Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction and sentence - Offence of representing and advertising that entitled to engage in legal practice while not being an Australian legal practitioner - Turns on own facts

Criminal law - Appeal against sentence - Whether ground of appeal against order setting aside spent conviction order

Legal Profession Act 2008 (WA), s 13(1), s 592(1)

Leave to appeal on grounds 1 - 2 and 4 - 7 is refused

A v Maughan [2016] WASCA 128; (2016) 50 WAR 263

Department for Child Protection v Scott (no 2) [2008] WASCA 171; (2008) 38 WAR 125

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Konings v Commonwealth Bank of Australia [2016] WASCA 122

McKenzie v McKenzie [1970] 3 WLR 472

Nepal v Minister for Immigration [2015] FCA 366; (2015) 327 ALR 89

O'Connell v The State of Western Australia [2012] WASCA 96

Pennicuik v City of Gosnells [2011] WASC 63

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Santos v The State of Western Australia [2013] WASCA 39

Scarce v Killalea [2003] WASCA 81

SZUTY v Minister for Immigration [2016] FCA 184; (2016) 241 FCR 237

Tobin v Dodd [2004] WASCA 288

van der Feltz v Legal Practice Board [2017] WASC 2

Wright v McMurchy [2012] WASCA 257

1 On 25 July 2016, the appellant was convicted in the Magistrates Court of an offence against s 13(1) of the Legal Profession Act 2008 (WA). The charge was that, on 23 February 2015 at Mount Hawthorn, the appellant, being a person who was not an Australian legal practitioner, represented and advertised that he was entitled to engage in legal practice.

2 It was common ground that the appellant was not an Australian legal practitioner. The magistrate was satisfied that the appellant had placed an advertisement on a Gumtree website. The advertisement was accessed by a lawyer, Nicholas van Hattem, and an officer of the Legal Practice Board, Elizabeth Fulham, on 23 February 2015. The advertisement offered to do legal work for reward. The magistrate was satisfied that the advertisement impliedly represented that the appellant was entitled to do that work. The magistrate convicted the appellant, fined him $2,500, ordered that he pay the Board's costs in the sum of $8,372.95 and made a spent conviction order.

3 The appellant then appealed against his conviction and sentence to the General Division of this court. That appeal was made under s 7 of the Criminal Appeals Act 2004 (WA). Section 9 of the Criminal Appeals Act provides that the leave of the court is required for each ground of appeal. Leave must not be given on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding. Unless the court gives leave on at least one ground of appeal, the appeal is taken to have been dismissed.

4 The appeal to the General Division came on for directions before the primary judge on 27 September 2016. On that occasion the primary judge spent over two hours going through the documents which the appellant had filed and distilling his proposed grounds of appeal into a comprehensible form. The primary judge assisted the appellant to identify 10 grounds of appeal. The appeal on those grounds was heard on 22 November 2016.

5 The primary judge delivered his reserved decision on 9 January 2017.[1] His Honour concluded that none of the appellant's proposed grounds of appeal had any reasonable prospect of succeeding. Leave to appeal was refused on all grounds, with the consequence that the appellant's appeal to the General Division was deemed to be dismissed.

6 The Board had cross-appealed against the magistrate's decision to make a spent conviction order. The primary judge allowed the Board's cross-appeal and set aside the spent conviction order.

7 The appellant now appeals to this court against the dismissal of his appeals against conviction and sentence in the General Division, and the granting of the Board's appeal against sentence.

8 Section 16(2) of the Criminal Appeals Act provides for a right of appeal to this court from the primary judge's decision. Section 18 of the Criminal Appeals Act applies the requirement for leave to appeal contained in s 9 of that Act to this appeal.

9 The appeal to this court is by way of rehearing.[2] The Criminal Appeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act. However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated.[3] Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Act must identify an error by the single judge whose decision is under appeal.[4]

Ground 1: Appellant's appeal against conviction

10 Ground of appeal 1 alleges that the primary judge erred in fact and law in refusing leave to appeal against conviction because his Honour:

did not have proper regard for [the appellant's] arguments, evidence and exhibits, mistook facts and did not or not properly address [the appellant's] submissions and arguments while his Honour's decision is biased and was against Authorities, the Law, Natural Law and a miscarriage of justice.

