BHALSOD -v- PERRIE [2016] WASC 412 (21 December 2016)

3 For the reasons that follow the answer to the first question is that the Notice to Produce was a lawful requirement under s 32(7) of the Taxi Act, the answer to the second question is that Mr Perrie was authorised to prosecute the appellant for failing to comply with the Notice to Produce and in any event the appeal on that ground fails because of the provisions of s 178(2) of the Criminal Procedure Act. It is unnecessary to consider the adequacy of the magistrate's reasons because even if they are inadequate no appealable error has occurred. The appeal will be dismissed.

4 Mr Perrie is a senior compliance officer with Ondemand Transport, a unit within the Department of Transport which deals with ondemand transport such as taxis and buses.

5 On 6 November 2014 Allen Lantzke, Manager Education and Compliance Passenger Services within the Department of Transport, forwarded to Mr Perrie an email from Milos Miljus sent to Mr Lantzke on 6 November 2014. The email stated, amongst other things:

I am sending you four receipts of Uber rides I took on 3/11/2014. I am taxi driver myself ... and I was told that Uber is illegal here in WA ...

The email attached a photo of the appellant's car and an 'Uber' receipt which includes the driver's photograph and the words 'you rode with Kelvin'.

6 Mr Perrie then searched the Department's computerised Transport Executive Licensing Information System (TRELIS) to identify the owner of the vehicle. Mr Perrie ascertained from TRELIS that the vehicle was owned by the appellant and had been transferred to him on 31 October 2014. Mr Perrie also ascertained from TRELIS that the appellant held a driver's licence with an F extension which was issued on 24 February 2012. An F extension allows the licence holder to drive a vehicle carrying passengers for hire or reward. Mr Perrie also ascertained from TRELIS that on 31 October 2014 the class of insurance on the appellant's vehicle changed to 3G. Mr Perrie gave evidence that 3G is the class of insurance applying to vehicles to carry fare paying passengers. Mr Perrie understood that Uber required their drivers to have at least an F extension on their licence and that vehicles have class 3G insurance. After carrying out those investigations Mr Perrie formed a strong opinion that the appellant's vehicle was being used as a taxi in breach of s 15 of the Taxi Act.

7 Section 15(1) of the Taxi Act provides that a vehicle may not be operated as a taxi when in a control area unless that vehicle is operated using taxi plates and in accordance with the Act. The ride which Mr Miljus said he was given by the appellant was within the control area. Section 15(2) provides that where a vehicle is operated as a taxi contrary to s 15(1) an offence is committed by the owner of the vehicle, the driver of the vehicle, the operator of the vehicle as a taxi and the provider of the taxi dispatch service involved if any. Taxi is defined by s 3(1) of the Taxi Act to mean, subject to exceptions not relevant, a vehicle which is used for the purpose of standing or plying for hire, or otherwise for the carrying of passengers for reward.

8 Mr Perrie decided that he had a strong opinion the vehicle was being used as a taxi without taxi plates but he needed to prove the element of reward and that the driver had received reward for carrying the passenger. Mr Perrie said that the only way he could get the information was direct from the driver of the vehicle and he therefore produced the Notice to Produce. He signed the notice and sent it to the appellant on 15 December 2014.

9 The Notice to Produce is in tabular form. Its title consists of the words 'Department of Transport Taxi Act 1994 (WA) Section 32(7)' and 'Notice to Produce'. It is addressed to the appellant. It includes the following boxes:

An investigation into whether a person has been operating a vehicle as a taxi otherwise than in accordance with the Taxi Act 1994 (WA), the regulations or any condition imposed under section 20(1) of the Act.

You are required to produce the records, books or documents described below on or before the date and time, and using one of the methods of production specified below.

You must produce to the below named inspector all records, books or documents showing (in whole or in part), for the period 1 June 2014 to the date of this Notice:

(1) any correspondence between you and Uber, or any person associated with Uber, including but not limited to text messages or any emails to or from the email domain@uber.com;

(2) any records of payment you have received for carrying people in your vehicle, including but not limited to payment statements issued by Uber, bank statements containing any payment from Uber, and any other records of trips taken with passengers who have used the Uber app;

(3) any contracts or agreements between you and Uber;

(4) any other documents related to carrying passengers in your vehicle for reward; and

(5) any documents relating to promotions or incentives being offered by Uber to you and/or people using the Uber smartphone application.

In relation to (1) above, you may comply by providing print outs of correspondence, or alternatively by presenting for inspection any electronic device provided to you by Uber.

In this Notice, a reference to 'Uber' means the entity or entities which operate under the name Uber, purport to represent Uber, or coordinate the 'Uber Black' and 'Uber X' services,

The notice states that the records, books or documents were to be produced by 5 January 2015 at the office of the Department in person or by post or by email. The notice states that it was issued by 'an authorised officer designated under section 31 of the Taxi Act 1994 (WA)' and is signed by Mr Perrie and dated 15 December 2014.

Appellant does not comply with Notice to Produce

10 On 31 December 2014 a solicitor acting for a number of clients, including the appellant, wrote to Mr Lantzke. The solicitor sought an extension of time to 4 February 2015 for the appellant, and other clients, to respond to the Notice to Produce. On 2 January 2015 the Legal and Legislative Services Director, Corporate Services of the Department of Transport informed the solicitor by email that an extension of time was granted for his clients to respond to the notices to produce by 4 February 2015. By a letter of 4 February 2015 to Mr Perrie the solicitor said that he had been advised by his client, the appellant, that compliance with the Notice to Produce might tend to incriminate him and that he is protected by legal privilege and that he will not provide the materials requested.

