Prazmo v Director of Public Prosecutions - [2024] WASC 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PRAZMO -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 386
CORAM:   ARCHER J
HEARD:   17 DECEMBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   SJA 1018 of 2024
BETWEEN:   KRZYSZTOF PRAZMO
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R YOUNG
File Number            :   PE 30222/23

Catchwords:

Appeal against conviction - Duty of court to self-represented litigant - Denial of procedural fairness - Substantial miscarriage of justice

Legislation:

Nil

Result:

Leave to appeal granted and appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	M L Wong

Solicitors:

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

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

Armet v Stephen Browne [2024] WASCA 44
Bennett v Carruthers [2010] WASCA 131
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
Fujita v City of Bayswater [2022] WASC 101
Hamod v New South Wales [2011] NSWCA 375
In the Marriage of Johnson (1997) 139 FLR 384
McCagh v Rural Bank (a division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68
Michael v The State of Western Australia [2007] WASCA 100
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Morgan v Cramer [2019] WASC 68
Nafranec v Nicol [2012] WASC 436
Re F Litigants in Person Guidelines (2001) 27 Fam LR 517; (2001) 161 FLR 189
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sethi v Bhavsar [2020] WASCA 52
Stone v Braun [2015] WASCA 103
Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100
Wyman (on behalf of Bidjara People) v Queensland [2015] FCAFC 108
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

ARCHER J:

Overview

On 13 February 2024, Mr Prazmo was convicted after trial of stealing a bottle of men's cologne from the Myer store in Perth city. The trial took place in the Perth Magistrates Court. Mr Prazmo was unrepresented.
Mr Prazmo has appealed against his conviction on the ground that there was a miscarriage of justice. The respondent concedes that there was.[1] This concession was rightly made. Mr Prazmo did not get a fair trial.
[1] Respondent's Outline of Submissions filed 13 September 2024 (Respondent's Submissions) [2] and [4] ‑ [5]. The respondent's concession was based upon the cumulative effect of the magistrate's refusal to adjourn the trial entirely or partly, the fact that Mr Prazmo was unwell and had only just been released from rehabilitation the previous day, and the fact that Mr Prazmo was denied the opportunity to question a material witness.
Under the Criminal Appeals Act 2004 (WA), a person may seek leave to appeal against a conviction in the Magistrates Court on, among other grounds, the ground that there has been a miscarriage of justice. If the Supreme Court is satisfied that there has been a miscarriage of justice, the Court may allow the appeal or may, if it considers that no substantial miscarriage of justice occurred, dismiss the appeal.[2] Accordingly, there are two related, but distinct, issues in this case:
1.Am I satisfied that there has been a miscarriage of justice?
2.If so, should I nevertheless dismiss the appeal because I consider that the miscarriage of justice was not substantial?
[2] Criminal Appeals Act s 8(1) and s 14.
For the reasons that follow, I am satisfied that there was a miscarriage of justice. Further, I would not nevertheless dismiss the appeal. I do not consider that there was 'no substantial' injustice. Indeed, I am satisfied that the miscarriage of justice was substantial.
Before turning to the analysis, I record my appreciation of the comprehensive and measured submissions filed by the respondent.

