Robert Kennedy v Nguyen - [2023] WASC 401

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ROBERT KENNEDY -v- NGUYEN [2023] WASC 401
CORAM:   SEAWARD J
HEARD:   2 MAY 2023
DELIVERED          :   23 OCTOBER 2023
FILE NO/S:   SJA 1090 of 2022
BETWEEN:   ROBERT KENNEDY
Appellant
AND
VAN HUU NGUYEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE C ROBERTS
File Number            :   JO 12213 of 2020 ;JO 12214 of 2020; JO 12215 of 2020; JO 12216 of 2020

Catchwords:

Single judge appeal - Particulars of charge - Acquittal on the basis of absence of particulars - Whether the Magistrate erred in fact in finding the prosecutor had declined to provide particulars - Whether the Magistrate erred in law in failing to take into account proposed evidence and submissions in finding that the particulars provided were inadequate - Whether the Magistrate erred in law in acquitting the accused when that was not open under the Criminal Procedure Act 2004 (WA) - Whether the Magistrate erred in law in failing to take into account various relevant considerations when contemplating whether to permanently stay the proceedings

Section 14(2) of the Criminal Appeals Act 2004 (WA) - Whether there was a substantial miscarriage of justice - Application of the proviso where there is a real question whether the proceedings before the Magistrate amounted to such a serious departure from the essential requirements of the law - Where the Magistrate denied the prosecutor the opportunity to open and present their case

Application to admit further evidence - Where the distinction between fresh and new evidence is not relevant in circumstances where no trial took place and no evidence was tendered - Where the additional evidence is relevant to the questions raised on appeal

Legislation:

Criminal Appeals Act 2004 (WA) ss 14, 39, 40
Criminal Code Act Compilation Act 1913 (WA) s 8
Criminal Procedure Act 2004 (WA) cl 5, ss 3, 76, 131
Criminal Procedure Rules 2005 (WA) r 65
Local Government Act 1995 (WA) s 4.87

Result:

Leave to appeal allowed
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Ms J Shaw
Respondent	:	Mr G Yin

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	DG Price & Co

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Clarke v The State of Western Australia [2018] WASCA 14
Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98
Cotter v The State of Western Australia [2011] WASCA 202
Cowie v Perth Demolition Company Pty Ltd (No 2) [2020] WASC 136; (2020) 283 A Crim R 150
Delcaro v The State of Western Australia [2006] WASCA 182
King v City of Perth [2023] WASC 252
Passmore v R [2023] NSWCCA 65
Perrin v Jackson [2008] WASC 77
R v Kennedy (1997) 94 A Crim R 341
REF v Chief Executive Officer of the Department of Communities [2023] WASC 89
Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scolaro v Shephard [No 2] [2010] WASC 271
Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297
Strahan v Brennan [2014] WASC 190
The Royal Society for the Prevention of Cruelty to Animals Western Australia v Hammarquist [2003] WASCA 35
The State of Western Australia v Burke [2011] WASCA 190
Tsang v Francis [2021] WASCA 131
WGC v The Queen (2007) 233 CLR 66
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

SEAWARD J:

Introduction

This is an appeal by the prosecutor following the entry of a verdict of acquittal in the Joondalup Magistrates Court on 1 December 2022 in relation to two charges under s 4.87(1)(a) and two charges under s 4.87(1)(b) of the Local Government Act 1995 (LG Act). That verdict was entered prior to the opening of the prosecution case and without a trial of the charges taking place, following counsel for the accused raising an issue regarding the adequacy of particulars provided by the prosecution.
After hearing from both trial counsel, the learned Magistrate proceeded to acquit the respondent of all four charges on the basis that the prosecutor had declined or failed to provide appropriate particulars in respect of the charges which the learned Magistrate had called on the prosecutor to provide.[1]
[1] Magistrates Court ts 19 (1 December 2022).
The prosecutor now appeals in relation to the decision to acquit the accused in relation to two of those charges (and the associated costs order).
For the reasons set out below I will grant the appellant leave to appeal and allow the appeal.

Charges

By prosecution notice dated 2 December 2020, the respondent was charged by the appellant with the following four simple offences under s 4.87 of the LG Act:
(a)Charge 1 (JO 12213 of 2020): between 31 August and 21 September 2019, caused to be printed electoral material without the name and address of the person who authorised the electoral material appearing at the end of the electoral material, contrary to s 4.87(1)(a);
(b)Charge 2 (JO 12214 of 2020): between 31 August and 21 September 2019, caused to be printed electoral material printed otherwise than in a newspaper without the name and business address of the printer of the electoral material appearing at the end of the electoral material, contrary to s 4.87(1)(b);
(c)Charge 3 (JO 12215 of 2020): between 31 August and 28 September 2019, caused to be distributed electoral material without the name and address of the person who authorised the electoral material appearing at the end of the electoral material, contrary to s 4.87(1)(a); and
(d)Charge 4 (JO 12216 of 2020): between 31 August and 28 September 2019, caused to be distributed electoral material printed otherwise than in a newspaper without the name and business address of the printer of the electoral material appearing at the end of the electoral material, contrary to s 4.87(1)(b).
For the purposes of this appeal, charges 1 and 2 were described as the Printing Charges and charges 3 and 4 were described as the Distribution Charges. I will continue to use that description in these reasons.
Section 4.87 of the LG Act provides as follows:
4.87. Printing and publication of electoral material
(1) A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless —
(a) in the case of all electoral material, the name and address (not being a post-office box) of the person who authorised the electoral material appears at the end of the electoral material; and
(b) in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material.
Penalty: $2 000
It is not in dispute that the conduct underlying these charges concerned election campaign material for the City of Wanneroo local government elections held in 2019. The prosecution case was that the respondent (who was at the time a councillor with the City of Wanneroo) was assisting two other candidates in their electoral campaign. This, it was alleged, involved assisting as part of a campaign team with the distribution of flyers.[2] The respondent's alleged involvement was in relation to three separate flyers that were printed by the same printer and distributed by the same company. It was alleged by the prosecutor that the respondent was a party to the printing and distribution of flyers for another candidate by the name of Treby which, the prosecution alleged, did not contain the particulars referred to in the charges.[3]
[2] Magistrates Court ts 5.
[3] Magistrates Court ts 5 - 6.
At the hearing on 1 December 2022 (and in response to a submission that the charges were duplicitous), the prosecution clarified that charge 2 was in the alternative to charge 1, and charge 4 was in the alternative to charge 3.[4]
[4] Magistrates Court ts 3.