11 Mr Perrie then commenced a prosecution in the Magistrates Court of Western Australia against the appellant. The prosecution notice states that the appellant is charged that he failed to comply with a lawful direction of James Perrie, an authorised person exercising powers conferred by the Taxi Act, contrary to s 32(8)(a) of the Act. The prosecution notice was issued by Mr Perrie and states that the prosecutor is the Department of Transport.

12 The trial took place before Magistrate Heaney in the Magistrates Court at Perth on 30 March, 31 March and 23 June 2016. The prosecutor and the appellant were each represented by counsel. The only witness was Mr Perrie. He gave evidenceinchief and was crossexamined.

13 The magistrate delivered his decision on 29 June 2016. The magistrate found the appellant guilty, ordered him to pay a fine of $400 and costs of $14,408.93. The magistrate made a spent conviction order.

14 The magistrate's reasons for decision are relatively brief and include the following findings. It was accepted that the appellant failed to comply with the directions of Mr Perrie. The factual aspects of Mr Perrie's evidence were not disputed or contradicted. There is no dispute that Mr Perrie is an Authorised Officer pursuant to s 32(7) of the Taxi Act. Mr Perrie had overwhelming reasons to believe that a person is operating a vehicle other than and in accordance with the Taxi Act based on the email dated 6 November 2014 from Milos Miljus and Mr Perrie's subsequent investigations relating to that email. Section 32(7) gives an Authorised Officer an extremely wide scope to require any person to answer any questions, provide any information, and to produce any records, books, documents or vehicles. Mr Perrie's Notice to Produce complies with the scope of s 32(7). There is no dispute that the appellant failed to comply with an Authorised Officer's lawful direction or requirement. It is established beyond reasonable doubt that each and every element of the offence is made out and the appellant is guilty. Mr Perrie was appointed an Authorised Officer under the Taxi Act and he operated within the scope of his authority and in accordance with the provision of the Act and he did so throughout the preparation of this matter.

15 The magistrate went on to make observations about the presentation of the case including the following. It was a very simple matter dealt with in the court of summary jurisdiction that should have taken two hours at the most but was extended into a second day then into a third day. No defence was ever revealed as Mr Perrie's evidence was never disputed. The written submissions stood 12 cm tall, 11 cm of which were the submissions on behalf of the appellant. The submissions on behalf of the appellant covered at great length and extraordinary verbosity every possible objection imaginable and then on a fourth day counsel for the appellant spoke to his submissions for a further two hours. The magistrate read all the submissions provided to him and whilst they were interesting they were of little assistance to him and to the extent that counsel for the appellant's submissions conflict with the magistrate's finding of guilt, the magistrate rejects them, and accepts the submissions made by counsel for the prosecutor. The court is a very busy court. This was the simplest of simple matters before the court and the court does not have the time to allocate four days for such matters. To respond to counsel for the appellant's submissions in this decision would take more time that the court could afford to allocate.

16 The appellant appeals against his conviction on the grounds that the magistrate erred:

1. in finding that there was a lawful requirement or a lawful direction for the purposes of s 32(8)(a) of the Taxi Act;
2. in finding that the informant was authorised to prosecute a challenge under s 32(8)(a) of the Taxi Act; and
3. by failing to give adequate reasons for his decision.

17 The first ground of appeal concerns the proper construction of s 32(7) of the Taxi Act. There is no difference between the parties as to the applicable principles of statutory interpretation.

18 The High Court has confirmed on many occasions in recent years that questions of construction are determined by reference to the text, context and purpose of the Act. See for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 26; (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1; Certain Lloyd's Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378.

19 The applicable principles of statutory construction include the following. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The legal meaning of the relevant provision is to be decided by reference to the language of the instrument viewed as a whole. The purpose of the statute resides in its text and structure. The purpose of legislation must be derived from what the legislation says, and not from some a priori assumption about its purpose or any assumption about the desired or desirable reach or operation of the relevant provisions.

Appellant's contentions about s 32(7)

20 Senior counsel for the appellant, Mr Clelland QC, submitted that the preconditions for the exercise of the power conferred by s 32(7) of the Taxi Act were not satisfied and the Notice to Produce did not constitute a lawful requirement for the purposes of s 32(7) and s 32(8)(a) of the Taxi Act. Those propositions are based upon a number of related contentions concerning the proper interpretation of s 32(7) of the Taxi Act. The first is that the direction or requirement by an authorised officer that a person provide information or produce documents must be temporally proximate to the conduct of the person that gives rise to the authorised officer's belief that the person is operating a vehicle as a taxi other than in accordance with the Act or Regulations. This requirement of temporal proximity connotes or has the consequence that the requirement must be oral and not in writing, that it cannot be made six weeks after the conduct giving rise to the belief that the person is operating a vehicle as a taxi and the authorised officer cannot require the person to produce documents generated at, received at or relating to the time four months before the conduct giving rise to the belief that the person was operating a vehicle as a taxi.

21 The second contention is that the information or documents which an authorised officer may require a person to provide or produce must relate directly to the conduct of the person giving rise to the reasonable belief that the person is operating a vehicle as a taxi. Therefore, the reasonable belief of an authorised officer that a person was driving a vehicle as a taxi does not entitle the authorised officer to demand the production of documents not directly or sufficiently related to the conduct giving rise to the belief.

22 The appellant submits that s 32(7) of the Act has the potential to interfere in a substantial way with established legal processes, legal rights, immunities and principles including the privilege against selfincrimination, property rights of a suspect and freedom of movement of a suspect. The appellant says that in accordance with principle Parliament must use explicit language or by necessary implication intend to curtail basic freedoms and common law rights in order to abrogate those rights. The appellant says that the Taxi Act does not demonstrate an intention to abrogate those basic freedoms and common law rights.

