Reynolds v WA Police - [2024] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   REYNOLDS -v- WA POLICE [2024] WASC 67
CORAM:   FORRESTER J
HEARD:   7 MARCH 2024
DELIVERED          :   7 MARCH 2024
PUBLISHED           :   13 MARCH 2024
FILE NO/S:   SJA 1072 of 2023
BETWEEN:   KELLAN JOHN REYNOLDS
Appellant
AND
WA POLICE
Respondents

ON APPEAL FROM:
For File No:   SJA 1072 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATES S MALLEY, T WATT, K TAVENER, D SCADDEN AND R HUSTON
File Number            :   AL 2097 of 2021, AL 2150 of 2021, AL 682 of 2022, AL 683 of 2022, AL 684 of 2022, AL 685 of 2022, AL 686 of 2022, AL 687 of 2022, AL 1809 of 2022, AL 1810 of 2022, AL 295 of 2023, AL 296 of 2023, AL 1355 of 2023 and AL 1356 of 2023, JO 1792 of 2023, PE 2382 of 2023, PE 2383 of 2023, AL 2416 of 2022, AL 2417 of 2022, AL 2414 of 2022 and AR 15712 of 2023, AR 15713 of 2023 and AR 15714 of 2023

Catchwords:

Criminal law - Single judge - Application for leave to appeal

Legislation:

Bail Act 1981 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Vehicles) Act 2012 (WA)

Result:

Leave to appeal refused in relation to charges: AL 683 of 2022, AL 684 of 2022, AL 685 of 2022, AL 686 of 2022, AL 687 of 2022, AL 1809 of 2022, AL 1810 of 2022, AL 295 of 2023, AL 296 of 2023, AL 1355 of 2023 and AL 1356 of 2023

Leave to appeal in relation to charge AL 2097 of 2021 is reserved to the hearing of the appeal.

Leave to appeal is granted in relation to charges AL 2150 of 2021 and AL 682 of 2021.

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondents	:	M I Olds

Solicitors:

Appellant	:	In Person
Respondents	:	State Solicitor's Office

Cases referred to in decision:

CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126
Hedley v Spivey [2011] WASC 325
Kelly v Fiander [2023] WASC 187
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

(This judgment was delivered extemporaneously on 7 March 2024 and has been edited from the transcript.)

Introduction:

The appellant has filed a notice of appeal in relation to a large number of charges against him.
On some charges, the appellant had not yet stood trial in the Magistrates Court and had not been convicted or sentenced. In short, no 'decision' had been made as that term is defined in s 6 of the Criminal Appeals Act 2004 (WA), (the Act), and, thus, the appellant had no right of appeal pursuant to s 7 of the Act.
Accordingly, on 15 January 2024, I refused leave to appeal in relation to charges JO 1792 of 2023, PE 2382 of 2023, PE 2383 of 2023, AL 2416 of 2022, AL 2417 of 2022 and AL 2414 of 2022 and dismissed those appeals.
The appellant also purported to file a notice of appeal in relation to charges AR 15712 of 2023, AR 15713 of 2023 and AR 15714 of 2023. These fell into the same category as the charges referred to above; the appellant had not been convicted of them and no 'decision' had been made which gave rise to a right of appeal pursuant to the Act. For the avoidance of doubt, I also ordered that leave to appeal was refused and the appeal dismissed in relation to those charges.
The appeal against the family violence restraining order made in RO 84 of 2021 was also dismissed, again on the basis that that order was not a decision within the meaning of s 6 of the Act and there was no right to appeal under s 7 of Act.
The remaining matters were listed for hearing on 7 March 2024 to determine whether leave to appeal should be granted in relation to any of the remaining matters.
The appellant has filed an amended notice of appeal.

Application for joinder

The appellant has sought an order that:
Family Violence Restraining Order, Breach of Family violence Restraining Order, Breach of Bail and all Traffic matters must be combined, the evidence is clear the appellant continued to answer to the calling of the name in defence, multiple convictions for nonappearance, appellant appeared in defence of the name, Magistrate(s) dismissing the appellant when present at the court from the beginning of the first hearing and trial - gross miscarriage of justice.
The basis for the application is said to be that without the first conviction under s 55 of the Criminal Procedure Act2004 (WA) (CPA), when the appellant attended court, all other charges would cease to exist.
The appellant's appeal under the Act against the making of the family violence restraining order has been dismissed. Accordingly, it cannot be joined to this appeal. Otherwise, I have considered all remaining matters jointly in determining the application for leave to appeal.

