SMART -v- CLARKE - [2014] WASC 104

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SMART -v- CLARKE [2014] WASC 104

CORAM: HALL J

HEARD: 18 MARCH 2014

DELIVERED : 18 MARCH 2014

PUBLISHED : 26 MARCH 2014

FILE NO/S: SJA 1156 of 2013

BETWEEN: ANDREW JACOB SMART
Appellant
AND
JASON ALAN CLARKE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 30452 of 2013, PE 30453 of 2013, PE 30454 of 2013, PE 30455 of 2013, PE 30456 of 2013, PE 30457 of 2013

Catchwords:

Criminal law - Appeal against conviction - Threat to harm - Menacing or harassing telephone calls - whether indictable federal charges could be dealt with summarily without consent - Whether consent given - Whether evidence of identity was sufficient - Whether order as to special witnesses properly made or caused prejudice

Legislation:

Criminal Act 1914 (Cth), s 4J

Result:

Appeal against conviction allowed in part

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P D Yovich

Solicitors:

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

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

Herlihy v Crook (Unreported, WASC, Library No 6354; 10 July 1986)
In Re Feldt (1910) 13 WALR 28
Jones v Moffett (Unreported, WASC, Library No 990106, 31 March 1999)
Kiely v Henderson (1989) 19 NSWLR 139; (1989) 47 A Crim R 142
Mattner v The Director of Public Prosecutions (Cth) [2011] SASC 89; (2011) 252 FLR 239
Pepper v The State of Western Australia [2005] WASCA 177
Perry v Nash (1980) 32 ALR 177; (1980) 47 FLR 210
Smith v The Queen (2001) 206 CLR 650; (2001) 125 A Crim R 10
Suresh v The Queen (1998) 72 ALJR 769; (1998) 102 A Crim R 18
Tran v Smith [1999] ACTSC 98

HALL J: This appeal against conviction was heard on 18 March 2014. At the conclusion of the hearing I allowed the appeal in part and said that detailed reasons for my decision would be published in due course.
The appellant was convicted following a trial in the Perth Magistrates Court on 2 and 3 December 2013 of ten charges relating to a series of telephone calls he was alleged to have made between 26 April 2012 and 2 May 2012. The first charge alleged that he had made a threat to unlawfully injure, endanger or harm a person contrary to s 338B(b) of the Criminal Code (WA). The remaining charges each alleged that the appellant had used a carriage service in a way that a reasonable person would regard as being in all the circumstances menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). I will refer to the first charge as the State charge and the others as the federal charges.
At the end of the prosecution case the magistrate found that the appellant had no case to answer in respect of three of the federal charges and those charges were dismissed. At the conclusion of the trial the magistrate found the appellant guilty of the State charge and of five of the six remaining federal charges and not guilty of one of those charges. Sentences of 9 months' imprisonment were imposed in respect of each of the convictions to be served concurrently and those sentences were backdated to commence on the date that the appellant went into custody in respect of these matters on 6 July 2013.

Grounds of appeal

The appellants grounds of appeal, as clarified at a directions hearing, can be summarised as follows:
1.the prosecution evidence was insufficient to establish that the appellant was the person who made the telephone calls;
2.the magistrate took into account inadmissible and prejudicial material in granting special witness applications for the prosecution witnesses;
3.the appellant was denied the right to elect trial by jury in relation to the federal charges; and
4.the appellant was prejudiced because he was told at the start of the trial that the prosecution only had three witnesses available though seven witnesses were ultimately called.
At the hearing of the appeal the appellant raised another issue. He said that there was inconsistency in regard to which telephone calls and witnesses related to which of the charges. He said that confusion in this regard caused him prejudice in the conduct of the trial. I will also deal with that issue in these reasons.