Hearing on 1 December 2022

The respondent had previously entered pleas of not guilty to all four charges on 6 August 2021,[5] and the charges were listed for trial on 1 December 2022. Given the issues raised in this appeal, it is necessary to set out the relevant aspects of the transcript from 1 December 2022 in some detail.
[5] Appellant's written submissions dated 17 March 2023 [3].
When the hearing commenced, prior to the prosecutor opening his case, trial counsel for the respondent (who was not counsel in the appeal) raised two preliminary issues with the court. The respondent submitted that the prosecution notice was defective in two ways: that the charges were duplicitous and that insufficient particulars had been provided by the prosecutor.[6]
[6] Magistrates Court ts 2.
In furtherance of these submissions, trial counsel for the respondent handed up written submissions (in the form of an email) relating to both issues and submitted:[7]
But the issues related to both, what we say, deficiencies in the prosecution notice in the way the charges are currently framed. They are duplicitous, in our submission. Secondly, there is an issue with the absence of particulars. We don't know how the State puts its case against the accused and the prosecution have refused our numerous attempts to have them elaborate and identify how one says the accused is guilty of these offences.
[7] Magistrates Court ts 2.
After the learned Magistrate had read the respondent's submissions, trial counsel for the respondent stated there was no need for him to expand on the submissions orally and invited the learned Magistrate to hear from the prosecutor.[8]
[8] Magistrates Court ts 2.
Whilst submissions were made in relation to both duplicity and particulars, the learned Magistrate's decision to acquit the respondent was made on the basis of the absence of particulars only and the learned Magistrate expressly did not decide the question of duplicity.[9] The question of duplicity was also not the subject of any grounds of appeal or submissions before this court. Accordingly, for the purposes of these reasons I have only considered the hearing on 1 December 2022 from the perspective of what occurred in relation to the submissions regarding particulars.
[9] Magistrates Court ts 19.
After the prosecutor addressed the issue of duplicity, the learned Magistrate asked trial counsel for the respondent to explain the facts of the case, and in so doing, trial counsel said as follows:[10]
And it is alleged that this accused was a party to the printing and subsequent distribution of the Treby flyer. … So in essence, we're not certain still how it says culpability arises. But, in essence, that is the allegation against the accused - that he was a party to causing the printing and distribution of the Treby flyer.
[10] Magistrates Court ts 6.
The learned Magistrate then asked trial counsel for the respondent what the prosecutor says that the accused did in relation to the printing and distribution, and trial counsel responds as follows:[11]
Well, I have no idea what the Crown's case is in relation to printing. I don't have any evidence before me. It seems to me their case is, 'Well, we can prove he had a hand in the distribution'. We say, absent any knowledge, but that's - what it seemed - as I understand their case - and this is from the particulars - because he was involved in some way in the distribution, he must have been a party to the printing. But I don't have any evidence. There's no nexus between the printing and this accused. So - and my friend could probably answer better than me. And this is why we've been so insistent and incessantly requiring particulars.
There's no evidence to establish at any level his involvement in the printing. None. Zilch. Other than involved in the distribution, you can infer that he was involved in the printing.
[11] Magistrates Court ts 7.
Trial counsel for the respondent contended that the prosecution's case in relation to the Printing Charge was a 'quantum leap' which was based on the respondent's involvement in the distribution.[12]
[12] Magistrates Court ts 7.
Trial counsel for the respondent then addressed the Distribution Charges as follows:[13]
Their case in relation to the distribution is that he - the accused had a number of communications with the witness Wren, who works for Freaky Flyers, the distributor, in relation, we say, to legitimate candidates with authorised properly approved and authorised pamphlets. Their case is he also had involvement in relation to the (indistinct) by which we deny. But even if, ultimately, the court found that he did, there is zero evidence of him having knowledge of the deficiencies. There's no evidence he ever saw the flyer. There's no evidence he ever delivered the flyer. There's no evidence that he ever had any preparation - any involvement in the preparation of the flyer.
[13] Magistrates Court ts 7.
Trial counsel for the respondent then also raised the issue of the basis upon which the prosecution was claiming the respondent was involved and that it was unclear whether the respondent was charged as a principal offender; as an aider and abettor or whether the prosecution was relying on s 8 of the Criminal Code.[14]
[14] Magistrates Court ts 8.
In response, the prosecutor first addressed the question of particulars in relation to the Printing Charges. The prosecutor submitted that the prosecution's case in relation to the Printing Charges was entirely circumstantial. The prosecutor then summarised the circumstantial evidence relating to the Printing Charges. In the course of doing so, the prosecutor said the following:[15]
SARDINHA, MR: … The prosecution's case as to the printing charge is entirely circumstantial, as I advised Mr Andrews. I can confirm that the prosecution will rely on a direct offence.
…
SARDINHA, MR: So yes, your Honour. I've disclosed the witness statement of the witness we're calling from the printing shop who describes that a young - that a - sorry, that a female Asian lady came in and ordered 10,000 copies of the flyer to be printed. I've disclosed the statement of - and annexures of the - our first witness, who is, in effect, the business operations manager for the flyer distribution company.
Within that witness statement there are text messages, which we are going to allege are from the accused. Among other things, the accused asks, on 19 and 20 September, whether the flyers have been received from the printing company yet. And it's our case that when all of the evidence is taken together and you can see how clear it is that the accused, we allege, was orchestrating the distribution of the flyers, the only reasonable hypothesis is that he caused the printing to occur.
[15] Magistrates Court ts 8 - 9.
At this point, trial counsel for the respondent interjected and made a series of submissions regarding the prosecutor's case as revealed by the prosecutor's submissions to date. Trial counsel for the respondent submitted that the prosecutor's evidence was limited and did not reveal any nexus between the printing and the respondent.[16]
[16] Magistrates Court ts 9 - 10.
The following exchange then occurred:[17]
HIS HONOUR: What causes the nexus between the accused - - -
SARDINHA, MR: The prosecution case is that the accused takes over, from the flyers being distributed, from the flyers being printed and delivered to the distribution - to the distribution company.
HIS HONOUR: But have you got evidence to show that he personally went in to do these things to the printing job?
SARDINHA, MR: No, your Honour.
[17] Magistrates Court ts 10.
In response to this exchange, trial counsel for the respondent interjected as follows:[18]
ANDREWS, MR: Well, can I just say this. This description that their case is that the accused takes over after this point in time. Well, that's the first particular I've heard at all, secondly, so we're starting to get towards particulars. Secondly, if he took over the job after the printing, how does that, in any way, make him a party to the printing. I mean, by their own description, his involvement came after the printing.
…
But I raise this in the context of particulars. It's only now that I learn that they're saying his involvement came in as - after the printing and I still don't know what that alleged involvement was.
HIS HONOUR: So how does Mr Sardinha get over the issue about particulars then? And what particulars?
ANDREWS, MR: Well, he needs to describe to the accused how the prosecution puts its case against him. What he did - what are the extra admissions that they are going to rely upon? And what part criminal culpability they rely upon. Was he an aider and abetter; was he a principal offender? Is it a section 8; was it section 7(a), (b), (c), (d) any section. It can't be all of them. But he hasn't really crystalised how the criminal liability arises.
[18] Magistrates Court ts 11 - 12.
The prosecutor then addressed the question of duplicity.[19] Following these submissions, the following exchange took place:[20]
[19] Magistrates Court ts 12 - 15.
[20] Magistrates Court ts 15 - 16.
HIS HONOUR: But the effect is there are alternatives. How is that affecting this from proceeding today?
ANDREWS, MR: Well, we know what their case is. We just don't know - we've had no confirmation that how they put their case in terms of criminal liability against us. There has just been a complete absence of particularisation. But it doesn't prevent us from proceeding today. But we would just defend the charge on the basis of an allegation that he was a party to the causing of the printing. The printing being deficient in two ways; the pamphlet being deficient in two ways. And that he was a party to the causing of the distribution of the pamphlet being deficient in two ways. So it doesn't occasion any prejudice to us either.
HIS HONOUR: Right. But you've still got the problem about the lack of particulars.
ANDREWS, MR: Well, that can be easily answered if he can just tell us.
HIS HONOUR: Yes.
ANDREWS, MR: Under what section of section 7 or section 8 the prosecution brings this prosecution. How they put their case against the accused. We don't even know that.
HIS HONOUR: Mr Sardinha, I'm inclined to agree with Mr Andrews about the - that you should be required to particularise your case.
…
SARDINHA, MR: Your Honour, it's impossible to prove in [circumstantial murder] cases what happened. And we accept that in this case it is impossible to prove how the accused caused the printing to occur! But we submit that when regard is had to all the evidence, the only reasonable hypothesis is that he is the ringleader of the organised - of the whole operation.
ANDREWS, MR: So there's another particular. We're the ringleader now.
HIS HONOUR: Yes. Look, I'm going to require you to particularise the case.
SARDINHA, MR: Certainly, your Honour. Well, I am seeking instructions as we speak. So perhaps if I could open the case and our first witness relates, in any event, to charge 1, and I could update your Honour or?
HIS HONOUR: I think it needs to be resolved at the start.
SARDINHA, MR: Yes.
HIS HONOUR: Then there's the issue about duplicity. So there's a number of issues to solve before the matter even gets to first base. So I will adjourn for the time being while you attend to that.
The Magistrate allowed a short adjournment to allow the prosecution to seek instructions.[21] Following the adjournment, the prosecutor clarified that the position of the prosecution was that he did not have direct evidence as to how the printing was caused, but that it was a matter of inference for the Magistrate after having heard all the evidence, and that in those circumstances the prosecution was necessarily unable to particularise it.[22]
[21] Magistrates Court ts 16.
[22] Magistrates Court ts 16 - 17.
The following exchange then took place:[23]
HIS HONOUR: No. So just then what are you saying in effect then? That you can't give particulars?
SARDINHA, MR: Yes, your Honour. Because, we have no direct evidence as to what - we can't give particulars as to - we've given particulars, for instance, as to the date. We can't give particulars as to how the accused caused the printing, because we don't have direct evidence on the point.
HIS HONOUR: So where does that leave you in relation to the prosecution?
SARDINHA, MR: I'm submitting myself to your Honour on that point. We seek to proceed.
[23] Magistrates Court ts 17.

