Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Application for leave to appeal - Conviction for obstructing officers of local government authority - Fine of $500 - Allegation that respondent was invalid because of Constitution - Whether notices under s 78B of Judiciary Act should be served - McKenzie friend - What role and when permitted at discretion of court - Significance and control of verge between appellant's property and paved road

Commonwealth of Australia Constitution Act 1900 (Imp)

Criminal Appeals Act 2004 (WA)

Judiciary Act 1903 (Cth), s 78B

Land Administration Act 1997 (WA), s 55

Local Government Act 1995 (WA), s 9.12(1)

Boath v Wyvill (1989) 85 ALR 621

Cristovao v Butcher Paull and Calder [2006] WASCA 184

Cristovao v Butcher Paull and Calder [2006] WASCA 235

Glew v Shire of Greenough [2006] WASCA 260

Johan Mickil Schagen v The Queen (1993) 65 A Crim R 500

Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363

Narain v Parnell (1986) 9 FCR 479

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Samuels v Western Australia [2005] WASCA 193

Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532

1 EM HEENAN J: By a prosecution notice issued on behalf of the City of Gosnells, the present applicant, Mr Richard Pennicuik, was charged that between 12 March 2010 and 17 March 2010, both dates inclusive, at Hume Road, Thornlie, within the district of the City of Gosnells, he obstructed the City of Gosnells when the city was trying to manage trees in a thoroughfare under s 3.53(2) of the Local Government Act 1995 (WA), contrary to s 9.12(1) of the Local Government Act 1995.

2 Mr Pennicuik denied committing that offence and the charge was tried in the Magistrates Court at Armadale before his Honour Magistrate Gluestein on 27 October 2010. When evidence was called by the City of Gosnells and when Mr Pennicuik was offered an opportunity to offer evidence in defence of the charge he did not adduce any evidence. At the conclusion of the hearing, for reasons which I will describe more fully in a moment, the learned magistrate found that the charge had been proved and thereupon fined Mr Pennicuik $500 and ordered him to pay costs of $5,000.

3 From that conviction Mr Pennicuik now applies to this court for leave to appeal. He lodged an appeal notice on 4 November 2010 seeking leave to appeal against the conviction and, so far as I can see, against the fine and costs also imposed. The proposed grounds of appeal as listed are eight in number and I describe them as follows:

(2) the appellant was denied equality before the law and natural justice;

(3) the appellant was unrepresented and was denied by the court any assistance by way of McKenzie friend;

(4) the appellant was at a disability to adequately defend himself, as noted in medical reports submitted to the court and the magistrate failed to make allowance for this;

(5) the magistrate failed to inform himself as to fact or law in the matter relating to the appellant's submissions and the evidence presented;

(6) the magistrate failed to adequately deal with applications filed by the appellant or give reasons or appropriate rulings as to why the applications were not dealt with;

(7) the costs and fine awarded by the magistrate are excessive for a simple charge; and

(8) the respondent under the Local Government Act is constitutionally invalid pursuant to the Australian Constitution Act 1900 (Cth) and Western Australian 1889 Constitution.

4 In addition to those eight grounds of appeal, Mr Pennicuik filed a document entitled Submissions, which runs to nine paragraphs, and these were filed on or about 22 December 2010. His application for leave to appeal came before her Honour Jenkins J in this court on the papers on 7 January 2011, as is often the case in what are called single judge appeals from decisions of magistrates in the criminal jurisdiction. Her Honour directed that the application for leave to appeal on the grounds specified in the appellant's case dated 18 December 2010 - which is the document entitled 'Submissions' and filed on 22 December 2010 - be heard at the same time as the appeal. Her Honour also made a series of directions about the materials which would need to be filed, which I need not repeat.

