Newman v Adam - [2012] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NEWMAN -v- ADAM [2012] WASC 380

CORAM: HALL J

HEARD: 29 AUGUST 2012

DELIVERED : 18 OCTOBER 2012

FILE NO/S: SJA 1009 of 2012

BETWEEN: CAMERON NEWMAN
Appellant
AND
GEORGE ROSS ADAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P RICHARDSON
File No  :AR 1444 of 2011, AR 1445 of 2011

Catchwords:

Criminal law - Magistrates Court - Appeal against conviction - Whether separate charges in respect of same matter can co-exist - Whether open to prosecution to prefer new charge before discontinuing original one - Whether appellant prejudiced by failure of prosecution to call a witness - Whether appellant had an opportunity to apply for trial on indictment on new charges

Legislation:

Criminal Code (WA), s 5
Criminal Procedure Act 2004 (WA), s 21, s 40, s 87

Result:

Leave to appeal refused in respect of grounds 1 to 6
Leave to appeal granted in respect of ground 7
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms C A Fletcher

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

R v Apostilides (1984) 154 CLR 563
TL (a child) v The State of Western Australia [2005] WASCA 173
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657; (1983) 49 ALR 448

HALL J:

Introduction

On 20 December 2011 the appellant was convicted of one charge of burglary and one charge of assault occasioning bodily harm. Those convictions followed a trial in the Magistrates Court at Armadale on 31 August 2011. The appellant was sentenced to a global fine of $750 and granted spent convictions in respect of both offences. He now seeks leave to appeal against his convictions.
At all relevant times the appellant has been self‑represented. This case is a good example of how a self‑represented person can misunderstand the legal process. Sometimes a misunderstanding can foster a mistaken belief that an injustice has occurred. That is what has occurred here.
The appellant filed an appeal notice on 17 January 2012. The appeal notice stated that the grounds were as per an attached affidavit of the appellant. That affidavit set out, in 93 numbered paragraphs and 26 pages, the appellant's account of the proceedings that resulted in his convictions. As it was unclear what grounds of appeal the appellant wished to argue, a directions hearing was convened on 16 August 2012. At that directions hearing seven proposed grounds of appeal were identified. They are as follows:
1.the magistrate erred in law in proceeding to hear the charges when other charges in respect of the same matter were pending in the District Court;
2.the magistrate erred in law in proceeding to hear the charges when she had no jurisdiction to do so because the charges were commenced outside the 12 month limitation period;
3.the magistrate erred in law in denying the appellant procedural fairness in that the hearing was conducted without the appellant being provided, in advance of the trial, with a statement of material facts and a copy of the prosecution notice and thus he did not have sufficient notice of the case against him;
4.the magistrate erred in law by permitting the complainant to read from her statement rather than giving her evidence in narrative form in circumstances where she had changed her story;
5.there was a miscarriage of justice in that the appellant was given a witness list that included the name of a person who he expected that the prosecution would call but was not called, no explanation was given and the appellant had no reasonable opportunity to call her himself (in circumstances where that witness was a material witness to the facts);
6.there was a miscarriage of justice because the Armadale Magistrates Court had convicted the appellant in his absence and then subsequently heard a trial in respect of the same charges and this created a perception of bias;
7.the magistrate erred in law by failing to comply with s 40(2) of the Criminal Procedure Act 2004 (WA) in that the appellant was not given an opportunity to apply to be tried on indictment.
The last proposed ground was an issue raised by counsel for the respondent at the directions hearing as being a matter that was potentially arguable. The appellant adopted the suggestion as one of his grounds.

Background

In order to understand the proposed grounds of appeal it is necessary to refer to the history of the court proceedings. Those proceedings were not straightforward and that is a factor that has contributed significantly to the appellant's confusion and feelings of grievance.
The prosecution case was that on 5 February 2010 the appellant and his former partner, Ms Krista Moonie‑Smith, had an argument. As a consequence, Ms Moonie‑Smith sent a text message to a friend, Ms Melissa Buchanan, asking Ms Buchanan to pick her up. Ms Buchanan collected Ms Moonie‑Smith and took her to her home in Byford. At about 4.00 am the next morning Ms Buchanan was woken by Ms Moonie‑Smith who said that the appellant was outside.
The prosecution case was that Ms Buchanan had gone to the door and spoken to the appellant but refused him entry. He had then forced open the door causing bruising to Ms Buchanan's leg. It was alleged that he had then entered the house and pushed Ms Buchanan in the arms and chest causing her to receive a scratch on her chest and a bruise under her arm. The pushing continued to Ms Buchanan's upper neck, throat area and upper arms. Ms Buchanan said she would call the police and the appellant then left. I will refer to the evidence called in respect of these allegations later in these reasons.
On 30 March 2010 the appellant was charged with two offences. They were burglary (charge AR 4228/10) and common assault (charge AR 4229/10). The assault charge was amended on 20 April 2010 to include an allegation of bodily harm being done to Ms Buchanan. Following that amendment both charges were indictable. The appellant entered pleas of not guilty and was committed for trial to the District Court on 27 August 2010.
On 12 October 2010 the State filed an indictment containing one aggravated burglary charge. A notice of discontinuance was filed in respect of the assault charge. It is clear that the assault charge was discontinued because the burglary charge included the commission of the assault as an element. The burglary charge was reframed to include a circumstance of aggravation, namely that it was alleged that immediately before the commission of the offence the appellant knew or ought to have known there was another person in the place: s 400(1)(b) Criminal Code.
On 12 November 2010 the appellant appeared before Martino CJDC in the District Court. At that time counsel for the State advised his Honour that the State wished to discuss with the appellant the possibility of a resolution without the need to proceed to trial. The appellant stated that he was happy to talk to the DPP, though he expressed a concern about disclosing too much of his defence. His Honour said that that was a matter for the appellant, but asked the appellant to provide his address and contact telephone number, which he did. The proceedings were then adjourned to 3 December 2010.