Trial counsel for the respondent then objected to the trial proceeding and referred to duplicity; the lack of particulars; the lack of identification of which provisions of the Criminal Code regarding criminal liability are relied on; the resulting inability of the respondent to receive a fair trial and submitted that the appropriate remedy is to stay the prosecution.[24]
[24] Magistrates Court ts 17 - 18.
The following exchange then took place between the learned Magistrate and the prosecution:[25]
HIS HONOUR: Mr Sardinha, I'm inclined to dismiss the charges. If it was adjourned for you to supply particulars. You have got up and said that you can't and you won't, in effect. I agree with Mr Andrews that he still doesn't know what the case is against him and on what basis. He doesn't even know, under the Criminal Code, section 8 or otherwise.
SARDINHA, MR: I can address that, your Honour. We say that the accused is a principal offender.
HIS HONOUR: All right. But the difficulties faced, of course, is that he still doesn't know the case that he faces. And it is a basic fundamental situation. So if you're not in a position to supply particulars, I'm going to dismiss the charges.
SARDINHA, MR: Your Honour, my final submission on the point is that that could, in effect, be requiring the prosecution only to bring charges for these offences where there is some direct evidence. Whereas, I would respectfully submit I am not aware of any legal requirement to that effect. But, your Honour, with that said, I do leave it in the court's hands.
HIS HONOUR: Yes. I mean you can take it elsewhere if you want, but it's - quite clearly there are circumstantial cases - but this is really falling far short of that at this stage. We don't know whether he is a distributor, a printer or - the only evidence is an Asian woman goes into a print shop. We don't know the nexus between the accused. And you really have to particularise that, otherwise it's embarrassing for [counsel for the respondent] to defend the matter I would have thought.
I have given an opportunity; you've not rectified the problem … I'm going to dismiss the charges on the prosecution failed to provide appropriate particulars in the case when they've been called upon to do so. And do not wish to - for various reasons - but they're not sufficient reasons in my view.

[25] Magistrates Court ts 18 - 19.

The learned Magistrate confirmed that he would incorporate the written material handed up by trial counsel for the respondent into his decision.[26]
[26] Magistrates Court ts 19.
Although the learned Magistrate initially indicated that he would dismiss the charges,[27] the following exchange then took place leading to the entry of a judgment of acquittal:[28]
HIS HONOUR: Very well. I'm just looking at the record judgment here - the variety here:
Discharged without conviction or acquittal; dismissed section 19(b)(c)(a).
ANDREWS, MR: Well, there would have to be acquittal.
HIS HONOUR: Or acquitted.
ANDREWS, MR: Yes. I would invite your Honour to acquit it because the accused is entitled to the certainty of an acquittal. Particularly, given the very lengthy three years that prosecution have had to get its act together. And they turn up today for the first time I hear the words 'He's a principal offender'. That's the first time that has been mentioned in three years. He deserves the certainty of an acquittal in my respectful submission.
[27] Magistrates Court ts 18.
[28] Magistrates Court ts 20.
The Magistrate then acquitted the respondent on all charges and awarded him costs in the amount of $9,625.00.[29]
[29] Magistrates Court ts 20.

Grounds of appeal

The applicant seeks leave to appeal against the decision of the learned Magistrate to acquit the respondent of the Distribution Charges (and the associated costs order) only. The appellant does not seek leave to appeal the decision to acquit the respondent of the Printing Charges.
By application dated 17 March 2023, the appellant sought leave to make an amendment to the grounds of appeal to clarify that the appellant alleged that the learned Magistrate erred in fact and/or law (as opposed to simply erring in law). The application was not opposed and during the hearing I granted the appellant leave to amend their appeal grounds as proposed.[30] The amended grounds are therefore as follows:
The magistrate erred in fact and/or law in acquitting the respondent of the charges of:
(a)causing to be distributed electoral material which does not include the name of the person who authorised the material, contrary to section 4.87(1)(a) of the Local Government Act 1995 (WA) (LG Act) (charge JO12215 of 2020); and
(b)causing to be distributed electoral material which does not include the name of the person who printed the material, contrary to section 4.87(1)(b) of the Local Government Act 1995 (WA) (LG Act) (charge JO12216 of 2020),
on the basis that the prosecution had failed to provide adequate particulars in respect of those charges.
[30] Appeal ts 4 - 5 (2 May 2023).
It is immediately apparent that the appeal notice does not specify precisely what the alleged errors of fact and/or law are, as is required by r 65(1)(c) and r 65(2) of the Criminal Procedure Rules 2005 (WA). Merely asserting that the primary court erred in fact or in law is not sufficient. However, the appellant's submissions identified the alleged errors as follows:[31]
(a)that the learned Magistrate made erroneous findings of facts that the appellant had declined to provide particulars of the Distribution Charges that he had been called upon to provide;
(b)that the learned Magistrate erred in law by acquitting the respondent without finding him not guilty of the Distribution Charges; and/or
(c)that the learned Magistrate erred in law by failing to take into account various relevant considerations (those relevant considerations were expanded upon in the written submissions).
[31] Appellant's written submissions [8].
The respondent did not raise any objection to the appeal proceeding on the basis that the errors of fact and/or law were those identified by the appellant in his written submissions and did not identify any prejudice in doing so. The appeal hearing proceeded on the basis of the alleged errors as outlined in the appellant's written submissions.

Legal principles

Appeal

The appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision of a court of summary jurisdiction to acquit an accused of a charge may be appealed to the Supreme Court by a person aggrieved on the grounds that the court made an error of law or fact or both.[32]
[32] CAA s 6(d), s 7(1) and s 8(1)(a)(i).
Leave to appeal is required for each ground of appeal.[33] 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,[34] meaning that the ground is required to have a rational and logical prospect of succeeding.[35] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[36]
[33] CA Act s 9(1).
[34] CA Act s 9(2).
[35] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[36] 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.[37] However, an error that is material, in the sense that it affected a decision to acquit, will generally give rise to a substantial miscarriage of justice.[38]

Particulars

[37] CA Act s 14(2).

[38] Resource Recovery Solutions Pty Ltd v Ayton [2021] WASC 443 [12] - [14].

