Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Drugs offences - Appeals against conviction and sentence - Appellant failed to file appellant's cases - Springing orders - Extension of time for compliance - Whether further extension of time should be granted

Misuse of Drugs Act 1981 (WA), s 6(1), s 33(1), s 38, s 38A, s 38B

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Applications for an extension of time to comply with springing orders dismissed

Bui v The State of Western Australia [2014] WASCA 168

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Jenkin v The State of Western Australia [2014] WASCA 226

Le v The State of Western Australia [2014] WASCA 120

MTQ Holdings Pty Ltd v Lynch [2007] WASC 49

The State of Western Australia v Hunter [2014] WASCA 87

Wharton v The Queen [No 2] [2015] WASCA 176

1 REASONS OF THE COURT: Before the court are the appellant's applications filed on 16 October 2015 to extend time to comply with springing orders made by a single judge of this court.

2 On 6 November 2014, the appellant was convicted after trial in the District Court of four drug offences, being three counts of possession of a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (counts 1, 2 and 4); and one count of attempting to manufacture a prohibited drug contrary to s 6(1)(b) read with s 33(1) of the MDA (count 3).

3 On 19 December 2014, the appellant was sentenced as follows:

4 The learned sentencing judge ordered that the sentence on count 2 be served concurrently with the sentence on count 1, and that the sentences on counts 3 and 4 be served cumulatively on count 1. Thus, the total effective sentence was 7 years' imprisonment. His Honour ordered that the sentences take effect from 3 October 2014, and that the appellant be eligible for parole (sentencing remarks ts 9).

5 On 5 February 2015, appeal notices against conviction and sentence were filed on the appellant's behalf. The appellant was required to file and serve an appellant's case in each appeal on or before 2 April 2015. The appellant failed to do so. Later, the appellant was granted two extensions of time to file and serve his appellant's cases. The first extension gave the appellant until 2 June 2015. The second extension gave the appellant until 30 June 2015. The appellant failed to comply with those orders.

6 In light of these failures, and without opposition by the appellant, the following order was made on 17 August 2015 in each appeal:

[T]he time for the appellant to file and serve the appellant's case be extended to 4.00 pm on 18 September 2015, failing which the appeal will stand dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 [the springing orders].

7 The appellant failed to comply with the springing orders.

8 On 2 October 2015, the acting Court of Appeal registrar affixed the court's seal to a Certificate of Conclusion of Criminal Appeal in each appeal.

9 By applications dated 8 October 2015 and filed on 16 October 2015, the appellant sought an extension of time to comply with the springing orders. The applications are opposed by the respondent.

10 For the following reasons, the applications must be dismissed.

11 On the afternoon of 1 May 2012, police officers stopped a vehicle being driven by the appellant on Rockingham Road in Wellard (ts 132). A search revealed three containers of a white powdery substance, which was later analysed and found to contain methylamphetamine. A container on the floor under the driver's seat contained 34.6 g of methylamphetamine with a purity of 62% (ts 133). The other two containers were found in the centre console at the back of the vehicle (ts 132). One contained 66.1 g of methylamphetamine with a purity of 77%, and the other contained 68.4 g of methylamphetamine with a purity of 82% (ts 132). Thus, the total quantity of methylamphetamine found in the appellant's vehicle was 169.1 g (count 1) (ts 132).

12 When interviewed at the roadside, the appellant said that the substance in the containers was methylamphetamine and that it had been in his possession for about three days (video interview by Detective Senior Constable Foster ts 7). He told the police that he had been using methylamphetamine for five or so years and that he consumed easily a gram per day (video interview by Detective Senior Constable Foster ts 6). In addition to the methylamphetamine, the police also found five MDMA tablets (ts 132); a large quantity (16 boxes) of pseudoephedrine-based cold and flu tablets (ts 269); $17,073 in cash; and a small set of electronic scales in the appellant's pocket (ts 132).

13 The appellant was arrested and taken to his home at Wattleup. Police, assisted by chemists, searched the premises. In the shed, police found 159 tablets weighing 47.6 g and with the letters 'cK' imprinted. The tablets were later analysed and found to contain MDMA with a purity of approximately 10%. At the same location, police found 44 tablets, each bearing a Mitsubishi logo. These tablets were also found, on later analysis, to contain MDMA. The weight of the tablets was 11.7 g with a purity of approximately 14%. A total number of 203 MDMA tablets were discovered in the shed (count 2) (ts 136).

