Gransch v Walker - [2014] WASC 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GRANSCH -v- WALKER [2014] WASC 178

CORAM: BEECH J

HEARD: 15 MAY 2014

DELIVERED : 26 MAY 2014

FILE NO/S: SJA 1083 of 2013

BETWEEN: SEAN DAVID GRANSCH
Appellant
AND
DEAN ANTHONY WALKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE B A LANE
File No  :PE 49339 of 2011

Catchwords:

Criminal law and procedure - Appellant convicted of entering security area contrary to Commonwealth Heads of Government Meeting (Special Powers) Act 2011 (WA), s 63 - Whether any error by magistrate

Legislation:

Commonwealth Heads of Government Meeting (Special Powers) Act 2011 (WA), s 42, s 43, s 63

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J A Davies
Respondent: Mr R M Mitchell SC & Mr P D Lochore

Solicitors:

Appellant: Shine Lawyers
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney‑General (NSW) v Brewery Employees Union (NSW) (1908) 6 CLR 469
ICM Agriculture v Commonwealth (2009) 240 CLR 140
Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94; (2013) 45 WAR 131
BEECH J:

Introduction

The appellant appeals against his conviction of one charge of unauthorised entry to a CHOGM security area, contrary to s 63 of the Commonwealth Heads of Government Meeting (Special Powers) Act 2011 (WA). Section 63 of the Act provides that:
63.Unauthorised entry to CHOGM security area
A person must not enter or remain in a CHOGM security area unless the person -
(a)has the consent of the organiser of the CHOGM event being held or to be held in the area; or
(b)has a special justification to enter or remain in the area; or
(c)is otherwise authorised to enter or remain in the area.
Penalty: imprisonment for 12 months.
For the reasons that follow, I would dismiss the application for leave to appeal, and the appeal.
It is convenient to begin by outlining the circumstances by reference to the reasons of the learned magistrate. Subject to one qualification, the factual findings of the magistrate are not challenged in this appeal.

