Van der Feltz v Legal Practice Board
[2017] WASC 2
•9 JANUARY 2017
VAN DER FELTZ -v- LEGAL PRACTICE BOARD [2017] WASC 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 2 | |
| Case No: | SJA:1059/2016 | 22 NOVEMBER 2016 | |
| Coram: | HALL J | 9/01/17 | |
| Judgment Part: | 1 of 1 | ||
| Result: | Leave to appeal against conviction, sentence and costs refused - appeals dismissed Cross-appeal - extension granted, leave to appeal granted, appeal allowed and spent conviction order set aside | ||
| B | |||
| PDF Version |
| Parties: | RIC VAN DER FELTZ LEGAL PRACTICE BOARD |
Catchwords: | Criminal law Representing and advertising an entitlement to engage in legal practice when not an Australian legal practitioner Legal Profession Act 2008 (WA) Appeal against conviction Whether appellant denied procedural fairness Whether Magistrate made errors of fact and law Whether the representations amounted to representations that the appellant was entitled to do legal work Criminal law appeal against sentence and costs order Whether fine and costs manifestly excessive Criminal law Cross-appeal against spent conviction order Whether grounds for exercising the discretion to make such an order were made out |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Legal Profession Act 2008 (WA) Sentencing Act 1995 (WA) |
Case References: | Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Beamish v The State of Western Australia [2005] WASCA 62 Brewer v Bayens [2002] WASCA 271 Dean v The Legal Practice Board [2015] WASC 260 Dean v The Legal Practice Board [2016] WASCA 63 Fry v Keating [2013] WASCA 109 King v The City of Fremantle [2004] WASCA 212 Konings v Commonwealth Bank of Australia [2016] WASCA 122 Legal Practice Board v Adams [2001] WASC 78 Legal Practice Board v Giraudo [2010] WASC 4 O'Connell v The State of Western Australia [2012] WASCA 96 R v Tognini [2000] 22 WAR 291 Samuels v The State of Western Australia [2005] WASCA 193 Tobin v Dodd [2004] WASCA 288 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P MALONE
File No : PE 10343 of 2016
Catchwords:
Criminal law - Representing and advertising an entitlement to engage in legal practice when not an Australian legal practitioner - Legal Profession Act 2008 (WA) - Appeal against conviction - Whether appellant denied procedural fairness - Whether Magistrate made errors of fact and law - Whether the representations amounted to representations that the appellant was entitled to do legal work
Criminal law - appeal against sentence and costs order - Whether fine and costs manifestly excessive
Criminal law - Cross-appeal against spent conviction order - Whether grounds for exercising the discretion to make such an order were made out
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Legal Profession Act 2008 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal against conviction, sentence and costs refused - appeals dismissed
Cross-appeal - extension granted, leave to appeal granted, appeal allowed and spent conviction order set aside
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr R Nash
Solicitors:
Appellant : In person
Respondent : Legal Practice Board
Case(s) referred to in judgment(s):
Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Beamish v The State of Western Australia [2005] WASCA 62
Brewer v Bayens [2002] WASCA 271
Dean v The Legal Practice Board [2015] WASC 260
Dean v The Legal Practice Board [2016] WASCA 63
Fry v Keating [2013] WASCA 109
King v The City of Fremantle [2004] WASCA 212
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Giraudo [2010] WASC 4
O'Connell v The State of Western Australia [2012] WASCA 96
R v Tognini [2000] 22 WAR 291
Samuels v The State of Western Australia [2005] WASCA 193
Tobin v Dodd [2004] WASCA 288
1 HALL J: On 25 July 2016 the appellant, Mr Ric van der Feltz, was convicted after a trial in the Magistrates Court of representing and advertising 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 Act). He was sentenced to a fine of $2,500, ordered to pay costs and granted a spent conviction order. He now seeks leave to appeal against both his conviction and the sentence and costs order imposed. The respondent, the Legal Practice Board (the Board), also seeks leave to appeal against the sentence, in particular the granting of a spent conviction order.
2 On this appeal, and in the Magistrates Court, the appellant represented himself. His grounds of appeal are numerous. They include an assertion that the advertisement in question was placed on an internet website in 2014, that it had expired by 2015 and could not be accessed at that time, that the witnesses who said that they accessed the advertisement in 2015 were incorrect, and that the time for bringing a prosecution for any advertisement in 2014 had expired because more than 12 months had passed by the time the charge was laid (see s 21 Criminal Procedure Act2004 (WA)). The appellant sought to adduce new evidence to support this assertion.
3 Another assertion made by the appellant is that the advertisement did not contain any representation that the appellant was entitled to practice law or make any offer to do any legal work. This assertion was based on an analysis of the terms of the advertisement and referred to some of the case law regarding the types of work reserved for legal practitioners.
4 For the reasons that follow, I have come to the conclusion that none of the appellant's grounds of appeal against conviction have merit. Leave to appeal in respect of those grounds is refused. I would also dismiss the appeal against sentence by the appellant. However, the appeal by the Board should succeed and the spent conviction order should be set aside.
The prosecution case
5 The appellant was charged that on 23 February 2015 he, being a person who was not an Australian legal practitioner, represented and advertised that he was entitled to engage in legal practice contrary to s 13(1) of the Act. The prosecution notice was signed on 16 February 2016.
6 The prosecution case was that the appellant had placed an advertisement on the Gumtree website. This is an open website that enables members of the public to advertise goods and services for sale. The advertisement was in the following terms:
No Lawyer No Problem
REPRESENT YOURSELF IN COURT
(an address and hours of operation)
Represent yourself in court
Do you really need a lawyer? Can you afford a lawyer? Representing yourself maybe ideal for you. If you can talk and think you are half way there. Yes, you may lose and be liable for costs but so can a Lawyer and you'd still be liable for costs.
I can help you prepare to represent yourself in Court and with filling out Court applications and other Court documents and the drafting of affidavits.
I am not a Lawyer and do not give legal advice. I do have an overseas Law Degree and extensive experience representing myself in the Magistrate, District and Supreme Court and the State Administrative Tribunal (SAT) in commercial and administrative matters and helped others do the same.
You might just need some help to guide you through the Court system and that's where I come in at a fraction of the cost of a Lawyer.
A first meeting is free and obligation free. If you decide to proceed I will charge a one off fee depending on the matter and the court.
For example: minor case claim (debt or damages below $10k) Magistrate Court my one off fee $250.
General Procedure Claim value or relief (claimed below $75k) magistrates court my one off fee $500.
General Civil Claim (value $75k and over but below $750k) District Court my one off fee $1,000.
Appeal in a Civil matter or a General Civil Claim (value over $750k) Supreme Court my one off fee $1,500.
Review of a decision (for example about a Development Application or Building Licence) by a local government State Administrative Tribunal my one off fee $500.
Please email or call Monday to Friday between 10am and 2pm for further information or to make an appointment.
7 The prosecution alleged that by this advertisement the appellant represented that he had skill and knowledge of court processes that was beyond that possessed by an average citizen. It was said that by offering to prepare court documents and guide people through the court system the appellant was offering to do work that would otherwise be done by a lawyer. This conclusion was said to be reinforced by reference to the services being provided at a fraction of the cost of a lawyer and also by reference to the appellant holding an overseas law degree.
8 The advertisement included the name and telephone number of a contact person, which were those of the appellant. It was alleged that the advertisement was viewed by a witness on 23 February 2015, who referred the matter to the Board shortly after.