Proceedings in the District Court on 3 December 2010

On 3 December 2010 counsel for the State advised Martino CJDC that the State had decided to discontinue the then current charge and replace it with a new burglary charge which did not include the circumstance of aggravation. The State proposed filing the new charge in the Magistrates Court to enable it to proceed summarily. The State prosecutor said that the prosecution were seeking an adjournment of the existing District Court indictment to 28 January 2011 to enable the commencement of new charges before the existing charge was discontinued.
In a letter dated 1 December 2010 sent by the State to the District Court registry (and copied to the appellant), the State had advised of its intentions in regard to the charges. The letter stated that the brief and evidence would remain 'exactly the same'. In a letter to the registry dated 3 December 2010 the appellant referred to the State's letter and said that he considered that it was his right to have the current indictable charge heard before a jury and determined. He said that he objected to having to enter a plea again to different charges whilst his plea of not guilty was still in place for the existing indictment.
The appellant reiterated these objections in the proceedings on 3 December 2010. He said he was not happy about 'it going to the Magistrates Court 'cos there are also other issues of interest or conflict'. Martino CJDC explained that what the State was proposing was a procedure that would enable the appellant to go to trial in the Magistrates Court on a charge that, while serious, was not as serious as the charge that he was facing in the District Court in terms of the available maximum penalty. The appellant said that he understood that but he would prefer the current charge to be heard before a jury of his peers.
The State prosecutor said that a consultant State prosecutor had reviewed the matter and:
[F]ormed the view it's not in the public interest for a jury trial in this case, and it can adequately be dealt with by the Magistrates Court; that there's adequate sentencing discretion available to the magistrate. And the matter would be an either way offence should we recommence in the Magistrates Court. And, we've considered section 5 criteria, and I would be exceptionally surprised if, on an objection on a section 5 application, the accused was successful in having this matter committed to the District Court (ts 3.12.10, page 10).
Martino CJDC then said that he would give the appellant an opportunity to be heard as to whether the District Court should receive a notice of discontinuance and he would adjourn the matter to 28 January 2011 for the purpose of hearing argument on that question. His Honour then directed the appellant's attention to s 87 of the Criminal Procedure Act (CPA).
In the course of explaining what the prosecution was proposing Martino CJDC responded to a question from the appellant as to whether the prosecution was discontinuing the current charges at that point in time. His Honour responded in the following terms:
They propose to do that; the State proposes to do that on 28 January. And they're asking for that time to enable them to commence the other prosecution in the Magistrates Court.
Now both prosecutions can't proceed. As I understand it, they relate to the same matter.
Accused: Yes
Martino CJDC: But what's proposed is a procedure to enable the matter to go to trial in the Magistrates Court. That is what's proposed (ts 3.12.10, page 9).
The reference by Martino CJDC to both prosecutions not proceeding in respect of the same matter has been relied upon by the appellant. His understanding of that statement was that it was not open for new charges in respect of the same incident to be commenced in the Magistrates Court while the District Court indictment was still pending. When seen in proper context, it is plain that Martino CJDC was not suggesting that two sets of charges relating to the same matter could not be on foot at the same time, in fact he was explaining that that is what would occur, but only because the prosecution proposed to discontinue the District Court indictment. His Honour's reference to both prosecutions not proceeding clearly meant that both sets of charges could not proceed to a conclusion.

The new charges

On 17 December 2010 Sergeant George Adam, the respondent in these proceedings, signed a new prosecution notice. That prosecution notice contained two charges; burglary (AR 1444/10) and assault occasioning bodily harm (AR 1445/10). As had been adverted to in the District Court the new burglary charge did not include the circumstance of aggravation that the appellant knew or ought to have known that there was another person in the place where the offence was alleged to have been committed.
Sergeant Adam served a copy of the prosecution notice, a statement of material facts and a court hearing notice on the appellant on 17 December 2010 and completed a service certificate to that effect. The court hearing notice states that the new charges were to be mentioned in the Armadale Magistrates Court on 18 January 2011.
The appellant did not appear in the Armadale Magistrates Court on 18 January 2011. A transcript of the proceedings on that date indicates that the prosecutor referred to other charges being discontinued in the District Court and there being a need for protective bail conditions. The magistrate noted that service of the prosecution notice was proven and adjourned the matter to 8 February 2011 with an order that a summons was to issue to the appellant.
The court copy of the prosecution notice for charges AR 1444/10 and AR 1445/10 has an annotation by the magistrate in the following terms, 'ADJ. 8/2/11 for sentence'. This annotation might give the impression that the appellant had been convicted of the new charges on 18 January 2011. In fact it is clear from the transcript that the annotation is incorrect. Furthermore, these charges subsequently went to trial in the Magistrates Court on 31 August 2011 which is inconsistent with there having been any conviction on 18 January 2011. The incorrect entry has, however, been the source of some confusion for the appellant.

