Swift v Rogers
[2020] WASC 20
•4 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SWIFT -v- ROGERS [2020] WASC 20
CORAM: TOTTLE J
HEARD: 16 JANUARY 2020
DELIVERED : 4 FEBRUARY 2020
FILE NO/S: SJA 1082 of 2019
BETWEEN: RICHARD RONALD SWIFT
Appellant
AND
PETER EDWARD ROGERS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E CAMPIONE
File Number : PE 43201 of 2018, PE 43202 of 2018, PE 43203 of 2018, PE 43204 of 2018
Catchwords:
Criminal law - Appeal against conviction - Procedural fairness - Whether magistrate denied appellant right to object - Whether magistrate provided impermissible assistance to prosecution - Practical fairness - Appeal dismissed
Criminal law - Criminal procedure - Validity of prosecution notice - Whether electronically generated prosecution notice did not bear signature of prosecutor - Prosecution not invalidated
Legislation:
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA)
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2)
Criminal Procedure Act 2004 (WA), s 23, s 24, s 172(3)(a)(i)
Criminal Procedure Regulations 2005 (WA), reg 8
Legal Profession Act 2008 (WA), s 12(2)
Magistrates Court (General) Rules 2005 (WA), r 46B(1)
Magistrates Court Act 2004 (WA), s 34(4)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal on all grounds refused.
Appeal dismissed.
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr S Pack |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Blenkinsop v Wilson [2019] WASC 77
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
O'Connell v The State of Western Australia [2012] WASCA 96
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sprlyan v Wyborn [2019] WASC 227
TOTTLE J:
Introduction
On 23 May 2019 the appellant was convicted of four road traffic offences following a trial in the Magistrates Court. The appellant seeks leave to appeal against those convictions.
The offences were committed on 17 August 2018 and were as follows:
(a)failure to comply with the requirement of a member of the Western Australian Police Force to provide a sample of his breath for a preliminary test contrary to s 67A(1) of the Road Traffic Act 1974 (WA) (RTA);
(b)failure to comply with the requirements of a member of the Western Australian Police Force to provide a sample of his breath for analysis contrary to s 67(2)(a) of the RTA;
(c)failure to comply with the direction of a police officer to provide any or all his personal details, contrary to s 32(4)(a) of the Road Traffic (Administration) Act 2008 (WA);
(d)driving a motor vehicle, on a road, whilst not being a person authorised by Pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) and whose authority to drive was at the time suspended, contrary to s 49(1)(a) and (3)(c) of the RTA.
The facts as found by the magistrate
The magistrate found the following facts were established by the evidence.
A car being driven by the appellant in Mount Lawley was stopped by police officers on 17 August 2018. One officer approached the car and spoke to the appellant. In response to a request to produce his driver's licence the appellant said he did not have his licence with him. When asked by the police officer for his name the appellant refused to provide it saying, in effect, that he did not think he was required to do so as he had not done anything wrong.
The police officer requested a preliminary sample of the appellant's breath for analysis and gave instructions to the appellant as to how he should blow into an approved testing apparatus held by the police officer. The request was repeated on three separate occasions and on each occasion the appellant refused to provide a sample.
The appellant was placed under arrest and removed from the car. A search of the appellant's person uncovered a bankcard displaying the appellant's name. Further inquiries into the appellant's identity revealed that his driver's licence had been suspended by court order on 27 June 2018 for a period of nine months.
The police officers took the appellant to a mobile breath testing station. He was asked to provide a sample of his breath on three occasions and on each occasion he refused.
Grounds of appeal
The appellant seeks leave to appeal on five grounds contained in his appeal notice. In summary the grounds allege:
(1)The magistrate 'led' the police prosecution.
(2)The magistrate denied the appellant the right to object to evidence.
(3)The magistrate denied the appellant the right to submit evidence.
(4)The correct seals were not used for the transaction of the court's business.
(5)The magistrate permitted the police prosecutor to 'practice law at the bar'.
Leave to appeal
Leave of the court is required for each ground of appeal pursuant to s 9(1) of the Criminal Appeals Act 2004 (WA). The appeal is taken to have been dismissed unless the court grants leave on at least one ground of appeal.[1]
[1] Criminal Appeals Act 2004 (WA) s 9(3).
