Supreme Court of WA|2008-05-08|Before: Hasluck J

MILLS -v- HENDRIKSEN [2008] WASC 79 (8 May 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MILLS -v- HENDRIKSEN [2008] WASC 79

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Magistrates - Jurisdiction, practice and procedure - Procedural fairness - Exercise of power to restrain person in custody in courtroom - Exercise of powers concerning application to hear evidence by videolink - Procedural fairness in relation to conduct of trial in absence of accused - Whether miscarriage of justice occurred in trial process - Application of rules of natural justice concerning entitlement to be heard - Finding that magistrate failed to observe rules of natural justice - Appeal against conviction upheld

Acts Amendment (Video and Audio Links) Act 1998 (WA), s 3(1)

Court Security and Custodial Services Act 1999 (WA), s 8, s 12, s 35, s 93, sch 2 cl 12(2), sch 2 cl 12(3), sch 2 cl 12(3)(a), sch 2 cl 12(3)(b)

Criminal Procedure Rules 2005 (WA), r 22, r 23, r 65

1 The appellant, Christopher Charles Mills, seeks leave to appeal against a conviction after trial in the Mandurah Magistrates Court.

2 The application raises important issues as to the manner in which powers are to be exercised by a judicial officer with respect to a proposal that an accused person be restrained by manacles or other means in the course of a trial.

3 It raises questions also as to the exercise of powers concerning the taking of evidence by video link and the conduct of a trial in the absence of the accused.

4 The application for leave and the proposed appeal is opposed by the respondent who is represented by counsel instructed by the State of Western Australia.

5 The appellant was charged pursuant to a prosecution notice dated 22 May 2007 with stealing a motor vehicle contrary to s 371A and s 378 of the Criminal Code. The matter was brought on for hearing in the Magistrates Court at Mandurah on Monday, 5 November 2007. A transcript of the hearing forms part of the materials before me. The appellant was represented by an experienced counsel, Mr Malcolm Hall, and entered a plea of not guilty to the charge.

6 It appears from the transcript that at the commencement of the trial the appellant was in court to enter his plea of not guilty. His counsel then referred to the fact that the appellant was shackled or manacled, and asked whether that was pursuant to an order of the court. His Honour said that issues of security were handled by security staff. They were aware of his attitude, namely, that if they made a decision that security measures were appropriate then it was the magistrate's belief that he should allow them to take whatever steps were necessary in order to maintain security.

7 Counsel queried this, asserting that it was the Magistrates Court and the decision should be that of the presiding magistrate. His Honour responded as follows: 'I just indicated to you that the decision is mine'. Counsel then asked how his Honour could make a decision if he did not know the rules or the reasons advanced for the appellant being manacled. His Honour simply observed that he had responded to the concerns of counsel and intended to proceed with the trial.

8 At that stage there was some discussion about the likely order of witnesses. Counsel for the appellant referred to advice he had received from the prosecutor that the evidence of a witness named Chilcott was to be taken by video link, as a consequence of an application that had been made without notice to the appellant or his solicitors. I note in passing that on the prosecution case Luke Chilcott had allegedly been recruited by the appellant as a party to the offence.

9 When defence counsel pressed for clarification as to whether the application for evidence to be given by video link had come before the learned magistrate, counsel was informed that his Honour had 'dealt with the application in accordance with the Criminal Procedure Act'.

10 Defence counsel went on to observe that matters might have been presented to his Honour which had a bearing on the defence and his Honour's attitude to hearing the case. Counsel asked whether reasons had been provided for the order made. His Honour simply said:

Mr Hall, I told you a moment ago, I have applied the provisions of the Criminal Procedure Act.

11 The prosecutor then proceeded to call his first witness, being the owner of the subject vehicle. The evidence of this and other witnesses was directed to establishing allegations that on 18 October 2004 a Holden Commodore motor vehicle owned by Judith Murphy was stolen from a car park in Success by a person or persons unknown; on the following day, the appellant recruited Chilcott to drive to the Peel Health Campus in Greenfields where the Commodore was parked.

12 On the prosecution case, the appellant used a screwdriver to open the door of the vehicle and start the ignition. He directed Chilcott to drive the vehicle into the Meadow Springs area while the appellant followed the vehicle in a hired utility. They were observed by the police. This led to a chase in which the appellant parked the utility and ran from the scene while Chilcott was arrested.

13 Shortly before the luncheon adjournment defence counsel, in answer to a question from the bench, indicated that he would be calling the appellant as a witness. Immediately after the adjournment the learned magistrate invited defence counsel to confer with his client as information from security staff indicated that there might be an issue in regard to defence counsel's instructions.

14 After a short delay, defence counsel informed his Honour that his instructions had been withdrawn. During the course of the relevant exchanges defence counsel confirmed that as a consequence of conferring with his client he understood that the appellant would not come back into the courtroom and that if there were any attempts to bring him to the court there would be violence. Counsel confirmed also that the appellant had been warned that the trial was likely to proceed in his absence.

15 His Honour observed that in these circumstances, if the accused chose to absent himself from the court, and indicated that any attempt to bring him to the court would be met with violence, the matter should proceed to finality in his absence.

16 Defence counsel then withdrew and the trial proceeded in the absence of the appellant and the appellant's counsel. However, as it happened, no further evidence was led that day.

17 The trial resumed on 6 November 2007 in the absence of the appellant. The witness Chilcott gave evidence by video link pursuant to the order mentioned earlier. He said that the appellant, who he knew, had recruited him to drive the Commodore on the basis that it was to be used in the commission of an offence. The appellant drove him to the location of the vehicle in the hired utility. It was apparent to Chilcott from the damaged ignition that the vehicle had been stolen. The appellant opened the door of the vehicle with a screwdriver and started the ignition with the same screwdriver. Chilcott described the events preceding his arrest. The prosecution then closed its case.

18 At the close of the prosecution case, his Honour summarised the evidence. He directed himself that he should treat the evidence of Chilcott with appropriate caution as he was an accomplice and particularly so, given that his evidence was not the subject of cross-examination. However, his Honour went on to say that he accepted the evidence of Chilcott as supported by the evidence of the other witnesses. His Honour concluded that the charge had been proven against the appellant beyond reasonable doubt.

19 His Honour was informed that the appellant was a sentenced prisoner with an earliest release date in 2014. His Honour then imposed a sentence of 6 months' imprisonment to be served concurrently with any other term currently being served.

20 By an appeal notice dated 26 November 2007 the appellant applied to the Supreme Court for leave to appeal against his conviction upon the following grounds:

There has been a miscarriage of justice in that the learned magistrate:

(a) allowed the appellant to be manacled throughout the proceedings contrary to s 12(3) [sic] of the Court Security and Custodial Services Act 1999

(b) permitted the main prosecution witness to give evidence by video link pursuant to an ex parte order purported to have been made under s 138 of the Criminal Procedure Act and without divulging to the Appellant any details relating to that order until the commencement of the trial, and

(c) on the hearing of applications made on behalf of the Appellant in relation to the above matters so dealt with those applications in such a manner as to subsequently cause the Appellant to conduct himself in a way which the court considered made it impracticable to continue the proceedings in his presence and to continue the hearing in his absence pursuant to s 140(1) of the Criminal Procedure Act, but without making any other arrangements pursuant to s 140(2).

and thereby deprived the Appellant of a trial according to law.

21 On 17 December 2007 an order was made by McKechnie J that the application for leave to appeal was to be heard and determined at the same time as the appeal. Various consequential orders were made at the same time.

The respondent's application as to further evidence

22 I have before me also an application dated 13 March 2008 by the respondent for orders under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) for the admission of other evidence, namely, an affidavit of Tracey Zampogna dated 28 February 2008 and the criminal record of the appellant.

