BLENKINSOP -v- WILSON [2019] WASC 77 (13 March 2019)

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

1. The section requires a ground of appeal identify precisely the error of law and/or fact made by the court or the basis upon which the court acted without or in excess of jurisdiction or the reason why there has been a miscarriage of justice. The appellant's grounds of appeal do not meet that requirement. Although a number of grounds commence with an allegation that the magistrate made an error of fact or law, many of the 'grounds' merely contain assertions, argument and submissions.
2. The appellant acted in person at the trial and in the appeal. However, he is an admitted legal practitioner. It appears he has not practised in the area of criminal law. Nevertheless, it is to be expected a party with legal training would more adequately comply with the requirements for pleading grounds of appeal.
3. I do not propose to separately address each ground. Rather, I have grouped the grounds into categories of alleged error. Inevitably, there is some overlap between the categories for some grounds[1]. The categories are set out at [67] below.

1. For the reasons that follow, I have concluded that none of the appellant's proposed grounds of appeal have a reasonable prospect of success. Accordingly, leave to appeal on each ground will be refused and the appeal will be dismissed.

1. The charges alleged against the appellant related to an interim violence restraining order (the IVRO) obtained by the appellant's sister, Ms Holland. The IVRO was made on 12 September 2014. It was granted at a first hearing held before two justices of the peace in the absence of the appellant under s 26 RO Act.
2. The appellant and Ms Holland have a brother, Scott Blenkinsop, and two sisters, Ms Jakovich and Ms Thurtell. Their parents are Judith and Frederick Blenkinsop.
3. Frederick and Judith Blenkinsop created two discretionary trusts the Blenkinsop Family Trust and the Blenkinsop Family Trust No 2 (the Family Trusts). The Family Trusts were administered by corporate trustees, Blenkinsop Nominees Pty Ltd and Silverglade Pty Ltd (the Corporate Trustees). Following the death of Frederick Blenkinsop, Judith Blenkinsop appointed her children as directors of the Corporate Trustees.
4. Disputes developed between family members concerning the affairs of the Family Trusts, the Corporate Trustees and related matters. The disputes have been litigated in the State Administrative Tribunal, the Fair Work Commission and this court. Eventually, the Corporate Trustees were replaced with an independent trustee, Mr Herbert.
5. It appears that the appellant and Scott Blenkinsop were the principal protagonists in the family disputes. However, it was apparent from the evidence in the trial that there was also considerable animosity between the appellant and Ms Holland (although, an observation made by the magistrate to that effect is the subject of grounds 189 - 196).
6. The IVRO provided that, except as set out in part B, the appellant was not to communicate or attempt to communicate with Ms Holland by any means whatsoever, including SMS or text messages or other electronic means. Part B of the order provided that the appellant would not be in breach of the order if he:

(a) communicated with Ms Holland through a legal practitioner acting for him; or

(b) participated in and attended court events in proceedings in which Ms Holland and he were parties or witnesses.

1. Ms Holland alleged that on 13 April 2015 she received an email sent by the appellant (the First Email).[2] The email stated it was from 'ross B'; that it was sent at 2.52 pm on 13 April 2015 and was addressed to Chris Bailey (a lawyer acting for Judith Blenkinsop) and the associate to Allanson J, with copies ('Cc') to Kerrine and Scott Blenkinsop, Ms Holland, Ms Jakovich and Paul Donovan (a lawyer acting for Ms Thurtell). The email message stated:

Dear Chris

As Kim Scott and Tracey are no longer directors is there any point including them as parties to the action?

Regards

Ross

1. Ms Holland also alleged she received another email sent by the appellant on 21 April 2015 (the Second Email). That allegation was the subject of the further charge (the Second Charge).
2. The magistrate was satisfied at the conclusion of the prosecution case that the appellant had no case to answer on the Second Charge. The Second Email incorporated an email message from the appellant to Scott Blenkinsop and Ms Holland. However, his Honour found the Second Email had been sent to Ms Holland by her lawyer and accordingly, the appellant had not contravened the IVRO.
3. The prosecution called two witnesses: Ms Holland and the respondent, Senior Constable Wilson. The appellant elected to give evidence. He also called his partner, Ms Ross, as a witness.
4. The principal factual issues to be determined in the trial were whether the appellant had sent the First Email and whether he had breached the IVRO by sending the Second Email. The evidence in chief given by Ms Holland and Senior Constable Wilson was short. Nevertheless, the trial occupied five hearing days.
5. It is not necessary to provide a narrative account of the evidence presented in the trial. The evidence relevant to certain grounds of appeal is further identified below.
6. The appellant did not admit sending the First Email. He made a number of submissions as to why the prosecution had failed to establish his guilt beyond a reasonable doubt. The magistrate summarised those submissions in his Reasons for Decision (Reasons) as follows:

(1) the prosecution had failed to prove the appellant had sent the First Email;

(2) alternatively, the prosecution had not excluded the possibility the First Email was sent independently of the exercise of the appellant's will or had otherwise been sent by accident or mistake;

(3) if he had communicated with Ms Holland, the appellant had done so 'unwittingly and as a result of entrapment and/or other improper conduct';

(4) the appellant was protected from criminal liability as he qualified for whistleblower protection under pt 9.4AAA of the Corporations Act 2001 (Cth);

(5) the IVRO was invalid as the court that made the order was not validly constituted and therefore, lacked jurisdiction;

(6) the prosecution was invalid as the prosecution notice did not comply with the requirements of s 23 of the Criminal Procedure Act 2004 (WA) (CPA);

(7) the prosecution was not valid as the First Charge was dropped on 20 May 2016;

(8) the First Charge was invalid as it did not comply with the International Covenant on Civil and Political Rights (1976) and the Universal Declaration of Human Rights (1948), being treaties to which Australia is a signatory;

(9) the First Charge was invalid as the RO Act is inconsistent with what the appellant referred to as 'the Discrimination Act' in his written submissions and which the magistrate referred to as the 'Discrimination Act 1991 (Cth)', but which I assume was intended to be a reference to the Sex Discrimination Act 1984 (Cth) having regard to the submissions that were made by the appellant;

(10) the prosecution ought to have been stayed on the ground that it was an abuse of process as it was brought for an improper purpose and/or because of undue delay and/or because of a defect in the prosecution notices.

1. The magistrate made findings about the credibility of Ms Holland, Senior Constable Wilson, the appellant and Ms Ross. The magistrate accepted that, at times, Ms Holland was inconsistent and vague when answering questions put to her by the appellant, particularly about familial and trust matters, and there were occasions when she failed to recall specific details about those matters. However, her evidence had to be viewed against the background of 'vigorous and sustained crossexamination' by the appellant and the fact that much of his crossexamination concerned matters that were collateral to the issues to be determined. His Honour found Ms Holland was a truthful and reliable witness:

I have no reason to disbelieve or reject her evidence on the critical issue of having received an email, apparently from the [appellant] on 13 April 2015. Indeed in that regard I believe her.[3]

Having made those findings, the magistrate rejected a submission that the First Email was a concoction.

1. Senior Constable Wilson gave evidence that he spoke to the appellant about the alleged breach of the IVRO on 18 April 2015. He stated that, after being cautioned, the appellant said he had accidently sent an email to his solicitor but had immediately retracted it. The appellant disputed he made that statement to Senior Constable Wilson and it was not part of the prosecution case that the First Email had been sent to the appellant's solicitor.[4] Nevertheless, the magistrate assumed the evidence was relied on as an admission against interest. His Honour concluded he was not prepared to rely on the evidence as it was disputed and was not recorded 'in any formal way and had not been adopted'. The magistrate otherwise rejected a number of submissions made by the appellant concerning the conduct of Senior Constable Wilson.
2. The magistrate observed that much of the appellant's evidence was directed to collateral issues 'only tangentially relevant to the matters in issue'. There was no particular reason to prefer the appellant's evidence to that of Ms Holland and much of the appellant's evidence was selfserving and 'not particularly pertinent to the critical issues'.[5]
3. His Honour further observed:

On the critical issue of whether he sent the email on 13 April 2015 [the appellant] did not give any detailed evidence of his circumstances and/or movements at the time that the email was allegedly sent. Rather than advance evidence of his own conduct at the time, he introduced a number of exculpatory theories lacking in detail as to time, place and circumstances. I did not find such to be particularly useful.[6]

1. The magistrate accepted that Ms Ross was a truthful witness but 'her evidence as to time, place and circumstance on the relevant day was, however, quite vague'. His Honour considered Ms Ross' evidence was 'limited in value' and 'at best simply supports various speculative theories advanced by the [appellant]'.[7]
2. The magistrate concluded that Ms Holland had received the First Email - she stated she had received the email; the email was sent to her email account; and the email identified her as a recipient.[8]
3. The magistrate further concluded that the First Email had been prepared by the appellant.[9] It was signed 'regards Ross', which was consistent with how he had signed off on other business related emails;[10] the email was sent in response to an earlier email from the lawyer acting for the appellant's mother; the email concerned the dispute between family members over the Family Trusts and it expressed the view that Ms Holland was not a director of the Corporate Trustees, a belief the appellant, in particular, held.
4. The remaining and principal issue the magistrate was required to determine was whether the First Email had been sent by the appellant. The appellant contended that the prosecution could not exclude beyond a reasonable doubt that the email was sent by Ms Ross waking the computer by pressing buttons on the keyboard or moving the mouse or by placing books on top of the keyboard when cleaning; or by a computer virus; or as the result of an electrical fault which interfered with the operation of the computer and caused it to send the email without human intervention.
5. As to those possibilities, the magistrate found:

(a) Ms Ross had no recollection of touching the computer on the date on which the First Email had been sent or placing items on the keyboard and consequently, there was no 'cogent and acceptable evidence' from which it could be concluded Ms Ross had interacted with the computer to cause the email to be sent. The suggestion that she may have done so was 'entirely speculative'.[11]

(b) The appellant claimed relevant expertise as he had a degree in electronics engineering and had worked on computers for many years. However, the magistrate considered the appellant's evidence did not address particular knowledge of the technical workings of computer viruses. Further, the appellant's evidence 'was generalised and did not go beyond issues of common knowledge'.[12]

(c) The appellant's evidence did not indicate whether his home computer had a virus on 13 April 2015 or, if it did have a virus, the evidence did not establish the nature of the virus and whether it could have caused the First Email to be transmitted without human intervention.

(d) The appellant gave evidence that a heater and his computer operated off the same power source and the heater had a faulty connection. The appellant claimed arcing may have caused the First Email to have been sent. The magistrate accepted the appellant's evidence, and that of Ms Ross, that the heater sometimes caused the power to come on despite being turned off. However, there was no evidence from which it could be concluded that the heater had been turned on and had caused an electrical arc on 13 April 2015. Further, there was no expert evidence as to the effects of arcing on the operation of the appellant's computer and in particular, its email program.

1. The magistrate concluded that the evidence to support the appellant's contention that the email was not sent as a result of a willed act by him 'was so speculative that [it] was incapable of forming a proper foundation for the defence' so 'the presumption of voluntariness had not been in any way displaced and the prosecution have disproven the possibility beyond a reasonable doubt.'[13]
2. The appellant also suggested he may have accidently sent the First Email (for the purpose of s 23B of the Criminal Code) by pressing on the keys of the keyboard or otherwise manipulating the mouse without intending the email be sent. However, the evidence established that sending an email required 'specific controlled actions such as manipulating the mouse to facilitate the send' or by simultaneously pressing the 'control' and 's' keys on the keyboard.[14] The magistrate concluded the appellant had intentionally sent the email given those physical requirements.
3. His Honour further found that:

(a) any belief the appellant may have held that Ms Holland's name did not appear in the address box for the First Email was not a reasonable belief and accordingly, the prosecution had negatived the 'defence' provided by s 24 of the Criminal Code;[15]

(b) the First Email did not refer to any alleged contravention of the Corporations Act so the sending of the email did not satisfy the requirement for whistleblower protection prescribed by s 1317AA(1) of the Corporations Act;[16]

(c) the prosecution notice was validly lodged having regard to the Criminal Procedure Regulations 2005 (WA) (CP Regulations), the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA) (Electronic Processes Facilitation Act) and the fact that the prosecutor produced a signed copy of the prosecution notice at the trial;[17]

(d) variations between the prosecution notice and the form prescribed by the CP Regulations were not material and did not invalidate the notice;[18]

(e) the amendments that were allowed to the prosecution notice did not mean a fresh prosecution had been commenced;[19]

(f) the fact that there were no documents on the court file relating to the constitution of the court that made the IVRO did not mean there had been a failure to comply with the Magistrates Court Regulations 2005 (WA) (MC Regulations) and the presumption of validity created by s 34 of the Magistrates Court Act 2004 (MC Act) had not been rebutted;[20]

(g) there is no defence of entrapment recognised in Australian Law and there was no evidence that the IVRO had been improperly obtained;[21]

(h) the international instruments to which the appellant referred did not form part of the domestic law of Western Australia in a manner relevant to the determination of the First Charge;[22]

(i) there was no relevant inconsistency for the purpose of s 109 of the Constitution between the provisions of the RO Act and the 'Discrimination Act 1991';[23]

(j) there was no evidence to support the allegation that the prosecution had been commenced for an improper purpose.[24]

1. Section 9 of the Criminal Appeals Act provides that leave of the court is required for each proposed ground of appeal. The court must not grant leave unless it is satisfied the proposed ground has a reasonable prospect of success. In Samuels v The State of Western Australia[25] the Court of Appeal stated:

The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.[26]

1. There are 'natural limitations' on an appellate court reviewing findings of fact from the record:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share ... Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[27]

1. Accordingly, a finding of fact based on the credibility of a witness may only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrate the finding was erroneous or where it is concluded the finding was glaringly improbable or contrary to compelling inferences.[28] A credibility based finding may also be set aside where the primary decision maker failed to use or 'palpably misused' the advantage of seeing the witnesses give their evidence.
2. However, a distinction must be drawn between facts found on the basis of an assessment of a witness's credibility and inferences drawn from facts that were undisputed or found by the trial judge. The distinction was explained by Kirby J in CSR Ltd v Della Maddalena:

Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.[29]

The statutory framework for the offence and its prosecution The RO Act

1. The RO Act, as enacted at the time the IVRO was granted, provided that a violence restraining order could be made if the court was satisfied the respondent had committed, and was likely again to commit, an act of abuse against the person seeking protection or a person seeking protection reasonably feared the respondent would commit an act of abuse: s 11A RO Act. The term 'act of abuse' was defined to mean an act of family and domestic violence or an act of personal violence. Section 6 of the Act further defined the terms 'act of family and domestic violence' and 'act of personal violence'. The definitions included behaving in a manner that was intimidating, offensive or emotionally abusive towards the person seeking protection or pursuing the person with intent to intimidate or acting in a manner that could reasonably be expected to intimidate, and which did, in fact, intimidate the person. An act of abuse also included threatening to behave in that way. Section 11A has been subsequently amended.
2. Section 12(1) of the RO Act (which has also been amended since the IVRO was made) provided that when considering whether to make a violence restraining order and the terms of the order the court was to have regard to various specified considerations, including the need to ensure that the person seeking to be protected is protected from acts of abuse and the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will be subjected to an act of abuse. Section 12(2) stipulated that the court was to have regard to those and certain other considerations as being of primary importance.
3. An application for a violence restraining order is made under s 25 of the RO Act to the Magistrates Court. The applicant may elect to have the first hearing of the application held in the absence of the respondent or proceed directly to a defended hearing. Where the applicant elects to have the first hearing held in the absence of the respondent, the registrar of the Magistrates Court is to fix a hearing for that purpose pursuant to s 26.
4. The first hearing is in closed court where the applicant elects to have the hearing held in the absence of the respondent. The applicant may provide evidence by affidavit in support of the application and the court must accept the affidavit in support of the matters alleged in the application and may determine the application on that evidence. At the hearing of the application, the court may make a violence restraining order which, if it is made for a period more than 72 hours, takes effect as an interim order to which pt 2A, div 4 of the RO Act applies.
5. Section 11 RO Act provides that a violence restraining order is to specify the name of the person for whose benefit the order is made and the name of the person on whose lawful activities behaviour restraints are imposed. The latter person is referred to in the RO Act as the person bound by the order.
6. Section 31 RO Act (which forms part of div 4) provides that the respondent to an interim order must complete his or her endorsement copy of the order and return it to the registrar of the Magistrates Court within 21 days of being served with the order. Section 32 provides that an interim order will become a final order if the respondent does not object or does not return the endorsement copy. The section also creates a procedure for setting aside a final order. Section 33 allows a respondent to endorse a copy of the interim order by indicating that he or she objects to the interim order becoming final. The section then provides for a hearing of the objection.
7. Section 61(1) provides that a person who is bound by a violence restraining order and who breaches the order commits an offence. The maximum penalty for the offence is a fine of $6,000 or imprisonment for 2 years or both.
8. Section 62(1) RO Act, at the time that the IVRO was made, provided that:

It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was -

(a) using a process of family dispute resolution, as defined in the Family Court Act 1997; or

(b) instructing, or acting through, a legal practitioner or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972, or using conciliation, mediation or another form of consensual dispute resolution provided by a legal practitioner; or

(c) acting in accordance with an action taken by a person or authority under a child welfare law, within the meaning of section 50B(4); or

(d) acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way.

1. The section was amended in 2016 to add a new paragraph (ca) that provided a defence where a person bound by a restraining order attended a court hearing in proceedings under the RO Act or any other written law. For obvious reasons, the appellant did not rely on any of the defences created by s 62.
2. Section 64 of the RO Act confers a right of appeal on a person aggrieved by the decision of the court to, among other things, dismiss an application for the violence restraining order or to make, vary or cancel a final order or to refuse to make, vary or cancel a final order.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.

(1) This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.

(2) A person is not criminally responsible for an event which occurs by accident.

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

1. The IVRO was made by two justices of the peace. Section 7 MC Act provides that the court may be constituted by two or more justices of the peace in circumstances prescribed by the regulations or another law.
2. Regulation 4 of the MC Regulations states:

(1) A JP must not constitute a metropolitan court, either alone or with another JP, unless he or she has been requested to do so by -

(a) a registrar; or

(b) a deputy registrar who has been directed by a magistrate or a registrar to make the request.

(2) A registrar must not request a JP to constitute a metropolitan court, and a registrar must not direct a deputy registrar to make such a request, unless -

(a) a magistrate has requested that the court be constituted by JPs; or

(b) it is not practicable for a magistrate to constitute the court at the time when and the place where the court has to sit.

1. Regulation 5 provides that two justices of the peace alone may deal with an application under the RO Act for a violence restraining order at a hearing in the absence of the respondent fixed under s 26(2) of the Act.
2. Section 32(1) of the MC Act provides that a court order takes effect according to its wording. Section 34(1) further provides that it is presumed in any case dealt with by the Court that the Court was constituted according to law and had jurisdiction to deal with the case. Section 34(7) states that those presumptions apply in the absence of proof to the contrary.

1. Section 21(2) CPA provides that a prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed. The prosecution is to be commenced by a prosecution notice. Section 23 states:

(1) Schedule 1 has effect in relation to prosecution notices and charges in them.

(2) A prosecution notice must -

(a) be in writing in a prescribed form; and

(b) comply with Schedule 1 Division 2; and

(c) contain any information prescribed; and

(d) be signed in accordance with subsection (3) and, if necessary, subsection (4).

(a) if the prosecution is being commenced by an authorised investigator, either -

(i) be signed by the investigator alone; or

(ii) be signed by the investigator in the presence of either a JP or a prescribed court officer;

(b) in any other case - be signed by the person who is commencing the prosecution in the presence of either a JP or a prescribed court officer.

(4) If a prosecution notice is signed in the presence of a JP or a prescribed court officer, the JP or officer must also sign the notice.

1. Clause 5 of sch 1 div 2 CPA provides that a charge in a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must:

(b) identify the written law and the provision of the law that creates the offence;

(c) identify with reasonable clarity the date when the offence was committed and where the offence was committed;

(d) if the offence is against a person, identify the person concerned.

1. Clause 5(2) further provides that for the purposes of cl 5(1), it is sufficient to describe an offence in the words of the written law that creates it; a charge is not defective only because an element of the offence is not stated and it is not necessary to allege any matter or particulars as to a person or thing that need not be proved or the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.
2. Regulation 8 of the CP Regulations provides that a prosecution notice 'must be in the form of Form 3'. The regulation also specifies how a prosecution notice is to refer to more than one offence where there are multiple charges. However, s 74 of the Interpretation Act 1984 (WA) provides that 'where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used'.
3. Section 132 CPA concerns amending a charge. The section states:

(1) The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.

(2) The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.

(3) A court, on the application of the prosecutor, may amend a charge.

(4) Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.

...

(8) If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.

...

(10) A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -

(a) the amendment is material to the merits of the case; and

(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and

(c) an adjournment would not overcome the prejudice.

1. Section 176 CPA provides that an order made by a court has effect according to its wording. Section 178 CPA states:

(1) In this section, unless the contrary intention appears -

court document means a prosecution notice, indictment, summons, court hearing notice, section 155 notice, witness summons, warrant, or an order or other document issued by a court in a case.

(2) Any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address.

(3) If a court document is defective in substance or form, the court, on an application by a party or on its own initiative -

(a) must order that the document be corrected if the defect is not material to the merits of the case;

(b) may order that the document be corrected in any other case.

(4) If a court makes an order under this section -

(a) the court document must be amended accordingly by the court or some person ordered to do so by the court; and

(b) each party is entitled to a copy of the amended court document; and

(c) the court may adjourn the case.

(5) This section is in addition to and does not affect the operation of section 132.

1. Regulations 4A and 4B CP Regulations provides that certain documents, including the forms contained in sch 1 to the regulations, may be completed and lodged electronically. Electronic completion involves an approved user entering the information required to complete the form in the court's electronic system.

