McKenzie v Director of Public Prosecutions
[2024] WASC 435
•22 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCKENZIE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 435
CORAM: SEAWARD J
HEARD: 24 JULY 2024
DELIVERED : 22 NOVEMBER 2024
FILE NO/S: SJA 1015 of 2024
BETWEEN: DAMION JAMES MCKENZIE
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE RIDLEY SM
File Number : KR 1000/2022
Catchwords:
Single judge appeal - Appeal against conviction - Where appellant was convicted in their absence in accordance with s 55 of the Criminal Procedure Act 2005 (WA) - Whether it was open to the magistrate to convict of an either way charge under s 55 - Whether s 60(7) of the Criminal Procedure Act 2005 (WA) extends the operation of s 55 to 'either way' charges
Legislation:
Criminal Procedure Act 2005 (WA) s 55, s 60
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
| Appellant | : | Ms E Zillessen |
| Respondent | : | Ms M L Wong |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clarke v The State of Western Australia [2018] WASCA 14
Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444
Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112
House v The King (1936) 55 CLR 499
Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76
King v City of Perth [2023] WASC 252
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Saad v Baron [2012] WASC 507
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tallot v Matier [2012] WASC 290
Tsang v Francis [2021] WASCA 131
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
SEAWARD J:
The appellant, Mr Damion McKenzie, was charged with aggravated assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code. This offence is an indictable offence, that may be tried summarily. That is, it is an either way charge.
Mr McKenzie was convicted of the charge in his absence, in accordance with s 55 of the Criminal Procedure Act 2005 (WA) (CP Act). Mr McKenzie appeals against his conviction on the basis that it was not open to the learned magistrate to convict Mr McKenzie under this section, as it applies only to simple offences.
The respondent opposes the appeal and submits that s 60(7) of the CP Act extends the operation of s 55 of the CP Act to either way offences in limited circumstances.
The resolution of this appeal involves a question of statutory interpretation which has not, to date, been the subject of a decision of this court.
For the reasons set out below, I am of the view that the appropriate construction s 60(7) of the CP Act, in the context of the CP Act as a whole, is that it does not extend the operation of s 55 of the CP Act to either way offences.
Background facts
Mr McKenzie was charged with aggravated assault occasioning bodily harm, contrary to s 317(1)(b) of the Criminal Code (charge KR 1000/2022), the circumstance of aggravation being that he was in a family relationship with the complainant.[1] Mr McKenzie was also charged with aggravated common assault contrary to s 313(1)(a) of the Criminal Code in relation to the same complainant (charge KR 1001/2022).
[1] This is the charge as contained in the prosecution notice. However, if circumstances of aggravation exist, then the relevant section is s 317(1)(a) of the Criminal Code. This is not a matter which appears to have been identified in the court below.
There is no dispute that the offence of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code is an indictable offence and an 'either way charge', meaning that it may be tried either summarily or by indictment.[2] It is also not in dispute that the offence of common assault contrary to s 313 of the Criminal Code is a simple offence.
[2] See Interpretation Act 1984 (WA) s 67; Criminal Code s 5 and Criminal Procedure Act 2004 (WA) s 3 'either way charge' and s 40.
Mr McKenzie was also charged with other offences concerning breaches of bail which are not relevant to this appeal.
The charges were listed on a number of occasions before the Kununurra Magistrates Court. In relation to charge KR 1000/2022, the prosecution notice reveals as follows:
Date
Details
7/10/2022
No appearance by appellant or counsel.
Bail granted with Protective Bail Conditions
Remanded to 14/10/2022 - mention only.
14/10/2022
No appearance by appellant or counsel.
Arrest warrant issued for breaches of bail undertakings.
06/02/2023
Appellant appeared from custody with counsel.
Bail granted.
Remanded to 21/02/2023 for legal advice.
21/02/2023
Appellant did not appear but counsel did.
Bail renewed.
Remanded to 23/02/2023 for mention only.
23/02/2023
Appellant and counsel appeared.
Remanded to 18/05/2023 for trial.
Not Guilty plea entered.
18/05/2023
No appearance by appellant, but transcript reveals counsel appeared.
Convicted under s 55 Criminal Procedure Act.
Arrest warrant issued.
Charges KR 1000/2022 and KR 1001/2022 (together with a third charge) were listed for trial on 18 May 2023. Mr McKenzie did not attend court on 18 May 2023, but his counsel did. The hearing on 18 May 2023 was short, and the transcript of what occurred can be set out in full:
HER HONOUR: Ms Fruvuas.
FRUVUAS, MS: Thank you, your Honour. Your Honour, Mr McKenzie is not in attendance today.
HER HONOUR: So he's - - -
FRUVUAS, MS: Not in attendance today.
HER HONOUR: Yes. So no excuse, don't know where he is, haven't heard from him?
FRUVUAS, MS: I actually received a phone call from him this morning, said he's out of town. No good reason. He says he just - he forgot. He forgot court was today. So we're in your Honour's hands.
HER HONOUR: Sergeant, are we moving for convictions to be entered?
BORDONI, MR: Yes, ma'am.
HER HONOUR: And were prosecution in a position to proceed with the trial?
BORDONI, MR: I don't believe we would have been, ma'am. The victim in the matter has relocated to Darwin. Prosecution - apologies, police became aware of that too late in the piece to organise links and such. NT Police, I believe, only just contacted her earlier or only just located her earlier this week, and as such we wouldn't have been able to proceed today.
HER HONOUR: So section 60, subparagraph (7) allows us to proceed where a trial is listed on either way offences in - and the accused fails to appear. Are any defences open or raised on the instructions, Ms Fruvuas?
FRUVUAS, MS: No, there's not.
HER HONOUR: So Mr McKenzie, it seems, was aware of the date. He has contacted the lawyers and hasn't made himself available for the trial. I am satisfied that he was aware of today, was in court when the matter was listed on 23 February, and the phone call also indicates that. So I am entering judgment of conviction under section 55 of the Criminal Procedure Act, aware that there is capacity to set aside, if there's good reason for him non-attending - not attending, and it's in the interests of justice to do. Is he required for sentence, Sergeant? I think he is on the breach of bail anyway, that he's pleaded guilty to.
BORDONI, MR: He's on a breach of bail, yes, ma'am. Yes.
HER HONOUR: So arrest warrant for sentence.
BORDONI, MR: Yes, ma'am.
HER HONOUR: So Mr McKenzie needs to be before the court for sentencing. An arrest warrant to issue. He can hand himself in on that if he were (indistinct) town or he will be arrested when police catch up with him.