23 In their written submissions counsel for the appellant say that while the terms of s 32(7) make it tolerably clear that an authorised officer may seek a document which is liable to incriminate a relevant person, equally clearly such a demand must be confined to where the person is 'found operating' a vehicle as a taxi and which is reasonably believed to constitute a breach of the Act or Regulations in the circumstances. Likewise, counsel submit, the absence of any provision allowing for or requiring judicial supervision or statutory control of the s 32(7) powers is a significant factor weighing against the conclusion that Parliament intended the provision to have the broad operation that the respondent contends for.

24 This approach is often referred to as the 'principle of legality'. In AlKateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Gleeson CJ said:

Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment [19].

25 The principle of legality exists to protect inadvertent, collateral alteration of rights, freedoms, immunities, principles and values. It has limited application where the legislation has among its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle of legality is invoked to protect. In Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 Gageler and Keane JJ said:

Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has among its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve' [313] [314].

26 Section 32(7) of the Taxi Act authorises an authorised officer to require a person to answer questions, provide information and produce documents on matters relating to the offence of operating a vehicle as a taxi other than in accordance with the Act or Regulations where the authorised officer has reason to believe that the person has committed that offence. As the appellant acknowledges, as a matter of necessary implication s 32(7) abrogates the privilege against selfincrimination. There is no foothold in the text, context or purpose of s 32(7) for the contention that the provision abrogates the privilege against selfincrimination but only if the person is 'found operating' a vehicle as a taxi and which is reasonably believed to constitute a breach of the Act or Regulations in the circumstances.

Section 32(7) is not confined to requirements made immediately

27 I do not accept the appellant's contention that the requirement under s 32(7) has a temporal connection with driving a vehicle as a taxi so that it may only be exercised at or about the time of the driving. That is not the ordinary and natural meaning of the words of s 32(7). The words 'is operating' a vehicle as a taxi do not confine the exercise of the power to require that a person answer questions, provide information or produce documents to a time only at the time the person is in the act of driving a vehicle as a taxi. The words 'is operating' are an instance of what the respondent refers to as the present progressive tense or what is also sometimes referred to as the present continuous tense. The use of the tense does not indicate something happening at an exact moment but rather indicates continuing action.

28 The power to require a person to answer questions, provide information or produce documents or vehicles arises where an authorised officer has reason to believe that a person is operating a vehicle as a taxi other than in accordance with the Act or Regulations. Operate is defined to mean not only to drive a vehicle as a taxi but also to own or lease taxi plates or to cause another person to drive a vehicle as a taxi by providing to the person the vehicle and taxi plates for use on or in the vehicle. An authorised officer may make a requirement under s 32(7) not only of the driver of a vehicle but also of the owner or lessor of taxi plates or a person who causes another to drive a vehicle as a taxi by providing to the person the vehicle and taxi plates for use on or in the vehicle. That indicates that the requirement which may be made or given under s 32(7) is not confined to a requirement made to the driver of a vehicle at or about the time the driver is in the act of driving the vehicle as a taxi. Furthermore, requiring the production of 'any records, books, documents or vehicles' cannot be sensibly confined to a requirement made of a driver at or about the time of driving the vehicle as a taxi. A requirement to produce 'any records, books, documents or vehicles' must sensibly extend to a requirement to produce records, documents or vehicles made at a later time.

29 The statutory context of s 32(7) does not indicate that the power to require a person to answer questions, provide information or produce documents may only be exercised at or about the time the person is in the act of driving a vehicle as a taxi. Section 32 is in pt 4 of the Taxi Act which deals with a range of 'General' matters. Section 31 provides for the Director General to designate authorised officers. Section 32 confers powers on authorised officers. Section 33 provides for averments to prove certain matters in any prosecution for an offence under the Act. Section 36 contains provisions in relation to bonds given by drivers to operators and includes penalty provisions. Section 37 is concerned with the Director General providing reasons for certain decisions. Section 39 deals with infringement notices. The remaining provisions deal with the making of regulations, the taxi industry development account, some deemed plate holders surrendering plates and a review of the Act.

30 Section 32 is entitled 'powers of authorised officers'. Section 32(1), (2), (3), (4) and (7) confer powers on an authorised officer. The other three subsections create offences. Section 32 confers on authorised officers a range of powers. Some of them may only be exercised at the time the vehicle is being operated as a taxi. The terms of s 32(2) are such that an authorised officer may only exercise the powers conferred by that subsection at the time the vehicle is being operated as a taxi. For example, one of the powers is to stop the vehicle. On the other hand the terms of s 32(3) and (4) are such that the powers conferred on an authorised officer by those subsections are not so confined. In summary, the scheme of s 32 offers no indication that the powers conferred on an authorised officer by s 32(7) to require a person to answer questions, provide information or produce documents may only be exercised at or about the time the person is in the act of driving a vehicle as a taxi.

31 The power to require a person to answer questions, provide information or produce records, books, documents or vehicles is not unlimited. The power must be exercised for the purpose for which it is conferred. It might be that a requirement made a long time after the conduct giving rise to the belief that a person is operating a vehicle as a taxi other than in accordance with the Act or Regulations may not be a proper exercise of the power. For example, a requirement made more than 12 months after the conduct giving rise to the belief may not be a proper exercise of the power if the circumstances do not give rise to a belief that the person has continued to operate a vehicle as a taxi other than in accordance with the Act or Regulations within the last 12 months. That is because a prosecution must be commenced within 12 months after the date on which the offence was allegedly committed: Criminal Procedure Act s 21(2). However, that is not this case.

