REYNOLDS -v- WA POLICE [No 2] [2025] WASC 10 (20 January 2025)

1. This appeal was case managed by Forrester J. The appeal initially included a vast number of additional charges to those which are before me. At a directions hearing held on 15 January 2024, her Honour refused leave to appeal and dismissed the appeal in respect of 10 charges. The remaining charges were then referred to a leave to appeal hearing on 7 March 2024.
2. At the hearing on 7 March 2024, Forrester J granted the appellant an extension of time to appeal in respect of each of the matters before me. Her Honour also made orders that:

(1) in respect of charge AL 2097/2021, the question of leave to appeal is reserved to the hearing of the appeal; and

(2) in respect of charges AL 682/2022 and AL 2150/2021, leave to appeal is granted.

1. Her Honour refused leave to appeal on the remaining charges and the appeals in respect of them were dismissed. Her Honour's written reasons have been of much assistance in discerning the issues that arise on this appeal.[13]

1. Each appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include:

(1) the learned magistrate made an error of law or fact or of both law and fact;[14] and

(2) there has been a miscarriage of justice.[15]

1. Leave of this court is required for each ground of appeal.[16] Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding,[17] which requires that the ground have a rational and logical prospect of succeeding.[18] The question of leave only applies in respect of charge AL 2097/2021, as Forrester J has already granted leave in respect of charges AL 682/2022 and AL 2150/2021.
2. Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2), even if a ground of appeal might be decided in favour of the appellant, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[19]

1. The trial of charge AL 2150/2021 was heard on 2 August 2022 by Magistrate Malley. As I have already explained, the appellant was present for part of the trial.
2. On 19 October 2021, the appellant was granted bail in respect of charge AL 2097/2021. Pursuant to his bail undertaking, the appellant was required to attend the Magistrates Court at Albany on 28 October 2021. Charge AL 2150/2021 alleges that without reasonable cause, the appellant failed to appear in the Magistrates Court at Albany on 28 October 2021 in accordance with that bail undertaking and thus contravened s 51(1) of the Bail Act.
3. Section 51(1) of the Bail Act provides that an accused who, without reasonable excuse, fails to comply with a requirement of their bail undertaking mentioned in s 28(2)(a) commits an offence.[20] The form of the undertaking the subject of s 28(2)(a) is, relevantly:

that the accused will appear at a time and place specified ... in the undertaking;

1. At the trial of charge AL 2150/2021, the prosecution tendered a certificate issued under s 64 of the Bail Act. The certificate stated to the effect that the appellant did not appear before the Magistrates Court at Albany on 28 October 2021. In accordance with s 64, the certificate is evidence of the matter so certified. However, it is not conclusive evidence and may be rebutted.
2. What happened on 28 October 2021 is as follows.
3. At the Magistrates Court at Albany, the appellant presented at the bar table when the matter of 'Kellan John Reynolds' was called. The presiding magistrate, Magistrate Scaddan, asked the appellant 'are you Kellan Reynolds?'. The appellant responded:

1. The following exchange then occurred between the learned magistrate and the appellant:

Her Honour: Mr Reynolds, if you are Mr Reynolds, you and I have played this ridiculous game before. If you are not going to answer appropriately to the court, I cannot take your appearance as given. You will be - whoever you will be asked to step back and I will issue an arrest warrant for that person's arrest. I will ask you once more.

Appellant: If you want to arrest that person, ma'am, I will put the person right here for you to arrest.

Her Honour: I will ask you once more. Are you Kellan Reynolds?

Appellant: No. I am the occupant of the office of executor for Kellan John Reynolds' estate.

Her Honour: Please remove yourself from the bar table. Please remove yourself from the bar table.

Appellant: You're removing the occupant of the of the office of executor for the Kellan John Reynolds estate.

Her Honour: Person who presented themselves to the bar table answered, 'No'. And then tried to engage in mumbo‑jumbo. That is being resoundingly denounced by all courts in this state. I don't accept that the person who presented themselves in any way announced their appearance in a way that I could be satisfied that the accused person attended.

(emphasis added)

1. The learned magistrate then issued a warrant for the appellant's arrest on the basis that he had not complied with his bail undertaking.
2. The respondent's counsel quite properly accepts that on 28 October 2021 the appellant did appear in accordance with his bail undertaking.
3. The appellant's bail undertaking required him to appear before the presiding judicial officer at the time and place specified in the undertaking. The appellant did so. He presented at the bar table in the courtroom when the matter was called. The learned magistrate was familiar with the appellant, as is demonstrated by her Honour's remark that 'you and I have played this ridiculous game before'. The appellant's remarks also made plain that he was Kellan Reynolds, even though he also raised baseless propositions contesting his legal identity. In these circumstances overall, the appellant's refusal to acknowledge he was Kellan Reynolds does not have the result that he failed to appear as required.
4. Accordingly, as the respondent rightly accepts, there was a miscarriage of justice. The appellant was convicted of an offence of which he was not guilty. The appeal should be allowed. The appropriate consequential orders are that the conviction on charge AL 2150/2021 be set aside and substituted with a judgment of acquittal.