The findings and the reasons of the magistrate

Her Honour began by outlining the basic and undisputed facts, as follows:
On 23 October 2012, Deputy Commissioner Dawson placed Mr Sean Gransch on the Excluded Persons List pursuant to section 42 of the Commonwealth Heads of Government Meeting (Special Powers) Act 2011. On 24 October 2012 Mr Gransch was personally served with the letter informing him that he had been named in an excluded persons list and that he was excluded from all CHOGM security areas. Mr Gransch was at work in the Supreme Court gardens when he was served with the exclusion letter. At 12.35 pm Mr Gransch walked from the Supreme Court gardens, north along Barrack Street until he reached the Murray Street Mall. He then entered the mall and walked in Woolworths where he purchased a packet of cigarettes.
On 24 October 2011 the section of Barrack Street between Riverside Drive and Hay Street had been declared part of the Motorcade Route Core Security Area. After purchasing the cigarettes, Mr Gransch walked in a southerly direction on Barrack Street and entered the CHOGM security area in Hay Street. He had previously exited that area on his walk to purchase the cigarettes at Woolworths.[1]
[1] Reasons [1] ‑ [2].
The magistrate found, and it is common cause, that in a prosecution under s 63 of the Act, the prosecution has the burden of proof that the accused entered a CHOGM security area.
The other element of the offence is that none of the circumstances referred to in s 63(a) ‑ (c) prevailed at the time. Her Honour found, correctly, that those paragraphs create exceptions in respect of the offence for the purposes of s 78(3) of the Criminal Procedure Act 2004 (WA). Thus, s 78(3) of the Criminal Procedure Act applies, providing that the exceptions are taken not to apply unless the accused proves on the balance of probabilities that an exception applied. That is common cause in this appeal.[2]
[2] Reasons [7] ‑ [13]; appellant's submissions [10] ‑ [11].
Her Honour made the following unchallenged findings:
(a)on 23 October 2011 Deputy Commissioner Dawson placed on the excluded persons list under s 42 of the Act the name Sean David Gransch, date of birth 22 September 1974, address 35 Federation Street Mt Hawthorn;[3]
(b)about the same time, Deputy Commissioner Dawson signed a letter[4] to Mr Sean Gransch of 35 Federation Street, Mt Hawthorn. That letter advised Mr Gransch that he had been named in an excluded persons list and that:
As a consequence, you are excluded from all CHOGM security areas established under the Act for the duration of the CHOGM period from 20 October 2011 until 4 November 2011 inclusive.
The letter attached a map of the CHOGM security areas, including the Motorcade Route Core Security Area, with the advice that 'it is your responsibility to avoid entering these areas'.
(c)That letter was hand delivered and read aloud to the appellant by Constable Walker at the Supreme Court Gardens.[5] This was recorded on the appellant's mobile phone, the relevant extract of which was played at the trial.[6]
[3] Reasons [15], exhibits P17, P18.
[4] Exhibit P1.
[5] Reasons [17], [35], [37].
[6] Exhibit P7.
The magistrate found, and it is not challenged in the appeal, that on 24 October 2011:
(1)Barrack Street between Riverside Drive and Hay Street was part of a CHOGM security area, referred to as the Motorcade Route Core Security Area; and
(2)the appellant walked from the Supreme Court Gardens along Barrack Street, and thus within the security area, until he turned left at Barrack Street onto the Murray Street Mall.[7]
[7] Reasons [25] ‑ [29].
Her Honour considered the question of whether the appellant was the same person that the Deputy Commissioner Dawson had named on the excluded persons list. Her Honour explained that leading up to CHOGM Detective Hawkes had compiled a report on Mr Gransch. Her Honour observed that 'the accuracy of the information [which Detective Hawkes used in compiling his report] is not the issue. The identity of the person named in the excluded persons list is the issue and whether it was Sean David Gransch as charged'.[8]
[8] Reasons [33].
Her Honour found that the appellant was a person named on the excluded persons list.[9]
[9] Reasons [35].
Her Honour then made observations about the significance, or otherwise, of the accused being named on the excluded persons list.[10] I will set those out later in these reasons.
[10] Reasons [37] ‑ [40].
Her Honour considered whether the appellant had satisfied her that any of the exceptions in s 63(a), (b) or (c) had applied. She found that there was no evidence that the appellant had the consent of the organiser of the relevant event. Her Honour considered the possible application of s 72(2)(d), the terms of which I will set out later in these reasons. Her Honour found that that section had no application. That finding is not challenged.
Her Honour found that pursuant to s 63(c) there was no evidence that the appellant was otherwise authorised to enter or remain in the area observing that, in fact, because of the exclusion notice, the appellant was not 'authorised' to remain in any CHOGM security areas.[11]
[11] Reasons [46].
Consequently, her Honour concluded that the prosecution had satisfied her beyond reasonable doubt of the necessary element of the offence, and the appellant had not discharged his onus to prove that he had the consent of the organiser, a special justification or was otherwise authorised. Accordingly, her Honour was satisfied of the guilt of the appellant.