On 21 February 2024, Mr McKenzie was sentenced in relation to charges KR 1000/2022 and KR 1001/2022 as follows:
Charge
Sentence
KR 1000/2022: aggravated assault causing bodily harm
6 months' and 1 day imprisonment, suspended for 12 months
KR 1001/2022: aggravated common assault
6 months' imprisonment suspended for 12 months, to be served concurrently with KR 1000/2022
Grounds of appeal
By amended appeal notice dated 26 July 2024,[3] Mr McKenzie appeals against the decision of the magistrate to record a conviction on 18 May 2023 in relation to the charge of aggravated assault occasioning bodily harm (KR 1000/2022) only on the following two grounds:
[3] Leave being granted to amend the appeal notice and file an amended appeal notice during the appeal hearing on 24 July 2024.
1.The learned Magistrate erred in recording a conviction for the indictable offence of aggravated assault occasioning bodily harm in the appellant's absence under s 55 of the Criminal Procedure Act 2004 (WA) (CPA).
Particulars
(a)s 55 of the CPA applies to simple offences only.
(b)aggravated assault occasioning bodily harm is not a simple offence.
OR in the alternative
(c)the express criteria for the application of s 55 of the CPA were not satisfied in that the appellant was not served with a court hearing notice or approved notice in which the appellant is notified of the court date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date.
2.In the alternative to Ground 1: The learned Magistrate, in proceeding under s 55 of the CPA, denied the appellant opportunity to contest the prosecution evidence and make representations relevant to factual finding and was thereby procedurally unfair in law and in fact constituting a miscarriage of justice.
Ground 1 asserts an error of law on the part of the learned magistrate and raises a question as to the appropriate construction of the CP Act. Particulars (a) and (b) concern whether the procedure in s 55 of the CP Act applies to either way charges. Particular (c) assumes that s 55 of the CP Act applies and asserts that the relevant statutory criteria were not met and therefore the procedure could not, in any event, have applied in this case.
Ground 2 (which is in the alternative to ground 1) assumes that s 55 of the CP Act applies to either way offences and raises a question as to whether there has been a miscarriage of justice in the exercise of the discretion under s 55 of the CP Act.
Legal principles - appeal
The appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision of a court of summary jurisdiction to convict an accused of a charge may be appealed to the Supreme Court by a person aggrieved on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.[4]
[4] CA Act s 6(c), s 7(1) and s 8(1).
Leave to appeal is required for each ground of appeal.[5] Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[6] meaning that the ground is required to have a rational and logical prospect of succeeding.[7] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[8]
[5] CA Act s 9(1).
[6] CA Act s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[8] CA Act s 9(3).
A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[9] Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[10]
[9] Sami v Duggan [2011] WASC 304 [38].
[10] CA Act s 14(2).
Application for leave to adduce additional evidence
By application dated 23 July 2024, Mr McKenzie applied for leave to adduce (in the form of attachments to an affidavit) the following documents:
(a)the Statement of Material Facts for charge KR 1000/2022;
(b)the statement of Constable Tyler Maxwell dated 30 April 2023; and
(c)the transcript of the police interview with the appellant recorded on 22 September 2022.
Mr McKenzie relies on these documents in support of the submissions that there was evidence he may have a defence to the charges, which Mr McKenzie relies on in support of ground 2.
I granted Mr McKenzie leave to rely on these additional documents during the appeal hearing.[11] My reasons for doing so are as follows.
[11] appeal ts 3.
In accordance with s 39(1) of the CA Act, an appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this Court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal.[12]
[12] CA Act s 39(3).
The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal will indicate those considerations which are relevant to the exercise of the discretion.[13] The Court of Appeal has previously held that in circumstances where an appeal against conviction follows a plea of guilty, the usual distinction between 'fresh evidence' and 'new evidence', on which the authorities regarding the admission of evidence on an appeal are often based, are not relevant as there has been no trial in the lower court.[14] The present case is similar in the sense that no trial took place and therefore no evidence was tendered. Accordingly, I do not consider that the distinction between 'fresh' and 'new' evidence is relevant to my consideration of the application to admit the additional evidence in this case.
[13] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].
[14] Tsang v Francis [2021] WASCA 131 [93].
The documents which Mr McKenzie seeks leave to rely on all consist of documents relevant to the charges and the trial of the charges if it had proceeded. There was no objection to the evidence being received in the appeal. I therefore granted Mr McKenzie leave to rely on the additional evidence during the hearing.
Legal principles - statutory construction
The general principles concerning the process of statutory construction are well known and are not in dispute. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[15]
[15] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
The provisions of the statute must be understood, if possible, as parts of a coherent whole.[16] As observed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:[17]
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(citations omitted)
[16] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181].
[17] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70].
Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[18]
[18] Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180].
Legislative provisions and statutory context
This appeal concerns the application of s 55 of the CP Act and the construction of that provision in the broader context of the CP Act. The CP Act provides for the court procedures to be followed when dealing with alleged offenders.
Part 3 of the CP Act is concerned with prosecutions in courts of summary jurisdiction. Part 3 div 3 of the CP Act details the procedure for commencing a prosecution. A different procedure is applicable depending on whether the charge is for a summary offence or an indictable offence. The procedure also depends on whether the accused is, at the time of being charged, under arrest or in custody. Different procedures also apply for corporate accused, but these are not relevant to this appeal.
A prosecution is commenced by lodging a prosecution notice with the Magistrates Court.[19]
[19] CP Act s 24.
If the accused is not under arrest or in custody, and the prosecution notice alleges one or more indictable offences, the prosecutor:[20]
[20] CP Act s 28(3).
(a) if he or she is an authorised investigator, must either personally issue a summons to the accused or apply —
(i) to a JP or a prescribed court officer for the issue of a summons to the accused; or
(ii) to a magistrate of the court that will deal with the notice for an arrest warrant for the accused;
(b) if he or she is not an authorised investigator, must apply —
(i) to a JP or a prescribed court officer for the issue of a summons to the accused; or
(ii) to a magistrate of the court that will deal with the notice for an arrest warrant for the accused.
If the accused is not under arrest or in custody, and the prosecution notice alleges one or more simple offences, the prosecutor:[21]
[21] CP Act s 28(4).
(a) if he or she is an authorised investigator, must either personally issue a court hearing notice to the accused or apply —
(i) to a JP or a prescribed court officer for the issue of a court hearing notice to the accused; or
(ii) to a magistrate of the court that will deal with the notice for an arrest warrant for the accused;
(b) if the prosecutor is not an authorised investigator, must apply —
(i) to a JP or a prescribed court officer for the issue of a court hearing notice to the accused; or
(ii)to a magistrate of the court that will deal with the notice for an arrest warrant for the accused.
That is, for an indictable offence a summons or an arrest warrant must be issued to the accused, whilst for a simple offence a court hearing notice or an arrest warrant must be issued.
Sections 30 to 33 of the CP Act detail the requirements for court hearing notices, summonses and arrest warrants, including as to form, content and service.
Part 3 div 4 of the CP Act is entitled 'Procedure on charge of indictable offence'. Section 37 of the CP Act provides that div 4 applies if an accused is charged in a court of summary jurisdiction with an indictable offence.