Chad Steven Silver
9 Mr Silver gave evidence that in 2013 and 2014 he was a law student at Murdoch University. At that time he said that he did a great deal of online searching trying to find a job. He came across the advertisement referred to above after using the search term 'lawyer'. He printed out a copy of the ad on or about 28 August 2014 and reported it to the Board.
10 Before cross-examining Mr Silver, the appellant expressly admitted that the name and telephone number in the advertisement were his. It was put in cross-examination of Mr Silver that the advertisement he viewed could have been changed in some way by him. The implication was that though the appellant may have originally placed the advertisement he may not have been responsible for all of the content. Mr Silver denied making any such changes and said that the print out that he provided (and which became exhibit P1) was an exact copy of the advertisement as viewed by him.
Nicholas Peter Van Hattem
11 Mr Van Hattem is a legal practitioner involved in organising legal educational events for law graduates. He said that in February 2015 he was browsing the internet because of his interest in employment trends in the legal profession. In the course of browsing the Gumtree site he came across the advertisement in question.
12 Mr Van Hattem said he did not think that he particularly searched for 'a legal advertisement'. Rather, he said he was 'just looking at things, browsing - I spend a little time browsing Gumtree'. He said that there were links on the Gumtree site that directed a person who was browsing to other items that may interest them. He said, 'I think I remember seeing the title "No lawyer no problem" and thinking that looked interesting'. He then viewed the advertisement. Immediately after doing so he copied a link to the advertisement into an email to the Board. He did this because he formed the view that the matter should be investigated by the Board.
13 In cross-examination, it was put to Mr Van Hattem that he may have accessed an old advertisement that he had previously looked at which was stored on his computer, rather than one that was current on Gumtree at the time. In response Mr Van Hattem said:
Certainly, it - it was on line on the day that I clicked on it.
14 He was then asked:
Would it be possible (indistinct) through looking at these things in 2014 that the ad was on your computer in 2014, you had a look at it and left it at the time and then it came up again in 2015?
I don't think so. The way Gumtree works - there are these different ads that are available at different URL addresses. And that's what I sent . At the time that I sent my email to the legal practice board, that URL address was an active link. And I've also got experience posting the ads myself and I know you can delete ads. And my experience has been when you delete an ad, it disappears on that day.
Yes. Now that leads me then - you you know a bit about Gumtree you know that an ad has an ID number doesn't it?
I think so yes.
Yes so when you delete an ad you repost it it gets a new ID number doesn't it.
Yes I think that's right.
And do you know how long an ad stays on Gumtree how long (indistinct) for?
I don't know. Every time I've posted an ad I deleted it when the item's no longer for sale.
Yes and I'm not sure if this is the appropriate time but I will actually show it to you now. If you post an ad on Gumtree would you agree that it's only valid for 30 days?
I don't know that but that sounds like it might be possible.
15 The appellant then showed the witness a document which was not tendered. Mr Van Hattem agreed that the document referred to an advertisement only being live for 30 days.
Elizabeth Rose Allison Fulham
16 Ms Fulham is a legal practitioner and the deputy executive director of the Board. She said that she received an email from Mr Van Hattem on 23 February 2015. She said the email had a link to the advertisement in question. Ms Fulham clicked on the link which took her to the advertisement on the Gumtree website. She then printed off a copy of the advertisement. That copy became exhibit P2 and bears the date it was printed as 23 February 2015.
17 Ms Fulham undertook further enquiries and established that the appellant was not a registered legal practitioner. She then wrote to him by letter dated 8 June 2015. The letter referred to the advertisement and to the provisions of the Act and stated that the Board would need to consider whether there had been any breach of the Act. No response to this letter was received and a further letter was sent on 14 September 2015. On 22 September 2015, the appellant responded by email in which he stated:
I do not advertise and do not 'engage in legal practice' in any way.
18 It was suggested to Ms Fulham in cross-examination that in clicking on the link in the email from Mr Van Hattem she could have been opening an advertisement that was no longer live on Gumtree at that time. To this she responded that she was not an internet expert but that when she clicked on the link on 23 February 2015 it worked but that subsequently she had clicked on the link and it was 'no longer in existence'. Ms Fulham accepted that the advertisement identification number was the same on both the August 2014 and February 2015 printed copies of the advertisement (exhibits P1 and P2). As to why the same number appeared, she could not say. What she did say was that on 23 February 2015 she clicked on the link, it opened in a web browser, she printed the advertisement from the web browser and 'it was live on that occasion' (ts 52).
Defence case
19 At the conclusion of the prosecution case, the magistrate advised the appellant of his right to give evidence and the consequences of doing so or not doing so. Before making the decision to do so, the appellant explained his position. He said, 'I did have an ad in 2014. It was deleted'.
20 The appellant asserted that Mr Van Hattem must have viewed an advertisement that was retained on his (Mr Van Hattem's) hard drive because he had looked at it previously. He said that the advertisement had been deleted from the Gumtree website by February 2015. The magistrate pointed out that this was contrary to the evidence of both Mr Van Hattem and Ms Fulham. His Honour said that if the appellant wished to give evidence that there was no advertisement available in 2015 he would need to do that from the witness box. In these circumstances the appellant decided to give evidence.
Ric van der Feltz
21 In his evidence Mr van der Feltz repeated his assertion that Mr Van Hattem first looked at the advertisement in 2014 rather than 2015. He said that he was sure that the advertisement was not 'up in 2015 at all'. He said that an advertisement on Gumtree expires after 30 days unless it is reposted. He said that a reposted ad is given a new identification number. He noted that the copy printed by Ms Fulham in 2015 had the same identification number as that printed by Mr Silver in 2014.
22 In cross-examination, Mr van der Feltz was asked whether he had placed the advertisement. He said that parts of it seemed familiar but other parts were not. He said that he might have written the words 'no lawyer no problem' but he was unsure. He did accept that his name and mobile telephone number appeared in the advertisement. He said that he did have 'an ad up' but that it was 'just not this ad exactly'. He agreed that he could have written most of the words other than those parts dealing with the fees, which he denied writing. He could not produce the advertisement in the form that he said he had originally placed it. He said that he had placed an advertisement in 2014 and that it was on Gumtree at the end of the financial year 'probably July or August' (ts 79).
23 It was put to Mr van der Feltz that in his response to the Board of 22 September 2015 he had said that he did not advertise and that this was contrary to his admission that he had placed an advertisement that was current in July or August of 2014. He said that by the time he wrote the response he had deleted the advertisement over a year earlier and he 'didn't really go into detail' (ts 84). He admitted that prior to sending the response, he had received an anonymous email through Gumtree which suggested that he may be breaching the Act. He said that it was after this that he deleted the advertisement. When asked how he deleted it he said, 'I deleted it or it had expired in or around that time, I'm not sure' (ts 84). When pressed as to whether he deleted it he said:
I would have deleted it. Yes, now you're - asking me for something about over two years ago again. Where I - I would have deleted it, I would have - think I would have deleted it. But maybe it had expired at that time and - and - and that - that's it (ts 84 - 85).
24 He denied a suggestion that he had only deleted the advertisement after 23 February 2015. He did, however, agree that after receiving the correspondence from the Board he looked on Gumtree in September 2015 and was unable to find the advertisement. He said that he was sure that it was deleted prior to 2015 because he did not get many responses. He said he received 'the odd response' but could not be sure of the timeframe, though he said, 'after that I never got a single response anymore'. It is not clear what point in time he was speaking of.
