Paull v City of Gosnells
[2020] WASC 126
•17 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PAULL -v- CITY OF GOSNELLS [2020] WASC 126
CORAM: ACTING JUSTICE STRK
HEARD: 22 JANUARY 2019
DELIVERED : 17 APRIL 2020
FILE NO/S: SJA 1108 of 2018
BETWEEN: STUART GEOFFREY PAULL
Appellant
AND
CITY OF GOSNELLS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G R SMITH
File Number : PE 4143 of 2018
Catchwords:
Criminal law - Appeal against conviction - City of Gosnells Thoroughfares and Public Places Local Law 2012 - Trading on a public place without a trading permit - Whether the verdict of the Magistrate was unsupported by the evidence - Whether there has been procedural fairness - Whether there had been a miscarriage of justice - No miscarriage of justice - Magistrate's findings reasonable in all of the circumstances - No practical injustice
Legislation:
City of Gosnells Thoroughfares and Public Places Local Law 2012
Criminal Appeals Act 2004 (WA)
Evidence Act 1906 (WA)
Local Government Act 1995 (WA)
Result:
Leave to appeal refused on all grounds
Appeal dismissed on all grounds
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | T L Beckett |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gibbs v The State of Western Australia [2018] WASCA 68
Hoskins v Van Den‑Braak (1998) 43 NSWLR 290
JSS v The State of Western Australia [2014] WASCA 136
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Rodi v City of Joondalup [2014] WASC 330
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sherrit Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Strahan v Brennan [2014] WASC 190
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
The State of Western Australia v Olive [2011] WASCA 25
ACTING JUSTICE STRK:
Introduction
Mr Paull appeared in Perth Magistrates Court. It was alleged that on 14 November 2017, Mr Paull was at Langford Oval on Langford Avenue, Langford, and carried out trading on a public place without holding a valid trading permit contrary to the City of Gosnells Thoroughfares and Public Places Local Law 2012 cl 5.2(1)(a). In these reasons, I refer to the City of Gosnells Thoroughfares and Public Places Local Law 2012 as the Local Law.
Mr Paull was initially served with an infringement notice. He elected to challenge the infringement notice and consequently, the infringement notice was withdrawn and a prosecution was commenced (being charge PE 4143 of 2018).
Mr Paull entered a plea of not guilty and on 26 July 2018, following a trial, was convicted. Mr Paull was fined in the amount of $350 and ordered to pay costs in the amount of $3,500.
This is an appeal pressed by Mr Paull against conviction. Mr Paull contends that the learned Magistrate:[1]
(1)arrived at a decision without proper evidence to support it;
(2)took into account evidence that the Magistrate should not have; and
(3)failed to exclude evidence obtained unfairly.
[1] The appellant's appeal notice lodged on 23 August 2018.
For the reasons set out below, it is appropriate that leave to appeal be refused on all grounds and the appeal be dismissed with costs.
Leave to appeal
As the appeal was commenced within the prescribed period, Mr Paull does not require an extension of time to appeal.[2]
[2] Criminal Appeals Act, s 10(3), (4).
This is an appeal under the Criminal Appeals Act 2004 (WA) pt 2, and Mr Paull requires leave to appeal on each ground of appeal.[3] The court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[4] This means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[5] If leave to appeal is refused, the appeal is taken to be dismissed.[6]
[3] Criminal Appeals Act, s 9(1).
[4] Criminal Appeals Act, s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[6] Criminal Appeals Act, s 9(3).
It is appropriate that the application for leave to appeal be heard together with the appeal.[7]
[7] Samuels v The State of Western Australia [56], as contemplated by order 2 of the orders made by McGrath J on 18 October 2018.
Grounds of appeal
The appeal notice lodged by Mr Paull contains three grounds of appeal, summarised at [4] above. On 21 December 2018, Mr Paull lodged written submissions in support of the application and the appeal, which comprised two parts.
In the first part, Mr Paull raised thirteen issues described as 'contentions of law'. In the second part, Mr Paull raised five issues described as 'contentions of fact'. There was repetition in the issues raised.
The written outline went beyond the scope of the grounds of appeal identified in the appeal notice. However, the respondent was on notice of the issues for a considerable period prior to the hearing, and had the opportunity to consider and address each of the issues in the respondent's submissions.[8] As there was no prejudice to the respondent, all of the issues raised by Mr Paull in his written submissions were considered in the determination of the application and the appeal.
[8] Respondent's submissions lodged 15 January 2019.
The trial
The evidence
At trial, it was common ground that Mr Paull was the operator of a mobile coffee van, and that on 14 November 2017 he had parked the van in a public place,[9] being the public carpark at Langford Oval. Further, Mr Paull acknowledged that on 14 November 2017, he did not have a permit under the Local Law to trade on a public place.[10]
[9] ts 11 (26 July 2018).
[10] ts 2 (26 July 2018).
At trial, it was established that the public carpark at Langford Oval was within the district of the City of Gosnells. In this regard, the respondent tendered a certificate executed by the chief executive officer of the City of Gosnells, which certified that on 14 November 2017, 'Langford Park Sporting Complex, Langford Avenue, Langford' was within the district of the City of Gosnells.[11] By operation of the Local Government Act 1995 (WA) s 9.41(3), the certificate was evidence of the same.
[11] Exhibit A.
The respondent called Mr Nicholas Mariani, a former employee of the City of Gosnells, to give evidence. Mr Mariani gave evidence to the effect that on 14 November 2017:
(a)Mr Mariani was an employee of the City of Gosnells and was an authorised person under the Local Law.[12] He had the power to issue infringement notices;[13]
(b)Mr Mariani attended Langford Oval and observed Mr Paull in the public carpark between 5.00 pm and 5.30 pm. Mr Mariani remained in the vicinity of the public carpark for a maximum of 20 minutes.[14] Mr Mariani observed that Mr Paull had parked a brown van with a 'Coffees R Us' logo in a no parking area within the carpark, and that that there was an A‑frame sign placed next to, or in front of, the van which was advertising prices and product;[15]
(c)as to the sign that was placed next to or in front of the van, Mr Mariani observed that it had signage that related to beverages and the prices of the beverages, although Mr Mariani could not recall with any precision what was written on the sign. The sign remained in place for the period that Mr Mariani remained in the vicinity of the van;[16]
(d)the back of the van was opened and the door raised, and it remained open for the period that Mr Mariani remained in the vicinity of the van;[17]
(e)at the side of the van, Mr Mariani saw equipment for the preparation of beverages. He saw a coffee machine and products that were for sale (in this regard, he recalled in cross‑examination tea, coffee and chai products), although Mr Mariani could not recall with precision the products that he saw;[18] and
(f)Mr Mariani approached and spoke to Mr Paull; discussed with him that he was trading without a valid permit; and handed Mr Paull a copy of the Local Law. Mr Mariani's evidence was that Mr Paull said words to the effect that he believed that he did not need a permit as he had a formal trading agreement with the softball club which was also located in the sporting complex.[19]
[12] ts 16 (26 July 2018).
[13] ts 28 (26 July 2018).
[14] ts 21 (26 July 2018).
[15] ts 16, 18 ‑ 19 (26 July 2018).
[16] ts 22 (26 July 2018).
[17] ts 22 (26 July 2018).
[18] ts 19 (26 July 2018).
[19] ts 20, 28, 29 (26 July 2018).
In cross‑examination, Mr Mariani's evidence was that he could not recall if a generator was operating when he approached the van, nor could he recall whether he saw Mr Paull preparing any food or beverages, or selling anything to a customer on 14 November 2017.[20]
[20] ts 27 ‑ 28 (26 July 2018).