The facts

The magistrate refused to adjourn the trial

Mr Prazmo was charged with two offences of shoplifting. The first alleged he had shoplifted a dress from a shop in Mount Lawley on 11 July 2023. The second alleged he had shoplifted a bottle of men's cologne from the Myer store in Perth city on 8 June 2023. Mr Prazmo was ultimately convicted of the second charge.
At the start of the trial, the prosecutor told the learned magistrate that both parties wanted the trial to be adjourned because neither side was ready. The prosecutor explained that he had only recently picked up the matter from another prosecutor and Mr Prazmo had only come out of rehabilitation the previous day.[3] The magistrate said he would prefer to deal with the matter that day. He said that he would stand it down to give the prosecutor time to look at the brief and, if the prosecutor thought the brief was too complicated to conduct the trial that day, he would hear submissions in that regard.[4] He told Mr Prazmo, 'if we can proceed today, we will'.[5]
[3] ts 2.
[4] ts 3.
[5] ts 4.
The magistrate did not invite Mr Prazmo to address him, despite having been told by the prosecutor that Mr Prazmo had only been released from rehabilitation the day before. He did not suggest that Mr Prazmo could use the adjournment to prepare, or that Mr Prazmo could make submissions after the adjournment. The magistrate appeared to be saying that, unless the prosecutor persuaded him that the prosecutor could not properly prepare for the trial, the trial would go ahead. The magistrate had been told, however, that neither side was ready. An observer of the trial might have formed the view that the magistrate was not being even‑handed.
When the magistrate told Mr Prazmo 'if we can proceed today, we will', Mr Prazmo said that he could not stay for very long because he was suffering from chronic pain and was on painkillers. He said that he was not feeling very well and would prefer the trial to be adjourned.[6]
[6] ts 4.
The magistrate responded by addressing, at least initially, the prosecutor:[7]
Okay. Can I hear the statement of facts, please? I mean, these are fine only offences, so I don't know - and it really can't be difficult. … I mean, he either stole it or he didn't. I don't mean to sound glib, but it's that simple. It was you or it was someone else. Either you stole it or you walked out in a state of absentmindedness. It really can't be that complicated.
[7] ts 4.
The prosecutor then told the magistrate that he had spoken to Mr Prazmo outside the courtroom and asked him about his defence. The prosecutor said that Mr Prazmo told him that his defence 'was involuntary intoxication in regards to somebody has spiked a drink and he had no idea what happened'.[8] Mr Prazmo was, of course, unrepresented.
[8] ts 4.
The magistrate said:[9]
If that's the case, then we can at least make some - I will be happy to make some progress. If that's the case, we can at least dispense with all of the witnesses, the prosecution can go through unchallenged and Mr Prazmo can call a toxicologist or some other expert witness to say what his state was. That makes it easy.
[9] ts 4.
The magistrate again asked the prosecutor to read the statement of facts. In relation to the first charge, it was alleged that a woman had entered the store with Mr Prazmo and handed him a dress, which he rolled up and put under his arm. It was alleged that he then walked out of the store. In relation to the second charge, it was alleged that Mr Prazmo had taken a bottle of cologne from a display shelf in Myer, concealed it in his jacket, and walked out of the store. It was alleged that the police later located Mr Prazmo and found the bottle in the possession of a person he was with.
After hearing the facts, the magistrate then said:[10]
So, again, it couldn't be easier. Mr Prazmo, you are not required to say what your defence is if you don't want to, but it sounds all pretty straightforward. So what is your defence of these charges?
[10] ts 5.
It is understandable that the magistrate wanted to know what Mr Prazmo's defence was. Further, the magistrate did first tell Mr Prazmo that he did not have to tell him. However, Mr Prazmo had only been released from rehabilitation the day before and had said he was suffering from chronic pain, was on painkillers, and was not feeling very well. In those circumstances, it is arguable that he should not have been asked this question. It is not apparent that Mr Prazmo had the capacity to understand the consequences of answering the question.
Mr Prazmo's response to the magistrate's question was convoluted. After a lengthy introduction, he said that the disclosure materials given to him by the police had been stolen while he was at Kings Park. This was the relevant exchange:[11]
ACCUSED:   And my disclosure from the first - first offence, which I don't have any recollection of both of them and my backpacks with my personal belongings and all the disclosure which was provided, including a list, has been stolen from Kings Park within minutes of - five minutes. There was nobody around there. So someone must have been watching me. And I have attended about six or seven times to see Constable Chang - they call him George - and their excuses are he's took a day off, he's
HIS HONOUR:   Okay. Stop there. Okay. So ‑ ‑ ‑
ACCUSED:   He's not - he will be here on 3 o'clock.
HIS HONOUR:   Okay. So, stop, stop, stop, stop.
ACCUSED:   He is working. I came at 3 o'clock, he already went to work.