Proceedings in the District Court on 28 January 2011

On 28 January 2011 the application by the State to discontinue the indictment pending in the District Court came on for hearing. A copy of the prosecution notice in respect of the new charges was provided to the court. Martino CJDC noted that the copy of the prosecution notice referred to there having been no appearance by the appellant and that the matter had been adjourned to 8 February 2011 for sentence.
Counsel for the State said that she had contacted the police prosecuting branch who had indicated that that must be an error and that there had been no plea of guilty in the Magistrates Court as far as she was aware. The appellant was present when this was said. He disputed that he had received the prosecution notice for the new charges and stated that he had not been properly charged and had not pleaded to those charges.
As regards the discontinuance of the District Court indictment, the appellant said that he objected to that course and that he wished to go to trial on the indictment. He said he had not agreed to 'pleading down'. I assume from this that the appellant meant that he had not agreed to plead guilty to the burglary charge if the prosecution removed a circumstance of aggravation. That, of course, was his right. But it did not prevent the State from filing the notice of discontinuance and preferring fresh charges.
Martino CJDC noted that s 87(5) of the CPA provides that the court may consent or, in exceptional circumstances, refuse to consent to the discontinuance of a prosecution. His Honour said that the appellant would have an opportunity of defending the new charges and concluded that there were no exceptional circumstances that would justify the court refusing to consent to the discontinuance. He therefore allowed the prosecution's application to discontinue the indictment and discharged the appellant in respect of it.

Proceedings in the Armadale Magistrates Court on 8 February 2011

On 8 February 2011 the appellant appeared in the Armadale Magistrates Court on the new charges. The magistrate presiding on that day had available to her a copy of the District Court transcript of 28 January 2011 and confirmed that the earlier charges had been discontinued. The appellant asserted that he had not been arrested and charged with the new charges. The magistrate said that proof of service of the prosecution notice indicated that he had been personally served at his home address in Bertram in 17 December 2010.
A copy of the proof of service was provided to the appellant. When asked for a response, the appellant then said:
Proof of service, I haven't been charged, your Honour. I haven't been arrested and charged and at the time those charges came for 1444 and 1445 I was in the District Court fighting - well, still going with the charges 1429 (sic), 4229 and 4228 which are duplicate charges. They were in the District Court and that's where I was, that's where I was summonsed to, it was in that jurisdiction. It appears that what had happened is the police have just - and the letter for discontinuance of those charges was not handed in until 25 January (sic) so that means that it wasn't even been applied to be dismissed in the District Court at that time and then it's just like - it's been without me being charged, without any plea bargaining or negotiation, duplicate charges were just brought before this court. They have now been dismissed from that court and I'm here and I haven't been charged with that is what I'm saying, so ---
HER HONOUR: Mr Newman - yes - that's right those charges numbers 4228 and 4229 were discontinued in the District Court and the court was well aware that these matters were currently listed - that's 1444 and 1445 - were already listed in the Armadale Magistrates Court, so the chief judge was aware that that was the case. Now, if you are wanting to test those charges.
MR NEWMAN: Yes.
HER HONOUR: The court has no issue with that, simply enter pleas of not guilty, the matter goes to trial and then they're dealt with accordingly.
MR NEWMAN: I plead no jurisdiction, your Honour, because I haven't been charged with those charges.
HER HONOUR: When you say you haven't been charged that means you are saying that you haven't been served at all with any prosecution notice.
MR NEWMAN: My - I haven't been served with anything to come to this court (ts 8.2.11, pages 5 - 6).
The magistrate then said that she was satisfied that service of the prosecution notice was proven on the information before her. In those circumstances she entered pleas of not guilty to the charges and set the matter down for trial on 31 August 2011.

Trial in the Armadale Magistrates Court on 31 August 2011

On 31 August 2011 the appellant appeared before a different magistrate for the trial. At the commencement he submitted that the charges should be dismissed. He raised a number of arguments in that regard. One of those arguments was that the new charges had been commenced more than 12 months after the date on which the offences were allegedly committed. This was apparently a reference to the limitation period contained in s 21(2) of the CPA. Another argument was that because a notice of discontinuance had been filed in respect of the earlier charges, s 87(7) of the CPA had the effect of only permitting the appellant to be later charged for the same offence. The appellant argued that because the new charges were different to those that had been discontinued in the District Court, the new charges did not comply with s 87(7). For reasons that I will explain later, both of these arguments proceeded on a misunderstanding of the relevant statutory provisions.
The magistrate reserved her decision on the application to dismiss the charges and proceeded to hear the evidence. The decision to proceed with the evidence was in part influenced by the fact that the appellant expressed concerns about any further delay in resolving the matter. He also referred to the expense he would incur in attending on any other day because he had moved to Tasmania.
The trial was a short one and was completed the same day. The prosecution called the complainant and two police witnesses. The appellant did not give evidence.