Photographs taken by Mr Mariani on 14 November 2017 at the public place were tendered, from which the location of the van, the sign, a white table, and Mr Paull can been seen.[21]
[21] Exhibit C.
Mr Mariani's evidence was that he subsequently prepared an infringement notice and issued it by mail to Mr Paull. The infringement notice was tendered into evidence as Exhibit D. A letter from the City of Gosnells addressed to Mr Paull was issued on 16 November 2017 and was tendered into evidence as Exhibit E.
The respondent also called Mr Ashraf Hoglin, an employee of the City of Gosnells and an authorised person for the purpose of the Local Law.[22] Mr Hoglin confirmed that Mr Paull did not hold a permit to trade on a public place on 14 November 2017.[23] Mr Hoglin also gave evidence that Mr Paull had prior to 14 November 2017 received a warning from the City of Gosnells in relation to trading without a permit.[24] An email communication from the City of Gosnells to Mr Paull dated 28 June 2017 was tendered into evidence as Exhibit F.
[22] ts 30 (26 July 2018).
[23] ts 31 (26 July 2018).
[24] ts 31, 32 (26 July 2018).
Mr Paull tendered no exhibits at trial, but gave oral evidence on his own behalf.
Mr Paull gave evidence to the effect that on 14 November 2017, he arrived at the public place at about the same time as Mr Mariani (that is, about 5.00 pm) and remained there until 7.30 pm, when he left with his son who had attended softball training at the oval.[25]
[25] ts 41 (26 July 2018).
Mr Paull gave evidence that while parked at the public place, he did not turn on the generator (which was required to be turned on in order to make coffee);[26] he did not sell coffee nor did he prepare coffee for sale.[27] The effect of Mr Paull's evidence was that he remained for about two and a half hours next to the van,[28] some 60 m ‑ 70 m from where his son was training.[29]
[26] ts 44 (26 July 2018).
[27] ts 45 (26 July 2018).
[28] ts 46 (26 July 2018).
[29] ts 51 (26 July 2018).
In relation to the sign which was next to the van, Mr Paull's evidence was to the effect that the sign did not display prices for goods. The side of the sign that could have prices inserted was facing towards the van and prices had not been inserted. The other side of the sign, facing away from the van, displayed the words 'Pop‑up Café'.[30]
[30] ts 45, 51, 52 (26 July 2018).
When first asked, Mr Paull was not readily able to explain why the sign was outside of the van. He then gave evidence that the sign would fall out of the van when he opens the back 'gate' of the van.[31]
[31] ts 52 ‑ 53 (26 July 2018).
In the course of giving evidence, Mr Paull gave evidence concerning the taking of orders.[32] A portion of Mr Paull's evidence is reproduced at sch A to these reasons.
[32] ts 47 ‑ 49 (26 July 2018).
In the course of cross‑examination, Mr Paull acknowledged that he took orders on 14 November 2017 for the upcoming weekend, but did not sell coffee to anyone that night.[33] Mr Paull later described his activity as having '[confirmed] to people who were existing customers that I would be there on the weekend and they confirmed to me that they would be coming to get coffees.'[34]
[33] ts 53 (26 July 2018).
[34] ts 56 (26 July 2018).
In cross‑examination, Mr Mariani's account of his conversation with Mr Paull was put to Mr Paull.[35] The transcript of the exchange is reproduced at sch B to these reasons.
The findings
[35] ts 62 (26 July 2018).
At trial, the learned Magistrate identified the issue of whether it had been established that Mr Paull was trading on 14 November 2017 as 'the only real issue' in contention.[36]
[36] ts 36, 71 (26 July 2018).
The learned Magistrate's reasons reveal that he had considered and weighed the evidence adduced at trial.[37]
[37] ts 71 ‑ 75 (26 July 2018).
His Honour accepted that there was no evidence that Mr Paull sold coffee or anything else on 14 November 2017, nor was Mr Paull engaged in the preparation of any food.[38] His Honour summarised the evidence adduced by the prosecution as follows:[39]
[O]ver a period of roughly 20 minutes, the [coffee] van was in the position which is shown in the photos. It's in a no parking area. It's parked on an angle. It's a very unusual place, in my view, for a parent whose only purpose is to be there to watch his child training or to pick up his child. It is parked in a very unusual manner. Mr Paull, on the evidence, according to the witness, was seen standing near his van on occasion, but there is no evidence that he was seen doing anything else.
[38] ts 71 (26 July 2018).
[39] ts 71 (26 July 2018).
The learned Magistrate observed that the prosecution's case relied upon the unchallenged evidence of Mr Mariani, being:
[T]hat the rear door of the [coffee] van was open for about 20 minutes, 20 minutes being the length of time that the witness was actually in the vicinity. I think some coffee vans sell coffee out of the side door, but Mr Paull has given evidence in this court that he sells it out of the rear door, and there's evidence that the rear door was open the whole time.[40]
[40] ts 72 (26 July 2018).
The learned Magistrate determined that little weight could be attributed to the oral evidence provided by Mr Paull. His Honour found Mr Paull's evidence to have been 'argumentative'; that it 'provided no plausible explanation' to rebut the evidence led by the prosecution; and further, that Mr Paull's changing story made his credibility as a witness suffer.[41]
[41] ts 73 ‑ 74 (26 July 2018).
A careful review of the transcript reveals that his Honour made the following findings of fact:
(a)Mr Paull did not have a permit under the Local Law to trade in a public place, being the public carpark at Langford Oval, on 14 November 2017.[42] (This was common ground.)
(b)There was no evidence that Mr Paull sold any coffee, food, or anything else on 14 November 2017, or that he was in fact engaged in the preparation of the same.[43] (This was common ground.)
(c)For over a period of over 20 minutes, Mr Paull's van was parked in the public carpark of Langford Oval as could be seen in the tendered photographs (being Exhibit C). The van was parked in an unusual manner in a no parking area. It was parked on an angle. Mr Paull was standing near his van. The van was parked in a very unusual place for a parent whose only purpose was to watch his child training or to pick up his child.[44]
(d)The rear door of the van was open for about 20 minutes (20 minutes being the time Mr Mariani remained in the vicinity).[45] When trading, Mr Paull would sell coffee from the rear door of the van.[46]
(e)There was a table set up near the rear of the van, but to the side. There was also an esky.[47]
(f)An A‑frame sign was deliberately set up in a position which was not at the back of the van. On one side, there was a list of things which were available for sale. It could be assumed that the sign would also have had prices on it.[48] On the other side were the words 'Pop‑up Café', a way which Mr Paull had, on occasion, advertised his mobile coffee business.
(g)Mr Mariani's account of his conversation with Mr Paull on 14 November 2017 was accepted.[49] That is, Mr Mariani approached and spoke to Mr Paull; discussed with him that he was trading without a valid permit; and handed Mr Paull a copy of the Local Law. In response, Mr Paull said to Mr Mariani words to the effect that he believed that he did not need a permit as he had a formal trading agreement with the softball club which was also located in the sporting complex.
[42] ts 71 (26 July 2018).
[43] ts 71 (26 July 2018).
[44] ts 71 (26 July 2018).
[45] ts 72 (26 July 2018).
[46] ts 72 (26 July 2018).
[47] ts 72 (26 July 2018).
[48] ts 72 (26 July 2018).
[49] ts 72 (26 July 2018).