Section 38 of the CP Act details the procedure if on a court date a party does not appear. If the prosecutor does not appear, the court may either adjourn the charge and notify the prosecutor of the new court date, or dismiss the charge for want of prosecution.[22] If the accused does not appear, the court must either:[23]
[22] CP Act s 38(1).
[23] CP Act s 38(2).
(a) adjourn the charge and either —
(i) issue a summons to the accused that states the new court date; or
(ii) make an order under the Bail Act 1982 section 31(2)(b) substituting the new court date,
as the case requires; or
(b) issue an arrest warrant for the accused.
Section 39 of the CP Act sets out the procedure which applies when or as soon as practicable after an accused's first appearance. If the court is satisfied of the various matters listed in subsections (a) ‑ (c), and if the prosecutor has already served the accused the initial disclosure material referred to in s 35(4) of the CP Act, then if the charge is an either way charge, the court proceeds in accordance with s 40 of the CP Act. If the charge is not an either way charge, the court proceeds in accordance with s 41 of the CP Act. If initial disclosure has not occurred, the charge is adjourned to a new court date that allows a reasonable time for disclosure to occur, and when the material is subsequently disclosed, the court proceeds under s 40 or s 41 of the CP Act as required.
Section 40 of the CP Act is concerned with either way charges, and provides:
(1) This section applies if the charge is an either way charge.
(2) If The Criminal Code section 5 applies to the charge, the court must give the prosecutor and the accused an opportunity to apply under that section for the charge to be tried on indictment.
(3) If the court decides that the charge is to be tried on indictment, the court must proceed in accordance with section 41.
(4) If the charge is to be tried summarily, the court must deal with the charge summarily under Division 6 and may do so —
(a) with the consent of the prosecutor and the accused, immediately; or
(b) otherwise, on a later date.
Part 3 div 5 of the CP Act is entitled 'Procedure on charge of simple offence'. Section 48 of the CP Act provides that div 5 applies if an accused person is charged in a court of summary jurisdiction with a simple offence. Significantly, pt 3 div 5 does not apply to an either way charge.
Section 50 of the CP Act details the procedure if a written plea of not guilty is received. If on the first court date the accused appears, the court must proceed in accordance with pt 3 div 6 of the CP Act. If the accused does not appear, the court must adjourn the charge to a new court date. If the accused appears on this new court date, the court must proceed in accordance with s 54 or pt 3 div 6 of the CP Act as the case requires. However, if the accused does not appear on the new court date, the court must proceed in accordance with s 53 or s 55 of the CP Act, as the case requires.
Section 51 of the CP Act details the procedure if a written plea of guilty is received. On or as soon as practicable after the court date, the court must hear and determine the charge as if the accused had pleaded guilty to the charge in person before the court. Provision is made for what to do if the court considers the accused may have a defence to the charge and if the accused notifies the court that they want to withdraw the plea.
Section 52 of the CP Act details the procedure if there is no appearance by any party and no plea received by the court. The section makes provision for an initial adjournment and the issuing of a court hearing notice advising of the new court date.
Section 53 of the CP Act details the following procedure if there is no appearance by any party but the accused has pleaded to the charge:
(1) If on a court date for a charge neither the prosecutor nor the accused appears but the accused has pleaded to the charge, whether orally or by means of a written plea, the court must —
(a) adjourn the charge to a new court date and notify the prosecutor of that date; and
(b) issue to the accused an approved notice that notifies the accused of that date and explains why the charge has not been dealt with.
(2) If on the new court date the prosecutor does not appear, then whether or not the accused appears, the court may dismiss the charge for want of prosecution.
(3) The approved notice must be served on the accused in accordance with Schedule 2 clause 2, 3 or 4.
Section 54 of the CP Act details the procedure if there is no appearance by the prosecutor:
If on a court date for a charge the prosecutor does not appear but the accused does, then whether or not the court has received a written plea to the charge by the accused, the court may —
(a) adjourn the charge to a new court date and give the prosecutor and the accused approved notices that notify them of that date; or
(b) dismiss the charge for want of prosecution.
Section 55 of the CP Act details the procedure where the is no appearance by the 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;
(b)or 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.
Part 3 div 6 of the CP Act is entitled 'Procedure for dealing summarily with any charge'. Section 57 provides that div 6 applies as follows:
(1) This Division applies if in a court of summary jurisdiction an accused is charged with —
(a) an either way charge that is to be tried summarily by the court; or
(b) a simple offence.
(2)If under Division 5 a court proceeds in accordance with this Division, the court may nevertheless at any time exercise a power under Division 5, and in particular under section 55, in relation to any charge of a simple offence if the occasion to do so arises.
Sections 58 to 60 of the CP Act go on to set out the procedure that is applicable if pt 3 div 6 applies.
Section 58 of the CP Act applies if both the prosecutor and the accused appear, and the charge is of a simple offence and the court has not received a written plea to the charge. In these circumstances, if the court date is the first court date for the prosecution notice, the court may only hear and determine the charge if the prosecutor consents, but otherwise it must adjourn the charge. Subject to this, the court must proceed to deal with the charge in accordance with pt 5 div 6 of the CP Act.
Section 59 of the CP Act details the initial procedure of requiring the accused to plead to the charge.
Section 60 of the CP Act details the procedure if a plea of not guilty is entered and provides as follows:
(1) In this section and sections 61 and 62, unless the contrary intention appears —
listed simple offence means a simple offence that is prescribed to be a listed simple offence for the purposes of this section.
(2) This section applies if an accused pleads not guilty to —
(a) an either way charge that is to be dealt with summarily; or
(b) a charge of a simple offence, whether orally or by means of a written plea,
and the court does not discharge the accused under section 128(2) or (3).
(3) In the case of an either way charge, the court must adjourn the charge to a new court date that allows a reasonable time for —
(a) the prosecutor to comply with section 61; and
(b) the accused to comply with section 62.
(4) In the case of a charge of a listed simple offence, the court —
(a) may order the accused to comply with section 62; and
(b) in any event must adjourn the charge to a new court date that allows a reasonable time for —
(i) the prosecutor to comply with section 61; and
(ii) the accused to comply with section 62 if ordered to do so under paragraph (a).
(5) In the case of a charge of any other simple offence, the court —
(a) may order the prosecutor to serve the accused with any confessional material (as defined in section 42(1)) of the accused that is relevant to the charge and that the accused has not already received from the prosecutor; and
(b) if it makes an order under paragraph (a), may also order the prosecutor to comply with section 61; and
(c) in any event must adjourn the charge to a new court date that allows a reasonable time for the prosecutor to comply with any order made under paragraph (a) or (b).
(6) The new court date to which a charge is adjourned under subsection (3), (4) or (5) may be the date for the trial of the charge or some date prior to that date, as the court decides.