11 The particulars to ground 1 reflect the appellant's grounds of appeal in the General Division.[5]

12 Particular 8 in this court and ground 8 in the General Division contend that the Magistrate erred in law in finding that 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.

13 This particular correctly recognises that an offence under s 13 is committed not only by offering to do legal work for remuneration but by claiming an entitlement to do so. The primary judge correctly explained why the advertisement represented that the appellant would do legal work for remuneration.[6] His Honour's reasons did not focus on the question of whether the advertisement represented that the appellant was entitled to engage in legal practice (by undertaking legal work for remuneration). However, the magistrate's reasons for convicting the appellant did focus on that requirement, concluding that the advertisement implicitly represented that the appellant was entitled to undertake legal work for remuneration.[7] That finding established that the appellant had advertised and represented that he was entitled to engage in legal practice. It is not arguable that the magistrate made the error asserted by this ground/particular.

14 Otherwise we agree with the primary judge, for the reasons he gave, that none of the grounds of appeal to the General Division had any reasonable prospect of success.

15 Submissions made in support of ground 1 also contend that the primary judge failed to provide the assistance which should have been provided to the appellant as an unrepresented litigant in the General Division. In support of this submission, the appellant refers to decisions of this court which address the role of a judge when faced with an unrepresented litigant.[8] As the court observed in Konings:

A party is not denied natural justice, or procedural fairness, merely because they do not have legal representation. That is the case whether the lack of legal representation is a matter of choice or because they are unable to afford it. It is accepted, however, that a court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought [to do] will depend upon the nature of the case and the litigant's capacity to understand the issues in the case. But the court must not intervene to such an extent that a position of neutrality cannot be maintained or an unrepresented litigant is given a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored. [12] (citations omitted)

16 There is no merit in the submission that the primary judge failed to provide appropriate advice and assistance to the appellant. The primary judge spent over 2 hours on 27 September 2016 explaining the appellate process to the appellant and assisting him to formulate intelligible grounds of appeal. The primary judge began the hearing of the appeal on 22 November 2016 with an explanation of the procedure which would be followed.[9] The primary judge conducted the proceedings before him in a way that gave considerable latitude and assistance to the appellant, and was entirely fair.

17 The appellant also alleges that the primary judge was biased. In large part the submission appears to be based on the failure of the primary judge to accept the appellant's submissions. The only other particular matter to which the appellant refers is that the primary judge failed to disclose that he knew the father of the witness Nicholas van Hattem, who was the recently retired Deputy Chairperson of the Board.

18 There is no basis in the material before us for asserting actual bias by the primary judge. The appellant seems to have difficulty in comprehending that his arguments could be rejected by any judge who genuinely considered their merits. However, the appellant does not establish bias by pointing to the rejection of his unmeritorious grounds and submissions.

19 We then turn to consider whether the judge should have disqualified himself on the ground of a reasonable apprehension of bias.

20 The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[10]

21 Nothing in the fact that the trial judge knew Mr Van Hattem's father might lead a fair minded lay observer to apprehend that the primary judge might not bring an impartial mind to the resolution of the appellant's grounds of appeal in the General Division. It could not be suggested that Mr Van Hattem or his father had any personal interest in the outcome of these proceedings. Mr Van Hattem was not being called as a witness before the General Division, and the resolution of the appellant's grounds of appeal in the General Division did not require the primary judge to make any determination as to Mr Van Hattem's integrity as a witness in the proceedings before the Magistrates Court. There is no logical connection between any past association which the primary judge may have had with Mr Van Hattem's father and any feared deviation from the course of deciding the appeal on its merits.

22 The appellant makes a number of submissions in relation to particular paragraphs of the primary judge's reasons for decision. A number of the submissions proceed on a misapprehension by the appellant of what the primary judge was saying. For example, the appellant criticises a number of paragraphs of the primary judge's reasons which do no more than summarise the evidence before the trial court or the position adopted by the Board. The criticism is based on the fact that the appellant disagrees with the evidence or position, rather than any inaccuracy of the primary judge's summary.[11] The issues of bias and failure to offer assistance, noted above, are also raised. The appellant's submissions raise a number of other points, none of which provide any reason for doubting the correctness of the primary judge's decision.