HIS HONOUR:   Just be quiet, please, for the moment. So, are you saying that you've got no recollection of what occurred but if you could see the CCTV footage and if it showed you doing what's alleged, then that might jog your memory. You might say, 'Yeah, that's me and' ‑ ‑ ‑
ACCUSED:   Yeah, I already said that, and plus the police took the interview while I - I had consumed half a bottle of alcohol and they shouldn't do that. I was - they rang me up, she obtained from the suspect (indistinct) whatever, call the man (indistinct) ‑ ‑ ‑
HIS HONOUR:   All right. Well, look, I'm just going to say this flatly now. Having regard to how simple the case is, this is not going to be adjourned. This is going to go ahead today.
[11] ts 6.
Mr Prazmo then asked the magistrate to order that the woman he had been with when the police located him (and who had had the bottle in her possession) reveal her address so that she could be summonsed to give evidence. The magistrate asked why. Mr Prazmo appeared to say because the woman had said that the bottle had been a gift. He said he did not remember discussing any gift with her.[12]
[12] ts 7.
Mr Prazmo also said he had repeatedly tried to watch the CCTV footage in libraries, but had been unable to do so.[13] He then appeared to address the first charge (of shoplifting the dress). This was the exchange:[14]
ACCUSED: … I didn't put the clothes under my arm. This is total lies. I just - I saw her grab - I walk with ‑ ‑ ‑
HIS HONOUR: Okay, stop there. Okay, stop, stop. Mr Prazmo, stop, stop, okay. Be quiet, please. All right. Well, I'm going to proceed with the matter today as indicated. Now, that said, Mr Prazmo might have, in the midst a lot of - for the weird things he might have half a point buried in there somewhere. Namely, that if the female who was there is potentially a person that might be able to assist the defence case ought be at least made available to him, but I'm not going to send the prosecution witnesses away. They're civilians, they've come in, in response to summons, and God knows that's becoming increasingly rare, and they're here and it would be an affront to them to say, 'Sorry, Mr Prazmo is not ready'.
Now, his defence seems to be more involved than you have said. He says that everyone is lying. So, he can cross‑examine them about the lies that they are telling, but the civilians will just be giving independent evidence about what they saw, playing the CCTV. We can at least get that far and then you can make the other female witness - if you can find details available, for Mr Prazmo to cross‑examine.
So I am happy to do it part‑heard in that way, but I do not like sending people away, particularly civilians, when they attend court to testify. It will take half an hour for their evidence to be heard and then we can come back in a couple of weeks' time and knock it off.
[13] ts 7. See also ts 9.
[14] ts 7 ‑ 8.
The prosecutor asked for the name of the woman who had been with Mr Prazmo, and Mr Prazmo told him. To protect her anonymity, I will refer to the woman as 'Ms N'. The magistrate said that the prosecution would need to make Ms N available. He said that Mr Prazmo might be saying that he assumed Ms N would pay for the cologne.[15]
[15] ts 8 ‑ 9.
The magistrate said that he intended to hear that day, at the very least, the prosecution case. He stood the matter down for half an hour or so.[16] It will be recalled that the magistrate had earlier said that he would stand it down to give the prosecutor time to look at the brief. Accordingly, it appears that the adjournment was for the benefit of the prosecution.
[16] ts 9.
When the matter was recalled, the prosecutor told the magistrate that, by mistake, a critical witness to the first charge had not been summonsed. The prosecutor asked that the first charge be discontinued. The prosecutor said that he was ready to proceed on the second charge.[17] The magistrate reiterated that, if Mr Prazmo thought that Ms N might assist his case, the trial would be adjourned part‑heard.[18]
[17] ts 10.
[18] ts 10.
Mr Prazmo then raised several issues. He asserted that Ms N was actually male, that his (Mr Prazmo's) disclosure materials had been stolen and he had been unable to get replacement materials, and there was 'also the possibility of this footage can be photo montage'.[19] The magistrate said to the prosecutor:[20]
I must say I have concerns Mr Prazmo might be a little under the weather today, but, in any event, the matters that are being raised are utterly irrelevant. The case is as simple as could possibly be. And if Mr Prazmo wants to put allegations of footage being doctored, he's welcome to put those allegations to people and, if they break under the cross, then I will take that into account; all right? We will start the case, please, Sergeant.
[19] ts 10 ‑ 13.
[20] ts 13.
By expressing concerns that Mr Prazmo might 'be a little under the weather', it appears that the magistrate could tell that Mr Prazmo was unwell before the trial began. This, combined with the fact that Mr Prazmo had only been released from rehabilitation the day before, should have prompted the magistrate to re‑consider whether the trial could fairly proceed.
Further, an observer of the trial may have thought that the magistrate was being sarcastic when referring to the possibility that witnesses may break under Mr Prazmo's cross‑examination. Any such perception would have been reinforced by the magistrate's reference to 'weird things' in the passage referred to in [18], and other statements (set out below) made by the magistrate during the trial. A judicial officer should not use sarcasm when addressing or referring to a litigant.

