Upton v Legal Practice Board of WA - [2021] WASCA 188

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   UPTON -v- LEGAL PRACTICE BOARD OF WA [2021] WASCA 188
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   6 OCTOBER 2021
DELIVERED          :   22 OCTOBER 2021
FILE NO/S:   CACR 63 of 2021
BETWEEN:   RYAN MICHAEL UPTON
Appellant
AND
LEGAL PRACTICE BOARD OF WA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ARCHER J
File Number            :   SJA 1035 of 2020

Catchwords:

Criminal law - Offender convicted after trial of one count of having represented that he was entitled to engage in legal practice when he was not an Australian legal practitioner - Where appellant offered to answer legal questions for free via his Facebook page - Where magistrate imposed a fine of $2,500 - Where offender was refused leave to appeal by a single judge - Whether judge erred in fact or law in refusing the offender leave to appeal - Whether sentence of $2,500 was manifestly excessive - Whether any miscarriage of justice arises from the judge's decision

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)
Legal Profession Act 2008 (WA), s 13(1), s 13(4)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Parfenova v Diss [2021] WASCA 50
Prazmo v Urquhart [2018] WASCA 10
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Upton v Legal Practice Board of WA [2021] WASC 143
Van Der Feltz v Legal Practice Board [2017] WASC 2
Van Der Feltz v Legal Practice Board [2017] WASCA 113
Wright v McMurchy [2012] WASCA 257

JUDGMENT OF THE COURT:

Introduction

The appellant was found guilty of having represented that he was entitled to engage in legal practice when he was not an Australian legal practitioner, contrary to s 13(1) of the Legal Profession Act 2008 (WA). He was fined $2,500.
The appellant sought leave to appeal against his conviction and sentence. The primary judge refused leave to appeal and dismissed the appeal.[1]
[1] Upton v Legal Practice Board of WA [2021] WASC 143 (primary reasons).
The appellant now seeks leave to appeal against the primary judge's decision. In essence, he contends that the primary judge erred in various respects in deciding that none of the appellant's grounds of appeal, as distilled and understood by the primary judge, had been made out.
For the reasons that follow, we are satisfied that none of the appellant's grounds of appeal has any merit. Put shortly, the primary judge was correct for the reasons that her Honour gave.

The charge

The charge against the appellant alleged that, between 1 October 2018 and 23 October 2018, the appellant, being a person who was not an Australian legal practitioner, represented via his Facebook page, named 'Perth Legal Questions Answered - for Free', that he was entitled to engage in legal practice, contrary to s 13(1) of the Legal Profession Act (the LPA).
Section 13 of the LPA provides that a person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner. By s 13(4), a person who does anything that states or implies that the person is entitled to engage in legal practice thereby represents that he or she is entitled to engage in legal practice.