His Honour determined that it was established beyond reasonable doubt that Mr Paull was set up for business, or at least was setting up for business; his intention was to operate his business while he waited for his son, offering for sale goods, or soliciting for orders for goods in a public place.[50]
[50] ts 75 (26 July 2018).
The Local Law
Under the powers conferred by the Local Government Act 1995 (WA), and under all other powers enabling it, the council of the City of Gosnells resolved on 28 February 2012 to make the Local Law.
Part 5 of the Local Law concerns 'Trading in thoroughfares and public places', and div 1 of pt 5 concerns 'Stallholders and traders'.
At trial, it was alleged that Mr Paull contravened the Local Law cl 5.2(1)(a), which provides as follows.
5.2Stallholder and trading permits
(1)A person shall not conduct a stall or carry on trading on a public place unless that person is –
(a)the holder of a valid stallholder or trading permit; or
Clause 5.1 of the Local Law contains an interpretation section for the purpose of div 1, and relevantly, the terms 'public place' and 'trading' are defined as follows.
5.1Interpretation
In this Division, unless the context otherwise requires –
public place includes –
(a)any thoroughfare or place which the public are allowed to use whether or not the thoroughfare or place is on private property; and
(b)local government property,
but does not include premises on private property from which trading is lawfully conducted under a written law.
…
trading includes –
(a)the selling or hiring of, the offering for sale or hire of, or the soliciting of orders for goods or services in a public place;
(b)displaying goods in any public place for the purpose of –
(i)offering them for sale or hire;
(ii)inviting offers for their sale or hire;
(iii)soliciting orders for them; or
(iv)carrying out any other transaction in relation to them;
(c)the going from place to place, whether or not public places, and –
(i)offering goods or services for sale or hire;
(ii)inviting offers or soliciting orders for the sale or the hire of goods or services; or
(iii)carrying out any other transaction in relation to goods or services;
but does not include –
(d)the delivery of pre-ordered goods or services or the taking of further orders for goods or services.
(e)the setting up of a stall or the conducting of a business at a stall under the authority of a stallholder's permit;
(f)the selling or offering for sale of goods and services to, or the soliciting of orders for goods or services from a person who sells those goods or services;
(g)the selling or the offering for sale or hire by a person of goods of her or his own manufacture or services which he or she provides; and
(h)the selling or hiring or the offering for sale or hire of –
(i)goods by a person who represents a manufacturer of the goods; or
(ii)services by a person who represents a provider of the services, which are sold directly to consumers and not through a shop.
The Local Law provides that any person who does anything under the Local Law that the person is prohibited from doing commits an offence, and any person who commits an offence under the Local Law is liable, upon conviction, to a penalty.[51] An offence against the Local Law cl 5.2(1)(a) is a prescribed offence with a modified penalty of $350.[52]
[51] Local Law cl 9.3(1), (2).
[52] Local Law cl 9.4.
The grounds of appeal
In the written submissions lodged by Mr Paull, thirteen issues identified as 'contentions of law' and five issues identified as 'contentions of fact' were described.
In summary, Mr Paull contends that the learned Magistrate fell into error in his interpretation of the Local Law; and that having fallen into error, the learned Magistrate further erred in finding the elements of the alleged offence had been proven beyond reasonable doubt.[53]
[53] Appellant's submissions pt 1 par 1.
Mr Paull also raises a number of issues that appear to go to whether the conviction was unsafe and unsatisfactory. Further, Mr Paull complains that he was not afforded procedural fairness.
I consider and address all of the concerns raised by Mr Paull below. To the extent that there is duplication, I address the concern once.
When considering the learned Magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As noted by Martin CJ in Strahan v Brennan,[54] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[55]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[54] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[55] Strahan v Brennan [90].
I have approached the learned Magistrate's reasons with this in mind.
The proper construction of the Local Law
Definition of 'trading'
Mr Paull contends that the learned Magistrate erred in his interpretation of the term 'trading' under the Local Law.
In his written submissions, Mr Paull complains that the learned Magistrate erred in having given the term 'trading' in cl 5.1 of the Local Law a broad meaning, whereas the term referred to an act that was 'very specific', being:
(a)the selling or hiring of, the offering for sale or hire of, or the soliciting of orders for goods or services in a public place;
(b)displaying goods.[56]
[56] Appellant's submissions pt 1 par 1.
The definition of 'trading' as prescribed in the Local Law was not accurately reproduced in Mr Paull's submissions, and I do not accept Mr Paull's submission that 'trading' comprises only those activities described in the definition promoted by Mr Paull.
The Local Law defines 'trading' for the purposes of pt 5 div 1. The term is defined by reference to certain included activities described in sub‑paragraphs (a), (b) and (c), and expressly excludes others.[57] The word 'includes' precedes the description of activities which constitute 'trading'. Adopting an orthodox approach, the word 'includes' is interpreted to expand upon the usual meaning of a word.[58] The Oxford English Dictionary defines trading as:[59]
[T]he action of engaging in trade; the buying and selling of goods, commodities, or services.
[57] Local Law cl 5.1(d) ‑ (h).
[58] Sherrit Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342, 353.
[59] Oxford English Online Dictionary (Oxford University Press, 2020).
Giving a plain reading to cl 5.1, the term 'trading' includes the activities described in each of the three sub‑paragraphs (being (a) ‑ (c)), but does not include the activities described in the remaining sub‑paragraphs. Further, on a plain reading, it is not necessary that each of sub‑paragraphs (a), (b) and (c) be satisfied for there to be 'trading'; one will suffice.
The learned Magistrate refers to the definition of 'trading' as prescribed by the Local Law in his reasons for decision.[60] The trial correctly proceeded on the basis that the meaning of the term 'trading' as prescribed in cl 5.1 of the Local Law applied to cl 5.2. There was no discernible error in the learned Magistrate's interpretation of the term 'trading' in his Honour's reasons for decision.
Meaning of 'soliciting'
[60] ts 71, 75 (26 July 2018).
Mr Paull contends that the learned Magistrate erred in finding that the evidence established to the requisite standard that he had engaged in the soliciting of orders for goods or services in a public place.
Mr Paull contends that 'soliciting' means a '… request or petition, to endeavour to obtain something. It involves directly asking potential customers to purchase goods or service. Advertising is not soliciting.'[61] It appears that Mr Paull's complaint is that there was no evidence of him having asked potential customers to purchase goods or services, and therefore the Magistrate erred in finding that he had engaged in soliciting.
[61] Appellant's submissions pt 1 par 2.
The respondent made the following submissions in reply to this contention:[62]
The term 'solicit' is not defined in the Local Law and the term should therefore be given its ordinary meaning. The Macquarie Dictionary defines 'solicit' to include 'to endeavour to obtain (orders or trade)' and the appellant's activities are consistent with that definition.
In any event, even if the learned Magistrate erred in finding that the definition of 'soliciting' had been satisfied, it would be sufficient for the learned Magistrate to have found that the Appellant offered goods for sale for the purposes of satisfying the relevant definition of 'trading'.
Therefore, there was no miscarriage of justice, as the learned Magistrate was satisfied that the appellant was offering goods for sale and the Appellant made admissions to that effect: transcript - pages 53, 55 ‑ 56, 75.
[62] Respondent's submissions par 4.2.
I accept that the term 'solicit' should be given its ordinary meaning, with regard to the context in which it appears. The ordinary meaning of the word 'solicit' does not require an oral request or petition to a potential customer, inviting them to purchase goods or services.
I find that there was no discernible error in the learned Magistrate's interpretation of the term 'soliciting' in his reasons for decision.