Statutory scheme

For reasons which will emerge, in my opinion a proper understanding of the scheme of the Act, the elements of the office created by s 63 and the consequences of a person being on an excluded persons list is fundamental to the determination of this appeal. In essence, in my view the appellant's grounds of appeal are founded on a mistaken view of the significance, in the context of a prosecution under s 63, of being on an excluded persons list.
Section 4 identifies the purpose of the Act. It is in the following terms:
(1)The purpose of this Act is to promote the security and safety of people attending the Commonwealth Heads of Government Meeting in Perth in 2011 and associated meetings, events, functions and activities by giving police officers, certain other persons and the Corruption and Crime Commission special powers with respect to CHOGM (Perth).
(2)The purpose referred to in subsection (1) includes (without limitation) -
(a)promoting the security and safety of the venues and facilities used for CHOGM (Perth); and
(b)promoting the security and safety of the accommodation for people attending CHOGM (Perth).
As it can be seen, the purpose of the Act is to promote the security and safety of persons attending the Commonwealth Heads of Government Meeting in Perth in 2011 and associated events. That purpose is to be achieved by giving police officers, certain other persons and the Corruption and Crime Commission special powers with respect to CHOGM (Perth).
The relevant provisions of the Act came into operation on 8 October 2011 and expired on 5 November 2011.[12]
[12] See s 2, proclamation in Government Gazette 7 October 2011 (page 4067), s 96.
CHOGM (Perth) is defined to mean the CHOGM meeting to be held during the CHOGM period. The CHOGM period was prescribed to be the period beginning on 20 October 2011 and ending on 4 November 2011.[13]
[13] Commonwealth Heads of Government Meeting (Special Powers) Regulations 2011 (WA), reg 4.
Part 2 of the Act deals with the establishment of CHOGM security areas. CHOGM security areas include core security areas prescribed under s 6 and s 7 of the Act. Other regulations identified various areas in the central business district of Perth, and a small number of other areas, as core security areas.
Part 3 of the Act conferred special powers in relation to CHOGM security areas. Section 19 of the Act provided that those powers could only be exercised during the CHOGM period in or in relation to a CHOGM security area.
Part 3 conferred a number of powers on police officers and authorised persons. It is not necessary to outline them in detail. Powers included stop and search powers, powers to require surrender and to seize prohibited items, powers to give directions, powers of road closures, powers to remove vehicles, vessels and things, and, in div 7, constituted by s 42 and s 43, powers to refuse entry to and remove people from the security areas.
Sections 42 and 43 were in the following terms:
Excluded persons list
(1)The Commissioner may compile one or more lists of persons (an excluded persons list) who the Commissioner is satisfied are persons who would pose serious threats to the safety of persons or property (or both) in a CHOGM security area during the CHOGM period.
(2)The Commissioner must take reasonable steps to contact a person in order to notify the person that the person is named in an excluded persons list.
(3)The Commissioner may (but need not) cause an excluded persons list to be published by whatever means the Commissioner considers appropriate.
(4)Without limiting subsection (3), an excluded persons list may be published -
(a)in the Gazette; or
(b)in any newspaper published in the State (whether or not circulating generally throughout the State); or
(c)on a website.
(5)A failure by the Commissioner to notify a person that the person is named in an excluded persons list, or to notify the public of the contents of an excluded persons list, does not affect the validity of the list or otherwise limit any powers conferred by this Act in relation to persons named in the list.
Exclusion of persons from CHOGM security areas
(1)The following persons (excludable persons) may be excluded from any CHOGM security area during the CHOGM period (or any part of that period) -
(a)any person who, without lawful excuse, fails to comply with a requirement made of the person under section 22 for the person to disclose the person's personal details, or provide proof of the person's personal details, as a condition of entry into a CHOGM security area or when the person is in a CHOGM security area;
(b)any person who, when required under section 23 by a police officer or an authorised person to state the person's reason for wanting to enter, or for being in, a CHOGM security area, fails to satisfy the police officer or authorised person that the person has a good and lawful reason to enter or be in the CHOGM security area or a particular part of the CHOGM security area;
(c)any person who, without lawful excuse, fails to comply with a requirement made of the person under section 24 for the person to submit to a search as a condition of entry into a CHOGM security area or when the person is in a CHOGM security area;
(d)any person who, without lawful excuse, fails to comply with a requirement made of the person under section 27 for the person to do one or more of the things listed in section 27 (3) as a condition of entry into a CHOGM security area or when the person is in a CHOGM security area;
(e)any person in or on a vehicle or vessel seeking to enter a CHOGM security area in circumstances where the person in charge of the vehicle or vessel fails, without lawful excuse, to comply with a requirement made of the person under section 28 to submit the vehicle or vessel to a search as a condition of entry into the area;
(f)any person in or on a vehicle or vessel that is in a CHOGM security area in circumstances where the person in charge of the vehicle or vessel fails, without lawful excuse, to comply with a requirement made of the person under section 28 to submit the vehicle or vessel to a search;