The trial

The prosecution case

The prosecution case at trial may be summarised as follows.
The appellant is not admitted in Western Australia. He has never had a practising certificate in Western Australia or in any other State or Territory that will permit him to engage in legal practice.
Following the receipt by the Legal Practice Board (the LPB) of information from a member of the public, one of the respondent's officers (the Officer) undertook a Facebook search. He found a Facebook page entitled, 'Perth Legal Questions Answered - for Free' (the Facebook Page).
The contents of the Facebook Page were not and are not in issue. What was and is in issue is whether it was the appellant's page.
The primary judge adopted the following summary of the contents of the Facebook Page:[2]
[2] Primary reasons [26].
28.The Facebook Page contained a mocked up image of the WA Supreme Court building front entrance and a diagrammatic representation of the hierarchy of the State and Federal Courts in Australia, giving the appearance of somebody knowledgeable and connected with the legal process.
29.There was no qualification as to the nature or type of legal questions that the person behind the Facebook Page (Page Owner) was willing to provide answers to.
30.Posts on the Facebook Page showed that the Page Owner was prepared to act on the invitation to answer legal questions posed. The Facebook Page included the following question and answers:
"Perth Legal Questions Answered – for Free
Ask me your legal questions and I will answer for free.
[Person's name redacted]
Can an employer/manager watch you work on a camera continuously?
Perth Legal Questions Answered – for Free
This is an interesting question. Recording conversations on a hand‑held recording device without the knowledge or consent of the person being recoded [sic] might be in contravention of s. 5(1) of the Surveillance Devices Act 1988 (WA)".
31.Posts on the Facebook Page contained exchanges between the Page Owner and others discussing the issue whether or not the Page Owner had a practising certificate. The Page Owner referred to there being two decisions by the Board.
On 16 October 2018, the Officer again conducted a Facebook search and found the Facebook Page. He printed the pages he saw online. Those pages were exhibit 5 in the trial.
On 17 October 2018, the LPB, by the Officer, sent the appellant a letter.[3] In the letter of 17 October 2018, the Officer referred to the Facebook Page, and to relevant legislation including s 13 of the LPA, and requested an explanation by 31 October 2018. On 17 October 2018, the appellant telephoned the LPB and spoke to the Officer. Later on 17 October 2018, the appellant sent the Officer a letter by email.[4]
[3] Exhibit 6.
[4] Exhibit 8.
On 23 October 2018, the appellant sent the Officer an email saying that he had deleted the Facebook Page.[5] Shortly after that, the Officer did another search and found that the Facebook Page was not there.
[5] Exhibit 9.
The prosecution case was that, by the Facebook Page, which was the appellant's page, the appellant represented that he was entitled to engage in legal work, and therefore legal practice.

The defence case

The appellant represented himself at the trial. He gave evidence in his defence.
The central plank of the defence case was that the Facebook Page was not his page.
The appellant admitted that he received the email of 17 October 2018 from the Officer. However, he denied that he telephoned the Officer and denied that he wrote or sent the emails of 17 October 2018 and of 23 October 2018.
At the trial, the defence did not take issue with the fact that the appellant was not admitted and did not have a practising certificate.

The magistrate's decision

The magistrate comprehensively outlined the evidence at trial, making findings as to what evidence her Honour accepted.
The magistrate accepted the evidence of the Executive Director of the LPB to the effect that the appellant had never been admitted to practice or been given a legal practising certificate in Western Australia or in any other State or Territory of Australia.[6]
[6] Magistrate's reasons [26], [35].
The magistrate considered the evidence of the Officer and the evidence of the appellant. Recognising the conflicts in their evidence concerning the telephone conversation of 17 October 2018 and the sending and receiving of the emails from the appellant to the Officer of 17 October 2018 and 23 October 2018, the magistrate found the Officer's evidence to be credible and consistent with the documents, whereas the appellant's evidence was implausible, inconsistent with the documents and inherently improbable.[7]
[7] Magistrate's reasons [80] - [82], [107] - [110].
The magistrate, with respect correctly, identified that the prosecution needed to prove beyond reasonable doubt that:[8]
(1)the Facebook Page was one of the appellant's Facebook pages;
(2)the appellant was not an Australian legal practitioner; and
(3)the appellant represented, by the Facebook Page, that he was entitled to engage in legal practice.
[8] Magistrate's reasons [117].
After carefully evaluating all of the evidence, as is appropriate to a circumstantial case,[9] the magistrate concluded that the only reasonable inference was that the Facebook Page was the appellant's page.[10] In so finding, the magistrate also found that the appellant had, in effect, admitted that the Facebook Page was his in his email of 23 October 2018 in which he said he had deleted it.[11]
[9] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
[10] Magistrate's reasons [118] - [134].
[11] Magistrate's reasons [130] - [132].
The magistrate was satisfied that at no time had the appellant held a legal practice certificate in Western Australia or elsewhere in Australia.[12]
[12] Magistrate's reasons [135].
Finally, the magistrate was satisfied beyond reasonable doubt that the Facebook Page represented that the appellant had an entitlement to engage in legal practice.[13]
[13] Magistrate's reasons [137] - [153].
Consequently, the magistrate was satisfied as to the appellant's guilt and entered a judgment of conviction accordingly.
After sentencing submissions, the magistrate imposed a fine of $2,500.

