate Lawrence as the decision maker and 19 September 2013 as the date of the decision. The application was granted and the appeal notice was amended accordingly. However, the appellant did not apply to further amend the appeal notice to delete the reference to Magistrate Malley and the date of his decision. As I have understood the final submissions made by the appellant, he has not unequivocally abandoned the appeal insofar as it purports to be from the decision of Magistrate Malley, so it will be necessary for me to deal with that. The appellant's final submissions raise matters that are not within the ambit of the original grounds of appeal, yet he has not sought to amend those grounds formally. Instead, as will appear below, his written submissions propose that each of the grounds should now be taken to relate to the decision of Magistrate Lawrence. However, some of the grounds would make no sense in respect of Magistrate Lawrence's decision if one simply substituted his name for that of Magistrate Malley.
The respondent has conceded that ground 4 (which is set out below), by referring to 'the primary decision maker', may be taken to relate to the decision of Magistrate Lawrence, but the other grounds do not allege error on the part of that magistrate. Unless they are amended, the appeal against the decision of Magistrate Lawrence must be taken to be only on the basis of ground 4.

In Samuels v The State of Western Australia,[3] the Court of Appeal said that the consideration of the merits of a proposed ground of appeal, when leave is being considered, 'will be confined to the ground of appeal as particularised ‑ but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application.'[4] That does not mean that a ground of appeal should be distorted to accommodate that which is advanced in the appellant's case, if the submission does not come reasonably within the ambit of the ground. On the other hand, the appellant is not legally represented. He is not thereby entitled to advantages which, if he were represented, he would not have, but I am required to examine carefully what he has put to ascertain the substance of his grievances and ensure that he has not lost a right he may have in respect of the appeal because of his lack of legal knowledge.[5]
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [60].
[5] Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] - [29]; Tobin v Dodd [2004] WASCA 288 [14] (EM Heenan J; Murray J agreeing); Grover v Scott [2010] WASCA 164 [5] (Jenkins J; McLure P & Buss JA agreeing); Opperman v The State of Western Australia [2011] WASC 25 [44] (EM Heenan J).
Despite some concerns about the appellant's attitude to the need for compliance with proper process in this case (given that he appears to be intelligent, has had some experience with the legal system,[6] and had the difficulties with his grounds explained to him), if I thought his submissions raised any ground upon which the appeal might be allowed (particularly as he purports to relate the grounds to the decision of Magistrate Lawrence), I would give it consideration and allow him a further opportunity to amend his grounds.[7] In taking that approach, I have had regard to the fact there is some evidence (provided to the court by the appellant) that he has suffered both physical and mental illnesses since lodging the appeal, and his capacity to comply with procedural requirements and give the matter adequate intellectual consideration may have been affected as a result.
[6] See Heedes v The State Of Western Australia [2005] WASCA 251 and Heedes v The State Of Western Australia[No 2] [2008] WASCA 142. Both are cases to which the appellant has referred, in which he was the appellant and acted in person.
[7] Grover v Scott [2010] WASCA 164 [5] (Jenkins J; McLure P & Buss JA agreeing).
In the event, no circumstance has arisen to warrant a further opportunity to be given to the appellant to amend his grounds.

Original grounds of appeal

The appellant's original grounds of appeal were as follows:[8]
1.The Magistrate erred at law when he failed to consider that the prosecutors DID NOT object to my application to set aside the conviction made in my absence.
2.The Magistrate erred at law, when he placed improper weight and predominant focus and reliance on the fact that a previous application to set aside a conviction in the same matter was successful, and because of that determined matter by another Magistrate the latter application to set aside would not be granted. He also erred by way of a misapprehension of the facts in the earlier successful application.
3.Magistrate Malley erred at law when he failed to give proper regard to the medical and other affidavit evidence supporting the appellants [sic] absence from the hearing whereupon the conviction was made in absentia.
4.The primary decision maker and Magistrate Malley erred at law in proceeding with the matter at all, in circumstances whereby The Prosecutors had not served the appellant with Full Disclosure, documents and witness statements prior to the trial as had been previously ordered, resulting in an unfair trial and a denial of natural justice to the appellant.
5.Magistrate Malley erred at law in wrongly applying his discretion towards the principles of justice affording the appellant his lawful rights, juxtaposed against competing interests in the administration of justice and public policy and public interest.
6.Magistrate Malley erred at law when he did not immediately recuse himself from hearing any matter pertaining to the appellant because of past history, whereby a reasonable minded person availed to ALL of the facts would conclude a reasonable apprehension of bias to the test at law.
7.Magistrate Malley was already predisposed to the matter and failed to bring a fair and impartial mind to the matter at hand. The fines are unlawful.
[8] Words in upper case are as in the original notice.

The appeal proceedings - A protracted history

The appeal proceedings have had a protracted history, and it has seemed at times that the appellant had little enthusiasm to pursue the appeal. While it is not necessary to set out that history in detail, an outline will provide context for the manner in which the matter has been dealt with ultimately.
Programming orders were initially made by Corboy J on 28 April 2014, when it was ordered that the application for leave to appeal and the appeal would be heard together.
On 12 June 2014, the respondent applied for orders as a result of identifying that the appeal was misconceived and incompetent to the extent that it purported to be from the decision of Magistrate Malley. The respondent filed an affidavit and submissions in support of that proposition (referred to as a preliminary issue) and sought an order refusing leave on all of the grounds, alternatively on all of the grounds except ground 4, if the reference to 'the primary decision maker' in that ground was taken to be a reference to Magistrate Lawrence and the appeal notice was amended to refer to his decision on 19 September 2013. In the event that the latter course was adopted, the respondent submitted that any appeal from the decision of Magistrate Lawrence was out of time, so the appellant should be required to file an affidavit to explain why leave should be granted out of time, as well as an affidavit in support of ground 4.
On 16 June 2014, the respondent filed an affidavit to prove that the appellant was served by post with the respondent's application, the supporting affidavit and the submissions. The court had also given the appellant notice of the application by post.
On 21 June 2014 the appellant sent the court, by facsimile, a letter from Fremantle Health Services dated 19 June 2014 and co-signed by a mental health nurse and a consultant psychiatrist, requesting that his 'current court cases' be adjourned. It explained that the appellant had suffered significant symptoms of anxiety and depression in the context of ongoing grief as a result of the death of his wife and other psychosocial stressors. In brief, it explained that his condition affected his functioning, especially his concentration and motivation, and he was finding managing his affairs overwhelming. The appellant also faxed a discharge letter dated 20 June 2014 from the emergency section of St John of God Hospital in Murdoch, indicating that he had suffered an injury to his right knee. However, it seems to me that had no bearing on his capacity to continue to conduct his appeal.
The proceedings then stalled for a considerable period of time. That was at least in part due to the fact that an application was made in September 2014 for a guardianship or administration order in relation to the appellant, which resulted in a declaration by the State Administrative Tribunal on 12 December 2014 that the appellant was:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
The Tribunal made an administration order appointing the Public Trustee as the administrator of the appellant's estate. That order was revoked by the Tribunal on 28 April 2015 upon an application by the appellant for review.
A directions hearing was then scheduled in the appeal proceedings for 23 September 2015. The appellant was notified. Late on 22 September 2015, the court received unsigned correspondence by facsimile purporting to be sent on the appellant's behalf by someone who was assisting him indicating that the appellant was aware of the directions hearing, but he would be 'unable to attend tomorrow's hearing as he cannot be accompanied as he requires, having suffered a recent psychotic episode which triggered extreme anxiety and paranoia'. In context the correspondence suggested that the appellant's functioning was affected by the recent psychotic episode. It also claimed the appellant was 'very hazy' about the subject matter of the appeal and could not find relevant documents. It indicated he was seeking legal representation from the Mental Health Law Centre and asked that the programming orders which were to be made the following day allow him reasonable time to do so.
The correspondence received on 22 September 2015 included a letter dated 8 July 2015 from a consultant psychiatrist at Fremantle Hospital stating that the appellant was a patient of the Alma Street Centre (Fremantle Hospital Mental Health Services) and suffered from chronic depression and severe bereavement reaction. Given the date of the letter, it provided no proof of the appellant's state of mental health on 22 September 2015. It would not go unnoticed that the circumstances were similar to what happened on 19 September 2013. A medical record having no connection in time with the date of the scheduled hearing was advanced as support for an unsubstantiated claim that the appellant was unfit to attend the hearing.
The appellant did not appear at the directions hearing on 23 September 2015 and the matter was adjourned to 26 October 2015. He was notified of the adjournment.

