FISHER -v- O'HEHIR [2023] WASCA 19 (7 February 2023)

1. The appellant appealed against his convictions (and possibly also his sentences) to the General Division of the Supreme Court. On 7 October 2020, the primary judge granted leave to appeal on one ground of appeal, dismissed the appeal and ordered the appellant to pay the respondent's costs fixed in the amount of $1,245 (to be paid in $5 weekly instalments from 7 April 2021).
2. The appellant now appeals to this court against the primary judge's orders. For the following reasons, none of the appellant's grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.

1. The prosecution notice charging the appellant with the above offences was dated 12 October 2015. He pleaded not guilty to the offences at an appearance on 18 November 2015. There followed what the primary judge described as a 'long and tortuous' history in which the charges were listed for trial on six separate occasions.
2. The first trial, on 8 August 2016, was adjourned because the appellant had to leave court as a result of ill health. The second trial, on 30 March 2017, was adjourned by the presiding magistrate due to time constraints. The appellant was convicted in his absence at the third trial, on 21 December 2017, but successfully applied to have his convictions set aside. The fourth trial, on 9 May 2018, was vacated after the appellant did not attend and provided a note in which he requested an adjournment to attend a funeral. The appellant was again convicted in his absence when he did not attend a mention on 23 May 2018, but successfully applied to have the convictions set aside on the ground he did not receive notice of the hearing. The fifth trial, on 31 January 2019, was adjourned when the appellant did not appear and provided a medical report indicating the reasons that he was unable to attend.
3. On 27 February 2019, the charges were listed for trial for a sixth time on 21 October 2019, at 9.30 am.
4. On 9 October 2019, in the absence of the appellant, the prosecution applied to adjourn the trial due to the unavailability of a witness. The adjournment application was dismissed but an order was made that the prosecution witness was not to be called before 2.15 pm on 21 October 2019.
5. The charges were called on at 9.54 am on 21 October 2019. The appellant did not appear. The magistrate indicated that he would give the appellant until 10.15 am to arrive and would deal with the charges in the appellant's absence if he did not do so. If the appellant did attend at that time, the magistrate proposed that the matter would proceed at 2.15 pm that day when the prosecution's witness was available.[1]
6. The next events were not transcribed, but the primary judge appears to have accepted the appellant's account to the following effect.[2] The appellant arrived at the Midland Magistrates Court at 10.20 am. He was late because it took him a very long time to travel by public transport from his residence to the Midland Magistrates Court. He had to walk 2 km which he found difficult because he suffers from a chronic heart condition and a loss of breathing capacity. The appellant informed the magistrate that he would not come back at 2.15 pm that day as he would be too ill. He walked to a chemist and made a statutory declaration in which he stated, 'I'm unable to attend the court due to my health conditions and further details can be discussed with my doctor'. The appellant returned to the Midland Magistrates Court shortly before 11.00 am and gave the statutory declaration to an officer in the registry. The appellant then went outside the court, where he stood until about 11.30 am to rest before making his way back to the Midland train station to return home.
7. The matter was called on again at about 11.00 am on 21 October 2019 after the magistrate had been provided with a copy of the appellant's statutory declaration. After his name was called, the appellant did not appear. After a further short adjournment, the magistrate dealt with the appellant in his absence, convicting him of the three offences and imposing the fines and costs orders referred to above. After reciting the history of the matter, the magistrate gave the following reasons:[3]

I've now got a statutory declaration signed by the [appellant] saying:

'I'm unable to attend the court due to my health conditions and further details can be discussed with my doctor.'

So he's telling me now he can't attend at 2.15 due to his health condition, but it doesn't say why. I'm not going to ring his doctor; I'm going to proceed. This has been going for far too long. We've only got his evidence to rely on for his inability to turn up at 2.15. It's not even 2.15 yet. It's only 11 o'clock. He's giving us an opinion evidence as to - that he will be not fit at 2.15. He was perfectly fit at 10 o'clock. So, in those circumstances, I'm going to proceed - section 55.

Just sending a stat dec saying, 'In my opinion, I'm no good for court,' won't do it. There's no doctor's report before me as to his illness. We've given him a lot of leverage in the past. We can't just keep putting it off. What he's essentially saying is that 'you've got to have the trial when I walk in the door and it has got to start the moment I walk in the door or else I'm never going to be fit enough to hear a trial, ever'. In those circumstances, I can't see any point in putting it off again. So section 55 will convict him.