(7) On the date for the trial of the charge, the court may proceed to conduct a trial of the charge if all parties appear but otherwise may proceed under section 53, 54 or 55, as the case requires.
Section 61 of the CP Act concerns disclosure by the prosecutor whilst s 62 of the CP Act concerns disclosure by the accused.
Part 3 div 8 of the CP Act is headed 'Miscellaneous'. Section 75 is contained in div 8 of the CP Act and concerns adjourning charges. Section 75(1) provides that the section does not apply to a charge if the accused has been convicted of it and is awaiting sentence. Section 75(2) provides that the court has a general power to adjourn a charge at any time and may do so whether or not the prosecutor or the accused is present; the accused pleaded to the charge; or any evidence has been given. Section 75(4)(b) provides that if a court adjourns a charge, it must ensure the parties are advised of the time and place of the adjournment, and for that purpose may issue a summons, court hearing notice or approved notice 'as the case requires'.
Part 5 of the CP Act is headed 'Provisions applicable to any prosecution'. Section 125 of the CP Act provides that the part applies to any prosecution in any court. Section 139 of the CP Act is contained in pt 5 and applies if the accused is an individual. The section provides for the ability of a court to compel the accused to appear before the court. Section 139(2) provides:
(2)If a court dealing with a charge against an accused is satisfied that the accused's presence is needed, the court may compel the accused to appear before the court —
(a) by issuing a summons to the accused; or
(b) by issuing an arrest warrant for the accused; or
(c) if the accused is in custody, by issuing an order under the Prisons Act 1981 section 85.
Ground 1 - what is the correct construction of s 55 and s 60 of the CP Act?
Particulars (a) and (b) - does s 55 of the CP Act apply to either way offences?
Text
There is no dispute that s 55 of the CP Act, by its text, applies only to simple offences and not to either way offences. Section 55 is contained in pt 3 div 5 of the CP Act and s 48 of the CP Act provides that div 5 applies if an accused person is charged in a court of summary jurisdiction with a simple offence.
The question is whether the effect of s 60 of the CP Act is to extend the application of s 55 of the CP Act to either way offences.
Section 60 of the CP Act details the procedure if a plea of not guilty is entered to an either way charge that is to be dealt with summarily or a simple offence and when the court does not discharge the accused under s 128(2) or (3) of the CP Act (which is concerned with a plea of no jurisdiction).
The remaining subsections, except for s 60(7) of the CP Act, go on to specify which type of offence the subsection applies to. Subsections 60(3), 60(4) and 60(5) of the CP Act each require the court to adjourn the charge to a new court date to permit disclosure to occur. The precise nature of that disclosure differs in each subsection. Section 60(3) expressly states that it applies to an either way charge, s 60(4) expressly states that it applies to a charge of a listed simple offence and s 60(5) expressly states that it applies to any other simple offence (that is, not a listed simple offence).
Section 60(6) of the CP Act states that the new court date to which the charge is adjourned under subsections 60(3), 60(4) and 60(5) may be the date for the trial, or some date prior, as the court decides.
It is only s 60(7) of the CP Act that does not expressly specify the type of offence to which it applies.
Mr McKenzie submits that on a plain reading of the text of s 60(7) of the CP Act, it is not intended to apply to either way offences. Mr McKenzie places significance on the use of the word 'or' in s 60(2)(a) of the CP Act and the fact that each other subsection that follows then expressly states the type of offence that it applies to. Mr McKenzie also submits that whilst s 60(7) does not expressly state that it applies only to simple offences, the words 'as the case requires' limits the operation to the circumstances in which s 53, s 54 and s 55 of the CP Act apply on their terms, which is only to simple offences.
The respondent submits that, given the wording of s 60(2) of the CP Act, each subsection should be taken to apply to both simple offences and either way charges being tried summarily, unless otherwise stated. All the other subsections, save for s 60(7) specify the type of offence to which each applies. The respondent therefore submits that as s 60(7) does not specify which type of offence it applies to it should be taken to apply to both simple offences and either way charges.
The respondent also submits that the words 'as the case requires' in s 60(7) is a reference to which of s 53, s 54 or s 55 of the CP Act applies - that is, whether the party failing to appear is both parties, the prosecutor or the accused. The respondent submits that the words 'as the case requires' should not be read as limiting the operation of s 60(7) of the CP Act to the circumstances in which s 53, s 54 and s 55 of the CP Act as drafted apply, as that is contrary to s 60(2) of the CP Act.
The use of the word 'or' in s 60(2)(a) of the CP Act does raise a question as to whether each subsection is intended to apply to both simple offences and either way offences being heard summarily. However, in my view the word 'or' could be read as either a reference to the fact that an offence cannot be both a summary offence or an either way charge being tried summarily, or it could be read as a reference to each subsection only applying to the type of offence expressly referred to. Therefore, I do not consider the use of the word 'or' is ultimately significant in the construction of s 60(7) of the CP Act.
Both parties have submitted that s 60(7) of the CP Act does not specify which type of offence it applies to. I accept that the subsection does not expressly state, in the same manner as the other subsections, which type of offence it applies to. This may support the respondent's construction that s 60(7) is intended to apply to all types of offences. However, another open interpretation is that the reference to s 53, s 54 and s 55 of the CP Act is intended to indicate that the subsection only applies to simple offences.
The use of the term 'as the case requires' in the text of s 60(7) does direct attention to which of s 53, s 54, and s 55 apply on the facts of the particular case. Whilst this will necessarily involve a consideration of which party has failed to attend the trial date, it is not immediately clear from the wording of s 60(7) that it also necessarily has the effect that s 53, s 54 and s 55 are automatically to apply to an either way charge being tried summarily, in light of these provisions only applying to simple offences.
The result is that the text of s 60 of the CP Act, when read in isolation, is unclear as to the precise scope of s 60(7) and whether it extends the operation of s 53, s 54 and s 55 of the CP Act to either way charges being tried summarily, in circumstances where a plea of not guilty has been entered and there is no appearance by a party at the trial date.
Context
However, the text of s 60(7) of the CP Act must not be read in isolation. It must be considered in the context of the CP Act as a whole and an interpretation which is consistent with the CP Act when read as a coherent whole is to be preferred. I am of the view that the statutory context of the CP Act supports Mr McKenzie's construction.
Effect of s 40, s 48 and s 57(2) of the CP Act
Section 55 is contained in pt 3 div 5 of the CP Act. This division deals with the procedure on a charge of a simple offence. That s 55 is limited to simple offences is expressly made clear in s 48 of the CP Act.
Part 3 div 5 of the CP Act details various scenarios that might arise depending on (variously) whether a written or oral plea has been received; what that plea is; who appears on the court date; and whether the court date is the first court date or any court date.
