Upton v Legal Practice Board of WA
[2021] WASC 143
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: UPTON -v- LEGAL PRACTICE BOARD OF WA [2021] WASC 143
CORAM: ARCHER J
HEARD: 3 MARCH 2021
DELIVERED : 11 MAY 2021
FILE NO/S: SJA 1035 of 2020
BETWEEN: RYAN MICHAEL UPTON
Appellant
AND
LEGAL PRACTICE BOARD OF WA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J HAWKINS
File Number : JO 5406 of 2019
Catchwords:
Appeal against conviction and sentence – Representing an entitlement to engage in legal practice when not a legal practitioner – Turns on its own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Legal Profession Act 2008 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | R Nash |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Legal Practice Board |
Case(s) referred to in decision(s):
ACN 158 148 951 Pty Ltd v Prout [2019] WASCA 59
Baini v R [2012] HCA 59; (2012) 246 CLR 469
Bennett v Carruthers [2010] WASCA 131
Drage v Pitts [2007] WASC 203
Gaskell v The State of Western Australia [2018] WASCA 8
HDS v The State of Western Australia [2015] WASCA 148
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lee v R [2014] HCA 20; (2014) 253 CLR 455
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Men v The State of Western Australia [2020] WASCA 118
Mohammadi v Bethune [2018] WASCA 98
Ninyette v Holmes [2015] WASC 287
Pell v The Queen [2020] HCA 12
Prior v Kemp [2001] WASCA 363
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Thong v The State of Western Australia [2020] WASCA 182
Wilson v The State of Western Australia [2010] WASCA 82
WS v Gardin [2015] WASC 97
ARCHER J:
Overview
On 28 April 2020, 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). The learned magistrate, her Honour magistrate Hawkins, imposed a fine of $2,500.
The appellant seeks leave to appeal against the conviction and sentence. He has also filed a number of applications in the appeal. These included applications filed on 24 August 2020 and 9 October 2020 (Applications). The application for leave to appeal and those two Applications were ordered to be heard at the same time as the appeal.
The appellant is unrepresented. His grounds of appeal and submissions reflect that he has not had the assistance of a lawyer.
None of the grounds of appeal have merit.
What follows are my reasons for concluding I should refuse leave to appeal and dismiss the Applications.
Appeals from magistrates' decisions[1]
[1] This section reproduces or draws on statements I have made in other judgments.
The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[2]
[2] Criminal Appeals Act 2004 (WA) s 8(1).
A miscarriage of justice will have occurred where, for example, the nature of the evidence raises a real doubt as to whether the conviction can be regarded as safe or just.[3] The test is whether the court considers that, upon the whole of the evidence, it was open to the decision‑maker to be satisfied beyond reasonable doubt that the appellant was guilty.[4] That is, whether the decision‑maker must, as distinct from might, have entertained a doubt about the appellant's guilt.[5]
[3] HDS v The State of Western Australia [2015] WASCA 148 [51], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523. See also The State of Western Australia v Olive [2011] WASCA 25 [40] and [44] and Pell v The Queen [2020] HCA 12 [43] ‑ [45].
[4] HDS [52], quoting M v The Queen 494 ‑ 495. See also Olive [41] ‑ [42] and Pell [43].
[5] HDS [53], citing Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. See also Olive [43] and Pell [44] ‑ [45]. See also, in the analogous context of an appeal under part 3 of the Criminal Appeals Act 2004 on the ground that the verdict was unreasonable, Thong v The State of Western Australia [2020] WASCA 182 [146] ‑ [148] and Men v The State of Western Australia [2020] WASCA 118 [403] ‑ [410].
Leave to appeal is required.[6]
[6] Criminal Appeals Act 2004 s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[7] That means that the ground must have a real, rational and logical prospect of succeeding.[8]
[7] Criminal Appeals Act 2004 s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[9]
[9] Criminal Appeals Act 2004 s 9(3).
Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[10] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[11]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[10] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[11] Strahan [90].
These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.
Principles relating to sentencing appeals
Part 2 of the Criminal Appeals Act2004 (WA) sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[12] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[13]
If, despite error, no substantial miscarriage of justice
[12] Ninyette v Holmes [2015] WASC 287 [56.3].
[13] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
By s 14(2) of the Criminal Appeals Act, 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.[14]
[14] Criminal Appeals Act 2004 s 14(2).
Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[15]
If, despite error, the evidence supported the decision
[15] Ninyette [65]; WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [239] ‑ [241]. See also Baini v R [2012] HCA 59; (2012) 246 CLR 469 [28] ‑ [33]; Lee v R [2014] HCA 20; (2014) 253 CLR 455 [46] ‑ [48] and Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [12] ‑ [16].
By s 14(3), if the Magistrates Court failed to make any necessary finding of fact, the Supreme Court need not set aside or vary the decision if the facts or evidence in substance support the decision or justify the finding.
Given those words, and the context of the Criminal Appeals Act as a whole, this does not mean that the Supreme Court need not set aside or vary the decision simply because it was open to the magistrate to make the decision. Rather, s 14(3) applies where 'the facts found by the magistrate or the evidence were such as to lead inevitably to the conviction'.[16]
[16] Prior v Kemp[2001] WASCA 363 [150] (Templeman J) in relation to a relevantly identical provision in the Justices Act 1902 (WA) s 199(3). This statement of the scope of s 199(3) was applied to s 14(3) in Drage v Pitts[2007] WASC 203 [34] ‑ [35]. See also Bennett v Carruthers[2010] WASCA 131 [39] and ACN 158 148 951 Pty Ltd v Prout [2019] WASCA 59 [54].
Interpreting s 14(3) in this way is consistent with the way in which s 14(2) has been interpreted.
The trial
The charge
The respondent charged the appellant with 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.
The charge 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 2008.
I will refer to that Facebook page as the 'Facebook Page'.
The prosecution case
What follows in this section sets out the prosecution's case; that is, the allegations made by the prosecution. I will not repeat before each sentence that this was what the prosecution alleged, but each sentence should be read in that way.
The appellant has never had a practising certificate in Western Australia or in any other State or Territory that would permit him to engage in legal practice.
The respondent received information from a member of the public about a Facebook page operating under the name or title 'Perth Legal Questions Answered – for Free'. The information included that the Facebook page was connected to the appellant.[17]
[17] See, for example, Transcript of the trial 9 March 2020 (Trial Transcript Day 1) pages 99 ‑ 100.
One of the respondent's officers (the Officer) undertook a Facebook search and found the Facebook Page. The Officer later printed the pages he saw online, and these became exhibit 5 in the trial (Facebook Documents).
In the respondent's submissions in this appeal, a helpful summary was provided of the contents of the Facebook Page (the person's name in [30] was not redacted in the respondent's submissions but has been redacted in the extract below):[18]
[18] Respondent's Submissions filed 16 October 2020 (Respondent's Submissions) [28] ‑ [31].
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.
Between 17 October 2018 and 23 October 2018, the Officer communicated with the appellant by email and by telephone about the Facebook Page. In these communications, the appellant admitted that the Facebook Page was his.
The communications were as follows:
1.the Officer sent a letter by email to the appellant on 17 October 2018 (17 October email);
2.a telephone call from the appellant to the Officer later the same day (17 October telephone call);
3.the appellant sent a letter by email to the Officer on 17 October 2018 (17 October response);[19]
4.the appellant sent an email to the Officer on 23 October 2018 (23 October advice).
[19] Exhibit 8. See also Trial Transcript Day 1 pages 88 ‑ 89.
In the 23 October advice, the appellant advised the Officer that he had 'deleted the offending comments from the facebook page'. After getting that email, the Officer made a further search and noted that the Facebook Page was no longer accessible online.
The prosecution case was:[20]
[T]he Facebook Page was Mr Upton's page and was accessible to the public at large. The Facebook Page did not purport to limit the scope or importance of the legal questions/matters on which answers would be given. By its terms and manner of presentation cloaked with legal imagery, it constituted an unconditioned representation to members of the public that answers would be given to their legal questions, and thereby constituted an implied representation by Mr Upton that he had an entitlement to engage in such activity which constituted engaging in legal work, and therefore legal practice.
The defence case
[20] Respondent's Submissions [42].
The appellant raised a number of matters in the trial that were not relevant.
Relevantly, the appellant denied that the Facebook Page was his. He admitted receiving the 17 October email from the Officer. However, he denied having made the telephone call or writing either of the 17 October response or the 23 October advice.
The appellant admitted, however, that the header to the 17 October response included his name, his mobile telephone number, and the detailed list of degrees and qualifications the appellant says he has. The appellant also volunteered that it was written in a style similar to his own.[21]
[21] Transcript of the trial 17 March 2020 page 83 (Trial Transcript Day 2).