Hearing of 26 October 2015

The appellant appeared at the directions hearing on 26 October 2015. He claimed not to have any knowledge about the subject matter of the appeal or any of the documents filed in the early stages of the proceedings. He was provided with a copy of the relevant documents. Despite his claim that he had no recollection of the appeal, he said he wished to proceed with it.
The court provided assistance to the appellant by explaining briefly the history of the proceedings in the Magistrates Court, the substance of his appeal notice and the difficulties with the appeal notice and the proposed grounds of appeal that had been identified by the respondent, in particular that Magistrate Malley's decision was not amenable to an appeal under s 7 of the Criminal Appeals Act. He was informed that it was the decision of Magistrate Lawrence on 19 September 2013 that resulted in the appellant's conviction.
As I stated earlier in these reasons, the appellant sought and was granted leave to amend the appeal notice to include the decision of 19 September 2013 and to identify Magistrate Lawrence as the decision‑maker. However, he did not concede that the decision of Magistrate Malley was not amenable to appeal and did not seek leave to further amend the appeal notice to delete the references to Magistrate Malley and the date of his decision. Further, he did not apply to amend the grounds of appeal.
An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the date of the decision, unless the Supreme Court orders otherwise.[9] Therefore, to the extent that the appeal is against the decision of Magistrate Lawrence, it is out of time. The appeal was commenced on 11 March 2014, more than five months after his Honour's decision. Consequently, the appellant was ordered to file and serve an affidavit setting out the materials upon which he intends to rely to support his application for leave to appeal out of time.
[9] Criminal Appeals Act s 10(3).
At the conclusion of the directions hearing, I made orders requiring the appellant to file and serve an affidavit in support of his application to appeal against the decision of Magistrate Lawrence and an affidavit in support of ground 4, which is the only ground that specifically refers to the decision of the 'primary decision maker' and alleges a failure of the prosecution to comply with its obligation of disclosure. I also made orders for the filing of further submissions by the appellant and the respondent, and finally an order giving the parties leave to apply to list the matter for further hearing by 14 December 2015. I ordered that, in the absence of any such application, the question of leave and the appeal would be decided on the papers.
There was no application by either party to list the matter for further hearing. In the appellant's case, he specifically noted in his submissions that he had no desire to participate in any further hearing and would await the decision of the court. Therefore, I have decided the application for leave and the appeal on the papers.

The need for an extension of time

It is well settled that where there has been lengthy delay in the bringing of an appeal, the court requires exceptional circumstances to be shown before it will grant an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[10] In my opinion, the appellant's delay in instituting the appeal was lengthy, particularly given the nature of the prosecution and the history of the proceedings. Therefore, I am satisfied that I should apply the principle to which I referred. The appellant's affidavit and submissions have approached the application for an extension of time on that basis, as have the respondent's submissions.
[10] Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); Grover v Scott [2010] WASCA 164 [16] ‑ [17] (Jenkins J; McLure P & Buss JA agreeing).

Appellant's affidavit filed 16 November 2015

The appellant filed an affidavit on 16 November 2015, ostensibly dealing with the issue of delay and containing some information concerning the disclosure issue, but also canvassing a number of matters that are not relevant to the issue of delay or appeal ground 4, or indeed to the other grounds as formulated. Although the respondent, in written submissions, argued that the affidavit is 'prolix and contains a great deal of irrelevant material', he did not object to the receipt of the affidavit or any part of it. The affidavit purports in part to provide evidence of the appellant's incapacity on 19 September 2013, to demonstrate that Magistrate Lawrence's decision amounted to a miscarriage of justice. In the circumstances, I am prepared to admit that evidence under s 40(1)(e) of the Criminal Appeals Act. Further, in the circumstances of this case, it is not necessary to determine whether the evidence should be regarded as fresh or new evidence.[11]

Delay in bringing the appeal against the decision of 17 September 2013

[11] The difference would ordinarily affect the test applicable to whether the evidence provides a basis for allowing an appeal. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12; Genovese v City of Perth [2012] WASCA 89; Stewart v City of Belmont [2016] WASCA 5 [34] (Hall J; Buss & Newnes JJA agreeing). However, in this case, where there was not a determination of guilt on the merits, but by virtue of a presumption of the correctness of the facts because of the procedure that was adopted, the question is whether the appellant has suffered a miscarriage of justice as a result of the adoption of that procedure. In my opinion, the distinction between fresh and new evidence does not have jurisprudential significance in those circumstances.

The appellant describes a number of ailments that he says he was suffering at the time of the hearing before Magistrate Lawrence, which he claims were debilitating at that time and from time to time since then. They include mental illness for which he refuses to take prescribed medication and ischaemic heart disease, apparently associated with atherosclerosis. He also says he suffers from 'trauma induced insomnia'.[12] Finally he describes physical injuries that he claims to have suffered prior to his hearing on 19 September 2013 and in June 2014. He has annexed to his affidavit:
1.two letters, dated 8 July 2015 and 11 November 2015, from a consultant psychiatrist, Dr Adam Roberts, who states that the appellant has been a long standing patient of his and that he suffers from chronic depression and a severe bereavement reaction following the death of his wife (Annexures ASF 6 and ASF 3);
2.a letter dated 18 July 2014 from a Community Mental Health Nurse at the Alma Street Centre in Fremantle, which confirms the appellant remained an 'active' patient there at that time and also describes an injury suffered by the appellant to his knee when he fell on 20 June 2014 (Annexure ASF 5); and
3.a discharge summary from Fremantle Hospital Department of Emergency Medicine, dated 22 April 2014, which reports that the appellant presented at the department on that day with pain to his chest, radiating into his shoulders, and that the diagnosis was 'Cardio‑vascular ‑ Myocardial Infarction, Acute' (Annexure ASF 4). The summary also reports that the appellant refused to undergo investigation of his heart with a cardiac catheter.
[12] Affidavit of Arturo Fazio dated 13 November 2015 [5].
The appellant has not filed any other medical report or record to confirm that he has atherosclerosis or ischaemic heart disease. Assuming, on the basis of his affidavit, that he does, there is no medical report or record concerning any examination of the appellant on 19 September 2013, or during the appeal limitation period of 28 days following Magistrate Lawrence's decision, to support the claim that he was unable to attend that hearing or was subsequently unable to file an appeal within that period because of symptoms of his heart disease.
The appellant summarises the impact of his medical problems as follows:
Due to the sum combination of the aforementioned, I am at best a day by day proposition whereby I have some mediocre, fair to good days, intermingled with some not so good and horrendous days and periods of time.[13]
[13] Affidavit of Arturo Fazio dated 13 November 2015 [6].
He also describes a self-imposed reclusive life after the death of his wife as a result of illness, although, on his own admission, he has a friend who has visited him and assisted him with the preparation of documents for the appeal proceedings.
Specifically in respect of the hearing of 19 September 2013, the appellant deposes that 'in the early morning hours' of that day he 'suffered 3 severe angina attacks' that left him 'physically debilitated and mentally anxious'.[14] He claims to have had no assistance to attend court and nor was he physically or mentally able to attend court. There is no evidence that the appellant sought medical assistance or an opinion about his capacity at that time or soon after. Instead he seeks to rely on the letter of Dr Roberts dated 11 November 2015, which the appellant describes as having been 'retrospectively prepared … from [Dr Roberts'] medical files'.[15] Dr Roberts does not say in the letter that his opinion is based on information on his medical files. The opinion he expresses is that the appellant was 'both physically and mentally too unwell to attend court' on 19 September 2013, but he does not explain on what basis he expresses that opinion. He goes on to say that the appellant had 'a serious leg infection as well as significant mental health issues'. Those matters appear to be stated as the foundation for the opinion that the appellant was both physically and mentally too unwell to attend court, yet Dr Roberts does not explain how the ailments incapacitated the appellant. He does not explain what the 'significant mental health issues' were.
[14] Affidavit of Arturo Fazio dated 13 November 2015 [12] ‑ [13].
[15] Affidavit of Arturo Fazio dated 13 November 2015 [16] and Annexure ASF3.

The appellant has deposed that he was suffering from 'seawater cellulitis' in his left leg at the time and has annexed to his affidavit a black and white print-out from an email that includes a poor quality image of a limb which is not readily identifiable as his left leg.[16] Accepting the appellant's assertion that it is his leg, it depicts what appear to be open sores, swelling and wrinkling of the skin in the area of his knee. The appellant claims, in his affidavit, that the photograph was taken on 24 September 2013. The email bears a date and time stamp in November 2015, providing no support for his assertion that his leg was in that condition on 24 September 2013, let alone on 19 September 2013. In any event, the condition depicted is not self-evidently of such a nature as to have prevented the appellant from physically attending the court on 19 September 2013.
[16] Affidavit of Arturo Fazio dated 13 November 2015 [14], Annexure ASF2.
It would be regrettable if Dr Roberts expressed an opinion about the appellant's capacity on 19 September 2013, in circumstances in which he had not made any observations or assessment of the appellant's condition at that time or soon after, without setting out the information or assumptions on which he was relying, yet there is nothing in his letter to suggest his opinion is based on any such observations or assessment. Further, as I have already noted, Dr Roberts does not explain what the appellant's mental health issues were or how those issues and the infection to his leg rendered him incapable of attending court. In those circumstances, with all due respect to Dr Roberts, I do not consider that I can place any weight on the opinion he expresses in that letter to conclude that the appellant was in fact medically unfit on 19 September 2013. I note, in any event, that Dr Roberts makes no mention of the appellant having suffered angina attacks on the relevant morning, which I would have thought would have been a significant matter to mention if he was relying on such an event as part of what caused the appellant to be physically 'too unwell to attend court'.
Further, I note that neither the appellant in his affidavit, nor Dr Roberts in his letter of 11 November 2015, has described the symptoms of the appellant's mental illness that he supposedly suffered on 19 September 2013. The appellant simply refers to anxiety suffered as a result of the angina attacks. There is no suggestion he was suffering any symptoms that affected his cognitive functioning. There is evidence that his cognitive functioning was sufficiently intact for him to understand the purpose of the court proceedings and the issues with which he had to contend, as he has annexed the letter which was faxed by him to the Fremantle Magistrates Court at 9.07 am on 19 September 2013 (Annexure ASF 1), in which he said (as I have already noted at [15] above, but repeated here for convenience):
Please be advised that I am physically unwell this morning and unable to attend the proposed "trial" today in the aforementioned matter, due to physical and mental illness issues.
He went on to say that WA Police were aware of his status, particularly his mental status, and continued:
My plea of NOT GUILTY to the charge is still maintained and I look forward to my day in court to prove such, though it is manifestly unclear to me as to what sort of nefariously contrived ambush awaits me, as next to no documentation appears on file.
I look forward to receipt of the adjournment date. (Original emphasis)
In the absence of any further explanation, it is difficult to reconcile the content and tone of the letter with the proposition that the appellant was debilitated by symptoms of anxiety or depression, which have been identified in the materials from Dr Roberts and the mental health nurse as manifestations of his mental illness.
I have outlined in some detail the evidence proffered by the appellant in respect of his condition on 19 September 2013, because it will be relevant to the question of whether there has been a miscarriage of justice, but, as I will explain, it does not assist the appellant's application for an extension of time in which to appeal against Magistrate Lawrence's decision, which was intended to be the purpose of the affidavit.
The appellant claims that his physical and mental condition got progressively worse '[f]rom that date forward', referring ultimately to his heart attack (the acute myocardial infarction) in April 2014.[17] However, there is no elaboration of how, if at all, things got worse in the 28‑day period after Magistrate Lawrence's decision, or how his condition prevented him from lodging an appeal. Although the appellant says that '[t]he aforementioned goes to explaining in major part what was going on with me my difficulties in living at the time and as such the apparent delay in the late filing of this appeal',[18] in my opinion the information in the affidavit concerning the appellant's mental and physical state does not explain the delay, which is actual, not 'apparent'. The appellant's real explanation for the delay appears to be in what follows:
Furthermore, I confess that I erred in believing that I could not appeal here in the Supreme Court until after the later hearing before Magistrate Malley on the 11^th February 2014.[19] (Original emphasis)
[17] Affidavit of Arturo Fazio dated 13 November 2015 [17].
[18] Affidavit of Arturo Fazio dated 13 November 2015 [18].
[19] Affidavit of Arturo Fazio dated 13 November 2015 [18].
In his written submissions the appellant claims that he was told by registry staff at the Fremantle Magistrates Court that an appeal to the Supreme Court could not be commenced until after the review hearing before Magistrate Malley on 11 February 2014, that he relied on that advice, and that he believed the 28 days for appealing was from 11 February 2014. He does not depose to those facts in his affidavit. Therefore, they are not in evidence, and I cannot rely on the assertions. In any event, as will appear below, even if the assertions were true, they would not affect the outcome.