'Open for business'
Mr Paull complains that the learned Magistrate erred by adopting his Honour's own definition (that is, of being 'open for business'), and then by applying that definition.[63]
[63] Appellant's submissions pt 1 par 3.
The respondent accepts that the term 'open for business' is not a concept used in the Local Law and accordingly, it carries no specific significance to the offence. However, the respondent maintains that there is no error arising from the learned Magistrate's use of the term.[64]
[64] Respondent's submissions par 4.3.1.
The respondent contends that in using the term 'open for business', the Magistrate sought to clarify the applicable threshold to be satisfied by the prosecution before determining the charge.[65] In this regard, the exchange between his Honour and Mr Beckett for the prosecution is reproduced below.[66]
HIS HONOUR: There's no evidence, is there, that he actually sold anything on that day. But let me make sure I understand your position. If you are saying that he was offering for sale or soliciting orders for sale, like, on that occasion, then what you're really saying is that he was open for business, aren't you.
BECKETT, MR: Your Honour, our position is that he was open for business.
HIS HONOUR: Yes. Your position is that he was open for business. But in that respect that's a circumstantial case in the sense that there's no evidence of actual selling of any coffees. Your position is that you believe that he would have, or could have, or - - -
BECKETT, MR: Well, no, your Honour. To those two parts it's no and yes. But I don't – we wouldn't say it's a circumstantial case. It's accepted there's no evidence that he sold a coffee on that day. It's not circumstantial that he was soliciting for orders. That's his own admission.
[65] Respondent's submissions par 4.3.2.
[66] ts 66 (26 July 2018).
At trial, the prosecutor submitted that the evidence demonstrated that Mr Paull was 'open for business', as that term was used by the learned Magistrate. However, it was also submitted that Mr Paull may be found to be trading even if it was not established that he was 'open for business' on the evening of 14 November 2017, as Mr Paull was advertising and taking orders for a later date.[67]
[67] Respondent's submissions par 4.3.2; ts 68 (26 July 2018).
I accept that the term 'open for business' is not mentioned in, nor is it a term defined for the purposes of the Local Law. Further, it is not a requisite part of an offence under pt 5. This was understood by the learned Magistrate and made clear in his Honour's reasons for decision.[68] The learned Magistrate's reasons reveal that his Honour had not fallen into an error by adopting the wrong definition or meaning in his Honour's reading of pt 5 of the Local Law, and in particular cl 5.2.
[68] ts 73 (26 July 2018).
The elements of the charge not established on the evidence
Mr Paull complains that the evidence was insufficient to prove the elements of the charge. In the written submissions lodged by Mr Paull, he further contends (framed as separate issues or grounds of appeal), that there is no 'logical link' between the evidence and the decision of the Magistrate, particularly the evidence given by Mr Mariani;[69] that the Magistrate came to the wrong conclusion; [70] and that the Magistrate erred in reaching his Honour's decision.[71]
[69] Appellant's submissions pt 1 par 9.
[70] Appellant's submissions pt 1 par 13.
[71] Appellant's submissions pt 2 par 5.
For the reasons set out above, I find that there was no error in the learned Magistrate's interpretation of the Local Law. For the reasons that follow, I am satisfied that there was evidence before the learned Magistrate to establish, to the requisite standard, that Mr Paull was carrying on trading in a public place without a permit. Having given careful consideration to the entire trial record, I am satisfied that there was no miscarriage of justice.
Applicable principles – miscarriage of justice
This appeal is governed by the Criminal Appeals Act pt 2. An appeal may be pressed on the ground that there has been a miscarriage of justice.[72] The statutory ground of miscarriage of justice is commonly encompassed under the term that the conviction is 'unsafe and unsatisfactory'.
[72] Criminal Appeals Act, s 8(1)(b).
The Court of Appeal of Western Australia has stated that the principles concerning unsafe and unsatisfactory verdicts of a jury are applicable to appeals of a magistrate.[73]
[73] The State of Western Australia v Olive [2011] WASCA 25 [44].
In Libke v The Queen[74] Hayne J stated that where it is alleged that a conviction is unsafe and unsatisfactory, the question for an appellate court is:
[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 ‑ 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case ... [the] evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt.
[74] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also JSS v The State of Western Australia [2014] WASCA 136 [8]; and Gibbs v The State of Western Australia [2018] WASCA 68 [30] ‑ [36].
In R v Baden-Clay,[75] the High Court said that where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appellate court 'must always be whether the [appellate] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.
[75] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66].
The court is required to make an independent assessment of the evidence, both as to its sufficiency and its quality.[76]
[76] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 453, 473; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14]. See also JSS v The State of Western Australia [8].
The tribunal of fact is entrusted with the responsibility of determining the guilt or innocence of the appellant at first instance.[77] However,
[i]n most cases a doubt experienced by an appellate court will be a doubt which a [tribunal of fact] ought also to have experienced. It is only where a [tribunal of fact's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[78]
Disposition
[77] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493; SKA v The Queen [13].
[78] M v The Queen, 494; SKA v The Queen [13].
It was common ground that on 14 November 2017, Mr Paull was in a public place and did not hold a permit to trade. The only matter of contest was whether Mr Paull was trading within the meaning of the Local Law.
There was no evidence that Mr Paull had in fact sold coffee or hot beverages on the evening of 14 November 2017. However, the concept of 'trading' in the Local Law is not limited to the sale of goods.
As conveniently summarised on behalf of the City of Gosnells, the learned Magistrate found that Mr Paull was trading, as that term is defined in the Local Law, based on the following evidence.[79]
[79] Respondent's submissions par 4.4.1.
First, Mr Paull's evidence to the effect that he was taking orders for the sale of goods for a later date.[80]
[80] ts 47 ‑ 48, 53 ‑ 56 (26 July 2018).
Secondly, the location of the van and the unusual position and place in which it had been parked; that the rear door of the van was open, through which Mr Paull would usually sell coffee and other beverages; the sign that had been placed adjacent to the van which displayed the words 'Pop‑up Café'; and the table and esky outside of, but next to, the van.[81]
[81] ts 7, 18, 51 ‑ 54, 64, 72, 74 (26 July 2018).
Thirdly, Mr Paull's initial response to Mr Mariani when approached. That is, in response to Mr Mariani, Mr Paull stated that he had an agreement with the softball club which allowed him to trade in the location.[82]
[82] ts 20 ‑ 21 (26 July 2018).
In his evidence, Mr Paull proffered an explanation for the location of the van; the rear door of the van being open; the location of the sign, esky and table outside of the van; and for the length of time he remained parked in the public place and close to the van. However, Mr Paull's account was not accepted by the learned Magistrate, as he was found to not be a credible witness.
I accept the respondent's submission regarding the general rule in relation to findings by a primary decision maker based on the credibility of witnesses. That is, where a decision maker's finding of fact depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused, his or her own advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.[83] In this case, there is no basis for deviation from the application of the general rule.
[83] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
A primary decision maker's findings of credibility adverse to an appellant will not, in an appropriate case, preclude a court of appeal from holding that, in light of other evidence, the basis for that conclusion was too fragile to allow it to stand.[84] In this case however, the other evidence before the Magistrate was substantive and supported conviction.
[84] State Rail Authority of New South Wales vEarthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588.
I have had regard to the sufficiency and quality of the whole of the evidence. I accept that there was sufficient evidence for the learned Magistrate to find that Mr Paull was trading. Further, having regard to the Magistrate's findings and to all of the evidence before the tribunal of fact, the evidence did not require the conclusion that the learned Magistrate should necessarily have entertained a doubt about Mr Paull's guilt.