The appeal to the primary judge

As at trial, and as on the appeal to this court, in the appeal to the primary judge, the appellant was self‑represented. Reflecting that fact, the grounds of appeal to the primary judge were not framed in a manner informed by the principles and procedure applicable to an appeal. Further, with respect, the grounds were difficult to comprehend. The same observations may be made of the grounds of appeal to this court.
The appellant allocated to each of his grounds an alphanumeric identity: LF1 ‑ 11, J1, EXC and MJ. Those denoted LF were said to be errors of law or fact, ground J1 an error of jurisdiction, ground EXC asserted that the sentence was manifestly excessive and ground MJ alleged that there was an miscarriage of justice.
The primary judge distilled the grounds of appeal in a manner that has not been criticised, in the appeal to this court, by the appellant. Consequently, we will proceed by reference to the grounds as distilled by the primary judge.

The primary judge's reasons

Ground LF1 asserted an error by the Fines Enforcement Registry concerning the fine imposed by the magistrate following the conviction the subject of this appeal.
The primary judge rejected ground LF1 on the basis that a complaint of error by the Fines Enforcement Registry is not a basis to challenge the magistrate's decision on conviction and sentence.[14]
[14] Primary reasons [54].
The primary judge's rejection of ground LF1 is, in substance, challenged by ground 8 of the appeal to this court.
Ground LF2 alleged that the magistrate failed to apply the standard of proved beyond reasonable doubt. As the judge's rejection of this ground is not challenged in the appeal to this court, little need be said about it. Nevertheless, we would observe that, as the primary judge found, the magistrate demonstrably applied the standard of proved beyond reasonable doubt, so the ground was without merit.
Ground LF3 alleged that the magistrate erred in admitting the Facebook documents into evidence in that they were 'anonymous' and 'illegal'. The appellant alleged that the Facebook documents were anonymous because some people's names had been removed. The judge found that this was contrary to the evidence accepted by the magistrate and, in any event, even if true, it would not have made the evidence inadmissible.[15] The appellant alleged that the Facebook documents were illegal because the respondent had not obtained permission from the people who were named in the documents to use their likenesses. The judge found that the respondent did not need to obtain such permission in order to use the Facebook documents in the trial and that the documents were not illegal.
[15] Primary reasons [62].
Consequently, the judge refused leave to appeal on ground LF3. Some of the judge's reasoning in reaching that conclusion is challenged by ground 1 and ground 4 of the appeal to this court.
Ground LF4 alleged that the magistrate erred in failing to take into account the prosecutor's failure to call the original informant and the prosecutor's 'outrageous lie' about that witness. In finding that there was no merit in the ground, the primary judge said as follows:[16]
[16] Primary reasons [67] - [77].
Failure to call the informant
There is no merit in the allegation that the magistrate erred in failing to take into account the prosecutor's failure to call the informant.
First, the informant was not relevant to the prosecution's case.
The prosecution's case was that the appellant made the representations by putting statements on the Facebook Page. That is, the allegation that the appellant had made representations was to be determined by reference to the documents.
The prosecution's case that the representations had been made to the public was based on the Officer's evidence that he had been able to access the Facebook Page online.
The prosecution did not seek to rely, in any way, on the informant. The informant was merely the factual trigger for the Officer's investigation.
Second, there was nothing to suggest that the informant could have given evidence of any matter relevant to the issues in the trial, including a potential defence.
At one point, the appellant suggested that the informant may have been a student. The appellant incorrectly asserted that this would require the prosecution to be dismissed. (Trial Transcript Day 1 pages 162 ‑ 163. See also page 168.) Whether the informant was a student was irrelevant to the issues. The prosecution case was the representations were made to the public. The evidence was not that the Facebook Page was only accessible to students. On the contrary, the evidence showed that the Facebook Page was accessible to the public.
At another point, it appears that the appellant suggested that the informant may have been a fictitious person or using a false name. (Trial Transcript Day 2 page 44.) This was purely speculative and irrelevant.
Third, the Officer, whose evidence was accepted by the magistrate, explained that the informant had not wanted to get further involved.
For these reasons, I am not satisfied that the magistrate erred in not taking into account the fact that the prosecution had not called the informant.
Alleged lie about the informant