32 The Notice to Produce did not require the production of documents generated, received or relating to matters occurring so long ago that it may be inferred that the authorised officer did not require their production for a proper purpose. Mr Perrie explained the reason for requiring the production of documents for the period 1 June 2014 to the date of the notice:

I was trying to get information to see if [the appellant] had been doing something similar over a period of time and 1 June was just a figure. It was nice and round but also it was around about the time when UberX began operating in WA, I believe. Hence, that's why I had that date period.

That is, Mr Perrie specified 1 June 2014 because that is when he believed UberX started operating in Western Australia. It is likely that a person who entered into a contractual relationship with Uber to become a registered driver would have communicated with Uber about matters such as holding an appropriate driver's licence, appropriate vehicle insurance and banking or other payment arrangements. It is likely that those communications would have taken place sometime prior to the appellant commencing as an Uber driver. Mr Perrie had reason to believe that the appellant had driven a vehicle as a taxi on 3 November. He believed that Uber had been operating in Western Australia since June and at some stage in that period it is likely there would have been communications and documents to effect the contractual relationship between Uber and the appellant. The contract, or communications relating to the contract, were likely to provide evidence as to the financial relationship between Uber and the appellant and that the appellant was carrying passengers for reward.

33 Senior counsel for the appellant submitted that the nature of the documents required to be produced under the Notice to Produce and the fact that they related to the period from 1 June to the date of the notice leads to the inference that the authorised officer was 'not asking about that driving at all, but wanting information about Uber'. I do not accept that submission. For the reasons I have given, the information requested is relevant to the investigation or gathering of evidence in relation to the appellant operating a vehicle as a taxi other than in accordance with the Act or Regulations. In crossexamination it was put to Mr Perrie that he used the Notice to Produce to investigate Uber. His answer was:

No. I was using this notice to investigate the driver of that vehicle 1EKK814 for what I suspected was a breach of the Taxi Act.

The magistrate accepted the evidence of Mr Perrie. The challenge to the Notice to Produce on the basis that it was used for the purpose of investigating Uber fails.

34 Section 32(7) does not provide that the requirement cannot be in writing. Section 32(7) does not provide that the requirement may not be made days or weeks after the conduct giving rise to the belief that the person is operating a vehicle as a taxi other than in accordance with the Act or Regulations. On its proper construction, s 32(7) does not import either of those two restrictions on the exercise of the power.

35 I do not accept the appellant's contention that the power conferred on an authorised officer by s 32(7) is limited to demanding materials directly related to the relevant conduct. The appellant submits, in effect, that the information or documents which an authorised officer may require a person to provide or produce must relate directly to the conduct of the person on which the reasonable belief that the person is operating a vehicle as a taxi other than in accordance with the Act or Regulations is based. I do not accept that contention or the contention that the documents which Mr Perrie required the appellant to produce are not sufficiently related to the conduct of the appellant giving Mr Perrie reason to believe that the appellant is operating a vehicle as a taxi other than in accordance with the Act or Regulations.

36 There must be some connection between the documents which the person is required to produce and the operation of the vehicle as a taxi other than in accordance with the Act or Regulations. That is because the apparent purpose of s 32(7) is to enable an authorised officer to further investigate and gather evidence in relation to a person operating the vehicle as a taxi other than in accordance with the Act or Regulations. However, there is nothing in the text, context or purpose of s 32(7) which confines the power to requiring the production of records, books, documents or vehicles which relate directly to a specific instance of driving a vehicle as a taxi other than in accordance with the Act or Regulations. Indeed, the power to require the production of vehicles (plural) is inconsistent with such an interpretation.

37 There is a sufficient connection with Mr Perrie's belief that the appellant is operating a vehicle as a taxi other than in accordance with the Act or Regulations and each of the classes of documents he was required to produce. The first class is 'any correspondence between you and Uber, or any person associated with Uber, including but not limited to text messages or any emails to or from the email domain at uber.com'. The Uber business model is so notorious that I take judicial notice of its basic features. Hiring and payment is handled through the Uber App and not with the driver personally. At the end of the ride the fare is billed to the customer's credit card. The driver is paid by Uber not by the customer. It is likely that there will be communications by correspondence, text or email between an Uber driver and Uber or someone acting on behalf of Uber and those documents may provide evidence, either in themselves or in combination with other documents and circumstances, that the driver has received reward for carrying passengers.

38 The second class of documents is 'any records of payment you have received for carrying people in your vehicle, including but not limited to payment statements issued by Uber, bank statements containing any payment from Uber, and any other records of trips taken with passengers who have used the Uber app'. The connection between such documents and the appellant operating his vehicle as a taxi, that is carrying passengers for reward, is obvious and I did not understand senior counsel for the appellant to submit otherwise.

39 The third class of documents required to be produced is 'any contracts or agreements between you and Uber'. Counsel for the respondent, Mr Leigh, submitted that 'contracts or agreement between you and Uber' goes to showing the question as to how the payment could be made to the driver when a passenger uses the Uber system and so asking for contracts or agreements between the driver and Uber is going towards establishing how it is that payments can be made to the driver. Again, if the appellant was, as Mr Perrie had reason to believe, operating his vehicle as a taxi as an Uber driver then such documents go to the appellant receiving reward for carrying passengers.

40 The fourth class is 'any other documents related to carrying passengers in your vehicle for reward'. Again, the connection between such documents and the appellant operating his vehicle as a taxi other than in accordance with the Act or Regulations is obvious and I did not understand senior counsel for the appellant to submit otherwise.

41 The fifth class is 'any documents relating to promotions or incentives being offered by Uber to you and/or people using the Uber Smartphone application'. Mr Leigh submitted, and I accept, that such documents go to the question of whether there is some form of reward.