1. The effect of ss 6 8 of the Electronic Processes Facilitation Act is that a document such as a prosecution notice may be prepared and lodged in an electronic form. Section 10 provides that if a provision of an Act requires a document to be signed, that requirement is taken to be satisfied if the document is authenticated in accordance with any regulations or rules of the court.
2. Rule 12 of the Magistrates Court (General) Rules 2005 (MC General Rules) provides for lodging a document electronically on the Magistrates Court's website. The rule further provides that a document that must be signed by or on behalf of a person cannot be lodged electronically under the rule unless the document is lodged by the person who signed it. Further, a document lodged electronically that is signed by the person by whom it is lodged is authenticated for the purposes of the Electronic Processes Facilitation Act if the court's website records the identity of the person who lodged the document and the name of the person who signed the document is stated in the electronic version of the document at any place where the person's signature is required.

1. As mentioned, the grounds of appeal have been grouped into categories of alleged error. The categories are set out below in the order in which they have been dealt with in the reasons that follow. The order approximates the course of the prosecution rather than the order in which the grounds have been pleaded in the appellant's notice of appeal:

(b) the prosecution notice - grounds 55; 59; 111 - 115; 165 and 166; 420 - 422; 424 - 427; 480;

(c) the constitution of the court making the IVRO grounds 135 140; 428 - 435;

(d) the appellant as a whistleblower grounds 37 - 40; 104; 416 418; 436 - 441;

(f) delay, adjournments and 'oppression' - grounds 32 - 36; 64 - 71; 178 - 185; 224; 231 - 241; 340 - 342; 456 - 460; 464 and 465;

(g) the conduct of the prosecution: misrepresentation by the prosecutor; improper purpose; 'fraud on the court'; failure to act as a model litigant; and abuse of process - grounds 29 and 30; 162 - 164; 436 - 441; 448 - 455; 461 - 463; 479;

(h) the elements of the offence and burden of proof grounds 13 16; 43 and 44; 46 and 47; 131 and 132; 277 282 (dealing with whether the prosecution was required to prove a mental element); 147; 484 and 485 (concerning the burden of proof);

(i) the First Email - grounds 22 - 24; 26 - 28; 96 - 98; 99 - 102; 108 110; 141 - 151; 156 - 161; 173 - 175; 186 - 188; 256 and 257; 268; 291 and 292; 296 and 297; 326 - 328; 353 and 354; 476;

(j) the prosecution evidence and credibility - grounds 19 21; 72 82; 90 - 95; 189 - 212; 298 - 304; 211 and 212; 293 - 295; 303 and 304; 311; 423; 486 - 491;

(k) the evidence of the appellant and Ms Ross and their credibility grounds 83 - 89; 170 - 172; 227- 237; 305 - 310;

(l) expert evidence - grounds 116 - 130; 252 - 255; 258 - 261; 348 352; 355 - 363; 367 - 373;

(m) finding that the appellant sent the First Email grounds 99 102; 141 - 151; 187 and 188; 213 - 226; 312 - 340; 374 - 381; 477 and 478;

(n) defences, excuses and related issues concerning the finding that the appellant sent the First Email - grounds 11 - 18; 43 - 45; 48 and 49; 131; 133 and 134; 167 - 169; 242 - 255; 262 - 267; 269 276; 284; 339 - 354; 364 - 373; 382 - 415; 466 - 469;

(o) natural justice - grounds 9 and 10; 31; 50 - 59; 103 - 107; 239 244; 419; 482 and 483;

(p) bias - grounds 25; 31; 60 - 63; 164; 471 - 475; 480;

1. In considering the grounds of appeal and the Reasons, I have:

(a) read the trial transcript and inspected the exhibits;

(b) asked for and been provided with a copy of the parties' written closing submissions in the trial - the submissions did not form part of the materials provided by either the Magistrates Court or, initially, the parties in the appeal;

(d) reviewed the parties' written and oral submissions in the appeal.

Issues not considered s 78B notices and possible collateral attacks

1. The appellant raised several issues in the trial which he characterised as 'jurisdictional issues' and which concerned not only the jurisdiction of the court to hear and determine the charges, but also the jurisdiction of the court that granted the IVRO. Further, the challenge to the jurisdiction of the latter court was not confined to submissions about the court's jurisdiction 'in the strict sense'[30] but extended to matters such as whether Ms Holland's application for the IVRO was an abuse of process and whether the RO Act was inconsistent with Commonwealth legislation or international treaties to which Australia is a signatory.
2. The magistrate apparently assumed it was open to the appellant to raise the validity of the IVRO and arguments about the circumstances in which the order was made as part of the prosecution of the charges. The way in which the prosecution was conducted most likely informed his Honour's approach. It is clear from the trial transcript that his Honour was acutely aware of the appellant's status as a self-represented litigant; his Honour was anxious not to curtail any arguments put by the appellant. Further, the prosecutor did not object to submissions made by the appellant on the ground that they raised matters that were irrelevant to, or could not be considered as part of, the determination of the charges. Moreover, the appellant's arguments were generally collapsed into a single, compendious submission that, for example, Ms Holland was motivated by an improper purpose in seeking the IVRO and in making a complaint to the police and the respondent had joined in the alleged abuse by bringing the First and Second Charges (the appellant's submissions in this respect did not draw a clear distinction between Ms Holland, the respondent and the prosecutor indeed, a number of the appellant's submissions in the trial and the appeal simply referred to 'the State').
3. As a consequence of the approach taken, the magistrate did not consider whether any of the 'jurisdictional issues' raised by the appellant constituted an impermissible collateral attack on the IVRO or whether it was necessary for notices to be issued under s 78B of the Judiciary Act 1903 (Cth). In the appeal, the respondent again did not raise as an issue whether any of the appellant's grounds constituted a collateral attack on the IVRO and neither party referred to the possibility that s 78B notices might be required.
4. Having regard to the approach adopted by the parties, I do not propose to consider, in substance, those issues. I will make some further, but limited, observations to ensure that the parties fully understand why they have been noted but not further considered.
5. As for s 78B notices, the appellant alleged that there is s 109 of the Constitution inconsistency between the RO Act and the Sex Discrimination Act.[31] The relevant ground is dealt with below, but there is no arguable basis for the allegation of inconsistency. Accordingly, I did not direct that notices be given under s 78B: see O'Connell v The State of Western Australia[32] (a matter that is trivial, unarguable, frivolous or vexatious is not a matter arising under the Constitution or involving its interpretation) and Shaw v Jim McGinty in his capacity as Attorney General[33] (if the alleged 'constitutional issue' is unarguable or vexatious, there is in truth no constitutional issue at all).
6. The decision of Martino J in Bindai v Armstrong[34] indicates that there may be cases in which an accused person can be acquitted of a charge under s 61(1) RO Act by establishing that the relevant restraining order was not validly made that is, the order was made by a court that lacked jurisdiction because an essential precondition to its exercise had not been satisfied. In such a case, the order has no legal effect and, accordingly, an allegation of breach must fail. However, three points should be made about his Honour's decision in Bindai v Armstrong.
7. First, as his Honour recognised, there is a distinction between a statutory provision that makes the exercise of jurisdiction conditional on the actual existence of a fact (if the fact does not actually exist the court lacks jurisdiction) and a provision that makes the exercise of jurisdiction conditional on the decisionmaker forming an opinion about the existence of a fact (the court has jurisdiction over the subject matter so long as the decision-maker has formed the required opinion and that is so even if the fact does not actually exist).
8. Second, many statutory provisions that affect the exercise of a court's jurisdiction do not, as a matter of construction, impose requirements that are essential to the existence of jurisdiction. The provisions condition the exercise of the court's powers rather than the existence of jurisdiction in the strict sense.
9. Third, a collateral attack in proceedings on an order made by a court in earlier proceedings may, in some instances, be impermissible. The appellant in R v Wicks[35] was prosecuted for failing to comply with a notice issued by a local authority requiring remedial work to a building. He sought to defend the charge by alleging that the authority had acted in bad faith and had been motivated by immaterial considerations in issuing the notice. The trial judge held that it was not open to the appellant to question the propriety of the decision to issue the notice in the criminal proceedings. That decision was upheld by the Court of Appeal and the House of Lords. It was said that whether a defendant, charged with failing to comply with an order made under statutory powers, was entitled to defend a criminal charge by challenging the lawfulness of the order depended on the construction of the statute under which the prosecution was brought and whether the statute indicated which forum was appropriate to challenge the validity of the order. A statute might require the prosecution to prove that the order was not open to challenge on any ground in prosecuting a breach or provide that it was a defence to show that the order was open to challenge. On the other hand, the statute might merely require that the order appear formally valid and had not been set aside or quashed. In that case, the making of the order could not be collaterally attacked in the prosecution on grounds such as that the order had been made in bad faith or for an improper purpose.
10. The question whether it is open to challenge an earlier order in subsequent proceedings was also discussed in Director of Housing v Sudi[36] and Krulow v Glamorgan Spring Bay Council.[37] In this case, there may have been an issue as to whether the appellant was entitled to defend the First Charge on the grounds such as that the IVRO had been obtained for an improper purpose or whether allegations of that kind could only be raised in proceedings under s 33 RO Act, with a right of appeal under s 64. However, as has been indicated, it is not proposed to further consider the issue having regard to the way in which the parties conducted the prosecution and the appeal. I would only add that there are policy considerations that may bear upon the question of statutory construction that is involved - at least where, as in this case, what is sought to be attacked is an order of the court. As a matter of policy, court orders should be obeyed unless and until set aside. Further, there is a public interest in finality.

1. At trial, the appellant submitted the RO Act did not comply with the requirements of the International Covenant on Civil and Political Rights (1976) and the Universal Declaration of Human Rights (1948) and accordingly, the Act was invalid and the charges against him could not be maintained. The magistrate rejected that submission, observing that 'those international instruments do not form part of the domestic law of Western Australia in a manner that is relevant to the determination of this charge'.[38]
2. His Honour was right to reject the appellant's submission on that basis. The fact that Australia is a signatory to various international agreements may be relevant to the interpretation of legislation under the 'Teoh' principle:

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.[39]

1. Some doubt has been expressed about the basis for that principle[40] but, in any event, the principle does not provide a basis for contending that legislation such as the RO Act is 'unconstitutional' and 'invalid'.
2. The appellant further contended that the RO Act 'discriminates based on gender as the vast majority of offenders are male' so that the Act is 'unconstitutional and invalid as it is an affront to State and Federal discrimination Acts and is not for good government'.[41] The magistrate observed that there is no relevant inconsistency for the purposes of s 109 of the Constitution between the RO Act and what he referred to as the 'Discrimination Act 1991' (but which I have taken to mean the Sex Discrimination Act as there is no Commonwealth Discrimination Act).
3. There is no inconsistency between the RO Act and the Sex Discrimination Act. Each Act covers different subject matters and give effect to particular, and different, policy and social concerns.
4. Further, there is no question of interpretation of the RO Act that could require consideration of the Equal Opportunity Act 1984 (WA). The Acts cover different subject matters and there is no inconsistency between the two Acts that would require reconciliation by a process of statutory interpretation.
5. It is necessary to make two further comments. First, there can be no doubt that the RO Act was within the legislative power conferred by s 2 of the Constitution Act 1889 (WA) on State Parliament. Second, if, as the appellant asserts, the majority of respondents to applications under the RO Act are male (and it must be remembered that the Act provides for a variety of orders and not just violence restraining orders), that is a consequence of social, cultural and related factors and not some form of discrimination that has been given legislative sanction.
6. There is no merit in the allegations made in grounds 442 - 447 and 481.

(a) the prosecution notice did not comply with the requirements of s 23 CPA as it was not signed and was not 'on the right form' and accordingly, the notice, the charge and the prosecution were invalid - linked to those allegations was a further complaint that the magistrate erred in permitting the prosecutor to produce a signed copy of the notice at the commencement of the trial;[42]

(b) the magistrate erred by concluding that the Interpretation Act 'took precedence' over the CPA;[43]

(c) the magistrate erred in permitting the respondent to amend the prosecution notice;[44]

(d) the effect of amending the prosecution notice was that the prosecution was commenced outside the 12 month period stipulated by s 21(2) CPA;[45]

(e) the decision of the Court of Appeal in Calandra v Civil Aviation Safety Authority[46] was 'not good law' as it leads to absurd results and the magistrate erred in applying the decision.[47]

1. The respondent's application to amend the prosecution notice was made at the commencement of the trial. The notice originally alleged that the appellant 'having been personally served with a violence restraining order ... breached that order by emailing the protected person'.[48] Accordingly, the effect of the amendment proposed and allowed was to delete the words 'emailing the protected person' and substituting the words 'communicating with the person protected'.
2. The appellant opposed the application to amend on the grounds that he was taken by surprise; he did not know the case he was required to meet as a result of the amendment; and he did not know the effect the amendment might have on his legal position, particularly on submissions about 'jurisdictional issues' that he intended to make.[49]
3. The magistrate allowed the application to amend and offered to adjourn the trial to enable the appellant to consider the effect of the amendment. The appellant declined the offer - although, at the time that the offer was made the appellant was primarily concerned with arguing that the amendment should not be permitted given the time that had elapsed since the prosecution notice had been lodged. In the event, the magistrate considered that the prosecution had to be adjourned pursuant to s 132(8) CPA once the amendment was allowed.[50] No doubt his Honour reached that conclusion in light of the appellant's submissions concerning the possible effect of the amendments.
4. As the prosecutor correctly observed when applying for the amendment, the actual way in which the appellant was alleged to have breached the IVRO was a particular of the charge. The offence was sufficiently described for the purpose of cl 5 of sch 1 div 2 of the CPA without specifying the act that constituted the alleged breach - the 'means' by which the offence was allegedly committed. Further:

(a) the amendment did not alter the prosecution case - the breach alleged at trial was sending an email to Ms Holland on the date particularised in the charge and consequently, the appellant was not prejudiced by the amendment;

(b) the effect of the amendment was not to allege a new offence for the purpose of s 21(2) CPA - the amendment merely specified the alleged breach by reference to the terms of the IVRO and the prosecution of the charge against the appellant was not time barred.

1. As mentioned, the appellant contended the prosecution notice did not comply with s 23 CPA as the notice was on the 'wrong form' and was not signed. That submission was made by reference to the prosecution notices tendered as exhibit 17 and exhibit 18, which were the prosecution notices the appellant stated had been served on him. The layout of those prosecution notices was a little different to the layout shown in Form 3, sch 1 to the CP Regulations. However, contrary to the appellant's allegation in ground 421, the prosecution notices served on the appellant contained all the information specified by Form 3 and accordingly, the notices were 'in the form of Form 3' in every substantive respect. The prosecution notices complied with the requirements of reg 8 of the CP Regulations; indeed, the prosecution notices served on the appellant were in a form that is commonly used in the Magistrates Court. The notices were not invalid having regard to their contents.
2. The magistrate did not find that the Interpretation Act 'took precedence' over the CPA. In any event, the CPA and CP Regulations prescribe the content and form of a prosecution notice. Neither the Act nor the Regulations specify the consequences of a departure from what is prescribed, whereas s 74 of the Interpretation Act provides generally for the consequences for a departure from a prescribed form. The magistrate did not make an error in dealing with the appellant's submissions that the prosecution notice was invalid.
3. It is apparent from comments made by the magistrate that the prosecution notice had been electronically completed and lodged as permitted by the CP Regulations, read with the Electronic Process Facilitation Act. The prosecution notices served on the appellant reflected that fact. Accordingly, the notices did not bear the respondent's signature but rather contained a statement as to the date on which the notice was signed and the name of the respondent as the person who had signed the notices. The notices accorded with the Electronic Process Facilitation Act and the MC General Rules. The signature of the respondent was authenticated by compliance with the Rules.
4. Further, the prosecutor produced at trial the signed prosecution notice and the magistrate was satisfied that the requirements of s 23 CPA had been met by a combination of Electronic Process Facilitation Act, the CPA Regulations, the MC General Rules and the production of signed prosecution notice by the prosecutor.[51] The magistrate was right to conclude that the requirements of s 23 CPA had been satisfied in that way.
5. Moreover, the magistrate did not err by permitting the prosecutor to produce a signed copy of the notice in response to the appellant's submissions. The signed copy was not 'inadmissible' on the question of the validity of the notices once the appellant had put that matter in issue and having regard to the statutory provisions relating to the electronic filing of documents.[52]
6. Those conclusions are sufficient to dispose of the grounds of appeal concerning the prosecution notice and the amendment of the charge. However, one further matter should be mentioned.
7. The appellant relied on the decision of the New South Wales Court of Criminal Appeal in R v Janceski[53] to contend, in effect, that strict compliance with the requirements of s 23 and cl 5 of sch 1 div 2 of the CPA was a precondition to the exercise of the magistrate's jurisdiction to hear and determine the charges alleged against him. The Court of Criminal Appeal held in that case that a prosecution was null and void as the indictment did not comply with the requirements of Criminal Procedure Act 1986 (NSW). However, as McLure P explained in Russell v The State of Western Australia,[54] there are material differences between the CPA and its New South Wales equivalent. Further, s 132 and s 178 CPA demonstrate a clear and unequivocal statutory intention that a failure to comply with those provisions of sch 1 div 2 concerning indictments does not necessarily invalidate an indictment and deprive a superior court of jurisdiction.[55]
8. Russell v The State of Western Australia was referred to with apparent approval by Martin CJ in Calandra v Civil Aviation Safety Authority in the context of a 'defective' prosecution notice rather than an indictment.[56] In Calandra, a prosecution notice that required signing in the presence of a justice of the peace had been signed in the presence of a justice of the peace appointed in and for the State of New South Wales rather than a justice of the peace in and for the State of Western Australia. Accordingly, the prosecution notice did not strictly comply with the requirements of s 23 CPA and it was contended on appeal that the Magistrates Court lacked jurisdiction to hear and determine the charge on which the appellant had been convicted.
9. The Court of Appeal held that the jurisdiction of the Magistrates Court did not depend on the execution of a valid prosecution notice complying in all respects with the requirements of s 23 CPA. A noncomplying notice could be amended under s 178; indeed, the court is required to correct a document such as a prosecution notice if it is defective but the defect is not material to the merits of the case and the court retains a discretion to correct a defect in any other case. Section 178 is a remedial provision that is intended to prevent defects in originating processes causing criminal proceedings to miscarry. It would be inconsistent with the section to construe the CPA as requiring strict compliance with the requirements of s 23 for a prosecution notice to be valid and the court to have jurisdiction to hear and determine the charge alleged by the notice.
10. The magistrate rightly found that there were no defects in the prosecution notice in this case. However, his Honour would have been required to correct the notice if there had been any defect unless the defect was material to the merits of the case - and even then, the court would have retained a discretion to permit an amendment. Plainly, the 'defects' alleged by the respondent were not material to the merits of the case.
11. Finally, there is no merit in the appellant's submission that the magistrate ought to have refused to follow Calandra. The magistrate was bound to follow what was a unanimous decision of the Court of Appeal, as is this court. There is also no basis for the submission that the decision leads to absurd results.

The constitution of the court granting the IVRO

1. The appellant stated that he had inspected the court file for Ms Holland's application for the IVRO and had been unable to locate any document establishing that a direction had been given under reg 4 of the MC Regulations. He contended the prosecution bore an onus to prove that the IVRO had been validly made and accordingly, it was required to produce proof that a direction had been given under the regulation.
2. There is nothing in the MC Regulations or the MC Act which requires the registrar to create a document recording the matters to which reg 4 and reg 5 refer. Section 26(2) of the RO Act requires the registrar to fix a hearing date and the fixing of that date, and the listing of the application before two justices of the peace, may constitute the request to which reg 4(1) refers. MC Regulation 4(2) permits a registrar to determine that it is not practicable for a magistrate to constitute the court at the time when, and in a place where, the court is to sit to determine an application under s 26 of the RO Act. The MC Regulations do not require the registrar to formally record that determination and it would be most surprising if there was any document recording such a determination apart from the listing of the application before two justices of the peace. The absence of any document recording a determination under reg 4 is not, in my view, 'evidence to the contrary' for the purposes of s 32(7) of the MC Act.[57]
3. Further, the question whether compliance with the MC Regulations conditions the jurisdiction of two justices of peace to hear an application under s 26 of the RO Act is to be determined according to the principles identified in Project Blue Sky Inc v Australian Broadcasting Authority.[58] The question is whether the legislative purpose of the MC Regulations is that a hearing convened without first complying with reg 4 is invalid; that is, whether compliance with reg 4 is intended to be a necessary precondition to the exercise of jurisdiction under reg 5. In my view, that is not the intended effect of reg 4. The regulation is procedural and administrative in nature and a breach would not invalidate the exercise of the power clearly conferred by reg 5 on two justices of the peace. That is especially given the subject matter of the court's jurisdiction - violence restraining orders that will often be granted urgently and in circumstances where there is an immediate apprehended threat of violence or abuse towards the person who seeks protection.
4. There was no evidence that would displace the presumptions provided for by s 32 MC Act and there was merit in the allegations made in grounds 135 - 140 and 428 - 435.

1. The appellant alleged that he was a whistleblower within the meaning and for the purpose of pt 9.4AAA of the Corporations Act 2001 (Cth). That part provides various forms of protection to a discloser where information is disclosed in certain circumstances. In particular, s 1317AA provides (so far as is relevant to the appellant's submissions):

(1) A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

(i) an officer of a company; or

...

(b) the disclosure is made to:

...

(iii) a director, secretary or senior manager of the company;

...

(c) the discloser informs the person to whom the disclosure is made of the discloser's name before making the 25852

(d) the discloser has reasonable grounds to suspect that the information indicates that:

(i) the company has, or may have, contravened a provision of the Corporations legislation; or

(ii) an officer or employee of the company has, or may have, contravened a provision of the Corporations legislation; and

(e) the discloser makes the disclosure in good faith.