The relevant legal principles regarding the provision and role of particulars in a criminal prosecution were not in dispute between the parties.
A prosecution notice must be in writing and comply with the requirements of sch 1 div 2 of the Criminal Procedure Act 2004 (CP Act).[39]
[39] CP Act s 23(2).
Clause 5(1) of sch 1 div 2 of the CP Act provides that a charge in a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge. The clause goes on to identify further specific requirements for a prosecution notice. Relevant for present purposes is cl 5(2)(a) ‑ (b) which provides:
(2)For the purposes of subclause (1) -
(a)it is sufficient to describe an offence in the words of the written law that creates it; and
(b)if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out; and …
Section 131 of the CP Act provides that a court may order a prosecutor to give an accused further particulars of a charge, either on its own initiative or on an application by an accused, and either before or during a trial.[40] Further, s 131(4) of the CP Act specifically provides that if the court is satisfied that a charge that complies with sch 1 cl 5(2)(b) is likely to prejudice the accused's defence of the charge, the court may order the prosecutor to give the accused further particulars of the charge.
[40] CP Act s 131(1) - s 131(3).
The function of particulars was explained by Buss JA (as his Honour then was) in Smith v The Queen[41] as follows:
The function of particulars is to inform the accused of the legal nature of the offence charged and the particular acts, omissions, matters and things (as the case may be) which are the foundation of the charge. See Johnson v Miller (1937) 59 CLR 467, 489, 497; R v Saffron (1988) 17 NSWLR 395, 445; Stanton v Abernathy (1990) 19 NSWLR 656, 670 - 671. An accused is not able to plead to the charge unless he or she knows the precise case which is the basis for the charge preferred against him or her. See Ex parte Graham; Re Dowling [1969] 1 NSWR 231, 241; Saffron (447); Stanton (666). The Crown, in criminal proceedings, will normally not be permitted to go outside its particulars, in the interests of a fair trial, but the trial judge has a discretion to permit a departure from the particulars when appropriate.
[41] Smith v The Queen [2008] WASCA 128; (2008) 37 WAR 297 [105].
In Cotter v The State of Western Australia,[42] Hall J (Martin CJ and Newnes JA agreeing) observed:
Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies upon as being the commission of the offence alleged. It is one of the components of a fair trial that an accused person be informed of precisely what it is that the prosecution alleges he or she has done that constitutes a crime: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J). This requirement is reflected in sch 1 div 2 cl 5 of the Criminal Procedure Act.
In assessing whether particulars have been adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances which the prosecution alleged amounted to the offence charged. It is always a question of substance, not technicality…
[42] Cotter v The State of Western Australia [2011] WASCA 202 [30] - [31].
In Scolaro v Shephard,[43] Martin CJ similarly observed:
The function of particulars in a criminal case is to provide the accused person with sufficient knowledge of the case brought by the prosecution to adequately understand and answer that case. So, provided that the requirements for procedural fairness are met, it is not appropriate to require the prosecution to give particulars which are not material or which would confine the case to one only of a number of alternative factual scenarios which are consistent with each other, and equally consistent with guilt. Much will depend upon the factual circumstances of the particular case …
[43] Scolaro v Shephard [No 2] [2010] WASC 271 [66].
Martin CJ also held that the power in s 131(3) of the CP Act to order a prosecutor to give further particulars does not mean:[44]
… that an accused person is entitled to particulars which descend into the facts in minute detail, or which would prevent the prosecution from seeking to prove a charge on the basis of alternative factual scenarios (provided those factual scenarios are not fundamentally inconsistent).
[44] Scolaro v Shephard [No 2] [2010] WASC 271 [64].
The degree of particularity required will also depend on the evidence available for tender at trial, in that the prosecution cannot give particulars that extend to a greater level of precision than that permitted by the evidence to be tendered.[45]
[45] WGC v The Queen (2007) 233 CLR 66 [129] (Heydon & Hayne JJ).
There is no fixed rule as to the precise manner or form in which particulars must be provided. A review of the various authorities reveals that particulars can be provided in a variety of ways, including in the prosecution notice itself (or an amendment to the prosecution notice); by letter or separate document; in the prosecutor's opening address or oral exchanges/submissions.[46]
[46] See for example Delcaro v The State of Western Australia [2006] WASCA 182 [7] ‑ [10]; The Royal Society for the Prevention of Cruelty to Animals Western Australia v Hammarquist [2003] WASCA 35 [5]; Passmore v R [2023] NSWCCA 65 [10], [40].

Application to admit further evidence

Application and disposition

The appellant applied to admit additional evidence for the purposes of the appeal, being the First Affidavit of Keahn Liam Sardinha affirmed 17 March 2023 and two attachments (First Sardinha Affidavit). In support of that application, the appellant relies on the Second Affidavit of Keahn Liam Sardinha also affirmed 17 March 2023 (Second Sardinha Affidavit).
In essence, the appellant seeks leave to admit the following two additional documents:
(a) the email sent by the solicitor for the respondent to the solicitors for the appellant dated 28 November 2022, which contains the submissions regarding alleged duplicity in the charges and the alleged lack of particulars handed up by trial counsel for the respondent at the hearing on 1 December 2022; and
(b) an email sent in response by the solicitors for the appellant to the solicitor for the respondent, dated 29 November 2022.
In accordance with s 39(1) of the CA Act an appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this Court's power as contained in s 40(1)(e) to 'admit any other evidence' for the purposes of dealing with an appeal.[47]
[47] CA Act s 39(3).
The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal will indicate those considerations which are relevant to the exercise of the discretion.[48]
[48] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].
Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal (at least in relation to a conviction), the power in s 40(1)(e) is broader than the principles applicable in common law proceedings.[49]
[49] Clarke v The State of Western Australia [2018] WASCA 14 [242].
However, the Court of Appeal has previously held that in circumstances where the appeal against conviction follows a plea of guilty, the usual distinction between 'fresh evidence' and 'new evidence', on which the authorities regarding the admission of evidence on an appeal are often based, are not relevant as there has been no trial in the lower court.[50] The present case is similar in the sense that no trial took place and therefore no evidence was tendered. Accordingly, I do not consider that the distinction between 'fresh' and 'new' evidence is determinative to my consideration of the application to admit the additional evidence (which is really pre-trial correspondence) in this case.
[50] Tsang v Francis [2021] WASCA 131 [93].
Turning to the first email dated 28 November 2022 containing the respondent's submissions, this email was handed up to the learned Magistrate during the hearing on 1 December 2022; relied upon by counsel for the respondent at this hearing and in turn was relied upon by the learned Magistrate and incorporated into his reasons for acquitting the respondent. In these circumstances there is (properly) no objection from the respondent, and I therefore exercise my discretion to admit the email submissions into evidence pursuant to s 40(1)(e) of the CA Act.
Turning to the email in reply dated 29 November 2022, in this email the solicitor for the appellant (relevantly) sets out the position of the prosecution in relation to the sufficiency of the particulars provided to date concerning the Distribution Charges. This email was not handed up to the learned Magistrate during the hearing on 1 December 2022. However, the appellant submits that nonetheless this email reply is relevant to the appeal because it provides background context to the exchanges regarding particulars; demonstrates that the prosecutor had already provided particulars in respect of one of the two issues raised by the respondent relating to the Distribution Charges; and is relevant to the consideration of the proviso.[51] In response, counsel for the respondent submits that the responsive email was not considered by the Magistrate in making his decision and would therefore not ordinarily be admitted on appeal, but otherwise submits that its admission is a question for the court.[52]
[51] Second Sardinha Affidavit [11]; Appeal ts 5.
[52] Respondent's submissions dated 11 April 2023 [4].
In all the circumstances I am satisfied that the responsive email dated 29 November 2022 is relevant to the questions raised on appeal and therefore ought to be admitted. The appeal concerns the adequacy of particulars for the Distribution Charges. In order to properly consider the various grounds of appeal, and the application of the proviso, it is necessary to understand precisely what particulars (if any) had already been provided by the prosecution. This email is also responding to the email sent on 28 November 2022 by the solicitor for the respondent and handed up and relied on in the hearing on 1 December 2022. The response given to that email is therefore also relevant to ensure the full context of the position regarding particulars is clear.

Summary of additional evidence

Given the nature of the issues raised on appeal, it is also necessary to set out what these two additional documents say which is relevant to this appeal.
The email submissions commence by putting the prosecution on notice that on 1 December 2022, prior to the prosecution opening their case, the respondent will raise with the court issues regarding deficiencies in the prosecution notice and the refusal of the prosecution to provide particulars.[53]
[53] First Sardinha Affidavit, KLS1 [3].
The submissions then address whether the charges ground any offence known to law and the duplicity question.[54]
[54] First Sardinha Affidavit, KLS1 [5] - [45].
Section C of the submissions then addresses the question of particulars. The submissions acknowledge that some limited particulars have already been provided by the prosecution, in the form of the prosecution notice; the Statement of Facts; disclosed statements and limited details on the proposed application of s 7 of the Criminal Code.[55] The submissions refer to various legal authorities regarding the function and purpose of particulars,[56] and then raise the issue of the lack of particulars as to the basis of criminal liability under s 7 and s 8 of the Criminal Code.[57] The submissions then address the particulars provided in relation to the Printing Charges.[58]
[55] First Sardinha Affidavit, KLS1 [46].
[56] First Sardinha Affidavit, KLS1 [52] - [56].
[57] First Sardinha Affidavit, KLS1 [48] and [72] - [79].
[58] First Sardinha Affidavit, KLS1 [49] - [50] and [57] - [60].

