Sprlyan v Wyborn
[2019] WASC 227
•2 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SPRLYAN -v- WYBORN [2019] WASC 227
CORAM: JENKINS J
HEARD: 20 MARCH 2019
DELIVERED : 2 JULY 2019
FILE NO/S: SJA 1078 of 2018
BETWEEN: PAUL ANTHONY SPRLYAN
Appellant
AND
BRUCE ALLAN WYBORN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P G MALONE
MAGISTRATE S R MALLEY
File Number : FR 1654/2017
FR 1655/2017
FR 1656/2017
FR 1657/2017
Catchwords:
Criminal law - Appeal against conviction - Failure to comply with the requirements of a member of the police force - Failure to comply with a requirement to provide a sample of oral fluid for drug testing - Possession of a prohibited drug - Possession of drug paraphernalia - Validity of legislation - Claim of right defence - Alleged bias - Procedural fairness - Validity of prosecution notice
Legislation:
Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA)
Australia Act 1986 (Cth)
Constitution Act 1889 (WA)
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Code Act 1995 (Cth)
Criminal Investigation (Identifying People) Act 2002 (WA)
Criminal Procedure Act 2004 (WA)
Judiciary Act 1903 (Cth)
Magistrates Court (General Rules) 2005 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic Act 1974 (WA)
Royal Style and Titles Act 1973 (Cth)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Applications in the appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms Z J Bush |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Blenkinsop v Wilson [2019] WASC 77
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fantakis v NSW Commissioner of Police [2013] NSWSC 1333
Gamage v The State of Western Australia [2008] WASCA 49
Glew v Shire of Greenough [2006] WASCA 260
Harwood v The State of Western Australia [2016] WASCA 8
Hedley v Spivey [2012] WASCA 116
Hopes v Australian Securities and Investments Commission [2016] WASC 198
Hopes v Australian Securities and Investments Commission [2017] WASCA 108
Hoskins v Van Den‑Braak (1998) 43 NSWLR 290
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lohe v Gunter [2003] QSC 150
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Mills v Hendriksen [2008] WASC 79; (2008) 184 A Crim R 212
Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Piccinin v Deputy Commission of Taxation [2002] FCAFC 282
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Glew; Ex Parte the Hon Michael Mischin MLC, Attorney General (WA) [2014] WASC 107
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Roche v Douglas [2000] WASC 146
Sharples v Arnison [2001] QCA 518; [2002] 2 Qd R 444
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231
Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Tey v Plotz [2010] WASC 163
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Contents
Introduction
My approach
Summary of result
Grounds of appeal
Application for an extension of time
Determination of the extension of time application
Applications in the appeal
The first application
The second application
The disclosure addendum
The charges
Statutory framework
Procedural history
Pre‑trial decisions of Magistrate Malone
Right to appeal the decisions of Magistrate Malone
The trial before Magistrate Malley
Summary of the prosecution case
Detailed summary of the trial
Defence case
Appellant's closing address
Decision of Magistrate Malley
Grounds of appeal
Category 1: Evidence of presumption
Merits of the ground of appeal
Category 2: Claim of right defence
The law
The appellant's argument
Merits of the ground of appeal
Category 3: Procedural fairness
The law
The appellant's arguments and their merits
Category 4: Bias
The appellant's arguments
Direct or indirect relationship
Category 5: Validity of the prosecution notice
Whether the decision is appealable
The law
Merits of the ground of appeal
Applications in the appeal
The special case hearing application
Contention 1
Contentions 2 and 3
Contention 4
Disclosure application and the disclosure addendum
Merits of the appellant's argument
Conclusion
Costs
Introduction
This is an application for leave to appeal from the decisions of two magistrates sitting in the Magistrates Court at Fremantle on 16 March 2018, 13 April 2018 and 27 April 2018.[1]
[1] These are dates of decisions the subject of the appeal but the grounds of appeal also complain of events during hearings on 1 December 2017 (ground 4) and 27 December 2018 (ground 9). The reference to 27 December 2018(ground 9) appears to be a typographical error and the intention was to refer to 1 December 2017.
The appeal is against convictions imposed for the offences of failing to comply with the requirements made by a member of the police force, failing to comply with the requirement to provide a sample of oral fluid for drug testing, possession of a prohibited drug, and possession of drug paraphernalia.
On 10 August 2018 McGrath J ordered that the appellant's application for an extension of time and for leave to appeal be heard together with the appeal.
At the hearing on 20 March 2019 I heard the application for an extension of time, the application for leave to appeal and the two applications in the appeal. Correspondence from a court's listing officer to the parties had stated that only those applications would be heard on that date. In reliance on the correspondence the appellant advised me that he was not in a position to proceed with the hearing of the appeal.
My approach
This judgment is structured in the following manner:
(1)Summary of the result of the application for leave to appeal and identification of the appellant's proposed grounds of appeal, the extension of time application, the applications in the appeal and the disclosure addendum.
(2)Description of the charges, the statutory framework of the charges, the procedural history of the charges and summaries of the allegations and evidence relating to the charges.
(3)Assessment of the merits of the grounds of appeal.
(4)Assessment of the merits of the two applications in the appeal.
(5)Determination as to costs.
Summary of result
At the hearing on 20 March 2019 I granted the appellant an extension of time within which to appeal. In order for the appeal to proceed to a hearing, the appellant requires leave to appeal on each ground of the appeal. If a ground of appeal has reasonable prospects of succeeding, I ought to grant leave to appeal on that ground.
For the reasons that follow, I have decided that none of the proposed grounds of appeal against any decision identified in the notice of appeal have a reasonable prospect of success.
The applications in the appeal should only be granted if a ground of appeal to which they relate has reasonable prospects of success.
Therefore I refuse to grant the two applications in the appeal, refuse leave to appeal on each proposed ground of appeal and dismiss the appeal.
Grounds of appeal
The appeal notice states that it is against the convictions identified above. It then refers to three other decisions made during the course of the prosecution of those charges. The decisions are the denial of:
(1)The appellant's applications to overturn the cancellation of summonses and to reissue summonses (16 March 2018).
(2)The appellant's application for dismissal of the charges for want of prosecution (13 April 2018).
(3)The appellant's application to stay the prosecution permanently (13 April 2018).
Magistrate Malley presided over the trial of the charges on 27 April 2018. Magistrate Malone presided on the other dates referred to in the appeal notice.
The appellant has then set out three proposed grounds of appeal which are that the court of summary jurisdiction made an error of law or fact, or of both law and fact in that:
1.(a) Magistrates Malone and Malley, each on their occasion, failed to have the prosecution address the evidence of presumption served upon the court and the prosecution, in the form of official Commonwealth FOI Findings[2] and accompanying certificates; and
(b)Magistrates Malone and Malley, each on their occasion failed to observe the evidence of presumption, Commonwealth FOI Findings in the negative, by applying the rules of the law of presumption; and
(c)Magistrates Malone and Malley, each of their occasion, failed to acknowledge and apply the shift of the burden of proof upon the prosecution to provide evidence to negate the evidence of presumption served and entered as evidence as per the law; and
(d)Magistrates Malone and Malley, each on their occasion, failed to uphold the evidence of presumption absent evidence adduced to the contrary.
(e)Magistrates Malone and Malley, each on their occasion, obstructed and prevented the laying of grounds for the question of jurisdiction, of presenting evidence and making the case for the question of jurisdiction.
2.On April 27 2018, Magistrate Malley failed to observe the appellant's claim of right defence and the law thereto.
3.During the hearing on April 27 2018 Magistrate Malley failed to have the prosecution disprove the appellant's belief in his claim of right to defence.
[2] It appears that the 'FOI Findings' referred to by the appellant are copies of documents in the appellant's possession obtained by him or others under the Freedom of Information Act 1982 (Cth).
The appeal notice sets out a further 11 proposed grounds of appeal which allege that the court of summary jurisdiction acted without or in excess of jurisdiction in that:
4.Magistrate Malone during hearings on 1 December 2017, March 16 2018 and April 13 2018 breached the procedural fairness rules namely the hearing rule and showed real and perceived bias against the appellant.
5.On March 16 2018, Magistrate Malone failed to give the appellant adequate or reasonable opportunity to review and make response to the Magistrate's draft reasons, breaching the procedural fairness rules.
6.On April 13 2018, Magistrate Malone failed to give appellant adequate or reasonable opportunity to review and make response to the Magistrate's draft document for reasons, breaching the procedural fairness rules.
7.On April 13 2018 Magistrate Malone denied the appellants request for adjournment of the application hearing to allow adequate and reasonable time to review the reasons document, breaching the procedural fairness rules.
8.On April 13 2018 Magistrate Malone, having stood the matter down for the specific purpose of allowing the appellant to review his reasons document and make response, upon reconvening the court, denied the appellant the right to be heard and make response to said reasons by closing the court immediately without allowing the appellant to respond to the reasons draft or present his case for the application, breaching the procedural fairness rules.
9.On December 27 2018,[3] Magistrate Malone treated the appellant as a stereotype and/or made false assumptions about the appellant, based on what the Magistrate believed most people from the appellant's group value, or based on how he believed most people from the appellant's group behave, breaching the procedural fairness rules.
10.On April 27 2018, Magistrate Malley treated the appellant as a stereotype and/or made false assumptions about the appellant, based on what the Magistrate believed most people from the appellant's group value, or based on how he believed most people from the appellant's group behave, breaching the procedural fairness rules.
11.On April 27 2018, Magistrate Malley threatened the appellant on several occasions with removal from court for pursuing questioning the appellant believed paramount to the appellant's defence, citing Criminal Procedure Act 2004 - Sect 140, but failed to state lawful reasons for said threats, failing to allow the appellant to exercise his right to defend the charges.
12.On April 27 2018, Magistrate Malley, on several occasions, denied the appellant the right to make specific questions paramount to the appellant's defence with regard to his property, on each occasion raising Criminal Procedure Act 2004 -Sect 140.
13.On April 27 2018, Magistrate Malley defended a prosecution witness showing real and perceived bias towards the prosecution.
14.On April 27 2018, Magistrate Malley demonstrated several instances of pre‑determining the outcome of the hearing, breaching the procedural fairness rules.
[3] I believe that the Appellant intended to refer to 1 December 2017.
At the hearing on 20 March 2019 and with respondent's consent, I permitted the appellant to add a fifteenth ground of appeal in the following terms:
Magistrate Malone erred in not allowing the appellant to make submissions on the validity of the prosecution notice when, (1) the prosecution notice served on the appellant was devoid of the signature of the prosecutor; (2) it named WA Police as the prosecutor without also containing a signature of the prosecutor; and (3) it was not a copy of the electronically created prosecution notice, contrary to the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 and the Criminal Procedure Act 2004 (WA).
The appellant is not legally represented. His proposed grounds of appeal are not expressed in the clear manner which would be expected if they were drafted by a lawyer.
The appellant's grounds of appeal appear to relate to the following five areas of grievance:
(1)Evidence of presumption - grounds 1(a) - (e).
(2)Claim of right defence - grounds 2 and 3.
(3)Procedural fairness - grounds 1(e), 4 - 12.
(4)Bias - grounds 13 and 14.[4]
(5)Validity of the prosecution notice - ground 15.