The evidence

In early 2012 the appellant was required to undertake medical tests in connection with an application for employment. The company that made arrangements for this testing was called RediMed. One of the tests was a blood test to detect illicit substances. That test was undertaken by a pathology company which sent the results to RediMed. Those results were then scanned and forwarded to a representative of the respective employer.
Prior to undertaking the blood test the appellant had attended at the offices of RediMed in Belmont. The procedure followed was that applicants for employment who were to undergo pre‑employment medical testing were required to produce proof of identity. Amy Cottom, a receptionist at RediMed, gave evidence that it was her invariable practice to compare photographic identification documents with the person producing them. She would then photocopy the document and ask the applicant to write their current address and telephone number on the photocopy (ts 2/12/13, page 95).
Ms Cottom was shown a photocopy of a drivers licence in the name of the appellant. There was no contest that this was in fact a copy of the actual drivers licence of the appellant. The magistrate noted in his reasons for decision that the photograph appearing on the drivers licence matched the appellant. The photocopy also included handwriting which recorded a mobile telephone number, an address and the name of an employer. Ms Cottom said that the name of the employer was in her handwriting but that the other information was not. On the basis of Ms Cottom's evidence as to the procedure normally followed it was possible to conclude that this information had been written on to the copy by the person who produced the licence and that that person was the appellant.
Evidence from an employee of a telephone company established that the subscriber of the mobile telephone service of the number written on the photocopy was, at the relevant time, the appellant. Call charge records in respect of that service showed that calls had been made to RediMed at times that were consistent with evidence regarding the receipt of threatening or menacing calls by employees of that company.
Ms Emma Raphael, a reception team leader at RediMed, gave evidence that she answered a telephone call at around 2.00 pm on 26 April 2012. She said that the person who called was male and sounded 'pretty annoyed and upset'. She said that the person identified himself as Andrew Smart. Her evidence was that the person said that 'if we don't sort out something to do with his drug test that he would come and put a bullet through our heads' (ts 2/12/13, pages 53 ‑ 54). In cross‑examination Ms Raphael said that whilst she could not remember the precise words used she could remember the anger of the caller and the threat to put a bullet through 'our heads' (ts 59). She said that following this call she sent the appellant's drivers licence details to everyone in the office. There was an instruction that if the appellant called on the office mobile, which was the emergency number and would show the caller number, it was not to be answered.
Ms Emilee West, a receptionist at RediMed, gave evidence that sometime around 2.00 pm on Thursday, 26 April 2012 a call was transferred to her by another receptionist. The caller asked why some results had not been sent to the company that had sent him for a medical. Ms West told the caller that she had scanned the results and sent them. The caller said that there was no way he could have tested positive. Ms West said that all she did was receive the results from the drug testing company and send them off. The caller then said that Ms West had cost him his employment and that he had just come out of gaol and was ready to kill somebody. He said that he had a proven history of violence. Ms West said that she would not tolerate being spoken to in that way and that if he had any further questions he would need to speak to the company that had sent him in for tests. The caller said that he had just got out of gaol for killing somebody and he was not afraid to kill somebody again. He then abused Ms West and she hung up. She said that she was very rattled by this call and that it was 'pretty scary'. She could not remember whether the man had given his name, however she had been told that it was Andrew Smart by the transferring receptionist.
Ms Dorothy Styants, another receptionist at RediMed, gave evidence that on the afternoon of 26 April 2012 she answered a call from a man who identified himself as Andrew Smart. The caller said that if they did not 'sort this shit out I will be coming down there and you don't what that to happen'. Ms Styants then hung up. Some days later she received another call from the same person. The caller requested to speak to the manager and was told that she was not available. On this occasion the call was received on the office mobile and Ms Styants recognised the caller number as that of the appellant. On this occasion the caller said that RediMed had provided false test results and needed to 'sort this shit out'. Ms Styants said that in the following days she received further calls from the same person but could not recall exactly what was said. She said that by that time she had become quite familiar with his voice and would just hang up.
In addition to the evidence referred to above, Ms Cottom gave evidence that she had also received a telephone call on 26 April 2012. She said that she asked the caller if he would mind holding because she had to deal with something else. She said that the caller said, 'No, I fucking won't hold. Or I'm going to come down there'. She then terminated the call. She said that the caller did not identify himself by name but it was definitely a male voice.
Ms Chiedza Manyere, another receptionist at RediMed, gave evidence that she also received a telephone call on the afternoon of 26 April 2012. She said that the caller said, 'Stop fucking around with me. I'm going to come down there right now'. She then said, 'Excuse me?' and the caller said, 'You fucking put a positive result - you put a fucking positive result on my medicals'. She then hung up.
Ms Kelly Cassidy, another receptionist at RediMed, gave evidence that on the afternoon of 26 April 2012 she answered a call made on the office emergency mobile telephone. The caller identified himself as Andrew Smart. When she asked whether it was an emergency the caller said, 'It will be if you don't sort this out'. She then told the caller that he should contact the general number and he then replied that it would be an emergency if she did not get 'this fucking positive' off his result. After terminating the call Ms Cassidy then answered a call on the general number. She could tell from the tone of voice that it was the same person and he again identified himself as Andrew Smart. She said that the caller was quite aggressive. Because he said it was to do with pre‑employment medical tests she transferred the call to Ms West who worked in that area. On a subsequent day Ms Cassidy received another call from the same person who asked to speak to the manager. When told the manager was not available the caller said, 'Where the fuck is she?' and then hung up.