In relation to the Distribution Charges, the submissions say as follows:
61.In relation to Charges 3 & 4, it can be inferred from the evidence of the witness Wren, that the accused caused the distribution of the flyer.
62. The particulars in the SoMF allege that, '[T]he Accused liaised with the manager of the flyer distribution to cause ...'
63. Although the prosecution relies on the purported text messages and emails between the accused and the distributor, there is no evidence that alludes to the actual 'Treby' flyer, by name or description.
64. The evidence does not evince that the accused knew or reasonably suspected that the flyer related to the candidate Treby.
65. Even if it can be established that the accused 'caused' the impugned flyer to be distributed, the SoMF, do not particularise how the necessary knowledge is attributed to the Accused.
The submissions then address the issue of knowledge, and submit that:
67.Also, it is submitted that there is not any law, written or otherwise, that places a positive obligation on the accused, the printer, the distributor or anyone else to ensure the contents of electoral material conforms with the statutory requirements and prohibitions of electoral material.
68.On the particulars provided and evidence disclosed, there is not any evidence that the accused knew or even reasonably believed that the electoral material was deficient, as alleged.
69.A suspicion that a person is reluctant to confirm is different from positive knowledge. However, there is no evidence the Accused had suspicion, let alone knowledge to any degree.
70.The fact the Accused had experience in local government elections and was a lawyer is not sufficient to infer that the Accused had the requisite intent in the form of knowledge.
71.Further, at its highest, the evidence is not capable of supporting a claim of 'wilful blindness'. There is no evidence to enliven the requisite level of suspicion.
The final paragraphs of the submissions appear under the heading 'Application to the Present Case' and provide as follows:
80.Due to the inadequate particulars, for Charges 1 & 2, it seems on the above facts and judicial reasoning, the prosecution is postulating guilt on either of the following two bases:
The Accused caused the printing or publishing ... s 7(a); or
The Accused, caused the printing or publishing by counselling or procuring the 'principal offender', an 'unknown actor', ... s 7(d)
81.In the first case, the Accused must have done at least one act that constituted the offence.
82.It is not known what conduct underlies that assertion. How did the Accused cause (if, by conveyance of the USB drive and directions to the printer) the event by actually doing an act that constituted the offence?
83.In the second case, someone else did the required acts that constituted the offence, and the Accused has done an act rendering him liable to punishment, namely, by counselling or procuring that someone else.
84.There is no requirement that the 'principal offender' be charged, but it must be proved that the person has 'committed an offence'. Otherwise, counselling or procuring has not occurred.
85.Either alleged Accused must have had the basal intent — knowledge.
In the email in reply, the prosecutor relevantly responds as follows:[59]
●In my respectful view, in this Code State, the knowledge requirement of the offence is determined by statutory construction. In my view, properly construed, for all of the charges the only requirement is one of 'basic' knowledge, that is proof that the Accused acted consciously or knew of his own acts (but not proof of specific intent to cause a result). I do not see how there could be any requirement of specific intention or recklessness. In any event, with respect, I consider that if the prosecution's evidence was accepted in full we would prove specific intent to cause someone to print flyers and to cause someone to distribute them.
●as to charges 3-4, I respectfully maintain that the prosecution's case has been quite clear throughout from the materials provided. It is a simple case. I am happy to provide the following. We accept that we have no direct evidence as to who ordered the printing of the flyers from Printstuf, and what instructions they were given. We accept we don't have direct evidence that Mr Nguyen instructed that person to order the flyers. But we will submit that when close regard is had to evidence of Mr Nguyen's coordination of the distribution of his flyers and his centrality to the enterprise, there is an extremely strong circumstantial case that he caused the flyers to be printed; any 'doubt' that someone else caused the flyers to be printed and Mr Nguyen merely organised for them to be picked up and distributed is, in my submission, far-fetched and not reasonable.
[59] First Sardinha Affidavit, KSL2.

Disposition

General comments

Prior to detailing an overview of the parties' respective cases, it is worthwhile recounting that, as observed by Martin CJ in Strahan v Brennan,[60] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:
[i]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.[61]
[60] Strahan v Brennan [2014] WASC 190 [89] - [90].
[61] Strahan v Brennan [2014] WASC 190 [90].
However, in the present case I note that the transcript reveals that there was generally a lack of specificity and precision during the hearing regarding the issue of particulars. With one exception, it is difficult to discern precisely what particulars are being sought by trial counsel for the respondent and in relation to which charges.
The learned Magistrate, in turn, does not specifically refer to ordering the prosecution to provide particulars pursuant to s 131 of the CP Act. The appellant submits that accordingly the learned Magistrate did not ever make a formal order for the prosecutor to provide further particulars.[62]
[62] Appeal ts 17.
I agree that it would have been preferable for the learned Magistrate to have expressly indicated that he was exercising his power under s 131 of the CP Act to order the prosecutor to provide further particulars. However, I accept the respondent's submission that on a fair reading of the transcript as a whole, and in light of the email submissions of the respondent at trial which do refer to this power, that when the learned Magistrate said that the prosecutor should be required to particularise his case, the learned Magistrate was exercising his power under s 131 of the CP Act to order the prosecutor to provide further particulars. However, the lack of precision in the request from the respondent led to a corresponding lack of precision in relation to the order made by the learned Magistrate. This lack of precision infected the decision making that followed.

Overview of parties' respective case

Error of fact

The first aspect of the appellant's case is that the learned Magistrate erred in fact in finding that the prosecutor had declined to provide particulars of the Distribution Charges that he had been called upon or ordered to provide.
The appellant submits that when regard is had to the transcript, the submissions and the email response to those submissions, it is revealed that trial counsel did not seek further particulars in relation to the Distribution Charges except in one respect - being the basis of criminal liability of the respondent (in terms of s 7 and s 8 of the Criminal Code). The appellant submits that particulars of the basis of criminal liability were provided by the prosecutor and were not relied on by the learned Magistrate in acquitting the respondent.[63]
[63] Appeal ts 15 - 16.
The appellant submits that the remainder of the matters raised regarding particulars at the hearing on 1 December 2022 were all directed to the Printing Charges.[64] In this regard, the appellant notes that the submissions of the respondent refer to the prosecutor needing to provide particulars of knowledge in relation to the Distribution Charges. However, the appellant submits that this request was answered in the email response from the prosecutor which explained that knowledge was not an element of the offence and therefore particulars of knowledge did not need to be provided. The appellant further submits that the question of knowledge was therefore not raised by trial counsel for the respondent during the oral hearing on 1 December 2022 and therefore the respondent did not seek particulars regarding knowledge.[65]
[64] Appellant's submissions [38] - [41].
[65] Appellant's submissions [37], [40].
The appellant further submits that following the adjournment, the prosecutor only referred to being unable to provide further particulars in relation to the Printing Charges, and did not refuse to provide particulars in relation to the Distribution Charges.[66]
[66] Appellant's submissions [42] - [44].
Consequently, it is submitted that the Magistrate made two erroneous findings of fact when acquitting the respondent of the Distribution Charges on the basis that the respondent has sought further particulars, and the learned Magistrate had ordered the provision of further particulars, and that the prosecutor had failed to provide, particulars to the Distribution Charges.[67]
[67] Appellant's submissions [46].
In response, the respondent submits that both the transcript and the email submissions demonstrate that the prosecutor was called on to provide particulars in respect to all charges, and not just the Printing Charges, and further that the prosecutor did not seek clarification of this.[68] In this regard, the respondent submits that it would make no sense for the Magistrate to only order particulars for some of the charges in the circumstances where it was alleged that the offending was two parts of a course of conduct, being the printing and the distribution.[69] The respondent also makes specific reference to the trial counsel's request for particulars as to the alleged basis of criminal liability, which applies equally to the Distribution Charges,[70] and the question of knowledge for the Distribution Charges.[71]

Errors of law

[68] Respondent's submissions [7] - [10].