[4] Ground 14 alleges predetermination of issues being a lack of procedural fairness, but it is more convenient for me to consider the gravamen of the complaint as being an allegation of bias.
I will deal with the merits of the grounds of appeal under these five headings.
Application for an extension of time
The appellant required an extension of time to appeal as the appeal was filed approximately four days out of time.[5]
Determination of the extension of time application
[5] The last day for the appellant to commence an appeal against his convictions was 25 May 2018. The appellant filed his notice of appeal on 28 May 2018.
There are four principal considerations in determining whether an extension of time ought to be granted. They are the length of the delay, the reason for the delay, whether there is an arguable case, and the extent of any prejudice to the respondent.
The appellant's affidavit[6] in support of his application for an extension of time supported the following factual position:
(1)He understood that his appeal notice was required to be filed by 25 May 2018.
(2)At 3.45 pm on 25 May 2018 he attended the Fremantle post office for the purpose of sending the appeal notice to the court by facsimile.
(3)Shortly after 4.00 pm a court officer confirmed that the notice of appeal had been received.
(4)He was not aware that leave was required to lodge an appeal notice by facsimile.
(5)It was his intention to lodge the appeal notice on time and he attempted to do so.
[6] Sworn on 19 July 2018.
In the circumstances described above, the respondent did not oppose the application for an extension of time.
There was no prejudice to the respondent in granting an extension of time. The length of the delay was also relatively small and had been explained. Therefore, at the hearing on 20 March 2019 I granted the appellant an extension of time within which to appeal, without determining whether there was an arguable case on any of the proposed grounds of appeal.
Applications in the appeal
The appellant has made two applications in the appeal which I will also determine.
The first application
The first application dated 10 December 2018 seeks a 'special case hearing'.[7] The application is five pages in length and contain 29 numbered paragraphs.[8] Some of the paragraphs make sense. Others make no sense or do not appear to relate to the idea contained in the previous or next paragraph. The application appears to contain the following contentions:
(1)The Australian Constitution cl 2 provides that references in the Constitution to 'the Queen' extend to 'Her Majesty's heirs and successors in the sovereignty of the United Kingdom' and any subsequent legislation or oath which refers to the Queen as Queen of Australia is invalid.
(2)Magistrates Malone and Malley were invalidly appointed by the Queen of Australia as opposed to the Queen of the United Kingdom.
(3)The magistrates had obligations to disclose to the appellant their 'interest in operating under appointment of the Queen of Australia'.
(4)Magistrate Malone refused to hold and inquiry and denied the appellant the right to have an inquiry into the 'jurisdiction' of the Magistrates Court constituted by magistrates purportedly appointed by the Queen of Australia to hear and determine the charges the subject of the appeal (the special case hearing application).
The second application
[7] Pursuant to the Rules of the Supreme Court 1971 (WA) (SCR) O 31 r 1.
[8] The application also has a 7 page attachment entitled 'Notice of Extracts - Queen and Crown' by Darren Dickson and a 6 page attachment which is said to be a 'Petition for the Restoration of the Commonwealth' by Mr Rodney Culleton'. The attachments were not evidence that was taken into account by the magistrate and neither are they evidence in the appeal. I have not had regard to them.
The second application dated 14 December 2018 seeks:
(1)An order for disclosure of 'the records of assent of all the legislation relied upon in relation to' the charges the subject of the appeal including but not limited to the Magistrates Court Act 2004 (WA), the Criminal Procedure Act 2004 (WA) (CPA), the Road Traffic Act 1974 (WA) (RTA), the Misuse of Drugs Act 1981 (WA) (MDA) and all subsidiary legislation, regulations and rules.
(2)'Any authoritative document allowing waiver of the obligation of the State of Western Australia to observe and comply with the Commonwealth of Australia Constitution Act 1900 (Cth)'.[9]
(3)In the alternative indication 'where the information is held and available for scrutiny for the legislation or provisions amended and assented to according to the Constitution Act 1889[10] s 2(3) and the second clause of the [Australian Constitution], whilst not in breach of s 109 of the [Australian Constitution]' (the disclosure application).
[9] Referred to hereon as the Australian Constitution.
[10] Referred to hereon as the Western Australian Constitution.
The merits of the applications in the appeal depend on whether the appellant ought to be granted leave to appeal in respect of any of the proposed grounds of appeal. This is because it is not appropriate to order a special case hearing in respect of a ground of appeal which does not have reasonable grounds of success.
Further, in relation to the second application, assuming that the court has a power to order disclosure in an appeal from a decision of a magistrate,[11] it is also not appropriate to make such an order if there is not a related ground of appeal which has reasonable prospects of success. I will therefore consider the applications in the appeal after I have considered the merits of each of the proposed grounds of appeal.
The disclosure addendum
[11] As the question of the existence of the power was not questioned by the respondent I will not determine it.
During the hearing the appellant handed up a two page document titled 'Addendum to Application for Disclosure of assent for legislation relied upon for the convictions subject to the appeal SJA 1078 of 2018' (the disclosure addendum). It became apparent that the appellant relied on the propositions in the disclosure addendum to supplement, if not supplant, his argument for disclosure orders in the disclosure application.
Additionally at the end of the disclosure addendum the appellant purported to seek a declaration:
That the Australia Acts (Request) Act 1985 is ultra vires, pursuant to sections 73(2) (a), 73(2) (e) and 73(2) (g) of the [Western Australian Constitution].
As the disclosure addendum was produced so late in the proceedings, I did not appreciate that the appellant was purporting by it to seek a completely different remedy, being a declaration, rather than orders on appeal to set aside his convictions. I assumed from its title that it was an additional set of written submissions.
It was not until I reserved my decision, read the transcript of the hearing and received an email from the appellant requesting advice as to whether he needed to apply formally for a declaration that I realised the purported nature of the disclosure addendum as an application for a declaration.
On 1 April 2019 I directed my associate to advise the appellant that an application for a declaration has to be made formally in accordance with the Supreme Court Act 1935 (WA) and the SCR and that I would not determine any such application[12] when determining the application for leave to appeal and the applications in the appeal.
[12] In reality there is no properly made and served application for a declaration before the court.
I will only refer to the submissions contained in the disclosure addendum to the extent that it is necessary to do so to decide the applications which are properly before the court.
The charges
The appellant was charged with the following four offences all of which were alleged to have been committed on 2 February 2017 at Cockburn Central:
(1)FR 1654/2017 - failed to comply with the requirements of a member of the police force, made pursuant to the RTA s 66C, namely, to supply a sample or oral fluid for a preliminary oral fluid test.
(2)FR 1655/2017 - failed to comply with a requirement to provide a sample of oral fluid for drug testing, contrary to the RTA s 67AB(2)(a).
(3)FR 1656/2017 - was in possession of a prohibited drug, namely cannabis contrary to the MDA s 6(2)B.
(4)FR 1657/2017 - was in possession of drug paraphernalia, namely a plastic smoking implement, in which there was a prohibited drug, namely cannabis contrary to the MDA s 7B(6).
Statutory framework
The MDA charges are self‑explanatory. The statutory framework for the RTA charges requires explanation.
The starting point is that a police officer may require a driver of a motor vehicle to undergo a preliminary oral fluid test.[13] A person who is required to undergo a preliminary oral fluid test shall comply with that requirement by undergoing the test in accordance with the directions of a police officer.[14]
[13] RTA s 66C(1).
[14] RTA s 66C(6).
A preliminary oral fluid test is defined as a test of a sample of a person's oral fluid by means of an approved device for the purpose of providing a preliminary indication of the presence of prescribed illicit drugs in the oral fluid. A person undergoes a preliminary oral fluid test if the person provides a sample of the person's oral fluid for a preliminary oral fluid test.[15]
[15] RTA s 65.
A person who fails to comply with a requirement of a police officer to undergo a preliminary oral fluid test commits an offence.[16] It is a defence to a prosecution for failing to comply with a requirement of a police officer to undergo a preliminary oral fluid test 'if the accused satisfies the court that there was some substantial reason for his failure to comply other than a desire to avoid providing information that might be used as evidence'.[17]
[16] RTA s 67A(1). This was the allegation contained in FR 1654/2017.
[17] RTA s 67A(5).
Where a person refuses or fails to undergo a preliminary oral fluid test having been required to do so, a police officer may require the person to provide a sample of the person's oral fluid for drug testing.[18] That person shall comply with that requirement by providing the sample in accordance with the directions of an authorised drug tester.[19]
[18] RTA s 66D(1)(b).
[19] RTA s 66D(2).
A person who fails to comply with such a requirement of a police officer to provide an oral sample of fluid for drug testing commits an offence.[20] It is a defence to a prosecution for an offence of failing to comply with a requirement to provide a sample of oral fluid if the accused satisfies the court that there was some substantial reason for the failure to comply other than a desire to avoid providing information that might be used as evidence.[21]
[20] RTA s 67AB(2)(a). This was the allegation contained in FR 1655/2017.
[21] RTA s 67AB(5).
If a person provides a sample of oral fluid for drug testing an authorised drug tester is required to conduct drug testing of the sample by an approved device in accordance with the prescribed procedure.[22] If the drug testing indicates that the person's oral fluid contains a prescribed illicit drug, the drug tester must divide the sample into two parts and ensure that both parts are delivered to a police officer. One part must be delivered to the Chemistry Centre (WA).[23] A sample given to a police officer must not be used to obtain the person's DNA and it is an offence to do so.[24]
[22] RTA s 66D(4).
[23] RTA s 69B.
[24] RTA s 71A(2).
It is apparent from the relevant provisions of the RTA that it is an offence for a driver of a motor vehicle:
(1)to fail to comply with a requirement of a police officer to undergo a preliminary oral fluid test which is a test to provide an preliminary indication of the presence of prescribed illicit drugs in the oral fluid; and
(2)who has refused or failed to undergo a preliminary oral fluid test having been required to do so, to fail to comply with a requirement of a police officer to provide an oral sample of fluid for drug testing.
Both a preliminary oral fluid test and an oral fluid test for drug testing are qualified by the terms of the RTA as tests related to determining whether illicit drugs are present in a person's oral fluid. If a police officer required a driver to undergo an oral fluid test for some other purpose, including for the purpose of obtaining a driver's DNA, the test would not be authorised by the above provisions of the RTA. As long as the test is for determining whether illicit drugs are present in a person's oral fluid, it does not matter whether the sample of oral fluid obtained pursuant to the RTA contains DNA or not. The relevant driver will commit offences if he or she fails to comply with the requirement of the police officer.
It is also apparent from a consideration of the legislative provisions that a driver's wish not to provide saliva which contained his or her DNA would not satisfy the statutory defence of 'some substantial reason for the failure to comply' unless there was evidence which could satisfy the court that the police officer requesting the relevant sample was requesting it for an ulterior purpose, contrary to the purpose of testing it for illicit drugs. There was no suggestion and no evidence to support a suggestion that the police officers required the appellant to submit his oral fluid for an ulterior purpose.
Procedural history
Pre‑trial decisions of Magistrate Malone
On 16 March 2018 Magistrate Malone dismissed an application made by the appellant to 'reinstate or reissue' two witness summonses that had been lodged by the appellant[25] but which had been cancelled by his Honour on 19 February 2018.[26] His Honour published written reasons for his decision.[27] The requested witness summonses were addressed to:
(1)Sergeant John Keene of 152 High Street, Fremantle.