(2) A reference in subsection (1) to a person contravening a provision of the Corporations legislation includes a reference to a person committing an offence against, or based on, a provision of this Act.

1. Section 1317AB provides that if a person makes a disclosure which qualifies for protection under pt 9.4AAA, the person is not subject to any civil or criminal liability for making the disclosure. Section 1317AC further states:

(1) A person (the first person) contravenes this subsection if:

(a) the first person engages in conduct; and

(b) the first person's conduct causes any detriment to another person (the second person); and

(c) the first person intends that his or her conduct caused detriment to the second person; and

(d) the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

(2) A person (the first person) contravenes this subsection if:

(a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

(b) the first person:

(i) intends the second person to fear that the threat will be carried out; or

(ii) is reckless as to causing the second person to fear that the threat will be carried out; and

(c) the third person makes the threat because a person:

(i) makes a disclosure that qualifies for protection under this Part; or

(ii) may make a disclosure that would qualify for protection under this Part.

...

Threat

(4) For the purposes of subsection (2), a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

1. Section 1317AE of the Corporations Act creates an offence if (so far as is relevant) where:

(a) a person makes a disclosure of information (the qualifying disclosure) that qualifies for protection under pt 9.4AA;

(b) the qualifying disclosure relates to a contravention or possible contravention of a provision of the Corporations legislation;

(c) the qualifying disclosure was made to a director of the company;

(e) the offender discloses either the information disclosed in the qualifying disclosure or the identity of the person who made the disclosure or information that is likely to led to the identification of that person (the confidential information);

(f) the confidential information is information that the offender obtained directly or indirectly because of the qualifying disclosure; and

(g) the offender is the person to whom the qualifying disclosure was made.

Section 1317AE(2) provides that a disclosure of confidential information is authorised if it is made to ASIC, APRA, a member of the Australian Federal Police or to someone else with the consent of the person who made the qualifying disclosure.

1. The appellant claimed at trial that the prosecution of the charges alleged against him raised a 'jurisdictional issue' as he was a whistleblower under pt 9.4AAA. He stated:

This IVRO arose to give you a little bit of background, the protected person and I were directors on a corporate trustee and the IVRO arose out of the dealings between me and the protected person as directors of that corporate trustee. Under the Corporations Act, a person can be a whistleblower if they report in appropriate behaviour by a director to other directors, and if a person is a whistleblower, then it is actually a criminal offence to for any person to prosecute that whistleblower.[59]

1. The appellant further explained that the IVRO was based 'essentially on a crime' - the crime of 'persecuting' a whistleblower:

So the IVRO has been brought about simply so that the persecution of me goes from personal persecution to courtsanctioned and policesanctioned persecution of me as a whistleblower.

So my argument would be, well, the court does not have jurisdiction because the court is essentially either complicit in that crime or aiding and abetting that crime ... the IVRO is a crime in itself, so how can the Government actually participate in a crime by persecuting me when that continuing persecution is actually a crime against a is a federal offence, and would be on that basis that I would argue that there is no jurisdiction in this court, because basically the whole thing is basically just courtsanction persecution of me as a whistleblower.[60]

1. Later still, the appellant advised the magistrate that he sought an order that the IVRO be set aside:

[I]f I can prove that the dominant purpose, the sole purpose, or one of the purposes of initiating these proceedings against me in the IVRO or in the criminal matter, because my sister had a choice whether she went to the police.

Allegedly she received an email from me, and she had a choice whether she could go to the police or not. She chose to go to the police, and my argument will be she chose to go to the police, not because she was offended by or she thought there was a breach of the thing. She chose to go to the police so that I would have police charges against me and that would further the persecution of me as a whistleblower.[61]

1. The appellant alleged by his grounds of appeal that the IVRO was invalid as it was 'obtained to persecute' him as a whistleblower and not to protect Ms Holland;[62] the First Charge and the prosecution of the charge were 'improper' as they involved 'the State' in persecuting the appellant as a whistleblower[63] and this court could not hear the appeal as 'the State is potentially now complicit in the prosecution of a whistleblower'.[64] The appellant made related allegations to the effect that the IVRO was obtained through a fraud on the court; he was prevented from obtaining evidence that would have established the fraud; the purpose of the IVRO and the First Charge was to 'persecute' the appellant as a whistleblower; he had been trapped by Ms Holland and Scott Blenkinsop for the purpose of persecuting him as a whistleblower; and there should be a defence of entrapment.[65]
2. The magistrate focused in the Reasons on whether the First Email was a protected disclosure under pt 9.4AAA of the Corporations Act. No doubt that focus reflected the appellant's written submission in closing that the First Email was inadmissible as it identified him as a whistleblower:

Under section 9.4AAA of the Corporations Act it is an offence to identify a whistleblower.

As a result of being involved with [Ms Holland] and [Scott Blenkinsop] I have on multiple occasions claimed whistleblower protections.

...

The email dated 13 April 2015 was in relation to a whistleblower event that I had not identified myself in relation to. As such the email dated 13 April 2015 is not admissible as I am a whistleblower and the alleged email identifies me and I am a whistleblower.[66]

1. The appellant did not object to the tender of exhibit 3 which contained the First Email. The appellant only objected to the tender of exhibit 4 on the basis that the document contained an email chain in which he was identified as a whistleblower who had made a qualifying disclosure.[67] Further, the magistrate appreciated that the sanction imposed by s 1317AE (if the section could be applied at all to exclude evidence of an alleged breach of the IVRO) depended on the contents of the First Email and not upon whether the appellant had claimed to be a whistleblower or had made a disclosure for the purpose of pt 9.4AAA at some time in the past.
2. The magistrate was right to hold that the First Email did not indicate that there may have been a contravention of the Corporations Act or that the appellant had reasonable grounds for suspecting a contravention had occurred. Accordingly, there was no 'qualifying disclosure' for the purpose of s 1317AE to the extent that the section might apply. The connection required by s 1317AE between the 'qualifying disclosure' and the 'confidential information' also meant that neither Ms Holland nor any other person could be found to have committed an offence by complaining to the police about the First Email.
3. The magistrate was also right to reject the proposition that the First Email attracted protection under pt 9.4AAA of the Corporations Act. The effect of his Honour's finding was not only that the First Email was inadmissible in evidence but also that Ms Holland could not have committed an offence by complaining to the police about the email.
4. However, it can be seen from the submissions reproduced above that the appellant was also, in substance, alleging that the application for the IVRO, the IVRO itself, Ms Holland's complaint to the police after she had allegedly received the First Email and the making and prosecution of the First Charge were all steps that contravened pt 9.4AAA of the Corporations Act. At trial, the appellant couched his arguments in terms of the court's jurisdiction to hear and determine the First Charge, but he was also, in effect, contending that the charge and its prosecution were an abuse of process - the use of the court for an ulterior and unlawful purpose. The appellant complained in his grounds of appeal that the magistrate misunderstood his closing submissions on the application of pt 9.4AAA to the charge and the prosecution.[68]
5. In fairness to the magistrate, the appellant's written closing submissions ran together arguments concerning the effect of pt 9.4AAA with allegations about Ms Holland's credit and at other points, the submissions simply asserted that the purpose of the IVRO and the prosecution of the First Charge were to 'persecute' the appellant as a whistleblower and also, to prevent him from carrying out his duties as a director of the Corporate Trustees.
6. The appellant's grounds contained, in effect, two allegations. First, the appellant was entitled to whistleblower protection and Ms Holland's application for the IVRO, the order, the complaint about the First Email and the subsequent prosecution all infringed against the protection afforded by pt 9.4AAA of the Corporations Act. That was an allegation that Ms Holland and the respondent contravened s 1317AB and/or s 1317AC - that they subjected the appellant to criminal liability and victimised him for making a protected disclosure.
7. The second allegation was that Ms Holland was motivated by improper purposes in applying for and obtaining the IVRO - purposes that included persecuting the appellant as a whistleblower.
8. In relation to the application for the IVRO and the order itself, the order did not impose a liability on the appellant within the meaning of s 1317AB of the Corporations Act. Rather, the order restrained the appellant from directly communicating with Ms Holland.
9. Similarly, the IVRO did not cause the appellant a detriment within the meaning of s 1317AC. He was not prevented from communicating with Ms Holland (or others) about the affairs of the Family Trusts and the Corporate Trustees or the conduct of the independent trustee or any other aspect of the family dispute; he was permitted to communicate with Ms Holland about those matters through his solicitor (and as the circumstances of the Second Charge indicate, the appellant could, of course, communicate with Ms Holland about those matters through her solicitor). Further, Part B of the IVRO permitted the appellant to attend court hearings and other 'events' relating to the proceedings over the family disputes even if Ms Holland also attended. Moreover, I do not consider that being restrained from generally communicating with a person who does not wish to receive the communication can be characterised as a detriment in any relevant sense - certainly not in the circumstances of this matter.
10. As for Ms Holland's complaint to the police about the First Email, a complaint to an appropriate authority that a person has contravened a court order would not ordinarily constitute a detriment within the meaning of s 1317AB. Further, in this case, the complaint could not be a detriment in any relevant sense when the terms of the IVRO did not constitute a detriment.
11. In relation to the prosecution of the First Charge, the respondent was responsible for commencing and maintaining the prosecution. There was no proper basis for inferring that he had charged and prosecuted the appellant because a disclosure had been made to someone that qualified for protection under pt 9.4AAA of the Corporations Act (assuming a qualifying disclosure had been made). The appellant did not put a proposition to that effect to Senior Constable Wilson in crossexamination. There was no evidence that Senior Constable Wilson knew anything about the appellant having made allegations that the Corporations Act had been contravened or that he claimed to be a whistleblower.
12. Accordingly, Ms Holland's application for the IVRO, the order, the complaint to the police and the prosecution of the First Charge did not contravene s 1317AB or s 1317AC of the Corporations Act. There is also no merit in the associated allegation that the State was 'potentially complicit in the persecution of a whistleblower' or that this court could not hear the appeal.[69]
13. The allegation that the IVRO was obtained for an improper purpose was put on two bases in the trial - that Ms Holland (with Scott Blenkinsop) was seeking to persecute the appellant as a whistleblower and she was endeavouring to prevent him from carrying out his duties as a director of the Corporate Trustees. It was apparent from the trial transcript, and his written closing submissions, that the appellant meant by the allegation he was being persecuted as a whistleblower that he was being punished for having blown the whistle on alleged wrongdoing by Scott Blenkinsop and Ms Holland (he consistently stated that the evidence concerning the family disputes was relevant to Ms Holland's credit and to his claim to be entitled to whistleblower protection). That was, in effect, an allegation that the appellant was being victimised contrary to s 1317AC of the Corporations Act - an allegation that has been dealt with above. In relation to the allegation that he was being persecuted as a whistleblower, Ms Holland's motives in obtaining the IVRO, and subsequently complaining to the police, were irrelevant if her actions did not contravene s 1317AB or s 1317AC (and, of course, that she also satisfied the requirements for obtaining an interim restraining order under the RO Act).
14. The grounds of appeal did not expressly allege an error by the magistrate in failing to find that Ms Holland's purpose in obtaining the IVRO and complaining to the police was to prevent the appellant from carrying out his duties as a director of the Corporate Trustees. Further, the complaint that the magistrate misunderstood, or did not consider the appellant's submissions, only referred to the appellant's claims for whistleblower protection.
15. The conclusions stated above are sufficient to dispose of the grounds of appeal relating to the appellant's claims to whistleblower protection. However, there are some further matters concerning the appellant's allegations about Ms Holland's motives in applying for the IVRO and making the complaint to the police about the First Email that should be briefly mentioned.
16. First and most importantly, the appellant did not expressly put to Ms Holland that she had applied for the IVRO and/or made the complaint to the police because the appellant had disclosed information indicating any of the matters referred to in s 1317AA(1)(b) of the Corporations Act or because she wished to prevent him from carrying out his duties as a director of the Corporate Trustees. Ms Holland was cross-examined on whether she knew that the appellant had claimed to be a whistleblower - she stated that she knew that the appellant had claimed to be a whistleblower but she did not know why he had made that claim.[70] She was also examined on allegations made by the appellant about breaches of the Corporations Act. However, in crossexamination the appellant did not draw the connection made in pt 9.4AAA between the disclosure of particular information and his alleged victimisation contrary to s 1317AC.
17. Second, the appellant alleged that he was entitled to whistleblower protection as a result of two matters:

(a) He alleged that in late 2012 Scott Blenkinsop had refused to provide him with a copy of a voice message that he said contained admissions made by Judith Blenkinsop about fraud and that the refusal to provide a copy of the message constituted a breach of ss 180 184 of the Corporations Act. He stated he had advised 'the board' in an email that he claimed whistleblower protection under pt 9.4AAA of the Corporations Act following that incident.[71]

(b) The appellant further alleged that Scott Blenkinsop had refused to provide the directors of the Corporate Trustees with valuations that had been obtained for the sale of a property in late 2012 (the property was referred to as 'Fred's Corner').[72] He also claimed that Ms Holland and Scott Blenkinsop had signed a sale contract for the property without authorisation.

1. However, Ms Holland gave evidence that she had no knowledge of whether Scott Blenkinsop had not provided 'people' with the contract for the Fred's Corner property or whether he had said that he had a voice message in which Judith Blenkinsop had admitted to fraud.[73] She was not crossexamined about whether she had signed a sale contract for the property without authorisation. She was also not further crossexamined about whether she was aware that Scott Blenkinsop had refused to provide valuations that had been obtained for the property. She was examined on whether she knew that Scott Blenkinsop claimed to have a voice recording in which her mother admitted to fraud, but the crossexamination quickly went off on a tangent. Again, the appellant failed to put to Ms Holland much of the substance of his allegations.
2. Third, the appellant gave evidence at length about disputes between himself and Scott Blenkinsop and Ms Holland. Many of the instances that the appellant described allegedly occurred well before Ms Holland's application for the IVRO. However, the appellant also referred in his evidence to emails exchanged in May 2014, principally between himself and Scott Blenkinsop but also involving Ms Holland, as being relevant to his claims as a whistleblower.[74] The appellant gave lengthy evidence about the email exchanges and disputes between family members in about May 2014. The appellant contended that the evidence established that he was entitled to claim protection as a whistleblower at this time.[75]
3. I infer that the purpose of the evidence was either to suggest that Ms Holland had applied for the IVRO because of the family disputes and the appellant's claims for whistleblower protection or to lay the foundation for the appellant's submission that the IVRO was invalid because he was, in fact and in law, entitled to that protection. The second of those possibilities has been dealt with above. As to the first possibility, the terms of the IVRO were inconsistent with the allegation that Ms Holland, in applying for the IVRO, was motivated by the appellant's claims to whistleblower protection and more broadly, his allegations concerning the affairs of the Family Trusts, the Corporate Trustees and the conduct of herself and Scott Blenkinsop. The IVRO allowed the appellant to communicate with anyone he liked about his allegations of contraventions of the Corporations Act so long as he did not communicate directly with Ms Holland.
4. The same point can be made about an allegation that Ms Holland and Scott Blenkinsop referred to the IVRO to prevent the appellant attending a court hearing - a strategic conference held in this court.[76] The appellant referred in cross-examination of Ms Holland to an email from Scott Blenkinsop. He put to Ms Holland by reference to the email that the IVRO meant he was prevented from attending the conference. However, the appellant was permitted by the IVRO to attend 'court events' in proceedings to which he was a party. The strategic conference was such an event.
5. Fourth, the appellant alleged that Ms Holland obtained the IVRO to prevent him from carrying out his duties as a director of the Corporate Trustees and to enhance Scott Blenkinsop's power in a litigation committee that, it seems, had been established to give instructions on behalf of the Corporate Trustees in proceedings in this court.[77] The appellant referred to emails sent by Scott Blenkinsop in September to November 2014 concerning the committee as evidence of Ms Holland's purpose in applying for the IVRO.[78]
6. However, those allegations were not put to Ms Holland in crossexamination. The allegations were no more than assertions that the appellant made in his evidence based on emails that were sent by Scott Blenkinsop and not Ms Holland, and which were not put to Ms Holland.
7. The appellant's allegations on those matters were linked to his further allegation that Ms Holland had colluded with Scott Blenkinsop to obtain the IVRO - that Scott Blenkinsop was a 'constructive coapplicant'.[79] Ms Holland denied that allegation and the magistrate did not find that Scott Blenkinsop had colluded with Ms Holland to obtain the IVRO. His Honour also correctly observed that the IVRO would not have been invalidated even if Ms Holland had acted in concert with Scott Blenkinsop.[80]
8. There are two final matters concerning Ms Holland's application for the IVRO that should be mentioned. First, the appellant claimed that Scott Blenkinsop and Ms Holland had sought to trap him into breaching the IVRO. He claimed that Ms Holland had changed her address and inferred that this may have been to trap him - although, to make the allegation the appellant referred to emails from Scott Blenkinsop and stated that he did not know whether Ms Holland was aware of the emails.[81] The appellant did not put those matters to Ms Holland in crossexamination and there was no proper basis for making the allegation.
9. Second, the appellant alleged that the IVRO proceedings were vexatious and frivolous. He apparently sought to prove that allegation by making various claims such as that the proceedings in the State Administrative Tribunal involving Judith Blenkinsop were vexatious and frivolous as Ms Holland had been ordered to pay costs and that Ms Holland had been unwilling to assist Ms Blenkinsop and had reported her to Centrelink.[82] Those matters could not establish that either the application for the IVRO or Ms Holland's complaint to the police were made for an improper purpose or that the application for the IVRO was frivolous and vexatious.

(a) the magistrate erred by allowing the prosecution to proceed when the prosecutor had not disclosed evidence relevant to the case - 'their witness's emails ... the court documents perfecting the constitution of the Court. The Police Report for the alleged phone call on 10 October, the address of a potential witness, to name a few';[83]

(b) the prosecution was procedurally unfair as a result of:

(i) the prosecutor's failure to give complete disclosure;

(ii) the prosecution not using its 'extensive coercive powers' to assist the appellant to obtain evidence;

(iii) the magistrate's failure to require the prosecutor to give disclosure;

(iv) the magistrate placing an onus on the appellant to produce documents - in particular, the transcript of proceedings between Ms Holland and the appellant conducted under s 33 of the RO Act (the Final Order hearing).[84]

1. The disclosure obligations of the prosecution are primarily to be found in the CPA. The offence created by s 61(1) of the RO Act is a 'prescribed simple offence' for the purposes of the CPA: see cl 3 of sch 3 to the CP Regulations. Section 35(5) of the CPA provides that:

When or as soon as practicable after a prosecution notice that contains one or more charges of prescribed simple offences is served on an accused, the prosecutor must serve the accused with the following -

(a) a written statement of the material facts of each such charge;

(b) an approved notice of the existence or non-existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;

(c) if the prosecutor is a police prosecutor, an approved notice that the accused does not does not have a criminal record, as the case may be;

(d) if the prosecutor is not a police prosecutor, and intends to tender any of the accused's criminal record to the court, an approved notice of the criminal record and of the prosecutor's intention;

(e) any document that is prescribed.

1. That material is to be served before or at the time of the accused's first appearance in court in relation to the prosecution notice unless it is impractical to do so. It is not alleged that the respondent breached the obligation imposed by s 35 CPA.
2. Section 61 of the CPA imposes a further disclosure obligation on a prosecutor. The obligation arises when the accused pleads not guilty to a charge; that is, the disclosure obligation arises in respect of the trial of a charge. Section 61(5) provides that the prosecutor must serve the accused with:

(a) any confessional material of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;

(b) any evidentiary material that is relevant to the charge;

(c) a copy of the accused's criminal record, if the accused has not already received it from the prosecutor;

1. The expression 'evidentiary material' is defined by s 42(1) to mean:

(i) every statement that has been made in accordance with Schedule 3 clause 4 by; and

(ii) every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by; and

(iii) every recording that has been made under the Evidence Act 1906 of; and

(iv) every other recorded statement, whether oral or written, by,

any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence; and

(b) if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person; and

(c) a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; and

(d) a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and

(e) a copy of every other document or object that may assist the accused's defence,

that is in the possession of the organisation or person who investigated the offence;

1. Paragraph (a) of the definition of 'evidentiary material' requires, in effect, disclosure of witness statements prepared in accordance with the requirements of sch 3, cl 4; recordings made of the examination before trial of a witness pursuant to sch 3, cl 5 and cl 6; and recordings of evidence made pursuant to the Evidence Act such as the evidence of a child.
2. Notably for the appellant's complaints about disclosure, the scope of evidentiary material is limited to material that is in the possession of the organisation or investigator who investigated the offence - in this instance, the police and the respondent.
3. It was held prior to enactment of the CPA that statutory obligations of disclosure did not exclude the common law duty of disclosure.[85] In D v The State of Western Australia[86] it was apparently accepted that the common law obligation was not superseded by the provisions of the CPA. That was also assumed by Pullin JA in Carney v The State of Western Australia.[87] In that case, his Honour accepted that the prosecution may be obliged to disclose the existence of a prior conviction of a prosecution witness where, 'on a sensible appraisal of the issues or possible issues in the case, the credit of such witness will be an issue'.[88] The reference to a 'sensible appraisal of the issues' was to the common law duty of disclosure: see Easterday v The Queen;[89] and on the duty at common law to disclose evidence that relates solely to credit, see PAH v The State of Western Australia.[90]
4. As Buss JA (as his Honour then was) observed in PAH v The State of Western Australia, s 42 and the other provisions in the CPA imposing a duty of disclosure do not refer to a 'sensible appraisal'. The test whether a person may be able to give evidence relevant to a charge, or whether a document or object may assist the accused's defence, is objective. Consequently, the duty to give disclosure under the CPA is not qualified by an opinion or evaluative judgment made by an organisation or investigating officer.[91]
5. A distinction is made at common law between disclosure of evidence that is relevant to the credit of a prosecution witness and the duty to disclose material relating to the credit of a witness proposed to be called by an accused. The policy reasons for limiting the duty to disclose in relation to the latter category was explained by the House of Lords in R v Brown.[92] Lord Hope of Craighead (with whom the other members of the House agreed) observed:[93]

[T]he principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. ... [T]he duty of the prosecutor is to prosecute, not to defend. ... The prosecutor's duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.