Ground 4 ‑ Non‑disclosure

The contents of the appellant's affidavit in support of ground 4 are brief and largely in the form of submissions, rather than assertions of fact. He asserts that an order was made under s 61(5) of the Criminal Procedure Act for disclosure of the prosecution case, and that the prosecution failed to comply. The appellant has not annexed any material in respect of the content of the order, nor has he provided specific details of the order in his affidavit. However, he goes on to speculate that a possible explanation for what he asserts to be non-disclosure was that he had withdrawn the common law right the prosecutor had to attend upon his property. He also says he was 'unable to physically collect from Fremantle Police Station as they demanded because of my leg, sickness and immobility' (emphasis added).[20] The clear implication is that the appellant created an obstacle to personal service, but the evidentiary materials were available to him to be collected from the Fremantle Police Station. There is no evidence to support his claim that he was immobile at the relevant time.

Balance of affidavit

[20] Affidavit of Arturo Fazio dated 13 November 2015 [29].

The balance of the appellant's affidavit deals with two additional issues.
First, he purports to lay a factual foundation for an argument that Magistrate Lawrence was 'completely incapable of bringing a fair and impartial mind to any matter before him concerning [the appellant]'.[21] It is unnecessary and in any event would be inappropriate to set out the details of his assertions. It is unnecessary principally because they do not relate to a ground of appeal as formulated. Insofar as grounds 6 and 7 rely on a reasonable apprehension of bias, they relate to Magistrate Malley, not Magistrate Lawrence. Secondly, the assertions disclose only the appellant's personal impressions and provide no objective material upon which a claim of apprehended bias could be properly assessed from the standpoint of a fair-minded lay observer. It would be inappropriate to set out the assertions because it is not possible on the available material to determine to what extent they are based in reality, and in places they could properly be described as scandalous.
[21] Affidavit of Arturo Fazio dated 13 November 2015 [20].
The second additional issue the affidavit deals with is whether the appellant has an arguable defence to the charge of which he was convicted. This will go to the question of whether there has been a miscarriage of justice. To that end, he has annexed to his affidavit email correspondence with Dr Richard Brittain, manager, Legal Metrology Authority Appointments at the Australian National Measurement Institute, in which Dr Brittain answers the appellant's questions whether two particular items of equipment were 'pattern approved measuring instruments' for the purposes of the National Measurement Act 1960 (Cth).[22] One of the items referred to appears to correlate in description to the laser speed measuring equipment used to ascertain the speed at which the appellant's vehicle was travelling at the time of the alleged offence, as mentioned in the statement by the prosecutor of the facts on 19 September 2013.
[22] Affidavit of Arturo Fazio dated 13 November 2015, Annexure ASF8.
Dr Brittain informed the appellant in effect that neither of the items of equipment he was enquiring about was a certified measuring instrument for the purposes of s 10 of the National Measurement Act, which was the only context in which the question was relevant, but indicated, with due deference to whatever determination the court might make, that he did not believe a failure to comply with s 10 would vitiate measurements or render them inadmissible.[23]
[23] Affidavit of Arturo Fazio dated 13 November 2015, Annexure ASF8.
The appellant's affidavit does not depose to any facts within his personal knowledge about the incident the subject of the charge. He makes the bald statement at paragraph 33 of his affidavit that his defence to the charge is 'founded on the very simple fact that I was not speeding as alleged', in addition to the assertion that the measuring devices were non‑compliant with s 10 of the National Measurement Act, but he does not, for instance, state at what speed he was travelling or provide any other evidence that would enable that assertion to be tested.

Appellant's written submissions

The appellant filed written submissions on 24 November 2015.
While acknowledging that the conviction for speeding on 19 September 2013 is the 'primary decision' to which the appeal relates, he refers to the decision of Magistrate Malley on 11 February 2014 as 'the springing incident from which this appeal before the Supreme Court arises'. It is in that respect that I indicated earlier that he has not unequivocally abandoned the appeal insofar as it purports to be from the decision of Magistrate Malley, although his submissions do not develop the grounds of appeal by reference to the decision of Magistrate Malley. Instead, as I noted earlier, the appellant submits that each of the grounds should now be taken to relate to the decision of Magistrate Lawrence. That does not make sense in respect of grounds 1 and 2, which specifically relate to the decision to refuse his application to set aside the conviction entered in his absence. Had there been an application to amend those grounds it would have been refused. As for grounds 3, 5, 6 and 7, I will take the appellant's submissions as indicating that he would have sought to amend the grounds to allege error by Magistrate Lawrence. Grounds 3 and 5 would go to the refusal on its merits of the appellant's application to adjourn the hearing of the charge, and grounds 6 and 7 would go to an allegation of reasonable apprehension of bias.
The essence of the appellant's appeal against the decision of Magistrate Lawrence on 19 September 2013, as outlined in his written submissions, is that:
1.his Honour erred in law in failing to recuse himself on the basis of a lack of impartiality;
2.his Honour erred in law in failing to adjourn the hearing, having regard to the letter that had been faxed to the court by the appellant and the prosecutor's request at the outset for an adjournment; and
3.alternatively to 2, there has been a miscarriage of justice resulting from the failure to adjourn, because the appellant has now established that he was unfit to attend the trial hearing on 19 September 2013.
His argument on the first point is that his Honour was predisposed to find the appellant guilty and refused to adjourn the matter, or at least dissuaded the prosecutor from seeking an adjournment, for that reason.
In support of the application for an extension of time, the appellant submits, in effect, that there are exceptional circumstances justifying the extension, namely his illnesses and resulting incapacity and the fact he was led to believe that he could not appeal until after the hearing before Magistrate Malley. In the alternative he submits, in effect, that there will be a miscarriage of justice if the extension is not granted. He formulated his argument as follows (original syntax and emphasis):[24]
(a)The Fair Administration of Justice is of significant public interest;
(b)The supporting affidavit of Mr Fazio and annexure has enlivened real and specific questions of law on the subject matter that need to be determined in the public interest, especially annexure ASF8 as to the accuracy and validity of the measuring equipment, plus furthermore whether WA Police ought to fully disclose materials they rely upon in their case to an unrepresented defendant as was ordered, prior to trial. The Questions need ventilating and determining in the public interest, plus;
(c)The questions of bias, apprehension of bias and whether or not Magistrate Lawrence ought to have recused himself or not from hearing any matter involving Mr Fazio, with respect also needs to be considered.
(d)Mr Fazio has evidenced throughout, a clear intent to defend the charges and by virtue of significant physical and mental health issues also as evidenced and the subsequent decision of Magistrate Lawrence, can be said to have been denied the appellant Natural Justice Res Ipsa Loquitor [sic] to be heard on the merits.
(e)The well established fundamental axiom at law, "Justice must not only be done, but imperatively must also be seen to be done."
[24] Submissions of Arturo Fazio dated 19 November 2015 [6].
The legal truisms to which the appellant resorts (without any obvious consideration of their relevance) do not advance his arguments beyond the specific identification of error. The proposition relying on natural justice is misconceived. Section 55 of the Criminal Procedure Act provides a specific procedure to deal with a prosecution otherwise than by having regard to the merits of the evidence, including any purported defence, when an accused fails to appear for the hearing of the charge. The requirements of procedural fairness will be satisfied if the accused has been properly served with the prosecution notice and the court hearing notice. What is necessary is for the accused to be aware of the charge, when it is to be heard and the consequences if he fails to appear.
Putting aside the matters that do not advance his case, it seems to me that the appellant's argument is there will be a miscarriage of justice because:
1.the conviction is tainted due to the reasonable apprehension that Magistrate Lawrence would not be impartial in hearing the matter;
2.the prosecution failed to comply with its disclosure obligation, and disclosure was a precondition to the magistrate convicting him in his absence; and
3.the appellant has a good defence to the charge, based on an alleged 'non-compliance' of the measuring equipment with the National Measurement Act.
In respect of the last proposition, the appellant submitted that he has a 'strongly arguable defence' and that:[25]
The issues involved with respect, ought to be of enough significant public interest as to warrant a complete and through ventilation of such as Mr Fazio has sought and then warrant a judicial finding. To deny Mr Fazio Ex Dubito Justitiae to be heard against all of the deposed facts and circumstances to date, with respect amounts to a miscarriage of justice in the upholding of his conviction. (original emphasis)
[25] Submissions of Arturo Fazio dated 19 November 2015 [22].
The appellant's reliance on the legal maxim of ex debito justitiae is misplaced. The maxim refers to a remedy to which a litigant is entitled as of right, merely upon the asking for it, as opposed to one which is a matter of judicial discretion or determination. The appellant's right of appeal and the procedure upon the hearing of such an appeal are governed by the Criminal Appeals Act. He has no right to have an appeal heard if it was brought out of time unless the court determines that there are exceptional circumstances that justify an extension or that there will be a miscarriage of justice if an extension is not granted. Further, by s 9, leave is required in respect of each ground of appeal and must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding. The appellant is not entitled to have the appeal heard unless leave is granted.