Statutory framework

The application for leave to appeal is made under div 2 of pt 2 of the Act. A decision to convict an accused of a charge is a decision which may be appealed.[1]
[1] Criminal Appeals Act 2004 (WA) s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[2] meaning that the ground is required to have a rational and logical prospect of succeeding.[3] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[4]
[2] CA Act s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[5]
[5] CA Act s 14(2).

Application for extension of time

The original appeal notice was filed on 7 August 2023. At that time, the time within which the appellant was required to appeal without seeking an extension had expired in relation to all matters except AL 1355 to 1356 of 2023. In relation to AL 295 to 296 of 2023, the appellant had not even been convicted at the time of filing of the notice of appeal. However, the appellant filed his amended notice of appeal after the date of conviction for AL 295 to 296 of 2023 and I order that the appeal against conviction in respect of those charges is also to be dealt with as part of this appeal.
The appellant has claimed that the extension of time is required because, until the decision in Kelly v Fiander,[6] he was not aware that he could appeal his convictions. While in some of the matters before me that might be a valid reason, in others it is not, as will be seen. However, I will determine the question of an extension of time in total after consideration of the merits of each appeal.
[6] Kelly v Fiander [2023] WASC 187.
I will start first with charges AL 2097 of 2021, AL 2150 of 2021 and AL 682 of 2022. But as I said, I am considering them all together.