(2)Doctor Martin Parkinson, Secretary, Department of the Prime Minister and Cabinet.
[25] Lodged by the appellant on 29 January 2018 at the Fremantle Magistrates Court.
[26] Pursuant to the Magistrates Court Act 2004 (WA) s 21.
[27] Wyborn v Sprlyan charge No FR 1654 ‑ 1657 of 2017, heard 16 March 2017 with draft copies made available to the parties 'by post', delivered 19 March 2017.
On 13 April 2018 Magistrate Malone dismissed an application by the appellant for orders that the prosecution on the charges be dismissed for want of prosecution or permanently stayed. His Honour published written reasons for these decisions.[28]
Right to appeal the decisions of Magistrate Malone
[28] Wyborn v Sprlyan charge No FR 1654 ‑ 1657 of 2017, heard 13 April 2018, delivered April 2018 'by post'.
The Criminal Appeals Act 2004 (WA) (the CAA) s 7(1) allows for an aggrieved party to appeal to the Supreme Court against a decision of a court of summary jurisdiction.
The CAA s 7(4) provides that except as provided by the section, no appeal lies against a decision of a court of summary jurisdiction.
The CAA s 6 defines the phrase 'decision of a court of summary jurisdiction.' None of the pre‑trial decisions made by Magistrate Malone on 16 March 2018 and 13 April 2018 fall within that definition.
Accordingly, the appellant does not have a right to appeal the Supreme Court against Magistrate Malone's pre‑trial decisions.
When I suggested to the appellant during the hearing of the appeal that he did not have a right to appeal from Magistrate Malone's pre‑trial decisions, he brought to my attention a letter[29] which he had received from the former Chief Justice in reply to a letter which he had written to his Honour complaining about Magistrate's Malone's refusal to recuse himself for actual or perceived bias, and his decision to cancel his witness summonses.
[29] Exhibit 3.
The former Chief Justice's letter said that if the appellant was convicted of the charges, the matters of which he was then complaining could be included in any appeal from his convictions. The appellant submitted that he had relied on that advice in not taking further action to challenge Magistrate Malone's decisions until he lodged his appeal.
It seems that the appellant failed to appreciate the significance of the qualification which the former Chief Justice added to his comment. It was that on such an appeal it would be necessary for the appellant to establish not only that Magistrate Malone erred as he alleged, but also that such error/s 'caused or contributed to a miscarriage of justice' (i.e. that the appellant's convictions are a miscarriage of justice). Nothing that the former Chief Justice wrote causes me to depart from my view expressed in the above paragraphs.
I refuse the appellant leave to appeal against the decisions of Magistrate Malone on 16 March 2018 and 13 April 2018. I also dismiss the appeal so far as it purports to appeal those decisions. Magistrate Malone's decisions are only relevant to the appeal if they had caused Magistrate Malley to fall into error or they render the convictions a miscarriage of justice.
There was no evidence before the magistrate and none before me that Sergeant Keene or Doctor Parkinson could have given any relevant evidence. Neither is there any basis for a finding that the lack of evidence from them render the convictions a miscarriage of justice.
Consequently the appeal so far as it purports to be from Magistrate Malone's decisions on 16 March 2018 and 13 April 2018 must be dismissed.
The trial before Magistrate Malley
On 27 April 2018 the appellant's trial on the charges took place before Magistrate Malley. At the conclusion of the trial, his Honour convicted the appellant of the four charged offences and imposed the following sentences:[30]
(1)FR 1654/2017 - $500 fine and an order that the appellant be disqualified from holding or obtaining a driver's licence for four months.
(2)FR 1655/2017 - $400 fine.
(3)FR 1656/2017 - $300 fine.
(4)FR 1657/2017 - $200 fine.
Summary of the prosecution case
[30] ts 106 ‑ 110.
At approximately 6.50 pm on 2 February 2017 the appellant was driving a motor vehicle on Beeliar Drive in Cockburn. He was stopped by the police. At the time he was stopped he was the sole occupant of the vehicle.
A police officer required him to submit a sample of oral fluid for a preliminary oral fluid test. The appellant failed to provide the sample.[31]
[31] The appellant's failure to provide a sample of oral fluid for the preliminary oral fluid test formed the basis of his conviction for the offence against the RTA s 67A(1) (FR 1654/2017).
After the appellant refused to submit a sample of oral fluid for a preliminary test, he accompanied police officers to a mobile drug testing station. At the mobile drug testing station a police officer required the appellant to submit a sample of oral fluid for drug testing. The appellant failed to do so.[32]
[32] The appellant's failure to provide a sample of oral fluid for drug testing formed the basis of his conviction for the offence against the RTA s 67AB(2)(a) (FR 1655/2017).
At about 7.47 pm the police searched the vehicle the appellant had been driving. During the search they located a backpack on the front passenger seat. Inside the backpack the police found a white container that contained what was subsequently ascertained to be 0.89 g of cannabis.[33]
[33] The location of the 0.89 g of cannabis formed the basis of the appellant's conviction for the offence of possessing cannabis contrary to the MDA s 6(2) (FR 1656/2017).
During the search of the vehicle the police also found a smoking implement in the centre console. The smoking implement contained what was subsequently found to be 0.42 g of cannabis.[34]
Detailed summary of the trial
[34] The smoking implement formed the basis of the appellant's conviction for the possession of drug paraphernalia offence contrary to the MDA s 7B(6) (FR 1657/2017).
The prosecutor opened the prosecution case and tendered two certificates of analysis. The first[35] was to the effect that the substance found in the appellant's car[36] was .89 grams of cannabis. The second[37] was to the effect that traces of cannabis were found on the smoking implement which was located in the appellant's car.
Evidence of PC Parkyn
Examination‑in‑chief
[35] Exhibit A1.
[36] For convenience I will refer to the vehicle being driven by the appellant as the appellant's car although there was no evidence it was owned by him.
[37] Exhibit A2.
On 2 February 2017 Probationary Constable (PC) Natalie Parkyn was on duty with a mobile breath testing station set up on Beeliar Drive in Cockburn Central where she conducted random breath and drug testing on motorists.
At approximately 6.50 pm a black BMW coupe was directed into the breath testing line. PC Parkyn stopped the car and spoke to the appellant who was the driver and the only person in the car.[38]
[38] It was not in dispute that the appellant was the person involved in the incident.
PC Parkyn gave evidence that when she stopped the vehicle and the appellant wound down the front driver's side window, she could immediately smell a strong scent of cannabis coming from inside the vehicle. At PC Parkyn's request the appellant undertook a preliminary breath test for alcohol and she then required him to undergo a preliminary oral fluid test. In response to this request, PC Parkyn stated the appellant said to her, 'I'm happy to provide my breath, but I'm not comfortable providing my DNA'.[39]
[39] ts 6.
PC Parkyn further directed the appellant to undertake the drug test and described the procedure to do so. She told him that he was required to 'place the two pink squares at the back of your tongue and scrape them forward'. The appellant shook his head. PC Parkyn directed him to accompany her to the mobile station (the bus).
Another officer, Senior Constable (SC) Linda Stone, provided assistance to PC Parkyn. She told the appellant that if he refused to take the drug test he would be required to go to the bus for 'an evidentiary test'.[40]
[40] ts 7.
The appellant asked '[w]hat law is this under?' to which PC Parkyn replied '[u]nder the Act'. The appellant then asked '[w]hen was the Act enacted?'[41]
[41] ts 7.
PC Parkyn responded:
What does that matter, Sir? It doesn't change the fact that you're under a requirement to submit a sample of your oral fluid.[42]
[42] ts 7.
The appellant then wound up the driver's window. SC Stone attempted to open the driver's side door. SC Stone ran around to the front passenger‑side door but it was also locked. Some other police officers came to assist but the appellant then got out of the car and went to the bus without further police intervention.
Prior to leaving his car the appellant indicated that he wished to take the black backpack which was in the car with him. PC Parkyn did not allow him to do so.
At the bus, PC Parkyn introduced SC Giuseppe Gregorio as the officer authorised to operate the drug analysing equipment. She stated the requirements for the appellant to:
(1)submit a sample of oral fluid for testing and analysis at SC Gregorio's direction; and
(2)wait at the bus until the test had been completed.
PC Parkyn asked the appellant whether he understood her directions to which the appellant replied 'well, no'. She then repeated the requirements and remained present while SC Gregorio attempted to conduct the oral sample of fluid test.
At 7.26 pm SC Gregorio informed PC Parkyn that the appellant had failed to comply with the testing by refusing to provide a sample of oral fluid as directed. At 7.35 pm PC Parkyn administered a caution to the appellant and the appellant was informed that his car was going to be searched, pursuant to the MDA.
During the search Constable Kyle Gavin located a white container containing cannabis inside the black backpack on the front passenger seat and a wood‑finish smoking implement containing cannabis in the centre console of the car. These items were packaged in security movement envelopes and the appellant was advised that he would receive a notice to attend court in relation to the various matters.
Cross‑examination
The cross‑examination of PC Parkyn was punctuated with exchanges between the appellant and the magistrate about the relevance of his questions. I will deal with these exchanges so far as they are relevant for when I deal with individual grounds of appeal.
The appellant pursued a series of questions regarding the credibility of PC Parkyn's evidence. As these issues were not pursued on appeal I will not detail them.
The appellant asked PC Parkyn whether he had asked her whether she was asking for a sample of saliva. PC Parkyn said she could not recall.[43]
[43] ts 23.
PC Parkyn also said that she did not recall the appellant asking in the presence of SC Stone whether his saliva contained DNA.[44] However she recalled that the appellant had referred to 'DNA' and she had recorded in her written statement that he had asked whether she had authority to take DNA.[45]
[44] ts 26.
[45] ts 28.
She was asked to identify the name of the legislation pursuant to which she had authority to require the appellant to undergo testing. PC Parkyn said that she did not know the name of the legislation. She denied that her lack of recall of it meant that she did not have authority.[46]
[46] ts 28.
The appellant then attempted to ask PC Parkyn questions concerning the provisions of the Criminal Investigation (Identifying People) Act 2002 (WA) (CIIPA).[47] The magistrate ruled that the appellant was not permitted to ask questions about a police officer's rights to take a person's DNA.
[47] The CIIPA enables police officers to obtain identifying particulars including DNA profiles in certain circumstances. The CIIPA s 11(3) provides that the CIIPA does not apply in respect of an identifying particular obtained in accordance with another written law.
The appellant then attempted a line of questioning challenging PC Parkyn's use of the phrase 'his car' in her written statement when she did not know who owned the car that the appellant was driving. The magistrate directed the appellant not to proceed with the line of questioning.[48]
[48] ts 37. The issue was whether the officer referred correctly to the car she stopped as 'his car' if she had no evidence that the car was owned by the appellant.
PC Parkyn said she did not know how long it took for the appellant to voluntarily get out of his car. She agreed that he may have been winding up the window in preparation for getting out of the car but because he had refused undergo the drug test, the engine was still running, and the police had not been able to open the doors of the car, she reasonably suspected that the appellant intended to drive away from the station.[49]
[49] ts 44.
PC Parkyn testified that whilst the appellant was at the bus, his car had been moved to the side of the road and it was unattended.[50] She confirmed that it was possible for someone to have had access to the car at the time.