There is no merit in the allegation that the Officer lied about the informant. His evidence in relation to the informant was consistent.
Ground 5 of the appeal to this court asserts that this reasoning reveals a breach of procedural fairness by the primary judge.
The judge's rejection of ground LF5 ‑ complaining of the magistrate's failure to take into account the respondent's failure to call 'any witnesses named on their fake Facebook posts' - and ground LF6 - alleging the magistrate erred in failing to recognise the respondent's 'avoidance and feigned ignorance of the widely known and correct Facebook procedure court rules' - is not challenged in the appeal to this court. Consequently, little needs to be said about those grounds. Again, however, we would observe that the judge's reasons for rejecting the grounds are plainly well‑founded.
Ground LF7 contended that the magistrate erred by allowing the respondent to 'present a fake criminal record' to the Joondalup Magistrates Court.
The judge's rejection of ground LF7 is challenged by grounds 2 and 7 of the appeal to this court. We will set out the judge's reasons for rejecting ground LF7 when we deal with those grounds.
Ground LF8 alleged that the magistrate erred in failing to take into account the Officer's 'admitted lie to the court about a past relationship' with the appellant. The primary judge found that the Officer did not lie and rejected the ground.
The judge's rejection of this ground is challenged by ground 3 of the appeal to this court. We will set out the judge's reasoning when we deal with that ground.
Ground LF9 alleged that the magistrate erred after recognising that the dates did not match 'on the fake Facebook posts and prosecution notices'.
The primary judge identified that, so far as could be discerned from the particulars, the appellant appeared to be referring to the fact that the prosecution notice alleged that the offence had occurred in the period 1 ‑ 23 October 2018, whereas one of the posts was dated 20 September 2018. The judge considered that the ground misunderstood the nature of the prosecution case, which was that the Facebook documents printed on 16 October 2018 reflected what the Officer had seen when he went online, to the same Facebook Page, on 1 October 2018. In that context, the judge observed that the fact that what the Officer saw contained material that had been put onto the Facebook Page prior to 1 October 2018 was not surprising and was to be expected.
The judge's reasoning in rejecting ground LF9 is challenged by ground 11.
Ground LF10 alleged that the magistrate erred in applying the wrong definition of 'represent' in s 13 of the LPA. The particulars of the ground contended that the magistrate should have used the definition of 'represent' in a legal dictionary. The judge rejected the ground on the basis that the meaning of 'represent' in s 13(1) is a matter of statutory construction and not a matter of finding and then applying a dictionary definition.[17]
[17] Primary reasons [107].
However, taking into account that the appellant was unrepresented, the judge went on to consider whether the magistrate erred in any other way in relation to the meaning of 'represent'. The judge found that in observing that the Facebook Page portrayed an entitlement to engage in legal practice, the magistrate was saying, in effect, that the Facebook Page implied that the author was entitled to engage in legal practice.[18] The judge observed that, having regard to s 13(4) of the LPA, the magistrate was correct to so conclude.
[18] Primary reasons [118].
Ground 6 challenges the judge's conclusion that the magistrate did not err in relation to the meaning of 'represent'.
The appellant does not challenge the judge's rejection of ground LF11, ground J1 or ground MJ, and so the judge's reasons for doing so need not be detailed.
Ground EXC alleged that the fine of $2,500 was manifestly excessive.
The judge stated the conventional principles relevant to a ground of that nature. Her Honour referred to the decision in Van Der Feltz v Legal Practice Board[19] in which leave to appeal against a fine of $2,500 for a first offence against s 13(1) was refused. The judge made the following observations about the present case:[20]
In this case, the representations were made on a publicly accessible Facebook page. The page was relatively unsophisticated. The appellant offered to provide legal advice for free. The proven period of offending was a maximum of 23 days. The page was removed after the respondent became involved. The magistrate noted that there was no evidence of any harm having been caused. The magistrate also noted that the appellant did not receive any financial benefit. Her Honour found the seriousness to be low to mid‑range. The appellant does not challenge this assessment, and I consider it to have been correct.
The appellant's personal circumstances include his history of unemployment and his difficult financial position. His lack of record is mitigating. Other common mitigating factors are not present - he is not a young man (being 45 at the time of sentence) and did not plead guilty or show any remorse.
[19] Van Der Feltz v Legal Practice Board [2017] WASC 2.
[20] Primary reasons [145] - [146].