Charge AL 2097 of 2021, AL 2150 of 2021 and AL 682 of 2022

The charge the subject of AL 2097 of 2021 was a charge that on 6 October 2021 at Denmark the appellant, being bound by family violence restraining order 2021/84, breached the order.
The prosecution notice records that on 28 October 2021, an arrest warrant was to issue at 2.59 pm on the basis that the 'Person did not obey bail undertaking (section 59B)'.
The transcript of the hearing records that on 28 October 2021, the appellant's matter was called, and the following exchange took place:[7]
[7] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 28 October 2021, 2.
HER HONOUR: Remain standing, please. Are you Kellan Reynolds?
ACCUSED: I'm known to contract under that name.
HER HONOUR: Mr Reynolds, if you are Mr Reynolds, you and I have played this ridiculous game before. If you are not going to answer appropriately to the court, I cannot take your appearance as given. You will be – whoever you will be asked to step back and I will issue an arrest warrant for that person's arrest. I will ask you once more.
ACCUSED: If you want to arrest that person, ma'am, I will put the person right here for you to arrest.
HER HONOUR: I will ask you once more. Are you Kellan Reynolds?
ACCUSED: No. I am the occupant of the office of executor for Kellan John Reynold's estate.
HER HONOUR: Please remove yourself from the bar table. Please remove yourself from the bar table.
ACCUSED: You're removing the occupant of the of the office of executor for the Kellan John Reynolds estate.
HER HONOUR: Person who presented themselves to the bar table answered, "No" And then tried to engage in mumbo jumbo. That is being resoundingly denounced by all courts in this state. I don't accept that the person who presented themselves in any way announced their appearance in a way that I could be satisfied that the accused person attended. Do you have an application to make?
[PROSECUTOR]: Yes, your Honour. If you're satisfied the bail is in order, then I would seek to have an arrest warrant issued.
HER HONOUR: Bail is in order and there will be an arrest warrant issued.
Somewhat contrary to her Honour's finding of no appearance, the prosecution notice records that the accused attended court where it is required to be noted in the relevant column for that date.
It is apparent from that exchange and others which are reproduced in this judgment that the appellant is an adherent of 'pseudo law'.
Following the finding of non-appearance by her Honour, a further charge, AL 2150 of 2021, was commenced alleging that the appellant had failed to appear on 28 October 2021 in accordance with his bail undertaking given on 19 October 2021. Thereafter, charge AL 2150 of 2021 was joined with charge AL 2097 of 2021.
The hearing in this matter to which I've just referred took place before the decision of Vandongen J (as his Honour then was) in Kelly was delivered. In Kelly,[8] it was held that a person 'appears' for 'a court date for a charge' when they are personally before the court at that time and it is an issue for the court to determine whether it is sufficiently satisfied that the person who is before it is the accused named in the prosecution notice.
[8] Kelly [59] - [60].
While at this stage of these proceedings the appellant needs only establish that his ground or grounds of appeal have a reasonable prospect of succeeding, there is little doubt that, in reality, the appellant 'appeared' on 28 October 2021, both physically and, in accordance with Kelly, as a matter of law.
The accused handed himself into police on 1 November 2021 and was arrested on the warrant. He was brought before the court that day. The appellant repeated his claim that he was not 'Kellan John Reynolds', he was 'the office of executor for the Kellan John Reynolds estate'. Her Honour ordered the accused to be taken back into custody and for the police to verify his identity. After an adjournment, the prosecutor produced evidence which satisfied the learned magistrate that the appellant was the person named in the prosecution notice.
The following exchange then took place:[9]
HER HONOUR: Mr Reynolds, are you applying for bail today?
ACCUSED: For and on the record, I will not participate in any fraud. Any attempt by you will be seen as an attempt to gain an advantage and/or financial gain (indistinct) use of false and misleading information and document, by the use of a misnomer to make financial instrument the environments. I want my right to certify segregation for all the bonds and securities under that name. Are you attempting to force me to be the name mentioned?
HER HONOUR: I can only assume that Mr Reynolds would prefer not to be kept in custody for a period of time in which case I will grant him bail.
ACCUSED: I am not Mr Reynolds.
HER HONOUR: However, I'm going to impose a surety condition and that surety condition will be a $1000 surety amount, $1000 personal undertaking, and the protective bail condition to comply with family violence restraining order number 84 of 2021, and otherwise remand the matters to 18 November, urge Mr Reynolds to obtain legal advice, and that will complete the matters today.
ACCUSED: Objection on all that.
[9] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 1 November 2021, 3 - 4.
The prosecution notices for both charges record that on 2 November 2021, the learned magistrate made an order pursuant to s 33(2) of the Bail Act 1981 (WA). The prosecution notice has no entry for that date in the 'Accused Attended' column, or the 'Counsel' column.
Section 33 of the Bail Act provides:
(1)Where bail is granted to an accused by a judicial officer, whether with or without any condition being attached thereto, and the accused fails or refuses to enter into a bail undertaking in terms of the grant, the judicial officer who granted bail may, subject to subsection (3), order that the accused enter into the bail undertaking within such time as he may specify.
(2)If an accused does not comply with an order under subsection (1), the judicial officer may, subject to subsection (3), further order that a bail undertaking, in such form as the judicial officer may approve, shall be deemed to have been entered into by the accused on the date of such further order, and thereupon that undertaking shall be treated as if it had been duly entered into by the accused for the purposes of this Act.
(3)A judicial officer shall not -