5 It is important to observe that under the Criminal Appeals Act 2004 (WA), an appeal to this court can only be by leave and that a judge is required to consider whether or not to grant leave to appeal in relation to each and every of these proposed grounds which are sought. In accordance with Samuels v Western Australia [2005] WASCA 193 leave to appeal must be refused if there is no rational or logical prospect of the proposed ground of appeal succeeding. In other words, for leave to appeal to be granted there has to be a clear, arguable case that there has been an error of law or fact which would justify this court interfering. It is not necessary to demonstrate on an application for leave to appeal that the appeal should succeed, just that it has merit and is worthy of closer examination and decision. It is necessary for me to consider that test in deciding whether or not to grant leave to appeal to Mr Pennicuik on any one or more of the grounds which he has raised in the several papers which I have mentioned.

6 That brings me to two preliminary matters. The first is the frequent reference in the proposed grounds of appeal to the denial of procedural fairness, the denial of assistance by way of a McKenzie friend and the assertions that Mr Pennicuik was unable to represent himself adequately to defend these proceedings because of medical reports and other conditions. That matter has been set out in more detail in the submissions filed on 22 December, and it has been prominent in the oral submissions which have been made by Mr Pennicuik today.

7 The situation in the Magistrates Court was that Mr Pennicuik described a long-standing chronic illness, an inability to obtain legal representation and a lack of acquaintance with legal proceedings and procedure and sought the assistance of a so-called McKenzie friend. At the third mention of the matter on 25 May 2010 before Magistrate Langdon her Honour refused to allow Mr Pennicuik the assistance of a McKenzie friend (ts 25/5/2010, page 7).

8 At the direction of another presiding magistrate at an earlier hearing, an independent psychiatric report on the capacity of Mr Pennicuik to stand trial or to plead had been sought by the court.

9 That resulted in Mr Pennicuik being seen and examined by a consultant psychiatrist, Dr Mark Hall, FRANZCP, who prepared a report to the court dated 12 August 2010. This contains a detailed history of Mr Pennicuik's background, prior health, results of various examinations and history. It contains a quantity of personal information, which I will not here repeat, but the conclusions were that Mr Pennicuik was able to understand the nature of the charge against him; was able to understand the requirement to plead to the charge and the effect of the plea; understood the difference between pleading guilty and not guilty and what the consequences of each could be; and understood the purpose of a trial, including the various elements in a trial. He was then asked a question about his right to challenge jurors, which was not relevant to the particular trial, but the psychiatrist was satisfied that, the matter having been explained to him, he could follow the explanation. The psychiatrist reported that there was no impediment to Mr Pennicuik following the course of the trial and that he was able to understand the substantial effect of evidence presented by the prosecution. On the question of his ability properly to defend the charge, the psychiatrist reported that Mr Pennicuik was able properly to defend the charge but that he had chosen to place his faith in another named person, whose assistance was unsolicited and without the basis of legal qualification. On the faith of that report and the general history, her Honour Magistrate Langdon found Mr Pennicuik fit to stand trial (ts 19/8/2010, page 4).

10 At the hearing today, at the commencement of proceedings, a renewed application was made by Mr Pennicuik to have the assistance of a McKenzie friend. It was explained that, because of a history of chronic fatigue syndrome, poor memory and lack of legal knowledge, experience or training, Mr Pennicuik felt unable to present his appeal. He sought that a friend, Mr Dean, be permitted to act as his McKenzie friend. On further inquiry as to just what that entailed, it became apparent that he wished Mr Dean, in effect, to represent him, speak on his behalf, and to conduct the application for leave to appeal and the appeal in much the same way as a legally qualified and admitted practitioner. That is not the role of a McKenzie friend as traditionally understood.

11 The role of a McKenzie friend has, as far as I can see, never been strictly limited or defined in authorities in Australia. In the case of Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532, Gibbs CJ said at 534:

The question whether an accused person should be allowed to have a 'McKenzie friend' present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a 'McKenzie friend' should always be refused. All the circumstances of the case must be considered in deciding upon the application. However, when the accused has been offered legal aid but has refused it and nevertheless desires to have a barrister appear as a 'McKenzie friend', it would be understandable if the judge regarded his application with some scepticism.