Submissions on 'No Case to Answer'

At the conclusion of the prosecution case the magistrate asked for clarification as to which evidence related to which of the charges. The prosecutor confirmed, as he had stated in opening, that the evidence of the call made to Ms Raphael related to the State charge. As to the federal charges, five alleged offences on 26 April 2012, one alleged an offence on 30 April 2012 and three alleged offences on 2 May 2012. The particularisation of which calls on 26 April 2012 related to which of the charges on that date differed in some respects from what had been said by the prosecutor in opening. As regards the three charges relating to 2 May 2012 the prosecutor said that these charges did not relate to any of the specific calls referred to by the witnesses but rather were calls shown to have been made on that date in the call charge records. The prosecution case in respect of these charges was that the mere fact of such calls being made in the context of the previous calls constituted use of a carriage service in a way that was harassing.
The magistrate noted that the call charge records showed that there were ten calls made on 2 May 2012. He said that there was insufficient information to determine which of those calls were said to be the subject of the charges relating to that day. He said that, more importantly, there was no evidence as to the content of those calls and that there was insufficient evidence to conclude that any of them were answered. His Honour concluded that the appellant had no case to answer in respect of these three charges and dismissed them.
The appellant did not give evidence.

Consent to the charges being dealt with summarily

At the conclusion of the hearing the magistrate reserved his decision. Proceedings resumed on 5 December 2013. Before delivering his decision his Honour said that he wished to raise an issue regarding whether the appellant had consented to the federal charges being dealt with summarily.
The following exchange occurred:
HIS HONOUR: There's an issue that I want to raise before I give my decision, and that is this: Although this may have been done at a point when I wasn't in attendance when Mr Smart appeared, it seems to me that pursuant to the Crimes Act the charges - the Commonwealth charges, in which there are nine, are indictable charges which can be dealt with summarily - - -
PROSECUTOR: Subject to election.
HIS HONOUR: Subjection to election, and I don't recall there ever having been an election by anybody.
PROSECUTOR: Yes.
HIS HONOUR: So that is in relation to the - including the three that I dismissed.
PROSECUTOR: Yes.
HIS HONOUR: Now, it seems to me, and I'm going to ask the parties whether they consented to me dealing with those, it seems to me that if one of the parties doesn't consent then - - -
PROSECUTOR: These proceedings are a nullity.
HIS HONOUR: All right. Well, I will just give my decision on the first charge, which is the Criminal Code matter.
PROSECUTOR: Yes. Yes.
HIS HONOUR: And, of course, that would reengage the - (indistinct) case - three of them - they would be back in because I don't have power to do that.
PROSECUTOR: You don't have to power to do that.
HIS HONOUR: Well, it seems to me that, and your client has been in custody, but it is a matter for you, but I will ask each of the parties whether they consent to me dealing with the matter, bearing in mind that whatever happens I would give my decision - - -
DAVIES, MR: Yes.
HIS HONOUR: - - - on the threat, which is the State charge. Firstly, does the Commonwealth - does the State prosecution consent to me dealing with the matter?
PROSECUTOR: We do consent to you dealing with the matter.
HIS HONOUR: Thank you.
DAVIES, MR: May I take instructions, your Honour?
HIS HONOUR: Yes.
DAVIES, MR: I may be a moment.
HIS HONOUR: Yes. I will adjourn if you wish me to.
DAVIES, MR: I think that would be preferable. And I will - - -
HIS HONOUR: And it only relates to the last nine charges, and it includes the three that I just dismissed (ts 5/12/13, pages 2 - 3).
The reference by the magistrate to the three charges that he had just dismissed was a reference to the charges relating to 2 May 2012 in respect of which he had found the appellant had no case to answer. The implication was that if the appellant did not consent to summary jurisdiction and the proceedings were a nullity, then the decision to dismiss those three charges would also be nullified.
There was a short adjournment to enable the appellant's counsel to obtain instructions. On resumption the following exchange occurred:
DAVIES, MR: At this late stage by consent we're being committed - - -
HIS HONOUR: The election may have been done before, but without listening to all of the transcripts each time that he appeared - - -
DAVIES, MR: Exactly.
HIS HONOUR: - - - I can't be certain. It is not recorded on the complaint and that is why I raised it.
DAVIES, MR: Well, I'm instructed to waive any - - -
ACCUSED: My recollection is it has never been offered - - -
HIS HONOUR: Well.
ACCUSED: - - - and it has never been - any of the legal advice that was ever possible prior to engaging - - -
HIS HONOUR: Well - - -
ACCUSED: - - - Mr Davies.
HIS HONOUR: I tend to accept that that is the position, because these were substitute charges for other charges.
PROSECUTOR: It is my understanding, Sir, that no election was ever sought.
HIS HONOUR: And that that was never - a matter that was raised.
DAVIES, MR: So what I am instructed to do, therefore, is to place on the transcript the waiver of any defect in the proceedings - - -
HIS HONOUR: Yes.
DAVIES, MR: - - - so that they can - - -
HIS HONOUR: Yes.
DAVIES, MR: - - - economically and reasonably continue. But I am also instructed to say that duress of circumstance is essentially forcing the client's hand in this regard. He has been in jail for that long, and if he doesn't have a prospect of getting out of jail, he is going to start losing his personal possessions and his life outside of prison and he is concerned about that. But having said that, he makes an informed consent to the waiver that I have now put on the transcript. (Indistinct) (ts 5/12/13, pages 3 ‑ 4).