The issues to be determined arising from the appellant's affidavit and submissions

From the foregoing analysis, the following questions require determination:
1.To the extent that the appeal continues to be against the decision of Magistrate Malley, is it competent?
2.Are there exceptional circumstances justifying the grant of an extension of time to appeal against the decision of Magistrate Lawrence?
3.If there are not exceptional circumstances, has the appellant established that there will be a miscarriage of justice if an extension is not granted? This requires a consideration of the following propositions:
(a)Whether Magistrate Lawrence erred in not recusing himself;
(b)Whether Magistrate Lawrence erred in exercising his discretion not to adjourn the hearing before him;
(c)Whether the evidence produced by the appellant on the appeal, which was not available to Magistrate Lawrence, establishes that he was incapable of attending court on 19 September 2013;
(d)Whether the prosecution failed to comply with its disclosure obligation and, if so, whether that resulted in a miscarriage of justice in Magistrate Lawrence proceeding under s 55 of the Criminal Procedure Act; and
(e)Whether the appellant has established that he has an arguable defence to the charge.

The respondent's further submissions and the appellant's response

The respondent filed written submissions on 27 November 2015 responding to the appellant's submissions. It is not necessary to go into the details of those submissions. They have been taken into account in the analysis of the issues that follows. In essence the respondent submits that:
1.the appeal against Magistrate Malley's decision is incompetent;
2.the appellant has not established exceptional circumstances for the grant of an extension of time to appeal against the decision of Magistrate Lawrence. Even if the appellant's evidence is accepted, it does not provide 'any cogent explanation, let alone compelling explanation, for the delay';
3.the appellant has not established there will be a miscarriage of justice if an extension of time is not granted;
4.in relation to Ground 4, the appellant has not filed any evidence to support the assertion that the prosecution had not complied with its disclosure obligation by 19 September 2013 and, in any event, such disclosure is not a precondition to the entering of a conviction pursuant to s 55 of the Criminal Procedure Act;
5.in relation to the appellant's argument that he has a strongly arguable case, the appellant has not produced any evidence that would raise any doubt about the reliability of the measuring equipment, and the appellant's argument based on s 10 of the National Measurement Act would provide no defence to the charge.

The respondent did not respond to the matters raised by the appellant concerning apprehended bias.
The appellant replied to the respondent's submission in an intemperate and unacceptable manner. To the extent that it transcended abusive and incoherent content, the reply essentially repeated arguments he had made previously.

The appeal against the decision of Magistrate Malley is incompetent

Insofar as the appeal continues to be against the decision of Magistrate Malley on 11 February 2014, it is an appeal against a decision under s 72 of the Criminal Procedure Act refusing to set aside the conviction entered on 19 September 2013. If the appeal were competent, it was lodged within time.
An appeal is wholly a creature of statute, and an appellate court's jurisdiction and power derive solely from the governing legislation.[26] Any right of appeal must be determined by reference to that legislation.[27]
[26] JS v The State of Western Australia [2014] WASCA 177 [4] (McLure P, Buss & Mazza JJA agreeing).
[27] Davern v Messel [1984] HCA 34; (1984) 155 CLR 21; Mansell v Mignacca-Randazzo [2013] WASC 66; (2013) 228 A Crim R 73.
The appellant's right of appeal in this case is found in s 7 of the Criminal Appeals Act. Section 7(1) provides that '[a] person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision'. Section 7(4) provides that, except as provided by s 7, no appeal lies against a decision of a court of summary jurisdiction. What constitutes a 'decision of a court of summary jurisdiction' is defined by s 6 of the Criminal Appeals Act. It includes a decision to convict an accused of a charge (s 6(c)). It does not specifically refer to a decision on an application under s 71 of the Criminal Procedure Act, but it includes a refusal to make an order that might be made as a result of a conviction (s 6(g)), which requires further consideration. None of the other definitions apply in this case.
The question of whether a decision under s 72 refusing an application under s 71 of the Criminal Procedure Act is amenable to appeal was considered in Grover v Scott.[28] Although Jenkins J (with whom McLure P and Buss JA agreed) said at [76] that she would not determine the issue, as the court had not heard submissions on it, her Honour went on to say at [98] that a decision by a magistrate not to allow an application under s 71 was not amenable to appeal, although her Honour considered whether there was any error in the determination of the application to ascertain if there would be a miscarriage of justice. Her Honour did not consider the question of whether s 6(g) of the Criminal Appeals Act might accommodate an appeal against a decision under s 72.
[28] Grover v Scott [2010] WASCA 164.
In Sharma v Hodgson,[29] Beech J considered the question, although in that case his Honour regarded the appeal in reality to be against the conviction, not the refusal to set the conviction aside. His Honour said:[30]
Secondly, and in any event, in my view, the decision to refuse the s 71 application is not a decision in respect of which the appellant has a right of appeal. A person aggrieved by a decision of the Magistrates Court has a right of appeal under s 7(1) of the Criminal Appeals Act 2004 (WA). Section 6 of that Act defines 'decision' to include a decision to convict an accused of a charge. It also includes a refusal to make an order that might be made as a result of a conviction or acquittal: s 6(g).
Although the matter was not argued [76], in Grover v Scott [2010] WASCA 164 [98], Jenkins J (McLure P & Buss JA agreeing) stated that a decision by a magistrate not to allow an application under s 71 of the CPA is not amenable to appeal. I would respectfully adopt that approach. Although an application under s 71 of the CPA is made following a conviction, on a proper construction of the Criminal Appeals Act I do not consider that an order under s 71 is an order that 'might be made as a result of a conviction' for the purposes of par (g) of s 6 of the Criminal AppealsAct. This does not leave a person who applies unsuccessfully under s 71 without appellate remedy. He or she can appeal against the conviction. If error is shown in the application under s 71, a miscarriage of justice in the consideration may be able to be demonstrated.
[29] Sharma v Hodgson [2012] WASC 433.
[30] Sharma v Hodgson [2012] WASC 433 [18] ‑ [19].
I respectfully agree with his Honour's view that par (g) of s 6 does not encompass a decision on an application under s 71 of the Criminal Procedure Act. In my opinion, the paragraph is concerned with consequential orders that may follow a conviction, not with an order that sets aside or refuses to set aside the conviction.
I note that in Stewart v City of Belmont [2013] WASC 366, a case involving an application for a review order under s 36 of the Magistrates Court Act 2004 (WA) of both a conviction entered under s 55 of the Criminal Procedure Act and a refusal to set that conviction aside under s 72, Martin CJ expressed the view that the challenge to the decision of the magistrate under s 72 was in substance an attempt to appeal from that decision.[31] His Honour went on to note that the applicant in that case had not sought to appeal from that decision and that was part of the context in which the application for an order to review had to be considered. His Honour appears to have assumed that an appeal would lie from a decision on an application under s 71. If that is a correct construction of his Honour's reasons, it must be noted that his Honour's comments in that regard were obiter.[32] Further, although his Honour referred to Grover v Scott in a different context, he did not discuss the passages to which I have referred at [86] above, and he did not refer to Sharma v Hodgson. For the reasons I have given, I am respectfully of the view that an analysis of s 6 and s 7 of the Criminal Appeals Act does not support the assumption that an appeal lies from a decision on an application under s 71 of the Criminal Procedure Act. In my opinion, such an appeal does not lie under s 7.
[31] Stewart v City of Belmont [2013] WASC 366 [35].
[32] In Stewart v City of Belmont [2016] WASCA 5 the Court of Appeal (Hall J; Buss & Newnes JJA agreeing) allowed an appeal against the decision of Martin CJ, but only in respect of his Honouir's refusal of a review order against the decision that had been made in the Magistrates Court to convict the appellant in his absence under s 55 of the Criminal Procedure Act. The Court held that his Honour's refusal of a review order in respect of the decision in the Magistrates Court under s 71 of the Criminal Procedure Act was correct, for the reasons given by his Honour [78]. However, the Court of Appeal did not address the question of whether an appeal would lie from a decision on an application under s 71.
Therefore, to the extent that the appellant seeks leave to appeal the decision not to set aside the conviction on 11 February 2014, the appeal is incompetent and leave to appeal in respect of those grounds must be refused.