The trial

The prosecution called four witnesses: a Myer security guard and three police officers. As the respondent concedes, it is clear from the transcript that, at times, Mr Prazmo did not understand what was going on and was having difficulty concentrating.[21]
[21] Respondent's Submissions [17] and [32]. And see ts 19 and 61.
Mr Prazmo cross‑examined each witness. His cross‑examination was difficult to follow.[22] He also raised numerous points that were not relevant. At one point, his Honour told Mr Prazmo that, 'I take notes of what's relevant; okay? Now, that line is where you started cross‑examination. I've taken no notes because nothing you've asked has been relevant … [s]o perhaps you can wrap it up now'.[23] However, at no time did the magistrate tell Mr Prazmo what the elements of the charge were.[24]
[22] See, for example, ts 30 ‑ 31. This was conceded by the respondent - see the Respondent's Submissions [18].
[23] ts 38. See also ts 53.
[24] This was conceded by the respondent - see the Respondent's Submissions [33].
It is often necessary for judicial officers to stop self‑represented litigants from raising irrelevancies.[25] Before doing so, however, the court must explain the charge sufficiently to enable the self‑represented litigant to understand what is relevant and what is not.
[25] Michael v The State of Western Australia [2007] WASCA 100 [65], [68] (Steytler P, McLure JA and Miller AJA agreeing).
It is also often necessary for judicial officers to adopt a firm manner with self‑represented litigants who persist in raising irrelevancies. It must, however, be done courteously. While judicial officers are human, and may react with impatience or irritation from time to time, they should not be rude.[26]
[26] Michael [71] (Steytler P, McLure JA and Miller AJA agreeing).
In cross‑examining the police officer who photographed the recovered cologne bottle, Mr Prazmo asked about differences between the bottles shown in two of the photos. The magistrate stopped Mr Prazmo from pursuing that line of questioning, saying:[27]
You've asked a question, and you've got the answer. Okay. The case is going to be adjourned, part‑heard, so you're welcome to go and find an expert witness to tell us that these photos have been taken of different objects, and then you can blow the whole thing sky high. Okay.
[27] ts 49 ‑ 50.
The reference to Mr Prazmo getting expert evidence and blowing the case 'sky high' appears to have been sarcastic, particularly when considered in the context of the other statements made by the magistrate. Again, judicial officers should not use sarcasm when addressing a litigant.
At the conclusion of the prosecution case, the magistrate said that, after the lunch adjournment, he would ask Mr Prazmo if he intended to give evidence in his own defence. This was said notwithstanding that the magistrate had earlier told the prosecutor that he should make arrangements for Ms N to be made available and that had not yet occurred. The magistrate told Mr Prazmo that he did not have to give evidence. However, the magistrate did not explain to Mr Prazmo the consequences of his election.[28]
[28] ts 54 ‑ 55.
Mr Prazmo told the magistrate that he did want to give evidence but that the magistrate had said the case would be adjourned part‑heard. The magistrate said, '[y]es but we will get as much as we can out of the way'.[29]
[29] ts 54.
The magistrate knew from the start of the trial that Mr Prazmo had only been released from rehabilitation the day before and had said he was suffering from chronic pain, was on painkillers, and was not feeling very well. By the close of the prosecution case, the magistrate had seen and heard Mr Prazmo attempt to conduct his defence. It would have been obvious that Mr Prazmo did not, at times, understand what was going on and was having difficulty concentrating.[30] In those circumstances, the magistrate should not have continued with the trial. Further, when the magistrate did continue the trial, he should have explained to Mr Prazmo the consequences of choosing whether or not to give evidence.
[30] See, for example, ts 19. This was conceded by the respondent - see the Respondent's Submissions [17] and [32].
When the hearing resumed after a lunch break, Mr Prazmo commenced giving evidence.
The magistrate began by asking Mr Prazmo if he agreed it was him (Mr Prazmo) on the police body camera footage. Mr Prazmo agreed it was. He asked Mr Prazmo if the Myer CCTV footage was him or not. Mr Prazmo said it was him 'every now and then'. The magistrate asked Mr Prazmo if he had anything to say about where the bottle found in Ms N's bag had come from.[31]
[31] ts 57 ‑ 58.