Leave to appeal must not be granted unless the court is satisfied that the ground of appeal has a reasonable prospect of succeeding.[2] That means that the ground must have a rational and logical prospect of succeeding.[3]
[2] Criminal Appeals Act 2004 (WA) s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
Disposition
Three preliminary matters
Before turning to the grounds set out in the appeal notice I will deal with three matters.
First, at the commencement of the hearing the appellant pointed to an error in the title page of the transcript of the hearing before the magistrate. The error was that one of the police officers who gave evidence was recorded as having appeared for the appellant at the trial. The appellant argued the transcript was unreliable and false or misleading and the hearing of the application for leave to appeal should be adjourned to enable a corrected transcript to be produced. In support of this argument the appellant directed my attention to various passages in the transcript where what was being said in court had not been reproduced in full or where the appellant said it was unclear who was speaking. It is unnecessary to refer to these passages. I considered them in the course of the hearing and was satisfied that the passages did not present the difficulties identified by the appellant and, in any event, the relevant passages were not material to any ground of appeal. Whilst the title page to the transcript contains the error identified by the appellant, I was satisfied that the transcript was sufficiently reliable to enable the application to proceed without the appellant suffering any prejudice. Further, it became apparent in my discussion with the appellant that none of the matters which the appellant claimed were false or misleading had actually misled the appellant.
Second, in the course of the hearing the appellant submitted that the prosecution notice did not bear the signature of the person who issued the notice or of any witness. This was a point mentioned by the appellant at the hearing before the magistrate. It is not a matter which forms the subject of one of the grounds of appeal but I will deal with it, albeit in a summary way.
The statutory provisions governing a prosecution notice are to be found in the Criminal Procedure Act 2004 (WA), s 23 and s 24, the Criminal Procedure Regulations 2005 (WA), reg 8 and the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA), s 10(1), s 15(b) and s 16(b). The way in which those provisions interact was explained by Corboy J in Blenkinsop v Wilson,[4] and Jenkins J in Sprlyan v Wyborn.[5] The short point is that these provisions do not require a paper version of the prosecution notice bearing a handwritten signature to be tendered before the magistrate. Most, if not all, prosecution notices issued by police officers are created as described by Jenkins J in Sprlyan v Wyborn at [243(c)]. In any event, the defects alleged by the appellant were not in any way material to the merits of his case and strict compliance with s 23 of Criminal Procedure Act 2004 is not required for a prosecution notice to validly invoke the jurisdiction of the court to hear and determine the charge alleged by the notice.[6]
[4] Blenkinsop v Wilson [2019] WASC 77 [92] - [102].
[5] Sprlyan v Wyborn [2019] WASC 227 [235] - [251].
[6] Blenkinsop v Wilson [2019] WASC 77 [100]. Citing Calandra v Civil Aviation Safety Authority [2015] WASCA 31 (Martin CJ, Mazza & Hall JJA agreeing).
Thirdly, in the appellant's written outline of submissions he raised a number of arguments supported by references to materials as diverse as the Lieber Code and the King James Bible. On the most charitable view these arguments disclose that the appellant has a profound misunderstanding of the law. Other than to record that the arguments provide no support for the appellant's grounds of appeal, I will not address them in this judgment.
Ground 1 - 'The magistrate led the police prosecution'
In the course of cross-examining the prosecution's first witness the appellant asked the witness whether the witness understood the rule of law and asked him to explain to the court his interpretation of the rule of law. Her Honour interjected and the following exchange took place:[7]
HER HONOUR: Well, you're not required to answer that unless you are also qualified as a lawyer?---I'm not qualified as a lawyer, your Honour. No.
No. Okay. All right. Well - - -
ACCUSED: No disrespect, but it seems like you're leading the prosecution from the bench.
HER HONOUR: I have got powers under section 138 of the Criminal Procedure Act, and I'm exercising those powers. You're asking - - -
ACCUSED: What was that? What was that Act, sorry?
HER HONOUR: - - - questions which I find to be irrelevant. We don't have the luxury of sitting to hear the matter forever and a day. We really have to get through the evidence as quickly as possible. All right. So your next relevant question, please, Rick.
[7] ts 115.
A short time later in the course of the appellant's cross-examination of the same witness the following exchange took place:[8]
ACCUSED: Okay. So do you believe everything that has been submitted as evidence, and your statement is true and correct?
HER HONOUR: Well, they're two questions.
ACCUSED: Well, I will break it down then. Yes.