Circumstantial evidence
Mr Paull complains the learned Magistrate erred by relying on circumstantial evidence when making his determination.[85]
[85] Appellant's submissions pt 1 pars 4 ‑ 5.
The Magistrate's reference to circumstantial evidence[86] must be understood in context. In this regard, I accept that his Honour's initial comment in relation to a 'circumstantial case' was not part of his Honour's reasons for decision, and arose in the context of an exchange with counsel during closing submissions.[87] This was not a case that turned on circumstantial evidence.
Assumption not based on evidence
[86] ts 66 (26 July 2018), reproduced above at [55].
[87] ts 66 (26 July 2018).
Mr Paull contends that the sign which was located adjacent to the van did not have prices displayed on it, and that the learned Magistrate reached an incorrect conclusion in assuming that it did.[88]
[88] Appellant's submissions pt 1 par 6.
The prosecution tendered three photographs into evidence, one of which showed the position of the sign in relation to the van. As observed by the learned Magistrate, the exhibit does not establish that the prices of beverages were noted on the sign.[89]
[89] ts 72 (26 July 2018).
Mr Mariani gave evidence that he saw a sign on the day of the alleged offence which was advertising prices and product.[90] However, Mr Mariani could not recall with precision the precise items of beverage noted on the sign, nor the prices of the beverages. The respondent says that there was therefore evidence before the court that prices were displayed on the sign.[91]
[90] ts 18 ‑ 20 (26 July 2018).
[91] Respondent's submissions par 4.6.2.
Mr Paull gave evidence to the effect that prices were not displayed on the sign and rather, had '88.88' pre‑printed in the price column.[92]
[92] ts 25 (26 July 2018).
At the conclusion of the trial, his Honour made the following findings:[93]
But perhaps the most significant part of the prosecution case is the A‑framed sign. That A‑framed sign has been deliberately set up in a position which is not at the back of the van. The photos of the A‑frame sign are not very clear, but I think that there can be no doubt that it has a list of things that are available for sale on it, and on the other side, it has something about a pop‑up van which is a way that Mr Paull has on occasion, for advertising his business.
That sign says what can be bought, and one would assume that it would also have the prices on it …
[93] ts 72 (26 July 2018).
Given the evidence of Mr Mariani, and his Honour's findings as to the credibility of Mr Paull, I find that it was open to his Honour to find that prices were likely to have been displayed on the sign.
In any event, his Honour weighed in the balance more than his finding that prices were likely to have been displayed on the sign. Further, I accept that it was not necessary for the learned Magistrate to make any finding on whether prices were displayed on the sign in order to conclude that Mr Paull was trading, as defined in the Local Law.
His Honour's finding in relation to the display of prices on the sign does not reveal or ground any competent appellable error. It is not arguable that his Honour's finding renders the conviction unsafe.
Previous warnings and 'being on notice' erroneously taken as evidence
At trial the prosecution tendered an email dated 28 June 2017 sent from an officer of the City of Gosnells to Mr Paull.[94] By this email, Mr Paull was informed that he must not trade within the City of Gosnells without first obtaining a permit under the Local Law.
[94] Exhibit F; ts 31 ‑ 32 (26 July 2018).
In his Honour's reasons for decision, his Honour weighed in the balance Mr Mariani's evidence of his conversation with Mr Paull. In weighing the evidence of that exchange, and whether it constituted an admission by Mr Paull of trading, the learned Magistrate stated:[95]
According to the witness [Mr Mariani] – and, of course, this evidence has not been challenged in cross‑examination, and I accept it to be the case – when the witness spoke to Mr Paull, he was spoken to about trading without a permit.
'You must not trade without a permit', or, 'You are trading without a permit'. I just forget the exact words. But in response to that, Mr Paull did not say, 'I'm not trading. I'm just here to watch my son. I'm not going to sell anything'. He didn't say anything along those lines. What he said instead was something along the lines of, 'I don't need a permit because I've got an arrangement with the softball club'.
So in other words, what he's saying there is, 'I can trade here if I want to. I don't need a permit'. I take that to be an acceptance on his part that he was trading. I don't think there's any other interpretation one can put on it, particularly if you look at it in the context of he having received previous warning and knowing that it was an issue with the council that he trade or not trade unless he has got a permit.
[95] ts 72 ‑ 73 (26 July 2018).
Mr Paull contends that his Honour erred by relying on a previous warning from the City of Gosnells as being relevant evidence.[96]
[96] Appellant's submissions pt 1 par 7.
The respondent submits, and I accept, that it was open for his Honour to consider the City of Gosnell's previous warning to Mr Paull in interpreting the exchange between Mr Mariani and Mr Paull on the day of the alleged offence.[97] The very limited use to which the email was put is consistent with the observation made by his Honour in the course of the trial as to the evidentiary limitations of the email:[98]
All he's [Prosecutor] trying to demonstrate is that you had had a warning previously, but that's neither here nor there. My job, as I've already explained, is to find whether it has been proved beyond a reasonable doubt that you were trading without a permit on the day in question. Whether you've done it lots of other times on other dates is not the issue. The question is whether you were doing it on that day.
Terms of the infringement notice
[97] Respondent's submissions par 4.7.2 ‑ 4.7.3.
[98] ts 35 (26 July 2018).
Mr Paull submits that his Honour erred in concluding that he was trading for the purposes of pt 5.2 of the Local Law on the date of the alleged offence.[99] The basis for the submission is the assertion that the prosecution failed to provide any evidence that Mr Paull was trading at 5.15 pm on 14 November 2017, being the date and time of the alleged offence noted on the infringement notice; and that Mr Paull was convicted on what the Magistrate thought 'might have occurred later'.[100]
[99] Appellant's submissions pt 1 par 13.
[100] Appellant's submissions pt 1 par 13.
It is the respondent's submission that the time of the alleged offence is irrelevant as the prosecution notice only identifies the date of the alleged offence and as the infringement notice was withdrawn, it has no bearing upon the proceeding.[101] The respondent also submits that there was sufficient direct evidence for the Magistrate to find that Mr Paull was trading on 14 November 2017 within the meaning of the Local Law.[102]
[101] Respondent's submissions par 4.13.1 referring to Rodi v City of Joondalup [2014] WASC 330.
[102] Respondent's submissions par 4.13.2.
Mr Paull appears to rely upon the time notation on the infringement notice. There are questions which arise as to the extent to which I can have regard to material which was not before the Magistrate at the time of conviction, but they are put to one side for present purposes because it is unnecessary for me to deal with them. That is because the issue raised by Mr Paull does not bear upon the prosecution that was conducted before the Magistrate.
The details set out in the infringement notice does not condition somehow the subsequent prosecution that might be brought.[103] The prosecution notice made plain that the offence was alleged to have occurred on 14 November 2017, and this was ultimately established on the evidence.
Propensity evidence
[103] Rodi v City of Joondalup [2014] WASC 330 [21].
Mr Paull contends that the prosecution improperly relied on propensity evidence at trial in contravention of the Evidence Act 1906 (WA) s 31A. Mr Paull asserted that the following was improperly adduced propensity evidence.[104]
[104] Appellant's submissions pt 1 par 8.
First, the prosecution's statement of material facts which referred to observations of alleged trading by Mr Paull on 15 May 2017 by the City of Gosnell's environmental health officer, and a telephone call on 28 June 2017.
Secondly, Mr Mariani's oral evidence in which he refers to email correspondence of 28 June 2017 sent to Mr Paull from a City of Gosnells officer (Exhibit F).
