131 The source of the reference to legal aid having been denied to Mr Norman Gazeley at an early stage is not clear (although it appears that aid may have refused at one point prior to May 2013). However, the fact that his Honour may have formed a mistaken impression about that matter does not mean that he erred in allowing the prosecution against Mr Norman Gazeley to proceed. Mr Norman Gazeley provided no explanation as to why he was able to institute an appeal prior to the commencement of the trial (from the magistrate's decision about the evidence of operative 2) but was unable to prepare for the trial in the time available. 132 As to the magistrate's knowledge of the appeals commenced by Mr Allan Gazeley and Mr Norman Gazeley, those were matters that were properly disclosed by the prosecutor in open court: and see, for example, the procedure that had been adopted by the trial judge in Promizio which the New South Wales Court of Appeal plainly considered to have been appropriate. The magistrate's response indicated that he was unaware that the appeals had been commenced before being advised by the prosecutor.
133 There is no merit in this proposed ground of appeal.
Mr Allan Gazeley's proposed ground of appeal 5
134 As has been explained, the question of Mr Allan Gazeley's fitness to stand trial was determined at a hearing held prior to the trial. That determination is the subject of another proposed ground of appeal.
135 The magistrate considered the material transmitted to him on 17 November 2013 concerning Mr Allan Gazeley's health. Again, his decision to convict Mr Allan Gazeley in his absence is the subject of another proposed ground of appeal. The magistrate had no other information before him concerning Mr Allan Gazeley's circumstances as Mr Allan Gazeley did not attend the trial.
136 The circumstances in which Mr Allan Gazeley apparently found himself without legal representation by the time of the trial have been outlined. They do not explain why Mr Allan Gazeley did not attend the trial.
137 This proposed ground of appeal does not contain any allegation that is not made in another proposed ground of appeal.
Mr Della-Santina's proposed ground of appeal 8
138 The circumstances in which LAWA granted aid to Mr Della-Santina subject to a financial contribution condition have already been explained. It was Mr Della-Santina's admitted failure to comply with that condition that resulted in him appearing in person at the trial. There was no evidence that LAWA conspired with the respondent or his legal representatives, and there is no foundation for the allegations made in this proposed ground of appeal.
The applications to adjourn the trial
(Mr Norman Gazeley's proposed grounds of appeal 1.11, 1.13, 1.21, 1.23, 1.24, 3.1; Mr Allan Gazeley's proposed grounds of appeal 4 and 5; Mr Della-Santina's proposed ground of appeal 1)
The application 139 The magistrate inferred that Mr Della-Santina wished to have the trial adjourned after his solicitor had withdrawn. He questioned Mr Della-Santina on the steps that he had taken to obtain representation and to prepare for the hearing. The answers that were provided were vague.
140 Mr Della-Santina stated that the solicitor who had initially represented him had applied for, but had been refused, legal aid. The solicitor had then terminated her retainer as 'she reckon she couldn't [get] in touch with me and things like that on the phone' (18 November, 2013, ts 11). Mr Della-Santina stated that he had 'not really' undertaken any preparation for the trial and that he could not afford to engage a lawyer.
141 As has been explained, the solicitor who had been engaged to appear for Mr Norman Gazeley also sought and was given leave to withdraw on the first morning of the trial. He advised the court that he was no longer acting and that he had sent a message to the court to advise of that fact the previous week (18 November 2013, ts 2). The magistrate indicated that he had not received the message but the solicitor was excused.
142 After hearing submissions from the prosecutor on Mr Della-Santina's application for an adjournment (which included a short history of the proceedings), the magistrate inquired whether Mr Norman Gazeley sought an adjournment. Mr Norman Gazeley replied, 'I'm going to have to because I need a lawyer. I can't represent myself' (18 November 2013, ts 18). He then stated that he was not sure why his counsel had withdrawn. He added, 'Yes, well, we gave instructions and they said they couldn't do it' (ts 18). He also added, in answer to further questions from the magistrate, 'I don't really understand it all. It's beyond me. I'm partly illiterate' (ts 19).