(g)any person who, without lawful excuse, resists, hinders or obstructs a police officer or an authorised person conducting a search under this Part in a CHOGM security area;
(h)any person who, without special justification, fails to surrender a prohibited item to a police officer or an authorised person as a condition of entry into a CHOGM security area;
(i)any person who, without special justification, is in possession or has control of a prohibited item in a CHOGM security area;
(j)any person who, without lawful excuse, fails to comply with a reasonable direction given under section 33 to the person in a CHOGM security area by a police officer or an authorised person;
(k)any person who, without lawful excuse, is on a road that is closed under Division 5;
(l)any person who, without lawful excuse, fails to comply with a restriction that applies, under section 7 (b) or 11 (b), to access to a CHOGM security area or part of a CHOGM security area;
(m)any person who, without lawful excuse, fails to comply with a condition that applies, under section 7 (c) or 11 (c), to entry to a CHOGM security area or part of a CHOGM security area;
(n)any person whose name appears on an excluded persons list.
(2)A police officer or an authorised person may, during the CHOGM period, do any of the following -
(a)prevent an excludable person from entering any CHOGM security area;
(b)remove an excludable person from any CHOGM security area to another place within that or another CHOGM security area or to a place outside the CHOGM security areas;
(c)require an excludable person to disclose his or her personal details or provide proof of his or her personal details (or both) when removing the person from a CHOGM security area;
(d)without limiting paragraph (a), (b) or (c), remove any person who, without lawful excuse, is on a road that is closed under Division 5 to a place away from the road.
(3)Any action taken under subsection (2) does not prevent the taking of proceedings in respect of an offence.
In summary, s 43 defined a range of persons (termed excludable persons) who could be excluded from any CHOGM security area during the CHOGM period. By s 43(1)(n), one of the classes of excludable persons was any person whose name appears on an excluded persons list, that is a list compiled under s 42 of the Act by the Commissioner of Police. Section 42 allowed the Commissioner to compile one or more lists of persons 'who the Commissioner is satisfied are persons who would pose serious threats to the safety of persons or property (or both) in a CHOGM security area during the CHOGM period'.
I accept the respondent's submissions as to the effect of s 42 and s 43(1)(n). Section 42 and s 43(1)(n) do not operate to create any offence. Nor do those sections prohibit any conduct. In particular, those provisions do not prohibit an excludable person from entering a CHOGM security area. The sole legal consequence of a person being placed on an excluded persons list was to make that person susceptible to the exercise by a police officer or authorised person of the powers in s 43(2), including to prevent the person from entering a CHOGM security area or to remove them from a CHOGM security area and, in doing so, to use whatever force is reasonably necessary for that purpose.[14] The subject matter of s 42 and s 43 of the Act is the powers and immunities of police officers and authorised persons. The sections impose no prohibitions or other liabilities or obligations upon persons on an excluded persons list, or any other class of excludable persons.
[14] Section 75.
I have set out s 63 earlier in these reasons. Sections 72 and 73 elucidate the concept of special justification referred to in s 63(b). Those sections provide as follows:
Special justification
72(1) For the purposes of this Act (other than Part 8), a person has a special justification to be in an area, or to possess or be in control of a thing, only in the circumstances provided for by this section.
(2)A person has a special justification to be in an area if -
(a)the person is a police officer who is on duty in the area; or
(b)the person is an authorised person who is performing the functions of an authorised person in the area; or
(c)the person is required, authorised or permitted to be in the area by the Commissioner or a police officer or an authorised person; or
(d)the person is required to be in (or pass through) the area for the purposes of the person's employment, occupation, profession, calling, trade or business or for any other work-related purpose; or
(e)the person resides (whether on a temporary or permanent basis) in premises that are located in the area; or
(f)the person is in the area in other circumstances prescribed by the regulations.
(3)A person has a special justification to be in possession or have control of a thing in an area if -
(a)the person is a police officer who is on duty in the area; or
(b)the person is an authorised person who is performing the functions of an authorised person in the area; or
(c)the person is required, authorised or permitted to be in possession or have control of the thing in the area by the Commissioner or a police officer or an authorised person; or
(d)the person is required to be in possession or have control of the thing in the area for the purposes of the person's employment, occupation, profession, calling, trade or business or for any other work-related purpose; or
(e)the person has possession or control of the thing in residential premises of the person that are located in the area; or
(f)the person is in possession or has control of the thing in the area in other circumstances prescribed by the regulations.
Onus of proof of lawful excuse etc
73(1) The onus of proof of lawful excuse or reasonable excuse or special justification (whether in proceedings for an offence against a provision of Part 6 or in relation to the exercise of powers conferred by this Act (other than Part 8)) lies on the person accused of the offence or who claims to have the lawful excuse, reasonable excuse or special justification (as the case may be).
(2)Nothing in this section limits the Criminal Procedure Act 2004 section 78.