[69] Respondent's submissions [15].

[70] Respondent's submissions [16], [19].

[71] Respondent's submissions [16].

The appellant also submits that the learned Magistrate made the following errors of law:
(a)failing to take into account various relevant proposed evidence and submissions in finding that the particulars provided by the prosecutor in relation to the Distribution Charges were inadequate;
(b)acquitting the accused when that was not an option open to the learned Magistrate under the CP Act; and
(c)failing to take into account various relevant considerations when contemplating whether or not to permanently stay the proceedings.
In response, the respondent submits that when regard is had to the transcript as a whole, no error of law was made by the learned Magistrate in concluding that the particulars provided in relation to the Distribution Charges were inadequate.
The respondent accepts that the Magistrate did not have the power to acquit the respondent of the two charges relevant to the appeal. However, the respondent submits that there has been no substantial miscarriage of justice in the circumstances where the appropriate remedy was to permanently stay the charges.[72] The respondent also submits that the learned Magistrate did, in effect, consider whether continuing the prosecution was an abuse of process and in acquitting the accused the learned Magistrate concluded that the respondent could not receive a fair trial and the prosecution ought to be stayed. The respondent submits that no error of law is revealed in this process.[73]

Error of fact

[72] Respondent's submissions [6].

[73] Respondent's submissions [33] - [48].

Having reviewed the transcript as a whole, the submissions made by the respondent at the trial and the email response from the prosecutor, I am of the opinion that the learned Magistrate erred in fact in concluding that the prosecutor was refusing to provide particulars of the Distribution Charges.
In reaching this conclusion, I am of the view that the transcript does not reveal precisely what particulars the respondent was seeking in relation to the Distribution Charges (and in turn were ordered by the learned Magistrate) that had not already been provided by the prosecutor.
I accept the respondent's submission (and it is not opposed)[74] that the respondent was seeking particulars in relation to the alleged basis for criminal liability on all four charges.[75] However, the prosecutor answered that particular on two occasions.[76]I accept that the prosecutor could have been clearer in this respect. However, when the transcript is read as a whole, I agree with the submission made by counsel for the appellant that it is clear the prosecutor was relying on s 7(a) of the Criminal Code, which provides that every person who actually does the act or makes the omission which constitutes the offence may be charged with committing the offence. In this regard, I note that the prosecutor says that the prosecution's case is that it is a 'direct offence' and that the allegation is that the accused is a 'principal offender'. There is also no reference anywhere in the transcript to enabling, aiding, counselling or procuring any other person to commit the offence. In these circumstances, I am of the view that this particular was provided by the prosecutor. The learned Magistrate also appears to accept that a satisfactory answer to this particular had been provided,[77] as the reasons which follow do not make reference to a failure to provide this particular (and instead make reference to other particulars).[78]
[74] Appeal ts 8 - 9.
[75] Magistrates Court ts 8.
[76] Magistrates Court ts 8 (but only the context of the Printing Charges) and 18 (in the context of all charges).
[77] Magistrates Court ts 18.
[78] Magistrates Court ts 19
The written submissions handed up to the learned Magistrate by the respondent refer to particulars of knowledge. However, that request was answered by the prosecutor in the email response to those submissions in that the prosecutor said that as a matter of statutory construction, there was only a requirement for basic knowledge, being proof that the respondent acted consciously or knew of his own acts (but not proof of specific intent to cause a result).
During the hearing on 1 December 2022, the reference to knowledge was made in the context of whether sufficient evidence exists in relation to the respondent's knowledge that the flyers in question related to candidate Treby.[79] However, the question of whether there is sufficient evidence is a different concept to particulars. The reference to the lack of evidence regarding knowledge was made in the context of trial counsel for the respondent responding to a question from the learned Magistrate as to what the Crown says the respondent did. Further, trial counsel for the respondent does not specifically ask for particulars of knowledge.
[79] Magistrates Court ts 7.
This is not surprising, given the email response by the prosecutor which correctly notes that knowledge is not an element of the offences the subject of any of the charges. In this regard, I note that the respondent was charged with causing electoral material to be distributed which did not contain the required details, contrary to s 4.87(1) of the LG Act. The reference to the term 'cause' has been held (albeit in the context of other legislation) as not importing any requirement of knowledge. For example, in the decision of Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2),[80] Hall J considered the meaning of the words 'allow' and 'cause' in relation to s 49(3) of the Environmental Protection Act 1986 (WA) which provides that a, 'person who causes pollution or allows pollution to be caused commits an offence'. Hall J held that:[81]
… The term 'allow' has at least as wide a meaning as 'permit'. A person permits something if they have knowledge of it and the authority or power to prevent it occurring. The knowledge required may be actual knowledge or knowledge of circumstances such that it could be said that they shut their eyes to the obvious or allowed something to go on not caring whether it occurred or not.
The term 'cause' unlike the term 'allow' does not suggest any requirement of knowledge. It is not necessary to show that an alleged offender intended to cause the pollution or was negligent in failing to prevent the pollution before a court will find that a person caused the pollution. It is sufficient that the pollution arises from some positive act of the defendant. Where the pollution is a result of such process, even where the pollution is a consequence of an occurrence that the defendant could not have foreseen, the defendant will nonetheless be held to have caused the position. The question is not what caused the pollution but whether the identified acts of the defendant caused the pollution.
[80] Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98.
[81] Coffey LPM Pty Ltd v Contaminated Sites Committee (No 2) [2013] WASC 98 [95] - [96] (citations omitted).
The above reasoning was adopted by Hill J in Cowie v Perth Demolition Company Pty Ltd (No 2)[82] in relation to s 49A(3) of the same Act, which provides that a 'person who discharges or abandons, or causes or allows to be discharged or abandoned, any solid or liquid waste on or in any place, other than water to which the public has access, commits an offence'. I agree with and adopt the above reasoning in relation to the meaning of the term 'cause' in the context of s 4.87(1) of the LG Act.
[82] Cowie v Perth Demolition Company Pty Ltd (No 2) [2020] WASC 136; (2020) 283 A Crim R 150 [51] ‑ [52].
In all the circumstances, I am therefore of the view that the respondent did not seek particulars of knowledge at the hearing on 1 December 2022.
The appellant submits that the remainder of the exchanges in the transcript concern the Printing Charges only, and properly understood the transcript reveals that the respondent was only seeking further particulars in relation to the Printing Charges. The respondents submits that a fair reading of the transcript as a whole reveals that further particulars were being sought about all charges.
I do not accept the respondent's submissions. In my view, the remainder of the transcript (leaving aside the exchanges concerning criminal liability and knowledge) consists of lengthy exchanges about the particulars concerning the Printing Charges. The relevant extracts are set out earlier in these reasons. In the course of those exchanges trial counsel for the respondent appears to indicate that he understands the basis of the Distribution Charges. The most significant exchange to this effect is worthy of repetition here:[83]
Well, I have no idea what the Crown's case is in relation to printing. I don't have any evidence before me. It seems to me their case is, 'Well, we can prove he had a hand in the distribution'. We say, absent any knowledge, but that's - what it seemed - as I understand their case - and this is from the particulars - because he was involved in some way in the distribution, he must have been a party to the printing …
There's no evidence to establish at any level his involvement in the printing. None. Zilch. Other than involved in the distribution, you can infer that he was involved in the printing.
…
Their case in relation to the distribution is that he - the accused had a number of communications with the witness Wren, who works for Freaky Flyers, the distributor, in relation, we say, to legitimate candidates with authorised properly approved and authorised pamphlets. Their case is he also had involvement in relation to the (indistinct) by which we deny. But even if, ultimately, the court found that he did, there is zero evidence of him having knowledge of the deficiencies. There's no evidence he ever saw the flyer. There's no evidence he ever delivered the flyer. There's no evidence that he ever had any preparation – any involvement in the preparation of the flyer.
[83] Magistrates Court ts 7.