42 There is a sufficient connection between the documents which Mr Perrie required the appellant to produce and Mr Perrie's belief that the appellant is operating a vehicle as a taxi other than in accordance with the Act or Regulations. The requirement to produce documents constituted by the Notice to Produce falls within the scope of s 32(7) of the Taxi Act and was a proper exercise of the power. Ground 1 of the appeal is not made out.

43 The appellant says that Mr Perrie commenced the prosecution and the magistrate erred in finding that Mr Perrie was authorised to prosecute a charge under s 32(8)(a) of the Taxi Act.

44 The Criminal Procedure Act 2004 (WA) abolished private prosecutions for simple offences. Section 20(3) provides that subject to other written laws, prosecutions in a summary court may only be commenced by:

(a) one of the following acting in the course of his or her duties -

(i) an authorised person in relation to the offence;

(ii) a person referred to in section 80(2)(a) to (e);

(iii) a police officer;

or

(b) a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.

45 Neither the Taxi Act nor any other written law limits who may commence a prosecution for an offence under s 32(8) of the Taxi Act. Mr Perrie was not appointed under s 182 to prosecute offences. It is common ground that Mr Perrie is an authorised person as defined in s 20(1)(b)(i), that is an employee of a public authority. Accordingly, the question is whether Mr Perrie was acting in the course of his duties in commencing the prosecution against the appellant.

46 The appellant says that Mr Perrie's Certificate of Appointment limited his powers to the 'powers of an authorised officer under the [Taxi] Act'. The relevant powers and duties of authorised officers are found in s 32 of the Taxi Act and do not authorise Mr Perrie to commence a prosecution. Consequently, the appellant submits, the Certificate of Appointment failed to authorise Mr Perrie to commence prosecutions. The appellant says that Mr Perrie's prescribed duties do not include commencing prosecutions and hence he was not acting in the course of his duties when he commenced the prosecution.

47 The respondent submits that ground 2 of the appeal fails for two reasons. First, the evidence establishes that Mr Perrie was acting in the course of his duties in commencing the prosecution. Secondly, even if the evidence does not establish that Mr Perrie was acting in the course of his duties when he commenced the prosecution, it is too late for the appellant to raise that point because he did not, as required by s 178 of the Criminal Procedure Act, object to the prosecution notice before the prosecutor's opening address.

48 In A v Maughan [2016] WASCA 128; (2016) 50 WAR 263 Martin CJ, with whom McLure P and Corboy J relevantly agreed, said:

The public policy underpinning s 20 of the CPA is clear from its terms. The section deprives the public at large of the capacity to commence criminal proceedings and limits that capacity to police officers and other public officials acting in the course of their duties. So, for example, an officer of the Department of Health whose duties include the investigation and prosecution of offences against the Health Act 1911 (WA), is given the capacity to commence prosecutions in the course of those duties, but not otherwise. Similarly, police officers are given authority to commence prosecutions if and to the extent that they are acting in the course of their duties when doing so, but not otherwise [106].

49 Before the magistrate the appellant submitted that an authorised officer is only authorised by s 20(3)(a)(i) of the Criminal Procedure Act to commence a prosecution where another statute has already made the authorised person an authorised person to commence a prosecution in relation to the offence. Before me, senior counsel for the appellant said that the examples given by Martin CJ in [106] of A v Maugham are instances where the authorised person is given the capacity to commence prosecutions by another statute. The Chief Justice did not say that that is the only instance where an authorised person in commencing a prosecution for an offence will be acting in the course of his duties.

50 The statutory provision provides that the authorised person must be acting 'in the course of' the authorised person's duties. This draws on the wellknown common law concept of 'in the course of employment'. The classic contrast is 'a frolic of his own'. That concept is reinforced by s 20(5) of the Criminal Procedure Act which provides that a person acting in his private capacity cannot commence a prosecution unless another written law expressly provides otherwise.

51 An authorised person commences a prosecution for an offence in the course of his duties if his duties include commencing that prosecution or prosecutions for offences of that nature. In the case of an employee of a public authority his duties may be laid down in a statute, regulations, administrative directions, his contract of employment or job description or might arise from a direction or instruction given by a person with authority to give such a direction or instruction. No particular formality is required. Whether or not an authorised person who commences a prosecution is acting in the course of his duties is a question of fact which may be established by circumstantial evidence from which it may be inferred that the authorised person was acting in the course of his duties.

52 The status of Mr Perrie as a person with the authority to commence a prosecution for an offence under s 32(8) of the Taxi Act is a matter that is separate and distinct from the elements of the offence with which the appellant was charged. Mr Perrie's authority is a prerequisite to commencing a prosecution for the offence but it is not an element of the offence charged. The elements of the offence charged must be proved beyond reasonable doubt but proof of Mr Perrie's authority to commence the prosecution need only be proved on the balance of probabilities: Pearson v Rizos [2008] SASC 98 [24] (Gray J); Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1, 12 13 (Mason CJ & Dawson J).

53 The evidence in relation to whether Mr Perrie was acting in the course of his duties in commencing the prosecution is limited. The evidence is to the following effect. Mr Perrie was a senior compliance officer with the Department's Ondemand Transport Unit. That unit dealt predominantly with on demand transport services such as taxis and omnibuses. The senior compliance officer is responsible for the licensing issues in regards to passenger vehicles. They do reviews on vehicles that hold licences to carry passengers for hire or reward such as taxis, small charter vehicles, tour and charter vehicles. Mr Perrie investigated complaints that were received.