23 Nor is there any merit in the contentions that the primary judge failed to address the appellant's submissions and arguments. The primary judge dealt with each of the appellant's grounds of appeal and explained why he considered that the ground had no reasonable prospect of success. The primary judge was not required to do more in his reasons, or to set out and respond in his reasons to the detail of each of the many misconceived points which the appellant sought to advance in support of his grounds.

24 Having considered the appellant's oral and written submissions in relation to ground 1, we are satisfied that the ground has no reasonable prospect of success. Leave to appeal should be refused on that ground.

Ground 2: Appellant's appeal against sentence

25 Ground of appeal 2 in effect asserts that the primary judge erred in failing to grant the appellant leave to appeal against his sentence because the 'fines and costs were manifestly excessive because the conduct was on the lower side of offending'. We agree with the primary judge, for the reasons which he gave,[12] that the argument that the magistrate erred in the exercise of his discretion to impose a penalty and award costs has no reasonable prospects of success. Ground 2 of the appeal to this court also has no reasonable prospect of success. Leave to appeal on that ground should be refused.

Ground 3: Board's appeal against spent conviction order

26 Ground of appeal 3 contends that the primary judge erred in granting the Board an extension of time to appeal against the spent conviction order and setting aside that order. We are satisfied that it is reasonably arguable that the Board had not established grounds for the primary judge to interfere with the exercise of the Magistrate's sentencing discretion. Leave to appeal should be granted on ground 3.

Ground 4: Failure to address the appellant's submissions

27 Ground of appeal 4 contends that the primary judge erred in law in that he 'did not or not properly address [the appellant's] submissions and arguments'. We have dealt with this issue above in the context of ground 1.

28 The submissions in support of this ground make reference to the role of a 'McKenzie friend'.[13] A court has the discretion to allow a person to attend as a friend of an unrepresented party to provide some assistance to that party. The court has a broad discretion as to the precise role which the person may play. Commonly the role involves taking notes and quietly making suggestions to the party. Although to do so is generally undesirable, in exceptional circumstances the person may be permitted to address the court on behalf of the party.[14]

29 The discretion of the court to permit a party to have the assistance of a 'McKenzie friend' does not assist the appellant. A McKenzie friend has no entitlement to engage in legal practice, or to perform any particular role when given permission to assist a party in court. There is no evidence that the appellant was or was proposing to act as a 'McKenzie friend'. Even if he was offering to act in that capacity, he had no right to represent that he was entitled to engage in legal practice. To do so would remain an offence against s 13 of the Legal Profession Act.

30 Otherwise, the submissions made in support of this ground simply refer to legal authorities which have no relevance to the ground, set out phrases such as 'Mens Rea', 'Natural Justice' and 'abuse of process' and refer to paragraphs of the primary judge's reasons.

31 Leave to appeal should be refused on ground 4, which has no reasonable prospects of success.

32 Ground 5 contends that the primary judge's decision 'is biased'. The written submissions advanced in support of this ground refer to a large number of paragraphs of the primary judge's reasons.

33 We have dealt with the issue of bias, and reasonable apprehension of bias, in rejecting ground 1. Leave to appeal should be refused on ground 5 for those reasons.

34 Ground of appeal 6 is expressed in the following terms:

His Honour erred in his observations, reasons and lacked substantiation because his Honour did not have proper regard to [the appellant's] arguments, evidence and exhibits, mistook facts and did not or not properly address [the appellant's] submissions and arguments while his Honour's decision is biased and was against Authorities, the Law, Natural Law and a miscarriage of justice.

35 It does not appear that this ground adds anything to the previous grounds.

36 The submissions in relation to ground 6 refer to two additional matters which warrant comment.

37 First, the appellant submits that the primary judge did not correctly apply the test for identifying when a ground of appeal had a reasonable prospect of success, as explained by this court in Samuels v The State of Western Australia.[15] There is no merit in that submission. The primary judge cited Samuels,[16] and approached the question of leave to appeal consistently with what was said in that case.

38 Secondly, the appellant says that his surname should not have been published in the reasons. He says that his family is the only family in Australia with the surname van der Feltz, and says that they are prejudiced by the publication of his name in the court's reasons and attendant media publicity of the decision.