12 I hasten to add that those last observations have little to do with the present case because Mr Pennicuik has not been able to obtain any form of legal representation and has had an application for Legal Aid declined. In the case of Johan Mickil Schagen v The Queen (1993) 65 A Crim R 500, the Court of Criminal Appeal, comprising Malcolm CJ and Franklyn and Walsh JJ, had occasion to consider whether or not an appellant should have had a McKenzie friend at his trial. At page 501 Malcolm CJ said, in a judgment with which the other judges agreed:

The appellant was unrepresented. Prior to the hearing of his application he sought the leave of the Court to make use of the assistance of two law students from Murdoch University who had helped him in the preparation of this grounds of appeal and his outline of submissions. Leave was granted because of the appellant's language and hearing difficulties, taking into account that legal aid had been refused. In the circumstances, one of the students was permitted to address the Court on the appellant's behalf, by speaking to a written statement prepared on behalf of the appellant. In this respect the Court granted the appellant an indulgence which went somewhat further than normally in the case of a 'McKenzie friend': McKenzie v McKenzie [1971] P33. In that case, the Court of Appeal (Davies, Sachs and Karminski LLJ) applied the following statement of Lord Tenterden in Collier v Hicks [1831] EngR 686; (1831) 2 B & Ad 663 at 669; [1831] EngR 686; 109 ER 1290 at 1292, namely:

'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice: but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.'

In my opinion, it is within the inherent jurisdiction of the court to determine to what extent a 'McKenzie friend' may take part in the proceedings. It would be a rare and exceptional case, however, in which a person other than a duly qualified legal practitioner would be permitted to address the court or otherwise take an active part in the proceedings. The court was prepared to go further in the present case because the court reporting service had found the appellant virtually incomprehensible and this difficulty of understanding was compounded because he also had a severe hearing problem.

14 Other cases in which applications for a McKenzie friend have been made but were refused include two recent decisions of the Court of Appeal, first in Cristovao v Butcher Paull and Calder [2006] WASCA 184, and then its sequel, Cristovao v Butcher Paull and Calder [2006] WASCA 235, but these do not add to the principles which I have already mentioned.

15 In my view, in this case, because of Mr Pennicuik's lack of legal familiarity it was appropriate on the hearing of this application for leave to appeal to allow Mr Dean to act as a McKenzie friend in the limited sense; that is, to sit beside Mr Pennicuik at the bar table, to offer suggestions, to take notes, to answer questions from him, and to guide him generally in relation to the conduct of the proceedings. I permitted that course to be followed but, except on some insignificant points, I was not prepared to allow Mr Dean to address the court on behalf of Mr Pennicuik. So in relation to this application, he has had the benefit of a McKenzie friend.

16 In this respect, I have taken a somewhat different view from that taken by the learned magistrate in the court below, but that does not mean or imply that I consider that the decision of the learned magistrate to refuse the assistance of a McKenzie friend was wrong, arguably wrong, or should be the subject of any grant of leave to appeal, still less succeed. The authorities which I have mentioned and in particular the case of Schagen and the case of Smith v The Queen show that the matter is very much within the discretion of the presiding judicial officer. In the case before the Armadale Magistrates Court the learned magistrate, his Honour Magistrate Gluestein had the benefit of the psychiatric report which indicated that Mr Pennicuik had the ability to understand and follow the proceedings. The report was commissioned after an earlier application for a McKenzie friend was refused. It was for a Mentally Impaired Accused application. The matter was relatively simple and straightforward and I do not see any basis upon which it could be successfully argued that the refusal of a McKenzie friend at the eventual hearing resulted in an injustice or an appellable error. For that reason all proposed grounds of appeal associated with the refusal to allow a McKenzie friend are not, in my opinion, reasonably arguable. Leave to appeal in respect of each of them will be refused.

