Re His Honour Magistrate Roth; Ex Parte Ridge

[2016] WASC 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE HIS HONOUR MAGISTRATE ROTH; EX PARTE RIDGE [2016] WASC 121

CORAM:   MARTINO J

HEARD:   2 FEBRUARY 2016

DELIVERED          :   28 APRIL 2016

FILE NO/S:   CIV 2224 of 2015

MATTER                :An application under the Magistrates Court Act 2004 (WA) s 36 for a review order against His Honour Magistrate Roth, Magistrate of the Magistrates Court of Western Australia at Northam

EX PARTE

SIMON LUIGI JOHN RIDGE
Applicant

AND

HIS HONOUR MAGISTRATE ROTH
First Respondent

N GODFREY HAULAGE PTY LTD
Second Respondent

Catchwords:

Criminal law - Prosecution commenced by a person without authority to do so - Whether error should have been corrected - Discretion

Legislation:

Criminal Procedure Act 2004 (WA)
Dangerous Goods Safety Act 2004 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)

Result:

Order of magistrate dismissing prosecution set aside

Category:    B

Representation:

Counsel:

Applicant:     Mr D E Leigh

First Respondent           :     No appearance

Second Respondent      :     Mr A Elliott

Solicitors:

Applicant:     State Solicitor for Western Australia

First Respondent           :     No appearance

Second Respondent      :     Battley & Co

Cases referred to in judgment:

Calandra v Civil Aviation Safety Authority [2015] WASCA 31

Lyster v Kemp [2010] WASC 47

Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 22

Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Spagnolo v Flynn [2014] WASCA 88

MARTINO J: 

The application

1. The applicant is the Executive Director, Resources Safety, of the Department of Mines and Petroleum. By a notice of motion filed on 5 August 2015 the applicant applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) (MCA) in respect of a decision made on 6 March 2015 by the first respondent in the Magistrates Court at Northam to dismiss a prosecution against the second respondent. The notice of motion came before me on 14 August 2015. After hearing counsel for the applicant I ordered pursuant to s 36(1) of the MCA that the respondents satisfy the Supreme Court that the first respondent's decision should not be set aside and made directions for the service of documents on the first and second respondents and for the conduct of the hearing.

2. The first respondent has filed notice that he will abide by this court's decision, save as to costs.  The second respondent has appeared in this action and has been represented by counsel.

The accident and Senior Constable Osborne's investigation

1. On 12 April 2013 a road train left the road on Great Eastern Highway near Meckering and struck a water pipe. 

2. Senior Constable Tony Allan Osborne attended the accident.  He determined that the second respondent was the prime contractor responsible for the vehicle involved in the accident. 

3. Senior Constable Osborne was given responsibility for recommending whether or not the second respondent should be charged with any offences owing to its transportation of dangerous goods and the accident. He formed the view that charges should be brought against the second respondent for an offence of contravening s 47(1) of the Dangerous Goods Safety Act 2004 (WA) (the Act) and an offence of contravening reg 152 of the Dangerous Goods Safety (Road and Rail Transport of Non-explosives) Regulations 2007 (WA) (the Regulations).

The prosecution and its dismissal

1. By a prosecution notice filed in the Magistrates Court at Northam on 3 April 2014 Senior Constable Osborne charged the second respondent with an offence of contravening reg 152 of the Regulations and an offence of contravening s 47(1) of the Act. The charge of contravening reg 152 of the Regulations came before the first respondent on 6 March 2015. The charge of contravening s 47(1) of the Act had been discontinued and so dismissed at an earlier hearing.

2. At the hearing on 6 March 2015 the first respondent dismissed the charge of contravening reg 152 of the Regulations. His Honour did so because he held that Senior Constable Osborne was not authorised to commence a prosecution under reg 152 of the Regulations.

The issues to be determined in this application

1. The applicant accepts that the prosecution of the second respondent for contravening reg 152 of the Regulations was defective. That is because Senior Constable Osborne was not authorised to commence the prosecution. The applicant contends that the defect in the prosecution was capable of being corrected, that the defence was not material to the merits of the case and that the first respondent was obliged by s 178 of the Criminal Procedure Act 2004 (WA) (CPA) to correct the prosecution notice.

2. The second respondent contends that the first respondent had no power to correct the prosecution notice because the defective prosecution notice was a nullity.  Further, the second respondent contends that, even if the first respondent was in error, in the exercise of my discretion I should not grant the relief that the applicant seeks.  The factors that the second respondent points to in regard to the exercise of my discretion are:

   •the prosecutor did not ask the first respondent to amend the prosecution notice;

   •delay in commencing this action; and

   •recklessness of the police officers in commencing the prosecution with a defective prosecution notice.