The magistrate's reasons
143 The magistrate refused the applications for an adjournment of the trial and declined to stay the prosecutions. In summary, his Honour reasoned that:
(a) The applications raised 'competing interests of justice', referring to Sekyere-Boakye v Whitney [2013] WASC 147 and Lassock v Seidner [2013] WASC 94. However, his Honour recognised that the primary interest was in 'allowing accused people to properly present their trial, and not be disadvantaged by being self-represented' (18 November 2013, ts 27). (b) All of the circumstances had to be considered and 'obviously, Dietrich effectively hovers over all these decisions' (ts 27).
(c) The elements of each of the offences with which Mr Norman Gazeley and Mr Della-Santina had been charged were not complex. The issues raised by the charges were largely factual.
(d) The 'overall impression' that he had formed was that counsel for each of the appellants had been unable to obtain sufficient instructions to conduct the trial. That was not the fault of the prosecution and there was 'nothing to suggest that the same situation wouldn't present itself at a later time' (ts 28).
(e) Adjournments were not available for the asking. The orderly disposal of the court's work was undermined when criminal trials were adjourned unnecessarily. The trial had been listed for 10 days and it would cause great inconvenience to 'the system' if it was adjourned. That was not a 'critical' determination, but it was a matter to be taken into account.
(f) The 'bottom line' was that 'the conduct of the defence is what has caused the situation, and it has been the conduct of the accused that has led to this situation' (ts 29). The charges were not so complex that the accused could not represent themselves, particularly as they had received the benefit of legal advice prior to the trial.
(g) The principles identified by the High Court in Dietrich did not apply; there would not be a miscarriage of justice merely because Mr Norman Gazeley and Mr Della-Santina were not represented at the trial.
144 The magistrate then indicated that he would further adjourn the trial until the following day. That would enable Mr Della-Santina to re-engage his former solicitor if he was able to satisfy the condition imposed on his grant of legal aid.The appellants' allegations
145 Mr Norman Gazeley complained that the trial was permitted to proceed in circumstances where his counsel had only received a voluminous amount of documentary and surveillance evidence shortly prior to the trial; he was subsequently unrepresented at the trial; Mr Della-Santina was also unrepresented, notwithstanding that he had been classified by the Department of Veterans' Affairs as being totally and permanently incapacitated; Mr Allan Gazeley's counsel had ceased acting shortly prior to the trial and Mr Allan Gazeley was suffering 'a mental breakdown with anxiety and depression'. It was contended that there was insufficient time to prepare for the trial and the trial ought to have been adjourned or stayed until such time as the appellants were provided with legal representation. The decision by the magistrate to allow the trial to proceed was unfair, unjust and constituted an abuse of process.
146 Mr Allan Gazeley alleged that the magistrate erred 'when he did not grant an adjournment on the sum weight of the medical grounds and the manifest requirement of legal representation' (proposed ground of appeal 5). He also alleged that the magistrate erred in his characterisation of the nature of the charges and by refusing to adjourn the trial until legal representation was provided (proposed ground of appeal 4).
147 Mr Della-Santina alleged in his notice of appeal that he was 'mentally unfit' to stand trial; that he was forced to defend himself unrepresented and that he was denied legal counsel or a duty lawyer throughout the trial (proposed ground of appeal 1).
The relevant principles
148 Edelman J summarised in Eley v Town of Victoria Park [2014] WASC 103 [24] the principles relevant to an appeal on the ground that a magistrate had erred by failing to grant an adjournment of a trial:
(a) Whether an adjournment should be granted is a matter of discretion and it must be shown that the magistrate has erred in exercising the discretion. The principles relevant to an appeal from the exercise of a discretion apply. (b) Appeals against a magistrate's refusal to adjourn a trial have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice.
(c) Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless serious injustice would be caused to the other party.
(d) It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence.
(e) The fact that a defendant is unrepresented by a lawyer cannot, of itself, amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances.