1. There are two issues that arise in respect of charge AL 682/2022.
2. First, whether the appellant entered into the bail undertaking the subject of the charge.
3. Second, whether the circumstances in which the appellant departed the courtroom during the trial of charge AL 682/2022 occasion a miscarriage of justice.

Did the appellant enter into the requisite bail undertaking?

1. The prosecution notice for AL 682/2022 identifies the date of the alleged offence as 26 April 2022. The alleged offence is particularised as follows:

... without reasonable cause, failed to appear in the Magistrates Court at Albany, such appearance being a requirement of a bail undertaking entered into by him on [2 November 2021].

1. A necessary element of the offence is that the accused entered into a bail undertaking on 2 November 2021. The prosecution case was that the appellant was deemed to enter into that bail undertaking pursuant to s 33 of the Bail Act. The respondent accepts that if the appellant was not deemed to enter into the bail undertaking pursuant to s 33, then there has been a miscarriage of justice.[21] The respondent does not suggest that any failure to comply with s 33 was remedied at, or by, the further hearings that took place between 2 November 2021 and 26 April 2022.
2. Section 33 provides:

Judicial officer may order accused to enter into bail undertaking

(1) Where bail is granted to an accused by a judicial officer, whether with or without any condition being attached thereto, and the accused fails or refuses to enter into a bail undertaking in terms of the grant, the judicial officer who granted bail may, subject to subsection (3), order that the accused enter into the bail undertaking within such time as he may specify.

(2) If an accused does not comply with an order under subsection (1), the judicial officer may, subject to subsection (3), further order that a bail undertaking, in such form as the judicial officer may approve, shall be deemed to have been entered into by the accused on the date of such further order, and thereupon that undertaking shall be treated as if it had been duly entered into by the accused for the purposes of this Act.

(3) A judicial officer shall not -

(a) make an order under subsection (2) unless he has personally informed the accused of the terms and effect of the order made under subsection (1);

(b) exercise any of the powers conferred on him by this section unless he is satisfied that the accused has the capacity to enter into and comply with the undertaking.

1. Broken down to its constituent parts, s 33 comprises five separate steps:

(1) bail is granted to an accused by a judicial officer;

(2) the accused fails or refuses to enter into a bail undertaking in terms of the grant;

(3) the judicial officer who granted bail makes an order that the accused enter into the bail undertaking within such time as the judicial officer specifies. In doing so, the judicial officer must personally inform the accused of the terms and effect of the order made;

(4) the accused does not comply with the order; and

(5) the judicial officer makes a further order that a bail undertaking in such form as the judicial officer may approve, shall be deemed to have been entered into by the accused on the date of such further order. Where such order is made, that undertaking shall be treated as if it had been duly entered into by the accused for the purposes of the Bail Act.

1. Pursuant to s 28(1) an accused shall not be released on bail for an appearance in court unless the accused has entered into a bail undertaking for that appearance. Thus, the deemed bail undertaking arising from the application of s 33 enables an accused to be released.
2. The learned magistrate granted the appellant bail on 1 November 2021. The appellant did not sign the bail undertaking, seemingly because he did not accept he was 'Kellan John Reynolds', the person named on the undertaking. He was therefore taken into custody.
3. The learned magistrate brought the matter back on 2 November 2021 via audio link to the prison where the appellant was being held. The appellant accepts that he was the person who appeared on the audio link that day.[22]
4. The following exchange then occurred between the learned magistrate and the appellant:

Her Honour: All right. Now, the person who we identified yesterday is Kellan Reynolds. I have been informed by the registry staff that you refuse to sign the bail undertaking that was entered to the court. Notwithstanding that your surety did sign the relevant documents. And accordingly, Sergeant, my intention is to do this, is that under section 33 of the Bail Act:

Where bail is granted by an - to an accused by a judicial officer, whether with or without conditions, and the accused [fails or refuses] to enter into a bail undertaking in terms of the grant, the judicial officer who granted bail may, subject to subsection (3), order that the accused enter into the bail undertaking within such time as may be specified. And a judicial officer shall not make an order under subsection (2) unless that judicial officer personally informs the accused of the terms and the effect.

And exercise any of the powers conferred upon him or her. But if the accused does not comply with the order, the judicial officer may, subject to subsection [(3)], further order that a bail undertaking, in such form as the judicial officer may shall be deemed to have been entered into by the accused on the date of such further order, and thereupon that undertaking shall be treated as if it has been duly entered into by the accused.

So, Mr Reynolds, are you intending to sign the bail undertaking?

Appellant: I will sign it, but not as Kellan John Reynolds. I am not Kellan John Reynolds.