Whether any error made by Magistrate Malley would be relevant on the appeal against conviction

It is not clear to me, with respect, in what context Beech J considered in Sharma v Hodgson that an error in an application under s 71 might demonstrate a miscarriage of justice in an appeal against the conviction, although I note that Jenkins J had suggested a similar approach in Grover v Scott. I respectfully have some difficulty with the proposition that an error in the determination of a s 71 application can be relevant to an appeal against the conviction.
In my opinion, if an error is made on such an application, it is not an error made in a ruling or interlocutory decision that is part of the proceedings that resulted in the conviction, which may be relevant on an appeal against the conviction.[33] Moreover, s 71(5)[34] of the Criminal Procedure Act appears to contemplate that an application under s 71 should be regarded as an alternative procedure to an appeal, when a conviction is entered pursuant to s 55. It does not preclude the bringing of an appeal against the conviction after a decision has been made on a s 71 application, but it requires the Magistrates Court to refuse such an application if the accused has already lodged an appeal against the conviction or if he lodges such an appeal after the application has been made but before it has been decided. In my opinion the legislative scheme contemplates that any appeal against a conviction entered pursuant to s 55 is to be determined by reference to the s 55 proceedings, not by reference to any decision on a s 71 application that may have been made in the interim. However, it is not necessary for me to determine that issue, in the context of this appeal, because I have had regard to the material that was put before Magistrate Malley and have considered whether it establishes a miscarriage of justice independently of the decision made by his Honour.
[33] Dean v Legal Practice Board [2013] WASC 155 [19].
[34] See [19] above.

Application for extension of time ‑ Whether there are exceptional circumstances

I have already indicated that, in my opinion, the appellant's delay in commencing the appeal against Magistrate Lawrence's decision was lengthy, so he must show exceptional circumstances to justify the grant of an extension of time, failing which it will be necessary for him to establish that there will be a miscarriage of justice if an extension is not granted.
Cogent and substantial reasons for an extension are required before it will be granted.[35] A compelling explanation for the delay will generally constitute 'exceptional circumstances', but the category of 'exceptional circumstances' is not closed.[36] However, generally, the court has to be satisfied that there is some special or unusual feature of the particular case that warrants the granting of an extension of time, notwithstanding the lengthy delay.[37]
[35] Wimbridge v The State of Western Australia [2009] WASCA 196 [46] (Buss JA, as he then was).
[36] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA; Miller JA agreeing); [48] (Buss JA).
[37] Wimbridge v The State of Western Australia [2009] WASCA 196 [20] (Wheeler JA; Miller JA agreeing); [48] (Buss JA).
Earlier in these reasons[38] I outlined in detail and assessed the evidence upon which the appellant relies to support his application. I expressed reservations about the reliability of some of that evidence and identified shortcomings in the evidence, insofar as it is tendered as proof that the appellant was mentally and physically incapacitated from lodging an appeal against the decision of Magistrate Lawrence within 28 days from 19 September 2013, which is the relevant limitation period. I agree with the respondent's submission that, if the evidence is accepted, then, taken at its highest, it establishes that the appellant:
(a)suffered an "angina attack" on 19 September 2013;
(b)was medically unfit to attend court on 19 September 2013;
(c)was suffering from "sea water cellulitis" as at 24 September 2013;
(d)attended the emergency department at Fremantle Hospital on 22 April 2014, where the principal diagnosis was 'Cardio‑vascular ‑ Myocardial Infarction, Acute'; and
(e)fractured his patella on 20 June 2014.
[38] See [50] to [69] above.
Even if one accepts that, in addition, the appellant suffered from bouts of anxiety and depression from time to time, the evidence does not support in a cogent and substantial manner his claim that he was unable to file an appeal within the limitation period because he was mentally and/or physically unfit during that period. The evidence is vague in that regard and must be considered in the light of other known facts. For instance, the appellant's appearance and submissions before Magistrate Malley on 11 February 2014 tend to confirm that he was fit at that time and for a period before then, during which he prepared and filed an affidavit with supporting material and prepared submissions which he presented orally. Therefore, I am not satisfied that the delay is satisfactorily explained on the basis that the appellant was mentally and/or physically unfit. The appellant has not established an exceptional circumstance for the grant of an extension of time on that basis.
As I indicated earlier, the appellant's actual reason for not filing the appeal in time appears to be that he believed he could not appeal to the Supreme Court until his application under s 71 of the Criminal Procedure Act was determined. If that is correct, it was a misunderstanding of the law that falls well short, in my view, of being a special or unusual feature. Although the appellant is not a lawyer, he has some familiarity with the legal system and appears to have been conversant with the relevant provisions of the Criminal Procedure Act when he appeared before Magistrate Malley. At that time, he pointed out his understanding that the magistrate had 'the power to set aside a magistrate's decision without the need of appeal …'.[39]
[39] Fremantle Magistrates Court ts 6 (11 February 2014).
It would appear the appellant chose the procedure under s 71 rather than appeal at that stage. No doubt he regarded it as an expedient way to have the decision of 19 September 2013 set aside, having previously utilised the procedure successfully to have an earlier conviction of the same charge set aside. As I said earlier, I cannot rely on his assertion in his submissions that he was told by registry staff at the Magistrates Court that an appeal to the Supreme Court could not be commenced until after the review hearing before Magistrate Malley, as he has not given or produced any evidence to that effect. However, even if the appellant were to seek leave to adduce evidence to the same effect as his assertion, it would not establish an exceptional circumstance to justify the grant of an extension of time, in my opinion. There is no explanation as to why he would have relied on such advice. Although the appellant was a self‑represented accused, he did not lack the capacity to properly inform himself about the legal process. That was demonstrated by his comment to Magistrate Malley, referred to above. What is clear from s 71(5) of the Criminal Procedure Act is not that an accused is precluded from lodging an appeal while an application under s 71 is on foot, but that such an application must be refused if an appeal is lodged.
Finally, even if one considers the material and arguments put forward by the appellant in combination, that is having regard to both the evidence about his mental and physical problems and the evidence about his erroneous belief, making due allowance for the fact that he is not legally represented, I do not consider that they provide a satisfactory explanation, in all the circumstances, for his delay in appealing the decision of 19 September 2013.
Therefore, I am not satisfied that there are exceptional circumstances justifying the grant of an extension of time.

Application for extension of time ‑ Whether miscarriage of justice established

As the appellant has not demonstrated exceptional circumstances for the grant of an extension of time, I am required to determine whether an extension should nevertheless be granted to avoid a miscarriage of justice. This requires a consideration of the merits of the appeal.[40] However, an applicant will not establish a miscarriage of justice merely by satisfying the court that his or her proposed grounds of appeal are reasonably arguable,[41] or merely by showing that there are reasonable prospects of demonstrating that there was a miscarriage of justice.[42]
[40] Gavin v The Queen (1992) 6 WAR 195, 202 ‑ 203 (Seaman J); Kershaw v The State of Western Australia [2014] WASCA 111 [132] (Mazza JA).
[41] Wimbridge v The State of Western Australia [2009] WASCA 196 [21] ‑ [22], [25] ‑ [26] (Wheeler JA); [49] (Buss JA)
[42] Wright v McMurchy [2012] WASCA 257 [53] (Pullin JA; Buss JA agreeing on this issue; Mazza JA agreeing).

Whether a miscarriage of justice will result ‑ Consideration of the merits of the appeal

(a) Whether Magistrate Lawrence erred in not disqualifying himself

The appellant contends, in effect, that Magistrate Lawrence should have disqualified himself from hearing the matter on 19 September 2013 because of actual bias or a reasonable apprehension of bias. As the appellant was not at court, there was no application for the magistrate to disqualify himself.
The test for whether the circumstances give rise to a reasonable apprehension of bias is 'whether the circumstances complained of would give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the Judge; that is to say, whether a fair‑minded person might reasonably apprehend or suspect that the Judge has prejudged or might prejudge the case.'[43]
[43] Heedes v The Legal Practice Board [2005] WASCA 166 [15] (Roberts-Smith JA; Owen & Wheeler JJA agreeing), referring to Webb v The Queen (1993) 181 CLR 41, 47 (Mason CJ & McHugh J).
In Heedes v The Legal Practice Board,[44] Roberts‑Smith JA (Owen and Wheeler JJA agreeing) noted the fundamental requirement that justice must not only be done, but must also be seen to be done.[45] His Honour continued:[46]
As Steytler J (as he then was) pointed out in McCreed v The Queen (2003) 27 WAR 554 at [7], justice can only be done if there is in fact no bias and can only be seen to be done if there is no appearance of bias.
[44] Heedes v The Legal Practice Board [2005] WASCA 166.
[45] Heedes v The Legal Practice Board [2005] WASCA 166 [16].
[46] Heedes v The Legal Practice Board [2005] WASCA 166 [17].
The point alleging apprehended bias in Heedes was taken on appeal, as in this case. The comments of Roberts-Smith JA in that context are apt in the circumstances of this case:[47]
The question usually arises in a situation in which there is an application that a Judge disqualify him or herself by reason of apprehension or perception of bias. This being a case in which the point is taken on appeal rather than as a preliminary point seeking disqualification, and when the argument is that the proceedings before McKechnie J involved a denial of procedural fairness by reason of a reasonable perception of bias, it is necessary for the appellant to demonstrate, applying the test I have indicated above, that the circumstances did give rise to a reasonable perception of bias.
As Steytler J observed in McCreed (at [16]) the test is reasonably strict and particular sensitivity may need to be shown in some cases. I would be prepared to accept that cases in which a litigant is self-represented will usually fall into that category. But that is not to suggest self-represented litigants should be entitled to rely upon unreasonable or ill-considered apprehensions or those founded upon the lack of even a rudimentary understanding of basic legal processes.
[47] Heedes v The Legal Practice Board [2005] WASCA 166 [19] ‑ [20].
The appellant relies on an alleged 'history of discontent/animus and appeal' between himself and Magistrate Lawrence. The assertions in his affidavit purporting to attribute to the magistrate conduct demonstrating bias or giving rise to a reasonable apprehension of bias towards the appellant are not supported by any independent materials, such as transcript. I am not prepared to rely on the appellant's unsubstantiated assertions about matters that go to the integrity of the judicial officer and the proceedings. The appellant annexed a District Court appeal notice (dated 25 December 2012) against a decision of Magistrate Lawrence in a civil matter which included a ground alleging bias.[48] This supposedly provided support for his claim of bias either by virtue of the fact the appeal notice contained the bias ground or because the fact of the appeal would mean that, in any future matter involving the appellant, Magistrate Lawrence could not preside without there being a reasonable apprehension of bias. Neither proposition has substance. The appellant has not provided any evidence about the outcome of the appeal or even whether it proceeded.
[48] Affidavit of Arturo Fazio dated 13 November 2015, Annexure ASF7.