39 Ordinarily, a party who instigates litigation must accept the public's access to the record and reports of the proceedings which will identify the party involved. A fundamental feature of the Australian judicial system is that, with strictly limited exceptions, proceedings should be conducted in public. The court has the discretion to order that a party's name not be published. However, a party who seeks a restriction of the publication of the proceeding, including in relation to the party's name, carries a heavy burden. In the present case there is no statutory prohibition[17] or public interest[18] against publication of the appellant's name. In such as case, it is necessary to consider whether the public interest in open justice should prevail over a party's private interest in privacy. The fact that public identification may cause a party embarrassment or distress will not usually suffice to warrant the suppression of their identity.[19]

40 There is nothing in the circumstances of the present case which is capable of prevailing over the public interest in the public conduct of the proceedings of the court. The trial judge did not err in publishing reasons which used the appellant's name.

41 Ground 7 contends that the Board 'cannot prosecute the matter'.

42 There is no merit to this ground. Under s 592(1) of the Legal Profession Act, any proceedings for an offence against the Act may be taken in the name of the Board by a person authorised in that behalf by the Board. An authorised officer of the Board can commence a prosecution for an offence against s 13 of the Legal Profession Act, under s 592(1) of the Legal Profession Act and s 20 of the Criminal Procedure Act 2004 (WA).[20]

43 The prosecution notice identified the Board as the prosecutor and was issued by Ms Fulham as Deputy Executive Officer of the Board. Ms Fulham gave evidence that, in that position, she was responsible for bringing proceedings for alleged offences against the Act.[21] Ms Fulham's evidence that she was authorised to commence the prosecution in the Board's name was not challenged at trial.

44 The appellant referred to the decision of this court in A v Maughan.[22] In that case this court held that the Corruption and Crime Commission is not authorised to prosecute persons in respect of matters investigated by the Commission which are otherwise unrelated to the administration and enforcement of the legislation establishing the Commission. That case, decided in a very different statutory context, is of no assistance to the appellant. The Legal Profession Act clearly authorised the Board, by an authorised officer, to commence prosecutions for offences against that Act. The Board was not purporting to institute a prosecution for an offence against any other Act.

46 For the above reasons, the following orders should be made:

1. Leave to appeal on ground 3 is granted.
2. Leave to appeal on grounds 1 - 2 and 4 - 7 is refused.
3. The appellant's appeal is dismissed so far as it relates to orders 1 - 3 made by the primary judge on 9 January 2017 in SJA 1059 of 2016 (which refused the appellant leave to appeal against conviction and sentence and dismissed the appellant's appeal to the General Division).

[1] van der Feltz v Legal Practice Board [2017] WASC 2.

[2] See r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA).

[3] Wright v McMurchy [2012] WASCA 257 [28], [97].

[8] Tobin v Dodd [2004] WASCA 288 [13] - [14]; O'Connell v The State of Western Australia [2012] WASCA 96 [102] - [106] and Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12].

[9] Primary court ts 63 - 64; see also ts 145.

[10] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8].

[11] See, for example, the appellant's submissions as to the Primary decision at [12] - [14], [17] - [18].

[13] After McKenzie v McKenzie [1970] 3 WLR 472.

[14] The appellant referred to Pennicuik v City of Gosnells [2011] WASC 63 [11] - [14]. The role of a 'McKenzie friend' is also discussed in Scarce v Killalea [2003] WASCA 81 [47] - [48] (adopted in Santos v The State of Western Australia [2013] WASCA 39 [10]); Nepal v Minister for Immigration [2015] FCA 366; (2015) 327 ALR 89 [14] - [15] and SZUTY v Minister for Immigration [2016] FCA 184; (2016) 241 FCR 237 [10] - [12].

[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

[17] Such as prohibitions against identifying child offenders, victims of sexual assaults or parties to family law proceedings.

[18] Such as in protecting the identity of undercover police operatives, informers or victims of blackmail.

[19] See Department for Child Protection v Scott (no 2) [2008] WASCA 171; (2008) 38 WAR 125 [151] - [155] and cases there cited.

[20] Section 20(1) (par (a) of the definition of 'authorised officer'), s 20(2) and s 20(3)(a)(i) of the Criminal Procedure Act.

[22] A v Maughan [2016] WASCA 128; (2016) 50 WAR 263.