Magistrate's reasons
25 The Magistrate gave oral reasons for his decision at the end of the hearing. His Honour summarised the evidence and noted that there was conflict between the evidence of the prosecution witness and that of the appellant. He said that although the appellant claimed that Mr Van Hattem must have viewed a copy of an advertisement that he had downloaded at some earlier time, that was not in accord with what Mr Van Hattem had said in his evidence. The evidence of Mr Van Hattem was that he was browsing Gumtree and that the advertisement was 'live' at that time. His Honour accepted that evidence and the evidence of the other prosecution witnesses and rejected suggestions that they had colluded. On the other hand, his Honour found that the appellant's evidence that an advertisement placed by him had been altered by an unknown person and that he had then deleted it at some unspecified time after receiving an anonymous warning lacked any credibility.
26 The Magistrate found that the advertisement was placed by the appellant and was current as at the date of the alleged offence, 23 February 2015. He also found that the terms of the advertisement were in substance that the appellant had particular knowledge and expertise in court proceedings and could assist members of the public in that regard for a fee, which was favourably compared to the costs of a lawyer. In these circumstances, his Honour concluded that the appellant clearly gave the impression that he was entitled to engage in activities that amounted to legal practice (ts 115).
27 The appellant sought a spent conviction order. He said that one basis for this was that he has a brother in the United States of America and that a conviction may make travel to that country more difficult. He also said that he had no record, had removed the advertisement and had never intended to do anything other than help people. The respondent opposed a spent conviction order noting that the appellant had pleaded not guilty and had shown no insight into the wrongfulness of his conduct. In these circumstances, there was said to be a risk that the appellant might repeat his actions.
28 The Magistrate imposed a fine of $2,500 and ordered the appellant to pay the respondent's costs in the sum of $8,372.95. His Honour granted a spent conviction order (ts 127 - 128).
The appellant's grounds of appeal
29 The grounds of appeal contained in the notice of appeal were lengthy and contained much that was in the form of submissions rather than properly framed grounds. At a directions hearing, the grounds were reformulated and the appellant agreed that in this revised form they represented his essential contentions. The grounds as reformulated are as follows:
(1) there was a miscarriage of justice in that I was denied procedural fairness:
(a) because I was required to give evidence against my wishes (ts 67);
(b) because I was prevented by the magistrate from giving all the evidence I wished to (ts 70 - 71, 86);
(c) because my cross-examination was unfair due to the asking of improper or objectionable questions;
(d) because the Magistrate refused to permit me to tender documentary evidence;
(e) because I was interrupted in giving my oral submissions and thereby prevented from presenting my case fully and fairly;
(f) because I was not given an opportunity to read and make submissions on the legal authorities referred to;
(g) the Magistrate unfairly permitted the prosecutor to ask prosecution witnesses leading questions.
(2) the Magistrate made an error of fact in finding that everything disappears 'once you shut a computer down' (ts 92);
(3) the Magistrate made an error of law in that he failed to take into account the effect that delay in bringing the prosecution had on my ability to prepare a defence;
(4) the Magistrate made an error of fact in that he failed to take into account that the advertisement would have expired after 30 days;
(5) the Magistrate made an error of fact in that he failed to take into account that the advertisement viewed by Mr Van Hattem was a PDF not a screen print and, therefore, not necessarily an advertisement that appeared in 2015;
(6) there was a miscarriage of justice because the prosecution failed to disclose emails sent to Ms Fulham by the witnesses, Mr Van Hattem and Mr Silver, regarding what they had observed on the internet;
(7) the Magistrate made an error of law by requiring me to provide explanations for how the advertisement could be seen in 2015 if it was not live, thereby reversing the onus of proof;
(8) the Magistrate made an error of law in that he found the advertisement breached s 13 when in its terms it did not do so because I did not claim an entitlement to practice law or offer to do any legal work;
(9) the Magistrate made an error of fact by finding that an email sent to me by the legal practice board had been sent on 23 February 2015 rather than 22 September 2015 and by using this as a reason for finding my evidence contradictory;
(10) the fines and costs were manifestly excessive because the conduct was on the lower side of offending.
Respondent's cross-appeal
30 The respondent filed a cross-appeal against the sentence insofar as the magistrate granted a spent conviction order. The notice of cross-appeal was filed three days out of time and an extension is required. An affidavit explaining the delay has been filed and the delay is very short. In the circumstances, an extension should be granted.
31 The respondent's ground of appeal is as follows:
The learned magistrate erred in law in making a spent conviction order under s 39(2) of the Sentencing Act in that:
(a) His Honour did not have regard to, or adequate to (sic) regard to, the likelihood of the appellant offending again;
(b) by maintaining his plea of not guilty to the last (and even on appeal) the appellant has shown no insight into his own offending behaviour nor acknowledged his offending conduct;
(c) the offence cannot be characterised as trivial;
(d) there was no evidence led as to the appellant's previous good character; and
(e) there was no evidenced, or adequate evidence, led upon which the court could reasonably be satisfied that the appellant should be immediately relieved of the effect of a conviction.
Fresh/new evidence
32 One of the appellant's grounds of appeal (ground 1 (d)) refers to documentary evidence that he claims he was refused permission to tender. At the hearing of this appeal the appellant sought to rely on material that was annexed to an affidavit sworn and filed by him. He claimed that this was, at least in part, the documentation that he had sought to tender in the Magistrate's Court. His contention was that this material established that any advertisement placed by him in 2014 had expired by 23 February 2015 and would not, therefore, have been available to members of the public as at the date of the alleged offence.
33 The evidence is not fresh as it is plain that it either existed at the time of the trial or could with reasonable diligence have been discovered: Beamish v The State of Western Australia [2005] WASCA 62 [9]. However, the appellant claims that the Magistrate prevented him from adducing this evidence, or at least some parts of it. That is not an allegation that is borne out on any fair reading of the transcript. In fact, the Magistrate was scrupulous in ensuring that the appellant had every opportunity to fairly present his defence to the charge. Nonetheless, allowance should be made for the fact that the appellant is self-represented and this court has a wide discretion to admit evidence that was not before the primary court (though it should not obscure the important distinction between original and appellate jurisdiction). In the circumstances, I will grant the application to admit the evidence.
34 The appellant's affidavit annexes the following:
(1) a one page document headed 'Post an ad', which appears to be from the Gumtree website;
(2) a seven page document which appears to be a Gumtree advertisement by an apparently unrelated person offering bookkeeping services;
(3) a copy of an article from the relevant West newspaper of 15 and 16 March 2014 with the headline 'Middle Class Shut out: Chief Justice';
(4) a two page document which appears to be an extract from a manual regarding self-representation litigants;
(5) an eight page print out of emails between the appellant and a Gumtree customer support officer;
(6) a copy of the title page of a book titled 'Laymans Guide to Contract Law';
(7) a copy of the title page of a book entitled 'Everyday Law';
(8) a copy of the title page and table of contents of a book entitled 'A lesson in Law';
(9) a one page document that appears to be a print out of the appellant's junk mail box;
(10) a six page document entitled 'Guide to a McKenzie Friend';
(11) a copy of an article from the 9 News website with the headlines 'QLD law society chips critical magistrate'; and
(12) a copy of an article from an unidentified newspaper of unknown date with the headline 'Legal Advice from best mate'.