17 I come now to another preliminary matter and that is the assertion in the original notice of appeal that the City of Gosnells was constitutionally invalid under the Local Government Act pursuant to the Commonwealth of Australia Constitution Act 1900 (Imp). At the commencement of this hearing I drew attention to a notice which I had caused to be sent to the parties yesterday when I came to read these papers pointing out that no notice to the Attorneys-General of the Commonwealth, States or Territories had been given of a constitutional matter as required by s 78B of the Judiciary Act 1903 (Cth) and how by subsection (1) of that section it is expressly provided:

(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

18 There has been no adequate notice been given under s 78B and certainly there has been no adequate time for any Attorney-General to consider the position. I considered it necessary, therefore, at the commencement of the hearings to attempt to identify what was the constitutional point being relied upon by this proposed ground of appeal. It seems to be that it is sought to be argued that because local government, sometimes called the third tier of government, receives no express mention in the Constitution Act of Australia it is not recognised and is therefore not valid or properly constituted and, by implication, does not have the authority to bring any prosecution such as the one instituted in the Magistrates Court at Armadale.

19 I have to say that arguments to similar effect were raised and dealt with by the Court of Appeal in the case of Glew v Shire of Greenough [2006] WASCA 260 but in a somewhat different context. The unanimous decision of Wheeler, Pullin and Buss JJA in that case rejected a contention that the local government authorities were not properly constituted and for that reason could not issue proceedings for the recovery of rates. That seems to me to dispose of the matter, but the question is not so much of whether the constitutional point has a ready answer but whether or not there really is a constitutional point which arises.

20 In a series of cases the need for s 78B notices has been considered. One is Boath v Wyvill (1989) 85 ALR 621 where, at 634, the court held that questions as to the legislative competence of State Parliaments within the meaning of s 78B involved a matter involving the interpretation of s 106 and s 107 of the Constitution even if that matter may not in a particular case arise under those provisions, and hence that s 78B notices were necessary.

21 In a later case Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Toohey J held that a cause does not involve a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. This was not to say that the strength or weakness of the proposition was critical but it must be established that the challenge does involve a matter arising under the Constitution. In the case of Narain v Parnell (1986) 9 FCR 479 at 489 Burchett J said that before a s 78B notice is required to be given it must appear to the court that the constitutional issue is a live issue in the proceeding, adding that if the issue depended on an erroneous construction of the relevant legislation, a s 78B notice is not required as the cause pending in the court does not really and substantially involve a matter arising under the Constitution or involving its interpretation. That view was followed in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 1363 where it was held that the relevant Commonwealth Act (4A of the Federal Court of Australia Act 1976 (Cth)) did not purport to regulate the matters in issue (costs agreements) dealt with by the Legal Practice Act 1996 (Vic).

22 In my view, the point sought to be raised in this case about the lack of validity because of lack of recognition in the Federal Constitution of the third tier of government does not give rise to any real or legitimate constitutional point and does not require the issue of s 78B notices. For that reason, I announced that I would proceed with the hearing of this application for leave to appeal but that I would refuse leave to appeal in relation to the proposed constitutional issue.

23 That brings me now to a consideration of the matters remaining. It is necessary that I should describe in some detail the course of proceedings in the Magistrates Court and the reasons for decision given by the learned magistrate. As is already apparent, Mr Pennicuik appeared on his own behalf, without assistance, and evidence was led for the City of Gosnells. His Honour attempted to assist Mr Pennicuik in various ways, although it is apparent that on numerous occasions Mr Pennicuik did not realise that he was being assisted and did not take advantage of a number of the suggestions.

The prosecution case is that levelled against Mr Richard Pennicuik; the prosecution being brought by the City of Gosnells and the City of Gosnells alleging that being within the City of Gosnells Mr Pennicuik obstructed the City of Gosnells with (sic) the city was trying to manage trees in their thoroughfare under section 3.53(2) of the Local Government Act 1995 and alleging a breach of section 9.12(1) of that act. Mr Pennicuik has previously pleaded not guilty. He has maintained his plea.