The common law rules which I have described are designed to ensure the disclosure material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses.

1. The appellant asked the magistrate on the first morning of the trial to direct the respondent undertake and produce the results of a search about whether Ms Holland had made a complaint to the police on 10 October 2012 regarding the appellant. The appellant also sought a direction that the respondent produce the transcript of the Final Order hearing. That hearing was held between 2 - 4 November 2016.[94] The context for the requests was that the appellant alleged Ms Holland had lied in the Final Order hearing by stating she had made a complaint to the police about the appellant on 10 October 2012.
2. It became apparent in an exchange between the appellant and the magistrate concerning the production of the documents that the appellant considered he was not required to produce 'anything' under the CPA and the prosecution was required to produce 'all relevant evidence' regardless of whether it was in possession of the prosecution or, more generally, the police.
3. The appellant also tendered as exhibits emails he sent to the respondent prior to the trial requesting information or documents:

(a) the address for service of Matt Zilko SC;[95]

(b) documents relevant to the constitution of the court that made the IVRO;[96]

(c) cases that the 'State' intended to rely on at the trial of the charges and a 'comprehensive list of all argument the state will be raising';[97]

(d) a copy of all transcripts from the hearings of the charges (an email that was sent on 11 April 2017);[98]

(e) a copy of any police report of the complaint made allegedly on 10 October 2012 by Ms Holland;[99]

(f) all 'documentation' relating to a telephone call or incident report allegedly made by Ms Holland on 10 October 2012.[100]

1. As to those requests for disclosure, the respondent, or more generally, the police, was not a party to the IVRO proceedings.[101] Accordingly, neither the respondent nor the police had in their in their possession, and the respondent was not obliged to obtain, the transcripts of those proceedings. Criminal proceedings are adversarial. Subject to the particular duties owed by a prosecutor and to the duty of disclosure, the prosecution is not under a duty to investigate or acquire material to assist in the preparation of an accused person's case or for the reasons explained by Lord Hope in R v Brown. Obviously, in this instance the transcripts were available to the appellant as he was a party the proceedings and it was for him to obtain the transcript if he considered that it was relevant.
2. Similarly, neither the police nor the respondent had in their possession documents relating to the constitution of the court that made the IVRO. The appellant stated he could not locate any such document when he inspected the court file. His request was, in substance, a demand that the respondent produce documents that he believed did not exist; in effect, a way of compelling an admission. If, as the appellant contended, the prosecution was obliged to prove that the court that made the IVRO was 'properly' constituted by producing and tendering certain documents, then its failure to do so would not prejudice the appellant but would, to the contrary, make good his case.
3. Further, the respondent was not obliged to provide an address for service for Mr Zilko (again, the prosecution was not required to assist the appellant in preparing to defend the charges)[102] or the transcripts of the trial proceedings (obviously, the transcripts do not contain evidentiary material).

The complaint allegedly made by Ms Holland on 10 October 2012

1. As mentioned, the appellant alleged that Ms Holland stated in her evidence in the Final Order hearing that she had made a complaint about the appellant to the police on 10 October 2012. The appellant did not believe that a complaint had been made and sought, in effect, confirmation from the respondent prior to the trial that a complaint had not been made by demanding disclosure.[103] The appellant again sought confirmation that a complaint had not been made during the trial, including in the course of Ms Holland's examinationinchief.[104]
2. The appellant stated that he had been told by Senior Constable Wilson that Ms Holland had not made a complaint to the police on 10 October 2012.[105] He also gave evidence that he had spoken to the police and been told Ms Holland had not made a complaint any time prior to seeking the IVRO.[106] It was said that disclosure about whether a complaint had been made was relevant to Ms Holland's credit.
3. Ms Holland was crossexamined by the appellant about whether she had made a complaint to the police on 10 October 2012 and/or whether she had given evidence in the Final Order hearing to the effect that she had made a complaint. She denied having made a complaint and having given evidence to that effect.[107] She explained that on a date that she could not recall, but which she accepted may have been around October 2012, the appellant had contacted her by telephone. She did not answer the phone as she did not wish to speak to the appellant. The appellant left a message in which he stated that he was coming to her house. Ms Holland then rang what she described as the 'general police enquiries line' and was told that she could contact the police if the appellant came onto her property. She then sent an email to the appellant. She started to explain about sending the email but was cut off by the appellant who told her that it was not relevant. The appellant did not further crossexamine Ms Holland about the matter but he gave evidence about what he said Ms Holland had stated in the Final Order hearing.
4. The appellant also cross-examined Senior Constable Wilson about his request for information concerning whether Ms Holland had made a complaint. Senior Constable Wilson stated that he understood the appellant to be asking him to investigate whether Ms Holland had lied in her evidence in the Final Order hearing. He explained that he did not believe he could undertake such an investigation. He appeared not to have appreciated that the appellant's request was that he make enquiries and provide written confirmation that Ms Holland had not made a complaint.
5. Two points must be made about the appellant's assertion that the prosecution withheld information concerning whether Ms Holland had made a complaint to the police on 10 October 2012. First, there was no evidence that a statement or document recording or relating to a complaint allegedly made by Ms Holland existed. It was common ground between Ms Holland and the appellant that a complaint had not been made, with Ms Holland drawing a distinction between making a general enquiry of the kind she described and a complaint. Accordingly, it appears that there was nothing for the prosecution to disclose under the CPA. Rather, the appellant was seeking to prove a negative by having the prosecution or the police generate a document stating that a complaint had not been made, presumably so the document could be tendered in evidence (according to the appellant, Senior Constable Wilson had already made the admission sought orally).
6. Second, the appellant made it clear that the question whether Ms Holland had made a complaint was relevant to her credit. The appellant alleged Ms Holland had testified in the Final Order hearing that she had made a complaint to the police on 10 October 2012. He sought confirmation from the police that she had not made a complaint so that he could submit that her evidence in the trial should be rejected. Accordingly, the question of whether a complaint had been made was collateral to the issues to be determined on the charges.
7. It will be necessary to say something about the collateral evidence rule later in the section dealing with those grounds of appeal that challenge the magistrate's findings on the evidence given by Ms Holland and Senior Constable Wilson. It is sufficient at this point to note that the appellant was bound by the answers given by Ms Holland in crossexamination on whether she had made a complaint to the police and about her evidence in the Final Order hearing. On a proper application of the collateral evidence rule, the appellant would not have been allowed to give evidence to contradict her testimony. Accordingly, the appellant should not have been permitted to present evidence about any enquiry he made as to whether Ms Holland had complained to the police or about Ms Holland's evidence in the Final Order hearing. That would also have been the position if the appellant had received written confirmation that Ms Holland had not made a complaint to the police on 10 October 2012 - the document containing the confirmation would not have been admissible.
8. In summary:

(a) The prosecution ought to have disclosed any document recording a complaint made by Ms Holland on 10 October 2012 or subsequently up to the date of her application for the IVRO in response to the appellant's requests for information. However, there was no evidence that such a document existed. Rather, the evidence suggested there was no document or statement that the prosecution was obliged to disclose under the CPA.

(b) It might have been desirable for Senior Constable Wilson to reply to the appellant's emails prior to the trial confirming that a complaint had not been made by Ms Holland if that information could have been obtained without undue administrative burden. However, the failure to have done so could not have caused a miscarriage of justice as any document or evidence to that effect would have been inadmissible under the collateral evidence rule. The appellant was bound by Ms Holland's evidence on whether she had made a complaint and the testimony she gave at the Final Order hearing.

(c) Contrary to the appellant's submissions in the trial and the appeal, the prosecution did not fail to disclose material that it was required to disclose and the appellant was not denied a fair trial for that reason.

(d) The prosecution was not required to undertake investigations to assist the appellant to prepare his case. In particular, the prosecution was not required to obtain a copy of the transcript of the Final Order hearing and the address for service of Mr Zilko for the appellant. The appellant was not denied a fair trial for that reason.

(a) The prosecution applied to adjourn the trial on multiple occasions in order to increase the appellant's costs and inconvenience his witnesses. The appellant had to pay for witnesses to fly to Perth and his mother was required to travel from outside the metropolitan area. The prosecution's conduct was 'unconscionable' and contrary to the 'State's duties as a model litigant.[108]

(b) The appellant was given insufficient time to prepare his case for example, he was not provided with, or given sufficient time to obtain, the trial transcript prior to his crossexamination of Ms Holland and Senior Constable Wilson. Further, 'the State cannot prevent the accused from presenting its case, by denying access to information, and then point to a lack of evidence, or lack of preparation, to find the accused guilty'. Moreover, the prosecution was 'heard', but the appellant was not 'heard' because the appellant was not given sufficient time to obtain the trial transcript prior to crossexamination of the prosecution witnesses nor was he advised he would not be provided with the transcript.[109]

(c) The trial was procedurally unfair as the prosecution knew that the appellant would not be provided with trial transcript or sufficient time to prepare.[110]

(d) The appellant sought, but was denied, an adjournment to obtain a 'police report' in respect of the complaints allegedly made by Ms Holland on 10 October 2012. Consequently, the appellant was denied the opportunity to obtain material evidence. The prosecution, on the other hand, was granted multiple adjournments to obtain and/or disclose evidence.[111]

(e) The magistrate found that the appellant and Ms Ross could not recall specific details of what had occurred on 13 April 2015. The delay between the events of that day and the trial were due to the court allowing the prosecution to continually delay the trial.[112]

(f) The delay meant that the appellant and Ms Ross were unable to recall relevant matters of detail concerning what had occurred on 13 April 2015 and consequently, the delay prejudiced the appellant in getting a fair trial;[113]

(g) The prosecution was permitted at a very late stage to amend the charges; it was 'unconscionable' for the prosecution to seek to amend the charges.[114]

1. Ms Holland complained to the police about the First Email very shortly after 13 April 2015. Senior Constable Wilson gave uncontested evidence that he spoke to the appellant about the alleged breach of the IVRO on 18 April 2015. The prosecution notice was dated 19 April 2015.
2. The trial was listed to commence on 20 May 2016. As has been explained, the magistrate allowed the prosecutor to amend the charges at that hearing and the trial was adjourned pursuant to s 132(8) CPA. The appellant claimed at the hearing that the trial had been adjourned on four previous occasions. The magistrate stated that he did not know the history of the prosecution but noted from the court record that an application to adjourn the trial had been previously made by the appellant. The appellant replied that he had applied for that adjournment because of the prosecution's failure to give disclosure.
3. The appellant stated at the hearing on 20 May 2016 that he had witnesses who had flown from Geraldton and Judith Blenkinsop had driven to the court from Gingin.[115] However, Judith Blenkinsop could only have given evidence on collateral matters evidence that ought not to have been admitted under the collateral evidence rule. Similarly, I infer that the witnesses who had travelled from Geraldton could only have given evidence on collateral matters having regard to the issues to be determined on the charges.
4. On 8 November 2016, the appellant filed an application for the magistrate to recuse himself.[116] The magistrate refused the application and the appellant applied for the trial to be adjourned on the ground that the prosecution had not complied with its disclosure obligations under the CPA in particular, it had not provided transcript of the evidence given by Ms Holland at the Final Order hearing and a list of cases on which the prosecutor intended to rely. The magistrate concluded that the prosecution was not required to disclose the transcript of the evidence given by Ms Holland and refused the application for an adjournment. The court adjourned to resume after lunch that day.
5. The appellant did not attend court in the afternoon. The prosecutor advised that the appellant had said he felt a 'twinge' in his left shoulder and was going to see a doctor.[117] Accordingly, the magistrate adjourned the hearing until the next day.
6. The appellant sent an email to the Magistrates Court on the following day saying he was too ill to attend court and accordingly, the trial was adjourned to a listing hearing on 16 December 2016. At the hearing held on that day, the trial was listed for a further five days commencing on 12 June 2017.
7. The trial commenced on the listed date. Ms Holland was called to give evidence on the first day. Her evidence-in-chief was reproduced in ten pages of transcript (excluding argument). The appellant did not apply for an adjournment to obtain a copy of the transcript of Ms Holland's evidenceinchief or to prepare for her crossexamination.
8. Senior Constable Wilson was called to give evidence on 13 June 2017. His evidence-in-chief was reproduced in approximately three pages of transcript. The appellant did not apply to adjourn the trial at the completion of Senior Constable Wilson's evidenceinchief.

1. Apart from the appellant's assertions, there was no evidence that the prosecution had applied to adjourn the trial on four occasions prior to 20 May 2016. The only other evidence was an email dated 16 December 2015 sent by the appellant to Senior Constable Wilson.[118] The email stated that the trial was listed to commence on 6 January 2016. The email contained a lengthy and detailed request for 'information/evidence'. The email did not refer to any previous adjournments.
2. It is likely that the request contained in the appellant's email of 16 December 2015 formed the basis for the appellant's application to adjourn the trial to which the magistrate referred at the hearing on 20 May 2016.[119] Apart from that email, there was no evidence about the grounds on which any previous application to adjourn had been made and, more particularly, there was no evidence that the prosecution was motivated by an improper purpose in making any application to adjourn the trial. The allegation that the respondent had applied in the past to adjourn the trial for an improper purpose was not put to Senior Constable Wilson.
3. The prosecution did not apply for an adjournment on 20 May 2016 (when the appellant stated he had witnesses who had travelled to court from Geraldton and Gingin). The magistrate held that he was required by the CPA to adjourn the trial in light of the appellant's submissions regarding the effect of the amendment to the charges. As to the timing of the application to amend the charges, the amendments did not alter in any respect the prosecution case and it cannot be argued that the prosecutor behaved unconscionably or was motivated by an improper purpose in seeking to amend the charges.
4. The magistrate rejected the allegation that 'the delay' between when the prosecution was commenced and when the trial was held was 'unconscionable'.[120] In my view, there was no basis in the evidence for the assertion that the prosecution had behaved unconscionably and/or that it was motivated by an improper purpose in making any application to adjourn the trial.
5. As noted, the appellant did not apply for an adjournment following the evidenceinchief of Ms Holland and Senior Constable Wilson. In any event, their evidence was very short and the appellant could not have been prejudiced by the trial not being adjourned on completion of their evidenceinchief. It is impossible to discern from the trial transcript how the appellant was, or could have been, prejudiced.
6. The prosecution was not obliged to provide the trial transcript to the appellant. I note he appears to have had the transcript of the hearing on 20 May 2016 when he applied for the magistrate to recuse himself. It was also apparent that he had the trial transcript by the time he prepared his written closing submissions (and he obtained an order for the costs of the transcript). There was no basis for the appellant's allegations that the trial was procedurally unfair because, at some points, he did not have the trial transcript or because the trial was not adjourned after either Ms Holland or Senior Constable Wilson had completed their evidenceinchief.
7. The magistrate was not required to advise the appellant at the commencement of the trial that the court would not provide transcript. However, the appellant asked at the completion of the prosecutor's opening whether the court would provide a transcript. He was advised that the Magistrate's Court did not produce a running transcript and it would be necessary for him to order the transcript if it was required.[121] There is no merit in the allegation that the trial was procedurally unfair as the prosecution knew that the appellant would not be provided with transcript or be given sufficient time to prepare.
8. For the reasons that had been given, the appellant was not prejudiced by the trial not being adjourned to enable further inquiries to be made about whether Ms Holland had complained to the police on 10 October 2012. I would add that the impression formed from reading the trial transcript was that the exchanges concerning the alleged complaint largely turned on a semantic difference between Ms Holland and the appellant. Ms Holland stated she had called what she described as the police 'general enquiries line'. In her mind, she had made an inquiry, not a complaint. The appellant, on the other hand, characterised Ms Holland contact with the police as a 'report' or a 'complaint'.
9. As to the effect of delay on the ability of the appellant and Ms Ross to recall the events of 13 April 2015, the appellant was advised within a few days of that date that the police were investigating a complaint. The prosecution notice was lodged on 19 April 2015. A further prosecution notice in respect of the Second Email was lodged on 25 April 2015.
10. In the circumstances, the appellant was aware, very shortly after 13 April 2015, that he had been charged with breaching the IVRO by communicating with Ms Holland on 13 April. Accordingly, he had ample opportunity to record his recollections of what had occurred on that day and to have Ms Ross make a record of her recollections very shortly after the First Email was allegedly sent.
11. I do not consider that the appellant was prejudiced by any delay in the prosecution. He did not complain prior to or at the commencement of the trial that delay had prejudiced his right to a fair trial - for example, his complaint on 20 May 2016 was that he had witnesses who attended court and who would be further inconvenienced by an adjournment. The hearing was adjourned on 20 and 21 November 2016 due to the appellant's ill-heath and the appellant sought adjournments once the trial commenced on 12 June 2017 (indeed, the appellant complains that the trial ought to have been further adjourned to enable inquiries to be made about Ms Holland's contact with the police on about 10 October 2012). The appellant did not state in the course of his evidence that he had difficulty recalling events that went back, at least, to 2012.

1. The appellant made the following allegations concerning the conduct of the prosecutor in the trial and Senior Constable Wilson as the respondent:

(a) Prior to the trial, the prosecutor advised the appellant that he would only rely on two emails but at trial the prosecutor 'ambushed' the appellant by attempting to rely on more than two emails evidence based on emails other than the two emails 'should be struck from the record and not considered' and if the additional material is 'struck' the appellant should be acquitted;[122]

(b) the prosecution prevented the appellant from obtaining 'material admissible evidence' - evidence from the Final Order hearing that would have demonstrated that Ms Holland had obtained the IVRO 'through a fraud on the civil VRO court' and that the purpose of the IVRO and the First and Second Charges was to persecute the appellant as a whistleblower;[123]

(c) the respondent was repeatedly told that there was no prospect of success on the Second Charge and the charge was 'brought for an improper purpose, the purpose being to leverage a guilty plea to the first charge' and the magistrate erred by not finding that there was no proper purpose in pursuing the charge;[124]

(d) it was an abuse of process to proceed with the Second Charge;[125]

(e) the prosecution had breached duties owed a 'model litigant' - the ground as pleaded was that '[t]he State is a Model Litigant' and the 'the State has not complied with its Model Litigant duties'.[126]

1. It was also in this group of grounds that the appellant alleged that there ought to be a defence of entrapment and 'the Human Rights Treaty allows me, as a basic human right, to use any defence available'.[127]
2. The First and Second Emails were part of email chains that were reproduced in the printouts that were tendered (exhibit 3 and exhibit 4 respectively). Exhibit 3 contained two emails in the chain; exhibit 4 contained several emails. Ms Holland was asked questions by the prosecutor about emails in exhibit 4 apart from the Second Email. The emails to which she was referred included an email from the appellant to Scott Blenkinsop, sent on 21 April 2015, in which the appellant claimed he was entitled to whistleblower protection. Other emails were exchanges between Scott Blenkinsop and the appellant that referred to the IVRO.
3. Ms Holland stated she received the email chain forming exhibit 4 from her lawyer as a single email. She gave evidence that the contents of the email chain was 'the type of thing' she was receiving 'on a pretty regular basis' and that it was emails of that kind that prompted her to apply for the IVRO.[128]
4. It is not surprising that the prosecutor would have advised the appellant that he intended to only rely on two emails given the form of exhibit 3 and exhibit 4 and Ms Holland's evidence about how the emails were received. In any event, the email chain forming exhibit 4 comprised emails sent or received by the appellant over a fourday period prior to the Second Email. I do not consider that the appellant was 'ambushed' by references to the email chain in the evidence of Ms Holland. The appellant did not complain that he had been ambushed and, as has been noted, he did not seek an adjournment at the completion of Ms Holland's evidenceinchief. There was nothing in the content of the emails that suggested that the appellant would have been taken by surprise and a review of the trial transcript does not indicate the he was surprised or prejudiced by references to the email chain. Moreover, it cannot be said that excluding the email chain would have affected the magistrate's reasoning in any material respect.
5. The allegation that the prosecution owed a duty to obtain and provide the transcript of the Final Orders hearing or to investigate whether Ms Holland made a complaint to the police on 10 October 2012 has been dealt with above. There was no evidence that the prosecution prevented the appellant from obtaining evidence from the Final Order hearing - proceedings to which he was a party. It is also to be noted that the appellant obtained, and was permitted to tender in evidence, transcript of the ex parte hearing in which the IVRO was granted[129] and the amended particulars of action that was filed on behalf of Ms Holland for the purpose of the Final Order hearing.[130]
6. The appellant advised the respondent by email dated 11 April 2017 that he had sent the Second Email to Ms Holland through her lawyer and he intended to argue that the Second Charge was vexatious and/or frivolous and/or an abuse of process. The appellant correctly noted that the IVRO permitted him to communicate with Ms Holland through her lawyer.[131] The appellant submitted that there was no case to answer on the Second Charge on those grounds. The application was allowed and the charge was dismissed.
7. The prosecutor seemingly misconceived the effect of Part B of the IVRO. That is apparent from his arguments on the no case application. He submitted that the email chain in exhibit 4 contained communications from the appellant that were 'directed to have been viewed by Ms Holland' and 'parts of the email address Ms Holland as "Kim" or "Dear Kim and Scott" so that the whole of the chain constituted the communication from the appellant to Ms Holland'.[132] The prosecutor also argued that, while it would have been permissible for the appellant to communicate with Ms Holland through her lawyer about 'a normal communication' he was not permitted by the IVRO to behave in an intimidatory, offensive or emotionally abusive manner towards Ms Holland. However, as the magistrate observed, that was not the charge, as particularised, that was alleged against the appellant.[133]
8. In a part of his evidenceinchief that largely consisted of submissions rather than evidence, the appellant stated that the only reason why the prosecution had pursued the Second Charge was so that it could be used as leverage to obtain a guilty plea on the First Charge. The appellant continued, 'I mean, the police have said to me, "look, we will drop that other we will drop the other email if you plead guilty"'.[134] He then referred to statements he had allegedly made to 'the police' to the effect that they could not succeed on the Second Charge and continued with what may have been evidence of a conversation with an unidentified police officer or which may have been a rhetorical submission.[135] Later, he claimed that a magistrate, who he thought was the Chief Magistrate, had stated in an earlier hearing that he could not understand why the prosecution were pursuing the Second Charge and he alleged that 'the State' was using the charge in a way that was coercive.[136]
9. The appellant did not identify the person in the police to whom he had spoken about the charges, apart from tendering the email that he sent to Senior Constable Wilson on 11 April 2017. There was no evidence that the appellant communicated with any police officer about the charges apart from Senior Constable Wilson. He did not put to Senior Constable Wilson that he had participated in a conversation in which he had told the appellant that the Second Charge would be discontinued if the appellant pleaded guilty to the First Charge. The appellant also did not put to Senior Constable Wilson that the Second Charge had been commenced and maintained to coerce the appellant into pleading guilty to the First Charge or for any improper purpose connected with the charge.
10. The magistrate rightly concluded that there was no evidence from which it could be inferred that the prosecution had been initiated for an improper purpose. The only evidence provided by the appellant was the email that he sent to Senior Constable Wilson and his allegation that he had a conversation with an unidentified police officer on an occasion that he did not specify. The appellant did not put to Senior Constable Wilson that he had commenced the prosecution of either charge for the purpose of coercing the appellant or to further the appellant's alleged persecution as a whistleblower.
11. Ground 479 referred to the State as a model litigant and alleged that there had been a breach of duties owed in that capacity by failing to fully disclose matters at the hearing on 20 May 2016. There was no basis for an allegation that the prosecutor acted improperly in applying to amend the prosecution notice or in respect of any other matter that was considered at the hearing on 20 May 2016. In the circumstances, it is not necessary to consider whether model litigant duties are, as a matter of law, superimposed on the duties that prosecutors owe to ensure a fair trial.
12. Finally, as the magistrate observed, there is no substantive defence of entrapment recognised in Australian law.[137] Moreover, it is not a defence to a charge of breaching a violence restraining order under s 61(1) RO Act that the protected person encouraged or induced the person bound by the order to communicate with the protected person.[138]