As to the matters included in the statement of material facts, the transcript reveals that the statement was not read during the course of the trial, nor was it sought to be presented or tendered. The content of the statement did not bear on the reasoning or decision of the Magistrate and cannot ground a competent basis for appeal.
In contrast, evidence was adduced at trial of email correspondence of 28 June 2017 sent to Mr Paull from a City of Gosnells officer, which became Exhibit F at trial.
No application was made by the prosecution to adduce the email as propensity evidence, and careful review of the transcript reveals that the email was not sought to be relied upon as propensity evidence for the purposes of the Evidence Act s 31A.[105]
[105] Respondent's submissions par 4.8.3; ts 23 ‑ 24 (22 January 2019).
The respondent says that the email was adduced as evidence so as to negate the prospect of a defence under the Criminal Code s 24; and to provide context to the conversation between Mr Paull and Mr Mariani on the day of the alleged offence.[106] The respondent further contends that, in any event, the email has significant probative value as evidence and was adduced appropriately.[107]
[106] Respondent's submissions par 4.8.3.
[107] Respondent's submissions par 4.8.4.
The transcript reveals the very limited basis for which the email was used,[108] and I am satisfied that it was neither relied upon, nor adduced, for the purpose of establishing a propensity in the accused; that is, similar fact evidence or otherwise. The admission of the email into evidence and its use reveal no error.
Finding as to credit
[108] ts 35, 72 ‑ 73 (26 July 2018).
Mr Paull submits that his Honour erred in finding that he was not a credible witness.[109]
[109] Appellant's submissions pt 2 par 2.
In response, the respondent contends that Mr Paull's oral evidence was implausible and inconsistent and consequently, the Magistrate was correct in finding Mr Paull was not a credible witness.[110]
[110] Respondent's submissions par 5.2.1.
At trial, Mr Paull's evidence was largely rejected by the learned Magistrate on the basis of a finding that he was not a credible witness.[111] His Honour gives reasons for the finding, identifying the following factors which weighed in the balance.
[111] Respondent's submissions par 4.4.1(d), 4.4.2; ts 73 ‑ 75 (26 July 2018).
First, his Honour formed the view that Mr Paull was argumentative.[112]
[112] ts 73 (26 July 2018).
Secondly, his Honour concluded that Mr Paull's version of events was implausible, and at times contradictory.[113] In this regard, His Honour observed that Mr Paull's evidence that he remained for about two and a half hours next to the van,[114] some 60 m ‑ 70 m from where his son was training. His Honour observed that if Mr Paull was at the oval to watch his son train, '… one would have thought that he would have been in a different location.'[115]
[113] ts 73 ‑ 74 (26 July 2018).
[114] ts 46 (26 July 2018).
[115] ts 73 (26 July 2018).
His Honour also found that there was '… no plausible explanation provided by [Mr Paull] as to why the table was there, the esky was there, and, most importantly, why the sign was there.' His Honour observed that Mr Paull '… said he had no idea why the sign was there. Perhaps it fell out of the back. Well, if it fell out of the back, you would put it back in, or at least you would put it on the ground near the back of the van. You wouldn't put it in the location where it clearly was. Although he did say later in his evidence, perhaps in cross‑examination, that it was – maybe it was there for advertising.'[116]
[116] ts 72 (26 July 2018).
Thirdly, Mr Paull changed his story.[117] In this regard, his Honour referred to Mr Paull's evidence concerning the generator.[118]
[117] ts 73 ‑ 74 (26 July 2018).
[118] ts 74 (26 July 2018).
The learned Magistrate made the adverse finding as to credibility not solely based on his finding that Mr Paull was argumentative. Rather, his Honour's finding was based on an examination of the logic and coherence of Mr Paull's account. There is no proper basis to impugn his Honour's finding as to credit.
Mr Mariani's evidence
Mr Paull takes issue with the reliance by the learned Magistrate on Mr Mariani's evidence.[119] In summary, Mr Paull complains about the lack of precision in Mr Mariani's recollection; inconsistencies in Mr Mariani's evidence; and the weight placed on Mr Mariani's evidence by the Magistrate.
[119] Appellant's submissions pt 2 par 3.
The prosecution's case at trial largely relied upon the evidence of Mr Mariani. The submissions now raised by Mr Paull at par 3.2, 3.3 and 3.6 in his written submissions should have been ventilated during the trial. However, the evidence was unchallenged by Mr Paull during trial and accepted by the Magistrate. Mr Paull was instructed as to how this may be done in cross‑examination.[120]
[120] ts 14 (26 July 2018).
As to the issues raised at pars 3.1 and 3.5 of Mr Paull's written submissions, they did not bear upon the evidence relied upon by the learned Magistrate in support of his findings and consequently, the ultimate finding that Mr Paull had breached pt 5.2 of the Local Law.
As to the issue raised at par 3.4 of Mr Paull's written submission (that there was no justification for issuing the infringement notice), for all of the reasons set out herein, I find that there was sufficient evidence to find that Mr Paull was trading within the meaning of the Local Law.
Opinion evidence
Mr Paull submits that Mr Mariani's evidence at trial was opinion evidence in its entirety.[121] In summary, Mr Paull complains that the evidence of Mr Mariani was admitted and weighed in the balance despite the learned Magistrate noting that 'His [Mr Mariani's] opinion is irrelevant.'[122]
[121] Appellant's submissions pt 2, par 4.
[122] Appellant's submissions pt 2, par 4; ts 27 (26 July 2018).
In relation to the Magistrate's statement about the irrelevancy of Mr Mariani's opinion, the complete exchange was as follows:[123]
HIS HONOUR: Mr Paull, this person – I've already said this and I will say it again – he is here to say what he saw, what happened, what he heard, what he saw, things that were done. He is not here to pass opinions on what is and is not legal. That's my job. His opinion is irrelevant.
[123] ts 27 (26 July 2018).
The respondent says that the opinion evidence given by Mr Mariani was not relied upon by the Magistrate, and there was sufficient direct evidence to support the Magistrate's finding.[124] Further, the majority of the opinion evidence identified by Mr Paull was elicited during his cross‑examination of Mr Mariani.[125]
[124] Respondent's submissions par 5.4.1.
[125] Respondent's submissions par 5.4.2.
Parts of Mr Mariani's evidence were not in admissible form. However, I have given careful consideration to the whole of the transcript and I am satisfied that there was sufficient direct, admissible evidence to support the Magistrate's finding. That some of Mr Mariani's evidence was given in inadmissible form does not form the basis on a competent, arguable ground of appeal.
Procedural fairness
Procedural fairness requires that a person accused of a criminal charge be afforded reasonable opportunity to appear and present his or her case.[126] What is 'reasonable opportunity' will depend on the circumstances of each individual case, but is qualified with the requirement that the argument sought to be presented be sufficiently relevant and significant.[127]
[126] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den‑Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63].
[127] National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 ‑ 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 ‑ 585; Re Burton [64]; Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304, 314; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 [106].
Generally, a person will not be afforded procedural fairness if he or she is not given the opportunity to present their case, that is, make relevant submissions, give evidence, call witnesses and the like.[128]
[128] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].
In determining whether or not Mr Paull was denied procedural fairness, I am to consider whether or not he has suffered 'practical injustice'.[129]
Was Mr Paull denied procedural fairness?
[129] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] ‑ [38]; Bodycorp v Holding Redlich [106].
In his written submissions, Mr Paull complains that he was denied procedural fairness in that he was cross‑examined by the Magistrate.[130] Mr Paull characterises the Magistrate's conduct as 'intimidating' and 'stressful', and that the line of questioning went beyond mere clarification.[131]
[130] Appellant's submissions par 10.