23 This application was supported by the affidavit of Catherine Elizabeth Fitzgerald sworn 13 March 2008. The Fitzgerald affidavit refers to the history of the matter and to enquiries made by the deponent directed to the Supervisor of Custodial Services at Mandurah Magistrates Court, Ms Zampogna, for the purpose of discovering whether the latter had any information regarding the appellant which was relevant to the grounds of appeal in these proceedings.

24 The subject enquiries established that Ms Zampogna was on duty at Mandurah Magistrates Court at the relevant time and this led to the provision of the affidavit of Tracie Zampogna dated 28 February 2008.

25 I will return to these matters shortly. However, it will now be useful to look at certain statutory provisions and decided cases bearing upon the matters before me.

26 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by pt 2 of the Criminal Appeals Act 2004 (WA). Section 9 of the latter Act provides that leave of the Supreme Court is required for each ground of appeal. By s 9(2) the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.

27 In Samuels v The State of Western Australia [2005] WASCA 193; (2005) WAR 473 it was said that the purpose of the legislative provisions is to weed out unmeritorious appeals. However, at the same time, the fundamental principle must be recognised that appellants ought not to be shut out from challenging judicial decisions. The ordinary meaning of the operative words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground has a real prospect of success.

28 The question of whether each ground has a real prospect of success requires that consideration be given to some additional provisions and principles.

29 By s 14 of the Criminal Appeals Act the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

30 It is apparent from s 39 of the Criminal Appeals Act that an appeal court must decide the appeal on the evidence and material that were before the Magistrates Court, but this does not prevent consideration of any evidence that the Magistrates Court refused to admit. By s 40(1)(e) the appeal court may admit any other evidence.

31 In Lawless v Turner [2007] WASCA 2 Roberts-Smith JA observed at [55] that it was arguably unduly narrow to proceed upon the basis that the discretion conferred by s 40(1)(e) of the Criminal Appeals Act is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal. This reasoning was later approved on appeal in Lawless v Turner [2007] WASCA 127.

32 However, his Honour recognised at [61] that those principles would continue to be 'significant considerations'. This suggests that the power to admit further evidence exists to service the demands of justice. However, it is unlikely that s 40(1)(e) would be construed so broadly as to have the practical effect of obliterating the distinction between original and appellate jurisdictions.

33 The consequence is that evidence should ordinarily not be admitted for the first time on appeal if it was available, or could reasonably have been obtained at the time of the hearing. In considering the new or fresh evidence an appellate court must decide on the relevance and credibility of such evidence: Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] - [211].

34 Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

35 The question on appeal will often be not whether the appellate court would have formed a different view, but whether the magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.

36 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226. Owen J observed at [73] in that case that at common law there was (and is) a duty of a decision-maker required to act judicially to give reasons for decision.

37 The giving of reasons is a normal (albeit not universal) incident of the judicial process because fairness requires that the parties should know why they have won or lost and a requirement to give reasons is likely to produce a more soundly based, rational judgment. Further, where there is a right of appeal, the reasons must be sufficient to give effect to that right: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 667.

38 In Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 the Full Court observed at [29] that inadequacy of reasons does not necessarily amount to an appellable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice.

39 In determining whether the proviso in s 14 as to a miscarriage of justice applies, the court must be satisfied that there was not a fundamental error in the course of the trial and even if there was not, the appellant has not lost a fair chance of acquittal. Misdirection as to the standard of proof of an element of an offence does not necessarily constitute a fundamental flaw, although it may well deprive the accused of a fair chance of acquittal: Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202.

40 In Rabey v The Queen [1980] WAR 84 the Full Court held that the test for miscarriage of justice in a case in which the trial process has gone wrong is whether there has been a serious departure from the essential requirements of law.

41 Let me now return to the circumstances of the present case.

42 It emerges from earlier discussion that the Zampogna affidavit which the respondent sought to adduce on the hearing of the appeal was directed to the provision of information concerning the grounds of appeal and the security issues.

43 I will not traverse the Zampogna affidavit in its entirety. In summary Ms Zampogna says that she was on duty as supervisor on Monday, 5 November 2007 at the Mandurah Magistrates Court when the appellant arrived on the site. She submitted to Magistrate McIntyre a printed form 'Request for Authority to Use Person in Custody Restraints' by giving it to her orderly who handed it to the judicial support officer. She was later informed by her officer that the request had been granted.

44 It appears from the request form that the reasons for the request in relation to the appellant were given as the appellant's previous escape history, his demeanour, the extreme risk of violence and extreme risk of escape. That part of the form concerning authority to use handcuffs and/or leg restraints was not signed by the learned magistrate as to being granted or declined. However, it appears from the affidavit that Ms Zampogna proceeded upon the basis that she had the verbal authority mentioned earlier.

45 Ms Zampogna described at some length in the affidavit the sources of information underlying the reasons formulated by her, such sources including the Total Offender Management System and a Justice Intelligence Service Prisoner Risk Assessment. Her information was that the appellant had escaped from the Mandurah Courthouse on 28 October 2004 and in doing so assaulted two AIMS officers in the process. He was later charged for the escape and assaults and pleaded guilty to the charges. His behaviour had been threatening to officers in the past.

46 It appears from the Zampogna affidavit that after being escorted from the court back to his cell as a consequence of the luncheon adjournment the appellant exhibited annoyance that the Chilcott evidence was to be given by a special video link from an undisclosed area. Various exchanges occurred in the course of which the appellant made it clear that he was sacking his lawyer and refused to go back into court stating: 'No, because McIntyre will insist that I self rep and the only way I will get out of it will be to assault one of you'.

47 The appellant's position was conveyed to his Honour and the appellant was given lunch. However, during the course of the lunch hour the appellant became irate and started to damage the wall of his cell. It was noted in the custody log that he had made threats to escape. In due course four police officers arrived and managed to subdue the appellant who was still abusive but did not continue with the damage to the cell.

The appellant's application as to further evidence

48 The appellant seeks to adduce in evidence on the hearing of the appeal the affidavit of defence counsel, Malcolm Hall, sworn 8 February 2008 bearing upon the matters in issue. The affidavit is self-explanatory and reads as follows:

I am a solicitor for the appellant and was his counsel in the court below.
Luke Andrew Chilcott had previously and separately been charged with and pleaded guilty to stealing the Commodore and was to be called as a prosecution witness against Mills.
During the luncheon adjournment of the trial I was advised by the prosecutor Sgt. Scott that the application to take the evidence of Chilcott by video had been made by him (Sgt. Scott) ex parte to Magistrate McIntyre pursuant to s 138 of the Criminal Procedure Act 2004 and also that he considered himself unable to advise me further due to the restrictions placed upon him by Rule 22 of the Criminal Procedure Rules 2005.
After I had objected to the proposal to take the evidence of Chilcott by video there was a short adjournment during which I spoke to the appellant. I was advised by him that he considered himself always to have trouble when he appeared before Magistrate McIntyre and that he considered the order to take the evidence of Chilcott by video to be particularly unfair to him as he believed it was essential that Chilcott be present in court to give his evidence and be cross-examined in person in order to allow a proposal by his Legal Aid solicitor to have Chilcott's evidence transcribed for use in a Supreme Court mediation conference relating to a robbery prosecution against Mills.
Immediately prior to the recommencement of the trial after the luncheon adjournment, on the advice of the magistrate, I spoke to the appellant. We spoke through a slot in the door of the holding cell as the security officers would not allow me to enter. Mills advised me that he considered Magistrate McIntyre to be biased against him and determined to convict him and because of those beliefs he would take no further part in the trial and that he had damaged the cell and would be violent to any person who attempted to take him into court.
It was my opinion that the instructions given me by Mills afforded him a good defence which would have been confirmed by the in-person cross-examination of Chilcott.