(a) erred by finding that the appellant was reckless in sending the First Email when there was no evidence to support that finding;[139]

(b) erred by holding that intention was not an element of the offence;[140]

(c) ought to have found that, if the appellant had sent the First Email, he did so negligently; and

(d) should have considered 'criminal negligence' - by which I take the appellant to mean that he could not be found guilty of the charge if he had been only negligent.[141]

1. The magistrate did not expressly find that the appellant was reckless in sending the First Email. Rather, his Honour found that the appellant had sent the email by a deliberate and conscious act; the sending and receipt of the email was a foreseeable or reasonably foreseeable consequence of the appellant's act and the prosecution had established beyond reasonable doubt that the appellant had not sent the email in an honest and reasonable but mistaken belief in the existence of a state of things (that the email did not include Ms Holland's email address among the intended recipients).
2. I infer that the appellant's reference to a finding that he was reckless in sending the First Email was to an observation made by the magistrate in respect to s 24 of the Criminal Code:

Even if it is the case that the accused was honest in his belief that the Email did not contain Ms Holland's email address, it was not reasonable that he failed to take care to ensure in this instance that Ms Holland's email address was not included in the email that he sent on 13 April 2015, given the extent to which he had attempted to avoid the situation arising. Further, it was not reasonable given the existence of the IVRO and it was not reasonable because given the subject matter in the Email there was a very high risk that Ms Holland would be included as one of the addressees.[142]

Consistent with those observations, his Honour concluded that 'insofar as the accused honestly believed that the email was not being copied to Ms Holland, his belief was not reasonable' and 'the accused's careless act was not justified or excused by law'.[143]

1. Intention is not an element of the offence created by s 61(1) of the RO Act. That is apparent from the wording of the section, read with s 23(1) of the Code. On a finding that the appellant consciously and deliberately sent the First Email, his intention could only be relevant to the subjective aspects of s 23B and s 24 of the Code.
2. The magistrate correctly identified the elements of the offence created by s 61(1) of the RO Act: to establish that the appellant was guilty of the offence created by s 61(1) of the RO Act, the prosecution was required to prove:

(c) the appellant was a person who was bound by the IVRO;

(d) the appellant did an act that constituted a breach of the terms of the IVRO - in this case, that he communicated with Ms Holland by sending her the First Email (a communication that was not authorised by part B of the IVRO).

1. There is no concept of criminal negligence generally applicable to the commission of criminal offences. Rather, particular sections of the Criminal Code impose a duty relating to the preservation of human life (ch XXVII) or control of an ignition source or fire (s 444A). Those provisions impose criminal liability for a breach of duty rather than excuse a negligent act as the appellant's grounds of appeal apparently assumed. The appellant would only not be criminally responsible for sending the First Email if the prosecution had failed to negate beyond a reasonable doubt the 'defences' provided by s 23A, s 23B or s 24 of the Code.
2. Contrary to the appellant's allegations[144], the prosecution did not allege a case of criminal negligence and the magistrate did not deal with the charge on that basis. The appellant's grounds misconceived the concept of 'accident' in criminal law and a finding that the appellant had been negligent in sending the First Email would not lead to a verdict of acquittal. There was no merit in the allegations made in grounds 277 282.

1. The appellant alleged that the magistrate erred by not:

(a) finding that there were reasonable and plausible explanations for how the email was sent to Ms Holland; and

(b) clearly stating who bore the onus on various issues and, in particular, in not explicitly stating that the onus was on the prosecution to prove that the First Email was sent.[145]

1. The first of those allegations is dealt with below in the section entitled 'defences and excuses'. As for the second allegation, the magistrate properly directed himself in relation to the onus of proof, both generally and specifically in respect of s 23A and s 23B. Further, is clear from his finding on s 24 that his Honour required the respondent to negative the 'defence'.[146]

1. The appellant alleged that the magistrate erred by admitting into evidence the document containing the printout of the First Email (exhibit 3) as it was 'not a business record, as it was not an email', was an incomplete record[147] and was not the best evidence of the email.[148] The appellant further alleged that his Honour erred by finding that:

(a) the First Email was sent on the date stated in exhibit 3 and by assuming that the email was sent 17 minutes after another email;[149]

(b) the appellant was home on the date stated on exhibit 3 and by not finding the respondent had failed to prove that the appellant was home when the First Email was allegedly sent;[150]

(c) Ms Holland had received the First Email;[151] and

(d) the appellant had sent the First Email.[152]

1. The appellant alleged that the printout of the First Email (exhibit 3) ought not to have been received into evidence as:

(a) it was incomplete as the email showed the appellant's email address as 'Ross B', whereas the appellant's email address was 'Rblenkinsop99@gmail.com';

(b) the printout was secondary evidence of the contents of the email (by inference, the 'actual' email being the digital form of whatever appeared in the email program on Ms Holland's computer);

(c) according to Ms Holland, she forwarded the email to her husband for printing and he was not called to verify the email.

(a) The appellant did not object to the tender of the printout of the First Email.[153]

(b) The appellant tendered numerous printouts of emails to prove the contents of the emails and the communications made by that means. There was no objection taken to the tender of those documents and both parties conducted the trial on the basis that printouts of emails were an acceptable and sufficient means of proving the contents of what had been communicated digitally.

(c) All of the emails tendered by the appellant identified him as 'Ross B'. It is a common feature of email programs that the full address of a contact does not necessarily appear in the address bar of an email, only the contact reference.

(d) Prior to the tender of the printout of the First Email, Ms Holland gave evidence of the receipt of the email and its contents. She also gave evidence as to why she considered the email was from the appellant having regard to its contents. She stated in her evidence that she had forwarded the email to her husband, most probably for the purpose of having it printed. The appellant did not object to that evidence.

(e) The appellant in Conomy v Maden[154] was convicted of a stalking offence contrary to s 338E(2) of the Criminal Code. He sent numerous emails, letters and text messages to the complainant. On appeal, he contended that the emails and text messages admitted into evidence were 'unverified', 'unproven' and 'uncorroborated'. The Court of Appeal rejected the appellant's challenge to the admissibility of the evidence:

The complainant gave evidence that she sent or received the emails and text messages, and produced printed copies. Evidence of the emails was admissible in that form, and did not require further verification, proof or corroboration before being received by the magistrate. Contrary to the appellant's assertions, the admissibility of the emails tendered through the complainant did not depend on evidence of the operator of the email service ... also being adduced.[155]

(f) An argument that the printout of an email was inadmissible as secondary evidence was also rejected in the English Court of Appeal in R v Mawji (Rizwan).[156] Lord Justice Kay, delivering the judgment of the court, said:

It is argued that this is a document which is in effect secondary evidence and, without proving the ordered trail in respect of it or taking steps of the similar kind to show authenticity of the document it was not admissible on evidence because it was in effect hearsay.

We simply do not accept that argument. The complainant was entitled to give evidence as to what it was that she saw on her computer screen when she logged on. That was a threatening message and there can be no doubt at all that she could give evidence of the threatening message that she received and of the content of that message, which, amongst other things, would include the indication in the message itself as to from whom it had come and from what email address. Once she was entitled to give that evidence, it seems clear to us that she was also entitled to say that she pressed a computer button and that caused the machine to print out what was on her screen and to produce that document. It may well be that that document would have been arguably inadmissible without her oral evidence as to what had occurred, but certainly once she had given evidence as to the circumstances it seemed to us she was entitled to produce the document which, if the jury accepted it to be a genuine document, confirmed in clear terms what it was that she had seen.[157]

(g) As mentioned, Ms Holland gave evidence as to what she saw on her computer screen and the circumstances in which the document was created. It was not necessary for her husband to be called to verify the printout.

(h) It was not clear what the appellant meant by the allegation that the prosecution was obliged to produce the 'actual email'. However, Ms Holland's evidence and the printout were sufficient to prove the existence and content of the First Email. Further, there was no basis for alleging that the magistrate applied different rules on the admissibility of evidence for the prosecution and the appellant.[158]

1. The magistrate's finding as to the date on which the email was sent was based on Ms Holland's evidence that she received the email on 13 April 2015 and the date recorded in the email. It was open to the magistrate to make that finding on the evidence.
2. Ground 256 also complains that the magistrate erred in assuming that the First Email was sent 17 minutes after an email from Mr Chris Bailey. Mr Bailey was Judith Blenkinsop's solicitor. The email chain forming part of exhibit 3 included an email from Ms Bourman, who identified herself as Mr Bailey's secretary, and who stated she was attaching an email from Mr Bailey. The First Email was addressed to Mr Bailey and the associate to Allanson J, with copies stated to have been sent to Ms Holland and other family members. The email from Mr Bailey's secretary was sent 43 minutes, and not 17 minutes, prior to the First Email according to the email header. That was the finding made by the magistrate.[159]
3. The magistrate further found that the First Email was sent in response to Mr Bailey's email.[160] It was open to the magistrate to draw those inferences from the contents of the First Email. That was so notwithstanding that the appellant stated that he could not recall receiving an email from Mr Bailey on 13 April 2015.[161] The appellant accepted that Mr Bailey sometimes provided information in relation to the Family Trust when acting for Ms Judith Blenkinsop.[162]
4. A number of the appellant's grounds alleged that exhibit 3 was inadmissible or the finding that he sent the First Email was made in error as the email referred to the sender as 'Ross B' and that was not his email address. As I have noted, a number of emails tendered by the appellant and admitted to have been sent by him showed the sender as 'Ross B' with the appellant's full email address following in the form ''. The use of contact lists in electronic media such as mobile phones and email programs is now so common that judicial notice can be taken of the fact that contacts are given a designation such as a name with a link to an email address or phone number. The email chain that formed exhibit 4 (again, a document that Ms Holland printed or caused to be printed) identified the appellant as 'Ross B' and a number of other family members as recipients by their names rather than their email address. The appellant did not dispute that the email chain in exhibit 4 comprised emails that he had either sent or received.
5. Exhibit 3 was not an incomplete document and the magistrate was not in error in finding that the appellant sent the First Email merely because the print-out of the email gave the sender as 'Ross B'.
6. The balance of the allegations made by the appellant concerning the First Email are considered below.

The prosecution evidence and receipt of the First Email

1. The appellant alleged that the magistrate erred by:

(a) finding that Ms Holland was a credible witness there was substantial evidence that she was not a credible witness; the appellant was denied the right to admit evidence on the credibility of Ms Holland; and the evidence did not support the magistrate's finding;[163]

(b) concluding that the 'oath did not apply' to Ms Holland as she was 'flustered, or anxious or stressed' and speculating about her demeanour when she gave evidence;[164]

(c) failing to give adequate reasons by not stating the standard he had applied to determine the credibility of Ms Holland;[165]

(d) failing to warn the appellant that his cross examination of Ms Holland was 'overly robust' and that this would be a material factor in his Honour's findings;[166]

(e) failing to 'properly oversee the conduct of the proceedings' with the result that the trial was not procedurally fair;[167]

(f) speculating about, or finding, that the cross-examination of Ms Holland was trying and difficult - further, the magistrate did not have the expertise to assess matters such as whether the appellant was flustered during cross examination;[168]

(g) preferring the evidence of Ms Holland to that of the appellant;[169]

(h) speculating that there was animosity between Ms Holland and the appellant;[170]

(i) finding that much of the appellant's evidence was collateral to the issues to be determined and failing to appreciate that the evidence related to Ms Holland's credit;[171]

(j) making inconsistent findings concerning the credibility of Senior Constable Wilson.[172]

1. It is helpful to identify what was in issue in the trial by reference to the elements of the offence created by s 61(1) of the RO Act.
2. First, the making of the IVRO and its terms were not in issue. A copy of the IVRO was tendered and received as an exhibit at the completion of the prosecutor's opening. The document was received without objection and was admissible under s 80 of the Evidence Act.
3. Second, the IVRO by its terms established that the appellant was the person bound by the order.
4. Third, service of the IVRO was not disputed but, in any event, was proved by the tender and receipt into evidence of a certificate of service and the reading into evidence of a statement made by Constable Daniel Salvatore Bianca.[173]
5. Accordingly, the primary factual issue the magistrate was required to determine was whether the prosecution had proven beyond a reasonable doubt the appellant had breached the IVRO by sending the First Email. That issue encompassed questions about whether the prosecution was required to prove, and if required to prove, had proven beyond a reasonable doubt that the appellant had deliberately and consciously sent the First Email; whether the First Email had been sent and received by Ms Holland by accident; and whether the appellant had an honest and reasonable but mistaken belief about the existence of a certain state of things in relation to the First Email.

1. Those were matters on which Ms Holland could not give direct evidence. The only matters on which Ms Holland could give relevant evidence were:

(b) whether she had received the email alleged by the prosecution to be the email sent by the appellant in breach of the IVRO;

(c) any circumstance surrounding receipt of the email that could be relevant to proving that the appellant had sent the email and about which she could give admissible evidence.

1. Ms Holland was called to identify the First Email and to prove it had been received by her. She also briefly described the relationships between various people to whom the email was addressed and gave very short evidence from which it could be inferred that the appellant knew her email address. Her evidenceinchief was, quite properly, confined to those matters.
2. The appellant did not challenge Ms Holland's evidence that she had received the First Email. Although he consistently stated in crossexamination that he was putting propositions to Ms Holland that were relevant to her credit, there was, in fact, no issue on which she gave relevant evidence which was in dispute. There were numerous matters disputed between the appellant and Ms Holland during Ms Holland's crossexamination but none of those matters were relevant to any matter in issue on the charge alleged by the respondent given the way in which Ms Holland was cross-examined.

1. As noted, the magistrate made some observations concerning Ms Holland's credit. However, his findings of fact concerned the only issue on which she could give evidence that was directly relevant: whether she had received the First Email. His Honour accepted Ms Holland's evidence on that issue, noting that the printout of the email indicated that she had forwarded the email to her husband.
2. As the magistrate observed, the content of exhibit 3 was consistent with Ms Holland's evidence that she had received the First Email. The appellant asserted in his closing submissions that Ms Holland could have typed the email up herself.[174] That assertion was not put to Ms Holland and, as already noted, the appellant did not directly challenge Ms Holland's evidence that she had received the First Email. Accordingly, the magistrate was not in error in finding that Ms Holland had received the email. There were no incontrovertible facts or uncontested testimony on the issue that demonstrated the finding was erroneous; the finding was not glaringly improbable or contrary to compelling inferences; and there was basis for concluding that the magistrate had failed to use, or had misused, the advantage of seeing Ms Holland give evidence.[175]
3. The magistrate did not, as such, prefer the evidence of Ms Holland over that given by the appellant. Rather, his Honour accepted Ms Holland's evidence that she had received the First Email and found that the prosecution had proven beyond a reasonable doubt that the appellant had sent the email and the defences created by s 23A, s 23B and s 24 of the Code did not apply (matters on which Ms Holland could not give direct evidence).

1. The effect of the appellant's approach to the evidence of Ms Holland was that much of her crossexamination and the evidence given by the appellant related to matters that were collateral to the issues to be determined on the First Charge as alleged. Contrary to the appellant's assertion, evidence relating to a witness's credit is evidence about a collateral matter. Further, his Honour well understood that much of the cross-examination of Ms Holland and the evidence given by the appellant concerned Ms Holland's credit. He repeatedly referred to that matter as the basis upon which he allowed cross-examination. Regrettably, however, his Honour did not apply the collateral evidence rule.
2. The purpose of cross examination is twofold: first, to elicit information about facts in issue or relevant to the issues that are favourable to the crossexamining party and second, to cast doubt upon the accuracy of the evidence-in-chief given against the cross-examining party. Accordingly, cross-examination is not confined to exploring those facts that are put in issue by an accused person's plea but extends to matters such as the credit of a witness. However, there are limits on the extent to which a witness can be cross-examined about matters that are collateral to the facts that are put in issue by a charge and the accused's plea.
3. In Nicholls v The Queen,[176] McHugh J stated:

The central thesis of the common law concerning the admissibility of evidence is that it is admissible only when it is relevant, that is:[177]

'if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or nonexistence of the other fact.'

In other words, evidence is relevant 'if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding'. In a trial, a balance must be struck between considerations of justice and matters of practicality. Consequently, the general rule concerning admissibility is qualified by other rules of evidence. One qualification concerns evidence of matters collateral to the issues in the case.

The collateral evidence rule declares that answers given by a witness to questions put to him or her in crossexamination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Hence, the rule is often referred to as the 'finality' rule. Collateral facts are 'facts not constituting the matters directly in dispute between the parties' or 'facts that are not facts in issue or facts relevant to a fact in issue'. In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted.

1. In short, a question going only to the credit of a witness is a question relating to a collateral fact. A cross examiner is bound by the witnesses' answers to such questions; the answers cannot be contradicted or rebutted by other evidence. The rationale for the rule lies in the desirability of avoiding a multiplicity of issues. The rule is intended to preserve the efficiency and effectiveness of the trial process and ensure that the finder of fact is only required to decide those facts that are in issue rather than be required to conduct a trial within the trial.
2. The appellant commenced his cross-examination of Ms Holland by establishing that the Second Email had been sent to her by her lawyer and not directly by the appellant. That cross-examination was relevant to the issues to be determined on the Second Charge. The balance of the appellant's cross-examination of Ms Holland, and much of the appellant's evidence, concerned matters that were irrelevant to the facts in issue on either charge.
3. The appellant contended at trial that the evidence was relevant to Ms Holland's credit, to his claim that he was entitled to protection as a whistleblower and to demonstrating that the IVRO was vexatious, frivolous and an abuse of process. The appellant was afforded considerable latitude by the magistrate in cross-examining Ms Holland. She was cross-examined about matters such as what, if any, role Scott Blenkinsop had in her application to obtain the IVRO; proceedings in the State Administrative Tribunal involving Judith Blenkinsop; whether Ms Holland had reported Ms Blenkinsop to Centrelink; whether Scott Blenkinsop had any role in reporting Ms Blenkinsop to Centrelink; what witnesses Ms Holland had called at the Final Order hearing; evidence that she and others had given at that hearing; the number and content of emails that the appellant had sent to her and others; disputes about the affairs of the Family Trusts and the Corporate Trustees; disputes over payments proposed to be made to Judith Blenkinsop; the origin of litigation apparently commenced around 2013; evidence that Ms Holland had given in the past about the content of emails sent by the appellant; why Ms Holland had not resigned as a director of the Corporate Trustees if she did not wish to be involved in the family disputes; why she had not changed her email address if she did not want to receive emails from the appellant; whether Scott Blenkinsop had threatened her or other members of the family; whether Ms Holland had accused anybody of fraud or whether she was aware of accusations of fraud having been made by Scott Blenkinsop; and whether Scott Blenkinsop had sent emails to the police. The appellant was, at times, allowed to repeatedly cross-examine Ms Holland about her answers on such matters.
4. The appellant was permitted to give evidence about a number of those matters in his evidence-in-chief. Much of his evidence infringed the collateral evidence rule to the extent that it was intended to contradict or refute Ms Holland's evidence. Indeed, parts of the crossexamination of Ms Holland infringed the rule as it was directed to challenging answers she had already given in evidence.
5. In my view:

(a) The appellant ought to have been bound by Ms Holland's answers to the extent that cross-examination was directed to her credit. The rationale for the collateral evidence rule was amply illustrated by this case. A simple allegation of breach of a restraining order by sending an email occupied four days of evidence and additional days of preliminary and concluding argument. The appellant raised numerous collateral matters concerning the Family Trust, the Corporate Trustees, the disputes involving himself and his siblings and related issues. Although the magistrate noted that there were some matters concerning the affairs of the Family Trust about which Ms Holland had been vague in her evidence, there was no way of getting to the truth of what had occurred in relation to the numerous matters raised by the appellant without conducting a trial within a trial.