54 An instrument of delegation and a certificate of appointment were also received in evidence. Section 6(2) of the Taxi Act provides that the Director General may by an instrument of delegation delegate to an officer of the Department any of the powers or duties of the Director General under the Act, other than the power of delegation. The Director General executed an instrument of delegation by which he delegated, amongst other things, the powers and duties of the Director General under s 31 of the Taxi Act to the passenger services general manager. Section 31 of the Taxi Act provides that the Director General may designate any officer of the Department as an authorised officer. The General Manager Passenger Services by a certificate of appointment designated Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act to carry out powers of an authorised officer under the Act. The powers of authorised officers under the Taxi Act include the powers of authorised officers under s 32. However, s 32 does not expressly provide that an authorised officer may commence a prosecution for an offence contrary to s 32(8).

55 The magistrate also had before him the prosecution notice. The respondent submits that by issuing the prosecution notice in his name Mr Perrie asserted that he was authorised to commence the prosecution. The prosecution notice states that the prosecutor is the Department of Transport and that the person issuing the notice is Mr Perrie and his official title is Acting Team Leader. That is an implied assertion by Mr Perrie that in issuing the prosecution notice he was acting in the course of his duties with the Department of Transport.

56 Mr Perrie gave evidence that on numerous occasions he sought legal advice on the contents and form of the Notice to Produce before it was sent. The Legal and Legislative Services Director Corporate Services of the Department of Transport wrote to the appellant's solicitor in response to correspondence about the Notice to Produce.

57 The respondent further submits that the presumption of regularity requires the court, in the absence of any evidence to the contrary, to accept that the prosecution was commenced by an authorised person in relation to the offence acting in the course of his duty. The respondent submits that commencing a prosecution pursuant to the Criminal Procedure Act entails the exercise of a statutory power and as McHugh JA stated in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154:

Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled (164).

58 The respondent submits that while the presumption most likely cannot be relied upon to prove an element of an offence, it does apply with respect to the question of whether or not a person occupies a particular office and, by analogy, whether they are acting in the course of their duties. Counsel for the respondent referred to R v Brewer [1942] HCA 33; (1942) 66 CLR 535 where a relevant issue in a criminal prosecution was whether or not a person had been appointed to a particular public office. Latham CJ and MacTiernan J held at 548 that:

Acting in a public office is evidence of due appointment to that office, not only in civil proceedings but also in a criminal case ... the presumption that his appointment was duly made is not met by any rebutting evidence ... the conclusion, therefore, is that [the person] was appointed to serve in the Canteen's Service and that is service therein was service under the Crown.

59 Pertl v Kahl (1976) 13 SASR 433; (1976) 31 FLR 380 concerned a complaint in a court of summary jurisdiction alleging that the defendant had failed to furnish an income tax return when required by the Deputy Commissioner of Taxation to do so. The defendant was convicted. He appealed on the ground that there was no evidence of any delegation of power to give the notice from the Commissioner to the Deputy Commissioner and that the complaint did not allege that the Deputy Commissioner had exercised his power by delegation. Walters J dismissed the appeal. His Honour said:

It seems to me, however, that the objections taken by the appellant can be answered by the application of the presumption, 'which indeed is merely a facet of the wider maxim omnia praesumuntur rite et solemniter esse acta' (Price v Humphries), that at the relevant time, there existed the necessary delegation by the Commissioner to the respondent of the power to require the appellant to furnish an income tax return, and that in the case of the appellant, the power so delegated was properly exercised by the respondent. In the absence of evidence from the appellant to raise a contrary presumption, there was no evidence before the lower Court to invalidate the presumption that when the respondent gave the notice to the appellant requiring him to furnish the return, he was for that purpose acting as the delegate of the Commissioner. In my opinion the power of delegation merely concerns the rights of the Commissioner, and it is not going too far to say that by application of the presumption of omnia praesumuntur, there was a prima facie case that the respondent was the delegate of the Commissioner for the purpose of giving the notice to the appellant.

Also, it seems to me that in the present case, I may bring in aid the rule that where a person is acting in a public office, the fact that he is so acting affords the presumption that he had been duly appointed to that office and that he is acting properly in the administration of that office (383).

60 In my opinion the presumption of regularity applies and it is to be presumed, in the absence of evidence to the contrary, that Mr Perrie was acting in the course of his duties when he commenced the prosecution. The rule of presumption does little more than reflect the probative value of the evidence that Mr Perrie was acting in the course of his duties which evidence I have set out earlier.

61 There are many judicial statements concerning the amount of evidence required to rebut the presumption. It is not necessary to explore that matter. In this case, there is no evidence to the contrary. The appellant suggests that the Certificate of Appointment adduced in evidence limited Mr Perrie's powers to those of an authorised officer under the Taxi Act which do not include the power to commence prosecutions. The Certificate of Appointment designates Mr Perrie to be an authorised officer pursuant to s 31 of the Taxi Act. It does not limit his powers in any way. It gives rise to no inference that his duties do not include the commencement of prosecutions.

62 Mr Perrie gave evidence. He was crossexamined about the drafting and sending of the Notice to Produce. He was not crossexamined about his authority to commence the prosecution. The question of whether Mr Perrie had authority to commence the prosecution was not raised by the appellant until the closing address of counsel for the appellant.

63 On the whole of the evidence it is to be inferred that Mr Perrie commenced the prosecution acting in the course of his duties.

Criminal Procedure Act s 178

64 The respondent says that even if the evidence does not establish that Mr Perrie was acting in the course of his duties when he commenced the prosecution it is too late for the appellant to raise the point. Section 178(2) of the Criminal Procedure Act provides that any objection by an accused to a prosecution notice on the ground that it is defective must be made before the prosecutor's opening address. Subsection 3 provides that if a court document, which includes a prosecution notice, is defective in substance or form the court, on an application by a party or its own initiative, must order that the document be corrected if the defect is not material to the merits of the case and may order that the document be corrected in any other case.