[50] ts 53 ‑ 54.
PC Parkyn was cross‑examined about other issues but again as they are not raised in the appeal, I will not describe the questioning and her answers.
Evidence of SC Stone
Examination‑in‑chief
SC Stone confirmed that she was on duty on 2 February 2017 at the mobile breath testing station. She observed that PC Parkyn was experiencing difficulties with the appellant due to her raised voice and the appellant's failure to comply with a preliminary oral fluid test.
SC Stone walk over to the appellant's car and spoke to him through the open driver's window. She confirmed that PC Parkyn required the appellant to undergo the preliminary oral fluid drug test to which the accused replied, 'I won't do it. You're not getting my DNA'.
SC Stone then testified that she had the following exchange with the appellant:
SC Stone: It's an oral fluid drug test. You're under a requirement to provide a sample. If you don't provide a sample you will be required to attend the bus for an evidentiary test.
Appellant: What's that?
SC Stone: You will be required to provide a saliva sample.
Appellant: No, I won't do it.
SC Stone: Then you will be charged with refused and the penalty of which is loss of licence.
Appellant: Ok. I don't care. I'm not doing it.
SC Stone: Hop out of the car.
Appellant: No.[51]
[51] ts 57.
SC Stone described that she then reached into the car to turn it off but the appellant raised the electric window. She also tried to open the door but it was locked, so she went around and opened the passenger door.
She repeated to the appellant that he was under requirement to attend the bus.
SC Stone observed that the appellant was alone and that there was a black backpack on the seat. She also smelt an odour in the car but did not take much notice of it and attributed it to the leather seats.
A further exchange occurred in which the appellant stated that he wanted to park his car but SC Stone told him that someone would park it for him. The appellant turned his car off. SC Mahmid parked and secured the appellant's car.
SC Stone gave evidence that prior to accompanying the appellant to the bus, he expressed concerns about leaving his backpack in the car. She told the appellant that it was fine to take it with him but in evidence she could not confirm whether he did or not.
SC Stone had no further involvement with the matter.
Cross‑examination
The cross‑examination of SC Stone was also punctuated with exchanges between the magistrate and the appellant concerning the relevance of the appellant's questions and the appropriateness of his conduct in court. I will refer to these exchanges so far as they are relevant later in these reasons.
SC Stone said that the appellant's car was moved only a short distance away and that it was locked and secured.
Evidence of SC Gregorio
Examination‑in‑chief
SC Gregorio confirmed that he was on duty on the evening of 2 February 2017. He testified that he was an authorised drug tester within the meaning of the RTA s 65 and authorised to operate an approved device for the purpose of conducting oral fluid tests on a sample.[52]
[52] ts 77 and exhibit B.
SC Gregorio described that he was introduced to the appellant by PC Parkyn. He recalled that PC Parkyn gave the accused a requirement in the following way:
Paul Anthony Sprlyan, this is Senior Constable Gregorio. He is an authorised drug tester within the meaning of section 65 of the [RTA]. I require you to submit to him a sample of your oral fluid, and I further require you to wait at this place until that test is complete.[53]
[53] ts 78.
The appellant responded 'I don't understand' and PC Parkyn repeated the requirement. SC Gregorio then introduced himself to the appellant, recalling that he said:
My name is SC Gregorio. I am an authorised drug tested within the meaning of section 65 of the [RTA] to operate an approved device.
The device which you see here is Dräger DrugTest 5000 analyser. It is approved … by the Minister under the Act for testing a sample of a person's oral fluid for the presence of illicit drugs. Do you understand?[54]
[54] ts 78.
The appellant replied, 'no I don't'.
SC Gregorio described that he then repeated his introduction and broke it down into small parts. After this, the appellant responded by questioning the validity of the test and the testing device.
SC Gregorio described that the Dräger DrugTest 5000 analyser is an approved apparatus.[55]
[55] Pursuant to the Government Gazette, dated 11 July 2014. A copy was tendered by the prosecution as exhibit C.
SC Gregorio gave evidence that when he asked the accused if he had taken any drugs or medication in the last 24 hours, the appellant responded by asking what drugs were illegal and did not answer the question.
SC Gregorio directed the appellant to put on a pair of latex gloves. He eventually did so. The officer then opened the saliva test kit and attached a drug collection head, or sponge, to the kit. SC Gregorio instructed the appellant that he was required to submit a sample of oral fluid for analysis at his direction and gave him simple directions about how to obtain a sample of saliva.
SC Gregorio attempted to hand the appellant the saliva test kit. The appellant replied, 'I don't understand' and continued to question the validity of the test and the device. SC Gregorio repeated the procedure as to how he was to place the collection sponge into his mouth and again attempted to hand the kit to him.
SC Gregorio gave evidence that he then questioned the appellant as to whether he had a medical or other reason to explain why he was failing to provide a sample. The appellant responded by saying that he was asking the questions and he then questioned whether SC Gregorio had authority to take the sample.
SC Gregorio further warned the appellant that he would be charged if he failed to comply. The appellant said that he did not understand. The appellant continued to interject and question the test's validity.
SC Gregorio testified that the appellant did not appear to be suffering from any injuries to make him unable to supply a sample of his oral fluid. At 7.26 pm he advised PC Parkyn that the appellant had failed to comply with the requirement.
SC Gregorio identified three photographs he had taken at a later date of the item seized from the appellant's car.[56]
Cross‑examination
[56] Exhibits D1, D2 and D3.
Prior to his cross‑examination of SC Gregorio, the appellant apologised to the magistrate for his earlier behaviour in court claiming that he 'just got a little bit wound up'.[57]
Evidence of Constable Gavin
Examination‑in‑chief
[57] ts 82.
Constable Gavin confirmed that he was working on the mobile breath testing station on 2 February 2017. He testified that at about 6.50 pm, he was conducting a breath test on another motorist when he heard arguing from approximately two cars away. He ran over to assist and observed the driver attempting to drive off after it was required for a roadside test. He identified that driver to be the appellant.
Constable Gavin stated that when he got to the car, the appellant had locked its doors and he heard PC Parkyn advising the appellant of the requirement to attend the bus. The appellant subsequently unlocked the doors but continued to refuse to undertake a roadside drug test.
Constable Gavin said that he saw SC Stone stand in front of the car to prevent the appellant from driving off. He also said that when the driver's side door was open the appellant attempted to shut the driver's door where he (Constable Gavin) was standing. He grabbed the appellant's right sleeve and told him to get out of the car. Whilst leaning forward to unbuckle his seatbelt to remove him from the car the appellant said, 'I have a bad back. I will get out'. So Constable Gavin let go of him and he stepped out of the car.[58]
[58] ts 87.
At the bus, Constable Gavin observed PC Parkyn asking the accused the drug interview questionnaire. He then returned to other testing duties.
At 7.46 pm Constable Gavin participated in the search of the appellant's car with Constable Frank Cuzen. On the passenger's seat he located a black backpack. This was removed and searched in front of the accused. A white container was located inside the main compartment of the bag, containing what he believed to be Cannabis.
At 7.56 pm Constable Gavin located a wood finish smoking implement containing what he believed to be Cannabis, in the centre console of the car.
The search concluded at 8.06 pm and Constable Gavin had no further involvement in the matter.
Cross‑examination
Constable Gavin said that he was sure that the appellant had locked the doors to the car after he refused to conduct the drug test.
Defence case
At the conclusion of the prosecution evidence and after an exchange with Magistrate Malley the appellant elected not to give or call evidence.[59] The prosecutor and the appellant then gave closing addresses.
Appellant's closing address
[59] ts 99.
The appellant raised the following issues in his closing address:
(1)The police officers, in seeking to obtain a sample of his oral fluid, were requiring him to provide them with his DNA.
(2)He believed that at the time he had proprietary rights over his DNA.
(3)He acted in defence of what he believed were his proprietary rights.
(4)He was not obliged to provide his DNA to the police.
(5)The police did not have lawful authority to take his DNA.
(6)The Criminal Code Act 1995 (Cth) s 9.5 provided a defence to the RTA charges, even if he was wrong that he had a proprietary right.
The appellant did not make any submissions of substance in relation to the drug charges. He said that he rejected the submission that just because something was found in the car or the car smelt of something it meant that the person in charge of the car had used that thing.
Decision of Magistrate Malley
After a short adjournment the magistrate gave oral reasons for convicting the appellant of the four offences.
In relation to the two charges of failing or refusing to undergo the drug tests his Honour found:
(1)The appellant was the driver of the car at the relevant time.
(2)The appellant was requested by Officers Parkyn and Stone to comply with a request to provide a sample of oral fluid for a preliminary drug test.
(3)The appellant failed to comply with the test and the requirements of the breath testing unit.
(4)'There were certainly variations … (in) a number of the police officers' recollections. But … those conflicts were simply matters not germane to the charges'.
In reference to the appellant's argument that he had a lawful excuse for refusing to undergo the tests the magistrate said:
I conclude that his arguments simply are without merit. The [RTA] Section 66 specifically … authorises the officers to obtain oral sample from the accused, and that's what they sought. Firstly, what the officers were seeking was an oral fluid. It is the accused's presumption … that involved … the recovery of DNA - as a matter of evidence, there's nothing before this court that established that, in fact, that was the process.
The taking of DNA is an entirely different process, as provided for under the Criminal Investigation Act, and done for specific purposes. These are two entirely different requirements. The [RTA] makes no reference to DNA, but only to recovery of - among other things - oral fluid. This is not the case that the oral fluid becomes accused's property. … [T]hat has nothing to do with the accused's honest belief.
This is a mistake of law … that he was not obliged to provide that sample, and that's the whole basis upon which … he acted. I reject the accused's argument and then find those two charges proven.[60]
[60] ts 107.
In relation to the drug charges his Honour found:
(1)Cannabis was found in the backpack.
(2)A smoking implement with traces of cannabis in it was found in the centre console.
(3)The appellant was the driver of the car.
(4)There was no evidence that anyone had access to the car.
(5)The hint that someone else at the scene might have tampered with car was speculative.
(6)In the absence of any other plausible explanation he was satisfied that the cannabis and paraphernalia were in the possession of the appellant.
After finding the appellant guilty, the appellant queried why the magistrate had not dealt with his argument based on the claim of right defence in the Crimes Act 1995 (Cth). His Honour told the appellant it was because it was a Commonwealth Act and did not apply to State charges. He then proceeded to sentence the appellant.
Grounds of appeal
Category 1: Evidence of presumption
In grounds 1(a) ‑ (e) of the appeal, the appellant complains that Magistrate Malone and Magistrate Malley failed to have the respondent address, failed to observe and failed to uphold the 'evidence of presumption served upon the court and the prosecution, in the form of official Commonwealth FOI Findings and accompanying certificates'.[61]
[61] There is an overlap between these grounds of appeal and those which complain about a breach of procedural fairness. Consequently I will deal with some of the complaints in these grounds when dealing with category 3 grounds of appeal too.
It is difficult to discern from the appeal notice what the appellant means by the 'evidence of presumption' and what argument he is advancing on the basis of it. However the gravamen of his complaint appears to be that the magistrates were not prepared to hear evidence about the 'evidence of presumption' and to determine his submissions about it on their merits.