35 Items numbered (3), (4), (6), (7), (8), (10), (11), and (12) are relied upon by the appellant in support of his submission that he was not offering legal services to the public. I will deal further with that argument later in these reasons.
36 Items numbered (1), (2), (5) and (9) are relied upon by the appellant in support of his submission that any advertisement placed by him in 2014 would have expired and would not have been available to members of the pubic in 2015. However, those documents do not in fact do anything to advance that proposition. Even if they are accepted at face value (and there was no evidence establishing when they were created or by whom), they do not give any cause to doubt the correctness of the findings made by the Magistrate. Item (1) includes a statement that 'your ad will be live for 30 days' but it is not clear that this means that advertisements are deleted and unavailable after that period, nor is it clear whether extensions of time can occur. The email exchanges (item (8)) include a request by the appellant for confirmation of the date when 'my ad "No Lawyer No Problem"' was deleted or expired. A community support officer from Gumtree replied on 30 July 2016 saying that the ad has now expired but that he is unable to locate any other information. The appellant then asks whether there is any way he can prove that the ad was not on Gumtree in February 2015. The response is 'as the post has expired and been removed from our database, I'm afraid that I am unable to provide any information regarding the posting date'.
Ground 1 - procedural fairness
37 The appellant asserts that he was denied procedural fairness during the hearing in the Magistrate's Court. There are a number of different aspects to this claim and I will deal with them in the order they are referred to in the ground.
38 It is worth noting at the outset that a party is not denied procedural fairness merely because they do not have legal representation. However, it is accepted that a court ought to assist a litigant in person to an extent consistent with the interests of justice. What is required will vary depending on the litigant's capacity to understand the issues in the case: Tobin v Dodd [2004] WASCA 288 [14]. What the court cannot do is intervene to such an extent that the neutrality of the court is compromised or an unrepresented litigant is given a positive advantage. The advice and assistance given by the court should be limited to that which is necessary to diminish, so far as possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to help avoid the traps of the adversarial system that an untutored person may fall into: Konings v Commonwealth Bank of Australia [2016] WASCA 122.
39 In O'Connell v The State of Western Australia [2012] WASCA 96, Mazza JA (Martin CJ & Buss JA agreeing) said:
A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 334-335 (Deane J). However, consistent with a trial judge’s duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v R, (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini (2007) 17 VR 100 at [14] (Bell J) [106].
40 As I have observed earlier, the Magistrate in this case was conscious of the need to ensure that the appellant understood the process and the decisions that needed to be made by him. At the commencement of the trial, his Honour explained that the prosecution bore the onus of proof and that the standard was beyond reasonable doubt, he explained that the appellant would have an opportunity to give or call evidence and to make submissions, and he explained that the appellant could cross-examine prosecution witnesses and that it was important that if he did not agree with what those witnesses said then he should put his disagreement to them (ts 9 -15).
41 There is a particular irony in the fact that the appellant said that he laboured under a significant disadvantage as a self-represented litigant. This was in contrast to the advertisement in which he claimed to have personal experience and knowledge of the Magistrates Court and that he could help others in this regard. This irony was seemingly lost on the appellant.
42 At the end of the prosecution case, the Magistrate summarised the evidence and the issues as he understood them. His Honour then said:
So the situation is prosecution case have finished (sic) their evidence. If you want to give evidence, you do that by going into the witness box and taking an oath or affirmation. In that process you may incriminate yourself, in fact. You might make some admissions either directly or in response to any questions you're asked by Mr Nash.
As I've indicated earlier, if you choose not to give evidence, that's fine. No criticism could be made of you... (ts 63)
43 The appellant then explained that his contention was that he had deleted the advertisement prior to 2015 and that, therefore, whatever was viewed by Mr Van Hattem on 23 January 2015 could not have been a 'live' advertisement. The following exchange then occurred:
HIS HONOUR: Yes. All right. Can I just stop - stop you there. If that's - that's the evidence that you want to give, then the only way I can take that evidence is if you go into the witness box, take your oath or affirmation and tell me your side of the story.
VAN DER FELTZ: Okay, (indistinct) I was hoping that I could - you know, just as a statement, but if - if I have to it as a witness (indistinct).
HIS HONOUR: No, there's I'm - I apologise if you misunderstood anything I said earlier. There's no capacity in WA just to give an unsworn statement. There is a capacity if you haven't given any evidence to give a final address
VAN DER FELTZ: Yes.
HIS HONOUR: ... which would saying something like 'I know I haven't given evidence, but the prosecution have and they haven't proved this, this this and this'. That's a final address. But where you're wanting to give evidence that you definitely know that there was no ad available in 2015, the only way I could hear that is from you in the witness box. Because otherwise I have heard evidence from Mr Van Hattem and from Ms Fulham that they did see the ad on Gumtree on that date.
VAN DER FELTZ: Okay. Well, then I have no choice but to (indistinct).
HIS HONOUR: Then you propose what?
VAN DER FELTZ: Have no choice but to be a witness.
HIS HONOUR: Yes, you have a choice. But you are deciding to give evidence.
VAN DER FELTZ: Yes (indistinct).
HIS HONOUR: Okay.
VAN DER FELTZ: Okay (ts 67).
44 It is apparent that the appellant's case was dependant on him giving evidence in support of his contention regarding when the advertisement was 'live'. As the Magistrate correctly pointed out, in the absence of evidence from the appellant his contention would have no evidence to support it. It was in this context that the appellant made the decision to give evidence. Though he said he had 'no choice', the Magistrate quickly corrected him. The complaint that he was required to give evidence against his wishes is without merit.
45 I have earlier summarised the evidence given by the appellant at the trial. Some of what he said was inadmissible opinion as to what other witnesses must have done. His evidence was somewhat rambling and disjointed. The Magistrate permitted the appellant to say what he wished without interruption. When the appellant appeared to have reached the end the Magistrate said he would ask the prosecutor if he had any questions. The appellant then said, 'I have no more'. The Magistrate then noted that the appellant was becoming 'very repetitive'. After cross-examination the Magistrate gave the appellant the opportunity to add anything else that he wished to. The appellant then gave further evidence in which he said that he did place an ad, but that the wording of the one in question was not familiar to him.
46 At the hearing of the appeal, I asked the appellant to identify what evidence he would have given in addition to that he in fact gave. He did not clearly answer the question. He did refer to documents that he wished to tender. But, as I have earlier noted, even assuming those documents were admissible, they do nothing to advance the appellant's contentions. In these circumstances, his complaint that he was prevented from giving evidence is without merit.
47 As to the cross-examination, the appellant claims it was unfair due to the asking of improper or objectionable questions. At the appeal hearing the appellant said that some questions were unfair because they were repetitive, but that is not borne out by the transcript. He also complained that when he said he had placed an ad but not this particular one, though he might have written some of the words, he was then asked, 'who else might have written it'. Whilst at face value this might be suggestive of a question that reverses the onus of proof, the fact is that this was a possibility that the appellant had himself raised in the cross-examination of Mr Silver. The context was that the appellant admitted that the ad contained his name and contact details and that he may have written some of the words, but maintained that other parts were not written by him. Exactly which parts were admitted and why other parts were denied was a legitimate line of questioning.