On its face, the 23 October advice was an email sent in response to the 17 October email and from the appellant's email address.[22]
[22] Trial Transcript Day 2 page 90.
In cross‑examination, the appellant admitted he did not have a practising certificate, and had not had one in October 2018.[23]
The trial
[23] Trial Transcript Day 2 page 92.
The trial took place on 9 and 17 March 2020.
Before the prosecution opened its case, the magistrate gave a detailed explanation to the appellant of the trial process and his rights.[24] At various times during the trial, she continued to reinforce or explain matters of process to the appellant.[25]
[24] Trial Transcript Day 1 pages 2 ‑ 5.
[25] See for example Trial Transcript Day 1 pages 19 ‑ 21, 33 and 60. See also Trial Transcript Day 1 pages 93 ‑ 95.
The prosecution called two witnesses.
The first gave evidence to the effect that the appellant was not, and has never been, a certificated legal practitioner in Western Australia nor in any other State.
The second was the Officer. He gave evidence of the relevant events relating to the Facebook Page and his interactions with the appellant.
The appellant was unrepresented throughout the trial. This undoubtedly contributed to the manner in which he conducted the case. Nevertheless, it meant that there was considerable repetition, including of matters that were not relevant to the issues. The appellant also repeatedly made serious, but misguided, allegations against the respondent, its witnesses and others.[26] Judged against that background, the magistrate was courteous and showed considerable patience.
[26] In relation to allegations against others, see Trial Transcript Day 2 page 77.
At the end of the trial, the magistrate reserved her decision.
The magistrate's decision
On 28 April 2020, the magistrate delivered a 41 page decision.
The magistrate set out a comprehensive summary of the matter. She identified the burden of proof and explained how that operated where an accused person gives evidence.
Her Honour then summarised the evidence. She set out her credibility findings and the reasons for them. Her Honour found the respondent's two witnesses to have been credible and reliable witnesses. Her Honour found the appellant was not credible. Her Honour said that she would set his evidence aside where it was inconsistent with the prosecution's evidence.
Her Honour then set out the legal framework and the elements of the charge. Her Honour noted that the prosecution needed to prove beyond reasonable doubt that:
1.the Facebook Page 'was one of Mr Upton's Facebook pages' (by which the magistrate clearly meant that it was a Facebook page under his control);
2.Mr Upton was not an Australian legal practitioner; and
3.by the Facebook Page, Mr Upton represented an entitlement to engage in legal practice between 1 October 2018 and 23 October 2018.
Her Honour noted the approach required when the prosecution relied on circumstantial evidence. Her Honour explained why she was satisfied that the only reasonable inference open was that the Facebook Page was Mr Upton's Facebook page.
The magistrate was satisfied that Mr Upton was not an Australian legal practitioner on the basis of the evidence of the first of the respondent's witnesses. In any event, the appellant had admitted this in his evidence.[27]
[27] Trial Transcript Day 2 page 92.
The magistrate then explained why she concluded that, by the Facebook Page, the appellant had represented an entitlement to engage in legal practice.
Grounds of appeal
The appellant's appeal notice contained 46 paragraphs in the section titled 'grounds of appeal'. On 20 August 2020, the Principal Registrar ordered the appellant to file a minute of proposed amended grounds of appeal.
The appellant filed such a document (Amended Grounds). It contained 31 paragraphs, the last of which repeated the 46 paragraphs in the appeal notice. Taking those two documents together, there are 23 pages of what are said to be grounds of appeal.
On 4 September 2020, the Principal Registrar ordered that the Amended Grounds stand as the appellant's amended grounds of appeal.
Ground LF1
The first ground[28] is described as ground 'LF1' by the appellant. It appears to assert an error by the Fines Enforcement Registry.
[28] See the Amended Grounds [1] ‑ [6].
This is not a ground upon which an appeal against the magistrate's decision can be brought. I refuse leave to appeal on this ground.
Ground LF2
Ground LF2[29] alleges that the magistrate failed to apply the standard of proof of beyond reasonable doubt. The particulars refer to parts of the magistrate's reasons where her Honour was explaining why she found the appellant was not a credible witness.
[29] See the Amended Grounds [7].
In her reasons, her Honour set out a comprehensive and accurate statement of the burden and standard of proof, and the proper approach to be taken to an accused's evidence in light of the burden and standard.[30]
[30] Reasons of the Magistrate dated 28 April 2020 (Magistrate's Reasons) [22]. See also [111].