The evidence at the hearing of this application

1. The hearing before me took place on 2 February 2016.  The applicant relied upon his affidavit made 5 August 2015, the affidavit of Anthony John Page made 4 September 2015 and the affidavit of Tony Allan Osborne made 12 August 2015.  Each of the deponents attended the hearing, gave evidence in which the witness identified his affidavit and was cross examined.

2. The second respondent relied upon the affidavit of Nathan Godfrey, a director of the second respondent, made 21 October 2015.  Mr Godfrey gave evidence and was cross‑examined on his affidavit by audio link to Victoria.  A video link scheduled for the hearing was not possible due to technical difficulties that occurred on that day.

3. Prior to the hearing on 2 February 2016 the second respondent filed a document conceding the following factual matters:

   1.At the time of the hearing on 6 March 2015 the prosecution in matter MC/NOR 504/2014 (Prosecution) had available to it evidence which was capable of establishing each element of the charge in that matter.

   2.Taken as a whole, the evidence in that matter disclosed a strong prima facie case.

   3.The second respondent had not obtained any documentary evidence prior to the hearing on 6 March 2014 (sic ‑ 2015) which might have raised a doubt as to whether the prosecution's evidence established the elements of the offence, or alternatively might have established a defence against the charge.

   4.The second respondent had not taken any statements from, and did not have in the court at the hearing date, witnesses whose testimony might have raised a doubt as to whether the prosecution's evidence established the elements of the offence, or alternatively might have established a defence against the charge.

   5.Prior to attending court on the morning of the hearing the second respondent was not aware that Senior Constable Tony Osborne had (sic ‑ was) not properly authorised to lay the charge.

   6.Prior to discovering that Senior Constable Osborne had not been properly authorised to lay the charge the second respondent had intended to plead guilty to it.

4. The applicant had filed an affidavit made on 19 October 2015 by Nikolas Stefan Barron, a solicitor at the State Solicitor's Office.  At the hearing on 2 February 2016 counsel for the applicant informed me that by reason of the concessions made by the second respondent he would no longer need to rely upon the documents attached to Mr Barron's affidavit.  In the course of the hearing counsel for the applicant did refer on two occasions to the documents attached to Mr Barron's affidavit.  One occasion was in the cross-examination of Mr Godfrey, when he was asked about a copy of a letter to him from the Department of Mines and Petroleum dated 15 April 2013, a copy of which was attached to Mr Barron's affidavit.  The other occasion was in his closing address in which counsel for the applicant submitted that if I were to grant the application the second respondent would be in a better position than it was in when the prosecution came before the first respondent because the second respondent now has, by way of Mr Barron's affidavit, the entire police brief on that prosecution.

The evidence of Senior Constable Osborne

1. In his affidavit made on 12 August 2015 Senior Constable Osborne (who was, at the time an Acting Sergeant) deposed that on 12 April 2013 he attended a crash on the Great Eastern Highway.  He saw a road train crashed against a pipeline and surrounded in water.  He determined that the second respondent was responsible for the road train.

2. Senior Constable Osborne formed the view that charges should be brought against the second respondent for offences under s 47(1) of the Act and reg 152 of the Regulations. On 28 February 2014 Senior Constable Osborne was authorised by the applicant to prefer the charge under s 47(1) of the Act. A copy of that authorisation is attached to his affidavit.

3. Senior Constable Osborne did not receive an authorisation from the applicant to prefer the charge under reg 152 of the Regulations. Senior Constable Osborne knew that Sergeant Anthony Page was authorised by the applicant to prefer a charge under that regulation.

4. On 2 April 2014 Senior Constable Osborne prepared and signed a WA Police Evidence Matrix for each of the charges that he had formed the view should be brought against the second respondent and submitted those matrixes to Sergeant Page. 

5. A matrix is an internal Western Australian Police document.  It sets out the proposed charge and the evidence supporting that charge.  It is signed by the officer who prepared the matrix and is submitted to a superior officer for review.  If the superior officer agrees that there is prima facie evidence to support each element of the offence that officer signs the matrix to endorse the preferring of the charge.

6. Sergeant Page signed both matrixes as the endorsing officer on 2 April 2014.  A copy of each matrix is attached to Senior Constable Osborne's affidavit.  The endorsement of Sergeant Page is, in each case, in the following terms:

   Endorsement to Charge: I have assessed this evidence matrix and agree / do not agree that there is prima facie evidence for each element of the offence and therefore endorse / do not endorse the charge.  I make this endorsement based upon the evidence presented within this matrix at the date of endorsement.

7. The words 'agree' and 'endorse' were circled to show that Sergeant Page agreed that there was prima facie evidence and endorsed the charge.

8. On 3 April 2014 Senior Constable Osborne commenced both prosecutions. He deposed in his affidavit that it was his understanding that Sergeant Page had authorised him to commence the prosecution of the second respondent for the charge under reg 152 of the Regulations by endorsing the matrix for that charge. Senior Constable Osborne did not realise at that time that the authorisation which Sergeant Page had under the Act did not permit him to further authorise other officers to sign prosecution notices. At all times it was Senior Constable Osborne's belief that he was acting pursuant to Sergeant Page's authorisation under the Act.