HER HONOUR: Because he has already said that there's a mistake in his statement.
ACCUSED: Yes.
HER HONOUR: Is there an objection, Sergeant?
BEDELLS, MR: Your Honour, I don't think - - -
ACCUSED: No, that's leading.
[8] ts 130.
These exchanges were two out of a total of nine examples cited by the appellant of instances relied upon by him to make good the proposition that the magistrate led (by which I understood him to mean impermissibly directed or assisted) the prosecutor.[9]
[9] ts 111, 115, 116, 130, 131, 137, 140, 156, 160.
In O'Connell v The State of Western Australia[10] Mazza JA, with whom Martin CJ and Buss JA agreed, made the following observations about the obligations of a trial judge to ensure a fair trial:[11]
It is trite to say that a fundamental obligation of a trial judge is to ensure a fair trial according to law. The concept of the fair trial means fairness to the accused and to the prosecution. It is the duty of a trial judge to conduct the trial in accordance with due process, fairly and impartially: Michael v The State of Western Australia [2007] WASCA 100 [69] (Steytler P).
It is necessary that a trial judge control the proceedings. For example, a trial judge may intervene in order to prevent irrelevant matters being raised and pursued, and any necessary delays or disruptions. A trial judge should protect witnesses from being required to answer irrelevant, embarrassing and scandalous questions and to prevent questions becoming speeches or statements to the jury: Michael v The State of Western Australia [65] and [68], s 26 Evidence Act 1906 (WA).
[10] O'Connell v The State of Western Australia [2012] WASCA 96.
[11] O'Connell v The State of Western Australia [103] - [104].
Having read the passages of the transcript identified in the appellant's submissions I am satisfied that the magistrate was not leading, directing or assisting the prosecutor. The magistrate was doing no more than ensuring that there was a fair trial and one that proceeded efficiently. There was nothing about the magistrate's conduct of the trial that lent any support to this ground of appeal. The ground has no reasonable prospect of success and I refuse leave to appeal in respect of it.
Ground 2 – 'The magistrate denied the appellant the right to object'
In the opening stages of the hearing before any evidence was called the appellant interrupted the magistrate and the prosecutor when they said something with which he disagreed. The appellant articulated his disagreement by using the phrase 'I object to that' and 'I object'.[12]
[12] ts 78, 82.
Before the prosecutor made his opening statement the magistrate explained the procedure that would be followed in the course of the hearing and the following exchange took place between her Honour and the appellant:[13]
HER HONOUR: Okay. All right. So I will take a few moments to explain the procedure to you. The prosecutor will call each of his witnesses in turn. After the witness is sworn or affirmed he or she will be asked a number of questions to elicit their evidence-in-chief. And in that way they will tell me their evidence; what they know about the matters before the court. So when the evidence-in-chief is completed you will have the opportunity to cross-examine the witness. So if a witness, during evidence-in-chief, says something that you do not agree with, you do not interrupt. You make a note on your pad and when it's your turn you will be given the opportunity to ask some questions.
ACCUSED: Okay. So don't object while they're speaking.
HER HONOUR: So you can ask any questions in cross-examination that you believe are relevant to the charge. There are a couple of things that you must ask which are imperative. So if there is any evidence that you've heard with which you do not agree, then when it is your turn to cross-examine you must challenge the witness about that evidence. If you fail to do so then the court may take it that you do not take issue with that evidence …
[13] ts 86 - 87.
Shortly after the magistrate provided that explanation the appellant 'objected' in the course of the prosecutor's opening statement. The relevant exchanges were as follows:[14]
[14] ts 89 - 90.
BEDELLS, MR: … The accused has responded 'I haven't done anything wrong, so I do not have to tell you anything'.
ACCUSED: I object. I didn't say that.
BEDELLS, MR: The accused was then required to provide a breath test pursuant to section 66 of the Road Traffic Act. He has refused to provide a sample for the preliminary breath test on three occasions and then he was arrested to establish his details and because he was continuing to refuse to provide a breath test.
ACCUSED: No. I object. I didn't actually refuse a Breathalyser.
HER HONOUR: So, Rick, as I said before if something is said that you don't agree with - this is the prosecution case - so - - -
ACCUSED: Okay. I thought it was witness only. Sorry.
HER HONOUR: Okay. So - okay he is anticipating the evidence that's going to be heard.
ACCUSED: Yes.