Magistrate's Reasons

The magistrate then gave reasons for his decision. After summarising the evidence his Honour turned to the question of identity. In this regard he said that the prosecution had proven beyond reasonable doubt that the accused was the person who had attended RediMed for a pre‑employment check in April 2012 and was the person registered as the owner of the Vodaphone telephone number relating to the call charge records. He noted that the name of the accused on the prosecution notice was Andrew Jacob Smart, with same date of birth as the drivers licence and that he had answered to that name when appearing in court for the hearing of the matter. He also noted that the photograph on the drivers licence bore 'an identical resemblance' to the appellant in court. He noted that Ms Cottom's evidence was that she would have checked that the photograph matched the person who presented the drivers licence. He also noted that the address written on the photocopy matched the address of the subscriber in the telephone records. He concluded that the only reasonable inference that could be drawn was that the appellant was the person who had presented at RediMed for pre‑employment medical checks and had given the name Andrew Jacob Smart. He also concluded that the appellant was the subscriber of the mobile telephone that was used to make calls to RediMed between 26 April 2012 and 4 May 2012.
As to the individual calls, his Honour accepted the evidence of Ms Raphael that the caller she spoke to identified himself as Andrew Smart. The making of such a call from the appellant's mobile telephone number was confirmed by the call charge records. He concluded that the appellant was the caller and accepted the evidence of Ms Raphael as to what was said. He found that the circumstances in which the words were said and the manner in which they were said constituted a serious threat which was not authorised, justified or excused by law. Any dispute as to the correctness of the test results did not justify the appellant making a threat of this type. The threat was clearly one to injure, endanger or harm. In these circumstances he found that the State charge was proven.

In regard to the federal charges the magistrate was satisfied beyond reasonable doubt that the appellant was the person who had made each of the calls. In coming to that conclusion he noted that even where the caller did not identify himself the content of the calls indicated that the caller was the appellant. This conclusion was reinforced by the call charge records. He also accepted the evidence of the witnesses as to what was said. In respect of all but one of these calls he accepted that the content fitted the definition of menacing. The exception was the later call referred to by Ms Cassidy and which his Honour took to be that which was particularised as having occurred on 30 April 2012. This was the call in which the appellant had asked to speak to the manager and when told that she was unavailable had responded, 'Where the fuck is she?'. His Honour was not satisfied beyond reasonable doubt that those words were menacing, harassing or offensive. Nor was he satisfied that the words were intended by the appellant to be menacing, harassing or offensive or that he was reckless as to that fact. Accordingly, the appellant was acquitted of the federal charge alleged to have occurred on 30 April 2012 and convicted of the five federal charges relating to 26 April 2012.