(a)make an order under subsection (2) unless he has personally informed the accused of the terms and effect of the order made under subsection (1);
(b)exercise any of the powers conferred on him by this section unless he is satisfied that the accused has the capacity to enter into and comply with the undertaking.
The transcript for 1 November 2021 does not record that the learned magistrate made an order pursuant to s 33(1) of the Bail Act that the accused enter into the bail undertaking within any specified time or at all. Her Honour simply granted the appellant bail.
Further, there is no evidence that her Honour personally informed the accused of the terms and effect of any order made pursuant to s 33(1) before making the purported order pursuant to s 33(2).
The prosecution notices for both charges indicate that the appellant again appeared in person on 18 November 2021. On that date, the learned magistrate again made an order pursuant to s 33(2) of the Bail Act that the accused was deemed to have entered into the bail undertaking and adjourned the matter for trial to 26 April 2022 before a different magistrate. I have not presently been able to review the transcript for that appearance.
On 26 April 2022, the matter was called on in the Albany Magistrates Court. The transcript reflects that no person answered the call for the appellant's name. The learned magistrate convicted the appellant of AL 2097 of 2021 in his absence pursuant to s 55 of the CPA but did not impose a sentence at that time.[10]
[10] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 26 April 2022, 2 - 3.
The accused was not able to be convicted of a charge of breach of bail, namely, AL 2150 of 2021, in his absence,[11] and an arrest warrant was issued. The prosecution notice records that the arrest warrant was issued pursuant to s 139 of the CPA, apparently in respect of both charges.
[11] Bail Act 1981 (WA) s 51(3).
As a result of the appellant's failure to appear on 26 April 2022, a further prosecution for breach of bail was commenced. Charge AL 682 of 2022 alleged that the appellant had failed to appear in accordance with the bail undertaking said to have been entered into by him on 2 November 2021. That was the bail undertaking in relation to which the learned magistrate made an order pursuant to s 33(2) of the Bail Act on a date on which the prosecution notice records the appellant did not appear.
The prosecution notice for AL 2097 of 2021 records the appellant attended court from custody on 5 May 2022. On this occasion, when asked his name, the appellant responded:[12]
Is that the artificial public person, ma'am?
[12] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 5 May 2022, 1 (Transcript, 5 May 2022).
The learned magistrate ordered that appellant be returned to custody for the police to verify his identity. When the appellant was brought up again, he requested to see the learned magistrate's oath of office. Her Honour ordered the appellant be removed from the court and taken into custody on the basis he was obstructing the court process. The prosecutor then produced evidence of the appellant's identity to the satisfaction of the learned magistrate.
The appellant was again called from custody. When her Honour addressed the appellant as 'Mr Reynolds', he again asserted he was not that person. Her Honour ordered the appellant remain silent while she heard the facts of the offence of breach of violence restraining order, that is, AL 2097 of 2021. When her Honour asked if the appellant wished to make any sentencing submissions, the appellant responded:[13]
I am not Mr Reynolds. That is a misnomer. It's blasphemy of my worthy name. I have been given two names, Kellan John, gifted by God, not the last name, from a security instrument issued by the State. That is the artificial public person.
[13] Transcript, 5 May 2022, 9.
Her Honour then sentenced the appellant to a fine of $400 and costs of $134.50 for charge AL 2097 of 2021.
In relation to the charges of breach of bail, the appellant sought and was granted bail. A further trial date was set for 2 August 2022 on charge AL 2150 of 2021 and charge AL 682 of 2021 was adjourned to 19 May 2022.
On that date, that is, 19 May 2022, charge AL 682 of 2021 was listed for trial on 2 August 2022 to be heard together with AL 2150 of 2021.
On 2 August 2022, the appellant appeared before a different magistrate. On that date, when asked his name, the appellant responded:[14]
I'm known to do business by that name, your Honour.
[14] Transcript, Western Australia v Kellan John Reynolds, Magistrates Court of Western Australia, 2 August 2022, 2 (Transcript 2 August 2022).
After a brief exchange in which the learned magistrate offered the appellant the opportunity to leave the courtroom if he was not 'Mr Reynolds', his Honour proceeded, apparently sufficiently satisfied the appellant was the person named in the prosecution notice. The appellant did not leave and continued to interrupt proceedings. He declined to be seated. Ultimately, the learned magistrate ordered the appellant removed from the court and taken into custody, saying 'Contempt of court order.'[15]
[15] Transcript, 2 August 2022, 4.
His Honour stood the matter down for a short period. When the proceedings resumed, the appellant was brought before his Honour. The appellant then demanded the court establish it was a 'court of competent jurisdiction'. His Honour read an extract from the judgment of McKechnie J in Hedley v Spivey,[16] dispensed with the appellant's bail, and issued a notice that the appellant appear for his trial later day.
[16] Hedley v Spivey [2011] WASC 325 [14] - [19].
At the appellant's trial, a prison officer, Paul Coultate, gave evidence that, on 2 November 2021, at about 3.30 pm, he attended the prison reception. He was told the appellant was refusing to sign his bail papers. Mr Coultate read the bail conditions to the appellant. Mr Coultate said he had been shown paperwork which allowed the appellant to be released without signing the bail papers, and the appellant was then released having been provided with a copy of the bail papers.[17] It is notable that this is not evidence that the appellant was refusing to sign his bail papers, simply that Mr Coultate was told that.
[17] Transcript, 2 August 2022, 9 - 10.
The prosecution produced what was described as a 'disposition notice' from 'the Albany Magistrates Court from the appearance on 2 November 2021'. I do not have a copy of that document.