48 The appellant contends that the Magistrate refused to permit him to tender documents. In his written submissions, the appellant cites a number of pages of transcript, but none of them refer to any refusal by the Magistrate of an application to tender a document. It is true that the appellant refers to documents (sometimes obliquely) in his evidence and submissions. He also asks on one occasion whether a document he has referred to will receive an exhibit number (but the prosecutor objects, so it does not (ts 36)). There is simply no proper basis for this complaint, the Magistrate did not refuse to receive documents, and in any event, it is far from clear that any of the documents referred to were admissible. Furthermore, the documents in question have been submitted on this appeal and they are not such that any miscarriage of justice could be said to flow from them not being in evidence at the trial.
49 The appellant was initially reluctant to make final submissions, but did so when the Magistrate summarised the issues and asked whether he had properly understood the appellant's case (ts 96 - 104). The appellant complains that here, and at other points in the trial, the Magistrate interrupted him and prevented him from saying what he wished to. I have read the whole of the transcript and that claim is not justified. Indeed, in my view, the Magistrate showed considerable patience and asked questions only to ensure that he properly understood what the appellant was saying.
50 There was reference to some authorities in the prosecutor's submissions and by the Magistrate in discussion with the prosecutor. The appellant complains that he was not given an opportunity to read these authorities. In his closing submissions at the trial he said, 'I haven't seen those cases that Mr Nash was talking about, and I don't know them', but he then moves immediately on to another topic and makes no suggestion that he wants an opportunity to read them. Though the appellant now complains at the lack of such an opportunity it is not apparent that it would have made any material difference to the submissions he made. In the circumstances, the claim that there was a miscarriage of justice in this respect is without merit.
51 Finally, the appellant complains that the prosecutor was permitted to ask prosecution witnesses leading questions. This is so, but it occurred following an exchange at the start of the trial when the appellant said that he was 'happy to just go on the statements of the witnesses'. The clear implication was that the evidence that the witnesses could give was not in dispute, other than in respect of the issue of whether the ad was 'live' in 2015. On that issue the evidence of Mr Van Hattem and Ms Fulham was clear and unequivocal, both in chief and in cross-examination. There is no merit in this complaint.
52 In his written submissions, the appellant also suggests that because the Board drafted the witnesses statements there was a risk of fabricated evidence. He also complains that Ms Fulham was in court when the first two witnesses gave their evidence. There is no basis for these complaints. Ms Fulham was the instructing solicitor, there was no order for witnesses out of court and her evidence was independent of the other witnesses.
Ground 2 - error of fact
53 In the course of the prosecutor's closing submissions, the Magistrate noted that the appellant's theory was that Mr Van Hattem 'downloaded at some stage the site onto his computer, and then happened to look at it on 23 February, and then sent the link'. The prosecutor responded that it was highly implausible that if Mr Van Hattem had looked at the advertisement much earlier he would not forward the link to the Board until some 12 months later. His Honour then asked whether the theory required saving the webpage to 'a file'. He then said, 'because if you don't have a file, you don't have anything. Disappears once you shut the computer down' (ts 91 - 92).
54 The appellant submits that the last sentence is an error because it does not take into account 'other alternatives such as posts remaining on the Gumtree database for roughly 3 months following deletion'. He suggests that a webpage could be saved as a PDF document and then re-opened later even though the original had been deleted.
55 The primary flaw in this ground is that the Magistrate's statement was not a finding of fact, it was merely part of a discussion in which his Honour was exploring the ramifications of the appellant's theory. Secondly, the 'other alternatives' which the appellant refers to were unsupported by admissible evidence. Thirdly, the appellant's theory faced the insurmountable obstacle that it was contradicted by the evidence of both Mr Van Hattem and Ms Fulham. Since the Magistrate accepted the evidence of those witnesses, any error he may have made about how computers operate was of no consequence.
Ground 3 - delay
56 The advertisement was first reported to the Board by Mr Silver on 28 August 2014. It was then reported by Mr Van Hattem on 23 February 2015. The prosecution notice was signed on 16 February 206. The appellant claims that the Magistrate erred by failing to take into account the prejudice caused to him by this delay.
57 The appellant states in his written submissions that he was first contacted by Ms Fulham a year after she was first notified about the ad. He states that by that time he had cleared his email inbox. The relevance of this is not entirely clear, but it seems that the appellant is suggesting that had he not cleared his inbox he could have shown that he did not receive responses to the ad after 2014. He also claims that the passage of time made it impossible for him to remember the facts.
58 The first point to be made is that Ms Fulham's evidence was that she first wrote to the appellant on 8 June 2015, that is approximately 3½ months after receiving the email from Mr Van Hattem with a link to the ad. The appellant denied receiving this letter, but if he did the potential for any prejudice is much less.
59 In any event, even if it is accepted that there was some delay in commencing proceedings it does not follow from that that the appellant was prejudiced in preparing and presenting a defence. The time period was relatively short. Furthermore, many of the inconsistencies in the appellant's evidence were not capable of being explained by a failing memory. In particular, he admitted placing an advertisement in 2014 but later wrote to the Board saying that he had never advertised.
60 Whether there may have been opportunities for investigation that the appellant lost due to delay is entirely a matter of speculation. Furthermore, to the extent that the appellant was at a disadvantage in trying to remember events of between one and two years ago, this was not a matter that the Magistrate was obliged to specifically refer to and the fact he did not does not mean he did not give it such weight as it deserved.
Ground 4 - error of fact
61 The appellant complains that the Magistrate made an error by failing to take into account that an ad on Gumtree expires after 30 days. Much of the appellant's written submissions in support of this ground are assertions unsupported by any admissible evidence. He continues to assert that he received no responses after 2014 and that this supports a conclusion that the ad was deleted. Somewhat inconsistently, the appellant says that he has recently found some ads on Gumtree that are much older than 30 days.
62 The evidence as to whether an ad would 'expire' after 30 days and what this means in terms of accessibility was not clear. What was clear was that both Mr Van Hattem and Ms Fulham said that they viewed the ad using web browser programmes in February 2015. No amount of assertion by the appellant that they could not have done so can negate that evidence.
63 I do not accept that the Magistrate failed to take into account such evidence as there was about the expiry of Gumtree ads. In fact, his Honour referred to the appellant's evidence in the regard (ts 111), however he found that evidence to lack credibility. That was a conclusion that was open.
Ground 5 - error of fact
64 The appellant alleges that the Magistrate made an error of fact in that he failed to take into account that the advertisement viewed by Mr Van Hattem was a PDF document and not a screen print and, therefore, not necessarily an advertisement that appeared in 2015. This ground of appeal originally referred to Mr Silver. The appellant sought to correct the ground by referring to Mr Van Hattem. The argument that the appellant seeks to make is that if the document viewed by Mr Van Hattem in 2015 was a PDF then it may have been a copy of the advertisement viewed at an earlier time and saved to Mr Van Hattem's computer. The assertions contained in this ground are not supported by the evidence.
65 Mr Silver said that when he viewed the advertisement in 2015 he printed it off using 'Adobe PDF reader', but this is of no consequence as the advertisement as viewed by Mr Silver in 2014 was not the subject of the charge. There was no suggestion that Mr Silver had forwarded a PDF copy to Mr Van Hattem. To the contrary, the evidence of Mr Van Hattem was that in February 2015 he had viewed the advertisement whilst browsing on the Gumtree site, and then he sent a link to the online advertisement to the Board. In cross-examination it was put to Mr Van Hattem that the advertisement that he saw in 2015 was one that he had saved to his computer having looked at it at an earlier time. Mr Van Hattem denied that suggestion and said that at the time he sent his email to the Board the link was 'an active link'. It was not suggested to Mr Van Hattem that he had saved the advertisement as a PDF document to his computer and there was no evidence that he ever did so.