Ground 3 - Consent to summary jurisdiction

It is convenient to commence with ground 3. That ground relates only to the federal charges. There is no suggestion that consent of the appellant was required in order for the State charge to be dealt with summarily. Consent to deal with that charge was not required: s 5 and s 338B(b) of the Criminal Code (WA). However, the disposition of federal charges is governed by different statutory provisions.
Each of the federal charges alleged an offence under s 474.17(1) of the Criminal Code Act 1995. That subsection provides as follows:
(1)A person is guilty of an offence if:
(a)the person uses a carriage service; and
(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty:Imprisonment for 3 years.
Section 4G of the Crimes Act 1914 (Cth) provides that offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences unless the contrary intention appears. No contrary intention appears in respect of the offence provided for by s 474.17(1), accordingly that offence is an indictable offence.
Section 4J and s 4JA of the Crimes Act provide for indictable offences to be heard and determined by a court of summary jurisdiction in some circumstances. Section 4JA deals with offences that are punishable by a fine only and is not relevant here. Section 4J deals with indictable offences that are punishable for a period not exceeding 10 years and is the relevant provision in this case. Section 4J provides as follows:
Certain indictable offences may be dealt with summarily
(1)Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2)Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3)Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a)where the offence is punishable by imprisonment for a period not exceeding 5 years - a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b)where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4)A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5)Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6)A court of summary jurisdiction shall not impose under subsection (3) or (5):
(a)a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;
(b)a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or
(c)both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7)This section does not apply to an offence against:
(a)section 24AA or 24AB or subsection 79(2) or (5) of this Act; or
(b)Division 80 or section 91.1 of the Criminal Code.
As to s 4J(1), there is no 'contrary intention' in respect of s 474.17 that s 4J does not apply. Nor is there any other provision permitting such an offence to be dealt with summarily. Accordingly, the federal charges in this case could only be dealt with summarily pursuant to s 4J.
The question is whether the consent of the prosecutor and the defendant are prerequisites for the exercise of summary jurisdiction in a case such as the present. The use of the permissive word 'may' strongly suggests that consent is a prerequisite. That consent is required for a case to be 'heard and determined' indicates that the consent must be given before any evidence is led. Those conclusions are supported by Perry v Nash (1980) 32 ALR 177; (1980) 47 FLR 210.
In Perry v Nash the defendant had been charged with the indictable offence of conspiring to commit an offence against a law of the Commonwealth; namely an offence against the Customs Act 1901 (Cth) involving the exportation of native birds. At that time the relevant provision of the Crimes Act dealing with the summary disposition of indictable offences was s 12A. That section contained words that were materially the same as those in s 4J(1). No consent of the defendant was given but a hearing was commenced and continued for six days before being adjourned part‑heard. During the hearing the magistrate had excluded some of the prosecution evidence. Proceedings were then commenced by the prosecution in the New South Wales Supreme Court seeking to challenge these rulings. An issue was raised as to the nature of the proceedings in the Magistrates Court. In that regard McLelland J said:
Since no consent under s 12A(1) of the Crimes Act was given before the taking of evidence commenced, the hearing before the magistrate must, in the case of each of the accused defendants, be taken to be of the nature of committal proceedings in respect of an indictable offence under Pt IV of the Justices Act. A necessary requirement of a summary hearing pursuant to s 12A(1) would be that a plea be taken under s 78 of the Justices Act before the hearing of the evidence commenced and, consequently, the character of the hearing which commenced before the first defendant on 12th May, 1980, cannot now be altered, notwithstanding a suggestion to the contrary at one stage made on behalf of the plaintiffs during the proceedings before me (179).
It should be noted that the option of treating the proceedings in this case as committal proceedings is not open as preliminary hearings have been abolished in Western Australia. In any event, that option was only available in Perry v Nash because the proceedings in that case had not been completed. In the present case the proceedings were concluded, the magistrate found a number of the charges proven and the appellant was sentenced in respect of them. The proceedings here could only be a summary hearing. The question is whether it was open to conduct such a summary hearing in the absence of consent by the appellant.
In Tran v Smith [1999] ACTSC 98 the appellant had been charged with two offences, one indictable and one summary. Under the relevant law of the Australian Capital Territory the indictable offence could only be dealt with summarily with consent. A concurrent hearing of the two charges had been conducted by a magistrate. There was a question as to whether that hearing was irregular. The irregularity, however, did not relate to the issue of consent. Rather, the question was whether committal proceedings in respect of the indictable offence could be held concurrently with a summary hearing for the summary offence. Reference was made to whether consent to summary jurisdiction on the indictable charge could be made at a time later than the commencement of evidence. Whilst Crispen J considered that this course was open and that Perry v Nash was of doubtful authority, his comments were in the context of a jurisdiction where committal proceedings still existed. Thus the question was not whether the magistrate had a power to conduct a hearing but whether the hearing was to be characterised as a summary hearing or a preliminary hearing. For the reasons I referred to earlier that consideration is not relevant here.