HER HONOUR: So if the witness does, in fact, come up to prove and say those things - so when it's your turn in cross-examination then absolutely, you challenge them and say 'I didn't do that, I didn't say that'.
ACCUSED: But, yes.
HER HONOUR: Okay.
ACCUSED: Okay. Thanks for that. Yes.
HER HONOUR: So maybe don't interrupt the prosecutor.
ACCUSED: Okay. I thought that was just the witnesses. Sorry.
In the course of a short opening statement the appellant outlined his case as follows:[15]
ACCUSED: Well, just I will be objecting to everything that has been said by the prosecutions anyway. So I just want that on the record already that everything that he was saying I will be objecting to. And I wasn't actually driving; I wasn't in [commerce] on the day.
HER HONOUR: You what, sorry?
ACCUSED: I wasn't actually driving on the day. I wasn't actually using a motor vehicle in [commerce]. And so the other party will need to prove that I was in [commerce] and driving a vehicle.
[15] ts 90 - 91.
It is clear from the exchanges to which I have referred that when the appellant said that he was or would be objecting to matters, he was communicating that he disagreed with what had been said and would be challenging the evidence. The substance of the magistrate's explanation was that the appellant would have his opportunity to explain the reason why he disagreed - or objected - to the prosecution's case at a later stage in the hearing and that it was unnecessary to communicate his objection by interrupting the prosecutor during his address to the court or a witness as they were giving evidence.
The first prosecution witness gave his evidence‑in‑chief and the appellant began his cross-examination. In the course of the cross‑examination the appellant asked the witness some questions about the application of the law of theft to the removal of property without a warrant. The prosecutor objected to the questions. The objections and the following exchanges between the magistrate and the appellant were as follows:[16]
[16] ts 110 - 111.
BEDELLS, MR: Your Honour, the prosecution arises here.
HER HONOUR: Yes.
ACCUSED: No, he's objecting.
HER HONOUR: He is allowed to.
ACCUSED: How come I wasn't allowed to object then when what he was saying?
HER HONOUR: Because you were challenging his evidence.
ACCUSED: This is not a fair and just trial, is it?
HER HONOUR: Just have a seat. Let me hear from the prosecutor.
ACCUSED: But this is not fair and this is not just.
HER HONOUR: All right. What's your objection, Sergeant?
BEDELLS, MR: My objection goes to relevance, your Honour …
A short time later the appellant raised with the magistrate the right to make an objection. The relevant exchange was as follows:[17]
ACCUSED: I have a question.
HER HONOUR: So I've made a ruling, so let's move on.
ACCUSED: I have a question then. You said that I wasn't allowed to object to anything that was said by the - I was to sit and remain quiet, but can you explain to me how come the police prosecutor - - -
HER HONOUR: Well, the transcript will reveal that I - - -
ACCUSED: How can the police prosecutor be saying - - -
HER HONOUR: - - - never said to you that you were required to remain seated and quiet, and not object, so if you have any objections to the way that I'm running the trial, then you can take them up on appeal. All right.
ACCUSED: Yes. Okay.
[17] ts 115-116.
As referred to at [19] the magistrate was obliged to ensure that the appellant received a fair trial according to law. The essence of this ground of appeal is that there was a lack of procedural fairness as the appellant was under a misapprehension that he was unable to object to questions asked by prosecutor in the course of the examination-in-chief of the prosecution witnesses. As the respondent submitted, however, fairness is not an abstract concept; rather, it is essentially practical.[18]
[18] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]-[38] (Gleeson CJ).
I accept that the appellant may have been under the misapprehension that he was not permitted to object to the prosecutor's questions in the course of the examination-in-chief of the first prosecution witness. This was a misunderstanding on his part of the explanation of the procedure that the magistrate had given in response to the appellant's 'objections' to things that had been said by her Honour and by the prosecutor. The misapprehension subsisted, however, only during the evidence-in-chief of the first prosecution witness. I have considered the questions asked by the prosecutor in the course of his examination of the first witness and the evidence given by that witness. The examination was conducted in an orthodox manner and there was no reasonable basis to object to the questions asked. Even though the appellant may have disagreed with the evidence elicited from the witness - or, to use his term, 'objected' to it - the evidence was admissible. It was evidence of facts that were uncomplicated. In his closing submissions the appellant developed arguments about the admissibility of the prosecution evidence, which were rejected by the magistrate, and which were unrelated to the complaint raised by this ground of appeal.