The case has gone through what I can only describe as a rather protracted process of a number of applications made by Mr Pennicuik, most of which, as I understand, had been dismissed, and including an important one from his point of view of the appointment of a so-called McKenzie friend, as well as asserting to the court that he was unfit to represent himself due to some form of health issue.

25 His Honour then went on to deal with the application for the assistance of a McKenzie friend, the significance of the report of advice of the psychiatrist, Mr Hall, and then concluded that the case should proceed. His Honour then said:

Whilst Mr Pennicuik pleaded not guilty, he elected not to cross examine the only prosecution witness, although I allowed him to do so when he conferred with his support team during an adjournment after the close of the prosecution case, and that prosecution witness, Mr Perkins, was recalled and a question was put to Mr Perkins. That was the extent of Mr Pennicuik's defence.

He has elected, as he is able to, not give evidence. I make no criticism, but what I am left with is a compelling, I have to say, quite a simple case brought by the City of Gosnells and on the evidence which is uncontradicted of Mr Perkins quite clearly Mr Pennicuik obstructed the city and that obstruction lasted for not simply the number of days alleged in the prosecution notice. It went on for a lot longer but the prosecution case is limited to the number of days, as I said, referred to in the prosecution notice.

What I find in the absence of Mr Pennicuik putting forward any defence is that I find the prosecution case has been proved to that high standard of beyond reasonable doubt. I need to acknowledge and make reference to written submissions put in by Mr Pennicuik; firstly, two sets of submissions filed with the court some time in the middle of yesterday afternoon, and secondly, some submissions handed in to the court by Mr Pennicuik this morning.

The submissions he filed, or someone filed for him yesterday afternoon, I have addressed already in my opening reasons at the start of this case this morning. With respect to his written submissions that he files this morning, it appears that the main thrust of what his defence might have been had he been prepared to articulate that in the courtroom this morning is not his repeated almost parrot fashion reference to paragraph 12 and that's the reference to the McKenzie friend, but to an earlier point that would have been of some relevance had he decided to give evidence, and that is the location of the tree. I endeavoured to assist him with a question I put myself to Mr Perkins as to the location of the tree and that unequivocal answer from Mr Perkins is that the tree is not, as might be suggested by Mr Pennicuik, located in Mr Pennicuik's private property, or on his certificate of title, but is on the road verge and that is the evidence that I rely on with no evidence to the contrary, and accordingly which is why I have no difficulty in finding the prosecution case has been proved and to that standard of proof beyond reasonable doubt. I now record a conviction.

26 His Honour went on to deal with matters of penalty.

27 The question of the location of the tree was again the subject of a number of the submissions raised by Mr Pennicuik today. I have to add that the evidence before the learned magistrate included a copy of a duplicate certificate of title vol 2005 folio 917, which shows that Mr Pennicuik and a lady are joint tenants of an estate in fee simple in portion of Canning location 17 and being lot 15 on plan 10722 delineated in the map on the third schedule thereon. The certificate of title, as all such certificates of title do, then shows by dimensions the location of the Pennicuik property. It comprises 684 square metres on the south-east side of Hume Road and its dimensions to the roadway and to adjoining properties at the side and the back are all given.

28 Mr Pennicuik plainly interprets this diagram in a mistaken fashion. He interprets it as extending to the kerbside of the road rather than to the edge of his property, which is before the footpath, and he maintains that, on that basis, the location of the tree must be within his own property. All I can say is that that is a baseless error and misunderstanding of the diagram in the certificate of title.

29 The situation as shown in the photographs also indicates that the tree in question is on what is generally regarded as the road verge. I will address the interruption which has been made by Mr Pennicuik, to the effect that there is no footpath on his side of the street. The photographs confirm that that is the case and I was mistaken in mentioning that there was one there, but that is not the point. The substance of my observation was that the lot owned by proprietors of the land ends at the survey boundary and does not extend beyond that. In many streets where there are footpaths, road verges, trees, electric light poles and connections for telephone lines and the like, they are not on the private property of the owners.