9. In evidence‑in‑chief Senior Constable Osborne confirmed the contents of his affidavit and gave further evidence.  Senior Constable Osborne gave evidence that he learnt something about the Act through conducting operations with the Department of Mines and Petroleum.  In or around 2012 or 2013 he completed a dangerous goods course on the transport of dangerous goods which was arranged by the Department of Mines and Petroleum.  The course covered the responsibilities of the driver and the company in the transporting of dangerous goods, the different types and classes of dangerous goods, the type of equipment required to carry dangerous goods and the documentation required.

10. Originally the police officers who were investigating matters under the Act would send the results of their enquiries to the Department of Mines and Petroleum.  They were doing quite a few prosecutions under that Act.  Senior Constable Osborne was aware that in 2014 Sergeant Page received an authorisation to prefer some charges under the Act.

11. When he decided to prosecute the second respondent he requested an authority from the Department of Mines and Petroleum to commence a prosecution under s 47(1) of the Act.  A copy of Senior Constable Osborne's email dated 28 February 2014 requesting that authorisation is exhibit 2.  It is in the following terms:

    Can you please do up a authority to prosecute Nathan Godfrey Haulage.

    IR 120413 0151 10181

    Sect 47.

12. Senior Constable Osborne gave evidence that he did not request an authorisation to commence a prosecution under reg 152 of the Regulations because he knew that Sergeant Page had an authorisation to commence a prosecution under that regulation.

13. In cross-examination Senior Constable Osborne acknowledged that his understanding in 2014 that the endorsement of Sergeant Page on the evidence matrix for the charge under reg 152 of the Regulations authorised him under the Act to commence that prosecution was incorrect. He gave evidence that he had that understanding because he was not permitted to do anything with a prosecution notice for a charge until Sergeant Page endorsed an evidence matrix for that charge. Senior Constable Osborne acknowledged that while the evidence matrix was disclosed to the defence, it did not go to the court with the prosecution notice and that it was the prosecution notice that commenced the prosecution.

14. Senior Constable Osborne was cross-examined as to the fact that he did not obtain an authorisation for Sergeant Page to commence a prosecution under s 47(1) of the Act.  He gave evidence that following his request for an authority in his email of 28 February 2014 he received an authority for Senior Constable Osborne to commence a prosecution under s 47(1) of the Act.

15. He was closely cross-examined on the issue of his belief at the time. Throughout that cross-examination he maintained his evidence that he believed that with the endorsement of Sergeant Page on the evidence matrix for the charge under reg 152 of the Regulations he believed that he was authorised to commence that prosecution.

16. Senior Constable Osborne was asked about an exchange of emails between him and an officer of the Department of Mines and Petroleum on 2 August 2013 about other prosecutions.  In the email to him the officer of the Department of Mines and Petroleum asked if he needed to do an authorisation for the prosecutions or 'on the court notice will you list Pagey as the individual who is commencing prosecution?'  Senior Constable Osborne confirmed that he would have received the email, but he could not recall it.  Copies of those emails were tendered in evidence as exhibit 3.

17. Senior Constable Osborne was also cross-examined as to his understanding of the authorisation that Sergeant Page received on 2 August 2013.  His evidence was that he now understands that it required Sergeant Page to be the person whose name is to be listed on the prosecution notice, but he could not recall his understanding at the time that he saw the authorisation.

18. In re-examination Senior Constable Osborne gave evidence that he is not a police prosecutor.  He has not been trained in court procedure.

The evidence of Sergeant Page

1. When giving oral evidence Sergeant Page changed evidence contained in [14] of his affidavit made 4 September 2015.  The paragraph in the affidavit made on 4 September 2015 read:

   I did know at that time that the authority given to me by the Chief Officer under the Act could not be utilised in this manner, and that I could not instruct other officers to commence prosecutions under to my authority.

2. The time referred to in that paragraph was the time at which he signed evidence matrixes prepared by Senior Constable Tony Osborne.  When giving his evidence orally Sergeant Page corrected that paragraph to give evidence in the following terms:

   I did not know at that time that the authority given to me by the Chief Officer under the Act could not be utilised in this manner, and that I could not authorise other officers to commence prosecutions under my authority.

3. A copy of his affidavit containing that amendment became exhibit 1.

4. Sergeant Page confirmed his evidence in that affidavit as amended.

5. In his affidavit as amended Sergeant Page deposed that on 2 August 2013 he was authorised by the applicant to commence prosecutions for a range of offences against the Regulations. A copy of that authorisation is attached to Sergeant Page's affidavit. The authorisation includes authorisation to prosecute for an offence under reg 152.