Some idea of the essential thrust of the appellant's 'evidence of presumption' argument can be discerned from par 70(a) of his written outline of submissions filed in support of the appeal. It would appear that the essence of the appellant's argument is as follows:
(1)The decision in Piccinin v Deputy Commissioner of Taxation[62] demonstrates that the magistrates were 'seen to be operating' under the authority of the Queen of Australia;
(2)several 'FOI Findings' by the Office of Prime Minister and Cabinet demonstrate that the Queen of Australia does not have authority;
(3)the Royal Style and Titles Act 1973 (Cth) so far as it refers to a Queen of Australia is invalid;
(4)pursuant to the Australian Constitution s 2, any sovereign not 'in the sovereignty of the United Kingdom of Great Britain' is prohibited;
(5)Magistrate Malone's and Malley's oaths are invalid if sworn to the State of Western Australia or the Queen of Australia; and
(6)if the oaths are invalid Magistrate Malone and Magistrate Malley did not have jurisdiction to preside at any hearings relating to the charge or to preside over the trial.
Merits of the ground of appeal
[62] Piccinin v Deputy Commission of Taxation [2002] FCAFC 282.
In the past some litigants have put other variants of the same arguments. Whatever their form, these arguments have repeatedly been held by the Court of Appeal to be completely devoid of legal merit, frivolous and vexatious.[63]
[63] Hedley v Spivey [2012] WASCA 116 [7] and [20] and the cases cited therein.
The submissions relating to the validity of the Royal Style and Titles Act 1973 (Cth)[64] were rejected in Hopes v Australian Securities and Investments Commission both at first instance[65] by Corboy J and on appeal.[66]
[64] The equivalent Western Australian Act is the Royal Style and Titles Act 1947 (WA).
[65] Hopes v Australian Securities and Investments Commission [2016] WASC 198 [40] ‑ [57].
[66] Hopes v Australian Securities and Investments Commission [2017] WASCA 108 [22].
The 'FOI Findings' relied on by the appellant appear to be documents by various authors expressing opinions about the source of power for various legislative amendments. Those opinions did not bind the magistrates and they do not bind me.
The appellant sought at the hearing of the appeal to rely on the material in the disclosure addendum to support his grounds of appeal that the magistrates lacked jurisdiction to hear and determine the charges.
I note that the material is a new argument and was not raised before the magistrates. In any event, it is without legal merit for reasons I have outlined at [271] ‑ [281].
Accordingly, the magistrates did not err in either:
(1)failing to disclose the nature of any oaths they had sworn;
(2)failing to allow the appellant to adduce evidence and make submissions in relation to the issue; or
(3)failing to apply the 'evidence of presumption'.
These grounds of appeal have no reasonable prospects of success. I refuse leave to appeal on these grounds.
Category 2: Claim of right defence
Pursuant to grounds 2 and 3 of the appeal, the appellant alleges Magistrate Malley failed to 'observe' (that is, require the prosecution to disprove) the appellant's claim of right defence.
In ground 2 the appellant refers to the Criminal Code (WA) (the Code) s 22 and the Criminal Code (Cth) s 9.5. The Criminal Code (Cth) s 9.5 does not apply to offences created by laws passed by the Parliament of Western Australia. Therefore the appellant's grounds of appeal must be taken as relying only on the Code s 22.
Section 22 of the Code states:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an element, unless knowledge of law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The appellant seeks to rely on the second paragraph of s 22 which is commonly referred to as the defence of honest claim of right. The second paragraph qualifies the principle embodied in the first paragraph.
The law
The defence of honest claim of right under s 22 is only potentially applicable where the relevant offence relates to property.
The term 'property' is defined the Code s 1(1) to include 'real and personal property and everything, animate or inanimate, capable of being the subject of ownership'.
A defence of honest claim of right will not be available unless what is claimed or believed would, if it were the fact, negative an element of the alleged offence or constitute a defence to it.[67]
[67] Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [77] ‑ [78]; Harwood v The State of Western Australia [2016] WASCA 8.
For a claim to be an honest claim of right within the meaning of s 22, the claim must be an honest claim to an entitlement to, or with respect to, property.[68]
[68] Interim Advance Corp Pty Ltd v Fazio [76]; Harwood v The State of Western Australia [22], [118].
A claim of right within the meaning of s 22 must be honest although it need not be reasonable.[69] There is an issue as to what the phrase 'and without intention to defraud' means but that issue is not relevant to this appeal.
[69] Interim Advance Corp Pty Ltd v Fazio [79]; Harwood v The State of Western Australia [22], [118].
A defence of honest claim of right is only available where there is some evidence in the trial to support an honest claim of right. Where material supporting the defence exists, the burden of negativing or disproving the defence beyond reasonable doubt rests upon the prosecution.[70]
The appellant's argument
[70] Interim Advance Corp Pty Ltd v Fazio [80]; Harwood v The State of Western Australia [22], [118].
The appellant's argument in support of these grounds of appeal, as best I can discern from his written and oral submissions, is that his DNA is contained within his oral fluid and therefore, it is his property. Consequently his refusals to provide the samples of his oral fluid were made in the exercise of an honest claim of right to his property, being his DNA in his oral fluid.
The appellant elaborated on this during oral submissions. In essence, he submitted that there was no authority for police officers, under the RTA, to take his DNA and that only the CIIPA permitted police in circumstances which did not exist in this case to take a person's DNA. Therefore in relation to the RTA charges, Magistrate Malley erred in failing to find that the respondent had failed to prove that he (the appellant) was not acting in the exercise of an honest claim of right.
The appellant relied on the following exchanges between the appellant and SC Stone in cross‑examination to support the activation of the claim of right defence:
Exchange 1:
Appellant: What did the accused say? The accused said - you said, 'I won't do it. You're not getting my DNA'.
…
Appellant: So when the accused asked if you were asking for a saliva sample did he not then also ask, 'Doesn't that contain my DNA?' It's possible you said that.[71]
[71] ts 27 April 2018, 62 - 63.
Exchange 2:
Appellant: At point 8, which is now point 9 in your new statement, you say the accused said, 'I'm happy to provide my breath, but I'm not comfortable providing my DNA'; is that true? Yes.
…
Appellant: Is it not true that prior to that particular comment by the accused that the accused asked specifically, 'Are you asking for a sample of saliva?'…I do not recall.[72]
[72] ts 27 April 2018, 23.
Exchange 3:
Appellant: Okay. Is it not the case that at this time that this was the time that the accused asked, 'Doesn't my saliva contain my DNA' in the presence of Officer Stone? I do not recall.
Appellant: Okay. And you don't recall any response that you may have given at that time either? I do not recall.
Appellant: Okay. But you recall everything else specific to your argument. Yes? But what's in my statement is what I recall.
Appellant: Okay. So did the accused ask, and it is in your statement at point 16 of the new statement 'Where do you get your authority to take my DNA?' Mmm.
Appellant: And what was your response? In the Act.[73]
Merits of the ground of appeal
[73] ts 27 April 2018, 26.
The appellant's argument is devoid of merit. Even if I assume for the sake of the argument that the appellant's DNA is his property,[74] neither the offence created by the RTA s 67A(1) nor the offence created by the RTA s 67AB(2)(a) is an offence 'relating to property'.
[74] The appellant relied on Roche v Douglas [2000] WASC 146 as authority for the proposition that his DNA was property. As that case and others have made it clear what is property depends on the relevant context. It is unnecessary for me to decide whether DNA is property for the purpose of the Code s 22 and so I will not make that determination.
The appellant's alleged claim of right to the DNA contained in his oral fluid, did not negative any element of the alleged offences or constitute a defence to any element of the alleged offences. Indeed, the offences the subject of the RTA s 67A(1) and s 67AB(2)(a) can only ever be committed by the 'owner' of the oral fluid and the DNA contained therein.
The appellant did not identify a particular provision in the CIIPA to support his submissions. The CIIPA relates to the procedures and parameters involved in the identification of a particular person. That is different to the current case. The RTA grants police officers the power to take a sample of the appellant's oral fluid for the sole purpose of testing for illicit substances.
While it is true that the RTA s 71A prohibits the use of a sample of oral fluid to obtain a person's DNA,[75] there is nothing in the evidence that raises any suggestion that the police officers intended to use the appellant's oral fluid sample for any purpose other than testing for illicit substances.
[75] The appellant appeared to have, in error, referred to the RTA s 70 during his cross‑examination of SC Stone (ts 63, 27 April 2018).
For the above reasons Magistrate Malley did not fail to 'observe' a claim of right defence and the prosecution did not fail to disprove such a defence.[76]
[76] The RTA provides that it is a defence to either charge if an accused satisfies the court that there was 'some substantial reason for his failure to comply other than a desire to avoid providing the information that might be used as evidence'. It is arguable that the provision of this statutory defence means that parliament intended that the defences in the Code Ch V would not apply to these charges. However this argument was not raised in this appeal and it is unnecessary for me to decide it.
These grounds have no reasonable prospects of success. I refuse leave to appeal on both grounds.
Category 3: Procedural fairness
The appellant alleges Magistrate Malone:
(1)Prevented him from 'making the case for the question of jurisdiction' (ground 1(e)).
(2)Failed to give him an adequate or reasonable opportunity to review and respond to his Honour's draft reasons provided in relation to the pre‑trial applications, including by denying the appellant's request for an adjournment on 13 April 2018 (grounds 5, 6, 7 and 8).
(3)Made false assumptions about him based on what his Honour 'believed most people from the appellant's group value, or based on how his Honour believed most people from the appellant's group behave' (grounds 9 and 10).
(4)Demonstrated real and perceived bias against him, thereby denying him procedural fairness (ground 4).
The appellant further alleges that Magistrate Malley, in convicting the appellant of the charged offences, denied him the opportunity to present his case, thereby denying him procedural fairness. In particular, Magistrate Malley threatened to remove the appellant from the court under the CPA s 140 for pursuing questioning that the appellant believed to be paramount to his defence, without providing 'lawful reasons' for the threats (grounds 11 and 12).
In his written submissions the appellant makes further allegations of denial of procedural fairness. The further allegations are:
(1)The appellant was denied the opportunity to make an opening address prior to the prosecution calling its first witness.[77]
(2)The appellant was not allowed to finish his opening address to the extent that it concerned questions of jurisdiction.[78]
(3)The appellant was directed not to question police witnesses on their statutory authority to take his DNA.[79]
The law
[77] Appellant's Submissions [69], [70(i)].
[78] Appellant's Submissions [70(f)].
[79] Appellant's Submissions [71](q)], [71(u)] and [72(d)].
Procedural fairness requires that an accused person in a criminal trial must be given a reasonable opportunity to appear and present his or her case.[80] What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, including the nature of the jurisdiction, the subject matter, and the statutory provisions governing the power or jurisdiction being exercised.[81]
[80] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den‑Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63].
[81] National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 ‑ 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 ‑ 585; Re Burton [64].
As a general rule a person will not be afforded procedural fairness if he or she is not given a reasonable opportunity to make relevant submissions, give evidence, and call witnesses in support.[82] However, the opportunity that must be afforded will always be qualified by the requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.[83]
[82] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].
[83] Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304, 314; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 [106].