Her Honour: On that basis, I exercise my power under section 33, subsection (2). If the accused fails to comply with the order, then he shall be deemed by the court to have entered into the bail undertaking under section 33, subsection (2). And that undertaking shall be treated as if duly entered into. So for the purposes of the prison, I deem Mr Reynolds to have entered into the bail undertaking and upon the surety signing bail, he can be released had he been so deemed by myself. That completes the matters today. Thank you.

1. I am acutely conscious of the observations of Martin CJ in Strahan v Brennan that:[23]

... magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

1. This does not mean that the learned magistrate's remarks can be interpreted to include material matters that were overlooked, or interpreted in a manner that is substantially inconsistent with what her Honour said.
2. In fairness to the learned magistrate, it seems that her Honour was trying to avoid the appellant being kept in custody unnecessarily. However, unfortunately her Honour did not follow the procedure set out in s 33. That is, her Honour did not make an order under s 33(1) requiring the appellant to enter into the bail undertaking within a specified time. Rather, her Honour conflated the requirements of s 33 into one order.
3. The respondent submits that the learned magistrate 'substantively complied with the requirements of s 33(2) of the Bail Act, namely by informing the appellant of the consequences of deeming his entry into the undertaking'.[24] In support of this proposition, the respondent referred to the following passage from the judgment of the majority in Project Blue Sky v Australian Broadcasting Authority:[25]

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment ... There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

(footnote omitted)

1. Their Honours went on to explain:[26]

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. ... However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non‑compliance unless there has been 'substantial compliance' with the provisions governing the exercise of the power.

(footnotes omitted)

1. Their Honours described the distinction between directory and mandatory requirements as being elusive. Their Honours said:[27]

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

(footnotes omitted, emphasis added)

1. Thus, the focus is not on whether there has been substantial compliance, but whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. Further, in Attorney General of New South Wales v World Best Holdings Limited,[28] Spigelman CJ explained that the court must look at what Parliament intended to be the consequences of the particular breach under consideration, not every breach.
2. The observations of the NSW Court of Appeal in Tasker v Fullwood[29] that were endorsed by the majority judgment in Project Blue Sky in the passage set out at [47] above applied to judicial and executive acts, and thus would apply in this case.
3. As I have explained at [37] above, the court's power to make a deeming order under s 33(2) of the Bail Act is subject to:

(1) the judicial officer who granted bail making an order under s 33(1) that the accused enter into the bail undertaking within such time as the judicial officer specifies;

(2) the judicial officer personally informing the accused of the terms and effect of that order; and

(3) the accused not complying with the order.

1. The learned magistrate did not make an order under s 33(1). Accordingly, I need to consider whether the failure to do so invalidates her Honour's order deeming the appellant to have entered into the bail undertaking.
2. I do not think it does. The appellant was present. Her Honour explained that she intended to act under s 33. Her Honour explained in substance the effect of s 33 and after doing so enquired of the appellant whether he intended to sign the undertaking. The appellant said he would not sign the undertaking as 'Kellan John Reynolds'. Her Honour then made the deeming order. The effect of the deeming order was that the appellant was able to be released under s 28. Absent the deeming order, the appellant's release into the community would be unlawful. The failure arose from the learned magistrate conflating the required steps. However, there could be no doubt that her Honour made the deeming order, it was made purportedly applying s 33, and that the appellant understood such an order to have been made, and its effect. There is also a public interest in a person not being detained in custody unnecessarily. In these circumstances overall, I consider the legislation intended that the deeming order was valid notwithstanding the failure to properly apply s 33. Accordingly, in my view, the learned magistrate's failure to take the preliminary step required under s 33(1) does not invalidate the order deeming the appellant to have entered into the bail undertaking. Accordingly, this ground fails.
3. There may however be cases where a failure to follow the procedure in s 33 does invalidate the deeming order. It is important therefore that the procedure is methodically implemented, to avoid any uncertainty as to an accused's bail.

Did the circumstances in which the appellant departed the courtroom during the trial of charge AL 682/2022 occasion a miscarriage of justice?

1. The appellant was convicted by the learned magistrate of charges AL 2150/2021 and AL 682/2022 at the trial held on 2 August 2022.
2. As I have explained earlier, the appellant was present for part of the trial and then left the courtroom.
3. Section 172(1) and (2) of the CPA provide:

(1) 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.

(2) The entitlements in subsection (1) are subject to the powers of the court in the Evidence Act 1906 to control the questioning of witnesses.

1. Section 172(1) is subject to s 140(1), which provides:

Despite sections 88(4) and 172(1), if an accused conducts himself or herself in a manner that makes it impracticable 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.

1. The appellant's departure from the courtroom came about in the following way.
2. At the commencement of the hearing, the learned magistrate said to the appellant 'Mr Reynolds, is it?'. The appellant responded, 'I'm known to do business by that name, your Honour'. The learned magistrate then said:[30]

Well, don't start that, Mr Reynolds. You're either Mr Reynolds, Kellan John Reynolds, or you're not. If you're not, you feel free to leave the courtroom and I will issue a warrant for Mr Reynolds.