I've got - I'm just going to give him the same outcomes that he has got on previous occasions because that appears appropriate. So he is convicted. I don't accept his assertion that he's unfit. There's no medical certificate. The evidence that was before the court in January doesn't necessarily work today. So I've convicted him under section 55, and the penalties will be the same as he has received in the past ...

1. The magistrate's reference to 'section 55' was to s 55 of the Criminal Procedure Act 2004 (WA). That section provides:

(1) This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.

(2) If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may -

(a) adjourn the charge; or

(b) hear and determine the charge in the accused's absence.

(4) If under subsection (2) ... the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -

(a) must presume, in the absence of evidence to the contrary -

(i) that the prosecution notice was signed by a person who was acting under section 20(3); and

(ii) that the person had the authority to sign the prosecution notice;

(b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.

(5) If under subsection (4) the court convicts the accused -

(a) the prosecutor must state aloud to the court the material facts of the charge; and

(b) section 129(4) [which requires the stated facts to be those in the last written statement of material facts served on the accused] applies; and

(c) in the absence of evidence to the contrary, the court must take as proved any facts so stated.

1. The power to adjourn a hearing is conferred by s 75 of the Criminal Procedure Act, which relevantly provides:

(2) A court has a general power to adjourn a charge at any time and may do so whether or not -

(a) the prosecutor or the accused is present; or

(b) the accused has pleaded to the charge; or

(c) any evidence has been given.

...

(4) If a court adjourns a charge -

(a) it must adjourn it either to a later time of the day on which the charge is adjourned (new time) or to a date set by the court (new court date);

(b) it must ensure the parties are advised of the time and place to which the charge is adjourned and for that purpose may make any order and may issue a summons, court hearing notice or approved notice, as the case requires;

(c) it may make any order and issue any document needed (including a document referred to in section 139 or 155) to ensure that any person, including the accused, whose presence will be needed, appears at the time and place to which the charge is adjourned.

1. The primary judge noted that the appellant's appeal notice and grounds of appeal to the General Division did not articulate whether the appeal to that court was against conviction and/or sentence.[4] The primary judge distilled the grounds which the appellant sought to advance in the General Division as follows:[5]

(a) The magistrate erred in law by proceeding to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the appellant was unable to be present due to his medical conditions or, alternatively, that the decision to proceed in those circumstances gave rise to a miscarriage of justice as the appellant was effectively denied the opportunity to take part in his trial (Ground 1);
>
> (b) the magistrate erred in law in convicting the appellant under s 55 of the Criminal Procedure Act, as it was not open to the magistrate to proceed under s 55 in circumstances where the prosecutor did not read aloud the material facts of the charges to the court (Ground 2);
>
> (c) the magistrate's decision to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the magistrate had previously demonstrated apparent bias against the appellant constituted an error of law by virtue of a denial of procedural fairness or, alternatively, gave rise to a miscarriage of justice (Ground 3);
>
> (d) the magistrate erred in law in convicting the appellant under s 55 of the Criminal Procedure Act in circumstances where the prosecution had failed to comply with an order for disclosure or, alternatively, the decision to proceed in those circumstances gave rise to a miscarriage of justice (Ground 4); and
>
> (e) the magistrate's decision to convict the appellant under s 55 of the Criminal Procedure Act in circumstances where the magistrate had failed to properly inform the appellant of the manner in which the prosecution would be conducted gave rise to a miscarriage of justice (Ground 5).

2. The primary judge refused the appellant leave to adduce a report of his medical practitioner, Dr Joseph Calabro, which, after setting out the appellant's medical conditions and medications, said:[6]

He informs me that he had to attend court on 21/10/19. He travelled by public transport which involved walking for about one kilometre. This exacerbated his congestive assessment of cardiac status failure and he was unable to wait for the 5 hours before his case was heard.

The primary judge refused leave to adduce the medical report on the ground that the matters stated in the medical report, taken at their highest, did not provide any cogent or reliable evidence that the appellant was unable to attend the Midland Magistrates Court on 21 October 2019 and participate in the trial of the charges.[7] The judge observed:[8]

Dr Calabro merely reports an account by the appellant as to what the appellant said occurred on 21 October 2019, which account in this context is plainly hearsay. Most importantly, Dr Calabro does not provide an independent medical opinion to the effect that the appellant was unable to wait at court or that doing so would have jeopardised his health. Further, Dr Calabro does not outline how the appellant's medical conditions and medications listed in the medical report prevented the appellant attending court at 2.15 pm and participating in the trial on 21 October 2019.