65 The respondent says that an allegation that the prosecutor was not authorised to commence the prosecution should be regarded as an objection to a substantive defect not material to the merits of the case. Before the magistrate the appellant in his closing submissions submitted that the prosecutor did not have authority to commence the prosecution but the appellant did not raise this issue before the prosecutor's opening address and is now precluded from doing so by s 178 of the Criminal Procedure Act.

66 The appellant says that ground 2 of the appeal is not based on an objection that the Prosecution Notice is defective. The ground goes to a fundamental issue that Mr Perrie did not have authority to commence the prosecution and that is why s 178 is not engaged. Mr Clelland QC submitted that it is not a question of procedure or timing; it goes to the question of authority to prosecute which was the issue in A v Maughan.

67 In my opinion, whether or not s 178 of the Criminal Procedure Act applies so as to require an objection to be made before the prosecutor's opening address depends on whether the objection is an objection that the Prosecution Notice is defective and is capable of being corrected pursuant to s 178(3) or is not capable of being corrected.

68 Sections 9 and 11(2)(a) of the Magistrates Court Act 2004 (WA) confer jurisdiction on the Magistrates Court to hear and determine a charge of a simple offence. Section 11(3)(b) of the Magistrates Court Act provides that the jurisdiction so conferred is to be exercised subject to the Criminal Procedure Act. Section 67(3) of the Interpretation Act 1984 (WA) provides that the procedure for 'prosecuting and dealing with' offences is set out in the Criminal Procedure Act. The section indicates that the Criminal Procedure Act is concerned with procedural matters; it is not concerned with the jurisdiction of the courts in which offences are prosecuted.

69 In Calandra v Civil Aviation Safety Authority [2015] WASCA 31 the Chief Justice, with whom Mazza JA and Hall J agreed, confirmed that the jurisdiction of the Magistrates Court to hear charges alleging the commission of simple offences is conferred by s 9 and s 11 of the Magistrates Court Act not the Criminal Procedure Act. The Chief Justice held that defects in the procedure for commencing prosecutions do not deprive the Magistrates Court of jurisdiction, although they might result in the proceedings being dismissed by a magistrate acting within jurisdiction. The Chief Justice expressly agreed with the following observations concerning noncompliance with s 20 of the Criminal Procedure Act made by EM Heenan J in Spagnolo v Flynn [2014] WASC 88 (Spagnolo):

However, I do not subscribe to any broad view that such non-compliance deprives a court, even a court of limited jurisdiction such as the Magistrates Court, of jurisdiction to hear and determine the charge. I have already indicated that I consider that jurisdiction is conferred on the court by s 11 of the Magistrates Court Act and it follows that the court will have the jurisdiction to hear and determine whether or not any particular charge has been wrongly commenced and, if so, should be dismissed or stayed. With respect to submissions to the contrary, I do not consider that the jurisdiction of the court to deal with the prosecution depends upon the formalities of the initiating process but rather that, in the case of a prosecution improperly commenced, the Magistrates Court has the jurisdiction and the obligation to decide whether or not the proceedings have been properly commenced and, if they have not, to dismiss them. Consequently, although such a defect in the institution of a prosecution will not deprive the Magistrates Court of jurisdiction, it will mean that if objection is made on the grounds of invalidity or informality and is upheld, the proper determination of the proceedings according to law will require that they be dismissed - compare Russell v The State of Western Australia and R v Janceski [35].

70 The respondent relies on Spagnolo. In that case the applicants were charged with offences of continuing or carrying out a development on a property by causing landfill to be placed upon that property without authority and thereby contrary to the City of Gosnells Town Planning Scheme No 6 (WA) and s 218(b) of the Planning and Development Act 2005 (WA). The prosecution notices named the City of Gosnells as the prosecutor, showed its solicitors Lewis Blythe & Hooper as issuing the prosecution notice and was signed by those solicitors. The solicitors were not authorised to sign the prosecution notices on behalf of the City. The magistrate allowed the amendment of each prosecution notice by showing that the person issuing the notice was the City of Gosnells and allowing the notices to be signed by an authorised person of the City. On appeal, EM Heenan J held that the magistrate was correct in his conclusion that he had power under s 178 of the Criminal Procedure Act to correct those defects and that there was no error in his doing so.

71 In Re His Honour Magistrate Roth; Ex Parte Ridge [2016] WASC 121 (Ridge) the applicant sought a review order against a decision of the magistrate dismissing a charge against the second respondent of contravening reg 152 of the Dangerous Goods Safety (Road and Rail Transport of Nonexplosives) Regulations 2007 (WA). The magistrate dismissed the charge because he held that the senior constable who instituted the prosecution was not authorised to commence a prosecution under reg 152. The applicant accepted that the prosecution of the second respondent was defective because the senior constable was not authorised to commence the prosecution. The applicant contended that the defect in the prosecution was capable of being corrected, that the defence was not material to the merits of the case and that the magistrate was obliged by s 178 of the Criminal Procedure Act to correct the prosecution notice. Martino J observed that the jurisdiction of the Magistrates Court to deal with a prosecution does not depend upon the formalities of the initiating process. His Honour then said:

There are some cases in which non-compliance with a condition or obligation will render proceedings ineffective. Examples are where a prosecution is commenced by a person acting in a private capacity, which is not permitted by s 20(5) of the CPA, where a prosecution notice is signed by a person in the knowledge that he or she is not authorised to do so, or lodged by a person knowing that it has been signed or authenticated by a person who is not authorised to do so, in contravention of s 173 of the CPA, or where consent is required before a prosecution can be commenced, as was the case in Palos Verdes Estates Pty Ltd v Carbon.

However, not all defects in prosecution notices have that effect. Spagnolo v Flynn is an example where defects did not do so. ...

Section 178 of the CPA is intended to be a remedial provision, the objective of which is to prevent deficiencies in originating criminal processes causing criminal proceedings to miscarry.