Ruling as to the further evidence application

49 The statutory provisions and decided cases mentioned earlier establish that in an appeal of this kind there is a broad power to admit other evidence. In exercising the discretionary power the appellate judge is not necessarily restricted by the rules concerning fresh evidence to admitting only evidence that could not have been identified by a diligent search at the time of the original hearing, provided the distinction between the trial process and the appeal process is maintained.

50 In the present case, I consider that the application to admit the proposed further evidence should be allowed. The issues raised by the grounds of appeal require that evidence be presented bearing upon those issues so that the court is not forced to speculate. The evidence in question could not have been obtained previously by diligent search because the issues raised on the appeal arose after the original hearing. I have no reason to doubt the credibility of Ms Zampogna or the accuracy of the court record, being the pieces of evidence sought to be admitted.

51 In my view, it is necessary to admit evidence of the kind proposed pursuant to s 40(1)(e) of the Criminal Appeals Act in order to resolve the procedural issues before me justly. I will admit also the affidavit of Malcolm Hall. It follows that I will now take the further evidence into account in addressing the grounds of appeal.

53 By the first ground of appeal it is said that there has been a miscarriage of justice in that the learned magistrate allowed the appellant to be manacled throughout the proceeding contrary to s 12(3) of the Court Security and Custodial Services Act 1999. It was common ground at the hearing before me that this was directed to sch 2, cl 12(3) of the Act. I will proceed accordingly.

54 There are various statutory provisions bearing upon this ground of appeal. By s 8 of the Court Security and Custodial Services Act the Chief Executive Officer ('CEO') of the subject department is responsible for providing for the protection of people who work at court premises, people who are required to attend court premises as a witness or juror or in the course of work and other people in a courtroom. They are to be protected from physical harm or loss of liberty that is threatened or deliberately imposed by another person. By s 10 of the Act the CEO is responsible for the security, control, safety, care and welfare of a person in custody who is in a court custody centre or within any other part of the court. Section 21 of the Act provides that the CEO has all the powers set out in the Schedule to the Act. By s 25 the CEO may authorise certain other persons to exercise the powers.

55 The powers in relation to custodial services are set out in sch 2 of the Act. By cl 12(2) the power to restrain a person in custody is limited to circumstances in which, in the opinion of the authorised person, the restraint is necessary to prevent a person in custody injuring himself or any other person, to prevent a person in custody from causing damage to property or to prevent the escape of a person in custody during the person's movements within a custodial place.

56 By cl 12(3) the power to restrain a person in custody in a courtroom is not to be exercised unless the person presiding in the courtroom has directed that the person in custody be restrained in the courtroom. The power is to be exercised in accordance with any direction of the person presiding in the courtroom. Provision is made for regulations as to the kinds of devices that can or cannot be used to restrain persons in custody.

57 Counsel for the appellant submitted that, properly interpreted, these provisions seek to ensure that all matters relevant to the exercise of the power to restrain a person in custody in a courtroom are reviewed and considered by the presiding magistrate. The maxim 'delegatus non potest delegare' reflects the general proposition that delegates to whom a power has been delegated must, generally speaking, exercise that power themselves: Way v The Queen (1981) 3 A Crim R 465; [1981] 2 NSWLR 653, 470.

58 It was said further that the magistrate could not, as he appeared to have done in the present case, make a blanket delegation to another to carry out his duty to consider and resolve the relevant security issues. More particularly, he could not delegate to the person whose conduct he was supposed to supervise.

Respondent's submissions as to first ground

59 Counsel for the respondent noted that in the present case the general principle that security matters are within the absolute authority of the trial judge did not appear to be disputed. Further, it did not seem to be asserted by the appellant that there was an issue of prejudice arising from the security measures taken in court, given that this was not a trial before a jury. Rather, the first ground of appeal relied upon the learned magistrate having delegated his power to restrain the appellant, contrary to sch 2, cl 12(3) of the Court Security and Custodial Services Act. That submission assumed that the decision was indeed delegated.

60 However, Ms Zampogna's account did not support the appellant's contention that the learned magistrate made a blanket delegation of his authority to the security staff. He stated in court, in response to questioning by counsel for the appellant: 'I just indicated to you that the decision is mine'. This was consistent with the account given by Ms Zampogna. On her account, having regard to information she had received from government agencies and the risk of violence, Ms Zampogna requested and then obtained a verbal direction from the magistrate to use handcuffs and/or leg restraints.

61 Accordingly, the respondent submitted, the evidence did not show that there had been a delegation of the magistrate's authority in regard to the restraining of the appellant. It could be inferred from the Zampogna affidavit and from what the magistrate said in court that he reposed trust in the security staff, he was inclined to give weight to their recommendations, but he accepted that in the end he was the decision-maker. His final summation in court that 'the decision is mine' shows that he acted accordingly. Further, and in any event, the respondent submitted, no miscarriage of justice occurred as a result of the restraint of the appellant, irrespective of the procedural process involved.

Observations as to the first ground of appeal

62 It is apparent from the scheme of the subject legislation that it is principally concerned to provide for the administration of court security and custodial services.

63 The Chief Executive Officer of the Department or 'CEO' is the person primarily responsible for the provision and management of security services in court premises and court custody centres. By s 20 the CEO may, by instrument, delegate any of his or her functions under the Act save for certain powers specified in s 20(2) of the Act. Section 20(3) provides that a function performed by a delegate is to be taken to be performed by the CEO. By s 25 the CEO may authorise certain other persons to exercise powers.

64 By s 21 the CEO has all the 'schedule powers' (that is, the powers set out in sch 1, sch 2 or sch 3 of the Act) and any exercise by the CEO of a schedule power in relation to a matter prevails over the exercise of that power by any other person in relation to that matter.

65 Schedule 2 sets out the nature of the powers in relation to custodial services. The powers include the power in cl 12 to restrain persons in custody, being the power mentioned in earlier discussion. As I have indicated, by s 12(2) the power to restrain is limited to circumstances in which, in the opinion of the authorised person, the restraint is necessary to prevent a person in custody causing injury or damage to property, or on medical grounds, or to prevent the escape of a person in custody.

66 In various places there is a recognition in the statutory provisions that the powers being exercised by the CEO, or by delegates or authorised persons at the behest of the CEO, may intersect with or possibly conflict with the powers of a judicial officer to control proceedings in court. For example, s 35 provides that nothing in this Act limits any power that a court has to issue orders or directions or to make rules in relation to court security and court custodial services affecting the court.

67 By s 93 of the Act, where, under any law, a court may order or direct a particular person to take charge of a person in custody at a custodial place, the court may order or direct a person who is authorised to exercise a power set out in such a clause as cl 2, cl 3, cl 4 or cl 5 of sch 2 as is relevant to the case, as if the authorised person were the particular person.

68 More importantly, for present purposes, as I indicated in earlier discussion, cl 12(3) provides that despite subcl 2 (that is, despite the availability of a power to restrain in certain specified circumstances where it is thought to be necessary in the opinion of an authorised person), the power to restrain a person in custody in a courtroom is not to be exercised unless the person presiding in the courtroom has directed that the person in custody be restrained in the courtroom (cl 12(3)(a)). Further, the power is to be exercised in accordance with any direction of the person presiding in the courtroom (cl 12(3)(b)).

69 Related provisions refer to the circumstances in which medication can be used as a form of restraint and to the making of regulations concerning the kinds of devices or substances other than medication that can or cannot be used to restrain persons in custody.

Further observations as to the first ground

70 Clause 12 and the related provisions indicate that even though a person be in custody he or she will normally be entitled to move freely (within the limitations inherent in the custodial situation) and will only be physically restrained by devices such as handcuffs or manacles in special circumstances of the kind referred to in cl 12(2) of the schedule; for example, if, in the opinion of the authorised person, it is necessary to prevent injury or escape.