While a fair-minded and informed observer would be aware of any history between the litigant and the judicial officer, there is no sound foundation for attributing awareness of that kind to the observer in this case, given the inadequacy of the materials relied on by the appellant.
The claim of reasonable apprehension of bias must be assessed, therefore, by reference to what happened on 19 September 2013.
As the proceedings before Magistrate Lawrence were brief, it is convenient to set out the transcript. After the matter was called on, the following exchange took place:[49]
[49] Fremantle Magistrates Court ts 2 ‑ 3 (19 September 2013).
PROSECUTOR: I would be asking for a mention only date in relation to this matter, sir, that's four weeks for the notice to attend for Mr Fazio.
HIS HONOUR: There's a letter saying he is unwell, is it not?
PROSECUTOR: The concern is, sir, Mr Fazio is - this matter has been stretching on since about 2010. It has had multiple appearances and a prior trial because the nature of Mr Fazio's issues with speed measuring devices on the last - on the trial occasion, the prosecution attended with four expert witnesses, including an expert on video at the time from New South Wales. Mr Fazio did not attend on that date. There has also been previous orders for reverse disclosure on Mr Fazio which haven't been provided to the case officer. The concern is, sir, that if -
HIS HONOUR: Sorry, disclosure from Mr Fazio?
PROSECUTOR: Yes, sir, it was ordered by Ms Langdon on a previous occasion.
HIS HONOUR: But he has been served with this notice, hasn't he?
PROSECUTOR: Yes, sir.
HIS HONOUR: Are you sure he has got it, the notice, service? He is obviously aware of it.
PROSECUTOR: Yes, sir, but it ‑
HIS HONOUR: I will just make it to be dealt with in his absence.
PROSECUTOR: Well, our concern is, sir, if we did deal with it in his absence with the letter and the medical he has provided before that he would - he may have -
HIS HONOUR: It's not the medical. The medical document is dated June. It's nothing to substantiate him feeling unwell.
PROSECUTOR: In that case, sir, I would seek to proceed under section 55.
The appellant argues that the magistrate's approach from the start revealed a mindset against adjourning the hearing, and, combined with the fact that it was the magistrate who suggested proceeding in the appellant's absence, the circumstances give rise to a perception of bias.
What emerges from the transcript, in my view, is that although the prosecutor initially asked for an adjournment on the basis that the appellant had claimed to be unwell and had provided a medical document, it was on the understanding that the medical document would provide a basis for setting any conviction aside if the court proceeded in the appellant's absence under s 55 of the Criminal Procedure Act. However, he expressed concern about the delay in the proceedings due to the appellant's failure to attend when the matter was previously listed for trial, and he pointed out that the appellant had failed to comply with an order for disclosure by him. The context of that was obvious, in my view, in that the prosecutor had referred to the appellant's 'issues with speed measuring equipment' as an explanation for the protracted history.
In those circumstances, the magistrate was entitled to consider the cogency of the material on which the adjournment was sought. He took the view, correctly in my opinion, that the medical document, which was dated June 2013, did not provide any support for the appellant's claim that he was unwell. It seems the prosecutor may not have given attention to the date on the document, but, in any event, once it was pointed out to him that the document did not support the claim that the appellant was feeling unwell at the time of the hearing, the prosecutor applied to proceed under s 55.
While the magistrate, in effect, queried the appropriateness of an adjournment and raised the possibility of dealing with the charge in the appellant's absence, there is nothing in the exchange, in my opinion, to suggest that his Honour was acting on any preconceived view about the appellant or that he had prejudged the matter. It was after the prosecutor had informed him of the history of the matter, including the appellant's failure to comply with a disclosure order, that his Honour indicated he would deal with the charge in the appellant's absence. It is also apparent that he did not consider there was any support for the appellant's claim that he was unfit to attend court.
Section 55 of the Criminal Procedure Act provides, relevantly:
55.No appearance by accused and no plea of guilty
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may ‑
(a)adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
[(3)deleted]
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court ‑
(a)must presume, in the absence of evidence to the contrary ‑
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused ‑
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
'Court date' is defined in s 18 to mean the first court date for a prosecution notice, the new court date when a charge has been adjourned or any other date set by a court as a date when it will deal with the charge.
Section 55 empowers the court to deal with a charge in the accused's absence in the manner set out in subsections (4) and (5) if the court is satisfied that the accused has been served with the relevant notices. It does not require an application to be made by the prosecutor.
In the present case, in light of the history that had been explained by the prosecutor, the fact that the magistrate indicated he would deal with the matter in the appellant's absence, before the prosecutor made the application to do so, does not give rise to a reasonable perception of bias. As I discuss below, in addition to considering the appellant's rights, his Honour had an obligation to take into account the public interest in the expeditious resolution of criminal proceedings and the efficient use of court resources. It is apparent that his Honour had regard to the appellant's rights, wanting to be assured by the prosecutor that the appellant had been served with the relevant notice.
The appellant has failed to demonstrate, applying the test to which I referred above, that the circumstances gave rise to a reasonable perception of bias. The ground alleging that the magistrate erred in not disqualifying himself from hearing the matter has no reasonable chance of success. If an extension of time in which to appeal were otherwise appropriate, I would refuse leave to appeal on this ground.

(b) Whether the magistrate erred in refusing the adjournment on 19 September 2013