1. There was then an exchange between the learned magistrate and the appellant in which the appellant did not accept he was Mr Reynolds. Further, the appellant refused to sit down as directed by the learned magistrate.[31]
2. The learned magistrate told the appellant that if he continued to interrupt, the learned magistrate would place the appellant in custody for contempt of court. The appellant disputed that he was in contempt and the learned magistrate said:[32]

Well, unfortunately you will find out something different very shortly if you continue. Because I've got a gentleman right behind you who's going to escort you out the door and sit you in a cell, until such time as I consider what I shall do about it. Don't waste my time.

1. The appellant refused to sit down as directed, and the learned magistrate ordered that the appellant be taken into custody and adjourned the hearing of the matter for half an hour.[33]
2. Once the matter came back on before the learned magistrate, the appellant sought to challenge the court's jurisdiction. The learned magistrate correctly rejected that challenge.[34] The learned magistrate then dispensed with the appellant's bail, and adjourned the trial to 11.30 am. The learned magistrate said to the appellant:[35]

Once the trial commences, if you continue to behave as you have, I will have you removed from the court.

1. When the trial started, the learned magistrate said:[36]

Mr Reynolds, one shot. You sit quietly, listen to the prosecution case and comply with my directions or you can leave the court.

1. The prosecution called its first witness who gave evidence in chief and was cross‑examined by the appellant. The prosecution then called its second witness. The appellant commenced his cross‑examination. During the course of that cross‑examination, the learned magistrate became concerned that the appellant was not putting questions, but rather was making statements. The following exchange then took place:[37]

Appellant: Yes, yes, forgive the statement. I'm trying to get to it. What I'm saying is, to Alan there, the police record is nothing of personal knowledge. It was put there by a third party who still has no personal knowledge.

His Honour: He can't - all he can say is he saw your driver's licence and the name was Kellan John Reynolds.

Appellant: Okay, yes.

His Honour: If you're not Kellan John Reynolds, Mr Reynolds, why are you here?

Appellant: Because I've been ‑ ‑ ‑

His Honour: If you're not the person in question, if you're not the person who was released at the prison or you're not the person who was served by him, why are you here?

Appellant: Because I'm here to clear that name.

His Honour: Well, be ‑ ‑ ‑

Appellant: I am not that person.

His Honour: Well, that's all right. If you're not that person, please leave the courtroom. I'm just telling you now ‑ ‑ ‑

Appellant: Well, before I leave the courtroom, your Honour, I would like to furnish the court with the particulars to identify who I am. And is the court going to refuse ‑ ‑ ‑

His Honour: The person charged is Kellan John Reynolds. If you are not Kellan John Reynolds, then it matters not who you say you are. You could be Mickey Mouse for all I know.

Appellant: It matters not who I say I am? So my honest truth under ‑ ‑ ‑

His Honour: The person being charged here is Mr Reynolds. Mr Reynolds, Kellan John Reynolds. If you say you're not him, please leave the courtroom.

Appellant: Thank you, your Honour. I am not that person. It is a misnomer. And if you are to go ahead and issue a warrant for that person ‑ ‑ ‑

His Honour: I'm not going to be issuing a warrant. That's why I cancelled your bail. I will certainly go ahead and deal with the matter. We're already part way through the trial. I've just indicated to you, if you say you're not that person, then you shouldn't be at the bar table. It's as simple as that.

Appellant: All right. I appreciate that answer, your Honour. Thank you for your time. Thank you, Alan.

(emphasis added)

1. The appellant then left the courtroom and the learned magistrate proceeded with the trial in the appellant's absence.
2. The respondent submits that the learned magistrate did not order the appellant to leave the courtroom. Rather, the respondent submits that the learned magistrate invited the appellant to leave, which he did.[38]
3. The question of whether the learned magistrate ordered the appellant to leave the courtroom requires an objective assessment, having regard to what the learned magistrate said immediately prior to the appellant leaving, and the circumstances leading up to that point.
4. On two occasions, the learned magistrate said to the appellant that if he was not Kellan John Reynolds 'please leave the courtroom'. The learned magistrate also said that 'if you say you're not that person, then you shouldn't be at the bar table'. By the time these remarks were made, it was clear that the appellant did not, and would not, accept that he was Kellan John Reynolds. The appellant's stance was untenable, however that did not disentitle him from being in the courtroom.
5. Earlier, the learned magistrate had told the appellant he must comply with his Honour's directions. Moreover, the learned magistrate had ordered the appellant be taken into custody for not complying with a direction to sit down.
6. His Honour's remarks made clear that if the appellant maintained his position regarding his legal identity, then the appellant must leave the courtroom. His Honour said something to this effect on three occasions; it was not simply an offhand comment. In circumstances where it was clear the appellant would not change his position, and the learned magistrate had earlier ordered the appellant be taken into custody for not complying with directions, the overall effect of what the learned magistrate said and did was to require the appellant to leave the courtroom. This constitutes an order to leave, not an invitation.
7. Even if his Honour's remarks were viewed divorced from their context, they constituted an ultimatum to the appellant: 'Concede you are the appellant or leave the courtroom'. However, by that time, the learned magistrate had already accepted that the appellant was Mr Reynolds. In particular, his Honour had placed the appellant in custody and had dispensed with bail. Accordingly, in giving that ultimatum, his Honour fettered the appellant's right to appear during the trial. The only basis afforded by the CPA to fetter the appellant's right to appear during the trial is s 140.
8. There can be no doubt that the appellant's behaviour preceding and during the trial on 2 August 2022 made the conduct of the trial more difficult and was a source of frustration to the learned magistrate. The appellant's continued insistence that he was not the person 'Kellan John Reynolds' was without merit and disrupted the efficient running of the trial. That being said, I do not consider the appellant's behaviour reached the requisite threshold in s 140(1), such that his conduct made it impracticable to continue the proceedings in his presence. The threshold of 'impracticable' is higher than just inconvenient or inefficient. The appellant's conduct could have been managed by the learned magistrate limiting the scope of the cross‑examination.
9. The respondent's counsel drew my attention to the decision of Sprlyan v Wyborn, where Jenkins J said: [39]