The magistrate explained why various aspects of the appellant's evidence were unsatisfactory or implausible.[31] Her explanation was cogent. Her Honour concluded this section of the reasons by saying:[32]
I therefore consider Mr Upton not to be a credible witness and, where his evidence is inconsistent with the prosecution's, I set it aside.
[31] Magistrate's Reasons [107] ‑ [110]. See also [125] ‑ [132].
[32] Magistrate's Reasons [110].
The magistrate noted that some of the evidence upon which the prosecution relied was circumstantial evidence. Her Honour set out the proper approach to circumstantial evidence, and applied that approach.[33]
[33] Magistrate's Reasons [118], [133] ‑ [134].
The magistrate demonstrably applied the standard of proof of beyond reasonable doubt.
There is no merit in this ground. I refuse leave to appeal on this ground.
Ground LF3
Ground LF3[34] appears to allege that the magistrate erred in admitting the Facebook Documents into evidence. The appellant alleges that the Facebook Documents were 'anonymous' and 'illegal'.
[34] See the Amended Grounds [8].
The appellant alleges that the Facebook Documents were 'anonymous' and had been modified because some people's names had been removed. This allegation is contrary to the evidence[35] accepted by the magistrate.[36] In any event, even if it was true, this would not have made the evidence inadmissible. The relevance of the material was to show what the respondent alleged the appellant had been offering.
[35] Trial Transcript Day 1 pages 69 ‑ 75, 79 ‑ 81 and 128 ‑ 130.
[36] Magistrate's Reasons [81] ‑ [82].
The appellant also alleges the Facebook Documents were illegal because the respondent had not obtained permission from the people who were named in the documents to 'use their likeness'. The respondent did not need to obtain this permission to use the Facebook Documents in the trial. The documents were not illegal.
There is no merit in this ground. I refuse leave to appeal on this ground.
Ground LF4
Ground LF4[37] appears to allege that the magistrate erred in failing to take into account the prosecutor's failure to call 'the original complainant witness' and the prosecutor's 'outrageous lie' about that witness.
[37] See the Amended Grounds [9].
The appellant cross‑examined the Officer as to the basis upon which the Officer asserted that the appellant had made a representation to members of the public other than the Officer himself. In that context, the appellant asked the Officer why the prosecutor was not calling the person who had provided the information which triggered the Officer's investigations. I will refer to that person as the 'informant'. The effect of the Officer's evidence was that, having provided the information, the informant did not want to do anything more. The Officer said that he had asked the informant if she wanted to give further information, but she 'was satisfied with giving the information … so I'm not going to harass her and ask her to come'.[38]
Failure to call the informant
[38] Trial Transcript Day 1 pages 115 ‑ 116 and 134. See also Trial Transcript Day 2 page 34.
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.[39] 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.
[39] Trial Transcript Day 1 pages 162 ‑ 163. See also page 168.
At another point, it appears that the appellant suggested that the informant may have been a fictitious person or using a false name.[40] This was purely speculative and irrelevant.
[40] Trial Transcript Day 2 page 44.
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.
Conclusion on ground LF4
There is no merit in ground LF4. I refuse leave to appeal on this ground.
Ground LF5
Ground LF5[41] alleges that the magistrate erred in failing to take into account the respondent's failure to call 'any witnesses named on their fake Facebook posts. An outrageous Resp[ondent] lie'.
Failure to call the people who posted on the Facebook Page
[41] See the Amended Grounds [10].
There is no merit in the allegation that the magistrate erred in failing to take into account the prosecutor's failure to call any of the people who had posted on the Facebook Page. Again, the prosecution case was that the representations were made to the public. The prosecution did not have to prove the identity of any of the people who accessed the Facebook Page. The prosecution only needed to prove that the Facebook Page was accessible to the public. It did this by proving that the Officer had been able to access the Facebook Page.
In dealing with ground LF4, I set out the basis of the prosecution case. The people who posted on the Facebook Page were not material witnesses. The prosecution was not obliged to call them.
Therefore, the magistrate did not err in not taking into account the fact that the prosecution had not called them.
Alleged lie
From the particulars to ground LF5, the allegation that the respondent lied appears to be based on the allegation made under ground LF3 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 likeness'. As noted when dealing with ground LF3, this did not make the evidence illegal. There is therefore no basis for the allegation that the respondent lied.
Conclusion on ground LF5
There is no merit in ground LF5. I refuse leave to appeal on this ground.