71 The exceptional nature of the power to restrain is underlined by the requirement that in a courtroom a direction be obtained from the person presiding that the person in custody be restrained in the courtroom. This reflects the commonly held view by those working in the legal system that an accused person who appears in court subject to some form of restraint (such as manacles), especially before a jury, might not be receiving the full benefit of the presumption of innocence. The presence of manacles might be thought to stigmatize the accused as a person of bad character. It should therefore not be thought surprising that the judicial officer or person presiding, as the person charged with the responsibility of ensuring that the proceedings are conducted fairly, should be involved in the question of whether a restraint should be imposed.

72 However, as one begins to look more closely at cl 12(3) concerning the power to restrain a person in custody in a courtroom, a number of issues arise.

73 The provision does not state expressly that the person presiding is under a duty to decide whether a restraint is appropriate. It does not state expressly that a power is vested in the person presiding to make an order to that effect, although this might be thought to fall within the general power of the person presiding to determine the manner in which the proceedings are conducted. At first blush, cl 12(3), when considered in conjunction with related provisions, suggests that the power to restrain a person in custody in a courtroom is a power exercised by an authorised person, albeit conditioned by a requirement that a direction be obtained from the person presiding in the courtroom.

74 This in turn raises an issue as to whether a direction given by the person presiding should be regarded simply as an administrative direction or, alternatively, whether it should be regarded as being in the nature of a judicial determination in that it may affect the rights of a person involved in proceedings in the courtroom.

75 Importantly, for present purposes, if the direction to be obtained from the presiding person be regarded as a judicial determination or order, further questions may arise as to whether the rules of natural justice apply with the result that the nature of the matters or information which are said to justify the imposition of a restraint should be disclosed to the person in custody and that person be afforded an opportunity to be heard in relation to the matter. There may also be a question as to whether the person presiding is required to give reasons for any decision made.

76 This brings me to certain legal principles and statutory provisions bearing upon the capacity of an aggrieved person to obtain relief in respect of an alleged irregularity or lack of compliance with the requirements of the Act.

77 Wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals or affecting their legal rights, the courts are inclined to hold that such bodies are required to act judicially, that is to say, they must act within jurisdiction and they will be obliged to observe the rules of natural justice by acting impartially and by allowing to the party likely to be affected an opportunity to be heard. If such a body falls into error then traditionally relief could be obtained via the prerogative writs of certiorari and prohibition.

78 For example, in Re Robins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16 it was held that an inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. The test for jurisdictional error is broader for an administrative tribunal than for an inferior court.

79 In that case, the magistrate was conducting a preliminary hearing in regard to a charge of wilful murder. The magistrate's function was not to determine the guilt or innocence of the defendants, but to determine whether there was sufficient evidence to refer them to trial before a judge and jury. It has consistently been held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of an executive or ministerial function. It was in the performance of that function that the magistrate made a suppression order restricting the publication of evidence given at the preliminary hearing.

80 The Full Court held that while the learned magistrate was exercising non-judicial powers in conducting the preliminary hearing, she was nevertheless sitting as an inferior court, as part of the ordinary jurisdiction of Court of Petty Sessions, and she was involved in a preliminary step in the process of criminal justice having the closest, if not an essential, connection with an actual exercise of judicial power. Therefore, the proper test for jurisdictional error was that ordinarily applied to an inferior court: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1.

81 It was held by the High Court in Hot Holdings Pty Ltd v Creasy [1995] HCA 60; (1996) 185 CLR 149 that a preliminary decision or recommendation by a mining warden, if it is one which constitutes a condition precedent to an exercise of power that will affect legal rights, will have the requisite legal effect upon rights to attract certiorari. Thus, in that case, because the minister was required to take the warden's recommendation into account, the warden's decision had a discernable legal effect on the minister's exercise of discretion. Hence, certiorari lay to challenge of a decision by a warden to conduct a ballot for the purpose of determining the party entitled to priority under certain provisions of the Mining Act 1978 (WA).

82 In the present case, I am of the view that the learned magistrate was required to act judicially, with the result, having regard to these principles, he was required to act within jurisdiction and in accordance with the rules of natural justice. In other words, the decision to be made by the presiding magistrate as to whether a direction for restraint in the courtroom should be given in response to a request from an authorised person should be characterised as a decision to be made in the exercise of a judicial power to control proceedings in the courtroom. This is because the decision was one that could affect the rights of a party for the reasons mentioned earlier.

83 Such a decision had to be made having regard to considerations of the kind enunciated in cl 12(2) of the Schedule (where reference is made to matters such as injury or damage to property or the likelihood of escape) and to the need for fairness in the conduct of the proceedings.

84 I pause to say that even if the giving of a direction for restraint be regarded not as the direct exercise of a specific judicial power, but simply as a condition precedent to an exercise of power by an authorised person, the reasoning in the Hot Holdings case appears to establish that the giving of such a direction will have a sufficient effect upon rights to attract certiorari.

85 The rules of natural justice generally require that when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case against him and to be given an opportunity of replying to it.

86 As a general rule, pursuant to the precept that a person should not be condemned unheard, no order should be made to the prejudice of a party unless he is present or has been afforded the opportunity of being heard in defence: Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 at 681.

87 The rule applies to both sides. This can be illustrated by Director of Public Prosecutions v Carr [2002] NSWSC 194; (2002) A Crim R 151. In that case the respondent was charged with resisting, assaulting and intimidating police. The magistrate held that certain evidence was obtained as a consequence of an improper arrest. The appellate court said that in assessing impropriety the magistrate was entitled to rely upon his own experience and research. However, he was obliged to alert the parties to material of that kind and give them an opportunity to deal with it. It followed that the prosecution was denied natural justice and the appropriate order was made to quash the magistrate's decision.

88 The requirements of procedural fairness are controlled by the nature of the statutory provisions and may vary according to the circumstances in the particular case. Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised in a peremptory manner: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 615, 633.

89 These principles can be illustrated by reference to Re Bromfield; Ex Parte West Australian Newspapers Limited (1991) 6 WAR 153. In that case a local newspaper was held to have sufficient interest to be heard in opposition to a suppression order made by a magistrate, because it was directly affected by the making of the order, and the magistrate's refusal to hear the applicant amounted to a denial of natural justice.

90 It does not follow from this, as appears from the observations made by Malcolm CJ at 171, that the court may not proceed to make an order prohibiting or restricting publication without first hearing any representative of the media present in court. However, the publisher generally would be entitled to be heard by counsel who wishes to make an application for revocation or variation of the order.

91 His Honour went on to observe that there may be circumstances where, in the interests of security, particularly in an emergency, the discretion necessarily vested in the court to regulate its own procedure may have to be exercised of its own motion and in a peremptory manner.

92 For example, if the judge was informed of an immediate security threat it might be necessary to clear the court without giving anyone the opportunity to be heard. In other cases, there may be circumstances under which an order needs to be made urgently in the first instance with no opportunity for hearing at that stage. In such a case where the order has the effect of prohibiting or restricting publication, an opportunity to be heard on an application to discharge or vary the relevant order should be extended to any party having a sufficient interest at the earliest convenient time.

93 It emerges, then, from this discussion, that if the appellant in the present case was able to show that the decision whereby he appeared in court subject to a restraint was irregular, because the learned magistrate misapprehended the nature of his jurisdiction as to this matter or failed to observe the rules of natural justice, the decided cases suggest that relief by way of certiorari might be obtained in order to quash the decision.

94 However, the position portrayed in cases such as Re Robins and Re Bromfield must now be reviewed in the light of the comparatively recent repeal of the Justices Act 1902 (WA), and the reforms effected by the Magistrates Court Act 2004 (WA) and the Magistrates Court (Civil Proceedings) Act 2004 (WA).

