Re Her Honour Magistrate Woods;

Case •

[2017] WASC 86

•

24 MARCH 2017

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE HER HONOUR MAGISTRATE WOODS; EX PARTE GOLESTANI [2017] WASC 86

CORAM:   ALLANSON J

HEARD:   23 MARCH 2017

DELIVERED          :   24 MARCH 2017

FILE NO/S:   CIV 2844 of 2016

MATTER                :An application under the Magistrates Court Act 2004 s 36 for a review order against her Honour Magistrate Woods of the Magistrates Court of Western Australia at Perth

EX PARTE

PAYAM GOLESTANI
Plaintiff

AND

HER HONOUR MAGISTRATE WOODS
First Defendant

HONG TONG WONG
Second Defendant

Catchwords:

Review order - Refusal by magistrate to grant permanent stay - Amendment of disclosure order - Whether opportunity to be heard - Whether magistrate acted beyond power - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Procedure Act 2004 (WA), s 35, s 42(2), s 61(2), s 138
Magistrates Court Act 2004 (WA), s 36

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant              :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant              :     No appearance

Second Defendant         :     No appearance

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

Woodley v Minister for Indigenous Affairs [2009] WASC 251

  1. ALLANSON J:  The applicant, Payam Golestani, has been charged with an offence of exceeding the speed limit by 20 km an hour but not more than 29 km an hour.  He was issued with an infringement notice but chose to have the matter dealt with in court. 

  2. The offence is pursuant to s 11(3) of the Road Traffic Code 2000 (WA). It is not indictable and is not a prescribed simple offence.

The Criminal Procedure Act and disclosure

  1. On the charge of speeding, the disclosure requirements under the Criminal Procedure Act 2004 (WA) are those found in s 35 (6). The Act does not require disclosure of evidentiary material on the prosecution of a simple offence.

  2. The operation of s 35 is subject to any order made under s 138.

  3. By s 60(5)(b), the court may order the prosecutor to give disclosure under s 61. That does not appear to have occurred in this case.

  4. Finally, it is necessary to have regard to s 138:

    (1)In this section, unless the contrary intention appears ‑

    disclosure requirement means a requirement under section 35, 42, 61, 62, 95 or 96 to disclose material, other than a requirement under section 62(4)(a) or 96(3)(a).

    (2)The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.

    (3)A court may, in respect of a disclosure requirement, make an order ‑

    (a)that dispenses with all or part of the requirement, if it is satisfied ‑

    (i)there is a good reason to do so; and

    (ii)no miscarriage of justice will result;

    or

    (b)that shortens or extends the time for obeying the requirement; or

    (c)that amends or cancels an order made previously under this section, whether by the court or some other court; or

    (d)as to any other matter that the court considers is just.

The history of the proceedings:

  1. The procedural history of this matter has, understandably, left Mr Golestani confused.

  2. On 18 March 2016 Magistrate Cicchini, made an order that the prosecution disclose to Mr Golestani, prior to the trial allocation day, all statements of witnesses and other evidentiary material, including a copy of speed measuring devices manual, and any copies of police running sheets, daily records, calibration records, diary entries.  His Honour also ordered that the make and model number of the speed measuring device be supplied to Mr Golestani.

  3. Arguably, his Honour had power to make that order under s 138(3)(d). It is not expressed to be an order under s 60(5), it was not asked for on that basis and his Honour did not order service of confessional material - a precondition to the making of an order under s 60(5)(b).

  4. Magistrate Cicchini did not specify how disclosure was to be made. The prosecution did not provide Mr Golestani with a copy of the manual. It appears, however, that the police advised him by letter when and where it could be inspected. I infer that the prosecution was acting on the understanding that, under s 61(2) and s 42(2) of the Criminal Procedure Act, a requirement to serve evidentiary material includes, if it is not practicable to copy a document, to serve a notice that describes it and states where and when it can be inspected.

  5. The matter was then before the Magistrate Randazzo on 24 May 2016.  His Honour heard argument regarding the practicability of providing a copy of the manual.  He recognised that it may not be practicable to copy the manual but said in that case Mr Golestani should be given every reasonable opportunity to arrange to inspect it.  His Honour said:

    At the moment my provisional view is that it may not be practicable to copy that document - that manual if that is the case, then there is no obligation to actually produce it to an accused, provided of course that every reasonable opportunity is provided to an accused to arrange to inspect that document.

  6. His Honour advised Mr Golestani that he would have the opportunity to make full submissions if there was a formal application seeking a separate hearing or any further order in respect of the manual.  His Honour then said:

    …[The manuals] are currently held in police custody.  The accused has been provided with a letter on or about 27 April 2016, in which he has been informed - and I summarise now - where the manual or manuals can be inspected.  To that extent it appears that the accused has an opportunity to inspect the manual or manuals and the prima face impression I have is that it is not practicable to copy that document and provide it to the accused.

    That may or may not ultimately be the position, and it may be the subject of any further application and issue requiring resolution and order of the court if necessary.

  7. There was some uncertainty about whether full disclosure had been made, and his Honour required the prosecution to confirm whether disclosure had been given by 21 June 2016. 