In a situation where the court receives a written plea of not guilty, and the accused and the prosecutor appear on the first court date, then the court must proceed in accordance with pt 3 div 6 of the CP Act.[24]
[24]CP Act s 50(2).
Sections 53, 54, and 55 of the CP Act deal with particular situations where there is no appearance by one or both parties. Section 53 deals with the situation where both parties do not attend a court date and the accused has pleaded to the charge; s 54 deals with the situation where the prosecutor does not attend a court date, whether or not the court has received a written plea from the accused; and s 55 deals with the situation where the accused does not attend a court date and the accused has not pleaded guilty to the charge.
There is no equivalent provision to s 53 of the CP Act for indictable offences in pt 3 div 4 of the CP Act. That is, there is no provision dealing with the situation where there is no appearance by both the prosecutor and the accused. Rather, there are provisions dealing with what occurs if either the prosecutor or the accused does not appear.
Section 38(1) of the CP Act provides that if on a court date for an indictable offence the prosecutor does not appear, the court may adjourn the charge or dismiss the charge for want of prosecution.
Section 38(2) of the CP Act provides that if on a court date for an indictable offence the accused does not appear, the court must either adjourn the charge (and either issue a summons or make an order under s 31(2)(b) of the Bail Act 1982 (WA)) or issue an arrest warrant for the accused. Section 139(2) of the CP Act (which applies to any prosecution) also provides the court with the power to compel the accused to appear before the court if the court is satisfied that the accused's presence is needed. However, there is no equivalent provision that would enable the court to hear and determine the charge in the accused's absence and to rely on aids to proof of the type contained in s 55(4) of the CP Act, as opposed to establishing the guilt of the accused on the basis of admissible evidence and to the criminal standard.
Part 3 div 6 of the CP Act is concerned with the procedure for dealing summarily with any charge. Section 57(1) of the CP Act provides that div 6 applies if in a court of summary jurisdiction an accused is charged with an either way charge that is to be tried summarily, or a simple offence.
Section 57(2) of the CP Act provides that in the event that a court 'proceeds in accordance with' pt 3 div 6 pursuant to a requirement to do so 'under' pt 3 div 5, the court may 'nevertheless at any time, exercise a power under div 5, and in particular under s 55, in relation to any charge of a simple offence if the occasion to do so arises'.
There are three routes by which a court 'proceeds in accordance with' pt 3 div 6 for the purposes of s 57(2) of the CP Act:
(a)route one: if the offence is a simple offence and a court 'proceeds in accordance with' pt 3 div 6 of the CP Act due to a requirement 'under' pt 3 div 5 (eg s 50(2) of the CP Act where a written plea of not guilty is received). By its terms, s 57(2) of the CP Act applies to route one;
(b)route two: if the offence is a simple offence; and both parties appear at the first court date; and the court has not received a written plea to the charge. In such a case, s 58(1) of the CP Act (which is contained in pt 3 div 6), provides that the court must deal with the charge under pt 3 div 6 of the CP Act. Section 57(2) of the CP Act does not apply to route two, as the requirement to deal with the charge 'in accordance with' pt 3 div 6 does not arise 'under' pt 3 div 5. Therefore, when the court 'proceeds in accordance with' pt 3 div 6 for this type of simple offence, the court is not able to exercise the powers under pt 3 div 5, including the power under s 55 of the CP Act; and
(c)route 3: if the offence is an either way charge that is to be tried summarily, in which case s 40(4) of the CP Act (which is contained in pt 3 div 4) provides that the court must deal with the charge under pt 3 div 6 of the CP Act. Section 57(2) of the CP Act does not apply to route three as the charge is not a simple offence.
I consider s 57(2) of the CP Act to be an important part of the context within which s 60(7) of the CP Act must be viewed. Section 57(2) of the CP Act only permits a court to exercise the powers contained in s 53, s 54 and s 55 of the CP Act when a court 'proceeds in accordance with' pt 3 div 6 under route one.
Accordingly, when s 60(7) is read together with s 57(2) of the CP Act (and in the context of s 40 and s 48), the words 'as the case requires' in s 60(7) of the CP Act do not extend the scope of s 53, s 54 or s 55 of the CP Act to either way charges being tried summarily. Rather, the words 'as the case requires' extend, on the trial date only, the power given to the court by s 57(2) to exercise a power contained in s 53, s 54 or s 55 of the CP Act to all simple offences, even if the court is dealing with a simple offence under pt 3 div 6 absent any requirement to do so 'under' pt 3 div 5 of the CP Act. That is, the words extend the power under s 57(2) so as to permit the court to proceed under s 53, s 54 or s 55 when a court 'proceeds in accordance with' pt 3 div 6 under route two.
Understood in this way, the words 'as the case requires' in s 60(7) of the CP Act are directed to identifying which of s 53, s 54 or s 55 applies in the context of simple offences only. To read s 60(7) as extending the operation of s 53, s 54 and s 55 to either way charges being tried summarily is not consistent with s 40, s 48 or s 57(2) of the CP Act when read as a cohesive whole.
Court hearing notice
An essential precondition for the exercise of the discretion contained in s 55(2)(b) of the CP Act is that the court is satisfied that the accused has been served with a prosecution notice 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.
At the initial stages of the criminal process, a court hearing notice is only required to be issued to an accused if they are charged with a simple offence.[25] If an accused is charged with an indictable offence, then s 28(3) of the CP Act provides that a summons or an arrest warrant must be issued to the accused.
[25] CP Act s 28(4).
A significant difference between a court hearing notice and both a summons and an arrest warrant, is that neither of the latter two documents state that if the accused does not attend court on the date specified, that the court may deal with the charge in the accused's absence. This is because each document requires the attendance of the accused personally in court. A court hearing notice, on the other hand, does contain this information.[26]
[26] CP Act s 33(2)(d). See Forms 1 - 5 of the Criminal Procedure Regulations 2005 (WA).
In the event that on a court date for a charge of an indictable offence the accused does not appear, then the court must either adjourn the charge and issue a summons or make an order under s 31(2)(b) of the Bail Act 1982 (WA), or issue an arrest warrant for the accused.[27] There is no option to issue a court hearing notice. Again, each of the available options require the attendance of the accused at the adjourned date, and none inform the accused if the accused does not attend court on the adjourned date, that the court may deal with the charge in the accused's absence.
[27] CP Act s 38(2).
The lack of any requirement or option to issue a court hearing notice to an accused in relation to a charge for an indictable offence is in my view a significant factor in support of the construction advanced by Mr McKenzie. The structure of the CP Act as whole does not require or envisage a court hearing notice to be issued to an accused charged with an indictable offence. The result is that the accused is never informed that the court may proceed to determine the charge in the accused's absence. This tends against a construction of s 60(7) of the CP Act which extends the operation of s 55 of the CP Act to offences for which the accused is not given prior notice that the charge may be dealt with in their absence. This is particularly significant given that the effect of proceeding under s 55(2)(b) of the CP Act is that the prosecution is able to take advantage of the aids to proof contained in s 55(4) of the CP Act and is not required to establish the accused's guilt on the basis of admissible evidence and to the criminal standard.