95 I will not traverse the changes effected by the statutes in question in their entirety. Section 10 of the Magistrates Courts Act provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act. Section 11 of the Magistrates Courts Act provides that the court's criminal jurisdiction is set out in that provision. The court has jurisdiction to hear and determine a charge of a simple offence and to hear and determine a charge of an indictable offence that can be dealt with summarily.

96 The court can also deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction. By s 11(4) of the Act, in exercising its criminal jurisdiction, the court is a court of summary jurisdiction. These provisions establish that the learned magistrate sitting as a court of summary jurisdiction had jurisdiction to deal with the matter before him in the present case.

97 Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. However, by s 36, if a person is aggrieved by the failure of a court officer to do any act or make any order or direction on any ground that might have justified an order of mandamus or certiorari, the person may apply to the Supreme Court for a 'review order' that requires the court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside as the case requires. The procedure for making such an application is to be prescribed by rules of the Supreme Court.

98 Section 36(6) provides that when dealing with an appeal under the Criminal Appeals Act 2004 (WA) the Supreme Court may make a review order and, if it does, may also make an order under subs 4. The latter provision is to the effect that if at the hearing required by a review order the Supreme Court is not satisfied as above in accordance with the review order, or if it is just to do so, it may grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari.

99 It will be useful now to recall that the matter before me was instituted not as an 'order for review' under these provisions of the Magistrates Court Act but as an appeal from a court of summary jurisdiction pursuant to provisions of the Criminal Appeals Act. Thus, the operative document is an appeal notice dated 26 November 2007 filed and served in the manner allowed for by the Criminal Appeals Act and r 65 of the Criminal Procedure Rules.

100 Section 7 of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. By s 6 of the Act a 'decision' of a court of summary jurisdiction means any of the following, namely, a judgment entered under certain provisions of the Criminal Procedure Act, a decision ordering a permanent stay of a prosecution, a decision to convict an accused of a charge, a decision to acquit an accused of a charge, a sentence imposed, or order made, as a result of a conviction or acquittal, a refusal to make an order that might be made as a result of a conviction or acquittal, a decision as to costs or a decision made under the Criminal Investigation Act 2006 (WA) s 151. By s 7(4) except as provided by s 7, no appeal lies against a decision of a court of summary jurisdiction.

101 It is immediately obvious that a further question arises in the circumstances of the present case as to whether any challenge to the regularity of a direction given by a magistrate as to whether a party in custody should be restrained can be challenged by way of an appeal to a single judge of the Supreme Court pursuant to the provisions of the Criminal Appeals Act just mentioned. On the one hand, it can be argued that in the circumstances of the present case, where a conviction was eventually recorded against the appellant that it is open to the aggrieved party in his grounds of appeal to raise an alleged irregularity upon the basis that it contributed to a miscarriage of justice with the result that the conviction should be set aside.

102 On the other hand, it might be said that in circumstances where relief might previously have been obtained by way of certiorari that an application for a review order is the appropriate step. However, even so, it appears from s 36(6) of the Magistrates Court Act that in dealing with an appeal under the Criminal Appeals Act it will be open to the court to provide relief of the kind allowed for by a review order if it is just to do so.

103 I note in passing that in Reynolds v Panten (No 1) [1999] WASCA 89; (1999) 23 WAR 215, being a case decided under the old regime, Steytler J held that a ruling by a magistrate as to the making of a suppression order could not be characterised as a 'decision' within the meaning of s 4 of the Justices Act with the result that the proposed appeal was incompetent. By s 4 of that Act a decision was defined to mean a conviction or a finding, the dismissal of a complaint, any other final determination of a proceeding, or a sentence imposed or order made consequent on any conviction, finding, dismissal or determination.

104 In the related case Reynolds v Panten (No 2) [2000] WASCA 412; (2000) 23 WAR 238 the Full Court held that the decision by the learned magistrate 'did not amount to the final determination of a proceeding' within s 4 of the Justices Act, there having been no 'proceeding' concerning the refusal to grant a suppression order. The appeal was therefore incompetent and had properly been dismissed by the single judge. The correct approach for someone wrongly refused a ruling lay in the prerogative writ. The Full Court went on to hold that the magistrate wrongly concentrated on the question of 'open justice' and did not have sufficient regard to the rights of the litigant. Accordingly, the magistrate fell into jurisdictional error. It was appropriate to make the order nisi for a writ of mandamus absolute.

105 The structure of the new legislative scheme, being the scheme reflected in the provisions of the Magistrates Court Act and the Criminal Appeals Act that I mentioned a moment ago, suggests that a conscious attempt was made to circumvent the effect of these two cases. Thus, it is now open to a single judge of the Supreme Court dealing with an appeal under the Criminal Appeals Act to provide relief in respect of jurisdictional error or a breach of the rules of natural justice if it is just to do so. Further, and in any event, a serious departure from the essential requirements of the trial process will amount to a miscarriage of justice sufficient to justify relief pursuant to the relevant provisions of the Criminal Appeals Act if the matter in question is raised in the grounds of appeal.

106 Let me now return to the circumstances of the present case.

107 As a consequence of my earlier ruling concerning the admission of fresh evidence, the evidence before me establishes that on the morning of the hearing information from government agencies was submitted to the magistrate relevant to security considerations of the kind referred to in cl 12(2) of the Second Schedule to the Court Security and Custodial Services Act.

108 In other words, I have evidence to the effect that a request form was prepared and submitted to the learned magistrate by Ms Zampogna concerning the appellant's previous escape history, his demeanour, the extreme risk of violence and the risk of escape. A direction was sought that the authorised person have authority to use handcuffs and/or leg restraints.

109 It is said in the Zampogna affidavit that a request for a direction was put to the learned magistrate in this form and a verbal direction to proceed in accordance with the request was received. I have no evidence to the contrary and, as I have indicated, what was said by the magistrate in open court can be regarded as consistent with the notion that an issue concerning security had been brought to his attention, although, certainly, he was not forthcoming as to what exactly had occurred.

110 Counsel for the appellant contends that what was said in court amounted to an admission by the learned magistrate that he had not really considered the matter but had simply left it to the security person to act as that person thought fit. It is said that the magistrate had no power to delegate the special power allowed to him under cl 12(3) as the presiding judicial officer and, in any event, the very nature of the power required him to deal with the matter himself.

111 In the end, I am not persuaded by this facet of the appellant's argument. It is true that the magistrate responded to the enquiry in a rather peremptory way as to how it came about that the appellant was subject to a restraint when he entered the court. However, it seems to me, now that I have evidence before me as to what in fact was known to the magistrate, the answer he gave was open to the interpretation that he had worked with the security officers before, trusted their judgement, and when that was considered in combination with the information he had concerning the appellant, he had no hesitation in giving the requested direction. Importantly, as appears from the transcript, he said that it was his decision. In other words, he accepted that responsibility for the decision lay with him. I do not accept that he delegated or failed to exercise the power vested in him simply because he gave weight to and acted immediately upon a recommendation that came to him from those with expertise. Many important decisions are made, and have to be made in that way, especially in the field of security.

112 However, I do accept, having regard to my earlier analysis, that the decision by the magistrate as to whether a direction for restraint should be given was in the nature of a judicial determination which had a discernable affect upon the procedural rights of the appellant. Such a decision had to be made judicially; that is, fairly and in accordance with the rules of natural justice.

113 It is apparent from my analysis, having regard especially to the reasoning in Kioa v West and Re Bromfield, that the rules of natural justice did not necessarily require that, upon receipt of the request for a direction, there be an immediate hearing as to whether a direction should be given or not. In circumstances involving security issues of the kind before the magistrate on this occasion, including the possibility of an escape, the reasoning of Malcolm CJ in Re Bromfield suggests that it was open to the learned magistrate to give the direction in advance of hearing from the party likely to be affected by it.