The assessment is one of 'practical injustice'.[84] For example, a court may refuse to grant relief based upon a suggested denial of procedural fairness if it may safely be concluded that the completion of the submissions that were cut off would have made no difference to the outcome.[85]
The appellant's arguments and their merits
Preventing the appellant 'making the case for the question of jurisdiction'
[84] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] ‑ [38]; Bodycorp v Holding Redlich [106].
[85] Stead v State Government Insurance Commission [1986] HCA 54; (1996) 161 CLR 141, 145 ‑ 146.
The appellant complains that Magistrate Malley curtailed his submissions and lines of questioning on a number of occasions when the submissions or lines of questioning related to the appellant's argument that the court lacked jurisdiction.[86]
[86] ts 15 ‑ 18, 26 ‑ 32, 63.
This may have constituted a denial of procedural fairness if the curtailed submissions and lines of questioning were sufficiently relevant and significant to warrant being received. However, and as I have already noted, the Court of Appeal has repeatedly held that variations of this argument are devoid of legal merit. Accordingly, to the extent that Magistrate Malley prevented the appellant 'making the case for the question of jurisdiction', no practical injustice was occasioned and there was no denial of procedural fairness.
The appellant's opening address
The appellant complains that he was denied the opportunity to make an opening address prior to the prosecution calling its first witness, and that Magistrate Malley did not allow him to finish his opening address to the extent that it concerned questions of jurisdiction.
An accused is entitled to give an opening address 'about the accused's case' immediately after the prosecutor's opening address.[87]
[87] CPA s 143(2) and (3)(a).
The appellant was not given the opportunity to make an opening address prior to the prosecution calling its first witness.[88] This appears to have been an oversight by the magistrate. However, at his request, the appellant was given the opportunity to make an opening address prior to his cross‑examination of the respondent's first witness.[89]
[88] ts 4.
[89] ts 12 ‑ 13.
While Magistrate Malley should have given the appellant the opportunity to make an opening address prior to the prosecution calling its first witness, it cannot be said that his Honour's failure to do so gave rise to a 'practical injustice'. It cannot be said to do so because, as I have pointed out, the appellant was given the opportunity to make an opening address a very short period after he was entitled to do so and before he was required to cross‑examine a witness or adduce evidence.
The magistrate did not allow the appellant to finish his opening address to the extent that it related to questions of the court's jurisdiction.[90] However, for the reasons I have already given, Magistrate Malley's decision to curtail the appellant's submissions at any point in the trial on the subject of jurisdiction did not constitute a 'practical injustice'. There is nothing that the appellant could have said in an opening address on this topic which would have altered the outcome of the trial or have been relevant to the matters which the magistrate was required to determine.
Curtailing the appellant's cross‑examination of prosecution witnesses
[90] ts 15 ‑ 18.
In his written submissions, the appellant complains that Magistrate Malley directed the appellant not to question police witnesses on the issue of their authority to take his DNA.[91]
[91] Appellant's Submissions [71(q)], [71(u)] and [72(d)].
It is the position that Magistrate Malley did not allow the appellant to cross‑examine PC Parkyn and, to a lesser extent, SC Stone on their statutory authority to take his DNA.[92]
[92] ts 26 ‑ 31, 63.
The proposed line of questioning was not to the effect that whilst purporting to obtain his oral fluid for the purpose of the RTA their ulterior purpose was to obtain the appellant's DNA for another purpose, that is, to lay an evidentiary foundation for the statutory defence. Rather his questions were to the effect that the officers should have been aware that they were obtaining his DNA from his oral fluid and that they could only act under the CIIPA in order to do so.
It would appear from a review of the transcript that his Honour disallowed these questions on the basis of relevance and also on the basis that they went to an issue of law on which the witnesses could not give evidence.[93]
[93] ts 26 - 27, 29 ‑ 30, 32.
The line of questioning that the appellant was attempting to pursue was irrelevant for the following reasons:
(1)The two offences with which the appellant was charged under the RTA did not concern a statutory power to take the appellant's DNA. It rather concerned powers to require him to provide his 'oral fluid' for drug testing. Any questions to the effect that because there was DNA in the oral fluid sample, the police officers had to comply with certain additional obligations on the collecting of DNA that might be imposed by other legislation, were irrelevant.
(2)Whether or not the police officers had a statutory power to take the appellant's DNA was not, for the reasons I have already stated, relevant to establishing an honest claim of right defence.
(3)Any issue about whether the police officers had a statutory power to take the appellant's DNA contained within his oral fluid was an issue of law not evidence. Therefore, the witnesses could not have provided relevant evidence in cross‑examination on the issue in any event.
Magistrate Malley, in disallowing this line of questioning, did not err in fact or law. Irrelevant evidence is inadmissible. His Honour was correct to disallow questions which were asked in order to elicit irrelevant, inadmissible evidence. Procedural fairness did not require that his Honour allow the appellant to conduct his case in a way that had no relevance to the issue to be determined merely because he was an unrepresented litigant.[94] Accordingly, Magistrate Malley curtailing the appellant's cross‑examination did not constitute a denial of procedural fairness.
Magistrate Malley's assumptions
[94] Fantakis v NSW Commissioner of Police [2013] NSWSC 1333 [39].
The appellant complains that Magistrate Malone made false assumptions about him based on his beliefs about people in the appellant's group.
It does not matter what assumptions the magistrate made or did not make about the appellant. The issue on appeal is whether the magistrate made an error of law or fact of such a nature that the appellant's convictions ought to be set aside, or, alternatively, whether the trial fundamentally miscarried so that the convictions ought to be set aside and a new trial be held.
The reasons why the appellant says that the assumptions made by the magistrate were of such a nature is because the magistrate did not accept the arguments which he presented at trial and/or he did not allow questions and arguments to be put in the manner which the appellant wished to put them.
To the extent that the magistrate did not accept the arguments or allow the questions to be put, I have examined the transcript and conclude that they were without merit and Magistrate Malley was correct to reject them. Any alleged error by Magistrate Malley in refusing to permit the appellant to put questions and develop his arguments did not lead to an error of law or fact and neither did it result in a miscarriage of justice.
The magistrate made some disparaging comments to the appellant which implied that that he belonged to a group of people who made spurious arguments to courts. These comments were unnecessary and nothing which I say in these reasons should be read as condoning such comments. However those comments fell short of resulting in a denial of procedural fairness.
The appellant had a fair hearing and what was the trial of very simple charges ran for a good part of a day. The appellant had the opportunity to open his case on relevant issues, cross‑examine the respondent's witnesses on relevant issues, to elect whether or not to give evidence and, to close his case on relevant issues. The magistrate gave short reasons for convicting the appellant but they were adequate. I have examined the evidence and the magistrate's decision was correct in law and fact.
Magistrate Malley's 'threats' to remove the appellant from the court
The appellant complains that Magistrate Malley threatened to remove him from the court for putting questions to witnesses that he (the appellant) believed were paramount to his defence. The appellant alleges that 'lawful reasons' for the threats were not provided.[95]
[95] Appellant's Submissions [70(h)], [71(t)], [72(e)].
Magistrate Malley referred to his power to exclude the appellant from the court under the CPA s 140 and indicated that he was thinking of using the power on the following three occasions:
(1)When the appellant attempted to make an opening address on the issue of jurisdiction and the fairness of Magistrate Malone's procedure, immediately subsequent to being repeatedly directed not to do so by Magistrate Malley.[96]
(2)When the appellant persisted in cross‑examining PC Parkyn on the provisions in the CIIPA about taking DNA, immediately after Magistrate Malley disallowed the line of questioning.[97]
(3)When the appellant made gratuitous statements from the bar table to a witness and persisted in cross‑examining SC Stone on the basis of his recollection of events, immediately after Magistrate Malley disallowed the line of questioning.[98]
[96] ts 16 ‑ 17.
[97] ts 31.
[98] ts 75.
The CPA s 140 (1) states relevantly:
[I]f an accused conducts himself … in a manner that makes it impracticable to continue proceedings in his … presence, the court may order the accused to be removed and the proceedings to proceed in the accused's absence.
A judicial officer should show patience and courtesy towards any accused, including one appearing in person, even if they are misguided in their understanding of the law, procedure or facts.
A litigant in person cannot expect infinite latitude, particularly in the busy Magistrates Court. The court must provide litigants with an opportunity to be heard. However, if they choose to waste the hearing time allowed to them and to defy the magistrate's reasonable request to them to make submissions about the matter listed for hearing, as the appellant did, then they cannot later complain about the decision of a magistrate to proceed to determine their application. I therefore refuse leave to appeal on this ground.
As the substance of the appellant's complaint that the prosecution notice was invalid remains, I will now consider that issue. However in order to do so it is necessary to consider the way in which the appellant's submissions about the validity of the prosecution have developed as evidenced by his document filed in the appeal headed 'Addendum to Appellant's Outline of Submissions' dated 10 December 2018 (the submissions addendum) and in his oral submissions.
In the submissions addendum, the appellant argues that the prosecutor and Magistrate Malone were wrong to proceed on the basis that he had been served with a copy of the electronically created prosecution notice. Further if he was required to be served with a copy of electronically created prosecution notice, this requirement had been breached.
The appellant then repeats the arguments which he had made in the Magistrates Court about the invalidity of the service copy which were based on his understanding of Tey v Plotz. He concludes by submitting that there was no lawful prosecution either because he had not been served with a copy of the electronically created prosecution notice or because there was no prosecution notice which complied with the CPA sch 1 cl 3, presumably because it did not contain the signature of the person who issued the notice.
Since the proceedings in the Magistrates Court were concluded, the respondent has produced a copy of a signed prosecution notice, which the appellant tendered in the appeal.[121] In support of this ground of appeal, the appellant also tendered a copy of the prosecution notice that was served on him.[122] He relied on the electronically created prosecution notice provided by the Fremantle Magistrates Court to show that it was different from both the signed and service copies of the notice, in particular the signed and service copies named the prosecutor as 'WA Police' whereas the electronically created document named the prosecutor as the 'Police Department of WA'.
[121] Exhibit 5.
[122] Exhibit 4.
In oral submissions, the appellant further complained that the prosecution notice that was served upon him failed to contain a court number, a date of lodgement and a witness signature. The first two details appear on the copy of the signed prosecution notice.
Finally he suggested that the signed copy of the prosecution notice was fraudulent because it did not contain a court seal and date of lodgement.
The law
Section 21(3)(b) of the CPA provides:
A prosecution is commenced -
(a)…
(b)in the case of a prosecution notice signed under section 23 by an authorised investigator alone - on the day on which the notice is lodged with the court in which the prosecution is being commenced,
whether or not the notice has been served on the accused.
A police officer is an 'authorised investigator' and may commence a prosecution in the Magistrates Court.[123] Section 23(1) provides that Schedule 1 has effect in relation to prosecution notices and charges in them.
[123] CPA s 18 and s 20(3)(iii).
Section 23(2) provides that:
A prosecution notice must -
(a)be in writing in a prescribed form; and
(b)comply with Schedule 1 Division 2; and
(c)contain any information prescribed; and
(d)be signed in accordance with subsection (3) and, if necessary, subsection (4).
Section 23(3)(a) provides:
A prosecution notice must -
(a)if the prosecution is being commenced by an authorised investigator, either -
(i)be signed by the investigator alone; or
(ii)be signed by the investigator in the presence of either a JP or a prescribed court officer.