6. The internal process used for preferring a charge by the WA Police involves the use of a document called a 'WA Police Evidence Matrix'.  An officer prepares a matrix by setting out the proposed charge and the evidence that has been gathered to support that charge.  That officer then signs that matrix and presents it to a superior officer.  That officer reviews the matrix and, if he or she agrees with the recommendation made in it, signs it.

7. On 2 April 2014 Sergeant Page received two matrixes from Senior Constable Osborne in respect of charges against the second respondent.  Sergeant Page endorsed both matrixes.  Copies of the matrixes are attached to Sergeant Page's affidavits.  They are the same as the copy matrixes attached to Senior Constable Osborne's affidavit.

8. Sergeant Page deposed that at the time that he signed the matrixes he knew that Senior Constable Osborne had not been authorised to commence a prosecution for an offence against reg 152 of the Regulations. However, Sergeant Page was authorised to commence such a prosecution. He thought that in signing the evidence matrix as the endorsing officer he had in turn authorised Senior Constable Osborne to commence that prosecution by drawing up and executing the prosecution notice. Sergeant Page did not know at that time that the authority given to him by the applicant could not be used in this manner and that he could not authorise other officers to commence prosecutions under his authority. If he had known that his authority could not be used in this manner Sergeant Page would have signed the prosecution notice himself rather than instruct Senior Constable Osborne to sign it.

9. In his evidence‑in‑chief Sergeant Page gave evidence that he is the officer in charge of the Wheatbelt Traffic Enforcement Group in Northam.  There are six police officers at the Wheatbelt Traffic Office.  Sergeant Page supervises all of them.  It is a small office and he works very closely with its officers.  He described his supervision of them as total.

10. In or around early 2013 the Wheatbelt Traffic Office became involved with the Department of Mines and Petroleum in the enforcement of the legislation concerning the transporting of dangerous goods by heavy vehicles.  The police officers received training in the legislation which was organised and paid for by the Department of Mines and Petroleum.  Senior Constable Osborne was one of the officers who received that training and he was heavily involved in the enforcement of the legislation.

11. The practice of the office initially was for the police officers to seek approval from the Department of Mines and Petroleum for prosecutions.  Several months after receiving training in the legislation Sergeant Page received the authorisation from the applicant dated 2 August 2013.

1. When he received that authorisation Sergeant Page understood that he could authorise the prosecution to commence through the processes that the office had in place.  This involved the use of an evidence matrix which the officer on the road would prepare and submit to Sergeant Page.  If he was satisfied with the proposal contained in the matrix then Sergeant Page would endorse the charge being commenced.  Sergeant Page gave evidence that he understood that by reason of the authorisation he was the only person who could sign off on the evidence matrixes.  When Sergeant Page was on holiday the prosecutions had to wait.

2. Sergeant Page was cross‑examined as to his understanding of the commencement of a prosecution.  His evidence was that a WA Police Evidence Matrix commences a prosecution because it is the very first thing that happens for a prosecution.  The prosecution is not in the hands of the court when Sergeant Page signs an evidence matrix.  The matrix authorises someone to commence a prosecution, but it does not itself commence the prosecution.

3. At the time that he signed the evidence matrixes for the prosecution of the second respondent Sergeant Page believed that the signing of the evidence matrix was what the police did to commence a prosecution.  It was the very first thing that had to be done and his understanding was that by endorsing the matrix it commenced the prosecution.

The evidence of the applicant Simon Luigi John Ridge

1. In his affidavit made on 5 August 2015 the applicant deposed that he has been the Executive Director, Resources Safety with the Department of Mines and Petroleum since August 2012.  Prior to that appointment the applicant was the State Mining Engineer.  Between 29 February 2008 and 12 February 2015 the Executive Director, Resources Safety was the Chief Dangerous Goods Officer under s 25 of the Act.  On 13 February 2015 the designation of Chief Dangerous Goods Officer was passed to the person holding the position of Director, Dangerous Goods and Petroleum Safety within the Resources Safety Division of the Department of Mines and Petroleum.  At the time of making the applicant's affidavit Ross Stidolph was the holder of that position.

2. During the period that he was Chief Officer the applicant authorised numerous people, including police officers, to commence prosecutions for offences under the Act and the Regulations. 

3. Senior Constable Osborne was authorised to commence the prosecution of the second respondent under s 47 of the Act. He was not authorised to commence the prosecution under reg 152 of the Regulations.

4. Sergeant Page was authorised to commence prosecutions for offences, including a prosecution for an offence under reg 152 of the Regulations.

5. On 6 March 2015 Mr Ross Stidolph issued an authorisation to Senior Constable Osborne to allow him to prefer the charge against the second respondent under reg 152 of the Regulations.