114 I digress briefly to say that, in my view, the appropriate steps to be taken will depend upon the circumstances, including the nature of the security issue. In many cases, if debate concerning the accused's rights is to take place in open court in the presence of the accused, it may be necessary to give a preliminary direction for restraint before the debate commences, although in the case of a jury trial, the debate would usually take place in the absence of the jury. It may then become a question, after the party affected has been afforded an opportunity of being heard, as to whether the preliminary order should be varied or revoked or kept in force.

115 However, it follows from my analysis also, and from the observations that I have just made, that when a concern about the manacles was raised as an issue by counsel for the appellant, after the 'preliminary' direction had been given, with an endeavour being made, by implication, to vary or revoke the direction, the learned magistrate was obliged to afford an opportunity to counsel to put his client's position. Moreover, in my view, the magistrate, as the presiding judicial officer, was obliged also to give at least some reasons as to why the direction in question had been given.

116 In regard to a security issue of this kind, the reasons would not have to be elaborate. This must obviously be so in the case of a busy court of summary jurisdiction which is obliged to get through its business with expedition. However, the provision of reasons, would enable a proper determination to be made, after hearing argument, as to whether the reasons said to justify the restraint were outweighed by anything raised by or on behalf of the party affected by it.

117 I digress here to say that as in other areas of the law where security requirements may conflict with the conventions of fairness underlying the trial process, there are bound to be complexities surrounding the provision of reasons. If the reasons are put too graphically then, in certain cases, it might begin to sound as if the judicial officer had formed an adverse opinion of the accused. Each case will have to be dealt with carefully and on its merits, and possibly with special directions as to how the debate is conducted. To my mind, in certain cases it may be permissible to provide the reasons in a cursory or summary form only.

118 However, in the end, I have come to the conclusion that in the circumstances of the present case, the learned magistrate was obliged to observe the rules of natural justice but failed to do so.

119 In my view, for the reasons I have given, it was open to him to make a preliminary decision upon an ex parte basis, having regard to the relevant information put before him, but when the matter was raised with him by counsel at the commencement of the hearing, namely, whether it was appropriate and just for the appellant to be manacled during the course of the proceedings, he was obliged to afford to the party affected by his decision an opportunity of being heard.

120 If the matter had been argued out it might well have emerged that the magistrate had a sufficient basis for requiring that the appellant be manacled. However, the fact is that the appellant's counsel was not provided with a sufficient opportunity to be heard and the reasons provided by the magistrate for his decision were not sufficient for the matter to be debated adequately. It follows from this that, in my view, the magistrate erred in law in handling this matter.

121 In the course of earlier discussion, I looked at the question as to whether this court had jurisdiction to rule upon this matter. In my view, it would have been open to the appellant to seek a review order in respect of this matter in the manner allowed for by s 36 of the Magistrates Court Act which vest powers in the Supreme Court to control the conduct of proceedings in a court of summary jurisdiction. However, the structure of s 36 of the Act does not suggest that this is to be regarded as an exclusive avenue of relief. I consider that it was open to the appellant to advance this as a ground of appeal in seeking to demonstrate that a miscarriage of justice had occurred.

122 Should the appeal be allowed on this ground? The function of criminal appeals is not just to see that in a given case the right result is reached, but also to ensure that the rules of criminal procedure are respected and properly applied. Because of this, as I indicated in earlier discussion, it has frequently been held that a serious departure from a recognised procedure for conducting a criminal trial is a miscarriage of justice. The question of miscarriage of justice accordingly does not depend upon the effect which the departure in question had upon the verdict; but is rather whether there has been a serious departure from essential requirements of the law: R v Kerr (No 2) [1951] VicLawRp 27; [1951] VR 239 at 241.

123 I am of the view in the present case that the magistrate's error would in the normal course be sufficient to justify the grant of a review order on the ground that the rules of natural justice had been infringed. However, the grant of relief akin to that previously afforded by the writ of certiorari must inevitably be considered in conjunction with the efficacy of such relief and the availability of other forms of relief. The principal issue in the present case is whether the error complained of, which has now been found to exist, is sufficient to justify the quashing of the conviction pursuant to the provisions of the Criminal Appeals Act described in earlier discussion. Notwithstanding that a ground of appeal has been decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

124 If the events complained of in the present case had led to the appellant being brought before a jury in manacles, without having been afforded an opportunity to be heard in opposition to such a restraint, it would be easier to persuade an appeal court that there was a substantial miscarriage of justice, for a jury is likely to be more impressionable than a judicial officer sitting alone. However, in the circumstances of the present case, it might be said that in the case of an experienced magistrate, the presence of a restraint, as an order made essentially as a matter of precaution, without regard to the evidentiary issues concerning the charge, should not be characterised as a matter giving rise to a substantial miscarriage of justice.

125 There is force in the latter contention, and it serves to illustrate that each case must be dealt with on its own circumstances. Indeed, in Kerr's case a trial judge's failure to deal with a query from the jury in open court, immediately following receipt of the query, was held to be an irregularity, but not an irregularity occasioning a substantial miscarriage of justice because the form of the question was such that no re-directions would have helped the accused.

126 However, in the end, in the circumstances of the present case, I am of the view that the error must be characterised as a serious departure from the essential requirements of the law. I am prepared to accept that the magistrate, sitting alone, was capable of separating the security issues from the issues to be resolved concerning the charge before him but, in the absence of any opportunity being afforded to the appellant to be heard, there was a risk of the magistrate being unduly influenced by what had been put before him by the security officer prior to the hearing. Further, there is a fundamental principle that justice must be seen to be done. If a conviction is arrived at apparently in defiance of certain important procedural rules it will lack moral authority. It is for this reason, as I noted in earlier discussion, that one of the purposes of criminal appeals is to ensure that rules of criminal procedure are respected and properly applied.

127 Accordingly, as to the first ground I will grant leave and order that the appeal be allowed on this ground.

128 I must now turn to the second ground of appeal.

129 The appellant contended in his second ground of appeal that there had been a miscarriage of justice in that the learned magistrate permitted the main prosecution witness (that is, Chilcott) to give evidence by video link pursuant to an ex parte order purporting to have been made under s 138 of the Criminal Procedure Act and without divulging to the appellant any details relating to that order until the commencement of the trial.

130 As to this ground of appeal, it will be useful to begin by looking at provisions and decided cases bearing upon this issue.

131 Various provisions of the Criminal Procedure Act impose an obligation of disclosure upon the prosecution. This is to ensure that the accused person and his advisers are fully informed as to the nature of the prosecution case so that the relevant legal and evidentiary issues can be addressed. However, s 138(3) of the Act provides that a court may, in respect of a disclosure requirement, make an order that dispenses with all or part of the requirement, if it is satisfied there is good reason to do so and no miscarriage of justice will result.

132 By s 138(4) an application for an order under this section may be made by a prosecutor without notice to the accused and may be dealt with in the absence of the accused. Further, by s 138(5) if an order is made in the absence of an accused, the order must not be given or disclosed to the accused without the permission of the court that made it.

133 It emerges, then, that this provision does not deal directly with evidence given by video link. One must turn to other provisions in that regard.

134 Section 121 of the Evidence Act 1906 (WA) provides that a court may direct that evidence be taken or a submission be received by video link from a person at a place that is outside the courtroom. Importantly, by s 121(2) the court shall not make such a direction unless the court is satisfied that the video link is available or can reasonably be made available and the direction is in the interests of justice.