The judge concluded that the fine was plainly within the discretionary range open to the magistrate and was not unreasonable or plainly unjust.[21]
[21] Primary reasons [147].
The judge also referred to allegations of express errors made under the rubric of ground EXC. Relevantly, the judge referred to the appellant's submission that, '[t]raditionally when costs exceed the fine, the courts generally consider a person innocent'.[22] The judge observed that this is not correct.
[22] Primary reasons [149].
The judge's conclusion in that regard is challenged by ground 10 of the appeal to this court.
The judge refused leave to appeal on all grounds and dismissed the appeal.

The appeal to this court

The appellant appeals against the primary judge's decision. All of his grounds sit under the rubric of a general contention that the primary judge erred in deciding that none of his grounds of appeal, as distilled and understood by the primary judge, had been made out. Under that rubric, the appellant sets out eleven grounds of appeal. Although the appellant again adopts an alphanumeric style of identifying them, for ease of reference we will simply refer to them as grounds 1 ‑ 11, reflecting the headings in the appellant's grounds of appeal.
Before turning to the grounds, it is convenient to outline the principles governing an appeal of the present kind, that is, an appeal from a decision of a judge on appeal from the decision from a court of summary jurisdiction.
The nature of an appeal such as the present, under div 3 of pt 2 of the Criminal Appeals Act 2004 (WA), was explained by this court in Wright v McMurchy[23] and in Prazmo v Urquhart.[24] The position was outlined in Prazmo v Urquhart as follows:
Section 16(2) of the Criminal Appeals Act 2004 (WA) provides for a right of appeal to this court from the primary judge's decision. Section 9 and s 18 of the Criminal Appeals Act provide that the leave of this court is required for each ground of appeal to this court, and that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
The appeal to this court is by way of rehearing: see r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The Criminal Appeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act. However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated: Wright v McMurchy [2012] WASCA 257 [28], [97]. Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Criminal Appeals Act must identify an error by the single judge whose decision is under appeal: Wright [96]
[23] Wright v McMurchy [2012] WASCA 257 [25] ‑ [29], [71] ‑ [98].
[24] Prazmo v Urquhart [2018] WASCA 10 [10] - [11].
The powers conferred by s 14(1) to set aside or vary the decision of a single judge or to substitute a decision that should have been made are powers only to be exercised once an error or miscarriage of justice has been shown.[25]
[25] Wright v McMurchy [28]; Parfenova v Diss [2021] WASCA 50 [54].
In his appeal to this court, all eleven of the appellant's grounds of appeal assert error. Thus, in order to make out a ground of appeal, it is incumbent on the appellant to establish error on the part of the primary judge.
However, bearing in mind that the appellant is self‑represented, we have also considered whether any miscarriage of justice arises from the primary judge's decision.
For the reasons below, we are satisfied that there is no error in, and no miscarriage of justice arising from, the decision of the primary judge.

Disposition

Ground 1 - 'Facebook states posts do not exist'

So far as we can comprehend it, ground 1 comprises a series of assertions on the part of the appellant and does not identify any alleged error on the part of the primary judge. The ground fails accordingly.
In any event, it is without merit. The substance of the ground appears to assert that the appellant was not responsible for the Facebook posts. Whether that was proved to be the case was, and is, to be evaluated on the basis of the evidence at trial. (The appellant has not sought, much less obtained, leave to adduce additional evidence on appeal.) The fact that, as the appellant submits,[26] none of the people mentioned in the Facebook posts were called as witnesses and that some of the names were obscured goes nowhere. The prosecution was not required to call those mentioned in the Facebook posts in order to prove that the Facebook Page was the appellant's page. Indeed, it was no part of the prosecution case that the names on the page were genuine people, much less that they had had the experiences recounted on the page.
[26] Appellant's submissions [4].
Further, the appellant's complaint that the Officer failed to use 'any official means' to record the alleged posts is equally misplaced. Contrary to the appellant's submission,[27] the Officer's evidence of what he saw - namely, the Facebook Page and its contents - and what he did - printing the pages that he saw - was direct evidence and was not hearsay.
[27] Appellant's submissions [5].
There is no merit in ground 1. Leave to appeal on that ground must be refused.