6. Attached to the applicant's affidavit is a copy of the transcript of the hearing before the first respondent on 6 March 2015. The first respondent did not accept that Mr Stidolph's representation could operate retrospectively. The second respondent did not give consideration to whether the prosecution notice could be corrected under s 178 of the CPA.

7. In cross-examination the applicant said that the Department of Mines and Petroleum has a formal training programme for people who are to be authorised to commence prosecutions.

The evidence of Mr Godfrey

1. Mr Nathan James Godfrey is a director of the second respondent.  In his affidavit made 21 October 2015 Mr Godfrey deposed that prior to the appearance on 6 March 2015 before the first respondent the second respondent had been provided with a copy of the prosecution notice and the police statement of material facts.  Disclosure of witness statements, exhibits and other evidentiary material had not been provided by the prosecution despite a request from the defence.  Attached to Mr Godfrey's affidavit was an exchange of emails.  Counsel for the second respondent had requested disclosure of statements and the documentation said to be deficient by email dated 26 February 2015.  In a reply dated 27 February 2015 a prosecuting police officer said that as the disclosure requested was not required by statute, the court or WA Police policy he would not provide the material.  He said that the deficient material was left in the possession of the driver who retained the load.  The police officer had only photographs of those documents.  He said that the witness statements were very simple and in substance they covered the elements of the offence.

2. On the morning of 6 March 2015 counsel for the second respondent was permitted to look at a small number of documents which were said to support the prosecution case, including a diagram said to depict the locations of the dangerous goods within the consignment and a photograph of the prime mover/trailer arrangement.

3. Counsel for the second respondent informed Mr Godfrey that he has seen the folder of papers comprising the prosecution brief and that it appears to comprise at least 100 pages.  The names of the witnesses to be called and copies of the exhibits to be tendered at a trial of the prosecution have not been provided to the defence.

4. The driver of the road train at the time with which the prosecution is concerned has left the employment of the second respondent.  Mr Godfrey understands that he has moved to Queensland, but has no details by which to contact him.  That driver ceased being employed by the second respondent on 7 April 2014.  At the time he was receiving payments of workers' compensation.  At the conclusion of that employee's employment there was an issue concerning an overpayment of wages, which was referred to in a letter from the second respondent to the worker dated 18 July 2014, a copy of which is attached to Mr Godfrey's affidavit.

5. The trailer arrangement was packed by Mainfreight Australia who were responsible for providing the paperwork to the driver.  Mr Godfrey deposed that the passage of time made it difficult for the second respondent to obtain relevant records from Mainfreight Australia for the purpose of conducting its defence.

6. Counsel for the second respondent has spoken to staff at the Northam Court and if the prosecution were to have been listed in October it would not be listed for hearing before the end of March or beginning of April 2016.  Mr Godfrey deposed that he believed that a delay of a further six months from the conclusion of this action until any fresh hearing would make it even more difficult for the second respondent to locate the driver should it become necessary to do so.  Mr Godfrey deposed that he believed that the second respondent would be prejudiced in defending the matter by the amount of time which has passed and the further time which will pass before the hearing of the prosecution if the applicant is successful in this application.

7. In cross‑examination counsel for the applicant asked Mr Godfrey whether, as the second respondent's letter to the truck driver dated 18 July 2014 was written approximately two months after the second respondent entered a plea of not guilty to the charges against it the second respondent was in contact with the driver after it was charged.  Mr Godfrey said that the driver owed the second respondent money.  The bookkeeper and Mr Godfrey's mother tried to chase him up, but Mr Godfrey was not able to provide dates.  Mr Godfrey said that if it were necessary to do so the second respondent might be able to find the driver.

8. Mr Godfrey gave evidence that he sought advice from a lawyer in Melbourne.  He flew a driver to Western Australia for the hearing on 6 March 2015 but that was not the correct driver because Mr Godfrey believed that the prosecution arose out of a different accident.

9. Mr Godfrey was asked about a letter to him from the Department of Mines and Petroleum dated 15 April 2013, a copy of which was attached to Mr Barron's affidavit, requesting a copy of the dangerous goods transport document.  The letter had been endorsed in hand 'Mainfreight have this'.  He was asked if the second respondent approached Mainfreight on receipt of the letter.  Mr Godfrey said that it was possible that the second respondent had done so.  The second respondent had an operations manager who handled such matters at the time.

10. Mr Godfrey agreed that he was in court at the hearing by the first respondent on 6 March 2015 when counsel for the second respondent informed the court that the second respondent was going to plead guilty before it was discovered that there was a problem with the prosecution notice.  Mr Godfrey said that it was possibly his intention to plead guilty before it was discovered that there was an error with the prosecution notice.

11. In re-examination Mr Godfrey said that when he was at court on 6 March 2015 he was shown a number of photographs and some photocopy material safety data handling sheets.  Mr Godfrey said that he had been to Mainfreight on at least four occasions and he had not been provided with copies of the documentation from the load with which the prosecution was concerned.