135 Provisions concerning the giving of evidence by video link are comparatively new. However, some consideration was given to them recently by Owen J in Bell Group Ltd (in liq) v Westpac Banking Corp [2004] WASC 162. This was in the context of civil litigation with a question arising as to whether orders should be made for the taking of evidence by video link from witnesses overseas. Owen J undertook a full review of the nature of the power conferred by s 121 of the Evidence Act.

136 He noted at [35] that advances in technology have been recognised by the legislature as having a legitimate part to play in the administration of justice. This is borne out by s 3(1) of the Acts Amendment (Video and Audio Links) Act 1998 (WA) which provides that nothing in the amended provisions is to be taken as preventing the use by a court or other person acting judicially of a video link in any case where the court or person thinks fit and where the use of the video link or audio link would not be contrary to law.

137 His Honour went on to say that these considerations provide a basis for adopting a liberal interpretation of such remedial legislation. He said at [36] that the effect on the interests of justice falls to be determined in the circumstances of the particular case. It is by taking into account all competing factors that the court ensures that the exercise of power will not prejudice unfairly the parties to the action.

138 At [169] his Honour reviewed decided cases expressing caution about the use of video link facilities as the court may be at a disadvantage at assessing the credit of a witness whose evidence is to be taken by video link. However, his Honour adopted the analysis of Austin J in Australian Securities and Investments Commission v Rich [2004] NSWSC 467. This reflected two main principle propositions being, first, that the court should encourage the use of electronic aids and, second, that there will be exceptional cases in which the court will insist upon proceeding by viva voce evidence: See Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526, 10; Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116, 11 and Australian Securities and Investments Commission v Rich.

139 In summary, then, it seems that weight should be given to the use of technology as an aid to justice but this must not override the traditional concerns of justice, especially in cases where the credibility of the witness in question is important. Each case will depend upon its circumstances.

140 Counsel for the appellant noted that orders pursuant to s 121 of the Evidence Act are usually made on application pursuant to r 23 of the Criminal Procedure Rules in open court after notice and service of an affidavit. Such an order, if made on the initiative of the court, should still be made in open court and with notice to the parties and the opportunity to be heard.

141 Counsel for the appellant submitted that s 138 of the Criminal Procedure Act (being the provision purportedly relied upon) relates to disclosure requirements and is irrelevant to the present matter.

142 Counsel for the respondent made these written submissions in regard to this ground of appeal:

It is clear from the terms of section 138 of the CPA that it is directed at dispensing with or amending the disclosure obligations of the prosecution in both summary and indictable trials, which in this case arose from sections 42 and 61 of the CPA. In considering the applicable disclosure requirements, given Chilcott had provided a statement to police which was disclosed to the appellant, it would not appear that the information sought to be exempted from disclosure (which can't be detailed without the permission of the court) was in fact required to be disclosed to the appellant under the provisions of the CPA.
In any event, even if that information was properly sought to be exempted from disclosure, it is conceded by the respondent that section 138 of the CPA does not allow for the actual application for the evidence to be taken by videolink to be conducted in the absence of the appellant. The application, as an application under the Evidence Act, comes within the definition of proceedings and, pursuant to section 88(3) of the CPA, must take place in his presence unless an order is made under sections 88(4) or 140 of the CPA.
However, it is significant that, in the discussions between the learned Magistrate and counsel for the appellant, his Honour referred to having made the order pursuant to the provisions of the CPA but without specifying the relevant section. It has been assumed that the order was made pursuant to section 138 of the Criminal Procedure Act. However, the respondent submits it is also possible that his Honour made the order pursuant to section 88(4) of the CPA. The respondent submits such an order would be consistent with the nature of the video link application, given it is not a matter which is likely to prejudice the interests of the appellant or be contrary to the interests of justice.
In the alternative, if the court is satisfied the application was heard and the order granted erroneously pursuant to section 138 of the CPA, it is submitted that no miscarriage of justice has resulted to the Appellant. Orders for witnesses to give evidence by video link are now routinely made in the courts. Whilst the court must find it is "in the interests of justice" to make the direction, such a phrase is not defined and involves the exercise of discretionary power by a judicial officer.

143 I pause here to note that various provisions of the Criminal Procedure Act reflect the rules of natural justice in making provision for the person affected by an order to be heard, and for the trial to take place in the presence of the accused.

144 By s 88 of the Act proceedings that relate to an accused must take place in his or her presence. However, by s 88(4) the court may order proceedings that relate to an accused to proceed in the accused's absence if it is satisfied that the accused's interests will not be prejudiced by his or her absence and that to do so will not be contrary to the interests of justice.

145 Section 172(1) provides that a party to a case is personally entitled to appear before the court in order to present and conduct the party's case and to call, examine, cross-examine and re-examine witnesses.

146 Section 140(1) provides that despite s 88(4) and s 172(1), if an accused conducts himself or herself in a manner that makes it impractical to continue proceedings in his or her presence, the court may order the accused to be removed and the proceedings to proceed in the accused's absence.

147 By s 140(2) this section does not prevent a court from allowing an accused to be present before the court by means of a video link or audio link or from taking evidence from an accused by either such means.

148 At the hearing before me it was common ground that prior to the commencement of the hearing before the learned magistrate an application had been made by the prosecution for an order that the evidence of the witness Chilcott be presented to the court by video link. It seems that this application was prompted by the fact that there had been a falling out between Chilcott and the appellant, given that Chilcott was to be a witness for the prosecution against the appellant, and the presence of ill-feeling made it necessary for the evidence to be heard by video link.

149 More particularly, Mr Hall said in his affidavit that, according to his instructions, the appellant considered the order to take the evidence of Chilcott by video to be particularly unfair to him as he believed that it was essential for Chilcott to be present in court to give his evidence and then to be cross-examined in person.

150 It appears from what was said by the learned magistrate on the transcript that he characterised the application for Chilcott's evidence to be given by video link as having been made pursuant to provisions of the Criminal Procedure Act. He thought that the discretionary power vested in a court of summary jurisdiction by s 138 of that Act to dispense with a disclosure requirement, without notice to and in the absence of the accused, enabled the magistrate to deal with the matter without hearing from the accused or his counsel. Certainly, there is nothing in the materials before me to suggest that the order was made pursuant to the power vested in a court by s 121 of the Evidence Act to direct that evidence be taken by video link.

151 There was a degree of ambiguity at the hearing before me as to the nature and contents of the document or documents comprising the subject application and as to what was said in the papers about the basis or justification for the application. The magistrate's exchanges with counsel as they appear in the transcript do little to clarify that aspect of the matter because the magistrate simply indicated that he had proceeded under the provisions of the Criminal Procedure Act.

152 It was put to me that possibly an order for discovery should be made with a view to casting further light upon this aspect of the matter. I reserved my decision in regard to any such step pending a determination as to whether such a step was necessary. In the end, for the reasons which will become apparent, I consider that the issue raised by the second ground of appeal can be resolved without any such order for discovery.

Further observations as to the second ground

153 It is clear from the terms of s 138 of the Criminal Procedure Act that the provision in question is directed at dispensing with or amending the disclosure obligations of the prosecution in both summary and indictable trials.

154 Chilcott had provided a statement to police which was disclosed to the appellant. Evidence given by video link prior to the hearing of the subject charge might conceivably be regarded as a supplementary statement which brought into play the continuing obligation to disclose. However, even so, the provision in question does not contain a power to order that evidence be given by video link. Moreover, it was not suggested in the course of argument before me that the dispensing power in s 138 of the Criminal Procedure Act was broad enough to allow for the making of an order that evidence be taken by video link, bearing in mind that a more specific power directed precisely to the circumstances in which evidence may be taken by video link is contained in s 121 of the Evidence Act.