For completeness, I observe that s 75 of the CP Act provides for a general power of adjournment, and s 75(4)(b) provides that if a court adjourns a charge, it must ensure that the parties are advised of the new time and place and 'for that purpose may issue a summons, court hearing notice or approved notice, as the case requires.' I do not consider this general power of adjournment provides the court with the power to issue a court hearing notice to an accused charged with an indictable offence, absent any underlying power to do so. The use of the words 'as the case requires' is directed to identifying which of the notices is applicable, depending on the type of offence. No party submitted otherwise.
Common law position
It is also relevant to consider the common law context within which the matters arise.
As observed by Hall J (as his Honour then was) in Tallot v Mattier, it is an essential principle of the criminal law that in general the trial of an indictable offence be conducted in the presence of the accused and that the accused, by reason of his presence, should be able to understand the proceedings and decide what witnesses to call. This principle is reflected in both the common law, see Ebatarinja v Deland,[28] and in s 88 and s 144 of the CP Act.[29]
[28] Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 [26].
[29] Tallot v Matier [2012] WASC 290 [11] ‑ [12].
Section 88 of the CP Act applies to prosecutions in superior courts. Section 144 of the CP Act, which applies to any prosecution, provides that in the trial of a charge, the accused is entitled to defend the charge by leading evidence or making submissions on the evidence and to cross‑examine any witness and to call, examine and re‑examine any witness.
There are provisions of the CP Act which expressly provide that an accused does not need to be present. Section 55 is one of them. Another is s 140 of the CP Act which provides that if an accused conducts themselves in a manner that makes it impracticable to continue proceedings in his or her presence, the court may order the accused to be removed and for the proceedings to proceed in the accused's absence.
Accordingly, to the extent that s 60(7) of the CP Act was intending to permit a court to proceed to hear and determine the charge in the absence of the accused, I consider that as a matter of construction this ought to be clear from either the wording of the provision or as a matter of construction of s 60(7) in the context of the CP Act as a whole.
Purpose of s 55 and s 60 of the CP Act
It is also necessary, when construing s 60(7) of the CP Act, to consider the purpose of the provision. Given the interaction between s 60(7) and s 53, s 54 and s 55 of the CP Act, it is also necessary to consider the purpose of each of these provisions. When considering the purpose, it is necessary to consider the purpose as revealed from the text and any permissible extrinsic materials, as opposed to any preconceived notions of policy or purpose.[30]
[30] Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [177] - [178] and the authorities cited therein.
The purpose of s 53 ‑ s 55 of the CP Act is to outline the procedure that is to be applied on a charge of a simple offence when there is no appearance by both parties (s 53), or the prosecutor (s 54) or the accused (s 55).
Section 55 has an additional purpose of providing the court with the option of adopting a streamlined and simplified procedure to deal with a charge of a simple offence in very specific circumstances. Those circumstances are where the prosecutor appears; the accused has not pleaded guilty; the court is satisfied that the accused has been served with the prosecution notice; and the court is satisfied that the accused has been served with a court hearing notice (or approved notice), notifying the accused of the date and that the court may deal with the charge in the accused's absence. In these very specific circumstances, the court has a discretion to hear and determine the charge in the accused's absence and, in doing so, may take as proved any allegation in the prosecution notice containing the charge.
As explained by Beech J (as his Honour then was) in Saad v Baron:[31]
In a situation where an accused does not appear at all, whether in person or by counsel, the purpose and rationale of s 55 may readily be deduced. In that situation, two things can safely be said that explain s 55. First, the accused has chosen not to contest the charges. That may reflect the absence of interest in or concern about the charge, or it may reflect the absence of any issue with what is alleged. Secondly, there is no-one in the court to dispute the prosecution case. In those circumstances, the legislature has evidently determined that proof by the prosecution is unnecessary. The process is, as expressed by both counsel, 'streamlined' by permitting the court to take any allegation in the prosecution notice to be proved, without evidence.
[31] Saad v Baron [2012] WASC 507 [62].
The purpose of s 55 is to provide an alternative pathway by which the guilt of the accused can be established, being one that does not require the attendance of the accused and one which relieves the prosecution of the burden of establishing the accused's guilt on the basis of admissible evidence and to the criminal standard.
The respondent submits that the overall aim of s 60 of the CP Act is to programme matters being tried summarily to a trial date expeditiously, and to ensure that they are deal with without undue delay. The respondent submits that an interpretation of s 60(7) which extends the operation of s 55 of the CP Act to either way offences achieves this aim.
I do not accept that the respondent's characterisation of the purpose of s 60 of the CP Act. There is nothing in the text of s 60, or pt 3 div 6 of the CP Act, which is concerned with expedition or delay. Section 60 sets out the procedure to be followed when dealing summarily with any charge and the accused has entered a plea of not guilty. The various subsections make provision for adjournments to enable disclosure and provide that those adjournments can either be to the trial date or to a date before the trial date.
The respondent submits that Mr McKenzie's construction of s 60(7) would render the subsection nugatory. The respondent submits that regardless of the type of offence involved, matters to which a not guilty plea has been entered must be adjourned for disclosure to be provided, and the date to which the matter must be adjourned may be the trial date. The respondent submits that s 60(7) applies only where the failure to appear occurs on the trial date, and come the trial date, nothing in s 60 of the CP Act requires any further adjournment of the matter.
I do not accept the premise of the respondent's submission. Section 60(7) does not prevent a further adjournment of the charges on the trial date. There may be a number of reasons why an adjournment might be sought and granted, including for example illness on the part of the accused or a need for further disclosure. Section 60(7) must also be read in the context of the general power of the court to adjourn a charge under s 75 of the CP Act. Section 75(2) of the CP Act applies 'at any time' and therefore also applies on the date of the trial. There is nothing in the wording of s 60(7) that excludes the operation of s 75 of the CP Act.
I also do not accept that Mr McKenzie's construction renders s 60(7) of the CP Act nugatory. The purpose of s 60(7) of the CP Act is to enable the court, on the trial date only, to exercise the powers contained in s 53, s 54 and s 55 of the CP Act in relation to a simple offence, even if the court is dealing with that simple offence under pt 3 div 6 absent any requirement to do so under pt 3 div 5 of the CP Act. That is, if the court is proceeding under route two. The court already has the power to do this in relation to a simple offence which the court is dealing with in accordance with route one pursuant to s 57(2) of the CP Act. However, s 57(2) of the CP Act does not extend this power in relation to simple offences being dealt with under pt 3 div 6 pursuant to route two.