Findings of fact

1. From the affidavits, oral evidence and concessions made by the second respondent I make the following findings of fact.

2. As a result of his investigations into the accident that took place on 12 April 2013 Senior Constable Osborne decided that charges should be brought against the second respondent for offences against s 47(1) of the Act and reg 152 of the Regulations.

3. Sergeant Page was authorised by the authority from the applicant of 2 August 2013 to commence prosecutions for an offence against reg 152 of the Regulations. When he decided that charges should be brought against the second respondent Senior Constable Osborne knew of Sergeant Page's authorisation. On 28 February 2014 Senior Constable Osborne requested from the Department of Mines and Petroleum authority to commence a prosecution of the second respondent for an offence against s 47 of the Act. On the same day the applicant authorised Senior Constable Osborne to commence that prosecution.

4. On 2 April 2014 Senior Constable Osborne provided to Sergeant Page a WA Police Evidence Matrix for a charge against the second respondent for an offence against s 47 of the Act and a matrix for a charge against the second respondent for an offence against reg 152 of the Regulations.

5. On the same day Sergeant Page endorsed the matrixes for the charges.

6. On 3 April 2014 Senior Constable Osborne lodged at the Magistrates Court at Northam a prosecution notice signed by him for prosecutions against the second respondent for the two charges.

7. Senior Constable Osborne believed that Sergeant Page could authorise him to commence a prosecution under reg 152 of the Regulations. He believed that Sergeant Page had authorised him to commence the prosecution for that charge by signing the matrix for that charge.

8. When he signed the matrixes Sergeant Page believed that, under the authorisation he had to commence prosecutions for offences against the Regulations, he could authorise Senior Constable Osborne to commence a prosecution under the Regulations and he did so by endorsing the matrix for that charge.  If Sergeant Page had known that he could not authorise Senior Constable Osborne to commence the prosecution under the Regulations Sergeant Page would have commenced the prosecution by signing a prosecution notice for that charge himself.

9. Both of the police officers were wrong in their belief that Sergeant Page could authorise Senior Constable Osborne to commence a prosecution under the Regulations.  That error is apparent on legal analysis.  However I do not regard the fact that legal analysis makes the error as in any way affecting the honesty of their beliefs.  My assessment of both officers, having heard and seen them give their evidence, is that they undertook their responsibilities conscientiously and honestly.  Nor do I regard them as reckless in the way that they commenced the prosecutions.  Each of them followed the procedures that he thought were necessary to be followed validly to commence the prosecutions.

10. When he attended the hearing before the first respondent on 6 March 2015 Mr Godfrey did so accompanied by a driver who had driven a vehicle on a different occasion with which the prosecution was concerned.  This was due to a misunderstanding on Mr Godfrey's part as to the occasion with which the prosecution was concerned.

11. The driver of the vehicle on the occasion with which the prosecution was concerned, ceased working for the second respondent on 7 April 2014.  The second respondent is no longer in contact with him.  If it is necessary to do so the second respondent might be able to contact him.  The trailer arrangement on the vehicle with which the prosecution was concerned was packed by Mainfreight Australia who gave the paperwork to the driver.  The second respondent has endeavoured to obtain copies of that paperwork from Mainfreight Australia but has not been successful in doing so.  On 6 March 2015 the second respondent's counsel and Mr Godfrey inspected photographs and some material safety data sheets.  That was part of the evidence that the prosecution had which, the second respondent concedes, was capable of establishing the elements of the offence charged and disclosed a strong prima facie case.

12. The second respondent has also conceded that prior to the hearing on 6 March 2015 it had not obtained any documentary evidence or witness statements which might have raised a doubt as to the prosecution case or established a defence.  I can see no basis on the evidence before me why, if it contacted the driver or obtained any documentation from Mainfreight Australia, the second respondent would raise a doubt as to the prosecution case or have a defence available to it.  I conclude that it would not be able to do so.

The hearing on 6 March 2015 and the first respondent's decision

1. As I have already noted the prosecution under reg 152 of the Regulations came before the learned Magistrate on 6 March 2015.

2. At the commencement of the hearing counsel for the second respondent submitted to his Honour that the prosecution under reg 152 of the Regulations had not been validly commenced because Senior Constable Osborne was not authorised by the Chief Officer to commence the prosecution.

3. He informed his Honour that in the course of discussions that morning the prosecuting sergeant had produced to him an authorisation to commence the prosecution before his Honour signed by the Chief Officer on 6 March 2015.  Counsel submitted that the authorisation must be in place at the time of the commencement of the prosecution and could not be given retrospectively.

4. The prosecuting sergeant produced to his Honour the authorisation to Senior Constable Osborne to commence the charge under s 47 of the Act and the authorisation to Sergeant Page to commence prosecutions under the Regulations. He informed his Honour that the prosecution under the Regulations had been commenced on the understanding that Sergeant Page could authorise or sub‑delegate the power that he had to commence a prosecution.