Ground LF6
Ground LF6[42] alleges that the magistrate erred in 'failing to recognise [the respondent's] avoidance and feigned ignorance of the widely known and correct Facebook procedure Court Rules'.
[42] See the Amended Grounds [11].
It appears that, in referring to the 'Facebook procedure Court Rules', the appellant is referring to information on the Facebook website for law enforcement authorities.
Any such information, even if styled as rules of court, are not applicable to prosecutions in Western Australia. The prosecution was not required to follow them.
There is no merit in ground LF6. I refuse leave to appeal on this ground.
Ground LF7
Ground LF7[43] alleges that the magistrate erred 'by allowing the [respondent] to present a fake criminal record' to the Joondalup Magistrates Court.
[43] See the Amended Grounds [12].
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.[44]
[44] Trial Transcript Day 1 pages 144 ‑ 146.
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.[45]
[45] See the transcript of 28 April 2020 (Sentencing Transcript) pages 18 ‑ 19. See also Sentencing Transcript page 5.
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.
There is no merit in ground LF7. I refuse leave to appeal on this ground.
Ground LF8
Ground LF8[46] alleges 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.
[46] See the Amended Grounds [13].
The Officer did not lie.
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.[47] 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.
[47] Trial Transcript Day 1 pages 121 and 126.
The magistrate recorded in her reasons that the Officer confirmed that 'he has never met [the appellant] face‑to‑face'.[48] 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.
[48] Magistrate's Reasons [59].
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'.[49]
[49] Trial Transcript Day 1 page 110.
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.
It is plain that the Officer did not lie. It follows that there is no merit in ground LF8. I refuse leave to appeal on this ground.
Ground LF9
Ground LF9[50] alleges that the magistrate erred 'after recognising that the dates did not match on the fake Facebook posts and prosecution notices'.
[50] See the Amended Grounds [14].
From the particulars, the appellant appears to be referring to the fact that the prosecution notice alleged the offence to have occurred in the period 1 ‑ 23 October 2018, whereas one of the posts was dated 20 September 2018.
This ground misunderstands the nature of the prosecution case. The prosecution case, which the magistrate accepted, was that the Facebook Documents printed by the Officer on 16 October 2018 reflected what he had seen when he first went online on 1 October 2018. The fact that what he saw on that date contained material that had been put onto that page prior to 1 October 2018 is not surprising, and indeed is to be expected.
There is no merit in ground LF9. I refuse leave to appeal on this ground.
Ground LF10
Ground LF10[51] alleges that the magistrate erred in applying the wrong definition of 'represent' in s 13(1) of the Legal Profession Act. In the particulars to this ground, the appellant asserts that the magistrate should have used a legal dictionary rather than a general online dictionary. The legal dictionary defined a representation as a 'statement made by one person to another, usually with the intent to persuade the representee to take a course of action'. It appears that the appellant asserts that, to prove a representation was made, the prosecution must prove that there was an intention to persuade.[52]
[51] See the Amended Grounds [15].
[52] See Trial Transcript Day 2 pages 109 ‑ 110.
The meaning of 'represent' in s 13(1) is a matter of statutory construction, not dictionary definitions. In any event, the definition proposed by the appellant does not support his proposition. This is because the word 'usually' is included.
There is no merit in ground LF10. I refuse leave to appeal on this ground.
Some other error?
Nevertheless, as the appellant is unrepresented, I will consider whether the magistrate erred in some other way in relation to the meaning of 'represent'.
Proper construction
Statutory construction 'requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.[53]
[53] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
Section 13 provides:
Prohibition on representing or advertising entitlement to engage in legal practice when not entitled
(1)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.
Penalty: a fine of $20 000.
…
(4)A reference in this section to a person –
(a)representing or advertising that the person is entitled to engage in legal practice; or
(b)representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
The term 'engage in legal practice' is defined to include 'practise law'.[54] The practice of law includes giving legal advice.[55] Accordingly, a person who represented that he or she was entitled to give legal advice would be representing that he or she was entitled to engage in legal practice.
[54] Section 3 of the Legal Profession Act.
[55] See the discussion in Van Der Feltz [2017] WASC 2 (Van Der Feltz First Instance) [76].
The word 'represent' is not defined in the Legal Profession Act. However, by s 13(4), a person who does anything that states or implies that the person is entitled to engage in legal practice will be representing that he or she is entitled to engage in legal practice. Accordingly, a person who does anything that states or implies that the person is entitled to give legal advice would be representing that he or she was entitled to engage in legal practice.