The elements of an offence under s 63; onus and burden of proof

I have already outlined the learned magistrate's view of the elements of an offence under s 63, and on the questions of onus and burden of proof. Her Honour's statement of that position was not challenged in this appeal and, in any event, in my respectful opinion it is correct.
The respondent must prove beyond reasonable doubt that the appellant entered a CHOGM security area. The appellant had the onus to prove on the balance of probabilities that any of the exceptions in pars (a) to (c) of s 63 applied. That was so by virtue of s 78(3) of the Criminal Procedure Act, and, as to the proof of a special justification, by s 73 of the Act.

The grounds of appeal

The appellant relies on two grounds of appeal,[15] which are in the following terms:
1.The learned Magistrate erred in law and there was a miscarriage of justice in that the Magistrate incorrectly admitted into evidence viva voce evidence of Detective John Hawkes and Constable David Croghan of the contents of confidential police records which, although available and demanded by the defence, were not produced by the prosecution. The said viva voce evidence was adduced for the purpose of establishing and was relied upon by the Magistrate to find the identification of appellant as the person named in the confidential police records and the excluded persons list.
2.There was a miscarriage of justice in that section 43(1)(n) of the Commonwealth Head of Government Meeting (Special Powers) Act 2011, but for which the appellant would have established a defence to the charge by virtue of section 63(c) of the said Act, is void for ultra vires with respect to the Constitution of the Commonwealth of Australia.
PARTICULARS
(a)By requiring the Magistrates Court to accept the naming of the accused on the excluded persons list upon without further proof or right of testing or enquiry into the evidence upon which he was so named, section 43(1)(n) causes the Magistrates Court of Western Australia to function in a manner incompatible with the Court's status as a repository of federal judicial power.
(b)Further or in the alternative, the said section 42 of the said Act infringes the freedom of political communication implicit in the Constitution.
[15] Leave was given at the hearing for the appellant to substitute these as his grounds of appeal.