The next aspect of the appeal is, in effect, an allegation that the magistrate erred in law when he refused to adjourn the hearing on 19 September 2013. The effect of the appellant's letter faxed to the court that day was that he sought an adjournment. The prosecutor had also indicated at the outset that an adjournment was being sought to a mention date. The reason for that, namely the appellant's claim to be unfit to attend court, became apparent later in his exchange with the magistrate. While he did not in terms refuse the appellant's application for an adjournment and did not provide reasons specifically addressing that application, the course adopted by the magistrate amounted to a refusal of the application and his reason for proceeding in the appellant's absence explained at the same time the refusal of the adjournment. It is evident that his Honour was not satisfied the appellant was unfit to attend court, noting that the medical document did not substantiate the appellant's assertion that he was feeling unwell.
Whether an adjournment should be granted is a matter for the discretion of the presiding judicial officer. An appellate court will not interfere with the exercise of that discretion, unless it can be shown that an error has been made.[50]
[50] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ); Rendell v Douglas [2015] WASC 36 [23].
Error in the exercise of discretion may be shown by establishing that the judicial officer acted on a wrong principle, took into account an irrelevant consideration or failed to take into account a relevant consideration. Error may also be shown where, although there is no express error, the result is so plainly unjust that it can be inferred that an error in the exercise of discretion must have occurred.
An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that there was a miscarriage of justice.[51] In determining whether such an injustice occurred, the court will often focus on whether the appellant had a realistic prospect of securing an acquittal if the appellant had an opportunity to present his case.[52]
[51] Myers v Myers [1969] WAR 19, 21.
[52] Rendell v Douglas [2015] WASC 36 [28] ‑ [29]; Pallett v Paul [2007] WASC 290 [54]; Leary v The Queen [1975] WAR 133, 137 (Jackson CJ; Jones J agreeing generally).
Further, although the general principle is that an accused person must be given full opportunity to present his or her defence,[53] it is necessary to have regard to the particular circumstances of the case under consideration, including the nature of the charge and the procedural history, when determining whether a refusal of an adjournment has resulted in a miscarriage of justice. A magistrate exercising the discretion to grant or refuse an adjournment must also take into account the public interest in the orderly and expeditious disposition of cases in busy courts.[54] As Jenkins J stated in Rendell v Douglas:[55]
There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account.
[53] Leary v The Queen [1975] WAR 133, 138 (Lavan J).
[54] Rendell v Douglas [2015] WASC 36 [31].
[55] Rendell v Douglas [2015] WASC 36 [31].
Her Honour went on to note that those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success.[56] However, at the stage of considering whether the magistrate erred in law in refusing an adjournment, the need to take into account the public interest in the timely disposition of criminal matters and the efficient use of court resources in the summary jurisdiction are particularly relevant, especially where specific provision is made for the expeditious resolution of charges when an accused fails to appear.
[56] Rendell v Douglas [2015] WASC 36 [31], citing The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [37].
As I noted above, s 55 empowers the court to deal with a charge in the absence of an accused if it is satisfied the accused has been served with the relevant notices and he fails to attend court. In this case, apart from the assurance given by the prosecutor, the appellant's letter faxed to the Magistrates Court confirmed he had been served, as he was aware of the hearing date. The appellant has not suggested otherwise on appeal. The notice notified the appellant that the court may deal with the charge in his absence if he did not appear on the hearing date. The appellant was aware of the potential consequences, in any event, because of the previous conviction entered in his absence, which he had set aside.
I have set out in the previous section the exchange that took place between the magistrate and the prosecutor. As I noted earlier, the magistrate was entitled to consider the cogency of the material on which the adjournment was sought. His Honour was required to consider the application to adjourn against the public policy considerations I have referred to.
The basis of the adjournment was the appellant's bald statement in his letter faxed to the court that he was 'physically unwell' and unable to attend court 'due to physical and mental illness issues'.[57] He did not identify any specific ailment or disability that would prevent him from attending court. The letter does not refer to angina attacks or anxiety or an injury to his leg. In my opinion, it was open to the magistrate to regard the contents of the letter as an inadequate basis on which to accept that the appellant was unfit to attend court. The medical document from June 2013 concerning his mental health could provide no basis for concluding that the appellant was incapacitated from attending court on 19 September 2013. I note that the appellant appears to have accepted that to be the case when he subsequently appeared before Magistrate Malley on the s 71 application.[58] The contents of his letter suggest that any mental illness he was suffering was not of a kind as to affect his capacity to understand the charge or the nature of the proceedings.
[57] See [58] above.
[58] Fremantle Magistrates Court ts 3 (11 February 2014) where the following exchange took place:
In light of the history that had been outlined by the prosecutor, the magistrate was entitled to take the view that, in the absence of cogent evidence that the appellant was unfit to attend court, the matter should not be delayed further. The prosecutor's initial request that the matter be adjourned to a mention date appears to have been based on a misapprehension about the effect of the 'medical document' the appellant had forwarded to the court. Once it was pointed out by the magistrate that it did not substantiate the appellant's claim of unfitness on the date of the hearing, the prosecutor said that 'in that case' he would seek to proceed under s 55.
The appellant has not demonstrated that the magistrate acted on a wrong principle. He has not identified any express error of that kind. Under s 55(2) the magistrate was required to either adjourn the proceedings (s 55(2)(a)) or hear and determine the charge in the appellant's absence (s 55(2)(b)), provided he was satisfied the appellant had been served with the relevant notices. While it would have been preferable for his Honour to articulate with greater clarity the basis for choosing to proceed under s 55(2)(b) rather than s 55(2)(a), it is sufficiently clear that he did not consider the appellant had provided a good reason for failing to attend. When s 55 is considered in combination with s 71(2)(c),[59] it is apparent that whether the accused has a good reason for not attending is a relevant consideration to the choice between proceeding pursuant to s 55(2)(a) and proceeding pursuant to s 55(2)(b).
[59] See [19] and [114] above.
For the reasons I have already given, the appellant has not demonstrated that the magistrate took into account an irrelevant consideration or failed to take into account a relevant consideration. It is obvious he took the appellant's letter into account, but did not consider it was a sufficient basis for concluding the appellant was medically unfit to attend court.
The question remains whether, putting aside any evidence on the appeal that was not before the magistrate, it was plainly unjust of the magistrate to proceed under s 55(2)(b).
The circumstances of this case can be distinguished from Rendell v Douglas.[60] That was another case in which a magistrate proceeded to hear and determine a charge under s 55 in the accused's absence after receiving correspondence informing the court that the accused was physically incapacitated and unable to attend court. However, in that case the accused had been injured in a motor vehicle accident and was in hospital awaiting surgery. The email correspondence was sent to the court by his wife, who sought an adjournment on behalf of her husband. On the day the charge was to be heard, the magistrate had enquiries made to ascertain whether the accused was in the hospital specified in the email. On ascertaining that he was not, having been discharged the day before the hearing, the magistrate proceeded to conviction under s 55 on the basis that she was not satisfied the accused could not attend court. In fact she concluded that the information in the email was false insofar as it stated that the accused was due to have surgery. However, the accused had been moved to a different hospital and did have surgery on a broken leg in the other hospital. On appeal, evidence was adduced to establish those facts. The appeal was conceded by the respondent in that case on the basis that the magistrate erred in fact in finding that the contents of the email were false. Further, Jenkins J held that an error of law could be inferred because the refusal to allow the adjournment was plainly unjust. Again, it appears this was conceded by the respondent.
[60] Rendell v Douglas [2015] WASC 36.
The factors that led to the conclusion that the magistrate's decision was plainly unjust in Rendell v Douglas were that (1) there was material before the magistrate that suggested the appellant had recently suffered a significant accident, which required admission to hospital and surgery; (2) the enquiries made by the magistrate confirmed the appellant's basis for applying for an adjournment, namely that he had been recently admitted to hospital, albeit apparently discharged the day prior to the hearing; (3) the offence was not serious and it was the first hearing date for the charge; (4) no inquiry had been made of the prosecutor to see if the police opposed an adjournment or if they claimed any prejudice would arise from an adjournment; (5) the appellant wished to contest the charge (which was for contravening a red traffic control arrow) and, accordingly, there was serious prejudice to be suffered by him if the adjournment was refused; and (6) a miscarriage of justice occurred because the appellant was unreasonably denied the right to defend the charge.[61]
[61] Rendell v Douglas [2015] WASC 36 [1], [33].
I do not understand from the reasons of Jenkins J in Rendell v Douglas that any one of the factors identified would have been sufficient to establish that the decision was plainly unjust. Rather, it was the combination of factors, although a combination of some of the factors may have sufficed.
In the present case, the appellant did not identify in his letter to the court any incident (such as the significant accident in Rendell v Douglas) or specific ailment (such as an injury from the accident in that case) to support a conclusion that he was incapacitated from attending court. There was no corroboration of the appellant's claim that he was unwell, unlike the confirmation obtained in Rendell v Douglas that the appellant had been in hospital. The listing in the present case was the second hearing date for the charge, the appellant having failed to appear at the first hearing date and subsequently having had the conviction entered in his absence on that occasion set aside. While the prosecutor was not asked if there would be prejudice to the prosecution in the present case, he identified the protracted history and the appellant's failure to comply with a disclosure requirement.

As in Rendell v Douglas, the offence with which the appellant was charged was not a serious offence. In that case, it appears to have been regarded as a factor which, in combination with the fact that it was a first hearing date, weighed in favour of granting an adjournment. However, it might be thought that the greater the seriousness of the offence the greater the potential for injustice if an accused is denied the opportunity to present his defence. In the present case substantial resources had been expended already in proceedings for a speeding offence in which the appellant's defence was based on a technical challenge to the accuracy of the measuring equipment and he had failed to comply with a disclosure requirement in that regard.
In my opinion, although the appellant continued to indicate his desire to contest the charge, it was not unreasonable to deny him the right to defend the matter at an adjourned hearing, having regard to the history of the matter and his failure to provide an adequate explanation for failing to attend the hearing.
I am not satisfied therefore that the magistrate's refusal of the application for an adjournment was plainly unjust.
If an extension of time in which to appeal were otherwise appropriate, I would have been inclined to grant leave on this ground because in my opinion the circumstances in which the magistrate came to refuse the adjournment warranted consideration of the merits of the ground. However, the appellant has not demonstrated that the magistrate erred in the exercise of his discretion, and the ground provides no foundation for finding that a miscarriage of justice would result if an extension of time is not granted.

(c) Whether the evidence produced by the appellant on appeal establishes that he was incapable of attending court on 19 September 2013

The appellant submits, in effect, that if he is not granted an extension of time a miscarriage of justice will result because he was in fact physically and mentally incapable of attending court on 19 September 2013, even if the material before Magistrate Lawrence was insufficient to establish his incapacity. I have set out in some detail earlier in these reasons, at [50] to [62], the evidence relied on by the appellant on the appeal in support of that contention. In doing so, I analysed the cogency of the evidence, noting that it would be relevant to the consideration of whether there has been a miscarriage of justice. I identified a number of shortcomings in the appellant's affidavit and in Dr Roberts' letter of 11 November 2015.
There is an inconsistency between the appellant's evidence and Dr Roberts' letter. The appellant claims that he was debilitated by having suffered three angina attacks during the night. Dr Roberts makes no reference to angina attacks. As I pointed out earlier, one would have expected Dr Roberts to make particular mention of them if they had occurred and he was of the opinion that they debilitated the appellant.
The appellant has not produced any medical certificate or other independent confirmation of his condition proximate to 19 September 2013. He has given no explanation for the lack of such material or why he did not seek medical attention, if that is the case. He was clearly aware of the need to persuade the court that he was medically unfit.
In any event, for the reasons I gave when setting out and analysing the evidence earlier, I am of the opinion that it lacks sufficient cogency to establish that the appellant was in fact physically or mentally incapable of attending court on 19 September 2013. Consequently, the appellant has not established on that basis that a miscarriage of justice will result if he is not granted an extension of time in which to appeal.