If an accused fails to comply with the directions of a judicial officer and, by their behaviour prevents a hearing from proceeding in a fair, civil and reasonably efficient manner, the judicial officer has the right to remind the litigant of his or her power to remove the accused from the court room and to conduct the hearing in their absence. Of course such a power should only be exercised in circumstances where it is the only practical way the judicial officer can conclude the hearing in a just manner.

1. I respectfully agree with these observations. The respondent's counsel accepts that if I find that the learned magistrate had ordered the appellant to leave the courtroom, this was an erroneous exercise of his Honour's discretion, because that was not the only practical way for the learned magistrate to conclude the hearing in a just manner.[40]
2. For these reasons, I am satisfied that the learned magistrate in effect ordered the appellant to leave the courtroom and erred in doing so. I am also satisfied this error gave rise to a miscarriage of justice. It deprived the appellant of his right to participate in the trial, including by giving evidence if he elected to do so.
3. I am also satisfied that the learned magistrate's ultimatum to the appellant improperly fettered the appellant's right to participate in the trial process and gave rise to a miscarriage of justice for that reason also. An accused in criminal proceedings should not be required to concede a particular position in order to be afforded their right to participate in the trial process, irrespective of whether that position is tenable.
4. In my view, the improper denial of the appellant's right to participate in the trial is fundamental to the administration of justice and occasions a substantial miscarriage of justice irrespective of whether the prosecution has a strong case. There is no room for the application of s 14(2) of the CA Act to such circumstances.[41]
5. Accordingly, the appeal in respect of AL 682/2022 succeeds on this basis. That success does not affect whether the charge can be successfully proved beyond reasonable doubt. The appropriate consequential orders are to set aside the judgment of conviction and order that the charge be referred for hearing to the Magistrates Court.
6. The respondent also raised for consideration whether the appellant was denied procedural fairness by the manner in which the trial was conducted. The respondent says that was not the case. Given my findings that the learned magistrate erred by ordering the appellant to leave the courtroom, I do not need to address the question of procedural fairness.

1. The appellant's principal contention in respect of AL 2097/2021 is that the family violence restraining order the subject of the charge should not have been made.
2. The appellant's contentions are predominantly set out in his written submissions filed 30 May 2024. As the respondent's counsel points out in his written submissions,[42] the appellant's challenge is directed to the restraining order hearing held on 29 October 2021. However, the prosecution notice for charge AL 2097/2021 was issued on 19 October 2021 and concerned a breach alleged to have occurred on 6 October 2021.
3. Further, the appellant's submissions do not raise any arguable ground which might suggest that the restraining order was of no effect.[43] Thus, the appellant's complaints about the making of the order do not provide any arguable defence to a charge of breaching the restraining order.
4. The principal issue that arises on the appeal in respect of AL 2097/2021 is whether the learned magistrate erred by relying on s 55 of the CPA to convict the appellant.
5. The relevant circumstances are as follows.
6. On 18 November 2021 in the appellant's presence, Magistrate Scaddan listed both AL 2097/2021 and AL 2150/2021 for trial on 26 April 2022.
7. The appellant was not present when his matter was first called on 26 April 2022, which was a few minutes before 10.00 am. The learned magistrate waited until 10.00 am and then the court orderly went outside the courtroom to check whether the appellant was present. Having done so, the orderly reported there was no appearance.
8. The following exchange then took place between the learned magistrate and the prosecutor:[44]

His Honour: Thank you. Kellan John Reynolds, the executor. Okay. So what would you like to do?

Prosecutor: Thank you, your Honour. He's - Mr Reynolds is on bail.

His Honour: Yes.