Ground 2 - 'prosecution committed perjury with the use of multiple fake criminal records' - and ground 7

Grounds 2 and 7 challenge the judge's reasons and conclusion in finding that ground LF7 had no merit. The judge's reasons for so concluding were as follows:[28]
The respondent did not seek to present a fake criminal record in the trial (or in the sentencing proceedings). It appears that the respondent had issued a summons to the police requiring the appellant's criminal history to be produced. The police produced to the court a record that was wrong. Not realising it was wrong, the respondent provided a copy to the appellant by way of disclosure. The Officer gave evidence that he did not check whether the record produced by the police was accurate, relying on the police.
As the respondent did not seek to present a fake criminal record in the trial (or in the sentencing proceedings), it follows that the magistrate did not allow the respondent to do so.
I also note that, in sentencing the appellant, the magistrate acted on the basis that the appellant did not have a criminal record.
From the particulars to this ground, the appellant's actual complaint appears to relate to events surrounding his efforts to obtain a practising certificate. This is not relevant to his conviction.
No error is revealed in this reasoning.
[28] Primary reasons [90] - [93].
Regrettably, the appellant's challenges, by grounds 2 and 7, to this reasoning reflect his unfortunate and pervasive inability to segregate the matters which are relevant to his conviction and sentence from the whole of his long (and, from his perspective, highly unsatisfactory) dealings with the LPB. The substantial bulk of his submissions in support of ground 2 concern dealings with the LPB that are not germane to his conviction and sentence the subject of this appeal.
As the primary judge pointed out, the LPB did not attempt to present a false criminal record in the appellant's trial or in the sentencing proceedings following his conviction. In sentencing the appellant, the magistrate acted on the basis that the appellant did not have a criminal record. As the judge observed, any complaint on the appellant's part concerning events surrounding his attempts to obtain a practice certificate is not relevant to his conviction.
Further, the appellant's repeated assertions of perjury on the part of the Officer have no arguable foundation in the evidence.
Grounds 2 and 7 are without merit. Leave to appeal on these grounds must be refused.

Ground 3 - 'Prosecution committed perjury by hiding the past relationship with the appellant'

Ground 3 challenges the primary judge's rejection of ground LF8 which alleged that the magistrate erred in failing to take into account the Officer's 'admitted lie to the court about a past relationship' with the appellant. In finding that that ground had no merit, her Honour reasoned as follows:[29]
The appellant cross‑examined the Officer in relation to the Officer's evidence that he had received a telephone call and emails from the appellant. The appellant cross‑examined the Officer as to how the Officer knew the communications were from the appellant. In this context, the appellant asked the Officer if any of these communications had been face-to-face. The Officer agreed they had not been. The appellant does not suggest this evidence was false. On the contrary, the appellant's case was that the Officer had not spoken to him about the Facebook Page at all.
The magistrate recorded in her reasons that the Officer confirmed that 'he has never met [the appellant] face-to-face'. In the context of the evidence I have referred to and the evidence as a whole, her Honour was plainly referring to the Officer's confirmation that, during the communications the Board relied upon, the Officer had not actually ever spoken to the appellant in person.
The appellant asserts that he was university with the Officer. The Officer did not deny this. In cross-examination of the Officer, the appellant put to the Officer that he had had gone to Murdoch University with the Officer and had been in the same class. The Officer replied 'I don't think we were in the same class'.
That said, it appears that the Officer did not remember at the trial that he had previously met the appellant. The appellant attached material to his Amended Grounds, without seeking leave to adduce it. The material indicated that, after the trial, the appellant sent to the Officer a photo of the two of them at a Law Society function in March 2016. The Officer wrote back to advise that, during the trial, he had not remembered having met the appellant before, but that the photo had refreshed his memory that they had met at that function. None of this material was before the magistrate. The Officer was not shown the photo in the trial, was not asked if he had met the appellant at the function and, obviously, did not deny having done so.
[29] Primary reasons [97] - [100].
There is no error in this reasoning. To the contrary, it simply outlines the course of events at the trial and subsequently. Further, as the judge explained, the photograph on which the appellant's submissions place so much emphasis was not produced at trial and so was not before the Officer or the magistrate.
This ground is founded on the appellant's misconception that the existence of an earlier relationship - in the form of having attended many classes together at law school and having had a friendly relationship - would have been of critical significance at the appellant's trial. The position is otherwise. The significance of the Officer's evidence lay in what he saw, heard and did, none of which occurred in the physical presence of the appellant. His evidence found strong support in the documents tendered at trial. The weight of the Officer's evidence would not have been significantly altered had the appellant been someone who had been known to the Officer at an earlier stage.
Again, the appellant's assertions of perjury on the part of the Officer are just that - mere assertions. They have no foundation in the evidence.
Leave to appeal on ground 3 must be refused.