1. The primary judge concluded that none of the grounds of appeal which her Honour had distilled were established and provided detailed written reasons for that conclusion. We shall refer to the detail of those reasons to the extent necessary in dealing with the appellant's grounds of appeal to this court.

1. The appellant now seeks leave to appeal against the primary judge's decision on the following grounds:

The Primary Judge erred in law in failing to hold that:

(a) The magistrate erred in law by proceeding to convict the [appellant under s 55 of the Criminal Procedure Act] in circumstances where the [appellant] was unable to be present due to not being informed of the new time and place, thus being unable to participate in his defence denying him of procedural fairness or alternatively giving rise to a miscarriage of justice.

(b) the [magistrate] erred in law in convicting the [appellant under s 55 of the Criminal Procedure Act] as it was not open to the [magistrate] to convict without [the appellant] under s 55 in circumstances where the prosecutor did not read aloud the Material Facts of the charges to the Court,

(c) the magistrate erred in law by not giving due consideration to the [appellant] being ill as is required under [s 262 and s 267 of the Criminal Code (WA) and thus putting the [life] of the [appellant] in danger through expectation of the appellant to return to Court in a fragile physical condition which is not in line with Natural Justice Expectations. Thus Natural Justice was deprived from the [appellant].

(d) The [primary judge] erred in accepting the [magistrate's medical diagnosis] who was not an expert in such areas over a [medical practitioner's] thus causing a miscarriage of justice.

(e) The [magistrate] erred in allowing the charges to be heard under an unsigned [Prosecution Notice] which was first given to the [appellant] in November 2018 when it was required by the Supreme Court and the [appellant] had to go to Midland Court to request a copy for the initial appeal. There had been no disclosure of this [Prosecution Notice] prior [to] November 2018. The Notice is unsigned which in order to be valid must be signed as [required by s 21 and s 23 of the Criminal Procedure Act]. If not signed and used within [12] months all charges to which it pertains must be [dismissed]. A miscarriage of [justice] was endorsed by not viewing the above document by the magistrate and the [primary judge].

(f) the magistrate erred by not implementing [s 75(4) of the Criminal Procedure Act] which dictates when an adjournment is changed to another time and date that all parties must be informed and can only be forward of the previous allocated time, never backward. This was not abided [to] by the [magistrate] on either counts and as such a miscarriage of justice occurred.

(g) the magistrate erred in not adhering to the International Covenant on Civil and Political Rights Article 14. This would include ignoring [the Human Rights (Parliamentary Scrutiny) Act 2011]. The High Court [brought] down a ruling that all persons have a right of expectancy of the utilisation that all covenants under the United Nations Covenants that have been ratified and signed by Australia as stated in the Teoh case 1995.

1. The application for leave to appeal on these grounds was referred to the hearing of the appeal.

Grounds (a) and (f): failure to notify appellant of 11.00 am hearing

1. Grounds (a) and (f) of the appellant's appeal to this court complain of the fact that the charges were brought on at about 11.00 am after he had been told that that they would be heard at 2.15 pm on that day.
2. The primary judge held that the Magistrates Court was able to recall the matter at about 11.00 am in the exercise of its implied power to regulate its own practice and procedure.[9] The primary judge said:[10]

In circumstances where the appellant had appeared before his Honour shortly after 10.00 am and appeared to his Honour to be well; on receipt of the statutory declaration, his Honour was entitled to recall the charges prior to the time to which he had adjourned the charges to as he was entitled to be satisfied that the appellant had no intention to appear that afternoon at 2.15 pm, so that notice of the recall time of 11.00 am was not required.

The Magistrates Court is an exceptionally busy court whose court officers are called upon daily to dispose of a high number of simple offences in their summary jurisdiction, in a manner that is expeditious. When an accused clearly states that they do not intend to appear at a hearing of charges that have been adjourned to a later time the same day, the magistrate must necessarily have power to recall the charges and dispose of the charges. In this particular case, the appellant had notice of the hearing that day, and had previously informed the court the hearing would not be short (last one and a half day) and who should know from past experience from his numerous appearances in respect of the charges prior to 21 October 2019 that it may be necessary to wait for the commencement of the trial on the day in which charges are listed for hearing. He also had knowledge that if he chose not to appear, at 2.15 pm that day, the court had power to hear and determine the charges in his absence.