The magistrate's decision - 20 December 2011

The magistrate delivered her decision on 20 December 2011. Her Honour found that the charges were lawfully and properly before the Magistrates Court and refused the appellant's application to dismiss them. Her Honour then considered the evidence and was satisfied on that evidence that each of the charges had been proven beyond reasonable doubt.
As regards the application to dismiss the charges, the magistrate noted that the current charges were 'either way' charges; that is, they could be tried either on indictment or summarily. As such, they were not charges for simple offences which would have to be commenced within 12 months. Rather, they were indictable offences for which charges could be commenced at any time: s 21(1) CPA. In any event, her Honour noted that the charges had been commenced by the signing of a prosecution notice on 17 December 2010 which was less than 12 months after the alleged commission of the offences on 6 February 2010.
As regards the argument relating to s 87(7) of the CPA, her Honour noted that that subsection states that a discontinuance does not prevent the accused being again charged with the same offence. She noted that the subsection does not say that an accused cannot be charged with a different offence.
As regards proof of the charges, her Honour summarised the evidence of the complainant in the following terms:
Melissa Buchanan told the court that on 5 February 2010 she received a message from her friend Krista Moonie‑Smith asking to be picked up. Ms Buchanan said she had duly picked up Ms Moonie‑Smith and took her to her home in Byford. Ms Moonie-Smith stayed at Ms Buchanan's house that night and the two women went to bed at about midnight.
Ms Buchanan said that at about 4.00 am the next morning, that is on 6 February 2010, Ms Moonie-Smith came into her bedroom and said the accused was outside the house. Ms Buchanan said she could hear someone knocking on a window at the door of her house. That window is near or next to her front door. Ms Buchanan said she went to her front door and opened it a distance of about 30 centimetres. She said her front door is made of wood and opens inwards into the house.
She said she kept her left leg behind the door so that it could open only a short distance. She said that she could see around the door and could see the accused on the other side of the door. She said she knew the accused as she had met him on several occasions previously. She said the accused was standing at the window near her front door.
Ms Buchanan said there was sufficient light to see the accused clearly and she was in no doubt as to who it was standing near her front door. Ms Buchanan said the accused asked her where Ms Moonie-Smith was and she responded that she was asleep. She said the accused asked her to wake Ms Moonie-Smith up and she refused to do so, given the early time in the morning.
Ms Buchanan said the accused then came towards her and said, 'Stop messing with my relationship' and started to push the front door back on her. Ms Buchanan said the accused was a little aggressive initially, but became very aggressive by that point. She said she did not invite the accused into her house and he did not ask to be let in.
Ms Buchanan told the court that the accused pushed the door against her left leg until, in her words, 'I couldn't stand the push any more of it against my thigh, so I've now like had the door completely open'. Ms Buchanan said she felt pain in her left leg. She said she suffered a bruise on her thigh as a result of the door being pushed back against her leg.
Ms Buchanan said the accused came into the house then uninvited and pushed her in the arms and chest area with his hands, pushing her away from him. She said she received a scratch on her chest and a bruise under her armpit as a result of the push. Ms Buchanan said that Ms Moonie‑Smith then came out to where the accused was. Ms Buchanan said that the accused then went for her again, this time coming at her upper neck, throat area and upper arms and again pushing her away.
She said the accused then stopped pushing her and she said she was going to call the police. She said the accused then left her house and went out towards his car which was parked at the front. Ms Buchanan did call the police and they attended a little later at her house. A police photographer took photos of her injuries two days later. Those photos were tendered into evidence and show clear bruising to Ms Buchanan's left thigh and upper arm. There was also a small scratch on her upper arm (ts 20.12.11, pages 4 - 5).
The magistrate then noted that the appellant had elected not to give evidence. Her Honour said that since the appellant was unrepresented his attention had been drawn to the fact that the evidence of Ms Buchanan contradicted his plea of not guilty. However, the appellant had persisted in his stance that he would not give evidence. Her Honour then turned to consider whether the evidence before the court was sufficient to satisfy her that each element of the charges was proven beyond reasonable doubt. She found Ms Buchanan to have been a credible and honest witness whose evidence was consistent and clear. On the basis of that evidence her Honour found each of the elements of both charges proven.