30 In any event, the only evidence as to whether or not the tree was on the private property of Mr Pennicuik was that of Mr Perkins and it was not challenged. That being the case, his Honour was correct, in my view, to conclude that it was within the jurisdiction of the City of Gosnells.

31 On the question of the ownership and control of roadways and property in them, the law has a long and complicated history. The description of the law relating to ownership and boundaries of roads can be found in the well-known work by Professor Butt, Land Law (6th ed, 2010) published by the Law Book Company of Australia, at pages 29 to 32, and in particular par 2.43 where, generally speaking, it is the case that the ownership and control of roads in Australia is now determined by statute. In Western Australia the position is that the ownership of roads is vested in the Crown but local government powers are exercisable in relation to land reserved, declared or dedicated as an alley, bridge, court, lane, thoroughfare or yard. The question of property in roads is dealt with in s 55 of the Land Administration Act 1997 (WA), which provides:

(1) Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection -

(a) revested in the Crown; and

(b) in the case of land under the operation of the TLA or the Registration of Deeds Act 1856, removed from that operation and so revested.

(2) Subject to the Main Roads Act 1930 and the Public Works Act 1902, the local government within the district of which a road is situated has the care, control and management of the road.

32 That statute goes on to deal with other matters, but I am satisfied that the law establishes that in relation to Hume Road the local government instrumentality, in this case the City of Gosnells, has the care, control and management of the road, and that includes the verge. That being so, there is no basis for any argument that this tree was on private property of Mr Pennicuik. For that reason, grounds of appeal associated with that contention cannot be maintained, are not arguable and leave to appeal in respect of them should be refused.

33 I come now to the remaining proposed grounds of appeal. They include the ground that the appellant was at a disability to adequately defend himself, as noted in a medical report submitted to the court, and that the magistrate failed to make allowance for this. I do not accept that any medical reports established that Mr Pennicuik was unable adequately to defend himself. The case against him was overwhelming and just because the case against him succeeded does not mean that he was unable to answer to it. He had no real answer in fact or law. The medical report from the psychiatrist, as I have already indicated, was to the effect that he was able to understand and follow the proceedings and I would, therefore, refuse leave to appeal in respect of ground 4.

34 As to ground 5, that the magistrate failed to inform himself as to fact or law in the matter relating to the appellant's submissions and the evidence presented, the contrary is the case. His Honour was at pains to understand the essential points of the case and I am satisfied that he did understand them well. For that reason, I do not consider ground 5 arguable and leave will be refused.

35 As to ground 6, which alleges that the magistrate failed to adequately deal with applications filed by the appellant or give reasons or appropriate rulings as to why the applications were not dealt with, this was not pressed today but in any event there is no reason to suppose that any matter of significance was not addressed correctly by his Honour and I would refuse leave in respect of this proposed ground.

36 As to ground 7, that the costs and fine awarded by the magistrate were excessive for a simple charge, questions of costs and fines are very much within the discretion of the learned magistrate and no court should interfere unless it can be established that there was a demonstrable error, an excess of jurisdiction or some conspicuous omission. Sometimes it appears that a fine or a penalty may be so disproportionate that the disproportion itself connotes error but that cannot be established in the present case. The fine was modest, having regard to the nature of the offence and the persistence in it, and the costs were well within the scale. I would refuse leave to appeal in respect of those proposed grounds.

37 This now brings me to the submissions of 22 December 2010 which, as I have said, already include a number of the points already dealt with. As to the refusal of the assistance of a McKenzie friend or the suggestion that the learned magistrate did not attend to the appellant's case or arguments, I have already rejected those, for reasons which I have given, and I would not reconsider those points. Point 2 of those submissions relates to the land title and the argument that the tree was on Mr Pennicuik's own property, and I have already rejected that. The other grounds only raise, in different wording, the substance of issues which I have already addressed. I do not consider that there is any arguable ground of appeal which Mr Pennicuik seeks to raise and for that reason this application for leave to appeal will be dismissed.