1. In our view, the primary judge's conclusion was correct. It is usual that a very large number of matters are listed before a Magistrates Court in a single day. The magistrate must manage the court list and determine the order and timing of calling on matters for hearing. Although s 75 of the Criminal Procedure Act contemplates that a matter may be adjourned to a later time on the same day, there is a distinction between an adjournment of a matter and the management of the court's daily list by making determinations as to when matters will be called on and standing matters over. In our view, the magistrate did not adjourn the trial but rather was merely managing the court list by indicating when on the day the matter was listed for trial the hearing would begin.
2. Of course, the exercise of the magistrate's power to manage his or her list must be exercised in a manner which is procedurally fair to all parties. However, fairness is essentially a practical concept.[11] There was no practical unfairness in the present case in calling the appellant's matter back on when he had made it plain that he was not waiting until 2.15 pm and would not be appearing at that time. Nor, in those circumstances, was there any practical unfairness in dealing with the matter in the appellant's absence after the appellant did not respond to his name being called in the court precincts. The appellant was not deprived of any opportunity to participate in the proceedings given that he had made it plain that he would not be participating and was in the process of leaving the court to return home for the day.
3. In our view, there is no merit to these grounds of appeal.

Ground (b): failure to read statement of material facts

1. Ground (b) complains of the failure of the prosecutor to read the material facts before the magistrate convicted and sentenced the appellant on 21 October 2019.
2. Ground (b) is misdirected so far as it attacks the conviction as opposed to the penalty imposed for the offence. The requirement to read the material facts under s 55(5)(a) of the Criminal Procedure Act arises if, under s 55(4), the court convicts the accused. The power of the Magistrates Court to convict an accused under s 55(4) is not conditioned by a requirement that the prosecutor reads aloud to the court the material facts of the charge. The failure of the prosecutor to read the material facts of the charge to the court on 21 October 2019 does not provide a basis for setting aside the appellant's convictions. The primary judge was correct to so hold.[12] That is a sufficient basis for rejecting ground (b).
3. In any event, even if the grounds of appeal were to be amended to challenge the exercise of the sentencing discretion, we are not persuaded that there was any material failure to comply with the requirements of s 55(5) of the Criminal Procedure Act in this case. The facts of the alleged offending had already been read to the court on 21 December 2017 when the appellant was first convicted and sentenced in his absence. The facts were as follows:[13]

[At 6.00 pm on] 23 September 20l5, the [appellant] drove a Nissan Navara utility [on] Great Eastern Highway, South Guildford. The [appellant's] vehicle was observed to be travelling in excess of the speed limit. Laser speed measuring equipment was utilised and an alleged speed of 91 kilometres per hour was obtained. The speed allowed for the area is 60 kilometres per hour. Police standing on the side of the road in full view of the [appellant] made clear hand signals indicating for the [appellant] to pull into a car park on the left.

The [appellant] has made eye contact with the officer, driven around him and continued west on Great Eastern Highway. Police have gone after the [appellant] in a police vehicle. The [appellant] has turned from the highway on to Fauntleroy Avenue, then right into Redcliffe Road and right into Ben Street before he stopped. He actually had to stop because it was a [dead-end] road.

Police have then examined the [appellant's] vehicle, found that there were plastic fuel containers with fuel in them, a wheelbarrow, a lawnmower, a motorised line trimmer, a blower vacuum and other equipment in the rear of the vehicle. And the [appellant] had failed to place and correctly secure the load in the back of the utility ...