5. His Honour informed the prosecuting sergeant that he did not think that a person could delegate a delegated power.  The prosecuting sergeant said that was not his position.

6. The prosecuting sergeant submitted to his Honour that the prosecution was validly commenced because it was a prosecution under the Regulations and not the Act.  He also submitted that the retrospective authorisation might be effective.  He referred to Lyster v Kemp[1] where a radar device which was approved after the date of the alleged speeding offence but before the hearing of the prosecution for that offence was held to be an approved speed measuring device and so a reading from it was prima facie evidence of the accused's speed.  Thirdly, the prosecuting sergeant submitted that Sergeant Page was authorised to commence a prosecution.  Sergeant Page had approved the brief by signing off on the evidence matrix which then authorised Senior Constable Osborne to commence or take out the prosecution notice.

   [1] Lyster v Kemp [2010] WASC 47.

7. The first respondent adjourned for a short period and then delivered his decision.  His Honour distinguished Lyster v Kemp ruling that it was concerned with evidence, whereas the issue before him was whether the prosecution was brought in accordance with the Act and Regulations.  He ruled that the authorisation given to Senior Constable Osborne on the day of the hearing could not retrospectively authorise the commencement of the prosecution on 3 April 2014. 

8. His Honour ruled that Sergeant Page could not delegate to Senior Constable Osborne the authority that Sergeant Page had to commence a prosecution under the Regulations.

9. His Honour referred to s 21 and s 23 of the CPA and ruled that the prosecution (his Honour said offence, but he was clearly referring to the prosecution) is commenced at the time when it is signed and the person signing the document is the person who is commencing the proceedings, in this case that was Senior Constable Osborne.

10. His Honour referred to s 47 of the Interpretation Act 1984 (WA) and ruled that a prosecution for an offence under the Regulations is a prosecution under the Act and so s 57 of that Act applied to a prosecution under the Regulations.  Senior Constable Osborne was not on 3 April 2014 authorised to commence the prosecution and so the proceedings were incompetent.

11. The prosecuting sergeant did not apply to amend the prosecution notice.

12. His Honour dismissed the prosecution and discharged the second respondent.

Analysis

1. Section 20(3)(a)(iii) of the CPA authorises a police officer to commence a prosecution.  However that provision is subject to s 20(2) which provides that if another written law limits who may commence a prosecution for an offence a prosecution for the offence may only be commenced in accordance with that law.

2. Section 57 of the Act provides that a prosecution for an offence against that Act may only be commenced by the Chief Officer or a person authorised to do so by the Chief Officer.  The section limits who may commence a prosecution for an offence against the Act.  The reference to 'this Act' in s 57 includes a reference to the Regulations.[2]

   [2] Interpretation Act 1984 (WA) s 46.

3. The applicant's concession that Senior Constable Osborne was not authorised to commence the prosecution under the Regulations is correctly made. 

4. Section 178(3) of the CPA provides that if a prosecution notice is defective in substance or form the court, on an application by a party or on its own initiative ‑

   (a)must order that the document be corrected if the defect is not material to the merits of the case;

   (b)may order that the document be corrected in any other case.

5. The question that arises in this case is whether the prosecution commenced by Senior Constable Osborne is defective and so amenable to amendment, as was held to be the case in the prosecution considered by EM Heenan J in Spagnolo v Flynn[3], or whether the prosecution is a nullity, as the Full Court held to be the case in the prosecution considered by it in Palos Verdes Estates Pty Ltd v Carbon[4] in the absence of proof of the Minister's consent to the commencement of the prosecution.

   [3] Spagnolo v Flynn [2014] WASCA 88.

   [4] Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 22, 3.

6. The jurisdiction of the Magistrates Court to hear charges alleging commission of a simple offence is conferred by s 9 and s 11 of the MCA, not by the CPA.[5]

   [5] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [25] (Martin CJ).

7. The jurisdiction of the Magistrates Court to deal with a prosecution does not depend upon the formalities of the initiating process.[6]

   [6] Spagnolo v Flynn [2014] WASCA 88 [35], approved in Calandra v Civil Aviation Safety Authority [25] (Martin CJ).

8. There are some cases in which non-compliance with a condition or obligation will render proceedings ineffective.  Examples are where a prosecution is commenced by a person acting in a private capacity, which is not permitted by s 20(5) of the CPA, where a prosecution notice is signed by a person in the knowledge that he or she is not authorised to do so, or lodged by a person knowing that it has been signed or authenticated by a person who is not authorised to do so, in contravention of s 173 of the CPA, or where consent is required before a prosecution can be commenced, as was the case in Palos Verdes Estates Pty Ltd v Carbon.[7]

   [7] Spagnolo v Flynn [2014] WASCA 88 [34].