Mr Prazmo said he did not remember the day the bottle was allegedly stolen.[32] He said he did not know if his drink had been spiked.[33] He said that he had never behaved in the way he appeared on the CCTV footage. He said that he knew how he usually talked and carried himself and he had never seen what was shown on the CCTV footage. He said it was very disturbing. He said he was shocked to see himself behaving in that way.[34] He said that he had drunk alcohol with Ms N on prior occasions, but could not remember the day of the alleged shoplifting.[35]
[32] ts 58.
[33] ts 58. See also ts 60, 62 and 75.
[34] ts 60 - 61.
[35] ts 62, 64.
When the magistrate said that Mr Prazmo's evidence was completed, Mr Prazmo said he had more to say. He again raised his understanding that the matter would be adjourned part‑heard. He said that the magistrate had suggested that there would be a 'partial trial' that day so that he (Mr Prazmo) could bring an expert or his GP to court on another day. The magistrate said that he had not said that and had only said that Mr Prazmo might be able to call Ms N.[36]
[36] ts 62 ‑ 63.
In relation to whether Mr Prazmo would be permitted to continue giving evidence, the magistrate said that, given Mr Prazmo's evidence was that he did not remember the day, he could not see what Mr Prazmo could add. The magistrate said, '[i]t's a dead end'.[37]
[37] ts 64. See also ts 63 and 66.
Mr Prazmo repeated that he wanted to call Ms N.[38] He again said that the magistrate had suggested that the trial would be part‑heard. On this occasion, the magistrate said 'No, I suggested, if it became apparent that [Ms N] would have something to add to the trial. Now, I can't fathom what [Ms N] might be able to add'.[39] The magistrate said that, even if Mr Prazmo adduced some credible evidence that his drink had been spiked, Mr Prazmo would still need to adduce expert evidence that a side effect of having a drink spiked with medication was theft.[40] The magistrate said Mr Prazmo had had nine months to get that evidence and yet was seeking the court's indulgence to adjourn the trial.[41]
[38] ts 64.
[39] ts 65.
[40] ts 65.
[41] ts 65.
The magistrate did not explore whether Mr Prazmo understood the difference between evidence and submissions, or the manner in which assertions could be proved. He did not ask why Mr Prazmo had not obtained the necessary evidence prior to the trial date. He did not ask how long Mr Prazmo had been in rehabilitation prior to his release the day before.
The magistrate refused to adjourn the trial for the following reasons:
1.he admitted that he had said that Ms N might be relevant, but this was before he had heard the evidence;
2.having now heard the evidence, the only conceivable evidence of relevance that Ms N could give was that she had spiked Mr Prazmo's drink and that it was 'highly unlikely she would make such a damning admission';[42]
3.Mr Prazmo had had ample time to get an expert report; and
4.given the sheer expense and the complexity of finding an appropriately qualified doctor to write a detailed expert report and come to court, it was 'wildly implausible' that such evidence could be obtained.[43]
[42] ts 68.
[43] ts 68. See also ts 65.
His Honour declined to adjourn the trial. He told the prosecutor he did not need to hear closing submissions from him. He permitted Mr Prazmo to make closing submissions.[44] The magistrate then delivered reasons for finding Mr Prazmo guilty and fined him $400.[45]
[44] ts 69.
[45] ts 71 ‑ 74.