Ground 6 - disclosure
66 The appellant alleges that there was a miscarriage of justice because the prosecution failed to disclose emails sent by Ms Fulham to Mr Van Hattem and Mr Silver regarding what they had observed on the internet.
67 Prior to the trial, the Board provided witness statements to the appellant. In Mr Van Hattem's statement there is reference to him sending the email to the Board in which he provided the link to the advertisement. Mr Silver also referred in his evidence to sending an email to the Board in 2014. The appellant did not seek copies of these emails, although he was plainly aware of them.
68 In order to respond to this ground of appeal, the respondent sought leave to file an affidavit from Ms Fulham annexing the relevant correspondence. Leave in that regard was granted. The appellant did not identify anything in that material which, if disclosed to him, could have had any material effect on the issues to be determined at the trial. I have also looked at the emails in question and concluded that they add nothing to the evidence that was adduced at trial.
69 It should be noted that this ground was argued by the appellant on an assumption that the Board had an obligation to disclose the emails to him. That assumption is incorrect. The prosecution's obligations of disclosure are more limited in the case of simple offences such as this. Except in the case of listed simple offences (of which this was not one), the prosecution is only obliged to disclose material pursuant to an order made by the court under s 60(5) of the Criminal Procedure Act. No such order was made in this case. However, the Board, quite properly, voluntarily disclosed the material upon which it intended to rely, including the witness statements. This material was provided under cover of a letter of 15 March 2016.
Ground 7 - reversal of the onus of proof
70 The appellant asserts that the Magistrate made an error of law by requiring him to provide an explanation for how the advertisement could be seen in 2015 if it was not live. He says that this requirement involved a reversal of the onus of proof. He refers in this regard to a number of pages of the trial transcript.
71 I have examined each of the transcript pages and they do not support the appellant's contention. At a number of points during the trial the Magistrate sought to clarify what it was the appellant was suggesting. At no stage did his Honour say that there was any onus on the appellant to prove that the advertisement was not live as at 23 February 2015. Indeed, in his reasons his Honour makes it clear that this is an issue in respect of which the prosecution bears the onus and which must be proven beyond reasonable doubt. The fact is that the Magistrate did not find the appellant to be a credible witness, whereas he found the prosecution witnesses to be cogent and credible.
Ground 8 - s 13 of the Legal Profession Act
72 The appellant claims that the Magistrate made an error of law in that he found that the advertisement breached s 13 of the Act when it did not do so because he did not claim an entitlement to practice law or offer to do any legal work. The appellant's argument turns on the meaning of the words of the advertisement. He says that it is significant that the advertisement included the words 'I am not a lawyer and do not give legal advice'. He claims that he was offering to do no more than a McKenzie friend in litigation or an unqualified clerk at the counter of a court registry could do.
73 Section 13 of the Act provides as follows:
13 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.
(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.
75 Section 12(1) of the Act defines 'legal work' to mean:
(a) any work in connection with the administration of law; or
(b) drawing or preparing any deed, instrument or writing relating to or in any manner dealing with or affecting -
(i) real or personal estate or any interest in real or personal estate; or
- (ii) any proceedings at law, civil or criminal, or in equity;
I am of the view that the expression 'the administration of law' is to be read as meaning 'the practice of law' or 'the practice of the law'...
What may be included in the practice of the law is, I think, well-illustrated in the case of Florida Bar v Town (1965) 174 SO (2d) 395 where the court applied the following definition as to the conduct which constitutes the practice of law (at 316-7, quoting from the State Ex Rel Florida Bar and Sperry 1962 140 SO (2d) 597 [591]: -
'It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.
We think that in determining whether the given of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires of the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.'
- See also Dean v The Legal Practice Board [2015] WASC 260; Dean v The Legal Practice Board [2016] WASCA 63.
77 In Legal Practice Board v Adams [2001] WASC 78 Hasluck J said:
where a person in bringing documents (which are intended to affect legal rights ought to be used in legal proceedings) into existence exercises his mind as to what is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document. A process of that kind goes beyond mechanical or clerical tasks and is of a kind required to be performed by a solicitor [30].
78 In Legal Practice Board v Giraudo [2010] WASC 4 I said:
Work of a merely clerical kind such as filling out blanks in a printed form or drawing instruments of a generally recognised type that does not involve the determination of the legal effect of special facts and conditions should not be regarded as legal work. However, that is to be distinguished from the situation where an instrument is shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others. In such a case more than the knowledge of the layman is required and a charge for such services brings it within the practice of the law: Barristers' Board v Palm Management [108] (Brinsden J).
Where a person, in preparing documents, exercises his mind as to what is the appropriate form of words to accommodate the particular case, this can be regarded as drawing or preparing a legal document: Cornall v Nagle. A process of that kind goes beyond mechanical or clerical tasks and is of a kind required to be performed by a solicitor: Attorney-General v Quill Wills Ltd (1990) 3 WAR 500; and Legal Practice Board v Said (Unreported, WASC, Library No 940608, 31 October 1994).
In Legal Practice Board v Adams the respondent prepared two writs to commence actions in the Supreme Court. Hasluck J noted that the respondent had played an active role in seeking to understand the facts underlying the dispute and in then refining the claims in the form of draft statements of claim. The respondent in that case purported to take instructions and then gave a shape to the facts and matters conveyed to him so that a claim could be advanced against a third party. His Honour noted that the respondent exercised skill in formulating the statements of claim in a way that would present the claims in their best light. This was not acting in a mechanical or clerical manner but was exercising a degree of skill as to what matters should be relied upon by the claimants in order to obtain relief. His Honour held that a person acting essentially as a solicitor who was the guiding intelligence behind the issue of a writ will be regarded as indirectly suing out the writ [13] - [15].
79 The cases I have referred to involved breaches of the prohibition on performing legal work. In such cases, the issue is whether the work actually undertaken falls within the category of legal work. In this case, it was not alleged that the appellant had actually undertaken any legal work but rather that he had represented or advertised that he was entitled to engage in legal practice. However, the issue is analogous and the cases I have referred to are of assistance. Rather than looking at any work undertaken, here the question of whether the appellant has breached the Act depended upon the terms of the advertisement.
80 The Magistrate found that the appellant represented himself in the advertisement as having an overseas law degree and as having experience in the Magistrates Court, District Court, Supreme Court and State Administrative Tribunal. This knowledge and experience was said to provide him with the ability to assist people to represent themselves, and in filling out court documents and drafting affidavits. His Honour found that notwithstanding that the appellant stated in the advertisement that he was not a lawyer and did not give legal advice, he indicated that he had the experience and ability to assist people with legal issues.
81 In my view, the Magistrate was plainly correct. The fact that the appellant stated in the advertisement that he was not a lawyer and did not give legal advice did not affect the nature of the work that he was offering to do. It is necessary to consider not only the express words used but their implication: s 13(4). That work was said to include preparing clients to represent themselves in court and assisting with the filling out of court applications, other court documents and drafting affidavits. There are a number of aspects of the advertisement that make it clear that what the appellant was offering to do was more than merely clerical work, in particular:
(1) he referred to having 'an overseas law degree';
(2) he referred to having 'extensive experience' representing himself in various courts in 'commercial and administrative matters';
(3) he said that he had helped others to represent themselves in the courts in similar matters;
(4) he compared the cost of his services favourably to that of a lawyer by saying, 'I come in at a fraction of the cost of a lawyer'; and
(5) he provided a scale of fees that varied depending on the nature of the proceedings and the jurisdiction in which any proceedings were commenced.