There was reference in Tran v Smith to Kiely v Henderson (1989) 19 NSWLR 139; (1989) 47 A Crim R 142 being authority for the proposition that, contrary to Perry v Nash, consent to summary jurisdiction could be given at some time later than before the commencement of evidence. In fact Kiely v Henderson involved a very different set of circumstances. In that case a hearing had been conducted but no plea taken from the accused until after the prosecution witnesses had been called. At that stage the magistrate told the accused that his case could be dealt with in a higher court or by the magistrate with the accused's consent. The accused did give his consent and then entered a plea of not guilty. At the conclusion of the case the magistrate found the accused guilty and proceeded to hear sentencing submissions. On hearing that the accused had been previously convicted for a similar offence the magistrate decided that it was inappropriate to deal summarily with the matter and committed the accused for trial in a higher court. The issue in Kiely v Henderson was not whether the consent to summary jurisdiction had been effectively given but whether it was open to the magistrate to change his mind regarding whether to exercise summary jurisdiction. In any event, this was another case where the significance of the timing of consent was influenced by the fact that the calling of prosecution witnesses could have been justified in any event on the basis that the proceedings were committal proceedings.
A case that is more analogous to the present case is Mattner v The Director of Public Prosecutions (Cth) [2011] SASC 89; (2011) 252 FLR 239. In that case the appellant was also charged with a number of offences contrary to s 474.17(1) of the Criminal Code (Cth). She had been served with a notice by the Commonwealth Director of Public Prosecutions (CDPP) indicating the content of s 4J of the Crimes Act and stating that the CDPP consented to the matter being heard and determined by a court of summary jurisdiction. However, the appellant had never been asked whether she consented to the charges being dealt with summarily. At the time the appellant received the notice from the CDPP she was unrepresented. The provision of notices in those circumstances was held to be insufficient to convey to the appellant that she too had a choice in the matter. An argument was raised by the respondent that the appellant had, by her conduct throughout the proceedings, consented to the summary determination of the matter. In that regard, Kelly J said:
Ordinarily, where a defendant is represented, consent to summary determination might well be implied by the receipt of correspondence of the kind referred to in these proceedings. However the matter was complicated by the fact that those solicitors withdrew from the matter very shortly after that correspondence, and at the date when the applicant was served with the information which proceeded to trial and the accompanying documentation, she was unrepresented and remained unrepresented throughout [55].
The correspondence referred to indicated that the appellant sought an expeditious resolution of the matter and requested that the charges be prosecuted without delay.
The appeal against conviction in Mattner was allowed on the ground that summary determination of the matter had not been consented to by the appellant. Kelly J said in this regard:
This is not a minor matter. A defendant's right to a trial by jury is a fundamental right unless that person consents to summary disposition. It is a right that the applicant ought to have been advised about. There is no evidence before me which indicates that she ever was informed about that right, other than by the sending of the notice by the Commonwealth Director that the prosecution consented to the summary determination of the matter.
It is instructive to note that prior to the amendments that introduced the procedure for dealing with State charges under s 5 of the Criminal Code it was necessary for some State indictable charges to be the subject of an election by an accused person before they could be dealt with summarily. Whilst the former statutory provisions in that regard no longer apply, they were similar to s 4J. In respect of those former provisions McKechnie J held in Jones v Moffett (Unreported, WASC, Library No 990106, 31 March 1999) that where the defendant did not elect summary trial further proceedings before a summary court were a nullity. Other decisions to similar effect are In Re Feldt (1910) 13 WALR 28 and Herlihy v Crook (Unreported, WASC, Library No 6354; 10 July 1986).
In Pepper v The State of Western Australia [2005] WASCA 177 Roberts‑Smith JA said that those cases turned on the defendant's fundamental right to be tried by jury for an indictable offence. He described the procedural requirement that the defendant elect summary disposition as 'no mere formality' as it was a waiver of a fundamental right and so had to be complied with strictly. His Honour said that the election of the defendant in those cases was a condition precedent to the exercise of jurisdiction by the summary court.
In the present case the procedural history of the charges was complicated. The appellant had originally be charged with differently framed offences. The original charges were discontinued and replaced. There were a number of mentions before different magistrates before the matter came on for hearing. There is no record on the Magistrates Court records to indicate that the appellant ever consented to summary jurisdiction prior to the matter being raised by the magistrate on 5 December 2013. The transcript of what occurred on that day indicates that the prosecution accepted that there had been no consent given. It would appear that the matter was simply overlooked. It is likely that it was assumed by the magistrate and the lawyers who appeared at the hearing that this was a matter that would have been attended to at an earlier mention.
Unlike Mattner there is no suggestion that the appellant was ever given a notice setting out the terms of s 4J. Whilst the appellant was represented at the hearing, he had not been represented at all previous mentions. The respondent conceded that it might reasonably have been presumed by defence counsel that consent had been given prior to the hearing. Thus the fact that the appellant was represented at the hearing could not be taken to imply that the appellant was aware of his rights and had consented to summary disposition.
The consent of the appellant was required before the Magistrates Court proceeded to hear and determine the federal charges. Section 4J(1) requires that consent be given before the charges are heard and determined. This necessitates that consent to be given before any evidence is adduced. No such consent had been expressly given and it could not be implied in the circumstances.
The consent given on 5 December 2013 could not operate retrospectively. In any event, it is clear from the transcript that the consent given at that stage was given begrudgingly and in light of the circumstances that then existed. The appellant was in an invidious position. The hearing was effectively complete and he had been in custody awaiting trial for several months. In my view, it was not open to obtain consent to summary disposition at that stage. In any event, it is doubtful that the consent was freely given.
The appellant had a right to have the charges dealt with on indictment and could exercise that right by withholding his consent to summary disposition. The obtaining of his consent was no mere formality. That consent was a condition precedent to the exercise of jurisdiction by the Magistrates Court to hear and determine the charges. In those circumstances this ground of appeal must succeed.