The prosecution also called a police officer who gave evidence that the appellant signed a bail undertaking on 19 October 2021 on charge AL 2097 of 2021.[18]
[18] Transcript, 2 August 2022, 11.
In cross-examination of that witness, the appellant asserted that the police officer did not have 'personal knowledge of Kellan John Reynolds'. The following exchange then took place:[19]
HIS HONOUR: If you're not Kellan John Reynolds, why are you here?
ACCUSED: Because I've been - -
HIS HONOUR: If you're not the person in question, if you're not the person who was released at the prison or you're not the person who was served by him, why are you here?
ACCUSED: Because I'm here to clear that name.
[19] Transcript, 2 August 2022, 13 - 14.
The appellant continued to deny that he was Kellan John Reynolds, asserting that was 'a misnomer'. The learned magistrate again invited the appellant to leave, saying he was not going to issue a warrant, but he was going to proceed to deal with the matter. Before departing, the appellant said:[20]
I will request all charges are set off to the trust estate (indistinct) of that Kellan John Reynolds.
[20] Transcript, 2 August 2022, 14.
The learned magistrate then continued the trial in the appellant's absence. One further witness was called attesting to the appellant's arrest on 4 May 2022 on the warrant issued for the appellant.
The learned magistrate said that he was satisfied beyond reasonable doubt the charges were proved. The prosecution notice for each charge records the appellant was 'found guilty at trial and convicted'.
The appellant was sentenced to a fine on charge AL 2150 of 2021, ordered to pay costs in the sum of $134.50 and ordered to forfeit the sum of $3,000. His Honour appears to have understood that was the amount of the personal undertaking, although it is not at all clear that that was the amount of the personal undertaking originally entered into by the appellant on 19 October 2021 and thus, the amount the appellant was obliged to forfeit as a result of any non-appearance on 28 October 2021.
In relation to charge AL 682 of 2021, the appellant was sentenced to a fine of $1,000. He was not ordered to pay any additional costs. His Honour formed the view that the appellant had been on 'global' bail and thus ordered no further forfeiture in relation to the appellant's personal undertaking.
The appellant appeals his convictions on all three charges. Many of his grounds of appeal relate to aspects of what I have already referred to as 'pseudo-law' and are largely nonsensical.
However, there are some grounds which can be distilled from the appeal notice. They are:
(a)the appellant did not fail to appear on 28 October 2021;
(b)the appellant only signed the bail undertaking on 19 October 2021 under duress;
(c) the appellant was never informed of the fact that his trial was to take place on 26 April 2022;
(d)the appellant was not guilty of the offence of breaching the violence restraining order because there was 'no criminal intent by the appellant, the event was by happen chance' (sic);
(e)the appellant's trial on the charges of breach of bail on 2 August 2022 was unfair;
(f)the conviction of the appellant on 2 August 2022 was a miscarriage of justice.
In my view, in relation to these three charges, the grounds that I have listed as (a), (e) and (f) are reasonably arguable grounds of appeal. The appellant has not sought to adduce any evidence of the matters raised in (b), (c) and (d).
In relation to charge AL 2097 of 2021, the transcript of 26 April 2022 does not establish that the court was satisfied that the preconditions for proceeding pursuant to s 55 of the CPA was satisfied. That does not mean that the learned magistrate did not so satisfy himself but having regard to the present absence of transcript for the appearance on 18 November 2021, and the apparently unorthodox use of s 33(2) of the Bail Act on 2 November 2021, I will reserve the question of leave to appeal on this charge to the hearing of the full appeal.
In relation to charge AL 2150 of 2021, it is strongly arguable, if not inevitable, that the appellant has established that he did appear on 28 October 2021 and a miscarriage of justice occurred by reason of his conviction for failing to do so.
In relation to charge AL 682 of 2021, it is reasonably arguable that the appellant could not be properly deemed to have entered into a bail undertaking on 2 November 2021, the relevant provisions of the Bail Act having not been complied with. If that ground is made out, there has been a miscarriage of justice by reason of his conviction for having failed to comply with a bail undertaking.
Further, there is an additional question as to whether it was open to the learned magistrate to convict the appellant of these charges in his absence, bearing in mind s 51(3) of the Bail Act.
Accordingly, leave to appeal is reserved to the hearing of the appeal in relation to charge AL 2097 of 2021 and is granted in relation to AL 2150 of 2021 and AL 682 of 2021.

