Kwok v Gordon [2023] WASC 325

Kwok v Gordon [2023] WASC 325 (at 6-8):

In Kelly v Fiander [2023] WASC 187, Vandongen J held that it was not a pre‑condition to reaching the conclusion that an accused had ‘appeared’ for the purpose of s 55 of the Criminal Procedure Act that the accused clearly identify themselves in answer to questions from the court. His Honour held that an accused appears for the purposes of s 55 when the accused is personally before the court or, if they are not personally before the court, they are represented by counsel, and this is so even if the accused refuses to identify herself.

There is no doubt that those accused of charges and who conduct themselves before magistrates as the appellant did on 13 January 2023 disrupt and delay the administration of justice in the State’s busiest court and thus both impede the magistrates in the discharge of their duties and disadvantage other members of the public who have matters before the court.  They are the cause of considerable frustration to magistrates.

That said, with respect to the learned magistrate in this case, it was apparent that the appellant was in fact the accused even though she had refused to identify herself as such. Thus, by proceeding to hear the charge under s 55 of Criminal Procedure Act the magistrate erred in a manner that gave rise to a miscarriage of justice.”