155 To my mind, an application for the evidence of a prosecution witness to be taken by video link had to be made and dealt with pursuant to s 121 of the Evidence Act, having regard to the criteria and considerations referred to in that provision. By that provision a court may, on its own initiative or on the application of a party, direct that evidence be received by video link provided the court is satisfied that the video link can reasonably be made available and the direction is 'in the interests of justice'. I will deal with the meaning of the latter phrase in a moment but it obviously raises a question as to whether an opportunity should be afforded to both parties to be heard in regard to the application, notwithstanding that the court may act on its own initiative.

156 By s 88 of the Criminal Procedure Act proceedings are to take place in the accused's presence but with the court being in power to proceed if the accused's interests will not be prejudiced by his absence or to do so will not be contrary to the interests of justice. This is said to be so unless s 140 of the Sentencing Act 1995 (WA) provides otherwise.

157 Section 77 of the Criminal Procedure Act allows for an accused to be brought before the court by video link. Section 140 of the Act provides that the court may permit the accused to appear by video link other than to be sentenced.

158 As to sentencing, s 14 of the Sentencing Act 1995 (WA) which was amended in 1998, provides more specifically that a court is not to sentence an offender unless he is present in court or appears by video link under s 14A of the Act. Section 14A asserts that a court may, on its own initiative or on an application by the prosecution or the offender, direct that the offender appear before it by video link from a place in this State.

159 By s 14A(2) the court shall not make such a direction unless it is satisfied that the video link is available and the direction is 'in the interests of the justice'. The place where an offender attends for sentencing by video link is taken to be part of the court for the purposes of the sentencing.

160 When these various provisions are considered in combination it is clear that an emphasis is given to the requirement that the accused be present, and that provision for an appearance of the accused by video link or the reception of evidence by video link is to be regarded as a carefully formulated exception to the usual rule. To my mind, these provisions must be kept in mind in giving consideration to the requirement in s 121 of the Evidence Act that a direction shall not be made unless the court is satisfied that it is in the interests of justice.

161 In determining what meaning is to be given to the crucial phrase 'the interests of justice' the decided cases suggest that the words are not to be narrowly defined and will vary from case to case. In BHP Billiton Ltd v Schultz [2004] HCA 61, being a case concerned with the cross-vesting legislation, Kirby J observed at [169] that the interests of justice necessarily includes justice to all parties. He said further at [172] that a power conditioned by such a phrase involved the judicial evaluation of a number of factors.

162 In Mickelberg v The Queen (No 3) (1992) 8 WAR 236 Malcolm CJ made these observations:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial. The interests of justice also extend to the public interest in the due administration of justice. (251)

163 In R v Ngo [2003] NSWCCA 82 the prosecution applied for a direction during a murder trial that two witnesses be permitted to give evidence by video link from a remote location and that the accused not be permitted to see the witnesses. The trial judge upheld the application, accepting that the particular fears of the witnesses were genuine, and that they would probably not give evidence if required to do so in the courtroom.

164 An appeal against this ruling was dismissed. The Court of Appeal in New South Wales held that the phrase in similar legislation 'in the interests of the administration of justice' was broad and was not susceptible to precise definition. However, it did require a balanced consideration of the interests of the accused, the witnesses and the prosecution as well as the public interest in ensuring a fair and efficient system of criminal justice.

165 In the course of the judgment the Court of Criminal Appeal in New South Wales drew attention at [61] to the trial judge's observation that the general rule in a criminal jury trial is that the prosecution case be presented in the presence and hearing of the accused. An accused should normally be able to confront his accusers. The court made these observations at [124]:

There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.

166 It emerges, then, that if the application for Chilcott's evidence to be given by video link was dealt with pursuant to s 121 of the Evidence Act, the judicial officer was required, before making a direction, to be satisfied that it was in the interests of justice that the evidence of the prosecution witness in question be received by video link, and this required that there be a balancing of various considerations.

167 One of the considerations undoubtedly was the general rule that an accused person be present and be able to confront his accuser or key witnesses related to the prosecution case. It was also necessary to consider the public interest in a fair and efficient system of justice in taking advantage of electronic aids. The interests of the particular witness, and any possibility of intimidation, also had to be considered.

168 It emerges from my review of the decided cases that in some circumstances the nature of the prosecution case and the importance of assessing credibility might require that an application for evidence to be taken by video link be refused. There might be other circumstances, such as the circumstances in Ngo's case, in which greater weight is given to the interests of particular witnesses or the need for an expeditious hearing without the prospect of any disruption. However, even though a court under s 121 of the Evidence Act is permitted to act on its own initiative, it is difficult to envisage a case in which the court could be sufficiently satisfied that the direction was in the interests of justice without hearing from the accused, especially in a case where the proposed order bears upon the evidence of a principal witness for the prosecution.

169 In the present case, it is clear from the materials before me that the learned magistrate directed that the Chilcott evidence be received by video link without hearing from the accused. The reasons given to counsel for the accused as to the basis upon which the order was made do not include any reference to s 121 of the Evidence Act or to the criteria enunciated in that provision or to being satisfied that the order or direction was in the interests of justice. It does not appear from all of this that the court undertook the necessary balancing of interests or was properly satisfied in the manner required by the provision that the order or direction for evidence to be received by video link was in the interests of justice. There was a failure to weigh up of all the relevant factors and to determine whether the presiding judicial officer would be put at a disadvantage in assessing credit by reason of the evidence being heard by video link.

170 It was put to me on the hearing of the appeal that in this case, given the proceedings were heard by a judicial officer without a jury, issues as to possible prejudice and credit of the witnesses could be overcome or were less likely to affect the accused's position adversely. However, I do not consider that this argument is sufficient to outweigh the considerations to the contrary I have just described.

171 As to whether there was any substantial miscarriage of justice, I simply repeat what I said concerning the first ground of appeal; that is, the proviso cannot be relied on in the present case because one of the purposes of criminal appeals is to ensure that rules of criminal procedure are respected and properly applied. As to this ground also there was a serious departure from essential requirements of the law.

172 Accordingly, I am of the view that the learned magistrate erred in making the order complained of. Leave to appeal will be allowed in respect of the second ground and the appeal itself will be allowed upon that ground.

173 The appellant contended by his third ground of appeal that there was a miscarriage of justice in that the learned magistrate so dealt with the preceding issues as to subsequently cause the appellant to conduct himself in a way which the court considered made it impracticable to continue the proceedings in his presence and to continue the hearing in his absence pursuant to s 140(1) of the Criminal Procedure Act, but without making any other arrangements pursuant to s 140(2).

174 This ground of appeal brings into play the provisions mentioned earlier, including s 88(4) and s 140 of the Criminal Procedure Act which deal with the circumstances in which the accused may be removed from court. It brings into issue also the question of whether the accused was in a position to complain of actual or apprehended bias on the part of the magistrate. In other words, it is asserted on behalf of the appellant, by implication, that certain exchanges in court at the original hearing were of such a kind that the accused was not only understandably indignant but also had grounds for complaining about what had occurred.

175 Accordingly, it will be useful to bring to mind the relevant principles concerning bias. These are conveniently summarised in a recent decision of the Court of Appeal in Gamage v The State of Western Australia [2008] WASCA 49 as follows:

There is no dispute concerning the test to be applied when it is alleged that a judge has been, or might be, actuated by bias. In Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 47, Mason CJ and McHugh J said that the proper test 'is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case'. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11], Gleeson CJ, and Gaudron, McHugh, Gummow and Hayne JJ said that 'the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias ... is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'. It is important to bear in mind that this fair-minded lay observer is one who should be taken to have informed himself or herself 'on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson [53] (Kirby J); Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87. [54]

MILLS -v- HENDRIKSEN [2008] WASC 79 (8 May 2008)

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MILLS -v- HENDRIKSEN [2008] WASC 79 (8 May 2008)

Legislation Cited (8)

Cases Cited (20)