The context and purpose of the Act support giving the text its plain meaning.
Section 13 is contained in division 2 of part 3 of the Act. Part 3 deals with the reservation of legal work and related matters. Division 2 provides for prohibitions on unqualified practice.[56]
[56] By s 32(1) of the Interpretation Act 1984 (WA), the headings of the parts and divisions form part of the written law.
Section 11 provides that the purposes of part 3 are as follows:
(a)to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;
(b)to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
Did the magistrate err?
The magistrate noted that 'represent' was defined in the online Macquarie Dictionary as including 'to express, to portray, to be the equivalent of '. Her Honour said that, based upon those meanings, Mr Upton's Facebook page portrayed an entitlement to engage in legal practice.[57] Her Honour was satisfied he had represented that he was entitled to engage in legal practice.
[57] Magistrate's Reasons [151].
In emphasising the word 'portray' in her reasons, her Honour plainly meant that the Facebook Page implied that the author was entitled to engage in legal practice. That is, her Honour was satisfied that it represented this even though it did not contain an express statement that the appellant was entitled to engage in legal practice.
Having regard to the text (in particular s 13(4)), context and purpose of the Legal Profession Act, her Honour was plainly correct to conclude that words expressly asserting such an entitlement were not required.
Further, having regard to the Facebook Page itself, her Honour was plainly correct to conclude that the Facebook Page represented that the author was entitled to engage in legal practice.
The name of the Facebook Page was 'Perth Legal Questions Answered – for Free'. It contained a post that said 'Ask me your legal questions and I will answer for free'. It included a picture of the Supreme Court and a diagram of court hierarchies. It contained the following purported question and answer (the person's name was not redacted in the exhibit but has been redacted below):
[Person's name redacted] Can an employer/manager watch you work on a camera continuously?
Perth Legal Questions Answered – for Free That is an interesting question. Recording conversations on a hand held recording device without the knowledge or consent of the person being recorded might be in contravention of s 5(1) of the Surveillance Devices Act 1988 (WA)
Accordingly, in my view, the magistrate did not err in relation to the meaning of 'represent'.
I have also considered whether the fact that the appellant was offering free legal advice makes a difference. Although not directly considering this point in this context, there is authority for the proposition that 'engaging in legal practice' involves doing 'legal work'[58] for a fee.[59] However, I consider that, in the context of the Facebook Page, the appellant was plainly representing that he was entitled to do legal work for a fee, but was offering to do it for free. In my view, this finding is compelled by the facts. The very name of the Facebook Page showed that the 'selling point' was that the legal advice would be free.
Ground LF11
[58] 'Legal work' is defined to include any work in connection with the administration of the law – see s 12(1)(a) of the Legal Profession Act.
[59] See Van Der Feltz First Instance [76], [78] ‑ [79] and Van Der Feltz v The Legal Practice Board [2017] WASCA 113 (Van Der Feltz Appeal) [13]. See also s 12(4) of the Legal Profession Act.
Ground LF11[60] alleges that the magistrate erred in 'a number of basic facts'. The appellant then sets out several assertions:
The appellant did not own the Facebook page "Perth Legal Questions Answered For Free." The posts were not made by the appellant. The appellant's name does not appear on the posts or page. The appellant did not make the phone call. The appellant did not send the letters.
[60] See the Amended Grounds [16].
The first assertion was a critical fact in issue. The magistrate found against the appellant on this issue.
In relation to the second assertion, the prosecution was required to prove that the appellant had represented that he was entitled to engage in legal practice. The prosecution contended that the appellant 'owned' the Facebook Page, in the sense that he was the person who had set it up and who had control over it.
The Facebook Page contained posts of questions and posts of answers. The prosecution said that the posts indicated that the 'Page Owner' was prepared to act on the invitation to answer legal questions. The prosecution did not contend that the questions that had been posted had been posted by the 'Page Owner'.
It is true that the appellant's name does not appear on the posts or page. This is, however, only one of the many relevant circumstances in the assessment of whether the respondent had proved beyond reasonable doubt that the Facebook Page was the appellant's.
The last two assertions were critical facts in issue. The magistrate found against the appellant on these issues.
In the particulars to this ground, the appellant asserts that the magistrate failed to recognise that his name did not appear on the Facebook Page. This assertion is incorrect. The magistrate expressly stated that the Facebook Page did not directly refer to the appellant.[61]
[61] Magistrate's Reasons [119].