A prosecution notice must identify the prosecutor and if it identifies the police officer who issued it and it is signed 'it is sufficient' to name the 'WA Police' as the prosecutor.[124] As I explained in Tey v Plotz, this does not mean that a police officer who issues a prosecution notice does not have to comply with the other statutory provisions regarding the contents of a prosecution notice.
[124] CPA sch 1 cl 3.
The form of a prosecution notice is prescribed by the Criminal Procedure Regulations 2005 (WA) (the CP Regulations) r 4 and r 8. The form may be completed in writing or electronically. If completed electronically an approved user must enter the information required to complete the form into the courts electronic system.[125]
[125] CP Regulations r 4B.
The Magistrates Court (General Rules) 2005 (WA) (the General Rules) r 45(1) require all prosecution notices be lodged electronically[126] unless certain exceptions apply in which case 'a hard copy' of the notice may be lodged at the court.[127]
[126] Note, that lodgement of a prosecution notice is the step taken after creation of the notice. They are different processes.
[127] This requirement came into force in about 2015.
Although the General Rules speak of lodging a document electronically, that phrase is apt to mislead because whether a document is created and/or lodged electronically or a hard copy of the original written[128] document is lodged at court, what occurs is that information (data) is inputted into the courts electronic system and the electronic version of the document (in this case the prosecution notice) is created from that data.[129] Where a hard copy of the prosecution notice is lodged and the information from it is inputted into the courts electronic system, the court retains the hard copy of the prosecution notice.[130] Where a prosecution notice is created in writing and lodged electronically or a hard copy of it is physically lodged with the court, the person lodging it retains any original hard copy of the notice unless the original hard copy is the hard copy lodged with the court. It would not have any marking on it, such a court seal or court file numbers, identifying it as a lodged document.
[128] Written in this context includes typed.
[129] The General Rules r 13A(1) and r 45(3).
[130] The General Rules r 45(3)(b). Confusingly the Rules describe this as the 'original' document even though the requirement is to lodge a 'hard copy'.
Depending on the circumstances, the statutory provisions permit the following scenarios:
(a)The prosecution notice is created in writing, a hard copy of it is lodged at the court and a court officer inputs the data from it into the court's electronic system and an electronic version of the prosecution notice is created.[131]
(b)The prosecution notice is created in writing, the person issuing the notice lodges it at court by entering the data from it into the courts electronic system and an electronic version of the prosecution notice is created.
(c)An approved user completes the prosecution notice electronically and lodges it at court by entering the information required to complete and lodge the notice into the courts electronic system.
[131] The statutory scheme also appears to allow the original hard copy of a written prosecution notice to be lodged at the court.
It is only if option (c) is used that one version of the prosecution notice is created. If option (a) or (b) is used two versions of the prosecution notice will be created.
The other very important part of the statutory scheme is the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (the Electronic Processes Act). One of the purposes of the Act is to provide for the use of electronic technology in relation to procedures under the CPA.
It is unnecessary for me to refer to all the provisions from this Act which apply to the procedures under the CPA. Relevantly, it provides that where the form of a document is prescribed (as in the case of a prosecution notice), it is not necessary that the content and layout of the printed form or document and the means of completing the form or document electronically are identical, as long as the form or document, when completed by either means, is to the same effect.[132]
[132] The Electronic Processes Act s 15(b) and s 16(b).
In respect to compliance with any prescribed form the Interpretation Act 1984 (WA) s 74 states:
Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used.
The Electronic Processes Act s 10(1) further provides that where under a provision of the CPA, a document is required to be signed (as in the case of a prosecution notice), that requirement is to be taken to be satisfied if the document is authenticated in accordance with any rules of court. A prosecution notice lodged electronically is authenticated for the purposes of the Electronic Processes Act s 10 if —
(a)the courts electronic system records the identity of the person who lodges the document; and
(b)the name of the person who lodges the document is stated in the electronic version of the document at any place where the person's signature is required.[133]
[133] The General Rules r 13A (3).
If a prosecution notice contains simple offences (as this one did), the relevant authorised investigator must personally issue a court hearing notice to the accused or apply to the court for the issue of a court hearing notice to the accused.[134]
[134] CPA s 28(4). There is an alternative procedure for the issue of a warrant but the evidence was that the appellant was told that the matter would proceed by way of a court hearing notice and there is no evidence that this did not occur.
A court hearing notice must be in a prescribed form and either be attached to a copy of the prosecution notice or if the accused has already been served with the prosecution notice, identify the prosecution notice or the charges in it or be attached to a copy of the prosecution notice. A court hearing notice must contain certain information and must be served on the accused.[135]
[135] CPA s 33.
A court hearing notice must not be issued unless it complies with the above provisions.[136] However if it does not comply, it does not invalidate the court hearing notice but may be grounds for adjourning the prosecution.[137]
Merits of the ground of appeal
[136] CPA s 30(1) and (2).
[137] CPA s 30(3).
After the offences were committed, the appellant was advised that he would be charged by way of a notice to attend court.[138]
[138] ts 12, 27 April 2018 and the CPA s 28(4).
A hard copy or written prosecution notice was created and signed by Police Officer Bruce Allan Wyborn on 16 February 2017.[139] Police Officer Wyborn was an 'authorised investigator' as defined in CPA s 18. A copy of the electronically generated prosecution notice, albeit not in exactly the same form as the copy of the original prosecution notice containing Sergeant Wyborn's signature, states that it was lodged electronically on the same date. Thus in terms of the alternative means of creating and lodging prosecution notices option (b) (described above at [243]) was used.
[139] Exhibit 5.
The appellant complains that he was not served with a copy of the prosecution notice, which was either signed by the authorised investigator or the document that was generated electronically. He does not complain that he did not receive a copy of a prosecution notice containing the charges.
The service copy of the prosecution notice is in the prescribed form. It does not contain the information which is printed in the lower half of the first page of the signed hard copy notice. That is not a prescribed part of the form. The reason why the service copy does not contain that information is because it is a form for the court to complete with the record of court proceedings. It is only relevant to a court and is not relevant to an accused. Also the service copy does not contain the handwritten court numbers or Sergeant Wyborn's signature. The absence of the court numbers, court seal and date of lodgement are easily explained as this version of the prosecution notice was not physically lodged at court. Those numbers and date would have been added by hand to ant hard copy of original prosecution notice after the respondent lodged the prosecution notice electronically. The absence of Sergeant Wyborn's signature would logically be because it was a copy of the original hard copy prosecution notice which was made prior to Sergeant Wyborn signing the original. The CPA did not require Sergeant Wyborn's signature to be witnessed. The prescribed form contains a space for a witness signature presumably for those occasions where the CPA requires it.
The appellant submits that the result of the service copy omitting the prosecutor's signature but stating that the prosecutor is 'WA Police' is that the person issuing the notice is 'WA Police' and for the reasons I expressed in Tey v Plotz the notice is invalid. Tey v Plotz concerned the issue of the identity of the respondent to an offender appeal where the 'prosecutor' was named as 'WA Police' in the prosecution notice.
The appellant's reliance on Tey v Plotz is misconceived as the signed hard copy prosecution notice meets the statutory requirements for such a document. Relevantly, they are that the prosecution notice is in the prescribed form, contains the prescribed information, is issued by an approved investigator and contains that person's name and signature.
The signed and service hard copies of the prosecution notice do not contain court numbers, a court seal and date of lodgement but this is because they do not have to be and were not physically lodged at court. The absence of these details do not indicate that the signed copy of the prosecution notice was fraudulent.
As the appellant has pointed out, there are other differences between the signed and service copies of the prosecution notice as compared to the electronically lodged notice. The differences he points to are that the hard copies state that the 'Prosecutor' was 'WA Police' while the electronic version state that the 'Prosecutor' was 'Police Department of WA' and minor formatting differences. These differences are explained by the fact that the electronic version of the notice is not produced from the written hard copy prosecution but rather from information inputted into the courts electronic system. As detailed above, the law provides that such differences are permitted as long as the form of the notices are to the same effect.
The appellant has not explained how the difference in the name of the 'prosecutor' changes the effect of the prosecution notice and it seems to me that the effect is the same. The naming of the 'prosecutor' is required by the CPA but enabling the prosecutor to be identified by a generic name such as 'WA Police' is presumably done for practical reasons. As long as an accused knows from reading a prosecution notice that the prosecution is brought by a police officer or by another person who is authorised by a public authority to commence the prosecution, then the purpose of the provision is met. In this case the signed and service hard copies of the prosecution notice met the statutory requirements. That is it named the 'prosecutor' as 'WA Police' as permitted by the CPA sch 1 cl 3.
I do not know why the electronic version of the prosecution notice names the 'prosecutor' as the 'Police Department of WA'.[140] To my knowledge there is no such Department[141] and it is not a term used in the CPA. If I am right, then the courts electronic system should be changed to avoid any possibility of confusion.
[140] I have seen other electronically created prosecution notices with the same nomenclature.
[141] The Western Australian Government website indicates that the current name is 'Western Australian Police Force'.
The appellant in Blenkinsop v Wilson[142] advanced a similar argument that the prosecution notice was invalid because it failed to comply with the CPA s 23 because it was not signed and was not 'on the right form'.
[142] Blenkinsop v Wilson [2019] WASC 77.
Corboy J found that although the electronically lodged prosecution notices did not bear the respondent's signature[143] it did mean that the relevant provisions of the CPA had not been complied with. Additionally, his Honour found the respondent's failure to serve a copy of the signed prosecution notice on the appellant prior to the commencement of a trial did not render a later signed copy invalid.[144]
[143] But rather contained a statement as to the date on which the notice was signed and the name of the respondent as the person who had signed the notices.
[144] Blenkinsop [94] ‑ [96].
In the current case, the prosecution notice complied with the requirements referred to above set out in the CPA s 23(2). It was issued by an authorised investigator, and as permitted by the legislation it was signed by the investigator alone. There is also no dispute that it was lodged with the Fremantle Magistrates Court in accordance with the requirements of the CPA s 24.
It is clear that for a prosecution notice to be invalid, the defect complained of must go to the merits of the case.[145] The differences between the various versions of the prosecution notice in this case are not substantial and they do not invalidate the prosecution.
[145] See the discussion in Blenkinsop [98] ‑ [102].
However I agree with the appellant that the prosecutor and Magistrate Malone were wrong to proceed on the basis that he had been served with a copy of the electronically created prosecution notice. I have dealt with this ground of appeal on the fact accepted by both parties on appeal which is that the appellant was served with an unsigned copy of the written prosecution notice. For the reasons I have given above, the appellant was not required to be served with a copy of the electronically created prosecution notice.
I find that this ground of appeal has no reasonable prospects of success. I refuse leave to appeal on this ground.
Applications in the appeal
The key difference between the applications in the appeal is that the first application deals with jurisdictional issues while the second application deals with the constitutional issues, namely, the validity of the legislation surrounding the appellant's charges and prosecution.[146]
[146] It concluded with an application for a declaration that the Australia Act 1986 (Cth) is invalid. For the reasons previously expressed, I will not determine the purported application.
As none of the proposed grounds of appeal have reasonable prospects of success, I dismiss both applications. I will nonetheless consider the merits of the applications briefly for the parties' benefit.