Charges AL 683 of 2022, AL 684 of 2022, and AL 685 of 2022

On 21 April 2022, the accused was charged with offences that on 29 March 2022 at Mount Barker, he:
(a) caused a vehicle to be driven on a road whilst it had on it an imitation of a number plate other than one issued for that vehicle contrary to s 36(2)(e) of the Road Traffic (Administration) Act 2008 (WA) (RTAA) (AL 683 of 2022);
(b)used a vehicle on a road whilst a required vehicle licence had been granted in respect of the vehicle, but was not current contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA) (RTVA) (AL 684 of 2022); and
(c) drove a vehicle, namely, a Ssangyong Utility, registered number DE10527 on a road, namely, Oatlands Road, and when given a direction by a police officer in accordance with s 39 of the RTAA to stop the vehicle, failed to comply with the direction contrary to s 44 of the RTAA (AL 685 of 2022).
The prosecution notice for these charges records that the accused failed to appear on 30 June 2022 and the appellant was convicted in his absence pursuant to s 55 of the CPA. He was fined in respect of each of the charges and ordered to pay costs.
The transcript from the court appearance indicates that no person answered to the call of the matter.[21]
[21] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 30 June 2022, 2 (Transcript 30 June 2022).
Her Honour stated that she was satisfied the prosecution notices had been served 'consistent to enable section…'. The prosecution answered in the affirmative, and her Honour thereafter granted leave to proceed pursuant to s 55 of the CPA.[22]
[22] Transcript, 30 June 2022, 2.
The learned magistrate did not specifically indicate that she was satisfied the appellant had been served with a court hearing notice or an approved notice as required by s 55(2) of the CPA. However, her Honour is a very experienced magistrate. I am conscious of the volume of matters with which magistrates need to deal with on a regular basis, and that one should be careful not to overly parse their words. Her Honour was plainly satisfied that s 55 of the CPA had been complied with, such that it was open to proceed to hear and determine the charge in the appellant's absence.
Despite numerous opportunities to do so, the appellant has specified no ground upon which the convictions on these charges should be disturbed and has not sought to adduce any additional evidence in relation to them. There is no reasonably arguable ground of appeal. Leave to appeal is refused.

Charges AL 686 of 2022 and AL 687 of 2022

The appellant was charged that on 12 April 2022 at Mount Barker, he:
(a)contrary to s 36(2)(e) of the RTAA, caused a vehicle to be driven on a road whilst it had on it an imitation of a number plate other than one issued for that vehicle (AL 686 of 2022); and
(b)contrary to s 4(2) of the RTVA, used a vehicle on a road while a required vehicle or licence had been granted in respect of the vehicle but was not current (AL 687 of 2022).
The prosecution notice for these charges reflects that on 30 June 2022, the appellant failed to appear in answer to the charges. The transcript confirms the appellant did not appear or answer the call for his matter in any way.[23] There is no evidence that the appellant did appear.
[23] Transcript, 30 June 2022, 2.
The appellant was convicted in his absence pursuant to s 55 of the CPA and was fined on each of the charges and ordered to pay costs.
As before, her Honour stated that she was satisfied the prosecution notice had been served 'consistent to enable section...'. The prosecution answered in the affirmative and her Honour granted leave to proceed pursuant to s 55 of the CPA.[24]
[24] Transcript, 30 June 2022, 2.
Again, the learned magistrate had not indicated that she was satisfied the appellant had been served with a court hearing notice or an approved notice as required by s 55(2) of the CPA. However, her Honour is a very experienced magistrate and was plainly satisfied that the requirements of s 55 of the CPA had been complied with such that it was open to proceed to hear and determine the charge in the appellant's absence. I am satisfied that her Honour directed her Honour's mind to the issue and was satisfied that the requirements had been met.
Despite numerous opportunities to do so, the appellant has specified no ground upon which the convictions on these charges should be disturbed and has not sought to adduce any additional evidence in relation to them. There is no reasonably arguable ground of appeal and leave to appeal is refused.