For an either way charge being tried summarily, if the prosecutor or the accused fails to attend on the trial date, then the court instead proceeds in accordance with s 38(1) and s 38(2) of the CP Act, as applicable. If it is the accused who has failed to appear, then the court must adjourn the charge and issue either a summons or make an order under s 31(2)(b) of the Bail Act 1982 (WA) or issue an arrest warrant.
Authorities
I was not referred to any authority which directly addressed the question of statutory construction raised by this appeal. Whilst some authorities have discussed s 55 of the CP Act, they have not considered this specific question of construction.
In Tallot v Matier,[32] Hall J considered an appeal from a decision of a magistrate to deal with an offender pursuant to s 55 of the CP Act for the either way offence of obstructing a police officer contrary to s 172(2) of the Criminal Code. The offender, whilst appearing at two mentions for this charge, refused to provide his name. On the second mention at which this occurred (that is, not the trial date), the magistrate proceeded to convict the appellant pursuant to s 55 of the CP Act. The appeal was conceded by the respondent. Hall J concluded that the magistrate had made a clear error of law in convicting the appellant pursuant to s 55 of the CP Act in circumstances where the offence was not a simple offence.[33] However, in reaching this conclusion, his Honour was not required to, and did not, consider the interaction between s 55 and s 60(7) of the CP Act.
[32] Tallot v Matier [2012] WASC 290.
[33] Tallot v Matier [2012] WASC 290 [9] and [12].
In Saad v Baron,[34] Beech J (as his Honour then was) considered the meaning of the word 'appeared' for the purposes of s 55 of the CP Act in the context of a simple offence. In Happy Cruising Pty Ltd v City of Gosnells,[35] the Court of Appeal considered the interaction between s 55, s 60 and s 153 of the CP Act in the context of a simple offence where the offender was a corporation. To the extent aspects of these decisions have some relevance to the present case, I have referred to those decisions in the relevant place in the body of these reasons.
Particular (c) - if s 55 of the CP Act applies, what are the statutory conditions and were they met here?
[34] Saad v Baron [2012] WASC 507.
[35] Happy Cruising Pty Ltd v City of Gosnells[2023] WASCA 112.
Particular (c) of ground 1 proceeds on the assumption that s 55 of the CP Act applies to an either way charge. In light of my conclusion that s 55 does not apply to an either way charge, it is not strictly necessary to consider this particular. However, as the matter was fully argued before me and was the subject of further submissions, I have set out my conclusion in relation to this particular.
There is no evidence that all of the preconditions for the exercise of the discretion under s 55 of the CP Act as drafted to hear and determine the charge in Mr McKenzie's absence were met. The transcript does not reveal any evidence that Mr McKenzie had been served with a court hearing notice, or an approved notice, notifying him of the trial date and that the court may deal with the charge in his absence if he did not appear on that date. Mr McKenzie was also on bail, and therefore was required to attend court on the trial date. The respondent does not assert otherwise.
Rather, the respondent's case is that in a circumstance involving an either way charge the effect of s 60(7) of the CP Act is that it is not necessary for all of the preconditions to the exercise of s 55 of the CP Act to be met. Specifically, the respondent submits that it is not necessary for a hearing notice or an approved notice, with the information referred to in s 55(2) of the CP Act, to have been served on an accused.
The respondent submits that where s 55 applies pursuant to s 60(7) of the CP Act, the preconditions which must be met are those contained in s 60, namely:
(1)the accused must have pleaded not guilty (s 60(2));
(2)the court must be satisfied that disclosure obligations under s 61 and s 62 of the CP Act have been met (s 60(3)); and
(3)the accused must fail to appear on the date of trial (s 60(7)).
The respondent submits that there are two distinct routes by which the discretion under s 55 may be exercised: for simple offences, where the requirements of s 55 of the CP Act must be met, and for either way offences, where the requirements of s 60 of the CP Act must be met. The respondent submits that s 60(7) applies s 55 to either way offences with the necessary modifications to the text of s 55 of the CP Act.
The respondent submits that this construction is consistent with the rationale that underpins s 55 of the CP Act, as well as the overall legislative scheme of the CP Act. In particular the respondent, referring to the decision of Saad v Baron,[36] submits that the process contained in s 55 of the CP Act provides a streamlined procedure to determine a charge so that the processes of the court cannot be frustrated by recalcitrant, obstructive or indifferent defendants.
[36] Saad v Baron [2012] WASC 507 [62].
The respondent accepts there is a requirement for the accused to be fairly informed before proceeding in their absence. In the case of a simple offence, the respondent says that occurs by way of a court hearing notice, which will often be the only communication to the accused regarding procedure because there is no requirement that an accused appear in person. However, for an either way offence, the effect of s 60(7) of the CP Act is that the procedure in s 55 of the CP Act can only apply after the entry of a not guilty plea and after disclosure has occurred, and it can only occur on the first day of trial. That is, the accused is fairly informed by different means. These differences reflect the different procedural steps between simple and indictable offences.
Accordingly, the respondent submits that differences in the preconditions for the exercise of the power contained in s 55 of the CP Act between simple offences and either way charges reflect a deliberate policy choice.
I do not accept the respondent's submission in this regard. There is nothing in the text of s 60 of the CP Act, or any other provision, which supports the construction advanced by the respondent.
The reference to 'as the case requires' in s 60(7) of the CP Act is directed towards identifying which of s 53, s 54 or s 55 of the CP Act apply on the facts of the case. There is nothing in the text of s 60(7) of the CP Act which modifies the application of s 55 in the case of an either way charge or indicates how it is modified. There is also nothing in the text of s 55 which qualifies its operation in the case of an either way charge.[37] There is nothing in the text of the CP Act which suggests that s 55 of the CP Act applies in two different ways, depending on the type of the offence and whether the court date is the trial date.
[37] See also Happy Cruising Pty Ltd v City of Gosnells[2023] WASCA 112 [45] and [59].
I also do not accept the respondent's submission that the construction advanced is consistent with the rationale that underpins s 55 of the CP Act, as well as the overall legislative scheme of the CP Act. The respondent accepts that the operation of s 55 of the CP Act is contingent upon an accused being 'fairly informed' before proceeding in their absence. The respondent submits that this is achieved differently for simple offences and either way charges being tried summarily. However, there is nothing in the procedure detailed in the CP Act for indictable offences, including either way charges, which ensures that an accused is made aware that if they do not attend the first day of trial that the matter may proceed in their absence, whether by way of court hearing notice or otherwise. In a situation where the accused has received a summons, or is on bail, to proceed in the accused's absence would be contrary to the court document received by the accused or the terms of their bail.
Therefore, I do not accept the respondent's submission that the construction advanced by the respondent is consistent with the overall legislative scheme of the CP Act.