I am of the view that these paragraphs of the transcript, when read with the remainder of the transcript as a whole, including the lack of any specific request for other particulars as to the Distribution Charges, reveal that the respondent understood the case put against him in relation to the Distribution Charges but not the Printing Charges. Therefore, the request for further particulars made by the respondent was a request for further particulars in relation to the Printing Charges only.
Finally, irrespective of the above matters, the transcript reveals that after the adjournment the prosecutor indicated to the learned Magistrate that he could not provide any further particulars of the Printing Charges.[84] At no point does the prosecutor refuse to provide particulars of the Distribution Charges. This is unsurprising in my view as at no point had it been expressly stated what particulars were being sought in relation to the Distribution Charges (save for the basis of criminal liability which was answered).
[84] Magistrates Court ts 16 - 17.
The fact that the prosecutor did not raise with the learned Magistrate (after his Honour had made his decision to bring the prosecution to an end) the fact that no further particulars in relation to the Distribution Charges remained unanswered or were being refused to be provided, does not alter this conclusion. The error of fact remains.
Therefore, in all the circumstances, I am satisfied that the learned Magistrate erred in fact in concluding that the prosecutor was refusing to provide further particulars of the Distribution Charges, on the basis that none were expressly sought by the respondent that had not already been answered.

Errors of law

I am also of the view that the learned Magistrate made an error of law in ordering the acquittal of the respondent. This error arose in two ways. First in so far as it was dependent upon the above error of fact, and secondly in so far as this was not an option open to the learned Magistrate in any event.
The CP Act does not expressly state what occurs if a prosecution fails to comply with an order under s 131 of the CP Act to provide particulars. Section 3(2)(b) of the CP Act provides that a person is acquitted of a charge if a court:
(i) under section 147(2) enters a judgment of acquittal of the offence charged on account of unsoundness of mind in respect of the person; or
(ii) under section 147(3) enters a judgment of acquittal of the offence charged in respect of the person.
Section 147(3) provides that:
If an accused is found not guilty of a charge, other than on account of unsoundness of mind, the court may enter a judgment of acquittal of the offence charged in respect of the accused.
That is, a judgment of acquittal under the CP Act involves a substantive 'determination' of a charge (either by a jury or judge in the case of an indictable matter, or a Magistrate in the case of a summary prosecution).
The CP Act also refers to a dismissal of a charge. In so far as that is applicable to decisions of a Magistrate, the power to 'dismiss' a charge is specifically confined by the CP Act to dismissing a charge for want of prosecution in the situations addressed in ss 25(3), 35(10)(c), 38(1)(b), 44(1)(b)(iii), 52(2), 53(2) and 54(b) of the CP Act. Section 79 makes it clear that in dismissing a charge for want of prosecution, a magistrate must not 'determine' the charge.
In these circumstances, the appellant submits (and the respondent properly accepts)[85] that the only option available to a magistrate to bring a prosecution to an end due to a failure by the prosecution to provide adequate particulars is to permanently stay the prosecution of the charge under s 76(1) of the CP Act. However, this option may only be taken if the court is satisfied that the charge is 'an abuse of the process of the court'. The authorities establish that this may include circumstances of a failure to give sufficient particulars.[86]
[85] Respondent's submissions [6].
[86] See, for example, Perrin v Jackson [2008] WASC 77 [53]; R v Kennedy (1997) 94 A Crim R 341, 350 - 351; The Royal Society for the Prevention of Cruelty to Animals Western Australia Inc v Hammarquist [2003] WASCA 35 [46].
The respondent accepts that an acquittal was not an option open in the present circumstances but submits that the court should conclude that there has been no substantial miscarriage of justice because the appropriate remedy was to permanently stay the charges.[87]
[87] Respondent's submissions [6].
The transcript reveals that initially trial counsel for the respondent referred to the charges being stayed permanently. The learned Magistrate then questions whether the charges should be stayed or dismissed, and trial counsel for the respondent settled on dismissed.[88] However, when reviewing the various options as to outcome entry on the court's system, the learned Magistrate refers to acquittal and trial counsel for the respondent seeks an acquittal.[89] It was not put to the learned Magistrate by either counsel that an acquittal was not open.
[88] Magistrates Court ts 18.
[89] Magistrates Court ts 20.
In these circumstances I am satisfied that the learned Magistrate erred in law in acquitting the respondent of the charges, both as a consequence of the above error of fact, and in any event.
This error of law, either alone or in combination with the error of fact I have previously found, is sufficient to dispose of the appeal, save as to the application of the proviso in s 14(2) of the CA Act, to which I will now turn.

Proviso - s 14(2) of the CA Act

The conclusion that the learned Magistrate made an error of fact and an error of law, does not conclude the appeal. Section 14(2) of CA Act provides that even if a ground of appeal might be decided in favour of the appellant (as has occurred here), the court may nonetheless dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The respondent submits that even though the learned Magistrate made an error of law in acquitting the accused when that option was not open, the court should conclude that there has been no substantial miscarriage of justice because the appropriate remedy was to permanently stay the charges.[90]
[90] Respondent's submissions [6].
I do not consider that it can be said that there has been no substantial miscarriage of justice in the present case for two reasons.
First, because I consider that given the nature and circumstances surrounding the decision of the learned Magistrate there is a real question as to whether the proceedings before the learned Magistrate amounted to such a serious departure from the essential requirements of the law, which goes to the root of the proceeding, such as to preclude the application of the proviso.
In this regard, the authorities in relation to the application of the proviso, whether that be the proviso applicable to summary offences as is the case here; or that in relation to indictable offences in s 33(2) of the CA Act; or their forerunners or interstate equivalents,[91] all acknowledge that there may be some appeals where the proviso is not applicable.
[91] Noting that there are some differences between each, but none are material here.
For example, in Wilde v The Queen,[92] Brennan, Dawson and Toohey JJ held as follows:
[T]he proviso [which was previously found in s 689 of the Criminal Code (WA)] was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' ...; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon a jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso ...

[92] Wilde v The Queen[1988] HCA 6; (1988) 164 CLR 365, 372 - 373.