(b) Assuming that evidence relevant to the appellant's claim for whistleblower protection was admissible, the ambit of that evidence was limited. The appellant alleged that the liability and detriment he suffered for the purpose of s 1317AB and s 1317AC of the Corporations Act was the making of the IVRO and the prosecution for breach. Accordingly, the only evidence that could be given by Ms Holland that was relevant to the possible application of pt 9AAA of the Act was first, whether the appellant had made a disclosure to Ms Holland in her capacity as a director of the Corporate Trustees of the kind that might fall within the part and second, whether Ms Holland had intended to cause a detriment to the appellant by making the application for the IVRO and complaining to the police because of the disclosure. The question of Ms Holland's state of mind would make some evidence of the history of the family disputes relevant as context but much of the detail would have been irrelevant.

(c) Ms Holland did not commence and conduct the prosecution of the charges. Accordingly, she could not give evidence about whether the prosecution had been initiated and maintained for an improper purpose unless there was a basis for alleging that she had induced or prevailed upon Senior Constable Wilson to prosecute the appellant for a collateral purpose. In fact, Ms Holland was not asked whether she had any dealings him with in relation to her complaint or the prosecution of the First or Second Charges.

(d) Again, on the assumption that evidence relevant to the appellant's allegation that the application for the IVRO was an abuse of process was admissible, the relevant evidence would have focused on the purpose for the application. Ms Holland was crossexamined on that issue. However, as with the claim for whistleblower protection, the ambit of the relevant evidence would not have extended to so much of the detail about the disputes between the appellant and his siblings.

1. The appellant further alleged that the magistrate erred by not allowing him to adduce admissible evidence.[178] The relevant grounds of appeal refer to evidence that was given in the Final Order hearing. The magistrate rightly held that the prosecutor was not obliged to provide the appellant with the transcript of that hearing and, in my view, the prosecution did not breach its duty of disclosure in relation to the allegation that Ms Holland had falsely testified in the hearing that she had made a complaint to the police on 10 October 2012. However, the appellant was permitted to give evidence and cross-examine Ms Holland on that matter.
2. The appellant sought to cross-examine Ms Holland about evidence that other witnesses gave in the Final Order hearing and he gave evidence about the testimony of other witnesses. That evidence was inadmissible as irrelevant hearsay. The magistrate did not err to the extent that he curtailed that evidence (however, the appellant was permitted to give evidence about the Final Order hearing without any significant constraint being imposed).
3. The reference in grounds 72 - 75 and 423 to the prosecution being permitted to adduce inadmissible evidence was presumably to the signed copy of the prosecution notice. As has been explained, the magistrate did not make an error in permitting the prosecutor to produce the notice. There is nothing alleged in grounds 72 - 75 and 423 that established that the appellant did not receive a fair trial.
4. Similarly, the appellant complained that the magistrate excused Ms Holland's lack of recall on some matters but expected the appellant and Ms Ross to have a precise recall of the events on 13 April 2015. That was a not a fair characterisation of his Honour's reasoning. The matters on which Ms Holland had limited recall concerned the affairs of the Family Trusts and the Corporate Trustees. However, she had a good recollection of receiving the First Email - evidence that the magistrate accepted was reliable and which concerned a fact in issue on the charge. The appellant, on the other hand, stated he could not recall anything 'specific' about 13 April 2015. That was directly relevant to the question whether he had discharged the evidentiary onus that he carried on the defences provided by s 23A, s 23B and s 24, and if so, whether the prosecution had negatived those defences.

1. The appellant complained that the magistrate erred by speculating that there was considerable animosity and disputation between himself and Ms Holland.[179] He further alleged that:

(a) his Honour's observation that there was considerable disputation and animosity concerned a matter that was irrelevant;

(b) there was no animosity or disputation between the appellant and Ms Holland and no evidence was presented by the parties to that effect;

(c) the magistrate ought not to have speculated 'about things he knows nothing about, in an evidentiary vacuum, or using that material as the basis for a finding of guilt' and, in particular, he ought not to have used the observation that there animosity and disputation in determining whether Ms Holland was a credible witness.

1. There was ample evidence from which the magistrate could infer that there was animosity and a history of disputation between the appellant and Ms Holland. The evidence was introduced by the appellant in his cross-examination of Ms Holland. It was apparent from Ms Holland's answers that she did not wish to have a relationship with the appellant as a consequence of the family disputes and her perception of the appellant's behaviour. It was plain from the questions he asked, the comments he made while examining Ms Holland and his evidence that the appellant regarded Ms Holland as an adversary in the family disputes. The appellant's attitude towards Ms Holland was reflected in his defence of the charges. Much of the cross-examination of Ms Holland was intended to be, and was, an attack on her credit - in his closing submissions the appellant repeatedly accused Ms Holland of giving evidence that was 'possibly untruthful, possibly misleading' and he alleged that she had lied when giving evidence on a previous occasion. The appellant made a number of allegations about Ms Holland that reflected his hostility towards her - she was seeking to 'persecute' the appellant as a whistleblower; she and Scott Blenkinsop had acted 'potentially' in breach of ss 180 184 of the Corporations Act as directors of the Corporate Trustees and had improperly refused to pay legal fees to other members of the family[180]; she had 'sided with' Scott Blenkinsop and, by implication, was a party to attempts to threaten the appellant so that he would 'cave in' and agree to what they wanted in the family disputes[181]; and Ms Holland was a party to threats made by Scott Blenkinsop to 'dob [the appellant] into the police'[182].
2. The observation concerning animosity between Ms Holland and the appellant was made in the context of the magistrate explaining his conclusions about Ms Holland's evidence and her demeanour while being cross-examined. As I have indicated, his Honour's observation was justified by the evidence and the way in which Ms Holland was crossexamined. Further, his Honour was entitled to take into account the obvious animosity between the appellant and Ms Holland in assessing Ms Holland's credit.

Other grounds relating to the evidence of Ms Holland and Senior Constable Wilson

1. As to the other matters raised by the grounds of appeal concerning the credibility of Ms Holland and Senior Constable Wilson:

(a) For the reasons that have already been given, the prosecution satisfied its disclosure obligations, including in relation to the transcript of the Final Orders hearing and the allegation that Ms Holland had given evidence that she had made a complaint to the police on 10 October 2012. I have been unable to find in my reading of the transcript any point at which the appellant was prevented from giving evidence that might have been relevant to Ms Holland's credit. The prosecutor objected from time to time about the relevance of matters raised by the appellant during the crossexamination of Ms Holland. The magistrate consistently ruled that the appellant should be permitted to examine extensively on matters going to credit.

(b) The magistrate was not required to state the standard of proof to be applied in assessing Ms Holland's credit. His Honour was required to be satisfied beyond a reasonable doubt that Ms Holland had received the First Email. That necessarily meant that he had to be satisfied beyond a reasonable doubt as to the truthfulness and reliability of Ms Holland's evidence and the authenticity of the First Email. It is clear from the Reasons that his Honour directed himself appropriately on the onus and standard of proof in determining those matters.

(c) The magistrate did not describe the crossexamination of Ms Holland as 'overly robust' in the Reasons. His Honour described the crossexamination of Ms Holland as 'very difficult and trying'. I infer that this was a reference to the length and nature of the crossexamination and its subject matter a protracted and, no doubt, distressing dispute between the appellant, Ms Holland and their siblings, which also involved their mother.

(d) The magistrate did not find that the oath did not apply to Ms Holland or that she was flustered when giving evidence.

(e) The appellant's allegation that he was denied natural justice is considered below. However, there was no basis for the allegation that the magistrate failed to properly oversee the conduct of the proceedings or that the trial was procedurally unfair. The magistrate did not intervene to curtail the appellant's crossexamination of Ms Holland and the appellant was permitted to present whatever evidence he considered to be relevant.

(f) There was no merit in the suggestion that the magistrate lacked the expertise to assess Ms Holland's demeanour in crossexamination or that he impermissibly speculated about such matters.

(g) The magistrate did not make inconsistent findings regarding the evidence of Senior Constable Wilson. His Honour concluded that he was not prepared to accept Senior Constable Wilson's evidence that the appellant had made an admission when spoken to on 18 April 2015. Grounds 298 - 304 appeared to misunderstand his Honour's conclusion. It was for the reasons identified in those grounds that his Honour concluded that he was not prepared to accept that the appellant had made an admission to Senior Constable Wilson. His Honour gave reasons why he was not prepared to accept that aspect of Senior Constable Wilson's evidence without corroboration. His Honour otherwise made no finding based on the evidence of Senior Constable Wilson that was material to the determination of the charges alleged against the appellant. However, the appellant's criticisms of Senior Constable Wilson were rejected. I agree with his Honour that there was no foundation for the criticisms made by the appellant.

(h) The magistrate's obligation to give adequate reasons is further considered below. However, his Honour's reasons for accepting Ms Holland's evidence that she had received the First Email were sufficient to satisfy that obligation. His Honour was not required to make findings on the matters that were collateral to the issues to be decided and which the appellant claimed went to Ms Holland's credit having regard to the relevance of her evidence and the other matters to which reference has been made above.

(a) failed to give adequate reasons in that he did not state the standard applied to determine the credibility of the appellant;[183]

(b) erred by impliedly finding that the appellant was not a credible witness;[184]

(c) applied different standards in assessing the credibility of Ms Holland and her evidence and the credibility of the appellant and his evidence and the evidence of Ms Ross;[185]

(d) failed to take into account the effect that delay, caused by the prosecution, had on the ability of the appellant and Ms Ross to accurately and precisely recall events.[186]

1. The magistrate correctly directed himself on the onus and the standard of proof, including the onus carried by the prosecution on s 23A, s 23B and s 24 of the Code. In relation to the appellant's evidence, and that given by Ms Ross, the magistrate gave himself a 'Liberato' direction.[187] The magistrate was not required to give any further direction in respect of the appellant's evidence or that given by Ms Ross.
2. The only matter directly in issue on which the appellant and Ms Ross could give evidence was whether the appellant had sent the First Email - that included evidence relevant to discharging the evidentiary onus the appellant carried on s 23A, s 232B and s 24 of the Code. The evidence given by the appellant and Ms Ross, on that issue is further considered below. However, the magistrate observed that:

(a) the appellant did not give detailed evidence of his circumstances and/or movements at the time that the First Email was allegedly sent but rather, he introduced a number of 'exculpatory theories lacking in detail as to time, place and circumstances' evidence that the magistrate did not find to be particularly useful;[188]

(b) the evidence given by Ms Ross as to time, place and circumstances on 13 April 2014 was 'quite vague'.[189]

The magistrate also observed that much of the evidence the appellant gave, together with the documents that he produced, was selfserving and not particularly relevant to the 'critical' issues[190] (the appellant complained in his grounds of appeal about the characterisation of his evidence as being selfserving).[191]

1. A reading of the trial transcript and a review of the exhibits tendered by the appellant confirms that the magistrate's comments were fairly made. Much of the appellant's evidence was on collateral matters and ought not to have been received as he was bound by Ms Holland's answers. It was also appropriately described as 'self-serving'; his evidence was often in the form of commentary and argument and tinged with self-justification. In any event, as the magistrate observed, there was no reason to prefer his evidence over that of Ms Holland. In fact, the magistrate made no findings about the collateral matters introduced by the appellant. His Honour was not required to do so in the circumstances.
2. In my view, there was no basis for the allegation that the magistrate applied different standards in assessing the credit of the prosecution witnesses and that of the appellant and Ms Ross. As explained, much of the evidence in the trial was either irrelevant or related to collateral matters. The magistrate quite properly focused in the Reasons on the issues that needed to be decided to determine the charge. There was nothing in the trial transcript that indicated that the magistrate 'palpably misused' the advantage of seeing the witnesses giving evidence and his findings were not 'glaringly improbable'.
3. The appellant's allegations concerning the effect of delay in the prosecution have been considered above.

(a) erred by failing to find that the appellant was an expert on the operation of computers and related matters such as electric interference;[192]

(b) erred by finding that matters relating to the operation of computers and the sending of emails did not require expert knowledge;[193]

(c) failed to have regard to the fact that the prosecution did not call any expert witness so that the appellant's opinions were not refuted by contrary evidence;[194]

(d) lacked the expertise to be able to determine whether matters relating to the operation of computers and the sending of emails required expert evidence and whether the appellant was an appropriately qualified expert;[195]

(e) did not possess the expertise to determine whether a virus and/or electrical interference could cause an email to be sent.[196]

1. The appellant gave evidence that his computer did not have 'paid up' virus protection. He stated his virus protection system detected viruses but did not remove them from his computer. He also stated his computer had Malware viruses.[197] He gave further evidence about Malware viruses and suggested the magistrate could take judicial notice that 'viruses on computers can make computers behave unpredictably and some viruses can actually send emails'.[198] The magistrate intervened to observe that the appellant was purporting to give expert evidence. The appellant replied by stating he had an electronic engineering degree and had worked in computing for 'probably 30 years'. However, the prosecutor indicated that the appellant's ability to give expert evidence on computer viruses was disputed.
2. Subsequently, the appellant stated he had graduated from Curtin University with a degree in electronic engineering in 1998. He then gave evidence relevant to the workings of a computer and the possibility of electrical interference by arcing.[199]
3. The appellant was crossexamined about his expertise and he stated that he had used email while studying for his engineering degree. However, he also stated that the email programs he had then used operated differently from email programs now in use. He added that he could not now recall how the email programs he had used while studying operated.[200]
4. It was also relevant that the appellant accepted that he was only familiar with the operation of his email program, 'Thunderbird'.[201] Further, there were features of that program that he did not understand, such as how it listed contacts.[202]
5. As to his employment history, the appellant stated he had worked until about 2013 as a lawyer (he graduated from Murdoch University with a law degree in 2005[203]). He had then worked as a contracts manager for an engineering company and subsequently, as an inhouse counsel. He described using email programs as part of his work in those jobs.[204]
6. The appellant also claimed he had undertaken 'half a degree' in computer science and he had been programming computers since he was about 19 years of age. He stated that there was a large computer programming component in the electronic engineering degree he had completed.[205] However, it was not clear from the appellant's evidence what actual experience he had in programming computers - what he had done in programming and the circumstances in which he had undertaken the activity. Contrary to the appellant's allegation in ground 349, he carried the onus of establishing that he was an expert in computer viruses; the onus was not on the prosecution to prove that he was not an expert.

1. The magistrate did not expressly find that the appellant was not an expert about the effect of computer viruses on the operation of an email program. Rather, his Honour found that the appellant's evidence did not 'address particular knowledge of the technical workings of computer viruses'. By that his Honour meant that the appellant's evidence, so far as it was admissible and relevant, consisted of assertions said to be based on matters of common knowledge. In particular, the appellant's claim that some viruses can cause computers to send an email was merely an assertion and not evidence of that alleged fact - there was no evidence as to what viruses were on the appellant's computer at the relevant time and no evidence as to how any virus that was on his computer could interact with his email program. Apart from the appellant's assertion that the magistrate could take judicial notice that 'some viruses can actually send emails', there was no evidence that the transmission of viruses between computers could be caused by a virus sending an email as distinct from a virus being communicated with an email that had been deliberately sent.
2. The appellant alleged that the magistrate impliedly found that he was not an expert in computer viruses and their effect on the operation of a computer. It is not clear whether his Honour made that finding but, in my view, it was open to make such a finding on the evidence the appellant had presented concerning his claimed expertise and knowledge. Further, as the magistrate observed, the appellant's evidence rested on assertions that were said to reflect common knowledge but concerned matters on which expert evidence was required and about which the magistrate could not take judicial notice.
3. There was no merit in the appellant's allegations that the magistrate could not make a finding on whether a virus could spontaneously send an email as he was not an expert and that, as the prosecution did not call an expert, the appellant's 'expert' evidence had to be accepted [that conclusion also applied to the findings made by the magistrate on the possibility that the email had been sent as a result of electrical interference (arcing)].[206] Further, the prosecution was not required to prove that there were no viruses on the appellant's computer; the prosecution was required to prove beyond a reasonable doubt that the appellant consciously and deliberately sent the First Email.[207] Whether there were viruses on the appellant's computer at the relevant time was a matter peculiarly within the appellant's knowledge. In any event, the magistrate apparently accepted that there were viruses on the appellant's computer but found that there was no evidence from which it could be inferred, as a reasonable possibility, that any virus on the computer could cause an email to be sent without someone physically interacting with the computer.
4. In my view, the magistrate was right to conclude that there was no evidentiary foundation for the appellant's assertion that a computer virus could have caused the First Email to be sent. His Honour's findings reflected the evidence. Further, contrary to the appellant's assertion, I do not consider that his Honour failed to consider or misunderstood the appellant's evidence on this aspect.[208] Finally, the appellant cannot now seek to introduce evidence on this aspect by making assertions in the form of grounds of appeal.[209]

1. The magistrate found that the appellant lacked expertise to give evidence about the workings of computer hardware and the possibility that electrical interference could have caused the First Email to be sent. As noted, the appellant stated he had a degree in electronic engineering, 'half a degree' in computer science and considerable (but unspecified) experience in computer programming. In my view, the magistrate rightly found that those matters did not qualify the appellant to give evidence about the working of computer hardware and the possibility of electrical interference causing computer software, such as an email program, to malfunction by sending emails without an operator physically operating the program. Apart from stating that a large component of his electronic engineering course concerned computer programming, the appellant gave no evidence as to what he had studied, nor did he give evidence that he had worked in the field of electronic engineering and, in particular, computer electronics. He stated he had graduated with a law degree from Murdoch University in 2005 and had then worked as a lawyer or in a related capacity. His experience with email programs appeared to be limited to the everyday experience that most people now have in using such programs and as has been noted, in at least one part of his evidence the appellant stated that he was only familiar with the Thunderbird program. Moreover, there was no evidence that a knowledge of computer programming could provide a basis for expertise in computer hardware.
2. The magistrate allowed the appellant to give evidence to the effect that a faulty heater operated from the same power source as his computer. However, his Honour found that there was no 'technical' evidence as to the effects of arcing on the appellant's computer; no testing had been done to detect the frequency and effect of arcing and whether the faulty heater could cause electronic interference with the appellant's computer was unknown. Tellingly, the appellant did not give evidence about instances in which arcing had caused his computer to send emails in the past.
3. None of the matters alleged in grounds 367 - 373 undermined the magistrate's findings on the possibility that the First Email was sent as a result of a faulty heater causing an electrical interference. The assertion that arcing could cause some form of malfunction did not raise, as a reasonable possibility, that a faulty heater sharing a common power source with a computer can cause the computer to spontaneously transmit an email. A number of propositions were entailed in that assertion on which detailed expert evidence would have been required.
4. His Honour concluded that the appellant's 'generalised' evidence was speculation and conjecture and did not provide the evidentiary foundation for a reasonable hypothesis that the First Email had been sent as a result of an electrical fault independently of any physical interaction between the appellant and his computer. In my view, that conclusion fairly reflected the evidence and there was no error made by his Honour.

1. Although there was no objection by the prosecutor, it should be noted that the appellant did not comply with the obligation for pre-trial disclosure of his purported expert evidence and his evidence on computer viruses, hardware and electrical interference did not satisfy the requirements for an admissible expert opinion. The evidence consisted of assertions rather disclosing a process of reasoning. [210]
2. There was no merit in the allegation that the magistrate lacked expertise to determine whether the appellant could give expert opinion evidence. His Honour's functions as the primary decision maker included determining what evidence was admissible according to law. Selfevidently, a judicial officer does not have to be an expert in a particular area of expertise to determine whether a witness may give expert evidence on matters falling within that area or to decide what facts have been proven by expert evidence.
3. There was also no merit in the allegations/submissions made in grounds 120 - 130. On a full reading of the Reasons, the magistrate did not find that matters that were properly matters of expertise were matters of common knowledge. The point being made at Reasons [66] was that the appellant rested his evidence on what he, the appellant, claimed were matters of common knowledge.
4. Finally, the prosecutor was not under a duty to ask questions in cross-examination to 'show the full breadth' of whatever knowledge the appellant might possess[211] and it was open to the magistrate to make the findings that were notwithstanding that the prosecution did not call an expert on the operation of computers and email programs.

Finding that the appellant sent the First Email

1. The appellant alleged that the magistrate erred by:

(a) finding that the content of the First Email was typical of the content of emails sent by the appellant;[212]

(b) the appellant's evidence lacked detail as to 'time and place';[213]

(c) finding that the sender of the First Email was apparent from the email itself;[214]

(d) concluding that the appellant's evidence did not relate to 13 April 2015;[215]

(e) finding that the appellant did not give evidence as to his whereabouts on 13 April 2015 and by finding that Ms Ross' evidence was not detailed as to time and place;[216]

(f) finding that the appellant signed his emails, 'Regards Ross';[217]

(g) finding that the appellant sent the First Email;[218]

(h) making a number of erroneous findings on whether the appellant sent the First Email.[219]

1. The magistrate's finding that the appellant sent the First Email (in the sense that it was transmitted from his computer to Ms Holland's computer) rested on the following further findings:

(b) the email identified the appellant as the sender;

(c) the email was addressed to Ms Holland and others;

(e) the email was sent in response to an email from Mr Bailey and expressed a belief about Ms Holland not being a director of the Corporate Trustees that was held by the appellant and which was particular to him;

(f) the appellant prepared the email and it was not 'selfcreated' or created by someone else.