Prosecutor: I note that the breach of family violence restraining order is a summary matter and I'm not sure, your Honour, it - can that be dealt with section 55?

His Honour: Whilst he's on bail? What - I can deal with it by section 55 but I don't think that's sentencing.

Prosecutor: Yes. Yes. Okay.

His Honour: He's not here so I - obviously, I would, but I think that's - I could do that.

Prosecutor: Yes.

His Honour: So that can be by way of section 55.

1. His Honour and the prosecutor then discussed the issue of an arrest warrant. During this discussion, the learned magistrate observed that the appellant had signed his bail undertaking as an executor. The learned magistrate issued a warrant for the appellant's arrest. The transcript records that the hearing concluded at 10.02 am.
2. The respondent says that by the exchange at [88] above, the learned magistrate convicted the appellant of AL 2097/2021 utilising the procedure set out in s 55 of the CPA.
3. Section 55 applies to prosecutions in the Magistrates Court of 'simple offences'. That is, offences that cannot be tried on indictment. The offence the subject of AL 2097/2021 was an offence against s 61(1) of the Restraining Orders Act, which is a simple offence.
4. It is necessary to set out s 55(1), s 55(2) and s 55(4) of the CPA in full:

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

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

(a) adjourn the charge; or

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

...

(4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -

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

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

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

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

1. Section 18 of the CPA defines the term 'court date' for a charge in a prosecution notice as:

(a) the first court date for the notice; or

(b) if the charge has been adjourned to a new court date, the new court date; or

(c) any other date set by a court as a date when it will deal with the charge.

1. The hearing on 26 April 2022 was a court date within the meaning of s 18(c).
2. Pursuant to s 71(2), an accused convicted in their absence in the Magistrates Court may apply for an order setting aside the decision and an order that the charge be dealt with again on grounds that the accused:

(1) did not receive notice of the court date on which the conviction occurred; or

(2) did not receive such notice in enough time to enable the accused to appear on the court date; or

(3) received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.

1. In Saad v Baron, Beech J (as his Honour then was) made the following observations regarding s 55:[45]

When s 55 applies, the court has two options. It can adjourn the charge. The other option is for the court to 'hear and determine the charge in the accused's absence'. If this latter option is taken, the guilt of the accused is decided in a radically different legal framework than generally applies in a criminal case. Rather than the prosecution being required to lead evidence to prove the offence beyond reasonable doubt, the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence. Secondly, the accused is denied the opportunity to contest the prosecution evidence or make submissions on the evidence. See s 55(4) and Tallot v Matier [ [2012] WASC 290] [12]].

...

In a situation where an accused does not appear at all, whether in person or by counsel, the purpose and rationale of s 55 may readily be deduced. In that situation, two things can safely be said that explain s 55. First, the accused has chosen not to contest the charges. That may reflect the absence of interest in or concern about the charge, or it may reflect the absence of any issue with what is alleged. Secondly, there is no‑one in the court to dispute the prosecution case. In those circumstances, the legislature has evidently determined that proof by the prosecution is unnecessary. The process is, as expressed by both counsel, 'streamlined' by permitting the court to take any allegation in the prosecution notice to be proved, without evidence ...

1. If the conditions set out in s 55(1) are met, s 55(2) and s 55(4) mandate that the following steps occur in order for the charge to be heard and determined in the accused's absence without evidence being called:

(1) The court must be satisfied that the accused has been served with the notices specified in s 55(2). That is, the prosecution notice containing the charge and an additional notice notifying the accused of the hearing date and of the fact that the court may deal with the charge in the accused's absence if the accused does not appear.

(2) The court exercises the discretion to hear and determine the charge in the accused's absence.

(3) The court determines that the prosecution notice is signed by a person who purports to be a person authorised to do so acting under s 20(3) of the CPA.

(4) The court must then presume, in the absence of evidence to the contrary, that the prosecution notice was validly issued.

(5) The court may take as proved any allegation in the prosecution notice containing the charge that was served on the accused. This is not mandatory. Rather, 'the court is empowered to take as proved any allegation in the prosecution notice, without requiring the prosecution to lead any evidence'.[46]

1. In summary, the court must be satisfied of the matters set out at (1) and (3) above and must exercise the discretions set out at (2) and (5). Section 55 facilitates a quick and efficient hearing in the accused's absence. However, that does not mean there is no hearing at all. This is made clear by the language of s 55(2), which empowers the court to hear and determine the charge in the accused's absence.
2. To be clear, I am not suggesting that the court needs to give detailed reasons setting out the basis upon which it decides to hear and determine the charge in the accused's absence without evidence being called. I expect that in most cases the court's decision can be explained in a few sentences that briefly address the requisite steps. The question here is whether the approach taken by the learned magistrate was too perfunctory, such that his Honour did not act in accordance with s 55.
3. The learned magistrate did not give any reasons for proceeding under s 55. The learned magistrate said, 'I can deal with it by section 55 but I don't think that's sentencing', and 'So that can be by way of section 55'.
4. I accept the respondent's submission that by saying these words, the learned magistrate convicted the appellant of AL 2097/2021. The words spoken by the learned magistrate indicated that the learned magistrate had determined the charge in reliance on s 55 of the CPA.
5. The respondent submits that it can be inferred that the learned magistrate was satisfied that service had been effected as required by s 55(2). The respondent points to the following matters:

(1) As a matter of procedure, an accused will be served with the prosecution notice containing the charge prior to a matter being listed for trial.