Ground 1

By ground 1, the appellant complains that the magistrate incorrectly admitted oral evidence of Detective Hawkes and Constable Croghan of the contents of confidential police records which were not produced by the prosecution, and thus involved the receipt of inadmissible secondary evidence of the contents of those documents.
Any error in that regard could not have occasioned a miscarriage of justice. In my opinion, that is so for two alternative reasons. First, whether the appellant was on the excluded persons list was not an element of the offence, and did not give rise to any defence or justification under s 63. Secondly, to the extent that the excluded persons list was relevant at all, any issue in that regard is limited to whether the appellant was the person named on the list. The information preceding the placing of the appellant's name on the list was irrelevant. I proceed to explain those reasons in more detail.
The appellant points to evidence, adduced as part of the prosecution case from Deputy Commissioner Dawson, which established that the general public were free to enter the security areas provided that they complied with the conditions of entry, unless expressly told otherwise by a police officer.[16] The appellant submits[17] that, given that evidence, the prosecution case depended entirely and necessarily upon it proving beyond reasonable doubt that the person named in an excluded persons list under s 42 of the Act and the appellant were the same person. For the reasons that follow, I reject that contention.
[16] ts 10 June 2013, page 32.
[17] Appellant's submissions [21] ‑ [25], appeal ts 10 ‑ 15.
I have already referred to the unchallenged findings of the magistrate that on 24 October 2011 Constable Walker hand delivered and read aloud to the appellant the letter[18] to Mr Gransch advising that he had been named in the excluded persons list and telling him that as a consequence he was excluded from all CHOGM security areas for the duration of the CHOGM period from 20 October 2011 to 4 November 2011.
[18] Exhibit P1.
It was not in doubt at trial, and is not in doubt in this appeal, that this letter and the enclosed notice were delivered to the appellant.
In those circumstances, as the respondent submits, it was not being on the excluded persons list that took the appellant outside the general public authorisation. Rather, when the police officer delivered and read aloud the letter, the appellant was told by a police officer that he could not enter a CHOGM security area, thereby taking him outside of the general public authorisation.
The appellant submits[19] that:
(1)a police officer had no power to tell someone he could not enter a CHOGM security area unless the person was an excludable person under s 43(1);
(2)the only potentially relevant category in s 43(1) that applied to the appellant was being on the excluded persons list under s 43(1)(n); and
(3)consequently, the prosecution case depended upon the appellant being on the excluded persons list, failing which the appellant was within the general public authorisation.
I do not accept those submissions.
[19] Appeal ts 12 ‑ 16.
In my view, the question is not to be approached by asking whether a police officer had power to tell a citizen not to enter the core security area. Rather, the critical question is as to the proper construction of s 63. In my view, for reasons to be developed, the effect of s 63 is that a person is prohibited from entering a CHOGM security area unless they can demonstrate that one of the exceptions in par (a), (b) or (c) apply. The general liberty of a member of the public to enter and use what would otherwise generally be an area to which the public has access, such as a public road, is excluded by s 63.
A general liberty for a member of the public to enter a public road that had been declared to be a CHOGM security area would be inconsistent with the text, structure and object of the legislation. The intention revealed by the Act is to create a special regime that regulates conduct on and confers powers respecting CHOGM security areas, not to preserve pre‑existing rights and liberties that would, but for the Act, have applied to some or all of the areas to be declared CHOGM security areas under the Act. Section 63 imposes an absolute prohibition on entry unless one of par (a), (b) or (c) apply. Many of the CHOGM security areas are areas to which, generally speaking, the public has access, and the legislature would have contemplated that that would be so. If the general liberty to enter what are otherwise public areas, such as roads, continued to apply, there would be no need for some of the various exceptions created in pars (a), (b) and (c). For example, one of the exceptions is if the person has a special justification. One of the categories of special justification is if the person is permitted to be in the area by a police officer or authorised person. Such an exception would be unnecessary if the general liberty to enter a public place amounted to being 'otherwise authorised' within the meaning of s 63(c). Moreover, such a reading of s 63(c) would, to my mind, involve a straining of the ordinary meaning of 'otherwise authorised'.
In my opinion, on a proper construction of s 63, in the context of the Act as a whole, an accused who seeks to invoke s 63(c) must point to a positive authorisation to enter or remain in the area, and cannot contend that the general pre‑existing right of public access to the area gave him or her authorisation to be there.
Thus, on my construction of s 63, if a person entered a CHOGM security area without consent of the organiser, and without any authority from a police officer or other authorised person, then an offence would thereby be committed, unless the person entering the CHOGM security area:
(a)established special justification under s 72(2); or
(b)could point to some other positive authorisation for entering the area; or
(c)could point to an exculpatory factor arising under ch V of the Criminal Code Act 1995 (WA), such as s 24 or s 31.
For these reasons, the fact that a person had been included on an excluded persons list is not an element of any offence under s 63, and nor does it deny any defence that might be available under s 63. A person who was on an excluded persons list might seek and obtain permission of a police officer to enter a restricted area. In those circumstances, notwithstanding the person was on the excluded persons list, he or she would thereby have a defence under s 63(b), via s 72(2)(c).
In my view, the reasons of the learned magistrate are consistent with and adopt the construction of s 63 which I have outlined. That seems to me to appear from [37] ‑ [40] of her Honour's reasons, which were as follows:
The fact that the accused was named on an excluded persons list and was served with a notice is directly relevant to whether he was permitted to enter CHOGM security area, because the letter served on him stated inter alia -
'as a consequence, you are excluded from all CHOGM security areas established under the Act for the duration of the CHOGM period from 20 October 2011 until 4 November 2011 inclusive.'
It is not an element of the offence under section 63 that Mr Gransch was named on the exclude persons list. The exceptions apply to an excluded person as any other person under section 63 of the Act.
As an excluded person named on the excluded persons list Mr Gransch is excluded from any (all) CHOGM security areas between 20 October 2011 to 4 November 2011 inclusive.
There is no specific offence in the Act for an offence against an excluded person who enters a CHOGM security area. Section 63 creates the offence which relates to any person including an excluded person and therefore Mr Gransch is entitled to raise any of the exceptions as set out in that section.
On this analysis, it was relevant that Mr Gransch was served with the letter, but the evidence of the steps preceding Deputy Commissioner Dawson's placing the appellant's name on the excluded persons list was irrelevant. The receipt of that evidence did not occasion any miscarriage of justice. Counsel for the appellant did not point to any part of the magistrate's reasons that suggested her Honour had relied on this material.[20] To the contrary, the magistrate correctly pointed out[21] that the accuracy of the information used to determine that Sean David Gransch should be placed on the excluded persons list, and whether that information referred to the appellant or some other person, was not the issue. The issue, if any, was whether the person named in the excluded persons list was the appellant.
[20] Appeal ts 24.
[21] Reasons [33].
That leads to the second reason for rejecting ground 1.
The magistrate was correctly satisfied beyond reasonable doubt that the appellant was on the excluded persons list. That conclusion was inescapable, in circumstances where:
(a)the person on the excluded persons list was Sean David Gransch, date of birth 22 September 1974, address 35 Federation Street, Mt Hawthorn;
(b)the prosecution notice identified the person charged as Sean David Gransch, date of birth 22 September 1974, address 35 Federation Street Mt Hawthorn;
(b)in the course of the trial, the appellant identified himself as Sean David Gransch, date of birth 22 September 1974, and that he had been known to reside at 35 Federation Street, Mt Hawthorn, having been so identified in the prosecution notice;[22]
(c)the appellant gave his full name and date of birth to Detective Hawkes in June 2011.[23]
[22] ts 20 February 2013, pages 155 ‑ 156.
[23] ts 20 February 2013, pages 104 ‑ 105; reasons [14].
Ground 1 relates to evidence respecting the process that preceded the decision of Deputy Commissioner Dawson to place the appellant's name on an excluded persons list. For reasons already explained, the prosecution did not need to prove that the information that led to the appellant's name being placed on the excluded persons list was accurate. As the respondent submits, even if all the police database information relied on by Detective Hawkes in preparing his report had in fact concerned a different person, it was still the appellant's name, date of birth and address which appeared on the excluded persons list.
For these reasons ground 1 has no reasonable prospects of success, and I would not grant leave to appeal in respect of it.