1. The magistrate presiding over the hearing on 21 December 2017 had sentenced the appellant on the basis of these facts. The magistrate presiding over the hearing on 21 October 2019 decided that it was appropriate to impose the same penalties as had been imposed on the previous occasion. The magistrate, in effect, adopted the previous sentencing decision and sentenced the appellant on the basis of the facts that had been read to the court on 21 December 2017.[14] In circumstances where the material facts had already been read to the court, s 55(5)(a) of the Criminal Procedure Act did not, in our view, create an imperative for the exercise to be repeated in the circumstances of this case.
2. Further and in any event, even if the grounds of appeal were to be amended to challenge the exercise of the sentencing discretion and even if there was any material failure to comply with the requirements of s 55(5) of the Criminal Procedure Act in this case, we are satisfied that no different penalties should have been imposed and consequently we consider that no substantial miscarriage of justice has occurred.[15]

Grounds (c) and (d): appellant's medical condition

1. Grounds (c) and (d) concern the appellant's medical conditions.
2. Appeal ground (c) is misconceived so far as it refers to s 262 and s 267 of the Criminal Code. Section 262 imposes a duty on persons having charge of another who is unable to withdraw himself from that charge to provide the necessaries of life. Section 267 creates a duty to do an act where a person undertakes to do any act the omission to do which is or may be dangerous to human life or health. Neither provision could apply to the magistrate in the circumstances of this case.
3. There was no evidence before the magistrate, beyond the appellant's non-specific assertion in a statutory declaration, that the appellant suffered from any medical condition that would prevent him from remaining at court until the charges against him could be tried on 21 October 2019. The appellant had appeared to the magistrate to be 'perfectly fit' when he attended the hearing after 10.00 am on that day.[16] Particularly in light of the difficult history of the matter, the magistrate did not err in failing to be satisfied that the appellant suffered from a medical condition which required the further adjournment of the matter. The magistrate did not err by not giving due consideration to the appellant being ill, as alleged in ground (c). There was no denial of natural justice or miscarriage of justice involved in the magistrate's refusal to vacate the sixth attempt at a trial of the charges in the circumstances.
4. Contrary to the suggestion in ground (d), the primary judge did not prefer a medical opinion of the magistrate over that of a medical practitioner. Her Honour's assessment of Dr Calabro's report was that it provided no cogent or reliable evidence that the appellant was unfit to participate in the trial.[17] That report was not before the magistrate. The primary judge did not prefer one view to another, but rather held that the magistrate was entitled to find, in the absence of a cogent medical opinion, that the appellant was fit for trial.[18] We agree with the primary judge's conclusion as to the findings that were open on the material before the Magistrates Court, and with her Honour's assessment of Dr Calabro's report.

1. Ground (e) raises a new point which was not debated before the primary judge. The appellant's essential complaint is that the respondent's signature does not appear on the prosecution notice which was lodged with the Magistrates Court.
2. The respondent is a police officer. Section 20(3)(a)(iii) of the Criminal Procedure Act authorises a police officer to commence a prosecution for an offence. Under s 21(3) of that Act:

A prosecution is commenced on the day on which a prosecution notice, signed in accordance with section 23, is lodged with the court in which the prosecution is being commenced, whether or not the notice has been served on the accused.

1. Section 23(2)(d) of the Criminal Procedure Act requires that a prosecution notice 'be signed by the person who is commencing the prosecution'.
2. Section 24(2) of the Criminal Procedure Act requires that a prosecution notice be lodged in a manner prescribed by rules of court.
3. Under r 13A(1) of the Magistrates Court (General) Rules 2005 (WA), as in force on 12 October 2015, an 'approved user' may lodge a document electronically by providing the information required for the completion of the document by means of the courts electronic system.
4. The term 'approved user' of the courts electronic system was defined to mean a person:[19]

(a) who is authorised by the CEO under regulation 5A to use the courts electronic system; and
>
> (b) whose identity is verified by the courts electronic system each time the person uses the system[.]

5. Part 2 of the Courts and Tribunals (Electronic Process Facilitation) Act 2013 (WA) relevantly makes provision for the use of technology in relation to court proceedings and the record of court proceedings. That part applies to the Criminal Procedure Act and the Magistrates Court Act 2004 (WA).[20] Section 8 of Courts and Tribunals (Electronic Process Facilitation) Act provides that, where a document lodged with a court is required or permitted to be in writing, the document may be lodged electronically in accordance with any regulations or rules of the court. Under s 10(1) of that Act:

If, under a provision of an Act to which this Part applies, a document is required to be signed, certified or sealed by any person, that requirement is to be taken to be satisfied if the document is authenticated in accordance with any regulations or rules of court.

1. Rule 13A(3) of the Magistrates Court (General) Rules provides:

A document lodged electronically under this rule that is to be signed by or on behalf of the person lodging it is authenticated for the purposes of the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 section 10 if -

(a) the courts electronic system records the identity of the person who lodges the document; and

(b) 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. The respondent's name is stated in the relevant section of the electronically lodged prosecution notice for the appellant's charges. The requirement that the respondent sign the prosecution notice is satisfied pursuant to the above provisions.