(2) The learned magistrate was not the resident magistrate in Albany and had attended the Magistrates Court at Albany to hear the matter.

(3) From the transcript, the learned magistrate was aware the appellant was on bail and that the appellant had signed his bail undertaking as an executor. It therefore can be inferred that his Honour had paperwork before him, including paperwork concerning court dates.

(4) The learned magistrate had turned his mind to the consequences of the appellant not appearing and was aware that it was not open to convict the appellant of charge AL 2150/2021 in his absence, as that charge was a breach of bail charge.[47]

(5) The learned magistrate was satisfied that he could proceed under s 55.

1. Further, the respondent submitted that the presumption of regularity supported the proposition that the learned magistrate had made the requisite decisions under s 55.
2. With respect to the careful way in which these arguments were presented, their substantive effect is that because the learned magistrate needed to be satisfied of the matters prescribed by s 55, it can be inferred that his Honour was so satisfied.
3. Further, the presumption of regularity is a presumption 'that acts and duties of a public official, and that acts and duties of an official nature, have been regularly and properly performed'.[48] I do not consider that presumption can extend to whether the learned magistrate made the requisite findings, and exercised the requisite discretion, to allow the learned magistrate to proceed to convict the appellant in reliance upon s 55(4).
4. The respondent referred to the decision of the Queensland Court of Appeal in Teelow v Commissioner of Police.[49] In that case, the appellant had been convicted and sentenced in the Magistrates Court. A technical malfunction resulted in the learned magistrate's sentencing remarks not being recorded. The appellant appealed to the District Court. That appeal failed. The appellant then appealed to the Court of Appeal on the ground that the unavailability of transcribed reasons was analogous to a failure to give reasons. That argument did not succeed. Muir JA (with whom the other members of the court agreed in this respect) said that:[50]

I am unable to accept the proposition that the failure to bring a transcript into existence was tantamount to a failure to give reasons. Reasons were given. The content of those reasons could have been deposed to and probably would have been if reliance was to be placed on what was said or omitted to be said by the magistrate. There was thus no error of law requiring the judge to exercise the sentencing discretion afresh.

1. The respondent submits that the decision in Teelow demonstrates implicit adherence to the presumption of regularity in that it accepts that adequate reasons were given unless the appellant proves otherwise. There was, however, no reference to the presumption of regularity in Teelow. The decision stands for the proposition that the absence of the transcript did not amount to a failure to give reasons.
2. Moreover, in this case, the transcript is available. Whether or not the learned magistrate made the requisite findings, and exercised the requisite discretions, must be viewed against what was said as reflected by the transcript, and what can be inferred from what was said. That analysis does not commence with a presumption that s 55 was regularly applied.
3. The starting point is that the learned magistrate and the prosecutor did not describe the provisions of s 55 in any detail. Rather, s 55 was only discussed in a general sense.
4. The learned magistrate did not indicate that he was satisfied the appellant had been served as required by s 55(2) and did not make any enquiry in that regard. The appellant was aware of the hearing date of 26 April 2022 from having been present when that date was set on 18 November 2021. However, s 55(2) required that the learned magistrate be satisfied the appellant was served with a notice specifying the hearing date of 26 April 2022 and advising that the court may deal with the charge in the appellant's absence on that date if he did not appear.
5. It can be inferred from what the learned magistrate said that his Honour had reviewed the appellant's bail paperwork, however that does not lead to an inference that his Honour had also seen documents which satisfied the requirements of s 55(2). The matter of bail, and of service of the requisite notice, are distinct matters. Further, the respondent accepts that there is no evidence before me that shows that the requisite notice was served.[51]
6. Accordingly, I am not satisfied that the learned magistrate found, either expressly or implicitly, that the requisite service requirements had been met.
7. Further, the learned magistrate did not give any reasons explaining why it was appropriate to proceed to hear and determine the charge under s 55 within a few minutes after the matter was called. In the absence of reasons, an assessment of whether it was open to the learned magistrate to exercise that discretion has to be assessed on the material that is before me. There may be many reasons a person is not present when their matter is called. Given the appellant had appeared previously in respect of the charge, and given that a charge of breaching a family violence restraining order is not a minor charge, I do not think it was open to assume that the appellant did not intend to contest the charge. Having regard to those matters, on the material before me, in my view it was not open to the learned magistrate to be satisfied it was appropriate to hear and determine the charge in the appellant's absence at the point in time his Honour did so. Accordingly, even if the learned magistrate had found that service had been effected as required by s 55(2), in my view it was not open to the learned magistrate to exercise the discretion to proceed under s 55.
8. For these reasons, the learned magistrate made an error of law in using the procedure in s 55 to convict the appellant of charge AL 2097/2021.
9. The respondent did not contend that the appeal should be dismissed under s 14(2) of the CA Act on the basis that no substantial miscarriage of justice has occurred. The respondent was correct not to do so. Where the procedure in s 55 has not been properly invoked, there is a miscarriage of justice and there is no scope for the application of s 14(2).[52]
10. For these reasons, I grant leave to appeal in respect of charge AL 2097/2021 and allow the appeal. The success of the appeal does not affect whether the charge can be successfully proved beyond reasonable doubt. The appropriate consequential orders are to set aside the judgment of conviction and order that the charge be referred for hearing to the Magistrates Court.