Ground 1 - Concurrency of two prosecutions for the same matter

The two proceedings for the original and new charges overlapped for the period between the commencement of the new charges on 17 December 2010 and the discontinuance of the District Court indictment on 28 January 2011. The appellant has argued that it was not open to the prosecution to commence new charges in the Magistrates Court while the District Court indictment was pending. He is incorrect.
There is no legal impediment to a new prosecution in respect of the same matter being commenced in circumstances where existing charges for the same matter are on foot. Subject to limited exceptions, a person cannot be convicted of an offence for which he has previously been convicted or acquitted: s 17 Criminal Code (WA). Nor can a person be punished again for conduct which has been the subject of a sentence for another offence: s 11 Sentencing Act 1995 (WA). However, neither of those provisions were applicable in the circumstances of this case. During the period that the two sets of charges co‑existed the appellant had not yet been convicted or punished in respect of any offence.
There may be circumstances where repeatedly charging a person in respect of the same events or pursuing a multiplicity of charges in respect of the same events could constitute an abuse of process. Whether that is so depends among other things, upon whether there is any legitimate justification for the course taken by the prosecution. In the present case it is clear that it was never intended that the appellant would have to face trial on different charges in different courts in respect of the same events.
It was the express intention of the prosecution to discontinue the indictment in the District Court and, as an alternative, proceed summarily with new charges in the Magistrates Court. The only reason that the two charges co‑existed for a short period was to give the police an opportunity to prefer the new charges in circumstances where bail conditions designed to protect the complainant would be sought.
No possible prejudice to the appellant arose from this procedure. He was informed that the indictment would be discontinued once the new charges had been laid. He was also informed that the brief and the evidence to be called remained the same. The material effect of the changes was that the prosecution did not persist with a circumstance of aggravation. Prior to the discontinuance the appellant faced a charge of aggravated burglary, which on indictment attracted a maximum penalty of 20 years' imprisonment. After the discontinuance, the appellant faced a charge of burglary, which on summary conviction attracted a maximum penalty of 3 years' imprisonment, and a charge of assault occasioning bodily harm, which also attracted a maximum penalty of 3 years' imprisonment on summary conviction. It is difficult to see how this could amount to an abuse of process or a miscarriage of justice.
To the extent that the appellant has persisted with his argument that s 87(7) of the CPA was an impediment to the laying of the new charges his argument is misconceived. That subsection provides that a notice of discontinuance does not act as a bar to a later charge of the same nature. It does not restrict the later charging of an accused person with a different offence. There is no need for this possibility to be referred to in s 87. The magistrate's reasons and decision in this regard were clearly correct.

Ground 2 - Were the new charges commenced outside the limitation period?

The new charges were for burglary, contrary to s 401(1)(b) of the Criminal Code and assault occasioning bodily harm, contrary to s 317 of the Criminal Code. In both cases the offences are described in the relevant sections as crimes, whether committed in circumstances of aggravation or not. An offence designated as a crime is an indictable offence: s 67 Interpretation Act 1984 (WA). Section 21(1) of the CPA provides that a prosecution for an indictable offence may be commenced at any time, unless another written law provides otherwise. There is no other written law to the contrary in respect of these two offences.
The appellant appears to have been of the mistaken belief that because the new charges were dealt with in the Magistrates Court they must have been simple offences. That is, of course, not so. Many indictable offences can be dealt with summarily by a magistrate. Where that occurs they do not change their character as indictable offences. An indictable offence is an offence that is of a kind that can be dealt with on indictment; but it is not necessary for all indictable offences to be so dealt with.
In the case of both burglary and assault occasioning bodily harm, the relevant provisions of the Criminal Code provide for a summary conviction penalty. Where a provision of the Code provides for a summary conviction penalty for an indictable offence, s 5 of the Code provides that the court is to try the charge summarily unless the court decides that it considers that it is appropriate to try the matter on indictment or some written law expressly provides that that should occur.
The charges of which the appellant was convicted were indictable not withstanding that they were dealt with summarily pursuant to s 5 of the Criminal Code. Accordingly, there was no limitation period applicable to them. The magistrate's decision and reasons were clearly correct and this ground of appeal is without merit.

Ground 3 - Denial of procedural fairness

There is a requirement that a person charged with an indictable offence must be provided with a written statement of material facts: s 35(4)(a) Criminal Procedure Act. That statement must be served before or at the time of the first court appearance unless it is impracticable to do so: s 35(9) CPA. An accused person is also entitled to receive a copy of a prosecution notice: s 26(1) CPA. The purpose of these requirements is to ensure that an accused person is properly informed of the nature of the allegations against them.
The appellant was served with a statement of material facts for the original charges on 31 March 2010. He was then served with a full committal brief on 17 January 2010. In its letter to the District Court of 1 December 2010 the DPP stated that the brief and evidence would remain exactly the same in respect of the new charges. This letter was evidently received by the appellant as he referred to it in his own letter of 3 December 2010. Furthermore, in the proceedings in the District Court on the same day it was made clear by Martino CJDC that the new charges related to the same matter except that the prosecution would not be maintaining the circumstance of aggravation. In these circumstances, the appellant was properly informed as to the nature of the allegations and the evidence to be relied upon by the prosecution in respect of the new charges.
Furthermore, there is evidence that the appellant was served with the prosecution notice, statement of material facts and a court hearing notice for the new charges on 17 December 2010. Whilst the appellant later denied receiving those documents, a proof of service was filed with the Magistrates Court and a finding that service had been effected was made on 8 February 2011. That service has also been confirmed in an affidavit of Sergeant Adam filed in these proceedings.
When the appellant appeared before the Magistrates Court on 8 February 2011 he was advised that he would receive 'full disclosure'. The trial was then listed for 31 August 2011 with a disclosure hearing listed for 8 July 2011. Sergeant Adam attests that the appellant was served with a full committal brief in respect of the second set of charges on 21 April 2011.
In these circumstances, the appellant's assertion that the trial in the Magistrates Court was conducted without him being provided with adequate notice of the case against him is not established. This ground of appeal is without merit.