The special case hearing application
As summarised at [24] the appellant has advanced four key contentions to support his application for a special case hearing.
Contention 1
References in the Australian Constitution to 'the Queen' were to Queen Victoria, the then Queen of the United Kingdom of Great Britain and Ireland, as the Crown was described in the preamble to the Constitution.
There is no dispute that Queen Elizabeth the Second, the Queen of Australia, is Queen Victoria's heir and successor in the sovereignty of the United Kingdom as well as in the sovereignty of Australia. Therefore pursuant to the Australian Constitution s 2, references to the Queen in the Australian Constitution extend to Queen Elizabeth the Second.[147]
[147] Pursuant to the Australian Constitution s 2.
It is a matter for Her Majesty, the Government of Australia and the Government of Western Australia to determine the 'Royal Style and Titles' to be used at any particular time in Australia and Western Australia. The adoption of different 'Royal Style and Titles' in Australia from that used in the Australian Constitution or by Her Majesty in her other realms and in other countries does not affect the validity of the acts done by Her Majesty and her Australian representatives pursuant to the Australian Constitution and the Western Australian Constitution.
Contentions 2 and 3
The appellant's argument that the Magistrates were invalidly appointed by the Queen of Australia and subsequently, had a duty to disclose this as an 'interest' is one of semantics.
In Glew v Shire of Greenough[148] Wheeler JA addressed the argument that the purported deletion of references to 'Her Majesty and the crown' from Western Australian legislation, including the District Court of Western Australia Act 1969 (WA) and their substitution with 'the State' or 'the Governor' rendered the District Court lacking lawful authority to administer the law within the State of Western Australia. Her Honour made the following observation:
There is no constitutional prohibition upon the alteration of the terminology which refers to the Crown or to her Majesty.
[148] Glew v Shire of Greenough [2006] WASCA 260.
It is similarly fallacious to argue that magistrates lack authority to administer the laws of Western Australia because they may have taken an oath of allegiance to Her Majesty the Queen, using one title rather than another.[149] The magistrates had no foreign 'interest' which they were obliged to disclose.
[149] This would only be the case in relation to magistrates who were appointed prior to the Magistrates Court Act 2004 (WA). Since the commencement of that Act, magistrates have been appointed by the Governor and they do not take an oath of allegiance to the Monarch.
I note also that the Magistrates Court Act 2004 (WA) s 34(1)(b) provides that in the absence of proof to the contrary, it is to be presumed in respect of any case dealt with by the court that the Magistrates Court was constituted according to law and had jurisdiction to try a case. There is no evidence to the contrary in this case.
Contention 4
There was no obligation on the Magistrates Court and there is no obligation on this court to indulge the appellant's request for a special case hearing which would be no more than a forum for him to expand on his worthless arguments on these issues.
Section 78B notice
In oral submissions, the appellant submitted that when he raised questions of jurisdiction which in part depended on the construction of the Australian Constitution, the presiding magistrate should have stood the matter down until a notice was issued pursuant to the Judiciary Act 1903 (Cth) s 78B.[150]
[150] ts 57.
It is not necessary for a court to issue such a notice if the constitutional issue raised is trivial, unarguable, frivolous or vexatious.[151]
[151] Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; Re Glew; Ex Parte the Hon Michael Mischin MLC, Attorney General (WA) [2014] WASC 107 [23]; Hopes v Australian Securities and Investments Commission [2016] WASC 198 [40] ‑ [41].
It is apparent from the above reasons, addressing the appellant's contentions, that the arguments advanced by the appellant are unarguable. Thus they did not and do not justify the issuance of a s 78B notice.
Disclosure application and the disclosure addendum
As outlined, the appellant seeks an order for disclosure of many documents, pieces of legislation, regulations and rules surrounding his prosecution, and the Australian Constitution.
As I have found, as there is no related ground of appeal that has reasonable prospects of success, the application ought to be dismissed. However, make the following comments about it.
The disclosure addendum[152] contains the following attachments:
(1)Letters Patent;[153]
(2)Australia Acts (Request) Act 1985 (WA) (the 1985 AA Act);[154]
(3)Acts Amendment (Constitution) (WA);[155]
(4)the Western Australian Constitution s 73; and
(5)two articles.[156]
[152] Handed up on 20 March 2019.
[153] Dated 14 February 1986.
[154] As at 15 January 2016.
[155] No. 59 of 1978.
[156] The first article, 'Key Judicial Decisions on the Constitution Act 1889 (WA) and the Constitution Acts Amendment Act 1899 (WA)' published by CJ McLure. The second article, 'The History, Scope and Prospects of Section 73 of the Constitution Act 1889 (WA)' published by Peter Congdon.
The disclosure application contains 32 paragraphs said to be the grounds of the application. A number of these paragraphs are identical or similar to the 'reasons' for the first application in the appeal. For the same reasons which I have expressed above in relation to that application, these grounds are without merit.
Additionally the grounds assert[157] that the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) (the 2003 AAR Act) removed 'the Crown and Monarch of England' from a large number of Western Australian statutes in contravention of the Australian Constitution s 2 and s 5. This argument has been considered and rejected by Wheeler JA (Pullin and Buss JJA agreeing) in Glew v Shire of Greenough. I am bound by the Court of Appeal's decision to reject that argument.
[157] Par 30.
The appellant asserts that the amendments in the 2003 AAR Act altered the office of the governor and therefore required the support of a referendum in order to come into effect.
The Western Australian Constitution s 50 states:
(1)The Queen's representative in Western Australia is the Governor who shall hold office during Her Majesty's pleasure.
(2)Abolition of or alteration in the office of Governor shall not be effected by an Act of the Parliament except in accordance with section 73(2).
(3)In this Act and in every other Act a reference to the Governor shall be taken -
(a)to be a reference to the person appointed for the time being by the Queen by Commission under Her Majesty's Royal Sign Manual to the office of Governor of the State of Western Australia; and
(b)to include any other person appointed by dormant or other Commission under the Royal Sign Manual to administer the Government of the State of Western Australia; and
(c)to also include any other person exercising, by virtue of an appointment by the Governor in accordance with Letters Patent, any powers and authorities of the Governor.
Section 73(2) provides that a Bill which expressly or impliedly provides for an alteration in the office of Governor shall not be presented for assent by or in the name of the Queen unless:
(f)the second and third readings of the Bill shall have been passed with the concurrence of an absolute majority of the whole number of the members for the time being of the Legislative Council and the Legislative Assembly, respectively; and
(g)the Bill has also prior to such presentation been approved by the electors in accordance with this section,
and a Bill assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.
It follows from their Honours' reasoning in Glew v Shire of Greenough that the 2003 AAR Act did not alter the office of governor or affect the identity of the Crown. Therefore the provisions of the Western Australian Constitution s 50(2) and s 73(2) did not apply to it.
The appellant raises a further argument in the disclosure addendum. This argument was not raised before the magistrates and it is not the subject of a ground of appeal. It is the basis for the appellant's claim for a declaration. On my understanding of the disclosure addendum and the appellant's oral submissions, the appellant relies on the following propositions:
(1)the 1985 AA Act was not the subject of a referendum despite the fact that it altered the office of the Governor;
(2)the next appointment of the Governor after the passing of the 1985 AA Act occurred in 1990;
(3)any Act assented to by the Governor after the passage of the 1985 AA Act is of no force in Western Australia;
(4)the Acts under which the appellant was charged were passed or amended after 1990; and
(5)the Acts under which the appellant was charged have no force or effect because they were assented to in contravention of the Western Australian Constitution s 73(2)(a), 73(2)(e) and 73(2)(g).
In the appellant's view, this line of interpretation renders the prosecution null and void because the legislation relied upon for his charges and subsequent convictions are invalid because the Governors that granted assent to the legislation on which his prosecution was based were appointed post‑1986.
Merits of the appellant's argument
I will not discuss the appellant's contentions in detail. They were not the subject of an application in the Magistrates Court, are not the subject of a ground of appeal and were introduced by the appellant with no notice to the respondent. I do not wish to appear to endorse the method by which the contentions were raised by giving them detailed consideration when they are not properly before the court.
However I rely on the below authorities in finding the appellant's contentions are devoid of any legal merit.
Wheeler JA in Glew v Shire of Greenough provided a helpful summary of the constitutional framework relevant to this case:
That broad legislative power in the State Constitution is qualified in only three ways. First, as I have noted, in some very limited areas the Commonwealth Constitution provides that the Commonwealth's legislative power is exclusive. That prevents the State from validly legislating at all in that area. Secondly, in some cases, as I have noted, the State can validly legislate, but if there is a valid Commonwealth law inconsistent with the State law, then the Commonwealth law will prevail while it is in operation. Thirdly, some State Constitutions have some restrictions relating to the way in which legislation concerning particular subject matters can be passed, such as s 73 of the State Constitution.
So far as the State Constitutions are concerned, unless there is some particular provision in the State Constitution prescribing the 'manner and form' for amending particular parts of the Constitution, then the State Parliament is free to amend the State's Constitution in any way it sees fit. That is, the State Constitutions can generally be amended as easily as any other Act. As the Privy Council has said, they occupy 'precisely the same position as a Dog Act or any other Act, however humble its subject matter' (McCawley v R [1920] AC 691 at 704) [10] ‑ [11].
The appellant's contentions, albeit in the context of the equivalent Queensland Constitution, have been considered and rejected by the Queensland Court of Appeal in Sharples v Arnison.[158] Holmes J (as she then was) in the Supreme Court of Queensland decision of Lohe v Gunter[159] noted that before and after Sharples, single judges of that court had reached conclusions to more or less similar effect, as her Honour did in that case.[160] I respectfully agree with the reasoning of the Queensland judges and conclude that it applies equally to the appellant's contentions in this case.
[158] Sharples v Arnison [2001] QCA 518; [2002] 2 Qd R 444.
[159] Lohe v Gunter [2003] QSC 150.
[160] Lohe v Gunter [6] ‑ [7].
Conclusion
Many of the appellant's assertions contained in his grounds of appeal and the two applications in the appeal are unintelligible. To the extent that I have been able to discern the meaning of certain portions of them, they lack any legal merit.
Whilst I accept that the appellant is not a legal practitioner, it is clear that he desires to litigate any point which occurs to him regardless of whether there is any sound logical or legal basis for his assertions. The line of arguments advanced by the appellant in pre‑trial hearings and the trial appear to be mere attempts to stall the prosecution or re‑litigate issues that have been already dealt with by the courts. None of those issues that the appellant asserts in this appeal justify a grant of leave to appeal.
Costs
Given the above decision and the bases for it, it is just and appropriate that I order the appellant pay the respondent's costs of the appeal. In order to avoid further wastage of time and money, it is also just that I fix those costs rather than order that they be taxed.
The respondent provided a draft bill of cost in the sum of $9,632 plus the costs of the hearing before me. The respondent's counsel advised me that the draft bill understated the actual costs by about $5,000. Despite this counsel for the respondent said it sought a costs order in the sum of $5,000.
Having examined the draft bill of costs and being very familiar with the issues dealt with in the appeal, I am satisfied that it is just that the appellant pay the respondent's costs of the appeal fixed in the sum of $5,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Jenkins2 JULY 2019
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