[131] Appellant's submissions par 10(a), (c), (d), (f).
While I accept that participation in any legal proceedings without the benefit of legal representation may be stressful, more is required to establish 'practical injustice'.
It is apparent from the transcript that Mr Paull required the assistance of the Magistrate to give his evidence. This was not at all unusual, nor was the provision of assistance or the manner in which it was provided inappropriate.
I have given careful consideration to the transcript of Mr Paull's evidence‑in‑chief and, read as a whole, there is no basis for the contention that the Magistrate's questions or approach denied Mr Paull procedural fairness.
Mr Paull was afforded an opportunity to give his account and to present his case. The questions posed to him by his Honour went directly to the circumstances of the alleged offence.
Upon review of the transcript, I do not consider the Magistrate's questions 'confusing', 'repetitive' nor 'focused on irrelevant matters'.[132] Mr Paull was given a reasonable opportunity to present his case.
Did the Magistrate err in failing to provide adequate instruction to Mr Paull in relation to his conduct of cross‑examination?
[132] Appellant's submissions pt 1 par 10(d), (e).
Mr Paull contends that the Magistrate erred in failing to give him clear instructions as to what he could do in cross‑examination. He says that the Magistrate failed to advise him of his ability to challenge evidence presented by the prosecution; and that if he failed to challenge evidence, this would be taken as his acceptance of such evidence.[133] Mr Paull also contends that his Honour improperly interjected during his cross‑examination of a prosecution witness.[134]
[133] Appellant's submissions pt 1 par 11.
[134] Appellant's submissions pt 1 par 11.
As to the instructions provided to Mr Paull, the transcript reveals that the Magistrate proffered an explanation at an early stage of the trial.[135] The transcript of the instruction is reproduced at sch C to these reasons.
[135] ts 13 ‑ 14 (26 July 2018).
I have had the benefit of considering the trial transcript as a whole and find that adequate instruction was provided to Mr Paull in relation cross‑examination. I come to this conclusion for three reasons.
First, the learned Magistrate's instructions to the appellant were comprehensive. They were clear and articulated in language that was easy to comprehend. Further, as noted by the respondent in the respondent's written submissions, the Magistrate provided Mr Paull with an illustrative example as to how cross‑examination works, its purpose, and how questions may be posed to a witness.[136] I note that in the example used, his Honour informed Mr Paull as to how he may have challenged evidence presented by a witness, although his Honour did not label it a 'challenge' as such.
[136] ts 13 ‑ 14 (26 July 2018).
Secondly, I do not accept Mr Paull's submission that he was not instructed that a failure to challenge evidence may be interpreted as acceptance of that evidence. The following explanation was proffered to Mr Paull:[137]
If you've got a version of events which is different from what the witness says, you are expected to cross‑examine on it.
If, for example, a person gave evidence and you did not ask one single question in cross‑examination, the court would just assume that you agree or at least you don't disagree with anything that the witness said. Because if you had disagreed, if you thought the witness was wrong about something, you would have cross‑examined on it.
[137] ts 13 (26 July 2018).
Thirdly, a magistrate is empowered to interrupt in cross‑examination for a variety of reasons which include, but are not limited to, matters of admissibility. Upon review of the transcript, I am satisfied that his Honour's interjections were not such as to be unfair or unjust. His Honour appropriately interjected to address the appropriateness of Mr Paull's line of questioning, and to clarify. A fair reading of the transcript reveals that his Honour did not curtail or impede Mr Paull's questions. The transcript reveals attempts by his Honour to assist Mr Paull, and on occasion, to prompt Mr Paull to consider the utility of a particular line of questioning, balanced against potential prejudice to him.
I am satisfied that Mr Paull was afforded the full opportunity to present his case with the benefit of the assistance of the court. I am not satisfied that any practical injustice flowed from the learned Magistrate's guidance, his Honour's questions, nor the approach taken by his Honour during the course of the trial.
Did the learned Magistrate 'favour' the prosecution?
Mr Paull contends that the Magistrate favoured the prosecution during trial.[138] In this regard, Mr Paull submits that his Honour led the prosecution as to the wording of their closing submissions;[139] undertook the bulk of the cross‑examination of Mr Mariani; and provided no procedural guidance to Mr Paull.[140]
[138] Appellant's submissions pt 1 par 12.
[139] ts 63 ‑ 64 (26 July 2018).
[140] Appellant's submissions pt 1 par 12.
The respondent contends that the prosecution was not favoured and that the comments made by the Magistrate were not to lead the prosecution, but rather to ensure that Mr Paull understood what appeared to be the prosecution case, so that he could respond to it.[141]
[141] Respondent's submissions par 4.12.1.
As to the assertion that the learned Magistrate led the prosecution as to the wording of their closing submissions, I refer to that part of the transcript immediately following Mr Paull's cross‑examination, reproduced at sch D to these reasons.
It is apparent from the transcript that Mr Paull required the assistance of the Magistrate for the purpose of any re‑examination. His Honour's comments, understood in context, reveal the proper provision of an explanation as to what appeared to be the prosecution's case so as to allow Mr Paull fairness and a proper opportunity to respond to the same.
I have previously noted the appellant was self‑represented at trial and this necessitated the assistance of the Magistrate. This is accepted by the respondent.[142] Upon review of the transcript, I am satisfied that Mr Paull was provided substantive and appropriate procedural guidance at trial. In addition to the Magistrate's instructions in relation to cross‑examination, the Magistrate assisted the appellant with regard to the general proceeding of the trial,[143] the appellant's evidence‑in‑chief,[144] and re‑examination.[145] Mr Paull's contentions are not made good on a fair reading of the transcript as a whole.
[142] Respondent's submissions par 4.12.1.
[143] ts 8 ‑ 9, 13 ‑ 14 (26 July 2018).
[144] ts 36 ‑ 38 (26 July 2018).
[145] ts 62 ‑ 63 (26 July 2018).
Conclusion and orders
I have given careful consideration to the concerns raised by Mr Paull. From my review of the evidence as a whole, I was not left with a troubling doubt of the kind referred to by the High Court in M v The Queen.
It follows from the above that I am satisfied that the conviction was supported by the evidence. Further, I am satisfied that Mr Paull was afforded procedural fairness and suffered no practical injustice.
For these reasons, leave to appeal on all grounds is refused and the appeal must be dismissed with costs.
Schedule A: ts 47 ‑ 49 (26 July 2018)
ACCUSED:I did take some orders that day from some pre‑existing customers for the upcoming weekend.
HIS HONOUR: What sort of orders?
ACCUSED: Well, just people that attend the ground on the weekend stating that they would be there on the weekend and that they would be ordering coffee
HIS HONOUR: Hold on a sec. Hold on a sec. This is not a weekend, is it? This is - - -
ACCUSED:Its Tuesday night.
HIS HONOUR: Tuesday night?
ACCUSED:Correct
HIS HONOUR: So you're saying that on this occasion some people approached you and took – and you took orders from them about what coffee they would want in four days' time?
ACCUSED:Well, they were just people that were there that were existing - - -
HIS HONOUR: But is that what you said? Is that what you said?
ACCUSED:Well, yes your Honour.
HIS HONOUR: Why would you want to take a coffee order four days in advance when all it is is a cup of coffee?
ACCUSED:It was just them saying that they were going to be there on the weekend getting coffee, your Honour.
HIS HONOUR: Well, is that taking orders or - - -
ACCUSED:Well, I don't know what to classify anything as in here, to tell you the God's honest truth, your Honour. Everything is getting really confusing.