(f) Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily.
149 See also Lassock v Seidner in which Hall J observed:
In addition to the question of injustice to the parties it is also necessary for a judicial officer to take into account the public interest in the orderly and expeditious disposition of cases in busy courts. There is a strong public interest in the timely disposition of all criminal cases. The effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing need to be taken into account. However, those considerations will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused person of the opportunity to present a case which has a reasonable prospect of success: The State of Western Australia v Sillich [2011] WASCA 135 [37] (Martin CJ) [23].
150 An appellate court will not interfere with a discretionary order of this kind unless there is a strong reason for believing that an injustice has resulted: Myers v Myers [1969] WAR 19, 21. Section 14(2) CAA provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. 151 As has been noted, the appellants' complaints concerning LAWA and their lack of representation where linked to the allegations that they made about the magistrate's refusal to adjourn or stay the prosecutions. It is necessary to consider the nature and seriousness of the charges alleged against them in determining those complaints and allegations.
The charges
The prescribed penalties
152 The charges alleged against the appellants were summarised earlier in these reasons. They were each charged with contravening s 74(1) FRM Act. The penalty prescribed for a breach of that section is a fine for a first offence and a fine and imprisonment for a maximum of 3 years for a second or subsequent offence. Mr Norman Gazeley was also charged with an offence under s 172(b) (a charge laid under that section against Mr Della-Santina was withdrawn). The penalty for a breach of that section is a fine and imprisonment of 12 months.
153 The penalty for all other offences allegedly committed by the appellants was a fine and, in some instances, additional financial penalties under s 222 FRM Act.
The elements of the offences
154 The offences allegedly committed by the appellants substantially consisted of doing a prohibited act in respect of which the prosecution was not required to prove any mental or objective purpose:
155 (a) s 46, s 51 and s 172 FRM Act – possession of totally protected fish; exceeding the prescribed possession limit for fish and interfering with another person's fishing gear (the prosecution was also required to prove that the accused was acting without the authority of the owner or did not have some other lawful excuse – matters on which the accused would carry an evidentiary onus);
156 (b) regs 31, 35, 117 and 121 FRM Regulations – submerging more than four rock lobster pots without a commercial fishing licence; possession of lobster tails; no current fishing boat licence and taking and selling rock lobster without a commercial fishing licence.
157 Section 74(1) FRM Act (contravening the West Coast Rock Lobster Management Plan) required the prosecution to prove that the alleged contravention was intentional or reckless. Section 82 FRM Act (processing rock lobster for a commercial purpose) and reg 64 (failing to record the sale of rock lobster taken for the purpose of sale) required the prosecution to prove the mental state of the accused or an objective purpose accompanying the alleged contravening act. Proof of those matters was facilitated by s 211 FRM Act which provides that 'in any proceeding for an offence against this Act, an averment in the charge that an act occurred for a particular purpose or that anything was done with a particular intent must, on proof of the act occurring or the thing being done, be taken to be proved, unless the contrary is proved'.
The nature and seriousness of the charges
158 Accordingly, the issues raised by the charges were substantially whether Mr Norman Gazeley and Mr Della-Santina had done the acts that constituted the offences and in, some instances, whether the acts had been done for a commercial purpose or for the purpose of sale. As the magistrate observed, the elements of the offences allegedly committed by Mr Norman Gazeley and Mr Della-Santina were not complex and the charges raised for determination matters that were 'essentially factual' (18 November 2013, ts 28). The charges concerned matters that ought to have been readily comprehended by Mr Norman Gazeley and Mr Della-Santina and which were within their knowledge.
159 Further, in my view, the risk of the appellants being sentenced to a term of imprisonment on conviction of the charges was slight having regard to the nature of the offences with which they had been charged, the circumstances alleged in the statements of material facts and the penalties prescribed. That conclusion is significant in determining the proposed grounds of appeal concerning the lack of legal representation for reasons that have already been explained.