In AK v The State of Western Australia,[93] the High Court examined in what circumstances the proviso might not be capable of application because of the circumstances of the trial. The High Court held that there had been a substantial miscarriage of justice and the proviso did not apply where a trial judge sitting alone had failed to set out his/her findings of fact on a central issue. Gummow and Hayne JJ stated:
[54]... [W]hat was said in Wilde v The Queen about the possibility that some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presupposition of the trial as to deny the application of the proviso is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute. Rather, as both Wilde and Weiss acknowledged, the operation of the proviso in the common form criminal appeal statute will fall for consideration in a very wide variety of circumstances. What was said in Wilde did no more than avert to a particular class of such circumstances in which the error or errors at trial are properly seen as radical.
[93] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
InREF v CEO Dept of Communities,[94] Fiannaca J considered the application of the proviso in s 14(2) of the CA Act in an appeal from a decision of a magistrate in the Children's Court to refuse a joinder application by the carer of the child in protection proceedings under the Children and Community Services Act 2004 (WA), and the decision, after not hearing from the carer, to proceed to make an extension of the existing protection order. After concluding that errors had been made, Fiannaca J considered the application of the proviso and noted (as in the present case) his Honour had not been able to find any authority which considered the application of the proviso in an appeal of the kind in that case.[95] His Honour then went on to review the relevant authorities, and provide the following helpful summary of the legal principles arising under s 14(2) and which were applicable to the appeal before him:[96]
(1) The court must make its own objective assessment of whether a substantial miscarriage of justice has occurred.
(2) The task is not an exercise in speculation or prediction of what the outcome would have been if the errors were not made, or what it would be if the matter were to proceed according to law (that is, without the errors made at first instance).
(3) Given the very wide variety of circumstances in which the proviso may come to be considered, there are no absolute rules, tests or criteria to identify when it is not appropriate to apply the proviso.
(4) However, where the proceedings at first instance have been tainted by a fundamental error or an error that involves such a departure from the essential requirements of a fair trial, or a proper exercise of jurisdiction (in the context of the present case), such an error will exclude the operation of the proviso, irrespective of the strength of the evidence that might support the outcome at first instance.
(5) In determining whether the proviso can or should be applied, it is necessary to have regard to the grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the court to allow the appeal.
[94] REF v Chief Executive Officer of the Department of Communities [2023] WASC 89.
[95] REF v Chief Executive Officer of the Department of Communities [2023] WASC 89 [168].
[96] REF v Chief Executive Officer of the Department of Communities [2023] WASC 89 [180].
Fiannaca J went on (in respect of the error concerning the failure to join a party) to conclude that the magistrate in that case erred in refusing to join the carer and that the only reasonable conclusion on the evidence before the magistrate was that the appellant carer satisfied the statutory criteria for joinder, and was therefore deemed to be a party to the proceedings. In those circumstances, his Honour concluded that it was difficult to see how the proviso could be applicable.
In relation to the extension of the protection order, Fiannaca J concluded that he could not be satisfied that no substantial miscarriage of justice had occurred. One reason for reaching that conclusion was:[97]
… Finally, I am satisfied that proceeding to determine the extension application, having erroneously excluded the appellant as a party, involved such a departure from the essential requirements of the magistrate's proper exercise of jurisdiction under the Act and the CCWA Act, that the operation of the s 14(2) proviso is excluded, irrespective of the strength of the evidence in support of the extension application.
[97] REF v Chief Executive Officer of the Department of Communities [2023] WASC 89 [187].
The parties did not refer me to any examples of cases with directly similar facts to the present and the consideration of the operation of the proviso in those circumstances. My research has also been unable to identify any such cases.
One broadly analogous situation is that set out above in REF v Chief Executive Officer of the Department of Communities. That case involved a failure to join a party, such that the party did not have the opportunity to lead evidence or participate in the hearing at all.
Another broadly analogous situation is where a conviction is recorded following the erroneous application of s 55 of the CP Act, which permits a magistrate hearing a summary offence to proceed in the absence of the accused. In the recent decision of King v City of Perth,[98] Lundberg J considered examples of previous decisions of this court regarding the application of the proviso in this context. His Honour concluded:
55.… The procedure in s 55 of the CP Act was invoked by the magistrate in the present case because of the error which occurred in relation to the adjournment of the hearing. Although that error was an apparent oversight, it does not change the fundamental opportunity which the appellant lost as a result, namely the opportunity of contesting the prosecution evidence, leading evidence of his own by way of defence, and making submissions on the evidence.
56.In my view, the error in this case was such a departure from the essential requirements of the law that it goes to the root of the proceedings: Wilde v The Queen. Accordingly, there is no room for the proviso in s 14(2) to apply in the present circumstances.
[98] King v City of Perth [2023] WASC 252.
A further broadly analogous situation is where a no case to answer submissions has been erroneously upheld. In this regard, the decision of The State of Western Australia v Burke,[99] is instructive. In that case, the prosecution appealed against the decision of the judge to enter a judgment of acquittal after making a decision that the accused had no case to answer. The grounds of appeal were upheld, and a question then arose as to whether the proviso applicable to such an appeal (being in that case s 33(2a) of the CA Act) applied. Buss JA (as his Honour then was, with whom Martin CJ and Mazza J agreed) considered the proviso and concluded:
342 The State's case against the respondents has not been tried according to law. The trial judge should have decided that there was a case to answer on counts 1, 2, 3 and 4, and his Honour should have put each of the respondents to his election in relation to whether to give or adduce evidence. A final determination as to the facts to be found and the inferences to be drawn can be made only after each respondent has made his election and the procedures for the taking of evidence and the receipt of submissions have been completed. A fair trial involves fairness both to the accused and the State.
343 In these circumstances, it is not open to conclude that no substantial miscarriage of justice has occurred. The 'proviso' in s 33(2a) should not be applied.
[99] The State of Western Australia v Burke [2011] WASCA 190.
The present circumstances involve a situation where the learned Magistrate has made an error of fact regarding whether the respondent sought particulars in relation to the Distribution Charges which remained unanswered by the prosecutor. The learned Magistrate then also made an error of law by acquitting the respondent when that was not an option open to the learned Magistrate. The result of these errors is that the prosecutor was denied the opportunity to open and present his case. In my view, the errors in this case were such a departure from the essential requirements of the law that they go to the root of the proceedings, in the manner contemplated in the above authorities, and accordingly there is no room for the proviso in s 14(2) to apply in the present circumstances.
Secondly, notwithstanding my above conclusion, I have gone on to consider the substantive merits of the respondent's submission that there has been no substantial miscarriage of justice in this case.
The respondent submits that the learned Magistrate did, in effect, consider whether continuing the prosecution was an abuse of process.[100] In support of this submission the respondent refers to and relies on that part of the transcript where trial counsel for the respondent submitted that the respondent could not receive a fair trial.[101] The respondent submits that it is implicit in the learned Magistrate's findings that he considered, in the absence of particulars, that the respondent could not receive a fair trial and that it was appropriate to exercise the exceptional power to end the prosecution.[102]
[100] Respondent's submissions [33].
[101] Magistrates Court ts 18.
[102] Respondent's submissions [34] - [39].
The respondent also submits that, applying the legal principles relevant to the exercise of the discretion to stay a prosecution under s 76 of the CP Act, the prosecution should have been stayed permanently, and therefore no substantial miscarriage of justice arose.[103]
[103] Respondent's submissions [40] - [48].
The appellant submits that the erroneous decision that the Distribution Charges should be dismissed, or that the respondent should be acquitted, led the learned Magistrate to fail to consider the matters he was required to take into account when determining whether to bring an end to the prosecution as a result of inadequate particulars on the basis that there had been an abuse of process. The appellant goes on to identify a number of such factors.[104] It is not necessary to set these out here, or to summarise the respondent's submissions in response.
[104] Appellant's submissions [56] - [61].
Regardless of whether the learned Magistrate did or did not consider whether to stay the prosecution, I do not consider it can be said that the appropriate remedy was to stay the prosecution under s 76 of the CP Act in circumstances where the hearing on 1 December 2022 proceeded on the basis of the error of fact identified. For the reasons previously outlined, I have found that the learned Magistrate erred in fact in concluding that there were further particulars sought by the respondent in relation to the Distribution Charges which had not been answered, and that the prosecution had refused to provide those further particulars. I have also observed that there was a lack of specificity and precision in relation to the request for particulars in relation to the Distribution Charges. In these circumstances, there is no factual foundation to consider a stay of the prosecution of the Distribution Charges on the basis that there has been an abuse of process.

The respondent submits that if a re-trial is ordered, the prosecutor would be, in effect, given an opportunity he did not avail himself at the trial, being to provide particulars when had previously declined to do so.[105] In light of my conclusions as to the error of fact made by the learned Magistrate, I do not accept that permitting the appeal will provide the prosecutor with such an opportunity in relation to the Distribution Charges. Rather, I consider that the appropriate course in all the circumstances is for the appeal to be allowed, and the matter remitted to the Magistrates Court for trial. At this point, if there are further specific particulars sought by the respondent in relation to the Distribution Charges, he will be able to request the same and the prosecution consider its response. To the extent a dispute remains as between the respondent and the prosecution, that can be subject of submissions and a ruling by the presiding magistrate. Further, if the issue of duplicity remains, then this can also be the subject of submissions and a ruling by the presiding magistrate. In allowing the appeal, I am remitting the charges to the point at which they were at in the Magistrates Court when the errors of fact and law were made, to enable the trial to continue according to law.
[105] Respondent's submissions [48].

Conclusion

In light of my above conclusions, I make the following orders:
(1)The appellant is granted leave to appeal.
(2)The appeal is allowed.
(3)The judgments of acquittal entered by Magistrate Roberts on 1 December 2022 in respect of charges JO 12215 of 2020 and JO 12216 of 2020 are set aside.
(4)Charges JO 12215 of 2020 and JO 12216 of 2020 are remitted to the Magistrates Court sitting in Joondalup for trial before a different magistrate.
I will hear further from the parties in relation to the question of the appropriate orders in relation to the question of the costs order made by the learned Magistrate, and the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
23 OCTOBER 2023