Further issue in respect of charges AL 2150/2021 and AL 682/2022

1. There is one further issue raised by the respondent in respect of charges AL 2150/2021 and AL 682/2022. It concerns the application of s 51(3) of the Bail Act, which provides:

An accused shall not be convicted in his absence of an offence against [s 51].

1. As explained earlier, the learned magistrate convicted the appellant on 2 August 2022 of charges AL 2150/2021 and AL 682/2022 after the appellant had left the courtroom. The respondent contends that s 51(3) of the Bail Act only precludes an accused being convicted in their absence in reliance on s 55 of the CPA. In making that submission, the respondent's submissions traversed the legislative history pertaining to s 51(3) of the Bail Act. Given that I have allowed the appeal in respect of charges AL 2150/2021 and AL 682/2022 on other grounds, it is not necessary to resolve this issue.

(1) I grant leave to appeal in respect of charge AL 2097/2021.

(2) The appeal is allowed in respect of charges AL 2097/2021, AL 2150/2021 and AL 682/2022.

(3) The appellant's conviction on charge AL 2150/2021 is set aside and substituted with a judgment of acquittal.

(4) The appellant's conviction on charge AL 2097/2021 is set aside and I order that charge be referred to the Magistrates Court for trial.

(5) The appellant's conviction on charge AL 682/2022 is set aside and I order there be a retrial of that charge in the Magistrates Court.

1. Given that the appeal against conviction has succeeded in respect of all three charges before me, it is not necessary to consider the appeal against sentence.
2. The appellant's success on the appeal does not reflect any validity in his contentions regarding his legal identity. Those contentions are without merit. The appellant's success arises from matters brought to my attention by the respondent's counsel and the decision of Forrester J.

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

[1] See Commonwealth Bank of Australia v Moir [2024] WASC 319 [90] and the cases referred to in the footnote to that paragraph.

[4] Criminal Procedure Act 2004 (WA), s 126(6).

[5] The learned magistrate considered she was probably conflicted from hearing the trial because her Honour had heard the application for the restraining order the subject of charge AL 2097/2021.

[13] Reynolds v WA Police [2024] WASC 67.

[18] Samuels v The State of Western Australia [2005] WASCA 193 [56].

[19] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] ‑ [45].

[20] Section 28(2) of the Bail Act sets out the requirements of a bail undertaking.

[21] Respondent's written submissions, par 14.

[23] Strahan v Brennan [2014] WASC 190 [90].

[24] Respondent's written submissions, par 20.

[25] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388 ‑ 389 [91] (McHugh, Gummow, Kirby and Hayne JJ).

[28] Attorney General of New South Wales v World Best Holdings Limited [2005] NSWCA 261; (2005) 63 NSWLR 55 [107].

[29] Tasker v Fullwood [1978] 1 NSWLR 20, 23 ‑ 24.

[33] Hearing 2 August 2022, ts 3 - ts 4.

[34] Hearing 2 August 2022, ts 4 - ts 5.

[37] Hearing 2 August 2022, ts 13 - ts 14.

[38] Respondent's written submissions, pars 37 and 38.

[39] Sprlyan v Wyborn [2019] WASC 227 [187].

[40] Respondent's written submissions, pars 39 and 40.

[41] See by way of analogy AK v The State of Western Australia [2008] HCA 8 [59] (Gummow and Hayne JJ), Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 [161] - [177] (Buss JA) and Halifax Crane Hire Pty Ltd v Ayton [2023] WASC 16 [109] (Forrester J).

[42] Respondent's written submissions, par 63.

[43] See for example Bindai v Armstrong [2016] WASC 341 [17] - [23], see also Blenkinsop v Wilson [2019] WASC 77 [74] ‑ [77].

[45] Saad v Baron [2012] WASC 507 [58], [62].

[48] Bhalsod v Perrie [2018] WASCA 108 [110].

[49] Teelow v Commissioner of Police [2009] QCA 84 [18] - [19].

[51] Appeal hearing 15 August 2024, ts 100.

[52] Reynolds v Nonkovic [2023] WASC 326 [27].