HIS HONOUR: Well, is it just people who you know who just stop by and have a cup?
ACCUSED:Regular customers that drop by, had a chat and said they will be in on the weekend to get coffees off us on the weekend, yes.
HIS HONOUR: So people that you know?
ACCUSED:Existing customers and clientele, yes.
HIS HONOUR: Because you've seen them?
ACCUSED:Yes.
HIS HONOUR: So does that mean that you go back on the Saturday and operate the coffee van?
ACCUSED:Yes.
HIS HONOUR: But you didn't have a permit at that stage?
ACCUSED:Not at that stage, no.
HIS HONOUR: So if you had been charged with operating or trading on the Saturday without a permit, you would have no defence at all; is that right?
ACCUSED:Probably not, your Honour.
HIS HONOUR: But you say that you weren't trading on this day because it's a Tuesday?
ACCUSED:Correct.
HIS HONOUR: And its only training; its not the main day?
ACCUSED:Correct.
HIS HONOUR: And the people who call by to see you, or who stop by to say 'hello' on the Tuesday, none of them wanted a coffee? They want coffee on the Saturday but they don't want coffee on the Tuesday afternoon; is that what you're saying?
ACCUSED:Some of them did say they wanted a coffee that night and I said they weren't allowed to have one.
HIS HONOUR: So some of them asked for coffee?
ACCUSED:Correct.
HIS HONOUR: And you declined?
ACCUSED:Correct.
HIS HONOUR: Are you calling any of those people as witnesses?
ACCUSED:No, I'm not.
HIS HONOUR: Okay. So you said, 'I can't sell you a coffee because I'm not open for business'?
ACCUSED:Well, the generator wasn't running. I wasn't running the van.
HIS HONOUR: Okay. So you're saying you can't sell coffees without the generator being – running.
ACCUSED:I can't even prepare anything without the generator being running.
HIS HONOUR: So that's a yes.
HIS HONOUR: Yes, your Honour.
Schedule B: ts 61 ‑ 61 (26 July 2018)
COUNSEL:Is there a reason that in your very long – your 10 minute approximately conversation with Mr Mariani that you didn't say any of this to him?
ACCUSED:Didn't say what?
COUNSEL:You didn't say, 'I'm not trading'?
ACCUSED:I may have.
COUNSEL:Well, no. His evidence was that you didn't and you had the opportunity to cross examine him and you didn't put anything to him that anything he said about that conversation was not correct. Instead, what we heard is that you spoke to him about trading. He said, 'You are trading and you can't be trading.' You said, 'I'm allowed to'?
ACCUSED:No. He didn't.
COUNSEL:No. No. Let me finish?
ACCUSED:That was not what he said.
COUNSEL:His evidence was: I said, 'You are trading without a permit and you can't trade without a permit.' That's what he told you. He said that you said: I'm allowed to. I'm allowed to because I have a commercial arrangement with the softball club.
ACCUSED:That was part of something I said.
COUNSEL:Yes. Doesn't that sound like an unusual response if you weren't trading?
ACCUSED:He sprung out from behind the car when he approached me and just because I didn't say something doesn't mean it didn't occur.
COUNSEL:Okay. So in the 10 minutes that just didn't come up? 10 minutes, you've been told you can't trade, didn't come up and say, 'Actually, I'm not. By the way I'm not'?
ACCUSED:I may not have said that. No.
COUNSEL:Okay. There's nothing further. Thank you
Schedule C: ts 13 ‑ 14 (26 July 2018)
HIS HONOUR: So the way these things proceed is this: that the prosecution case goes first. Mr Beckett is the prosecutor. He will call witnesses. I understand he has two witnesses, so they will be called one at a time. The first witness will come and go into the witness box, take the oath, because witnesses have to be on oath. Give the evidence. That's called evidence‑in‑chief.
And then when that is finished, you will be invited if you wish to cross‑examine. You will be asked if you have any questions in cross‑examination. Cross‑examination is not you giving evidence or telling your story. It's just asking questions or putting propositions. If you've got a version of events which is different from what the witness says, you are expected to cross‑examine on it.
If, for example, a person gave evidence and you did not ask one single question in cross‑examination, the court would just assume that you agree or at least you don't disagree with anything that the witness said. Because if you had disagreed, if you thought the witness was wrong about something, you would have cross‑examined on it. So if you had a lawyer, if you were paying a lawyer to represent you, you wouldn't have to cross‑examine. You would just leave it to the lawyer. You just sit there and the lawyer would ask the questions.
But you don't have a lawyer. You are representing yourself. If there is to be any cross‑examination, you have to do it yourself. The cross‑examination is putting propositions or asking questions. For example – I mean, I don't know what this evidence is going to be. But if a person came along to court and they said, well, I'm the ranger and I walked along and I saw this van and it was raining. And you thought, well, hang on a minute, it wasn't raining. It was a fine day. You might make a note of that, not raining, because that's something that you don't agree with.
And then, when the time comes, you would say to the witness, well, I put it to you, you're wrong about the raining. It wasn't raining. And the witness might say, no, it was raining. Or they might say, okay, maybe I got that wrong. Or they might say I can't remember. But at least you've put to them that they are wrong. You haven't waited until it is your turn to give evidence to tell that it was not raining. It has come out in cross‑examination.
The cross‑examination is not just questioning a witness about things that you don't agree with. You can ask other things as well. I don't know what questions you would ask a ranger who's on duty. But, you know, if you were charged with assault in a nightclub, you might ask a witness whether they had been drinking. How drunk were they. What was the lighting like in the nightclub. How could you see if there's all those people in the way with flashing lights, you know, that sort of thing. That's cross‑examination.
So it's not you giving your version. But if there's – you hear something that you don't agree with, if cross‑examination is being carried out properly I should have some indication at the end of cross‑examination of what your position is. Because it should have come out from the questions that you were asking and the propositions that you were putting. That's the best I can do about cross‑examination. Did you have any questions?
ACCUSED:No, your Honour, I'm fine.
Schedule D: ts 63 (26 July 2018)
HIS HONOUR: Well, Mr Beckett has cross‑examined you on this particular subject and if you wish to say anything further on this particular subject you can. But what Mr Beckett is going to say to me at the end of the trial is this. That when a person confronts you and says, 'You shouldn't be trading without a permit. You need a permit to trade. You mustn't trade without a permit,' or something along those lines, if you weren't trading Mr Beckett is going to say to me that what we would expect you to say was, 'I wasn't trading.'
But instead, according to the evidence, which is not contradicted by you in cross‑examination, your response was to the statement you shouldn't be trading was, 'I don't need a permit because I've got an arrangement with the softball club.' In other words, Mr Beckett is going to say to me that that really looks like an acceptance by you that you were trading, an admission. Do you understand the point? If someone comes up to you and says you shouldn't be trading without a permit.
ACCUSED: I understand the point you are trying to make.
HIS HONOUR: And then you say, 'Well, I don't need a permit to trade,' as if you accept that you are trading, but you're just saying you don't need a permit to do so. So that's what he's going to say at the end of this case.
ACCUSED: Well, I didn't - - -
HIS HONOUR: So do you have anything that you wish to add by way of explanation on that particular point?
ACCUSED: Well, no, other than the fact that it might have slipped my mind not to actually say those specific words.
HIS HONOUR: To Mariani on the day?
ACCUSED: Correct.
HIS HONOUR: Okay. All right. Is there anything else you wanted to add?
ACCUSED: I don't believe so, your Honour.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Acting Justice Strk
6 MAY 2020
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