Ground 4 - Did the complainant read from her statement?

Evidence of a witness‑in‑chief is normally elicited by means of questions and answers. The transcript of the trial reveals that that is what occurred in this case. The only references to the complainant's statement occurred in cross‑examination.
In cross‑examination the appellant put the complainant's statement to her and directed her to certain parts. He asked her to read out some portions. He did this in respect of matters that the complainant said she could not recall or in support of an allegation that there was inconsistency. There was some confusion because the appellant was relying on a handwritten version of the complainant's statement whereas she had a typewritten version. Whether in fact there were inconsistencies was doubted by the magistrate. What is clear from the transcript is that the complainant did not read from her statement other than where asked to do so in cross‑examination by the appellant.
There is no merit in this ground of appeal.

Ground 5 - Non-attendance of a witness

The appellant alleges that a miscarriage of justice arose because Ms Moonie‑Smith was not called at the trial by the prosecution. He says that he expected that she would be called, he was given no reasonable opportunity to call her himself and she was a material witness to the facts.
As mentioned earlier, Ms Moonie‑Smith was the appellant's ex‑partner and the mother of his child. She provided two statements to the police. In those statements she refers to witnessing part of the assault against Ms Buchanan and refers to the reasons why she was at Ms Buchanan's house on the morning of the incident. Both statements were included in the prosecution brief for the original charges. They were also part of the prosecution brief in respect of the new charges which was served on the appellant in April 2011. In these circumstances, the appellant may well have had an expectation that the prosecution would call Ms Moonie‑Smith.
However, Sergeant Adam has attested that when he served the appellant with the committal briefs for both the original and new sets of charges he told the appellant that he had been unable to contact Ms Moonie‑Smith and asked whether the appellant knew her whereabouts. Sergeant Adam said that he had established that Ms Moonie‑Smith had moved interstate and the appellant confirmed this but did not provide any contact details. He said that the appellant indicated to him that Ms Moonie‑Smith was unlikely to attend a trial of the charges.
At the commencement of the trial the police prosecutor informed the magistrate that he was calling only one civilian witness and two police witnesses to give evidence. During the cross‑examination of Ms Buchanan the magistrate stopped the appellant from putting a question regarding Ms Moonie‑Smith's motivation for asking the police to do a welfare check. The magistrate asked whether the appellant was calling Ms Moonie‑Smith and the appellant responded by asking whether she was a prosecution witness. The police prosecutor stated that the prosecution was not calling her. The prosecutor later provided an explanation saying, 'There are reasons for her non‑attendance. I can't go into them in this court but suffice to say the prosecution, your Honour, if we could have her here she would be here' (ts 31.8.11, page 70).
At the end of the prosecution case the appellant declined to give evidence in his defence. At that time he said that there were witnesses on the police prosecution witness list who he had thought would be attending. He was given an opportunity to reconsider his position in regards to giving evidence. He maintained his position and said that because not all of the evidence provided to him in the brief could be taken into account he believed he was prejudiced. He said he would not be able to take the stand because, 'Basically the evidence that I have to backup what I will say is not here today or has not been presented or admitted' (ts 31.8.11, page 70). He did not identify what that evidence was or on what basis he believed any witness, who he had expected would be called by the prosecution, would give such evidence. Given that the police statements of Ms Moonie‑Smith are generally corroborative of the evidence of the complainant it is difficult to see how her evidence could have been of any assistance to the appellant.
In any event, Sergeant Adam has confirmed that the reason the prosecution did not call Ms Moonie‑Smith at the trial was that she could not be located. Given Sergeant Adam's earlier discussions with the appellant, Ms Moonie‑Smith's absence at the trial could hardly have come as a surprise. The appellant must have been aware that the prosecution were having difficulties in locating her and, in these circumstances, it would have been open to him to have taken steps to have her available to be called for the defence if, for some unknown reason, he had an expectation that she could give evidence to support him. This is certainly not a case where there is any basis for concluding that the prosecution deliberately did not call Ms Moonie‑Smith out of fear that she would give evidence adverse to the prosecution case.
In any event, the prosecution case always critically depended upon the evidence of the complainant. Whilst Ms Moonie‑Smith may have been able to give evidence in regards to her presence at the house on that evening and the reasons for it, she appears to have been only physically present for the latter part of the alleged assault. In submissions to the magistrate the appellant appears to have been of the mistaken view that he could not be convicted on the testimony of the complainant alone. Even when disabused of this he chose not to give evidence in his defence.
The prosecution alone bears the responsibility of deciding whether a person will be called as a prosecution witness: R v Apostilides (1984) 154 CLR 563, 575 (Gibbs CJ and Mason, Murphy, Wilson and Dawson JJ). In general the prosecution should call all available witnesses whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657; (1983) 49 ALR 448, 460 ‑ 461; (Dawson J). That being said, there may be legitimate reasons why the prosecution is unable to call a witness. The failure to call a witness does not necessarily mean that there has been a miscarriage of justice. The particular circumstances of the trial in question need to be considered.
If the prosecution does not call a material witness a number of consequences may follow, one of which is the possibility of adjourning the trial to enable the witness' attendance, if requested. A decision of a prosecutor not to call a person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: R v Apostilides (575).