Ground 4 - 'Anonymous evidence used'

Ground 4 contends that the primary judge erred by allowing the prosecution to use evidence that was anonymous and illegal.
The appellant's submissions in support of this ground simply make assertions, and are contrary to the evidence accepted by the magistrate. The appellant put to the Officer that he had modified the Facebook Page to remove some people's names, an allegation which the Officer rejected.[30] The magistrate accepted the Officer's evidence.[31] No error has been demonstrated in the magistrate so concluding.
[30] Trial Transcript Day 1 pages 128 - 130.
[31] Magistrate's reasons [81] - [82].
The appellant's assertion that the Facebook documents were illegal is similarly misconceived. Contrary to the appellant's assertion,[32] the failure of the prosecution to obtain permission from people named in the posts did not amount to 'an illegal act'. Nor was it incumbent upon the prosecution to call the informant as a witness. The prosecution case was founded on what the Officer saw when he did Facebook searches, not on anything seen by the informant. The fact that the informant's conversation with the Officer led to the Officer's investigations is of no more than historical interest.
[32] Appellant's submissions [31].
The evidence led by the prosecution was not 'anonymous evidence'. The Officer gave evidence of what he saw, heard and did. His evidence, together with the other evidence adduced at trial by the prosecution, amply discharged the prosecution's onus of proving that the appellant committed the offence with which he was charged.
Leave to appeal on ground 4 must be refused.

Ground 5 - 'Breach of procedural fairness?'

Ground 5, and the submissions in support of it, assert that the judge's reasoning, set out in [38] above, reveals a breach of procedural fairness on the part of the primary judge.
The appellant fixes on the judge's observation that, 'there was nothing to suggest that the informant could have given evidence of any matter relevant to the issues in the trial, including a potential defence'.[33] The appellant submits that '[t]he only conclusion to be reached' is that the primary judge contacted the informant on her own motion, outside of the trial process, in order to determine whether the evidence of the informant was relevant.[34]
[33] Primary reasons [72].
[34] Appellant's submissions [37].
To state the obvious, no such conclusion can be drawn from the judge's observation, which simply reflected a consideration of the issues at the trial, informed by an understanding of the prosecution case and the defence case advanced at the trial. There is no rational basis to infer from the judge's observation that it reflected the result of communication by the judge with the informant. Indeed, the informant's identity would have been unknown to the judge as it is to us, since nothing in the material before the magistrate or the primary judge revealed the identity of the informant.

Ground 6 - 'Wrong definition of "represent"?'

The ground, and the appellant's submissions in support of it,[35] assert that the primary judge used the wrong definition of 'represent'. However, nothing in the ground or the appellant's submissions explains why that is said to be so. We see no basis to discern error in the judge's approach.
[35] Appellant's submissions [40].
Otherwise, the appellant's submissions in support of ground 6 involve a series of assertions that he was not responsible for the Facebook Page. As we have said, the question is whether the evidence at trial proved beyond reasonable doubt that he was responsible for the posts, and we are comfortably satisfied that it did.
We would refuse leave to appeal on ground 6.

Ground 8 - Breach of procedural fairness by the Fines Enforcement Registry?