(d) Whether the prosecution failed to comply with its disclosure obligation, resulting in a miscarriage of justice

The appellant's proposed ground 4 contends, relevantly, that Magistrate Lawrence erred in law in proceeding with the hearing at all, in circumstances in which the prosecution had not provided the appellant with 'full disclosure' of documents and witnesses' statements prior to the trial. It contends that the prosecution had been ordered to provide such disclosure, and that its failure to do so resulted in an unfair trial and a denial of natural justice to the appellant.
The only evidence that such an order was made and that the prosecution did not comply is the appellant's assertion in his affidavit. As I noted in dealing with his affidavit at [64] above, there is no evidence on the appeal of the content of the order. In any event, the clear implication from his affidavit is not that the prosecution had failed to provide disclosure, but that he had been unable to collect the disclosed materials from the Fremantle Police Station after he had prevented personal service at his home by withdrawing the prosecutor's common law right to come onto his property, to adopt his terminology. Whether or not the appellant's account about those matters is reliable, his affidavit does not support the contention that the prosecution had failed in its disclosure obligation and that, consequently, he was denied natural justice by the magistrate proceeding to conviction under s 55.
I note also that, although the appellant said in his letter to the court on 19 September 2013 that 'next to no documentation appears on file', the meaning of which is uncertain, he did not raise an objection to the hearing proceeding on the basis that the prosecution had failed to comply with a disclosure order. That was not a basis on which he sought an adjournment.
In any event, disclosure is not a precondition to conviction under s 55 of the Criminal Procedure Act when an accused fails to appear. The statutory scheme for the prosecution of summary matters and its practical operation were explained in detail by Martin CJ in Stewart v City of Belmont.[62] The requirements of procedural fairness are met for the purposes of s 55 by service of the notices specified in s 55(2) and the court being satisfied of such service. The appellant's contention that a failure of the prosecution to provide full disclosure has meant that he was denied natural justice is misconceived. As Beech J explained in Saad v Baron, when a magistrate opts to hear and determine a charge in the accused's absence under s 55(2)(b):[63]
… the guilt of the accused is decided in a radically different legal framework than generally applies in a criminal case. Rather than the prosecution being required to lead evidence to prove the offence beyond reasonable doubt, the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. Secondly, the accused is denied the opportunity to contest the prosecution evidence or make submissions on the evidence.
[62] Stewart v City of Belmont [2013] WASC 366; See also Stewart v City of Belmont [2016] WASCA 5 [63] ‑ [73] (Hall J; Buss & Newnes JJA agreeing).
[63] Saad v Baron [2012] WASC 507 [58].
Even if the prosecution had not complied with a disclosure order, the magistrate did not err in law by proceeding to conviction under s 55, as the procedural requirements for that course of action were satisfied. For the same reasons, no miscarriage of justice has resulted.
I would not grant leave on this ground as it has no reasonable prospects of success.

(e) Whether the appellant has established that he has an arguable defence to the charge

As I noted when dealing with the appellant's affidavit, he does not depose to any facts within his personal knowledge about the incident the subject of the charge. In particular, he does not state at what speed he was driving at the relevant time. Given the nature of the defence he has raised, it would appear he does not deny he was the driver of the vehicle. His defence, as explained in his affidavit and submissions, is to the effect that the prosecution cannot prove that he was travelling at a speed in excess of the speed limit because the speed measuring equipment (referred to in the stated facts as LT122 laser speed measuring equipment) was not compliant with s 10 of the National Measurement Act 1960 (Cth) (NMA).
Section 10 of the NMA provides:
When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal units of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from
(a)an appropriate Australian primary standard of measurement;
(b)an appropriate Australian secondary standard of measurement;
(c)an appropriate State primary standard of measurement;
(d)an appropriate recognized‑value standard of measurement;
(e)an appropriate reference standard of measurement;
(f)2 or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e);
(g)an Australian certified reference material;
(h)a certified measuring instrument;
(i)one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and an Australian certified reference material;
(j)one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e) and a certified measuring instrument; or
(k)one or more standards of measurement, each of which is a standard of measurement referred to in paragraph (a), (b), (c), (d) or (e), an Australian certified reference material and a certified measuring instrument;
and not in any other manner.
As the respondent notes in his submissions, the appellant's contention appears to be that the speed measured by the speed measuring equipment in this case was unreliable because the measurement of the speed has not been ascertained in accordance with one of the prescribed methods under s 10 of the NMA.
The operation of s 10 of the NMA generally and in the context of speeding offences under the Road Traffic Code has been considered in a number of cases in this jurisdiction and other jurisdictions.[64] Those authorities establish the following propositions:
1.It is not the case that whenever a physical quantity is measured, the measurement must be made in accordance with s 10 of the NMA.
2.It is only when it becomes 'necessary' to ascertain whether a legal unit has been used, that resort must be had to s 10.
3.It is only necessary to ascertain whether a measurement of a physical quantity has been made in terms of the relevant Australian legal units of measurement when a reading is challenged by virtue of a challenge to the accuracy of the instrument to measure in accordance with the Australian measure.[65]
4.Where statutory presumptions as to measurement are enacted, there is nothing in s 10 which suggests that a statutory presumption may only be given effect if, simultaneously, it can be demonstrated that the measurement has been made in one of the ways set out in that section.[66]
[64] Radalj v Taylor (1997) 98 A Crim R 170; Rumsley v Taylor (1997) 142 FLR 312; Bond v Mastrangelo [2013] WASC 400; Re Appeal of White (1987) 9 NSWLR 427; Pearce v Dennis [1998] 1 Qd R 431; Macdonald v County Court of Victoria [2013] VSC 109.
[65] Re Appeal of White (1987) 9 NSWLR 427, 430.
[66] Rumsley v Taylor (1997) 142 FLR 312, 316 ‑ 317.
The operation of the section in the context of prosecutions under the Road Traffic Code is affected by the evidentiary presumption in s 98A(3) of the Road Traffic Act 1974 (WA).
At the time of the proceedings in the Magistrates Court in this case, s 98A(3) of the Road Traffic Act provided that:
In any proceeding for an offence against this or any other Act or the regulations evidence may be given of the use of speed measuring equipment by an authorised person in relation to a vehicle and of the speed at which that vehicle was moving as ascertained by the use of that equipment, and that evidence is prima facie evidence of the speed at which the vehicle was moving at the time of the use of that equipment in relation to that vehicle.
The provisions of the Road Traffic Code are regulations made under the Road Traffic Act,[67] and the offence with which the appellant was charged was an offence against those regulations. Therefore, the statutory presumption in s 98A(3) applies in this case and, if the matter were to proceed to trial, the appellant would have an evidential burden of displacing or rebutting that presumption, namely that the speed at which his vehicle was moving at the time the speed measuring equipment was used by the police in relation to his vehicle was the speed ascertained by that equipment. In the absence of any evidence which cast doubt upon, or raised any issue concerning, the accuracy of the prima facie evidence to be produced pursuant to s 98A of the Road Traffic Act, it would not be 'necessary' to determine whether the measurement made by the speed measuring equipment was made by any of the methods or by reference to any of the methods set out in s 10 of the NMA. The presumption contained in s 98A of the Road Traffic Act would not be displaced.[68]
[67] Road Traffic Code 2000 (WA) r 1.
[68] Davis v Armstrong (1993) 17 MVR 190, 192.
Even if it is accepted that the speed measuring equipment was not calibrated in accordance with s 10 of the NMA, that would not mean the equipment was defective or not operating properly.[69]
[69] Bond v Mastrangelo [2013] WASC 400 [26]; See also Macdonald v County Court of Victoria [2013] VSC 109; Pearce v Dennis [1998] 1 Qd R 431.
There is no evidence before this court to suggest that the speed recorded by the speed measuring equipment used by the WA Police in this case was inaccurate. Earlier in these reasons I outlined the contents of the appellant's affidavit which purport to provide a factual foundation for this ground.[70] The exchange with Dr Brittain discloses that all Dr Brittain could say is that neither of the items of equipment the appellant was enquiring about was a certified measuring instrument for the purposes of s 10 of the NMA. However, as I noted earlier, Dr Brittain pointed out to the appellant that he did not believe a failure to comply with s 10 would vitiate measurements made by the equipment.
[70] See [67] ‑ [69] above.
In short, non-compliance of the speed measuring equipment with s 10 of the NMA will not provide the appellant with a defence to the charge of driving a vehicle in excess of 50 kilometres per hour in a built‑up area, contrary to r 11(2) of the Road Traffic Code. The appellant has not identified any other evidence that could displace the presumption under s 98A(3) of the Road Traffic Act upon which the prosecution would rely.
The ground that there has been a miscarriage of justice because the appellant has an arguable defence to the charge which he has been prevented from presenting is not reasonably arguable. I would refuse leave on that ground.

Conclusions

Insofar as the appeal continues to be against the decision of Magistrate Malley, it is dismissed as being incompetent.
Insofar as the appeal is to be taken to be against the decision of Magistrate Lawrence, the appellant has failed to show that there are exceptional circumstances to warrant leave to appeal out of time. Additionally, having considered the merits of the appellant's grounds of appeal on the material presented in these proceedings, I am not satisfied that the appellant has suffered a miscarriage of justice.
Accordingly, the application for an extension of time is refused and the appeal is dismissed.

ACCUSED: There's - on the day of September, under sufferance, with assistance, I faxed a letter which had the medical certificate from Fremantle Mental Health Services, dated 11 June. You have that - ASF4, annexure ASF4 of the -
MAGISTRATE MALLEY: Yes. But that -
ACCUSED: -- my affidavit 19 September.
MAGISTRATE MALLEY: That doesn't say you weren't fit on 19 September.
ACCUSED: No. No, your Honour. No. No. On the - your Honour, on the day - I've deposed in my affidavit what happened the night before …