The appeal

On 7 May 2024, Mr Prazmo filed a notice of appeal alleging he had suffered a gross miscarriage of justice.[46] At a directions hearing on 24 June 2024, I ordered the respondent to file submissions before Mr Prazmo was required to file submissions. In its submissions, the respondent conceded that there had been a substantial miscarriage of justice, and the appeal should be allowed.[47] Regrettably, it was not possible to bring the hearing of the appeal forward, as Mr Prazmo was overseas until shortly before the listed hearing date.
[46] Mr Prazmo filed two notices of appeal. The first notice described the grounds of appeal as 'overlooked or made a mistake'. The second notice set out a single ground of 'gross miscarriage of justice'. During a directions hearing on 24 June 2024, it became clear that Mr Prazmo wished to pursue his appeal on the ground that there had been a miscarriage of justice.
[47] Respondent's submissions [2] and [39].

Has there been a miscarriage of justice?

Procedural fairness requires, among other things, that an accused be given a reasonable opportunity to answer the case against him or her.[48]
[48] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 (Bhardwaj) [40].
A failure to assist a self‑represented litigant to overcome, so far as is reasonably practicable, the procedural disadvantages a self‑represented litigant faces by reason of not being legally trained, can constitute procedural unfairness.[49] A failure to grant a reasonable request for an adjournment can also constitute procedural unfairness. The question is whether the party was denied a reasonable opportunity to present his or her case.[50] The concern of the law is to avoid practical injustice.[51]

Judicial officer's obligations to assist self‑represented litigants

[49] See McCagh v Rural Bank (a division of Bendigo and Adelaide Bank Ltd) [2024] WASCA 68 [50] and the cases there cited.

[50] Bhardwaj [40]. See also Wyman (on behalf of Bidjara People) v Queensland [2015] FCAFC 108 [63] and Sethi v Bhavsar [2020] WASCA 52 [38]. See also Michael [63] (Steytler P, McLure JA and Miller AJA agreeing) and Nafranec v Nicol [2012] WASC 436 [10].

[51] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].

In Moleirinho v Talbot & Olivier Lawyers Pty Ltd, the Court said:[52]
What a judge ought do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case. The boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an extent that he or she cannot maintain a position of neutrality or as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored. (citations omitted)
[52] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]. This passage was endorsed by Beech J, with whom Buss JA and Mazza JA agreed, in Stone v Braun [2015] WASCA 103 [63].
As explained by the Court of Appeal in Zerjavic v Chevron Australia Pty Ltd:[53]
There are a number of recent occasions in which this court has examined what should be done by a trial judge to ensure a fair and just trial where one of the parties is a self‑represented litigant. The subject has been considered countless times in the New South Wales Court of Appeal and, in the important decision of In the Marriage of Johnson, by the Full Court of the Family Court of Australia. The application of the general principles varies depending on the particular circumstances of the case; for example, the nature of the case and the nature of the litigant including his or her understanding of the case. One abiding difficulty is the tension between the duty of a trial judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties. At all times a trial judge must remain an impartial adjudicator measured against the touchstone of fairness. For this reason the assistance a self-represented litigant ought to receive should be limited, ordinarily, to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a self-represented litigant faces by reason of not being legally trained. (footnotes omitted)
[53] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74].
In short, the court must diminish the disadvantage caused by the lack of legal representation without causing unfairness to the represented party.

What assistance is required?