In the magistrate's reasons, her Honour carefully set out the evidence that she accepted that bore upon whether the Facebook Page was the appellant's.[62] The magistrate carefully set out why she did not accept the appellant's evidence.[63] Her Honour evaluated the evidence, and reminded herself of the approach required in cases involving circumstantial evidence. Her Honour was satisfied that the only reasonable available inference was that the Facebook Page was the appellant's.[64]
[62] Magistrate's Reasons [36] ‑ [82].
[63] Magistrate's Reasons [83] ‑ [110].
[64] Magistrate's Reasons [118] ‑ [134].
No error of fact or law has been demonstrated.
Further, although circumstantial, the evidence was overwhelming. In particular, the timing, source and nature of the communications alleged to have occurred between the Officer and the appellant was compelling. It was plainly open to the magistrate to be satisfied that the only reasonable inference was that the Facebook Page was the appellant's. It was plainly open to the magistrate to be satisfied that the only reasonable inference was that it was the appellant who had been communicating with the Officer.
There is no merit in ground LF11. I refuse leave to appeal on this ground.
Ground J1
Ground J1[65] alleges that the magistrate in [21] of her reasons wrongly stated that the State Administrative Tribunal had overriding jurisdiction. The appellant asserts that 'the courts hold the power to cure any imperfections with a practicing certificate' under s 465 of the Legal Profession Act. Section 465 provides that the inherent jurisdiction of the Supreme Court with respect to the control and discipline of local lawyers is not affected by anything in part 13 of the Legal Profession Act.
[65] See the Amended Grounds [17].
In [21] of her reasons, her Honour wrote:
Mr Upton also raised issues concerning the original decision of [the Administration and Registration Committee] in not providing him with a legal practice certificate. I explained to Mr Upton that any rights of review in respect to [that committee's] decision did not lie in the Magistrates Court, but rather, lay in the State Administrative Tribunal.
This was not erroneous. Under s 78 (in part 5) of the Legal Profession Act, a person may apply to the State Administrative Tribunal for a review of a decision to refuse to grant a practising certificate. There is no right to apply to the Magistrates Court for such a review. The fact that the inherent jurisdiction of the Supreme Court with respect to the control and discipline of local lawyers is not affected by part 13 of the Act is not relevant.
There is no merit in ground J1. I refuse leave to appeal on this ground.
Ground EXC
Implied error – manifest excess
Ground EXC[66] alleges that the sentence was manifestly excessive.
[66] See the Amended Grounds [18] ‑ [22].
This is an assertion of implied error.[67] To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[68]
[67] Gaskell [127(2)].
[68] Gaskell [127(1)].
The proper approach to determining whether a sentence is manifestly excessive, which includes whether it was open to impose the particular type of sentence, is well settled. The sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the location of the criminal conduct on the scale of seriousness for offences of that type, and the offender's personal circumstances.[69]
[69] Gaskell [127(2)].
The maximum penalty for an offence against s 13(1) of the Legal Profession Act is $20,000.
It appears that there are relatively few prosecutions for contravention of s 13(1) of the Legal Profession Act.[70] In Van Der Feltz v The Legal Practice Board,[71] Hall J refused to give leave to appeal against a fine of $2,500 for a first offence against s 13(1). The court of appeal agreed that the ground had no reasonable prospects of success.[72]
[70] And see Van Der Feltz First Instance [87].
[71] Van Der Feltz First Instance [92].
[72] Van Der Feltz Appeal [25].
In Van Der Feltz, Hall J said:[73]
As to the seriousness of the offence, it is to be remembered that the prohibition in s 13 is intended to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified and to protect consumers by ensuring that persons carrying out legal work are entitled to do so: s 11. In assessing the seriousness of an offence of this nature, it is relevant to take into account the nature of the representation or advertisement (that is its actual terms), how widely the advertisement was distributed or made available and the length of time for which it was available.
[73] Van Der Feltz First Instance [88].
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.
I am not satisfied that the fine was unreasonable or plainly unjust. On the contrary, it was plainly within the discretionary range open to the magistrate.
Express errors
Under the heading of ground EXC, the appellant also alleges express errors.
First, the appellant submits that '[t]raditionally when costs exceed the fine, the courts generally consider a person innocent'.[74] This is not correct.
[74] Amended Grounds [18].
Second, the appellant submits that the costs did 'not even follow the scale of costs described by the legislation'.[75] The costs that were awarded were substantially less than provided for under the scale.
[75] Amended Grounds [22].