Charges AL 1809 of 2022 and AL 1810 of 2022

On 28 July 2022, the appellant was charged that on 26 July 2022 at King River, he:
(a)drove a motor vehicle on a road while it had on it an imitation of a numberplate other than one issued for that vehicle, contrary to s 36(2)(e) of the RTAA (AL 1809 of 2022); and
(b)used a vehicle on a road whilst a required vehicle licence had not been granted in respect of the vehicle contrary to s 4(2) of the RTVA (AL 1810 of 2022).
The prosecution notice records that on 18 October 2022, the appellant failed to appear and was convicted of both charges in his absence, pursuant to s 55 of the CPA. He was fined and ordered to pay costs.
The transcript reveals that no person answered to the call of the matter. Her Honour stated that she was satisfied there had been postal service of the prosecution notice and proceeded according to s 55.[25]
[25] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 18 October 2022, 2.
The learned magistrate did not indicate that she was satisfied the appellant had been served with a court hearing notice or an approved notice as required by s 55(2) of the CPA. However, as I have already stated, her Honour is a very experienced magistrate and was plainly satisfied the requirements of s 55 of the CPA had been complied with such that it was open to proceed to hear and determine the charge in the appellant's absence. I am satisfied that her Honour turned her mind to satisfaction of the requirements of the CPA, and was so satisfied.
The appellant has not identified any basis on which there has been a miscarriage of justice in relation to this matter. Despite having been given an opportunity to do so, he has not sought to adduce any additional evidence on this appeal to the effect that he was not served with the relevant notices. Even if I were to take his written submissions as being an attempt to adduce evidence to that effect, there is nothing before me which establishes or might establish that he is innocent or should not have been convicted of the offences the subject of these prosecution notices.[26]
[26] CD and EF v Chief Executive Officer, Department of Child Protection and Family Support [2017] WASC 126 [117] - [119].
I am not satisfied the appeal ground in relation to these charges has any reasonable prospects of success. Leave to appeal is refused.

Charges AL 295 of 2023 and AL 296 of 2023

On 5 January 2023, the appellant was charged that on 3 January 2023 at Mount Barker, he:
(a)drove a motor vehicle on a road while it had on it an imitation of a number plate other than one issued for that vehicle contrary to s 36(2)(e) of the RTAA (AL 295 of 2023); and
(b)used a vehicle on a road while a required vehicle licence had not been granted in respect of the vehicle contrary to s 4(2) of the RTVA (AL 296 of 2023).
The prosecution notice reflects that the appellant appeared on 24 February 2023 from custody (he was also charged with other offences at that time). The appellant was granted bail and the matters were adjourned to 16 March 2023.
The appellant appeared on 16 March 2023 and the matters were adjourned to 31 March 2023 at Albany. The appellant was ordered to appear in person at Albany Magistrates Court.
The prosecution notices record that on 31 March 2023 the appellant appeared and was ordered to stand trial on 30 August 2023 before another magistrate. The record states that the appellant 'has been given s 55 warning for these charges'.
The prosecution notices record that on 30 August 2023 the appellant was convicted in his absence pursuant to s 55 of the CPA. He was fined and ordered to pay costs.
The transcript of the proceeding shows that no person answered to the call of the matter. The matter was called and the learned magistrate asked that the matter be called loudly in the waiting areas. There was still no appearance.[27]
[27] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 30 August 2023, 2 (Transcript 30 August 2023).
The learned magistrate found the appellant had had notice of the hearing and had failed to attend. Accordingly, his Honour granted the application for the matter to be heard and determined in the absence of the appellant.
There is no evidence that the appellant did appear.
The appellant has not filed any affidavit evidence in relation to these charges despite having been given the opportunity to do so.
However, in his written submissions, the appellant complains that his application for an adjournment was dismissed. The transcript reveals that the appellant was told that he would need to make that application in person on 30 August 2023[28] and the appellant acknowledges that he did not do that.
[28] Transcript, 30 August 2023, 4.
The appellant also claims that it was not reasonable for him to have been required to attend in Albany and that he was unable to attend due to his pending Supreme Court appeal. However, his Supreme Court appeal was dealt with on the papers and it was only the decision which was delivered on 25 August 2023.
Further, the appellant had had ample notice of his requirement to attend in Albany, having been ordered to do so on 31 March 2023. It is not correct to suggest that he was only granted one day's notice to appear.
Ultimately, the appellant has admitted that he failed to appear. He has failed to offer a reasonable explanation for having failed to appear. He has identified his 'defence' as:[29]
appellant has an honest right of claim to travel the Kings Highway, the appellant issuing notice and correspondence to the Police of his intention to travel and the use of private identification signs.
[29] Amended Appeal Notice filed 18 February 2024 [155].
It's unnecessary for me to deal with this 'defence' in detail save to say it's not a defence known to the law in this State.
Even if the appellant's written submissions were taken to be additional evidence for the purposes of this appeal, they do not establish that there has been a miscarriage of justice. They do not establish, and have no prospect of establishing, that the appellant is innocent of the charges or should not have been convicted of them.[30]
[30] CD and EF [117] - [119].
In my view, the appeal grounds in relation to these charges have no reasonable prospects of success. Leave to appeal is refused and the appeal is dismissed.