Ground 2

The terms of ground 2 make it clear that the appellant's constitutional grounds are founded on the proposition that s 43(1)(n) of the Act operated to exclude what would otherwise have been a defence or exculpatory factor for the appellant. The appellant's written and oral submissions were put on that basis. In his written submissions, it was said that the appellant's appeal was founded on the appeal court:
[A]ccepting the proposition that, by reason of the general public authorisation in effect at the material time it was necessary for the prosecution to prove that the accused was an excludable person under s 43(1)(n) by virtue of his being one and the same as the person of the same name appearing in the list.
The corollary is that, had the prosecution been unable to prove beyond a reasonable doubt, commonality of identity between the appellant in court and the Sean David Gransch named in exhibit P18, they would not have proven that the appellant was an excludable person by virtue of s 43(1)(n) of the Act and as such outside the terms of the general public authorisation.[24]
[24] Appellant's submissions [24] ‑ [25].
In oral submissions counsel for the appellant stated, correctly, that all of the appellant's grounds of appeal were 'predicated ... on the appellant's particular construction of the statute'.[25]
[25] Appeal ts 75.
For the reasons given in [30] – [50], I do not accept the premise of the appellant's constitutional points. In summary, given the evidence of the terms of the general public authorisation, and given the delivery and reading of the letter to the appellant, the appellant did not have authorisation to enter the security area, because he had been expressly told by a police officer not to enter the security area. The letter giving notice to the appellant that he had been placed on the excluded persons list, and advising that he must not enter the CHOGM security areas, provided the factual setting in which Constable Walker expressly told the appellant that he must not enter a CHOGM security area. However, in the legal environment created by the CHOGM Act and, in particular, by s 63, and given the terms of the public authorisation to enter, the legal efficacy of Constable Walker's informing of the appellant that he must not enter the CHOGM security areas did not depend upon the validity of the appellant's name being on an excluded persons list. Regardless of any invalidity, the appellant did not have authorisation to enter because:
(a)the public were only authorised to enter if they had not been expressly told otherwise by a police officer; and
(b)the appellant had been told otherwise by what Constable Walker had said and done.
The appellant did not address any submissions of invalidity on the footing that the respondent's construction of the Act were adopted.
Moreover, the appellant does not challenge the validity of s 68.
In those circumstances, no question of constitutional validity arises. It has been the law for more than 100 years,[26] and remains settled law,[27] that a constitutional question should not be decided unless it is necessary to do justice in the given case and to determine the rights of the parties. Thus, it would not be appropriate to express my views on the constitutional issues on the assumption that I am wrong in my construction of the Act.
[26] Attorney‑General (NSW) v Brewery Employees Union (NSW) (1908) 6 CLR 469, 590.
[27] ICM Agriculture v Commonwealth (2009) 240 CLR 140 [141]; Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94; (2013) 45 WAR 131 [33].
For these reasons I would refuse to grant leave on ground 2.

Conclusion

For the reasons I have given, in my view the appellant's appeal is founded on a false premise relating to the proper construction of the Act and the relevance, or otherwise, of the appellant having been placed on an excluded persons list.
I would refuse leave in respect of each of grounds 1 and 2, and would dismiss the appeal.