Ground 1 - The sufficiency of the identification evidence

Given that ground 3 has succeeded it might be thought that it is only necessary to consider the other grounds insofar as they relate to the State charge. That, however, needs to be viewed in the light of the fact that the prosecution case was presented on the basis that the appellant had engaged in a course of conduct over a short period of time and that the evidence in respect of each of the telephone calls was cross‑admissible. Accordingly, it is appropriate to consider the sufficiency of the evidence in relation to identity having regard to the whole of the evidence.
The evidence was that in three of the telephone calls the caller had identified himself as Andrew Smart and had complained of a false positive drug screening result, attributing responsibility for that result to RediMed. There was evidence that RediMed had performed such a test for a man who identified himself as Andrew Jacob Smart and had provided photographic identification, an address and telephone details. The witness who had copied the drivers licence gave evidence that it was her invariable practice to compare the photograph with the person producing it.
Whilst no witness directly identified the appellant as the person who produced the drivers licence, the magistrate was entitled to compare the appearance of the appellant with the photograph to see if he was satisfied that they were the same person: Smith v The Queen (2001) 206 CLR 650; (2001) 125 A Crim R 10. The magistrate did that and recorded his finding in his reasons.
On the evidence there was an irresistible inference that the person who produced the drivers licence and made the telephone calls was the appellant. The magistrate was entitled to reject the possibility that another Andrew Jacob Smart or someone pretending to be him had presented at RediMed and made the telephone calls as not being reasonably open.
This ground of appeal had no reasonable prospect of success and leave in respect of it was refused.

Ground 2 - Special witnesses

At the start of the trial the prosecution sought orders declaring that each of the RediMed witnesses was a special witness pursuant to s 106R of the Evidence Act 1906 (WA). The appellant, who at that stage was representing himself, opposed the applications.
In support of the applications the prosecution produced an affidavit of a police officer that annexed printed copies of Facebook entries attributed to the appellant. These related to contact with a relative of one of the witnesses and were said to be of such a nature as to cause the witnesses to fear for their safety and be unable to give their evidence satisfactorily unless they did so remotely.