Some general conclusions
160 In my view, Mr Norman Gazeley and Mr Della-Santina have not established that the magistrate erred in exercising his discretion to refuse their applications for an adjournment of the trial (it being necessary, of course, for a House v The King [1936] HCA 40; (1936) 55 CLR 499 error to be identified).
161 First, the question of an adjournment arose after the solicitors for Mr Norman Gazeley and Mr Della-Santina had withdrawn. As the magistrate recognised, it was then necessary to determine whether the proceedings should be adjourned or stayed until such time as Mr Norman Gazeley and Mr Della-Santina obtained legal representation. It was open to the magistrate to conclude that the proceedings should not be further adjourned or stayed for the reasons that have already been given: there was no real risk that Mr Norman Gazeley or Mr Della-Santina would be sentenced to a term of imprisonment if convicted (that is, the charges were not 'serious' charges for the purpose of the principles identified in Dietrich); the charges alleged against them involved essentially factual matters that were within their knowledge; and their conduct had significantly contributed to the circumstances in which their solicitors had ceased to act.
162 Second, the magistrate was entitled to take into account the considerable time that it had taken for the prosecutions to be listed for trial and the anticipated length of the trial. Trial allocation hearings had been held on 16 May, 11 July, 15 August, 23 October and 20 November 2012, and 15 January and 26 February 2013. The trial was finally listed at a trial allocation hearing convened on 11 June 2013 - five months prior to the listed commencement date for the trial. Although Mr Norman Gazeley and Mr Della-Santina had legal representation as late as the directions hearing on 28 October 2013, it was apparent from their answers to questions from the magistrate that they had taken no steps to prepare for the trial - a trial which, as the magistrate observed, largely involved factual allegations that were not particularly complex or difficult to comprehend.
Mr Norman Gazeley's proposed ground of appeal 1.11
163 The comment made by the magistrate in sentencing to which this proposed ground of appeal refers reflected a view that his Honour had formed that Mr Norman Gazeley lacked insight and remorse in the face of findings of guilt on a prosecution case that was strong and to which, in his Honour's opinion, there had been no available defence except for the question of whether evidence had been illegally obtained by operative 2. The comment does not disclose that there was any error made by the magistrate in finding that the charges alleged against Mr Norman Gazeley (and Mr Della-Santina) were not complex.
Mr Norman Gazeley's proposed ground of appeal 1.13
164 The comment made by the magistrate to which this proposed ground of appeal refers also reflected his view that there was no defence to the charges alleged against Mr Norman Gazeley, apart from the question of whether evidence had been illegally obtained. His Honour considered and determined that issue in the course of the trial and held that the evidence given by operative 2 had not been illegally or improperly obtained. The issue was considered and determined despite the position taken by Mr Norman Gazeley - he made no submissions on whether the evidence had been illegally obtained, notwithstanding that he had instituted an appeal that expressly referred to the High Court decision in Ridgeway shortly prior to the commencement of the trial.
165 This proposed ground of appeal does not disclose any reasonably arguable error made by the magistrate in refusing Mr Norman Gazeley's application to adjourn the trial.
Mr Norman Gazeley's proposed ground of appeal 1.21
166 The magistrate did consider and apply the relevant principles in determining Mr Norman Gazeley's application for an adjournment of the trial. It was open to the magistrate to reject the application for the reasons that have already been given.
167 There is no evidence that the respondent was motivated by malice in charging and prosecuting Mr Norman Gazeley (or the other appellants) or that the charges and prosecutions were maintained for an improper purpose. There is also no foundation for the allegation that the prosecutions were improperly conducted by the respondent's solicitors.
168 There is no merit in this ground of appeal.
Mr Norman Gazeley's proposed ground of appeal 1.23
169 The matters alleged in this proposed ground of appeal have already been considered except for:
(a) the allegation that the prosecution withheld exculpatory evidence - the evidence that is alleged to have been withheld has not been identified but the question of whether the respondent failed in his obligation to give disclosure is considered later in these reasons;