The prosecution of the second respondent under the Regulations commenced by Senior Constable Osborne was commenced by a police officer, not by a private individual. Senior Constable Osborne believed that Sergeant Page had authorised him to commence the prosecution for that charge by signing the matrix for that charge. Sergeant Page, who was authorised to commence the prosecution, knew that it was being commenced and endorsed the commencement of the prosecution. In those circumstances it is my view that the prosecution notice was defective, but was not invalid. It was amenable to correction under s 178 by being amended to provide that it was commenced by Sergeant Page and by allowing Sergeant Page to sign the amended prosecution notice. I am satisfied, by the evidence of Sergeant Page that if he had known that he could not authorise Senior Constable Osborne to commence the prosecution for an offence against the Regulations Sergeant Page would have signed the prosecution notice himself, that he would have signed the amended prosecution notice if given the opportunity to do so [96] [98].

72 The Court of Appeal delivered its judgment in A v Maughan on 15 July 2016. Ms Baker, an authorised officer of the Corruption and Crime Commission, signed two prosecution notices instituting criminal proceedings against the applicant in the Magistrates Court. The Court of Appeal held that on the proper construction of the Corruption and Crime Commission Act 2003 (WA), the Commission's powers and functions do not extend to the prosecution of persons in respect of matters investigated by the Commission which are otherwise unrelated to the administration and enforcement of the legislation establishing the Commission. Because the offences allegedly committed by the applicant were not of that character, Ms Baker was not acting in the course of her duties as an officer of the Commission when she commenced the prosecutions against the applicant. Martin CJ said:

Because the Commission's functions do not include the prosecution of the applicant, Ms Baker cannot have been acting in the course of her duties as an officer of the Commission when she commenced the criminal proceedings against the applicant. It follows that she was not authorised to commence a prosecution by s 20(3) of the CPA and the proceedings which she commenced against the applicant are, and always have been, invalid. It follows that those proceedings must be quashed ...[135].

McLure P stated that the respondents conceded, in effect, that if Ms Baker did not have authority to commence criminal proceedings against the applicant the prosecution notices would be invalid and a valid prosecution notice is an essential preliminary to the exercise of the court's jurisdiction to hear and determine the criminal proceedings. The President said that in her view those concessions were correctly made. Corboy J said:

It was assumed in Russell v Western Australia [2011] WASCA 246; [2011] 214 A Crim R 326 that a valid indictment is an essential preliminary to the exercise of the court's jurisdiction over a prosecution (at [27]). However, I agree with the President that a valid initiating process (prosecution notice or indictment) is an essential preliminary to the court's jurisdiction to hear and determine a charge having regard to the scope and object of the Criminal Procedure Act 2004 (WA) (CPA) and the Act's requirements. Accordingly, I agree that the proceedings commenced by the second respondent must be quashed [167].

73 The procedure for commencing a prosecution is laid down in pt 3 div 2 of the Criminal Procedure Act which includes s 20 and s 23. Whether the commencement of a prosecution that does not comply with the requirements of pt 3 div 2 of the Criminal Procedure Act is invalid and of no effect is a question of construction. A prosecution commenced in breach of the requirements of s 20 or s 23 of the Criminal Procedure Act is not necessarily invalid and of no effect. The prosecutions giving rise to the decisions in Calandra, Spagnolo and Ridge are examples of prosecutions commenced in noncompliance with s 20 or s 23 of the Criminal Procedure Act which were not invalid and of no effect and were capable of being corrected or amended under s 178. On the other hand, in A v Maughan the person who purported to commence the prosecution did so as an authorised officer of the Commission. The Commission's powers and functions do not extend to the prosecution of persons for the offence with which the appellant was charged. The Prosecution Notice was not merely defective; it was incapable of being corrected so as to be a valid prosecution notice. Therefore, s 178(2) of the Criminal Procedure Act had no application. In this case, Mr Perrie, by issuing the prosecution notice, impliedly asserted that he did so in the course of his duties as an authorised officer of the Department of Transport. The appellant accepts that the Department of Transport at least by the Director General, has the requisite authority to commence a prosecution or to authorise an authorised person to do so. The Prosecution Notice in this case could have been corrected. The defect in the Prosecution Notice is a defect to which s 178(2) of the Criminal Procedure Act applies. Therefore, any objection to the Prosecution Notice 'must be made before the prosecution's opening address'. It was not. For that reason as well ground 2 is not made out.

74 Neither counsel advanced any oral argument in relation to this ground of the appeal. They were right not to do so. If ground 1 or ground 2 is made out then the conviction will be set aside and it is unnecessary to consider the adequacy of the magistrate's reasons. On the other hand, if neither ground 1 nor ground 2 is made out the appeal cannot succeed on the ground that the magistrate's reasons were inadequate.

75 If reasons for decision are found to be adequate, it does not follow that there is necessarily an appealable error; an appeal court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. Further, when an appealable error arises from inadequate reasons, it does not necessarily follow that a new trial is required. An appeal court is entitled to consider the matter and, if it can do so (eg, when only one conclusion is reasonably open on the available evidence), may decide the matter itself: Falkingham v Hoffmans (A firm) [2014] WASCA 140 [88] (Pullin & Murphy JJA); Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29].

76 If, as I have found, the Notice to Produce was a lawful direction under s 32(7) of the Taxi Act and Mr Perrie was authorised to prosecute the appellant for failing to comply with the Notice to Produce, then the only conclusion reasonably open on the evidence is that the appellant was guilty.

77 Leave to appeal should be granted in respect of grounds 1 and 2 because the grounds are reasonably arguable. However, grounds 1 and 2 are not made out. Leave to appeal on ground 3 will be refused.