Charges AL 1355 of 2023 and AL 1356 of 2023

On 7 June 2023, the appellant was charged that on 22 May 2023 at Mount Barker, he:
(a)used a vehicle on a road whilst a required vehicle licence had been granted in respect of the vehicle but was not current contrary to s 4(2) of the RTVA (AL 1355 of 2023); and
(b)drove a motor vehicle on a road while it had on it a number plate other than one issued to that vehicle contrary to s 36(2)(e) of the RTAA (AL 1356 of 2023).
The prosecution notice for these charges records the appellant failed to appear on 29 June 2023 and he was convicted in his absence pursuant to s 55 of the CPA. He was fined and ordered to pay costs.
The transcript of the proceeding reveals that no person answered to the call of the matter. Her Honour heard the facts and stated 'service as per section 55 is granted'.[31] While that is not as clearly specified as it might be, the statement reflects the fact that her Honour turned her mind to the service requirements of s 55 and was satisfied that they had been complied with before proceeding.
[31] Transcript, Western Australia Police v Kellan John Reynolds, Magistrates Court of Western Australia, 29 June 2023, 2.
There is no evidence that the appellant actually did appear in relation to the matter.
The appellant has not identified any basis on which there has been a miscarriage of justice in relation to this matter. Despite having been given an opportunity to do so, he has not sought to adduce any additional evidence on this appeal to the effect that he was not served with the relevant notices. Even if I were to take his written submissions as being an attempt to adduce evidence to that effect, there is nothing before me which establishes or might establish that he is innocent or should not have been convicted of the offences the subject of those prosecution notices.[32]
[32] CD and EF [117] - [119].
There is no reasonably arguable ground to appeal. Leave to appeal is refused.

Application for extension of time

I will grant the application for extension of time in relation to charges AL 2097 of 2021, AL 2150 of 2021 and AL 682 of 2021.
The extension of time is otherwise refused in respect of charges AL 683 of 2022, AL 684 of 2022, AL 685 of 2022, AL 686 of 2022, AL 687 of 2022, AL 1809 of 2022, AL 1810 of 2022, AL 295 of 2023, AL 296 of 2023, AL 1355 of 2023 and AL 1356 of 2023.

Orders

The application for extension of time is granted in relation to charges AL 2097 of 2021, AL 2150 of 2021 and AL 682 of 2021.
An extension of time is refused in respect of charges AL 683 of 2022, AL 684 of 2022, AL 685 of 2022, AL 686 of 2022, AL 687 of 2022, AL 1809 of 2022, AL 1810 of 2022, AL 295 of 2023, AL 296 of 2023, AL 1355 of 2023 and AL 1356 of 2023.
Leave to appeal in relation to charge AL 2097 of 2021 is reserved to the hearing of the appeal.
Leave to appeal is granted in relation to charges AL 2150 of 2021 and AL 682 of 2021.
Leave to appeal is refused in relation to charges AL 683 of 2022, AL 684 of 2022, AL 685 of 2022, AL 686 of 2022, AL 687 of 2022, AL 1809 of 2022, AL 1810 of 2022, AL 295 of 2023, AL 296 of 2023, AL 1355 of 2023 and AL 1356 of 2023 and the appeal is dismissed in relation to each of those charges.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
13 MARCH 2024