The precise form of assistance required will vary depending on the circumstances of each case. However, many cases will require an explanation of the following:
1.The practice and procedure of the court, sufficient to ensure that there is a fair trial.[54] This will usually include:
[54] Zerjavic [75].
(a)the elements of the charge (or pleading);
(b)the manner in which the trial is to proceed;[55]
[55] Zerjavic [75].
(c)the right to cross‑examine witnesses;[56]
(d)the rule in Browne v Dunn and the consequences of not complying with it;[57]
(e)the right to object to evidence[58] and the common grounds on which objections can be made;
(f)the right to choose whether to give evidence, including the consequences of the choice;
(g)the right to call other witnesses or adduce other evidence;
(h)the right to claim a privilege if a question is asked, or evidence is sought to be tendered, in respect of which the self‑represented litigant has a possible claim of privilege;[59] and
(i)the distinction between evidence and submissions.[60]
2.If the judicial officer rules that proposed evidence is inadmissible, the reason should be explained to the self‑represented litigant in such a way as to ensure that he or she is able to understand the reason and can consider steps that might be taken to remedy the problem.[61]
3.If the represented party asks for a change in normal procedure (such as to interpose a witness) that could cause an injustice to the self‑represented litigant, the effect of what is being sought should be explained and the self‑represented litigant should be told that he or she has a right to object.[62]
[56] Zerjavic [75].
[57] See s 30 of the Magistrates Court Act 2004 (WA) and Bennett v Carruthers [2010] WASCA 131 [49] ‑ [50].
[58] Zerjavic [75].
[59] In the Marriage of Johnson (1997) 139 FLR 384, 407, endorsed in Zerjavic [75].
[60] Zerjavic [75].
[61] Stone v Braun [67] (Beech J, with whom Buss JA and Mazza JA agreed).
[62] Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 [136] ‑ [137], citing with approval the revised guidelines set out in Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517; (2001) 161 FLR 189. See also In the Marriage of Johnson (407).
The obligation to afford procedural fairness may also require a court to inform a self‑represented litigant of his or her ability to apply for an adjournment.[63]
[63] Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 [55].
That said, it is not the role of the court to
1.advise a self‑represented litigant as to how his or her rights should be exercised;[64]
2.run the case for the self‑represented litigant;[65]
3.identify an alternative case that may be run;[66] or
4.advise a self‑represented litigant as to the strengths and weakness of his or her evidentiary case, or how the case may be improved.[67]
[64] Zerjavic [75].
[65] Zerjavic [75], [84].
[66] Zerjavic [84].
[67] Zerjavic [86].
Doing any of these things would be incompatible with the court's position as an independent adjudicator.[68] What is compatible with that position, and what is required, is that the judicial officer put the self‑represented litigant in the position of being able to make effective choices.[69]
[68] See Zerjavic [74] - [75], [84], [86].
[69] Hamod v New South Wales [2011] NSWCA 375 [312].
On a practical level, if the other party is represented, the judicial officer may consider informing that representative of the matters which the judicial officer intends to explain to the self‑represented litigant. This would give the represented party the opportunity to object or suggest additional matters that should be explained.

Was procedural fairness denied?