I am comfortably satisfied that no practical unfairness was suffered by the appellant and that this ground of appeal has no reasonable prospects of success and I refuse leave to appeal in relation to it.
Ground 3 - 'The magistrate denied the appellant the right to submit evidence'
During cross-examination of the first prosecution witness the appellant asked the witness whether he had seen an affidavit prepared by him that the appellant said he had posted to prosecution. The witness said he had not seen the affidavit and the appellant attempted to tender the affidavit. The magistrate rejected the tender. The transcript recorded the exchange between the magistrate and the appellant:[19]
[19] ts 109.
HER HONOUR: Well, no. You're entitled to cross-examine, but you can't produce it as evidence.
ACCUSED: In conclusion then? My closing statement, sorry.
HER HONOUR: If there's something that's relevant in the affidavit, then you're entitled to question the officer about it. But it's - - -
ACCUSED: This is my affidavit.
HER HONOUR: Okay. I gathered that.
ACCUSED: Sorry.
HER HONOUR: But it's not the process that you just hand it up to me, and I accept it as evidence. That's not how it works, so.
ACCUSED: That's what the prosecution did.
HER HONOUR: Is there something in there that's relevant?
ACCUSED: Yes. It hasn't been rebutted for a start. No one has actually wrote back, and said, 'This is - doesn't mean anything.' So my understanding of the law is a [sic] unrebutted affidavit stands a truth in commerce; an unrebutted affidavit stands as a truth in law; an unrebutted affidavit stands as a fact in judgments.
HER HONOUR: These are criminal proceedings, not civil proceedings.
ACCUSED: Okay.
HER HONOUR: And there haven't been any directions given by the court - not that I'm familiar with it ever happening - for affidavits to be filed. So he said he hasn't seen it, so I think that's the end of it.
The magistrate's refusal to allow the appellant to tender his affidavit in the course of cross-examining the first prosecution witness was plainly correct. The appellant gave evidence. At the commencement of his evidence the magistrate told the appellant that this was his opportunity to tell his side of the story, 'to tell me what you say happened'. The appellant was not deprived of the opportunity to present admissible evidence. This ground of appeal does not have a reasonable prospect of success and leave to appeal is refused.
Ground 4 - 'The correct seals were not used for the court business'
The prosecution notice lodged with this court on which the judgments of conviction and penalties imposed are recorded bears the seal of the Magistrates Court and is certified to be true and correct by a registrar of the Magistrates Court.
Section 8 of the Criminal Appeals Act 2004 (WA) provides that an appeal may be made on the basis of one of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
It is not clear how the appellant's complaint about the seal of the Magistrates Court amounts to one of the grounds of appeal specified in s 8 of the Criminal Appeals Act 2004 (WA). Be that as it may, for the reasons identified by the respondent, the ground of appeal has no merit.
First, a document sealed with the seal of the Magistrates Court is presumed to have been properly sealed and issued and evidence of any document from the Magistrates Court may be given by producing a copy of the document certified as a true copy by a registrar of the court.[20] The appellant adduced no evidence to displace this presumption.
[20] Magistrates Court Act 2004 (WA), s 34(4).
Secondly, there is no legislative requirement that a seal be applied to a document to give effect to a judgement, only that the order is noted on the electronic version of the prosecution notice and verified on the court's electronic system.[21]
[21] Magistrates Court (General) Rules 2005 (WA), r 46B(1).
The ground of appeal has no reasonable prospect of success and leave to appeal in respect of it is refused.
Ground 5 - 'The magistrate permitted the police prosecutor to 'practice law at the bar'
The appellant contended that the police prosecutor could not bring a prosecution against the appellant because the prosecutor was not an Australian legal practitioner for the purposes of s 12(2) of the Legal Profession Act 2008 (WA).
There is no merit in this ground. A police officer bringing a prosecution in the course of his duty in a court of summary jurisdiction, which the Magistrates Court is, may be represented by another police officer acting in the course of his duty notwithstanding any provision of the Legal Profession Act 2008.[22] Leave to appeal in respect of this ground is refused.
[22] Criminal Procedure Act 2004 (WA), s 172(3)(a)(i).
Conclusion
As leave to appeal is refused on all grounds the appeal is taken to be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle4 FEBRUARY 2020
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