1. Ground (g) contends that the magistrate failed to adhere to article 14 of the International Covenant on Civil and Political Rights (ICCPR). Article 14 provides for certain minimum guarantees to which an accused is entitled in the determination of a criminal charge against him or her.
2. As the respondent points out, the ICCPR has not been incorporated into domestic Australian law and so does not operate as a direct source of rights and obligations in Australia.[21] Resort to the ICCPR was not required in the present case in order to engage the rules of procedural fairness. Reference to the ICCPR does not materially add to the appellant's complaint that he was denied procedural fairness.
3. The appellant's reference to the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) was likewise misplaced. That Act provides for the establishment of a joint committee of the Senate and House of Representatives called the Parliamentary Joint Committee on Human Rights, and for the preparation of statements of compatibility in relation to Bills and legislative instruments. The legislation has no application to proceedings in the Magistrates Court.

1. For the above reasons, none of the appellant's grounds of appeal to this court have any reasonable prospect of succeeding.
2. We note one issue that was raised by the respondent's submissions concerning the possible impact of the failure to read the statement of material facts at the hearing on 21 October 2019.
3. The primary judge found, in accordance with a concession by the respondent, that the magistrate had erred in law by proceeding to sentence the appellant without hearing the material facts. The judge recognised that an error of this kind would ordinarily lead this court to uphold a sentence appeal and exercise the sentencing discretion afresh. However, the primary judge declined to do so as her Honour was not satisfied that the error resulted in a substantial miscarriage of justice. This was because the primary judge was satisfied that, if the material facts of the offence had been read to the court, the sentence imposed on the appellant for the charges would be commensurate with the seriousness of those material facts.[22]
4. In reaching the above conclusion, the primary judge said that the magistrate imposed the minimum penalty of $200 for the breach of the loading requirement offence. That observation by the primary judge was in error. Under s 30(3)(a) of the Road Traffic (Vehicles) Act, a fine of $200 was the maximum penalty for an offence against s 29(1) of that Act in the circumstances of this case. Section 30 provides for a series of graduated maximum, and in some cases minimum, penalties according to the nature of the breach of the loading requirements. The $200 penalty was the lowest maximum penalty for the different categories of offences. Given the structure of the penalty provisions, including the applicable maximum penalty in the present case of $200 being for the least serious category of offending, it would not ordinarily be surprising if the applicable maximum penalty was imposed for an offence in the least serious category. However, in the present case, $200 was a maximum and not a minimum penalty.
5. In the respondent's amended submissions, the respondent indicates that, if the appellant were to seek and be granted leave to amend his grounds of appeal, the respondent would accept that the appeal on that ground should be granted and the appellant resentenced for the loading offence.[23] As the appellant has not taken up the respondent's invitation to seek to amend his grounds of appeal to challenge the sentences imposed, it is unnecessary to deal with this issue further.

1. For the above reasons, we would make the following orders in this appeal to this court:
   1. Leave to appeal is refused on all grounds of appeal.
   2. The appeal is dismissed.

We would hear from the parties in relation to the costs of the appeal.

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

[1] Magistrates Court ts 21/1/2019 at 2 - 3.

[3] Magistrates Court ts 21/1/2019 at 4 - 5.

[9] Primary decision [49] - [51], citing Sparks v Bellotti [1981] WAR 65 and Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 - 17.

[11] Re Minister for Immigration; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [272].

[13] Magistrates Court ts 21/12/17 at 2 - 3.

[14] Magistrates Court ts 21/10/19 at 5.

[15] See s 14(2) read with s 18 of the Criminal Appeals Act 2004 (WA).

[16] Magistrates Court ts 21/10/19 at 4.

[19] See r 3 of the Magistrates Court (General) Rules 2005 (WA) read with reg 3(1) of the Criminal Procedure Regulations 2005 (WA).

[20] See s 6(1)(g) and (l) of the Courts and Tribunals (Electronic Process Facilitation) Act.

[21] Minister for Immigration v Teoh [1995] HCA 20; (1995) 183 CLR 273, 286 - 287, 298, 304.

[23] Respondent's amended submissions, pars 21 - 25, 66.