82 The necessary implication of the words of the advertisement was that the appellant would use specialised knowledge and experience to assist litigants. He represented himself as having skills in how a person should represent him or her self and how to complete documents. The fee structure implied that this work would be of more than of a clerical nature but would utilise the appellant's claimed expertise in legal matters.
Ground 9 - the email sent by the Board
83 The appellant submits that the Magistrate made an error of fact by finding that an email was sent to him by the Board on 23 February 2015 rather than 22 September 2015 and by then using this as a reason for finding that his evidence was contradictory.
84 The Magistrate did not make any such finding. He found that on 23 February 2015, Mr Van Hattem had sent an email to the Board including a link to the advertisement. Ms Fulham gave evidence that on 22 September 2015 an email was received from the appellant in which he stated, 'I do not advertise and do not "engage in legal practice" in any way'. The Magistrate found that this response reflected poorly upon the appellant's credibility given that he admitted in evidence that he had placed an advertisement in similar terms in 2014. This was a finding that was reasonably open to the Magistrate. There is nothing in his Honour's reasons to support the suggestion that he was confused as to the dates or made any error in that regard.
Ground 10 - sentence
85 The appellant asserts that the fine and costs were manifestly excessive. In this regard, he relies upon the following factors:
(1) that he stated in the advertisement that he was not a legal practitioner and did not set out to do any legal work;
(2) that his intention was not to disadvantage lawyers or breach the Act but to help people to access the legal system;
(3) that the advertisement was freely available and he did not seek to conceal his identity or contact details;
(4) that the Magistrate accepted that the appellant would not advertise again;
(5) the conduct in this case was less serious than those who are convicted of actually engaging in legal work whilst unqualified;
(6) there was a delay in prosecuting the matter; and
(7) that the quantum of the costs was disproportionate to the significance and relative simplicity of the matter.
86 A ground of appeal that alleges that a sentence is manifestly excessive asserts the existence of an implied error. A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive it is necessary to view it from the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily imposed with respect to that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of the type and the personal circumstances of the offender.
87 The maximum penalty for representing or advertising that a person is entitled to engage in legal practice when that person is not so entitled is a fine of $20,000. There are relatively few prosecutions for offences of this nature and I was not referred to any other appeals regarding sentences imposed for offences under s 13 of the Act.
88 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. In this case, it is relevant that the nature of the advertisement was that it not only offered legal services but proposed a fee for the work. Clearly the appellant was not motivated by charitable intentions, rather this was to be a money making venture. The advertisement was placed on a widely known classified advertising website. It was clearly publicly available, as is evidenced by the fact that the three prosecution witnesses were all able to do so. However, it is unknown how many people actually accessed the advertisement or responded to it. As to the length of time that the advertisement was available, the charge related only to 23 February 2015. However, the appellant's own evidence was that the advertisement had been placed approximately seven months earlier. Whilst the appellant was not to be punished for advertising over a seven month period it is relevant in assessing the seriousness of the charge that the advertisement was not one that appeared only on a single day.
89 The fact that the appellant pleaded not guilty and the matter went to trial was not an aggravating factor. It did however mean that the applicant was not entitled to any discount that might have flowed if he had pleaded guilty. The fact that he disputed responsibility for the advertisement but also claimed that in its terms it did not breach the Act was also relevant in considering whether the penalty needed to include some component of specific deterrence.
90 As to the appellant's personal circumstances, there was almost no information. He did not make a lengthy plea in mitigation. In seeking a spent conviction order he mentioned that he was presently seeking work and that he has a brother in the United States of America. But there were no details as to the appellant's personal or work history, or his financial position.
91 It is unnecessary to refer to the Magistrate's reasons in any detail as this ground does not assert specific error but implied error. It is sufficient to note that the Magistrate concluded that the advertisement had 'some sophistication to it' and was a 'serious example of that type of ad'. However he accepted that he was not in a position to say whether it had been observed by anyone other than Mr Silver and Mr Van Hattem.
92 In my view, the fine of $2,500 has not been shown to be manifestly excessive. Given all the circumstances of this case a fine of that quantum was plainly within the discretionary range open to the Magistrate.
93 The Board, as the successful party to the prosecution, was entitled to its costs: s 67 Criminal Procedure Act 2004 (WA). The amount to be awarded is in the discretion of the court. That discretion is guided by the rates and amounts fixed from time to time by a cost determination made under s 275 of the Act for the purposes of fixing costs under the Official Prosecutions (Accused's Costs) Act 1973 (WA): King v The City of Fremantle [2004] WASCA 212 [84]; Fry v Keating [2013] WASCA 109 [74] - [76].
94 The Board in this case sought costs in the sum of $9,372.95. That amount was calculated by reference to the relevant determination. There was a dispute as to the necessity for a particular directions hearing and the Magistrate reduced the costs order to $8,372.95. There is nothing to suggest that the Magistrate's discretion in respect of this order miscarried.
Cross-appeal
95 The Board appeals against the grant of a spent conviction order made under s 39(2) of the Sentencing Act 1995 (WA) on the grounds that the learned Magistrate erred in law in making the order because he:
(1) did not have regard to, or adequate regard to, the likelihood of the appellant offending again;
(2) by maintaining his plea of not guilty to the last (and even on appeal), the appellant has shown no insight into his own offending behaviour nor acknowledged his offending conduct;
(3) the offence cannot be characterised as trivial;
(4) there was no evidence led as to the appellant's previous good character; and
(5) there was no evidence or adequate evidence led upon which the court could reasonably be satisfied that the appellant should be immediately relieved of the effect of the conviction.
96 Section 45(1) of the Sentencing Act provides for the circumstances in which a court may make a spent conviction order. That section provides:
45 Spent conviction order, making and effect of
(1) Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a) it considers that the offender is unlikely to commit such an offence again; and
(b) having regard to -
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
(2) A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3) The Spent Convictions Act 1988 , other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4) A spent conviction order is to be taken as part of the sentence imposed.
97 The courts have emphasised that a spent conviction order should only be made in a special case. In R v Tognini [2000] 22 WAR 291 Murray J (with whom Malcolm CJ and Wallwork J agreed) said:
Section 45 is in terms directed to relieve the offender immediately following the conviction of its adverse effect. It is clearly a discretionary power and the matters enumerated in s 45(1) are merely pre-conditions for the exercise of the power, not matters which, if they are found to be present, will automatically lead to the exercise of the power. It would follow in my view from the nature of the power and the extent to which it interferes with the ordinary operation of the Spent Convictions Act that it should only be sparingly exercised in a clear case where, for cogent reasons, its exercise is seen to be desirable (296 - 297).
...
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all the consequences that may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside [297].
98 His Honour indicated [297] - [298] that such a 'particular circumstance' might be found in 'a particular impediment to the offender following a particular career, practicing a particular profession or undertaking particular employment'. This might justify an order because an unrelieved conviction 'would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that relieve the offender of the adverse effects of the conviction would positively aid that persons rehabilitation in a way which might be seen to best accord with the interest of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing the protection of the community'.