When viewed against the conduct of this trial as a whole it is impossible to conclude that the non‑attendance of Ms Moonie‑Smith gave rise to a miscarriage of justice. There was other reliable evidence available to establish both charges against the appellant. The prosecution case did not critically depend on Ms Moonie‑Smith and her absence did not support any inference (one way or the other). There is no basis for any suggestion that Ms Moonie‑Smith could or would have given evidence in support of the appellant had she been called as a witness. The appellant could not have been caught by surprise by her non‑attendance, he made no efforts to arrange her attendance himself and he did not seek an adjournment for that purpose. This ground is without merit.

Ground 6 - Was the appellant twice convicted in respect of the same charges?

The appellant has persistently maintained that he was convicted of the new charges in his absence in the Magistrates Court on 18 January 2011. The basis for this belief appears to be the entry on the Magistrates Court's copy of the prosecution notice that the matter was adjourned for sentence. There is no doubt that this entry is an error. The transcript of the proceedings of 18 January 2011 are available and they reveal that the matter was only mentioned on that day; there was no trial or conviction of the appellant in respect of the new charges at that time.
The issue was raised in the District Court on 28 January 2011 when the application to discontinue the indictment was heard. The mistaken belief of the appellant that he had been convicted in the Magistrates Court on the new charges in his absence was clearly corrected by Martino CJDC. There was no reasonable basis for the appellant to persist in that mistaken belief thereafter.
In any event, when the appellant next appeared in the Magistrates Court on 8 February 2011 he was asked to plead to the charges. Whilst he declined to do so and argued that the Magistrates Court had no jurisdiction, it is clear from the fact that the magistrate asked for a plea that no conviction had previously occurred. The appellant was informed by the magistrate at that point that if he wanted to test the charges he could enter a plea of not guilty whereupon the matter would go to trial.
The appellant's contention that he was convicted of the new charges on 18 January 2011 is without foundation. Accordingly, any issue of bias of the court does not arise and no miscarriage of justice has occurred. This ground is without merit.

Ground 7 - Was the appellant given an opportunity to have the new charges tried on indictment?