Third, the appellant asserts that:[76]
[T]he magistrate did not consider the long term unemployed status of the defendant. The defendant has no prospects, or ability, to pay a large fine. The defendant has spent his youth studying long hours for degrees the defendant cannot use. A large fine, suspending the defendant's driver's licence, would make work even more difficult to find.
[76] Amended Grounds [21].
I do not accept this assertion. The magistrate expressly noted the appellant's long term unemployment and his difficult financial position.[77]
Conclusion on EXC
[77] Sentencing Transcript pages 18 ‑ 19 (and, in relation to costs, page 21).
There is no merit in ground EXC. I refuse leave to appeal on this ground.
Ground MJ
Ground MJ[78] alleges that there was a miscarriage of justice.
[78] See the Amended Grounds [23] ‑ [31].
The appellant repeats a number of the assertions he makes under other grounds, dealt with earlier in these reasons.
The appellant also makes a number of allegations about the conduct of the respondent and its legal representatives. Some, such as his assertions that officers of the respondent lied in their evidence,[79] reflect the appellant's misunderstanding of the evidence in the trial. Others are unfounded and scandalous.[80]
[79] See the Amended Grounds [23], [25], [27] ‑ [28].
[80] See, for example, the Amended Grounds [24], [29] and [31] of the Amended Grounds incorporating [11], [14], [16] ‑ [18] of the Appeal Notice.
There is no merit in ground MJ. I refuse leave to appeal on this ground.
Applications in the appeal
Application filed on 24 August 2020
The application filed on 24 August 2020 asserts that the Fines Enforcement Registry was wrong to seek to enforce the fine while the appeal was pending. The appellant relies on s 101B of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). However, by s 101B(1)(b), that section only applies where an application is made under s 71 of the Criminal Procedure Act 2004 (WA)[81] or where leave has been granted to appeal. The appellant has not applied under s 71. Leave to appeal has not been granted.
[81] Section 71 of the Criminal Procedure Act permits an accused person or prosecutor to apply to a court to set aside a decision made in his or her absence.
I dismiss this application.
Application filed on 9 October 2020
The application filed on 9 October 2020 seeks orders that the appeal be dismissed, the respondent's submissions be struck out and that the respondent pay the appellant $2.3 million in damages and pay costs.
The grounds are (renumbered):
1.The respondents have not complied with orders written by Principal Registrar Strk 4 September 2020 (orders).
2.The respondents have confessed to lying to the court under oath.
3.There is a significant breach of Procedural Fairness.
4.The [sic] is no sustainable objection to the appeal further and alternatively the respondents objection to the appeal is scandalous, frivolous or vexatious, further and alternatively may prejudice, embarrass or delay the fair trial of the action, further and alternatively is an abuse of process of the Court.
The first ground, even if true, could not sustain the relief sought. In any event, the respondent appears to have complied with those orders by filing its submissions by the due date.
The second ground repeats the unfounded allegation referred to earlier.
The breach of procedural fairness alleged in ground 3 is the actions of the Fines Enforcement Registry.[82] I dealt with this in dealing with the previous application.
[82] See the appellant's affidavit filed 9 October 2020 [6] ‑ [9].
The fourth ground is unfounded.
I dismiss this application.
Affidavit filed without leave
The week before the appeal was heard, on 25 February 2012, the appellant filed another affidavit (February Affidavit). The February Affidavit contained further submissions of the appellant, and was said to be responsive to the respondent's written submissions.[83] The respondent's written submissions were filed in October 2020. The appellant did not have leave to file another affidavit. Had he sought leave, I would not have granted it. There was nothing in the February Affidavit that was relevant to whether the magistrate erred.
[83] Appellant's affidavit filed 25 February 2021 [7].
Further, as with some of the other documents filed by the appellant in these proceedings, the February Affidavit contained unfounded and scandalous allegations. However, it also included a supposition that was particularly scandalous.[84] I consider it is appropriate to order that the February Affidavit be taken off the court file on the grounds it contains scandalous material, under O 37 r 7 of the Rules of the Supreme Court (and s 40(1)(l) of the Criminal Appeals Act).
[84] Appellant's affidavit filed 25 February 2021 [72].
Conclusion
None of the grounds of appeal have a reasonable prospect of success. I refuse leave to appeal and dismiss the appeal.
I dismiss the applications.
I order that the February Affidavit be taken off the court file.
I will hear from the parties as to costs.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
12 MAY 2021
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