This ground contends that the primary judge's rejection of ground LF1 was an error of law. That is not so. As the judge rightly observed, any complaint of unfairness in the enforcement of the fine imposed on the appellant provides no basis to impugn his conviction or sentence. To state the obvious, we do not accept that, as the appellant submits,[36] '[p]remature enforcement is one of the most reliable indicators an appellant is innocent'.

Ground 9 - Did the judge err in concluding that the sentence was not manifestly excessive?

[36] Appellant's submissions [17].

The thrust of the appellant's complaint by ground 9 is that his fine of $2,500 is the same fine as was imposed in the decision in Van Der Feltz v Legal Practice Board and Van Der Feltz v Legal Practice Board.[37] The appellant submits that his offence was materially less serious than the offence in Van Der Feltz and, accordingly, his fine should have been significantly lower.[38]
[37] Van Der Feltz v Legal Practice Board [2017] WASCA 113.
[38] Appellant's submissions [58] - [60]; appeal ts 17.
The appellant's submission is founded on a misunderstanding of the principles relevant to evaluating whether a sentence is manifestly excessive and the relevance of comparable cases in that exercise. It is trite law that manifest excess is not demonstrated by pointing to a single case (or even a few cases) and showing either (i) that similar offending in the other cases attracted lesser sentences; or (ii) more serious offending in the other cases attracted the same or similar sentences.
A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
That was the approach taken by the primary judge.[39] The primary judge set out the circumstances of the appellant's offending, noting features in the appellant's favour such as there being no evidence of any harm being caused and that he did not receive any financial benefit, and also set out his personal circumstances, noting the features that were mitigating. Her Honour then found that the fine of $2,500 was plainly within the discretionary range open to the magistrate.
[39] Primary reasons [141].
We agree with the primary judge's conclusion that the sentence imposed in this case was not manifestly excessive.

Ground 10 - 'Sentence far outweighs costs'

Ground 10 asserts an error in [149] of the primary reasons, in which the judge said as follows:[40]
First, the appellant submits that '[t]raditionally when costs exceed the fine, the courts generally consider a person innocent'. This is not correct.
[40] Primary reasons [149].
The thrust of the appellant's submission in support of ground 10 is that the prosecution expended unjustifiably substantial time and money in prosecuting him, demonstrating that the prosecution failed to 'deliver legal services competently and diligently' as required by r 6 of the Legal Profession Conduct Rules 2010 (WA).[41]
[41] Appellant's submissions [61] - [63]; appeal ts 18.
The judge's conclusion the subject of this ground arose in her Honour's consideration of the appellant's appeal against his sentence. Her Honour was entirely correct to observe that the appellant's assertion that - '[t]raditionally when costs exceed the fine, the courts generally consider a person innocent' - was incorrect. Moreover, pointing to substantial costs incurred by the prosecution provides no basis for a conclusion that the fine imposed was excessive or otherwise erroneous.
We would refuse leave to appeal on ground 10.

Ground 11 - 'Dates do not match'

Ground 11 challenges the primary judge's rejection of ground LF9, which alleged that the magistrate erred because the dates did not match 'on the fake Facebook posts and prosecution notices'.
The judge's reasoning in rejecting that ground was as follows.
As we have said, the primary judge identified that, so far as could be discerned from the particulars, the appellant appeared to be referring to the fact that the prosecution notice alleged that the offence had occurred in the period 1 ‑ 23 October 2018, whereas one of the posts was dated 20 September 2018. Her Honour considered that the ground misunderstood the nature of the prosecution case, which was that the Facebook documents printed on 16 October 2018 reflected what the Officer had seen when he went online, to the same Facebook Page, on 1 October 2018. In that context, the judge observed that the fact that what the Officer saw contained material that had been put onto the Facebook Page prior to 1 October 2018 was not surprising and was to be expected.

Far from discerning error in this reasoning, we would endorse and adopt it. The appellant has not demonstrated any arguable basis to impugn this reasoning or its conclusion.
We would refuse leave to appeal on ground 11.

Conclusion

For the above reasons, all of the grounds of appeal are without merit. We would make the following orders:
(1)Leave to appeal on each of grounds 1 ‑ 11 is refused.
(2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
22 OCTOBER 2021