If s 55 of the CP Act applies to an either way charge in accordance with s 60(7) of the CP Act, a plain reading of the provisions of the CP Act would require the court to be satisfied of each of the preconditions contained in s 55 before exercising the power of summary conviction, and the associated aids to proof contained in s 55(4) of the CP Act for an either way offence. One of those preconditions is that the accused be notified 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.
As this did not occur in this case, even if s 55 of the CP Act does apply to either way charges being tried summarily, the magistrate made an error of law in convicting the appellant pursuant to s 55 of the CP Act in circumstances where the preconditions to the exercise of the power were not met.
Ground 2 - has the discretion miscarried?
Ground 2 assumes that s 55 of the CP Act applies to either way charges being tried summarily, and the preconditions to its exercise were met, and alleges a miscarriage of justice in the exercise of the discretion under s 55 of the CP Act to hear and determine the charge, as opposed to adjourning the charge.
Mr McKenzie submits that the discretion has miscarried in terms of the process that was followed, in that Mr McKenzie was effectively denied procedural fairness in proceeding in his absence in all the circumstances of this case. Mr McKenzie says that this denial of procedural fairness was not confined to his inability to participate in the trial, but also resulted in the prosecution being able to rely on the aids to proof contained in s 55 of the CP Act as opposed to establishing guilt with admissible evidence and to the criminal standard.
In alleging a miscarriage in the exercise of a judicial discretion, the appellant is required to establish an error of the type outlined in House v The King.[38] It is not sufficient to demonstrate that the appeal court would have exercised the discretion differently to the primary judge. Rather, it is necessary to demonstrate an error in the exercise of the discretion. Such errors include acting upon a wrong principle, having regard to extraneous or irrelevant matters, a mistake as to the facts and failing to take into account a material consideration. In addition, even if a specific error cannot be identified, the outcome may reveal an error in the exercise of discretion as follows:[39]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[38] House v The King (1936) 55 CLR 499, 504 - 505.
[39] House v The King (1936) 55 CLR 499, 505.
In my respectful opinion, in the circumstances of this case a reasonable exercise of discretion could only have resulted in a decision to adjourn the trial, and the decision to proceed was unreasonable and plainly unjust. The factors relevant to my conclusion in this regard are as follows.
First, this was the first trial date set for this charge and Mr McKenzie had telephoned his counsel on the morning of the trial to advise that he had forgotten about the trial and would not be able to attend court.
Secondly, the appellant's counsel was present in court and had conveyed the position to the magistrate.
Thirdly, and significantly, when the learned magistrate asked the prosecutor if he was in a position to proceed with the trial, the prosecutor indicated that they were not.
Fourthly, there is no indication in the transcript that Mr McKenzie was aware that the charge could be heard in his absence, as distinct from Mr McKenzie being aware of the trial date.
In the above circumstances, the effect of the learned magistrate's decision was to record a conviction in circumstances where, had the prosecution been put to proof, the prosecution would not have been in a position to proceed and establish guilt with admissible evidence and to the criminal standard. Further, the discretion was exercised in circumstances where Mr McKenzie had maintained a not guilty plea and there is no evidence that Mr McKenzie was aware that the charge could be determined in his absence.
In these circumstances, I am satisfied that a reasonable exercise of discretion could only have resulted in a decision to adjourn the trial, and the decision to hear and determine the charge in Mr McKenzie's absence is unreasonable and plainly unjust and involves a miscarriage of justice.
In reaching this conclusion, I have not overlooked that Mr McKenzie had failed to attend court in accordance with his bail conditions on one previous occasion. However, this was the first trial date for the charge.
I have also not overlooked that when the learned magistrate asked Mr McKenzie's counsel if any defences were open or raised on instructions, counsel replied that there were not. However, it is not clear from the transcript precisely what this question was asking. It is not clear whether her Honour was asking counsel whether there were any defences at all, or whether there were any defences which Mr McKenzie was required to give notice (for example, alibi evidence or expert evidence;[40] a plea of a previous conviction or acquittal under s 17 of the Criminal Code;[41] or a plea of unsoundness of mind under s 27 of the Criminal Code[42]).
[40] CP Act s 62.
[41] CP Act s 126(1)(c).
[42] CP Act s 126(1)(d).
In the reasons for entering a judgment of conviction under s 55 of the CP Act, her Honour also refers to the capacity under s 71 of the CP Act for Mr McKenzie to apply to set aside that conviction. I do not consider this is a sufficient reason to enter a judgment of conviction in the circumstances of this case and does not address the inability of the prosecution to proceed to trial.
Finally, for completeness, I am of the view that the mere fact that Mr McKenzie was facing a serious charge, with a term of imprisonment as a possible sentence, is not in itself a sufficient basis upon which to find a miscarriage of justice in the exercise of the discretion. I have reached this conclusion on the assumption (as required by this ground) that s 55 of the CP Act does apply to either way offences. If this is assumed, then the CP Act envisages that s 55 can apply to more serious offences where a lengthier term of imprisonment is a possible sentence.
Does the proviso under s 14(2) of the CA Act apply?
The conclusion that the learned magistrate made an error of law does not conclude the appeal. Section 14(2) of CA Act provides that even if a ground of appeal might be decided in favour of the appellant (as has occurred here), the court may nonetheless dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
I do not consider that it can be said that there has been no substantial miscarriage of justice. The effect of proceeding under s 55 of the CP Act on 18 May 2023 was that the prosecution was relieved of the burden of establishing Mr McKenzie's guilt on the basis of admissible evidence and to the criminal standard. Rather, the prosecution was able to take advantage of the aids to proof contained in s 55(4) of the CP Act, in circumstances where the prosecution was not ready to proceed with the trial. Mr McKenzie was denied the opportunity of contesting the prosecution evidence and making submissions.
I consider this to be such a serious departure from the essential requirements of the law that it went to the root of the proceedings and leaves no room for the operation of the proviso.[43] In these circumstances, I do not consider it is necessary for Mr McKenzie to demonstrate a defence or even an arguable defence.[44] The respondent did not submit otherwise.
[43] Tallot v Matier [2012] WASC 290 [11] - [13]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 372 - 373; King v City of Perth [2023] WASC 252 [44] ‑ [56].
[44] Saad v Baron [2012] WASC 507 [31].
Conclusion
For the above reasons, the learned magistrate made an error of law in proceeding to hear and determine the charge in Mr McKenzie's absence in accordance with s 55 of the CP Act.
I make orders to the following effect, and will hear further from the parties as to any other appropriate orders, including as to bail:
1.Leave to appeal granted on all grounds.
2.Appeal allowed.
3.The conviction entered for charge KR 1000/2022 on 18 May 2023 is set aside.
4.The sentence imposed for charge KR 1000/2022 on 21 February 2024 is set aside.
5.Charge KR 1000/2022 is remitted to the Magistrates Court, differently constituted, to be determined according to law.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to the Honourable Justice Seaward
22 NOVEMBER 2024
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