99 In Brewer v Bayens [2002] WASCA 271 Burchett AUJ (with whom Wallwork JJ agreed) said that:
Bearing in mind the special nature of the jurisdiction to grant this relief ... it is to be expected that generally those who contend they come within the conditions laid down in s 45 will demonstrate that fact by convincing evidence [14].
One of the aspects of the public interest, as has been pointed out in some of the authorities, is the effect of an order on general deterrence. If the fact of a conviction, followed by sentence, is exposed to public scrutiny, it may have a strong deterrent influence. In very special cases, s 45 allows this public benefit of the conviction to be diminished for some sufficient reason, by authorising the suppression of its existence from responses to enquiries, and placing a legal impediment in the way of some enquiries. The Court should be careful not to expand this exceptional provision beyond Parliament's intention, both because deterrence requires publicity and because, too, "the preservation of confidence in the judicial system" requires publicity: R v Tait and Bartley (1979) 24 ALR 473 at 487, per Brennan, Deane and Gallop JJ [18].
100 In this case, the Magistrate noted that a spent conviction order was exceptional (ts 122). He said that the appellant needed to establish grounds for the making of such an order. His Honour said that he was prepared to accept that the appellant was a person of previous good character. His Honour then said:
I've got to be satisfied you won't commit the same or a similar offence for the future, and I think there was a huge learning curve, and I'm not completely convinced you really understood the ins and outs of this, or you certainly acted a bit obliquely (sic) but, yes. I am certainly prepared to conclude that you're not likely to commit the same offence for the future.
101 His Honour then referred to whether a conviction would have a disproportionately negative effect on the appellant. The appellant then advised that a conviction would impede his travel to America to visit his brother. His Honour said that he understood that it was necessary to disclose any conviction in applying for a visa to travel to the United States but that a conviction was not necessarily an automatic bar. The appellant said that the mere necessity to apply for a visa was detrimental and that he believed that there was some risk that a visa would not be granted.
102 Counsel for the Board opposed the making of a spent conviction order. He said that the way in which the defence was conducted displayed no insight or acceptance by the appellant of his wrongdoing. In these circumstances, it was said to be difficult to feel comfortable that the appellant would not act in a similar way again.
103 The Magistrate granted the spent conviction order and in doing so said:
When it comes to a spent conviction order, you are a person of good character. I think you have learnt your lesson. I would be surprised if you haven't, but I am dealing, of course, with this application. Understand, of course, your need for travel and disclosing a conviction. It's an area where, it seems to me, just by its nature, you have to have some sophistication to hold yourself out to be capable of giving advice.
You definitely didn't say you were a lawyer, and you said that you were not giving legal advice, but you held yourself out as being a person whose effectively going to act as a lawyer. And I don't see this is something that a refusal of a spent conviction order is very important for the efficacy of prosecutions. I think it needs to be dealt with on a case-by-case basis.
And as far as the public interests (sic), similar comments are made, that the Board is appropriately there to make sure that if there are any contraventions there followed up. You were given a chance to explain things and you didn't really avail yourself very well of that, it seemed to me.
But, on balance, I can see that with your travel considerations particularly, that having a conviction would have an adverse effect on your future, so on balance I'm prepared to grant you a spent conviction order.
104 It is difficult to see how the Magistrate reached the conclusions that he did. Whilst the appellant said that he had learnt his lesson and would not advertise in the same way again, the conduct of his defence at the trial (and indeed on this appeal) did not support any conclusion that he accepted his wrongdoing. The appellant also sought to justify his conduct on the basis that he was offering a public service, which displayed a failure to appreciate the protective nature of the provisions of the Act. As to good character, this was merely assumed, there was nothing put before the Magistrate in this regard. The absence of a criminal record is only one aspect of good character. But what weighed against the claims of good character were that the appellant had placed an advertisement on a public website that was carefully crafted and 'sophisticated'. It showed some appreciation for the need to avoid the prohibitions in question. The conduct was not a momentary aberration because the appellant's own evidence was that the advertisement had been current for some period of time.
105 As regards the need for the appellant to be relieved of the adverse effect of a conviction, the Magistrate placed most emphasis on 'travel considerations'. However the only information in this regard was that the appellant had a brother in the United States and that if he had a conviction he would have to disclose it in an application for a visa. There was no evidence, however, that a conviction of this nature would result in the refusal of a visa. Any inconvenience in having to make an application for a visa is a matter of very little weight.
106 On the other hand, there were strong reasons why the recording of a conviction was necessary in this case. A conviction would act as a deterrent to the appellant to commit any such offence in the future. There is also the importance of protecting the public from any repetition of this type of conduct. There may be circumstances in which there is value in members of the public being able to determine whether a person has been convicted of an offence of this nature. A conviction would also enhance general deterrence.
107 The prohibition on representing or advertising that a person is entitled to engage in legal practice when they are not, is part of a framework to ensure that only those with appropriate qualifications can perform legal work. These provisions serve the purpose of protecting members of the public from those who, due to their lack of qualifications, could expose them to financial risks and risks to their liberty. These prohibitions do not exist to give lawyers a commercial advantage but to recognise that the public interest is best served by ensuring that only appropriately qualified people can do legal work. Advertising will, generally, be less serious than actually doing legal work when not qualified to do so. However, the prohibition on advertising ensures that pre-emptive action can be taken to avoid risks to the public. The important role that the Board plays in this regard is one that is undertaken in the public interest. These are also considerations that should be weighed in considering whether a spent conviction order should be granted.
108 The advertisement in this case encouraged unsuspecting litigants to think that, with the assistance of the appellant, they could safely represent themselves and avoid the expense of a lawyer. The danger of this was illustrated by these proceedings. The appellant did not show any particular skill or ability in defending himself. By his own admission he was at a disadvantage as compared to the experienced counsel representing the respondent. Litigants who believed the representations in the advertisement could well have acted to their prejudice by engaging the appellant in preference to a lawyer.
109 In my view, the grounds for exercising the discretion to make a spent conviction order were not established. There was no proper basis for concluding that the appellant was unlikely to commit such an offence again. The offence was not trivial and the available information did not enable a conclusion to be drawn as to the appellant's good character. Far from being an exceptional case there was no substantial reason why the appellant should be relieved from the normal consequences of his conviction. In the circumstances, I would allow the cross-appeal and set aside the spent conviction order.
110 At the hearing of the appeal the appellant sought that his name be suppressed. He said that this was because there were few people in this State with his surname and that he could be easily identified. The identification of litigants is a normal incident of participation in proceedings before the courts. In my view, there is no proper basis for the granting of a suppression order. That is particularly so given that I have allowed the respondent's appeal and set aside the spent conviction order.
Conclusion
111 Leave is required in respect of each ground of appeal. Leave can only be granted if the court is satisfied that a ground has a reasonable prospect of succeeding: s 9 of the Criminal Appeals Act 2004 (WA) and see Samuels v The State of Western Australia [2005] WASCA 193.
112 For the reasons I have given none of the appellant's grounds of appeal has a reasonable prospect of succeeding. However, I have concluded that the cross-appeal should succeed. Accordingly the orders will be as follows:
(1) Leave to appeal against conviction (grounds 1 - 9) is refused.
(2) Leave to appeal against sentence (ground 10) is refused.
(3) In respect of the cross-appeal, the extension of time is granted, leave to appeal is granted and the appeal against sentence is allowed to the extent that the spent conviction order is set aside.
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