  8. At some time, the matter came before Chief Magistrate Heath.  There is no transcript of that occasion.  

  9. Mr Golestani maintained correspondence by email with the police in which he insisted that disclosure must be by providing a copy of the manual.  The prosecution maintained that it had met its obligations by making the manual available for inspection.

  10. On 29 August 2016, the matter came before Magistrate Pontifex for trial.  Mr Golestani was proposing to lead expert evidence, but had not disclosed the substance of his expert report to the prosecution.  Her Honour referred to his failure to disclose.  She then asked the prosecutor why the manuals had not been disclosed to Mr Golestani in compliance with the order of Magistrate Cicchini.  Her Honour said, in effect, that the prosecution was required to comply with the order of Magistrate Cicchini by providing a copy of the manual unless that order was set aside on appeal.   

  11. Magistrate Pontifex then ordered that the prosecution comply with previous disclosure orders within 21 days.

  12. Finally, the matter came before Magistrate Woods on 4 October 2016.   Mr Golestani applied for a permanent stay of the proceedings on the ground that he had not received copies of the manuals 'and it is unlikely that the prosecution will provide that'.

  13. The prosecutor advised the court that Mr Golestani had been served with a letter advising him where the manual could be inspected. The prosecutor relied upon s 42(2)(a) of the Criminal Procedure Act. Section 42 does not directly apply in this case. It applies if an accused is charged in a court of summary jurisdiction with an indictable offence. It may, however, be picked up by s 61(2). It is unnecessary to decide that question.

  14. Her Honour then asked Mr Golestani if he had inspected the document.  When he attempted to refer to the orders made by Magistrate Pontifex, her Honour said:

    Under the Criminal Procedure Act, they followed the correct procedure. Okay?... Doesn't matter what the order was: that's the procedure.

    …

    So you've been told where to go, how to view it, how to make the appointment, the hours are, and you've not done it.  So I am not staying anything.

  15. When Mr Golestani referred to previous orders made by other magistrates he was told, 'we have moved on'.  When he referred again to different magistrates making different rulings, he was told:

    We are trying to deal with the disclosure matters … Okay?  We are not bound by each other's decision.

    If you would like to appeal Mr Golestani, off you go.

The challenged decision

  1. In this application, Mr Golestani seeks judicial review under s 36 of the Magistrates Court Act 2004 (WA) of the decision of Magistrate Woods. The decision is described in this way:

    Her honour declined to stay the proceedings following the failure of WA police to comply with His Honour Magistrate Cicchini's order for disclosure (18/3/2016) or compel the prosecution to comply with the programming orders as previously ordered by Her Honour Magistrate Pontifex on (29/8/2016).

The process for review

  1. Under s 36(4) of the Magistrates Court Act, the Supreme Court may order that an act, order or direction of a magistrate be set aside:

    (i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

    (ii)on any ground that might have justified an order of certiorari,

  2. The court may grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari; and may make any necessary consequential orders.   

  3. The section provides a two stage process. Under s 36(1), the court may make a review order requiring the magistrate or any person who will be affected by her order to satisfy the court at a hearing that the magistrate's order should not be set aside. The grounds on which an order may be set aside include that it was made without jurisdiction or power or is an abuse of process, or on any other ground that might have justified an order of certiorari.

  4. Mr Golestani has applied on the single ground that the magistrate exceeded her jurisdiction.  The test to be applied at this stage has been described in various ways.  With respect, I adopt and apply what was said by the Chief Justice in Woodley v Minister for Indigenous Affairs [2009] WASC 251:

    [P]erhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].

Consideration

  1. The short answer to the application as formulated is that the magistrate did not exceed her jurisdiction.

  2. The first order made was simply for disclosure.  Magistrate Cicchini's orders did not specify how disclosure should be made.  If there was any uncertainty, it should have been settled in the proceedings before the second magistrate.  Magistrate Randazzo did not purport to amend the order for disclosure, but his comments indicate that he believed that the letter of 27 April 2016, giving notice of where the document could be inspected, was sufficient.

  3. The hearing before Magistrate Pontifex then confused the matter. Her Honour's comments appear to have led Mr Golestani to believe that disclosure must be by providing a copy, and could only be amended on appeal. That would be contrary to s 138(3). And the making of a disclosure order is not a decision which may be appealed under the Criminal Appeals Act 2004 (WA): see s 6, s 7.

  4. It appears from transcript that Magistrate Woods very quickly came to the view that disclosure by the opportunity to inspect was all that was required. Ultimately, however, I do not believe that Mr Golestani has any reasonable prospects of setting aside her decision to refuse a stay. Her Honour was correct that, on disclosure, magistrates are not bound by each other's orders. Assuming that Magistrate Cicchini had required the prosecution to provide a copy of the manual (I am not sure that he did) another magistrate, acting under s 138, would have power to amend or cancel the order for disclosure if satisfied there is good reason and no miscarriage of justice would result. When the issue is considered in context of the quite detailed provisions for disclosure in the Criminal Appeals Act, including the powers in s 138, Magistrate Woods did not act without jurisdiction when she refused to stay the prosecution.

  5. Her Honour made her mind up quickly, but Mr Golestani was heard before the order was made.

  6. I will not make a review order.

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Woodley v Minister for Indigenous Affairs [2009] WASC 251