The magistrate read the affidavit and heard submissions in opposition to the applications. In allowing the applications his Honour made it clear he was not making a determination beyond reasonable doubt about whether the appellant was responsible for any of the material. There was no suggestion that that material was taken into account in determining the charges. Nor was there any suggestion of any adverse inference being drawn against the appellant due to the fact that the witnesses would be treated as special witnesses.
The appellant contended that he was prejudiced by the witnesses giving their evidence by way of CCTV, because the magistrate was limited in his ability to judge the demeanour of the witnesses. This is merely an assertion on the part of the appellant. The use of CCTV and video links is now a common procedure in criminal courts. The quality of the sound and vision is such that there is generally no impediment to judging the demeanour of a witness. The appellant pointed to no specific instance where the process had been deficient or caused him prejudice.
In my view, the magistrate made no error of law or fact in allowing the applications. No miscarriage of justice arose because of his Honour's decision. This ground had no reasonable prospect of success and leave in respect of it was refused.

Ground 4 - Failure to adjourn

At the outset of the trial the prosecution sought an adjournment on the basis that four of the prosecution witnesses had not been served with a witness summons and were believed to be not available on that day. The appellant submits that he opposed the adjournment on the basis that the prosecution would be unable to call all of its witnesses.
It would seem that the appellant hoped that by opposing an adjournment the prosecution would be deprived of some of its witnesses and that some of the charges would fail. His hopes in that regard were disappointed, but that does not mean that the trial was unfair or that he suffered prejudice. In any event, the prosecution position was that although not all of the witnesses had been summoned efforts were continuing and 'they should be available if they can be found' (ts 2/12/13 page 5).
The appellant made no application to adjourn the trial when it became apparent that some of the witnesses who had not been summoned were available. The implication of this ground is that the magistrate should have adjourned the trial of his own volition. Any such contention is simply wrong.
In the circumstances, it is difficult to see how a continuation of the trial could have been unfair to the appellant. Indeed, had an adjournment been granted the prosecution may well have been able to secure the attendance of the witnesses it did call as well as others it could not. The appellant could easily have ended up facing a stronger case.
The appellant opposed the adjournment for good forensic reasons. He cannot now complain that the outcome was not as he hoped: Suresh v The Queen (1998) 72 ALJR 769; (1998) 102 A Crim R 18. This ground of appeal had no reasonable prospect of success and leave in respect of it was refused.

Particularisation

As I noted earlier there was some inconsistencies between the way in which the case was opened by the prosecutor and submissions made at the end of the prosecution case regarding which telephone calls and witnesses related to which of the charges. However, this inconsistency did not affect the State charge. The prosecution case at trial was always that that charge related to the call answered by Ms Raphael.
As to the other five charges those convictions will be set aside in any event as the result of the success of ground 3. However, it should be noted that any inconsistency in regards to these five charges was immaterial. Each of the five charges was identically worded and related to the same date and place. This was not a case where the prosecution case in respect of those five charges materially changed. There was simply a difference as to which of the charges could be attributed to which of the telephone calls. The difference caused no prejudice to the accused.

Conclusion

At the hearing of the appeal I granted leave to appeal in respect of ground 3 and allowed the appeal against conviction in respect of the federal charges. The appeal against conviction in respect of the State charge was dismissed.
I considered whether, pursuant to s 41(2) of the Criminal Appeals Act 2004 (WA), the sentence on the State charge should be varied bearing in mind that the individual sentences had no doubt taken into account the whole course of conduct. This was reflected in the fact that the magistrate had imposed 9 months' imprisonment on each charge and ordered that they all be served concurrently. However, it is important to take into account that in respect of the sentences imposed on the federal charges the magistrate did not set any release date under the Crimes Act and expressed the view that the full term should be served. Those sentences having been set aside, the remaining sentence of 9 months on the State charge is one that carries with it the possibility of parole. Having regard to that fact, the seriousness of the State charge when viewed in context, the significance of general and personal deterrence and the importance of incorporating an element of community protection, I was satisfied that the sentence imposed on the threat charge was appropriate and should not be varied.
The orders made were as follows:
1.Leave to appeal granted in respect of ground 3.
2.The appeal against conviction allowed on charges 30453 to 30457.
3.The appeal against conviction dismissed on charge 30452.
4.The convictions and sentences imposed on 30453 to 30457 be set aside.
5.Charges 30453 to 30457 be remitted to the Magistrates Court to be determined according to law.