1. However, not all defects in prosecution notices have that effect.  Spagnolo v Flynn is an example where defects did not do so. In that case the prosecution notices named the City of Gosnells as the prosecutor, showed its solicitors Lewis Blyth & Hooper as issuing the prosecution notice and was signed by those solicitors. Those solicitors were not authorised to sign the prosecution notices on behalf of the City. The presiding magistrate allowed the amendment of each prosecution notice by showing that the person issuing the notice was the City of Gosnells and allowing them to be signed by an authorised person of the City. EM Heenan J held that the learned magistrate was correct in his conclusion that he had power under s 178 of the CPA to correct those defects and that there was no error in his doing so.

2. Section 178 of the CPA is intended to be a remedial provision, the objective of which is to prevent deficiencies in originating criminal processes causing criminal proceedings to miscarry.[8]

   [8] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 [28] (Martin CJ).

3. The prosecution of the second respondent under the Regulations commenced by Senior Constable Osborne was commenced by a police officer, not by a private individual. Senior Constable Osborne believed that Sergeant Page had authorised him to commence the prosecution for that charge by signing the matrix for that charge. Sergeant Page, who was authorised to commence the prosecution, knew that it was being commenced and endorsed the commencement of the prosecution. In those circumstances it is my view that the prosecution notice was defective, but was not invalid. It was amenable to correction under s 178 by being amended to provide that it was commenced by Sergeant Page and by allowing Sergeant Page to sign the amended prosecution notice. I am satisfied, by the evidence of Sergeant Page that if he had known that he could not authorise Senior Constable Osborne to commence the prosecution for an offence against the Regulations Sergeant Page would have signed the prosecution notice himself, that he would have signed the amended prosecution notice if given the opportunity to do so.

4. The defect in the prosecution notice had no bearing on whether the second respondent had breached the regulation, on the particulars of the charge or the identity of the alleged offender.  It did not affect the evidence to be lead on the prosecution or any evidence that may be lead in defence of it.  As I have noted Sergeant Page had endorsed the commencement of the prosecution.  I conclude that the defect in the prosecution notice was not material to the merits of the case.

5. As the defect was not material to the merits of the case the first respondent was required by s 178(3) of the CPA to order that the prosecution notice be amended. I conclude therefore that in failing to so order the learned magistrate failed to make an order which he was under a duty to make.

The exercise of discretion

1. Section 36 of the MCA gives this court a discretion to grant relief.[9]  The applicant submitted and the second respondent accepted that if I found that the first respondent had not made an order which he was under a duty to make then, ordinarily, I should exercise my discretion to grant relief in favour of the applicant unless I was convinced as to why I should exercise my discretion to withhold relief.[10]

   [9] Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [47] ‑ [50] (Beech J).

   [10] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [129] (Martin CJ); Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [51] ‑ [61] (Beech J).

2. I do not regard the fact that the learned Magistrate was not asked to amend the prosecution notice as warranting the exercise of discretion not to grant relief.  Counsel for the second respondent was not aware that the prosecution notice was defective until the morning that the prosecution came on for hearing and so he did not give the prosecutor advance notice of his argument.  In his submissions to his Honour in opposing the second respondent's application that the prosecution be dismissed the prosecuting sergeant did inform his Honour that Sergeant Page was authorised to commence the prosecution and that he had signed the evidence matrix.  In the circumstances I do not believe that the prosecuting sergeant or Senior Constable Osborne can be criticised for not appreciating that the learned Magistrate should be asked to amend the prosecution notice.

3. I have found that Sergeant Page and Senior Constable Osborne were not reckless in the commencement of the prosecution and that each of them followed the procedures that he thought necessary validly to commence the prosecution.

4. I do not regard their conduct as warranting the exercise of discretion not to grant relief.

5. The applicant's application for review was commenced in this court on 5 August 2015, approximately five months after the first respondent's decision.  The second respondent has submitted that it has been prejudiced by that delay, in that it will be more difficult to find the driver of the vehicle at the time of the incident with which the prosecution is concerned and to obtain documents from Mainfreight Australia.

6. In assessing the prejudice to the second respondent I bear in mind the concessions it has made that at the time of the hearing on 6 March 2015 the prosecution had available to it evidence which was capable of establishing the elements of the charge, that it had a strong prima facie case and that prior to the second respondent discovering that Senior Constable Osborne had not been authorised to lay the charge it intended to plead guilty.

7. As I have said I can see no basis on the evidence before me why, if it contacted the driver or obtained any documentation from Mainfreight Australia, the second respondent would raise a doubt as to the prosecution case or have a defence available to it.

8. In the circumstances while any delay is undesirable it is my view that the delay in this case will not produce an injustice.

9. I conclude that I should not, in the exercise of my discretion, refuse to grant the relief sought and that the relief should be granted.