I earlier set out relevant parts of the trial. In my view, procedural fairness was denied in several respects. In particular, I consider that, in the circumstances, the magistrate's refusal to adjourn the hearing meant that Mr Prazmo did not have a reasonable opportunity to answer the case against him. The effect of the refusal was that Mr Prazmo was required to defend himself while unwell and unprepared. He was simply not able to properly defend himself.
It is sufficient to note the following circumstances:
1.It was common ground that Mr Prazmo had only been released from rehabilitation the day before.
2.Mr Prazmo said he was in pain and was on painkillers. The prosecution did not dispute this. Indeed, it appears that the magistrate could tell that Mr Prazmo was 'under the weather' before the trial began.[70]
3.The prosecutor told the magistrate that Mr Prazmo was not ready for trial.
4.The prosecutor did not suggest there would be any prejudice if the trial was adjourned. Indeed, the prosecutor wanted it to be adjourned.
5.Mr Prazmo appeared to struggle to present his case in a rational and logical manner. As conceded by the respondent, Mr Prazmo appeared to be unable to effectively conduct his case.[71]
6.During the trial, Mr Prazmo appeared to have difficulty following and understanding the evidence, and was having difficulty concentrating.[72] As noted by the respondent, his 'capacity to understand the issues in the case was plainly limited, yet at no point did the magistrate explain to [Mr Prazmo] what the elements of the charge were'.[73]
7.As conceded by the respondent, the lack of assistance given by the magistrate may have compounded the difficulties experienced by Mr Prazmo at his trial arising from his ill‑health.[74]
[70] This was conceded by the respondent - see the Respondent's Submissions [32].
[71] Respondent's Submissions [32].
[72] This was conceded by the respondent - see the Respondent's Submissions [32].
[73] Respondent's Submissions [33].
[74] Respondent's Submissions [33].
It will be recalled that, before the trial began, the magistrate said that it would be part‑heard, so that relevant witnesses could be called later. His Honour said that the prosecution would need to make Ms N available to Mr Prazmo for cross‑examination. On several occasions during the trial, his Honour repeated that the trial would be part‑heard. However, he later changed his mind.
His Honour's reasons for changing his mind are set out earlier, but relevantly included that he considered
1.having now heard the evidence, the only conceivable evidence of relevance that Ms N could give was that she had spiked Mr Prazmo's drink and that it was 'highly unlikely she would make such a damning admission';[75] and
2.given the sheer expense and the complexity of finding an appropriately qualified doctor to write a detailed expert report and come to court, it was 'wildly implausible' that such evidence could be obtained.[76]
[75] ts 68.
[76] ts 68.
As acknowledged by the respondent, Ms N[77]
was likely a material witness that [Mr Prazmo] should have had the opportunity to cross‑examine. She was captured on CCTV footage with [Mr Prazmo] at the time that the discontinued stealing offence took place. In respect of the charge at issue, it is not clear whether she was in the Myer store with [Mr Prazmo] at the time of the offending, but it is not in dispute that the stolen item was ultimately located in her bag.
[77] Respondent's Submissions [35].
Before the trial began, the magistrate appeared to consider Ms N was, or at least could be, a material witness. He said that the prosecution should make her available to Mr Prazmo for cross‑examination. Plainly, his Honour changed his mind because of the way Mr Prazmo conducted his defence. However, had the trial been adjourned until Mr Prazmo was well, he may not have conducted his defence in that way.
In the circumstances, I am satisfied that a miscarriage of justice occurred. Mr Prazmo was unwell and not ready. As is apparent from the transcript of the trial, the effect of the refusal to adjourn the trial was that Mr Prazmo did not have a reasonable opportunity to defend himself. He suffered a practical injustice. The efficient use of public resources and the convenience of witnesses are relevant considerations when making decisions about the conduct of proceedings, but they can never justify a reduction of the minimum standards required of a fair trial.

The unrelenting nature of a magistrate's work

For completeness, I should record that I have no doubt that the magistrate was motivated solely by a desire to ensure that the court's resources were used efficiently and that civilian witnesses were not unnecessarily inconvenienced. Granting the adjournment would have lessened the magistrate's workload.
I also do not suggest that the magistrate intended the trial to be unfair to Mr Prazmo. Plainly, the magistrate thought that the charge was indefensible, and that any adjournment would simply prolong the agony.
Finally, as shown by some of the extracts set out earlier, there were times when the magistrate spoke to or about Mr Prazmo in disrespectful terms. In particular, he appeared to be speaking sarcastically when referring to Mr Prazmo 'breaking' witnesses under cross‑examination or 'blowing the case sky high'. At one point, he described Mr Prazmo's statements in court as 'weird'. I would infer that the magistrate spoke in this way because of the pressures caused by the overwhelming work of the Magistrates Court, coupled with having to deal with a litigant who was unable to restrict himself to matters of relevance. However, one of the many burdens placed upon magistrates is that they are expected to conduct themselves with dignity, even in the most difficult circumstances. Discourteous or rude behaviour is inconsistent with that duty.[78]
[78] See, in relation to trial judges, Armet v Stephen Browne [2024] WASCA 44 [56].

Was the miscarriage of justice 'not substantial'?

The second issue is whether, even though I am satisfied that there has been a miscarriage of justice, I should nevertheless dismiss the appeal because I consider that the miscarriage of justice was not substantial.
In a case such as this, I could only conclude that the miscarriage of justice was not substantial if I found that the error could not have affected the outcome or that a conviction was inevitable.[79] The error in this case, being a denial of procedural fairness in the circumstances I have outlined, is such that I am unable to draw either conclusion.
[79] See Morgan v Cramer [2019] WASC 68 [45] ‑ [46], [48] ‑ [50] and Fujita v City of Bayswater [2022] WASC 101 [60].
The respondent rightly conceded that the miscarriage was substantial.[80]
[80] Respondent's Submissions [39].

Orders

Accordingly, I would grant leave to appeal and allow the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Hon Justice Archer
23 DECEMBER 2024