1. The magistrate did not find that the content of the First Email was typical of other emails sent by the appellant. Rather, the magistrate found that the email referred to the appellant's belief that Ms Holland was not a director of the Corporate Trustees. That finding was based on the appellant's evidence that he had formed the view around May 2014 that Ms Holland and Scott Blenkinsop were no longer directors a view that the appellant continued to hold at the time he gave evidence.[220]
2. The appellant claimed he had formed the view that Ms Holland and Scott Blenkinsop were no longer directors because they had made threats and 'you cannot be in a company and be blackmailing people ... purportedly blackmailing other directors who remained a director'.[221] It is apparent that the appellant's belief that Ms Holland was not a director of the Corporate Trustees was subjective and idiosyncratic.
3. In relation to the appellant's evidence, and that given by Ms Ross about 'time and place', the magistrate observed that, 'rather than advance evidence of his own conduct at the time, [the appellant] ... introduced a number of exculpatory theories lacking in detail as to time, place and circumstances'[222] and the evidence given by Ms Ross as to 'time, place and circumstances on the relevant day' was 'quite vague'.[223] The matters alleged in grounds 213 224 and 374 381 did not demonstrate any appealable error by the magistrate in making those observations. That is confirmed by a review of the trial transcript.
4. His Honour's observations were directed to the circumstances in which the First Email had been allegedly sent and the appellant's evidence relating to the possibility that the email had been transmitted without any physical interaction between himself and his computer. The observations were not undermined by suggesting that it was clear that the appellant's evidence related to 13 April 2015 generally and that it was apparent that he was in Perth at that time.
5. Further, the prosecution did not carry an onus to prove beyond a reasonable doubt that the appellant was at home on 13 April 2015. The onus on the prosecution was to prove to that standard that the appellant sent the First Email. The appellant's whereabouts on 13 April was a matter that was peculiarly within his knowledge.
6. The appellant's evidence was that he could not recall writing the First Email or using his computer on 13 April 2015 or any specific details about that date, including whether he was at home. He stated he played tennis regularly, but he could not say whether he had done so on that day. He then suggested that 'for all I know, this email could have been typed up Scott and given to [Ms Holland]. I mean, that would be the type of things they would do'.[224]
7. Ms Holland stated that one reason why she believed the email had been sent by the appellant was that it concluded, 'Regards Ross'.[225] The appellant gave evidence that he used a variety of valedictions or complimentary closures to his emails.[226] However, as the magistrate noted, there were examples in the emails tendered in to trial where the appellant had closed with, 'Regards Ross'.
8. There were other emails tendered in evidence that were sent by the appellant and which concluded with, 'Ross'. The fact that the appellant used more than one complimentary close in his emails did not undermine the magistrate's finding that the First Email was sent by the appellant. The point sought to be made by the magistrate was that the complimentary close to the First Email was consistent with the appellant having sent the email that is, the complimentary close was not in a form that the appellant would not use and was in a form that the appellant had used in other emails.
9. Further, ground 316 stated:

It is not the accused's contention that the accused did not prepare the email. The contention forwarded by the accused is the accused did not send it. It appears his honour has not grasped the accused's submission or has misunderstood or confused the evidence. Ultimately, the accused has not been Heard.

1. The inconsistency between that allegation and the grounds of appeal that complained about the magistrate's findings on the contents of the First Email is obvious. Further, ground 334 drew a distinction between typing and sending the email. The ground as drafted was incomplete but appeared to contain an admission by the appellant that he typed the First Email.
2. The remaining grounds of appeal on this topic focused on the magistrate's finding that Ms Holland received the First Email and her evidence that she believed the email was sent by the appellant. The appellant rightly observed that Ms Holland's subjective belief about whether the First Email had been sent by him was irrelevant. However, read in context, her evidence was directed to aspects of the First Email which she identified as indicating that the email sent by the appellant based on her experienced of having received a number of emails from him for example, the identification of the sender as 'Ross B' and the complimentary closing.
3. The appellant has not established that the magistrate erred in concluding that the appellant sent the First Email in the sense that it was transmitted from his computer to Ms Holland's computer. His Honour's conclusion was not glaringly improbable or contrary to compelling inferences to the contrary. As the magistrate observed, the remaining question was whether the appellant was criminally responsible for sending the email.

1. The appellant alleged that the magistrate erred by:

(a) stating the appellant had not laid the evidentiary foundation for a 'reasonable hypothesis';[227]

(b) not finding that, as there was no evidence whether the heater was on or off on 13 April 2015, 'it is a 50:50 [so] the Court should decide in my favour as I am innocent until proven guilty and the benefit of the doubt should be in the favour of the accused';[228]

(c) finding that the prosecution had rebutted mistake and accident;[229]

(d) finding that the appellant had been reckless in sending the First Email; [230]

(e) misdirecting himself on s 23B of the Code;[231]

(f) not correctly identifying the steps involved in sending an email (in the context of deciding whether the email had been 'accidentally' sent);[232]

(g) rejecting the various possibilities advanced by the appellant as to how the First Email might have been accidently or mistakenly sent or sent without the appellant physically interacting with his computer to cause the email to be sent - computer viruses; electrical interference caused by a faulty heater; and other 'unwilled acts' such as Ms Ross inadvertently causing the email to be sent or the appellant hitting the wrong keys on his keyboard.[233]

1. Section 2 of the Code provides that an act or omission which renders the person doing the act or making the omission liable to punishment is called an offence. Having regard to the terms of the IVRO, and the wording of the First Charge, the act said to render the appellant liable to punishment was the act of communicating with Ms Holland. That involved two steps: first, the appellant sending the First Email and second, Ms Holland receiving the email.
2. The provisions of s 23(1) of the Code were set out above. Section 23A of the Code provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will. Section 23B provides that a person is not criminally responsible for an event which occurs by accident. An event for the purpose of s 23B will be the consequence of a willed act or deliberate omission.
3. Prior to amendments made to the Criminal Code in 2008, s 23 provided:

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

1. In Kaporonovski v The Queen,[234] Gibbs J explained the interaction between the various limbs of s 23 as originally enacted:

The first paragraph of s 23, after the introductory proviso as to negligent acts and omissions, states two rules which, although they deal with related matters, are distinct. ... The first rule, that a person is not criminally responsible for an act which occurs independently of the exercise of his will, requires that the act for which a person is criminally responsible shall be his own act, and an act which results from the exercise of his will. ... the first rule of s 23, insofar as it applies to acts of the accused himself, requires that those acts should be of his own volition - that he should have willed that the acts themselves should happen. That rule is not concerned with the consequences of an act which the accused has willed. It is the second rule, that a person is not criminally responsible for an event which occurs by accident, that exculpates an accused from liability for the accidental outcome of his willed acts. Moreover, neither rule deals with the result intended to be caused by an act or omission; the second paragraph of s 23 renders that immaterial unless the intention to cause a particular result is expressly declared (that is, in the provision creating the offence) to be an element of the offence constituted, in whole or part, by the act or omission.[235]

His Honour concluded that the word 'act' in the first limb of s 23 referred to some physical action, apart from its consequences, while the second limb was directed to the consequences of a willed act.

1. It is well-established that s 23A and s 23B are to be applied according to that construction. It is also settled that an event occurs by accident if it was, in fact, not intended or foreseen by the accused and could not have been reasonably foreseen by an ordinary person in the position of the accused.[236]
2. The magistrate referred in the Reasons to the decision of the High Court in R v Falconer for the proposition that, in the absence of some evidence to the contrary, it is presumed that an act done by a person who is apparently conscious is willed or done voluntarily.[237] In their joint judgment in that case, Mason CJ, Brennan and McHugh JJ explained that the distinction between 'act' and 'event' in s 23 (as enacted at that time) meant that it was immaterial to the operation of the first limb of the section that the actor's mental state did not encompass the consequences of what he or she was doing: '[t]he requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done'.[238] Accordingly, the requirement that the act or omission be willed does not mean that an accused must have intended or even been aware of the risk of bringing about any particular consequence of their conduct.

1. An accused person carries an evidentiary onus to raise as issues to be determined in a trial any of the defences provided by s 23A, s 23B and s 24 of the Code. The onus will only be satisfied if there is evidence, which taken at its highest in favour of the accused, could reasonably lead the trier of fact to have a reasonable doubt that each of the elements of the defence in question had been negatived by the prosecution.[239] Depending on the charge and the evidence adduced by the prosecution it may not be necessary for the accused person to give evidence about their state of mind to raise as an issue any of the defences provided for by s 23A, s 23B and s 24. The evidentiary onus may be satisfied by inferences capable of being drawn from all of the evidence that has been presented without the accused testifying.[240] However, the subjective elements of the defences are matters that are peculiarly within the knowledge of the accused.
2. The prosecution must negative any of the defences provided by s 23A, s 23B and s 24 once the accused has discharged the evidentiary onus. Put another way, the prosecution must prove beyond reasonable doubt that the accused is criminally responsible for the act or acts that constituted the offence alleged once the issue has been raised on evidence that discharges the onus resting on the accused.

1. The appellant stated that he could not recall preparing the First Email or using his computer on 13 April 2015. He accepted that he could not recall that day 'specifically'.[241] Accordingly, he could not give evidence about his actual state of mind when the First Email was sent from his computer - in particular, he could not give evidence that the email had been sent by some means independently of the exercise of his will; that he did not intend to send the First Email; or that he had an honest belief that it was not addressed to Ms Holland. The most he could say was that his intention generally was not to breach the IVRO by communicating with Ms Holland, including by sending emails, and that he had, in the past, taken steps to prevent that from occurring.

1. Ms Ross stated that she was working from home during the week of 13 April 2015.[242] She and her children occasionally used the home computer but she could not recall whether she had used the computer on 13 April.[243] She would sometimes tap the space bar and/or the mouse to wake the computer up.[244] She was aware that there had been viruses on the computer 'sometimes'. She was also aware that the heater in the appellant's office could cause the power to go off. Also, she would put items on the computer keyboard to attract the appellant's attention to the items.[245]

1. The act for the purpose of s 23A of the Code was the physical act or acts necessary to cause the appellant's computer to transmit the First Email in digital form to Ms Hollands' computer; receipt of the email by Ms Holland was the event for the purpose of s 23B. As has been explained, the appellant's intention in doing the physical act(s) that caused the First Email to be sent was irrelevant except for the purpose of considering the subjective aspects of s 23B and s 24.
2. The appellant gave evidence that there were keyboard shortcuts that could be used with his email program - in particular, it was possible to send an email by pressing the 'Ctrl' and 'S' keys if the email was open (by which I infer the appellant meant that an email had been created in the new email or reply dialogue boxes with a recipient's address specified).[246] The appellant also referred to the possibility of sending an email by clicking with his mouse on the send button in the email program.[247]
3. Consequently, the act of sending an email from the appellant's computer required:

(a) the recipient's address to be typed into the address box or a 'reply' icon to be tapped with the cursor so that the email to be sent was addressed to the recipient;

(b) the 'Ctrl' and 's' keys to be simultaneously depressed or the send icon to be tapped with the cursor.

1. The appellant was unable to give direct evidence on how Ms Holland's email address came to be included in the First Email. The most he could do was surmise that he had replied to an email that incorporated her address and that her address may have been obscured in the address box of the email. He explained that it was necessary to use a 'slider' on the side of the address box to identify all addressees where there were multiple intended recipients.[248]
2. There is reason to doubt that explanation given the magistrate's finding that the First Email was sent in reply to an email from Mr Bailey (a finding which I have concluded was open on the evidence). Mr Bailey's email was sent as an attachment to an email from his secretary, Ms Bouman. Ms Bouman's email showed that she had her own email address. The appellant could not have simply used the 'reply all' or similar function in his email program to create a template for the First Email without, at least, typing in new email addresses for Mr Bailey and the associate to Allanson J (otherwise the reply would have been addressed to Ms Bouman) and placing the other addresses in the copy address box. That suggests that the appellant must have been aware of the persons to whom Ms Bouman's email had been addressed when he prepared the First Email if he had used Ms Bouman's email as a template to reply to Mr Bailey (and the attachment from Mr Bailey could not have been in the form of an email on which the 'reply' or 'reply all' function could be used). However, those matters were not explored in the evidence.
3. I do not consider that the appellant established that the magistrate made an appealable error in concluding that the evidence did not leave open as a reasonable possibility that the email had been sent without some physical interaction between the appellant and his computer that is, the evidence did not raise as a reasonable possibility that the email had been sent by a computer virus or by electrical interference or by Ms Ross waking the computer up or by placing something on the keyboard. There was no evidence that any of those things had occurred on 13 April 2015 and there was also no evidence that emails had been sent from the appellant's home computer on any other occasion by any of the means suggested by the appellant. As the magistrate found, the possible explanations suggested by the appellant were merely speculation.
4. For the reasons already given, the magistrate was right to reject the appellant's claims that he was an expert on the effect of computer viruses and the operation of computer hardware. Accordingly, there was no evidentiary foundation for the assertion that the First Email may have been sent by a computer virus or electrical interference. There was also no evidence as to what viruses, if any, were on the appellant's computer on 13 April 2015 or whether any virus that was present was capable of spontaneously sending an email.[249]
5. There was no evidence that the appellant's heater was operating on 13 April or that it could interfere with the operation of the computer in such a way as to cause an email to be sent. Ms Ross, for instance, only stated that the heater could cause the power to be switched off if it malfunctioned. Further, Ms Ross could not say whether she had used the appellant's computer on 13 April 2015 or that she had placed anything on the keyboard.
6. The magistrate's conclusions on s 23A of the Code was reinforced by further considering the implausibility of the appellant's speculation. The suggested possibilities as to how the First Email might have been sent required an extraordinary set of circumstances to have occurred: the email had to have been typed with the message that was sent; the two address bars completed and the email left open but unsent in the appellant's email program. One of the possibilities suggested by the appellant then had to occur while the email program was in that state so that the email was sent without a willed act by him.[250]
7. That scenario also illustrated why the magistrate was right to conclude that it was not a reasonably possible that the appellant had sent the First Email by hitting the wrong keys on his keyboard. The email had to be open, the message to Mr Bailey and the associate to Allanson J written and both address bars completed. The appellant then had to simultaneously hit the 'Ctrl' and 's' keys to send the email using his keyboard. How could striking two keys, either together or holding one key down and striking the other key - and those keys being the very keys required to send the email - be unwilled (or unintentional)?
8. Similarly, it was not reasonably possible in the circumstances that the First Email was sent by appellant clicking on the 'send' icon in his email program by an unwilled act. The cursor would have to have been positioned on the icon and the relevant mouse button pushed.
9. As the magistrate concluded, there was no evidence that discharged the evidentiary onus that the First Email had been sent independently of the exercise of the appellant's will. Accordingly, the presumption that the email was sent as a result of a conscious and deliberate act by the appellant was not rebutted.

1. The appellant referred throughout his grounds of appeal to 'accident or mistake'. Further, he contended that that the magistrate did not understand his submissions on accident and mistake - in particular, that the relevant accident or mistake was not in sending the First Email but in sending the email with Ms Holland as an addressee.[251]
2. The appellant also alleged that his Honour misunderstood what constituted an accident in law. The appellant contended that an accident - and a mistake - were unintended events.[252] The appellant made further allegations about the nature of an accident in grounds 392 - 402 that indicated that his primary submission was that he did not intend to send the First Email to Ms Holland and that an accident was an unintended event.
3. However, the prosecution can negative s 23B in any one of three ways: by proving beyond a reasonable doubt that the accused intended the event to occur or the accused did foresaw the event occurring or the event was reasonably foreseeable by a person in the position of the accused. In this case, once it was found that the appellant consciously and deliberately sent the First Email, it was reasonably foreseeable that the email would be received by Ms Holland. Section 23B of the Code would not apply for that reason regardless of the appellant's subjective intentions. The remaining question would be whether the appellant had an honest and reasonable but mistaken belief that the First Email did not include Ms Holland's email address.

1. As noted, the appellant equated accident and mistake with an unintended event. That was made clear from an example repeated at several points in the appellant's grounds: 'if I worked in a restaurant and carried 5300 dishes to the kitchen and I dropped one dish, any reasonable person would conclude that was an accident or mistake. Any reasonable person would not conclude that I intended to drop a dish'.[253] However, s 23B and s 24 of the Code are not solely concerned with the accused's intention and the appellant's grounds proceeded on a misconception about the meaning of accident and mistake in law.
2. The act or omission to which s 24 of the Code refers is the act or omission with which the accused has been charged. The section, like s 23A, incorporates subjective and objective components. Consequently, the prosecution can negate the application of s 24 by proving beyond a reasonable doubt that the accused person did not hold a belief in a particular state of things or the belief was not honestly held or that it was an unreasonable belief. The objective component must be determined by reference to the personal attributes of the accused person. The question is whether the accused's belief was reasonable; not whether a reasonable person would have formed the same belief.[254]
3. The magistrate accepted that the appellant believed that the First Email did not include Ms Holland's email address. It is not clear that the magistrate addressed whether the appellant actually held that belief at the time that the email was sent as distinct from what, as a matter of reconstruction, the appellant thought must have been his state of mind. The appellant was unable to recall anything about the preparation and sending of the email. Consequently, there was no direct evidence as to the appellant's belief that the First Email did not include Ms Holland as a recipient. Indeed, there was no evidence as to how the alleged mistake occurred.
4. In Higgins v The State of Western Australia, Mazza JA observed:

With respect to the subjective element of the defence, the criminal law does not exculpate an accused merely because a reasonable person in the position of the accused might have held the belief in question. That does not mean that the accused must give evidence as to the relevant belief, but there must be some evidence (whether in the prosecution or defence case) capable of showing, directly or by inference, that the accused actually held the belief: R v Cutts [2005] QCA 306 [48] (Williams JA). (emphasis added)[255]

1. Consistent with that statement, it has been held there must be evidence from which it might reasonably be concluded that the accused had a positive belief in a state of things: Burt CJ observed in GJ Coles & Coy Ltd v Goldsworthy, 'it must be a positive belief because the extent of the criminal responsibility is not to be greater "than if the real state of things had been such as he believed to exist" '.[256] That requirement has been questioned[257] but remains good law. In any event, on any view of s 24 the accused must have formed some relevant belief about - turned their mind to - the act or omission with which they have been charged, otherwise mere inadvertence would be sufficient to excuse an accused person from criminal responsibility for that act or omission.
2. The appellant gave evidence that he had communicated with the lawyers acting in the proceedings involving family members and with others about the IVRO. The first communication was by email sent on 13 September 2014, principally to the lawyers acting in the proceedings.[258] The email referred to the IVRO and advised the recipients that they were not to communicate with Ms Holland directly or indirectly on the appellant's behalf.
3. The appellant sent a further email to Ms Holland's lawyer on 2 April 2015 stating, among other things, that the appellant had requested Ms Holland advise the other directors of the Corporate Trustees that they should not include her email address in the address bar of their emails as that could result in the appellant sending an email directly to Ms Holland.[259]
4. It may be inferred from that evidence the appellant did not intend to breach the IVRO by sending an email to Ms Holland - that is, he would not have intended to send the First Email to her. However, the evidence did not establish that the appellant had actually turned his mind to whether Ms Holland's address was included in the addressees to the First Email at the time that it was sent. At most, the evidence was that, as a matter of reconstruction, the appellant must have believed that the First Email did not include Ms Holland's email address because his intention generally was not to breach the IVRO by communicating with her. It is arguable whether evidence to that effect would have been sufficient to discharge the evidentiary onus resting on the appellant. However the respondent did not seek to support the magistrate's finding on mistake on this basis.
5. Contrary to the appellant's assertions in his grounds of appeal, a belief that has been carelessly formed is not a reasonable belief; that is, a mistake that has been made negligently is not a reasonable mistake in law.[260] The magistrate found that the prosecution had proven beyond a reasonable doubt that the appellant's belief was not reasonable as 'it was not reasonable [the appellant] failed to take care to ensure in this instance that Ms Holland's email address was not included' in the First Email[261]. In my view, the magistrate was right to make that finding.
6. The appellant gave no evidence that he took any steps to ensure that the First Email did not include Ms Holland's email address prior to sending the email (he had no recollection of preparing and sending the email) and there was no other evidence from which it could be inferred that he had taken steps to confirm that the email did not include Ms Holland as a recipient. The email sent to various lawyers and others on 13 September 2014 (exhibit 31) advised that they were not to communicate with Ms Holland on his behalf. The email to Ms Holland's lawyers sent on 2 April 2015 (exhibit 32) indicated that he was aware of the possibility that he could unintentionally send an email to Ms Holland by replying to an email that included her address. However:

(a) the email to Ms Holland's lawyer sought confirmation that Ms Holland had requested the other directors of the Corporate Trustees not to send him emails that included Ms Holland's email address - the email complained that he had previously requested that Ms Holland take that step but he had not received confirmation that she had done so;

(b) there was no evidence that Ms Holland had done as the appellant had requested by 13 April 2015;

(c) the email was only sent to Ms Holland's lawyers and not to the other lawyers acting in the legal proceedings about the family disputes, including Mr Bailey.