The new charges were 'either way' charges to which s 5 of the Criminal Code applies. The default position is that either way charges are to be tried summarily. This is apparent from the terms of s 5(1) and s 5(2):
(1)This section applies if -
(a)a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b)a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
(2)Despite section 3(2), the court is to try the charge summarily unless -
(a)on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
(b)this Code or another written law expressly provides to the contrary.
It is clear from s 5(2)(a) that an accused person may make an application to the court for an 'either way' charge to be tried on indictment. Section 40(2) of the CPA provides that where an offence is an 'either way' charge to which s 5 of the Criminal Code applies, the court must give the prosecutor and the accused 'an opportunity' to apply under that section for the charge to be tried on indictment.
Neither s 40 of the CPA or s 5 of the Criminal Code imposes on the court a duty to inform either the accused or the prosecutor of their ability to make an application for trial upon indictment. The current law in respect of charges of this nature is to be contrasted with the position that previously existed whereby an accused had to make an election to be tried summarily and in the absence of that election 'either way' charges had to proceed upon indictment. That position changed in 2004 with the intention of keeping less serious matters in the summary courts in order to reduce the backlog of cases in the District Court and to encourage the expeditious disposition of matters. It was intended that the amendment which is reflected in the present s 5 of the Criminal Code would ensure that the decision as to the mode of trial would be made by the courts, rather than being dependent upon any election by an accused: See Second Reading Speech, Criminal Code Amendment Bill 2003 (WA).
In TL (a child) v The State of Western Australia [2005] WASCA 173 the Court of Appeal considered the interaction between s 40(2) of the Criminal Procedure Act and s 19B of the Children's Court Act of Western Australia 1988 (WA). In referring to s 40 of the Criminal Procedure Act Wheeler JA said:
The duty under that section then, is to give to the prosecutor and the accused an opportunity to apply for the charge to be tried on indictment. The section is quite different, and presumably deliberately so, from the former s 574(4)(a) of the Criminal Code (WA), which required the Court to explain certain matters to the accused, and required the Court to ask the accused "to make his election". The authorities which were cited to us which dealt with s 574(4)(a), in my view, shed no light on s 19B and s 40 [11].
In TL the appellant had been represented by an officer from the Aboriginal Legal Service and had entered a plea of guilty to the charge. There was no suggestion that the court had at any stage asked the appellant whether he wished to make an application to have the charge dealt with on indictment. Her Honour went on to say:
While it would no doubt be desirable if, on each occasion when a child appears in relation to what is called an 'either way charge', the Court expressly advised the child of the right to make an election, s 40 of the Criminal Procedure Act does not require that to be done. The 'opportunity' of which the section speaks must be a real one, but the question of whether that opportunity has been afforded will depend upon the circumstances.
On this occasion, it is clear, both from the nature of [the ALS officer's] employment and from what he actually said to the Court, that he was familiar with the legal process and that he had had the opportunity of discussing the matter with the appellant prior to the appellant's appearance. In those circumstances, in the absence of any evidence from [the ALS officer] or the appellant to the contrary, it should be assumed that the appellant was aware of the ability to elect trial on indictment, and could have sought to do so instead of indicating that he wished to plead guilty. Indeed, as a practical matter, it can hardly be supposed that any person who wished to plead guilty would then, given the choice, choose to be dealt with the matter on indictment, since the penalty available to the Court in respect of a person so doing is significantly greater than that available where an offender is dealt with summarily [13] - [14].
The present case is different from TL in that the appellant was never represented by a lawyer and did not plead guilty to the new charges. However, the question of whether he was afforded an opportunity to make an application under s 5(2) Criminal Code depends upon a consideration of all of the relevant circumstances.
The first thing that must be noted is that the possibility of a s 5 application in respect of the new charges was referred to when the notice of discontinuance was first discussed in the District Court on 3 December 2010. At that time the State prosecutor said that the DPP had formed a view that the charges could be adequately dealt with by the Magistrates Court and that the new offences would be either way offences. She then said:
And we've considered s 5 criteria and I would be exceptionally surprised if, on an objection on a s 5 application, the accused was successful in having this matter committed to the District Court (ts 3.12.10, page 10).
That was clearly a reference to the new charges which at that stage it was proposed would be laid. The appellant was present when this was said and he has not suggested that he failed to understand that it remained open to him to make an application in the Magistrates Court for the new charges to be dealt with on indictment.
Thereafter the appellant had opportunities when he appeared in the Magistrates Court to make an application if he wished to do so. In particular, he had an opportunity to do so on 8 February 2011, at any time prior to the hearing date and on the hearing date of 31 August 2011. He made no such application.
It may be that the appellant did not make an application because he was under the mistaken impression that the new charges were simple offences. That mistake would be consistent with his argument in respect of ground 2. However, the question is not whether the appellant appreciated the possibility of making an application but whether he had an opportunity to do so. That must mean a reasonable opportunity having regard to the circumstances. A person is not denied an opportunity because they harbour idiosyncratic views that prevent them from appreciating the nature of the charges. In this case there was nothing that might have suggested to the magistrate that the appellant was labouring under some mistaken view that the charges were not indictable. His arguments to the magistrate were directed to other issues. In any event, any mistake as to the nature of the charges was not a reasonable one in light of what was said in the District Court on 3 December 2010.
Whilst the appellant opposed the notice of discontinuance and expressed a wish for the indictment to proceed to trial in the District Court it does not follow that he would necessarily have wished the less serious new burglary charge to proceed on indictment. His approach to the notice of discontinuance appears to have been dictated by a belief that he could achieve a tactical advantage by trying to force the prosecution to go to trial in respect of a charge which they wished to discontinue. He never expressed any view as to whether he wished the new charges to be dealt with on indictment. Nor has he done so on this appeal.
Even if the appellant had expressed a wish for the new charges to be tried on indictment there is no reasonable possibility that any magistrate would have acceded to such an application. Those charges would not, in my view, have met the requirements of s 5(3) Criminal Code and, in those circumstances, any application by the appellant would necessarily have failed. In those circumstances, even if it was arguable that the appellant was denied an opportunity to make an application to have the new charges dealt with on indictment no substantial miscarriage of justice has occurred: s 14(2) Criminal Appeals Act 2004 (WA).

Conclusion

The appellant has expressed strong views that he has been the subject of a grave injustice. He has maintained that there were serious errors in the processes that were followed, particularly in regard to the discontinuance of the original charges and the laying of the new charges. Whilst some confusion is understandable, the appellant's beliefs have been fuelled by misunderstandings as to the operation of the relevant laws and a refusal to accept what he has been told about that operation.
It may have been preferable if there had never been a need to discontinue the charges in the District Court, but these types of changes to charges can and do occur from time to time. Whilst the appellant was disposed to view the change as being one that was some how designed to prejudice him, there is no basis for that belief. I accept that what occurred here was that the prosecution, on a review of the case, concluded that it could properly be dealt with by differently framed charges in the Magistrates Court. That appears to be an entirely proper exercise of prosecutorial discretion.
I should note that, bearing in mind that the appellant has been unrepresented, I have taken the trouble to carefully read the transcript of all of the proceedings, including the transcript of the trial in the Magistrates Court of 31 August 2011. Whilst the process was to some extent a convoluted one, it is evident that the appellant was dealt with fairly and with politeness at each stage. In particular, the magistrate who conducted the trial gave the appellant every reasonable opportunity to defend himself and her conclusions were fairly open upon the evidence before her.
For the above reasons I have come to the conclusion that there is no merit in grounds 1 to 6. Accordingly, leave to appeal is refused in respect of those grounds. Ground 7 had more merit and I would grant leave in respect of it, but on analysis it cannot succeed. The appeal, therefore, is dismissed.

Orders

1.Leave to appeal in respect of grounds 1 to 6 is refused;
2.Leave to appeal in respect of ground 7 is granted;
3.The appeal is dismissed.