1. Consequently, there was no reasonable basis upon which the appellant could believe that the email sent by Ms Bouman did not include Ms Holland's email address if that email provided the template for the First Email. Alternatively, there was no reasonable basis for a belief that the First Email did not include Ms Holland's address if some other unidentified email provided the template for the email (that is, the First Email was written in reply to some other email) and obviously, there could be no basis for such a belief if the appellant had actually prepared the address bars for the First Email.
2. The appellant was well aware of the seriousness of breaching the IVRO - it was put in very strong terms in his email of 13 September 2014. He was also well aware of the risk that he might unintentionally breach the IVRO by sending an email direct to Ms Holland in the course of replying to an email received from another person. That was evidenced by his email of 2 April 2015. Moreover, the appellant's grounds of appeal accepted that it was foreseeable that the appellant might send an email direct to Ms Holland.[262]
3. Further, the First Email was not addressed to a large number of recipients. The 'copied to' address bar only included four addresses, with Ms Holland appearing as the addressee. It could not have been difficult to check that her address did not appear in the addresses to the email.
4. The submission that the appellant may have 'failed to notice' that the address bars included Ms Holland's email address is simply an admission that he either did not turn his mind to whether her address had been included in the address bars or he was careless in sending the First Email.
5. Similarly, the appellant's submissions in his supplementary submissions that he was receiving numerous emails at the relevant time, including a number that incorporated Ms Holland's email address, merely highlighted that any request that he might have made that emails with her address not be sent to him had not been complied with to his knowledge. The fact that he may have been receiving numerous email with Ms Holland's email address did not establish that he had reasonable grounds for believing the First Email did not include Ms Holland's address. Rather, it was evidence that, to his knowledge, there was a real risk that any email to which he replied could include her address and that he needed to carefully check the addresses of any emails that he sent.
6. The only reasonable inference to be drawn from the evidence is that the appellant was careless in sending the First Email or he did not advert to the possibility that it might contain Ms Holland's email address despite being aware of the risk that it might do so and the importance of not breaching the IVRO by communicating directly with her. Either way, there were no reasonable grounds for any belief that the appellant may have held that the First Email did not include Ms Holland's email address.

(a) he did not get a fair trial as the magistrate made too many errors and because of differences in the magistrate's treatment of the prosecutor and the appellant;[263]

(b) the magistrate failed to consider, or misunderstood, submissions made by the appellant;[264]

(c) the appellant was denied procedural fairness due to delays in prosecuting the charge;

(d) the trial was procedurally unfair as the magistrate applied one rule in determining the admissibility of evidence for the prosecution and a different, stricter rule for the appellant.[265]

1. I have carefully reviewed the trial transcript, exhibits, the parties' closing submissions and the Reasons. I am satisfied that there was no merit in the appellant's allegation that he did not get a fair trial. The appellant was given considerable latitude in conducting his defence. The magistrate respected the appellant's position as a selfrepresented litigant throughout the trial. His Honour was conscious of his obligation to ensure a fair trial according to law and to conduct the trial in accordance with due process, fairly and impartially.
2. I have concluded that his Honour did not make 'many' errors as the appellant alleged. However, the fact that a primary decisionmaker has made errors, either during a trial or in reasons that are subsequently delivered, does not mean that the trial was unfair or that a party was denied natural justice.
3. The appellant's closing written submissions occupied 55 pages.[266] The magistrate was not required to deal with every submission made by the appellant. Section 31 of the MC Act applies to both civil and criminal proceedings (see the definition of 'case' in s 3). The section specifies what the reasons delivered by a magistrate must contain. The section does not relieve a magistrate from the duty owed by all judicial officers to provide reasons that expose the process by which a decision has been reached.[267] However, that does not mean that the magistrate was required to deal with every submission made by the appellant. His Honour was only required to engage with the central elements of the appellant's case.[268] The magistrate's reasons satisfied that obligation. Further, the magistrate adequately explained how he reasoned to his finding that the appellant was guilty of the First Charge.
4. As for the evidence in the trial, much of the appellant's closing submissions concerned matters that were irrelevant or, at best, collateral to the primary issue to be determined whether the prosecution had proven beyond a reasonable doubt that the appellant had sent the First Email. His Honour's reasons dealt adequately with the matters that were relevant to the determination of that issue.
5. The grounds of appeal referred to two matters on which it was alleged that the magistrate had failed to consider or understand the appellant's submissions: his submissions regarding 'pressing the wrong keys on the keyboard' and his claims about pt 9.4AAA of the Corporations Act. I have already considered the appellant's submissions on each of those matters. I have concluded that there was no miscarriage of justice even if the magistrate did not deal with every aspect of the appellant's submissions on those matters. The question of the alleged effect of delay in the prosecution has also been dealt with above.
6. Finally, there was no basis for the allegation that the magistrate applied different rules on the admissibility of evidence that favoured the prosecution. The allegation rested on matters that have already been considered, such as the prosecutor being able to produce a signed copy of the prosecution notice and the appellant's claim that he was prevented from obtaining evidence relating to the Final Order hearing. A review of the trial transcript and exhibits indicates that the magistrate gave the appellant considerable latitude in cross-examining Ms Holland and adducing evidence - particularly in relation to the disputes about the operation and management of the Family Trusts and the Corporate Trustees.
7. Further, the appellant was not denied access to relevant materials by either the prosecution or by the magistrate's rulings on the law. The prosecution was not obliged to obtain for the appellant the transcript of the Final Orders hearing nor was there a breach of the duty to disclose in relation to the alleged complaint by Ms Holland on 10 October 2012.

1. The appellant applied for the magistrate to recuse himself at the hearing on 21 November 2016. The application was based on rulings made by the magistrate at the hearing held on 20 May 2016 at which his Honour allowed the respondent to amend the prosecution notice.
2. In the recusal application, the appellant contended that there was a perception of bias as the magistrate had allowed the prosecutor to adduce inadmissible evidence in the application to amend the prosecution notice; the magistrate had allowed the application with the unjust result that the respondent was permitted to commence a prosecution outside the time limit imposed by s 21(2) CPA; and the magistrate had referred to an authority concerning s 23 of the CPA (Calandra v Civil Aviation Safety Authority) without giving the appellant an opportunity to make submissions regarding that decision.
3. The onus of establishing the facts upon which an allegation of apprehended bias is made lies on the party making it. The test to be applied is whether a fair, openminded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide.[269] The application of that test involves two steps. First, it requires the identification of what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. Second, there must be a logical connection established between that matter and the feared deviation from the course of deciding the case on its merits.[270]
4. The fairminded lay observer is taken to be a reasonable person who will appreciate that the judicial officer being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to disregard the irrelevant, the immaterial and the prejudicial'.[271] The test is objective and it is assumed the lay observer will base their opinion on a fair assessment of the judicial officer's conduct in the context of the hearing as a whole.
5. There is no merit in the grounds of appeal that alleged the magistrate erred in refusing to recuse himself. The matters identified by the appellant were that:

(a) the magistrate erred in refusing the recusal application;[272]

(b) there was a perception that the magistrate would not assess the evidence objectively and dispassionately or would be hostile to the appellant because the appellant had asked his Honour to recuse himself and because the application had been refused;[273]

(c) the appellant perceived the magistrate to have been biased and accordingly, the appellant was prejudiced - and the prosecution benefitted from the magistrate's actual or perceived bias;[274]

(d) the magistrate made rulings that favoured the prosecution and which were erroneous;[275]

(e) the magistrate allowed the respondent to amend the prosecution notice and in doing so referred to a decision that had not been mentioned in argument on the validity of the prosecution notices (Calandra v Civil Aviation Safety Authority).[276]

(a) A fair minded observer would not conclude that the magistrate was, or was likely to be, biased merely as a result of hearing, determining and refusing a recusal application - otherwise, judicial officers would be placed in the absurd position of being required to recuse themselves on refusing a recusal application.

(b) The test of apprehended bias is objective - the appellant's subjective perception is irrelevant and, in any event, there was no evidence in the transcript that the appellant resigned himself to the outcome of the prosecution.

(c) As has been noted, the magistrate did not make 'many errors' in his rulings and the fair minded observer would not have concluded that his Honour was, or was likely to be, biased merely because of rulings on the law such as permitting the prosecutor to amend the prosecution notice. Obviously, there is a difference between making an error of law and a perception of bias.

(d) The magistrate did not consider that his decision on the validity of the prosecution notices was final. His Honour addressed the issue again in the Reasons. The appellant understood that was to be so as he made submissions on the issue, including on the decision of the Court of Appeal in Calandra v Civil Aviation Safety Authority, in his written closing submissions. Further, the magistrate did not rely on the decision as a substantive part of his reasoning; the reasons why his Honour concluded that the prosecution notices were valid are set out at [113] - [125] of the Reasons.

1. The appellant added actual bias to apprehended bias in ground 62. Actual bias by prejudgment is a state of mind which disables a decisionmaker from undertaking, or renders him or her unwilling to undertake, any proper evaluation of the materials that are relevant to the decision to be made; the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whether through evidence or argument.[277] An allegation of actual bias must be 'distinctly made and clearly proved'.[278] The appellant's allegation was not distinctly made nor was it clearly proved. A review of the trial transcript establishes that there was no basis for alleging that the magistrate prejudged the question of the appellant's guilt.

1. The appellant alleged that the magistrate erred by failing to:

(a) order the appellant be paid his costs;[279]

(b) order the prosecution pay the appellant's disbursements;[280]

(c) find that the law that prevents a self-represented litigant from recovering costs is 'unconstitutional' and legislation governing the awarded costs in criminal proceedings was void as against public policy.[281]

1. In relation to the last allegation, the appellant contended:

The legislation relating to costs in criminal matters is unconstitutional as the Crown can seek its costs against the accused but the accused could not seek its costs against the Crown, if the accused is a lawyer ... [and] ... as there is no provision for 'special costs' if the Crown has acted unconscionably, in breach of its model litigant duties and/or frivolously and/or vexatiously and/or has abused court processes by using a baseless claim to coerce a guilty plea.[282]

1. A successful party to criminal proceedings in a court of summary jurisdiction may recover costs s 67(1) CPA. Section 67 is subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Costs Act). Section 5 of the Official Costs Act provides that a successful accused in an 'official prosecution' is entitled to costs. Section 7 of the Act enables a partly successful accused to obtain an award of costs where the accused satisfies the court that they incurred additional costs by reason of being charged with an offence or offences in respect of which they were successful. The awarded costs will be limited to the additional costs incurred.
2. An official prosecution is defined by the Official Costs Act to mean 'proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of their office'. The expression 'costs' is defined to mean any expenses 'properly incurred by an accused and are due and payable, or paid by the accused to another person or as court fees'. The amount of costs ordered, other than court fees, is to be determined in accordance with the scale fixed from time to time by a costs determination made under the Legal Profession Act 2008 (WA).[283]
3. The Official Costs Act does not modify the principle that costs are awarded by way of a partial indemnity for legal and other expenses actually incurred by a successful party.[284] Consequently, a selfrepresented litigant is not entitled to an award of costs to compensate for time spent in preparing for and attending legal proceedings. An exception to that general rule was recognised in London Scottish Benefit Society v Chorley, Crawford & Chester.[285] The Chorley exception was acknowledged by the High Court in Guss v Veenhuizen [No 2].[286] In Dobree v Hoffman,[287] the Full Court of this court held that the Chorley exception did not apply to State courts in this jurisdiction. In Soia v Bennett,[288] the Court of Appeal overruled the decision of the Full Court in Dobree v Hoffman. The result is that a successful solicitor litigant in person may recover costs pursuant to the Chorley principle.
4. However, the rationale underlying the Chorley exception means that it can only apply where the litigant in person has a legal entitlement to recover legal costs; that is, when the solicitor litigant has a current practising certificate entitling him or her to charge for the relevant legal services.[289]
5. The appellant is an admitted legal practitioner who did not hold a current practising certificate prior to or during the trial. Consequently, he did not have an entitlement to legal costs under the Chorley exception.
6. The appellant was entitled to any disbursements that could properly be claimed under the Official Costs Act and which related solely to the Second Charge. The magistrate awarded the appellant costs incurred in obtaining the trial transcripts.[290] I have been unable to identify any error by the magistrate in making that order.
7. There was no merit in the appellant's allegation that the Official Costs Act is 'unconstitutional' and void as against public policy. Plainly, it was within the power of State Parliament to enact the legislation. An accused person who is successful in a prosecution on indictment is not entitled to costs. Opinions might reasonably differ on the policy considerations that underpin that rule and the rule that a litigant in person has no entitlement to costs.[291] However, there is no basis for contending that legislation that gives effect to the latter rule is void.

1. The appellant's grounds of appeal did not expressly allege that the finding of guilt was unreasonable in that the verdict was unsafe and unsatisfactory. The approach to be taken by an appeal court in considering an allegation that a verdict was unreasonable was explained by the High Court in R v Baden-Clay.[292] The ultimate question is whether the court thinks upon the whole of the evidence it was open to the decision-maker to be satisfied beyond reasonable doubt that the accused was guilty. I have reviewed all the evidence that was presented in the trial of the First Charge and, in my view, it was open to the magistrate to be satisfied of the appellant's guilt beyond a reasonable doubt.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The respondent also grouped the grounds into categories of alleged error. The categories that I have adopted are different to those identified by the respondent.

[4] The appellant was, at the time, unrepresented in the proceedings in this court involving the Family Trusts and the Corporate Trustees.

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

[26] Samuels v The State of Western Australia [56].

[27] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ).

[29] CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] [22].

[30] See M Leeming, Authority to Decide - The Law of Jurisdiction in Australia (2012) at 1.1.

[31] The appellant simply referred to "Federal and State discrimination legislation" and the magistrate erroneously referred to the "Discrimination Act 1991". As noted earlier, I have assumed that the appellant and the magistrate intended to refer to the Sex Discrimination Act.

[32] See O'Connell v The State of Western Australia [2012] WASCA 96 [90].

[33] Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231.

[34] Bindai v Armstrong [2016] WASC 341. See also Cramphorn v Bailey [2012] WASC 462 in which Hall J considered an argument on appeal from conviction for an offence against s 61(2) RO Act that a police order was invalid as it had not been served on the person protected. His Honour had that service was not essential to the validity of the order notwithstanding the requirement for service imposed by s 30E RO Act.

[35] R v Wicks [1997] UKHL 21; [1998] AC 92.

[36] Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559.

[37] Krulow v Glamorgan Spring Bay Council [2013] TASFC 11; (2013) 306 ALR 315.

[38] Reasons [145]. The magistrate's finding is challenged in grounds 442 & 481.

[39] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ & Deane J).

[40] See, for example, Pearce DC and Geddes RS, Statutory Interpretation in Australia (2014, 8th ed) at 3.13.

[46] Calandra v Civil Aviation Safety Authority [2015] WASCA 31.

[51] ts 15 (20 May 2016). The magistrate mistakenly referred to the Electronic Transactions Act 2011 (WA) in his oral reasons. He corrected the statutory reference in his Reasons at [117].

[52] Ground 55. The respondent was not required to serve a copy of the signed notice on the appellant prior to trial having regard to the statutory provisions relating to electronic filing and the prosecution's obligations of disclosure.

[53] R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10.

[54] Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326.

[55] Russell v The State of Western Australia [28].

[56] Calandra v Civil Aviation Safety Authority [2015] WASCA 31 (Mazza & Hall JJ agreed with the reasons of Martin CJ).

[57] That was the finding made by the magistrate: Reasons [135] - [137].

[58] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

[66] Appellant's written submissions, pages 7 8.

[71] ts 307 (13 June 2016). See also, the email chain that forms part of the Second Email which includes an email dated 17 April 2015 from the appellant to Scott Blenkinsop with copies to other family members and Ms Holland's lawyer referring to having advised the 'board' that the appellant's claim was for whistleblower protection.

[74] ts 329 (14 June 2017); Exhibits 19 & 20.

[79] Appellant's written closing submissions, page 11.

[82] See, for example, ts 206 & ff (13 June 2017). The effect of Ms Holland's evidence was to deny those allegations.

[85] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [63].

[86] D v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377 [35].

[87] Carney v The State of Western Australia [2010] WASCA 90.

[88] Carney v The State of Western Australia [114].

[89] Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154.

[90] PAH v The State of Western Australia [2015] WASCA 159; (2015) 253 A Crim R 250 [121] (Buss JA).

[91] PAH v The State of Western Australia [2015] WASCA 159 [133] and following (Buss JA).

[92] R v Brown [1997] UKHL 33; [1998] AC 367.

[94] I infer from a reading of the transcript as a whole that the magistrate who heard the Final Order hearing had reserved and the reserved decision had not been delivered by the time of the trial in this matter.

[101] I have put to one side the question of whether the documents sought by the appellant did not relate to any relevant issue in the charges given that I have not considered whether some of the appellant's submissions and grounds of appeal constituted an impermissible attack of the IVRO.

[102] The appellant alleged in ground 3 that he was not able to interview Mr Zilko but his request to the respondent was for Mr Zilko's address for service and there was no reason why he could not have interviewed Mr Zilko prior to the trial - the appellant must have known how to contact Mr Zilko as he had chaired the boards of the Corporate Trustees at one time: ts 153.

[105] ts 99 (12 June 2017) & ts 329 (14 June 2017).

[113] Grounds 224; 231- 241; 340 - 342; 456 - 460.

[115] The only witnesses who the appellant called to give evidence at the trial were himself and his partner, Ms Ross.

[119] Rule 65 of the Criminal Procedure Rules 2005 requires an appellant to file a copy of the prosecution notice that is the subject of the appeal. The notice filed by the appellant in this case has the court record attached. That confirms that the appellant successfully applied to adjourn the trial at a hearing held on 26 October 2015. According to the court record, the application was opposed by the prosecution.

[137] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19.

[138] De Bono v Southam [2018] WASCA 218.

[139] Grounds 13 16; 43 44; 131 & 132.

[146] Reasons [24], [80], [87] & [101].

[147] Grounds 22 24; 108 110; 156 161; 173 175; 186; 268; 291 & 292; 476.

[148] Grounds 156 - 158 & associated grounds 159 - 161; 296 & 297.

[149] Grounds 26 28; 96 98; 256 & 257.

[152] Grounds 141 - 151; 187, 188; 353 & 354.

[153] ts 105 (12 June 2017). The First Email was received as Exhibit 3.

[154] Conomy v Maden [2016] WASCA 30.

[156] R v Mawji (Rizwan) [2003] EWCA Crim 3067.

[157] R v Mawji (Rizwan) [12] [13].

[168] Grounds 19 21; 197 205; 293 - 295.

[173] ts 94 - 95 (12 June 2017); Exhibit 2.

[174] Appellant's closing submissions, page 4.

[175] It is to be noted that the appellant alleged in grounds 488 & 490 that Ms Holland had excellent recall in giving evidence on matters that were adverse to the appellant and in her evidence-in-chief.

[176] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

[177] Nicholls v The Queen [37] [38].

[187] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

[192] Grounds 116 119; 126 130; 258 - 261; 355 - 363.

[195] Grounds 258 - 261; 357, 361 & 363; 367.

[210] See Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

[218] Grounds 146 - 151; 187 & 188; 321 325.

[219] Grounds 99 - 102; 316 & 317; 326 345.

[227] Grounds 242 & 243; 252 - 255; 262 - 267; 339 - 354; 364 - 373.

[229] Grounds 11, 12, 17; 269 (the allegation being the magistrate erred by concluding that there was no reasonable possibility that the email was sent other than by appellant's deliberate act); 270 - 276 (the magistrate erred by finding that the appellant had consciously and deliberately sent the First Email); 45; 48 & 49; 134 and 135; 167 - 169; 382 - 391; 395 - 402; 408, 410 - 415; 466, 467.

[230] Grounds 13 - 18; 43, 44; 131, 468, 469.

[234] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.

[235] Kaporonovski v The Queen, 226 227.

[237] R v Falconer [1990] HCA 49; (1990) 171 CLR 30 [9] (Mason CJ, Brennan & McHugh JJ).

[239] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].

[240] See, for example, on s 24, Higgins v The State of Western Australia [2016] WASCA 142 [82].

[246] ts 365, 392 & ff (14 June 2017).

[248] ts 368 (14 June 2017); Exhibit 34.

[249] Exhibit 34 was a screen shot said to have taken by the appellant of his computer and showing that at some point there were viruses detected on his computer. However, the screen shot was undated. The appellant did not state in his evidence when the shot was taken.

[250] I have not considered whether, on the reasoning of the High Court in Koani v The Queen [2017] HCA 42; (2017) 91 ALJR 1079, it would be possible to find that the sending of the First Email was a willed act if the appellant deliberately prepared the email, including the address bars, and left the email open and it was then sent somehow without the appellant physically interacting with his computer.

[254] Aubertin v The State of Western Australia [2006] WASCA 229; 33 WAR 87.

[255] Higgins v The State of Western Australia [82].

[256] GJ Coles & Coy Ltd v Goldsworthy (1985) WAR 183, 187.

[257] Colvin E, McKechnie J and O'Leary J, Criminal Law in Queensland and Western Australia (7th ed 2015), 12.11.

[260] See, for example, the comment by Burt CJ in GJ Coles & Coy Ltd v Goldworthy that '[o]ne can readily agree that a mistake made carelessly is not a reasonable mistake' (187).

[264] Grounds 9 & 10; 103 - 107; 419; 482 & 483.

[265] Grounds 239 - 244 (delay and the admission of evidence).

[266] The submissions were typed in single space with a small font size.

[267] See Manonai v Burns [2011] WASCA 165.

[268] See Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 [112].

[269] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[270] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[277] See Minister for Immigration and Multi-Cultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. See also Ninian v Valuer General (WA) [No 2] [2016] WASCA 170.

[278] Minister for Immigration and Multi-cultural Affairs v Jia Legeng [69].

[283] Official Prosecutions Act, s 6(5).

[284] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403.

[285] London Scottish Benefit Society v Chorley, Crawford & Chester (1884) 13 QBD 872.

[286] Guss v Veenhuizen [No 2] [1976] HCA 57; (1976) 136 CLR 47.

[287] Dobree v Hoffman (1996) 18 WAR 36.

[288] Soia v Bennett [2014] WASCA 27.

[289] See GE Dal Pont, Law of Costs (3rd ed), 7.38.

[291] See, for example, G E Dal Pont, 'Law of costs' (3rd ed) at 7.31 7.33.

[292] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66].