14 During the search of the appellant's house, various chemicals and items of equipment were found which were consistent with the manufacture of methylamphetamine. These items included more pseudoephedrine-based cold and flu tablets and iodine (count 3) (ts 137).

16 On 11 May 2012, police again searched the appellant's house. This time, a quantity of white powder in two clipseal bags was discovered in the patio area. On later analysis, one of those bags was found to contain 8.2 g of methylamphetamine with a purity of 21% (count 4). The police also found and seized $1,435 in cash (ts 138).

17 The appellant testified in his defence. As to count 1, the appellant did not deny that what he possessed was, in fact, methylamphetamine. He testified (contrary to what he told the police) that, at the time, he believed that the substance found by the police in his vehicle was not methylamphetamine, but, rather, a substance called isopropylbenzylamine (IBA) (ts 607, 638), which, the State accepted, was not a prohibited drug (ts 640). The appellant said that he had obtained the substance from a person named Henry Linous (ts 590) in exchange for some work that the appellant had performed for him and for which the appellant had been seeking an outstanding payment (ts 592 - 594). The appellant said that he intended to smoke all of the IBA and that he had no intention to sell or share it with anyone else (ts 597). With respect to count 1 (but not the other counts), the appellant relied upon a defence of honest and reasonable but mistaken belief of fact pursuant to s 24 of the Criminal Code (WA).

18 As to count 2, the appellant admitted possession of the MDMA tablets (ts 594). He said that those tablets had also been given to him by Henry Linous (ts 594, 600 - 601). The appellant said that he had no intention of doing anything with the tablets because he did not know what to do with them (ts 601, 610). In substance, the appellant admitted possession of the MDMA tablets but denied possession with an intention to sell or supply any of them to another (ts 610).

19 As to count 3, the appellant denied that he had manufactured, or that he had attempted to manufacture, methylamphetamine at his house (ts 116, 604). He sought to give innocent explanations for the various items said by the State to be consistent with a clandestine methylamphetamine laboratory (ts 603 - 610).

20 As to count 4, the appellant denied knowledge, and thus possession, of the methylamphetamine found in the patio area of his house, testifying that he did not know to whom it belonged (ts 725).

21 The appellant was represented by experienced counsel during the course of the proceedings in the District Court. The appellant did not challenge the accuracy of the certificates of approved analyst that were tendered to show that the drugs the subject of counts 1, 2 and 4 were prohibited drugs.

Proceedings before this court Procedural history

22 The relevant procedural history of the appeals is as follows.

23 As we have already said, notices appealing against conviction and sentence were filed on 5 February 2015. The notices were signed by the appellant's then lawyer, Ms Patti Chong.

24 On 30 March 2015, the appellant signed a notice of self-representation in each appeal. He has been self-represented ever since.

25 On 2 April 2015, his appellant's cases were due to be filed and served.

26 On 8 April 2015, the Court of Appeal office wrote to the appellant informing him that, if his appellant's cases were not filed without further delay, then the matters may be referred to a judge who has jurisdiction to dismiss the appeals.

27 On 4 May 2015, Mazza JA ordered that the time for the filing and serving of his appellant's cases be extended to 2 June 2015 (the first extension).

28 On 3 June 2015, the appellant sent consent notices to the respondent seeking to extend the time for the filing and serving of his appellant's cases by 28 days to 30 June 2015.

29 On 4 June 2015, the respondent signed and returned the consent notices to the appellant.

30 On 9 June 2015, orders in terms of the consent notices extending the time to file and serve his appellant's cases to 30 June 2015 were made (the second extension).

31 The appellant failed to file and serve his appellant's cases within the extended timeframe.

32 On 24 July 2015, Mazza JA conducted a directions hearing to deal with the failure of the appellant to file and serve his appellant's cases despite the extensions of time that had been given. During that directions hearing, the appellant told his Honour the following:

(a) The appellant had a copy of the indictment, the trial transcript and the transcript of his sentencing proceedings (appeal ts 2 - 3).

(b) His appellant's cases were '99% complete' (appeal ts 4).

(c) The appellant wished to adduce new evidence; however, he was having trouble obtaining this material. He said that the absence of this material was holding up the filing of his appellant's cases (appeal ts 2, 4).

33 The directions hearing was adjourned to 17 August 2015.

34 During a directions hearing before Mazza JA on 17 August 2015, the appellant said that he had not obtained the additional evidence he wished to adduce (appeal ts 10 - 11). As to the nature of this evidence, he explained that he wished to obtain an independent analysis of the substances which were said, at his trial, to be methylamphetamine (appeal ts 10). It appears that he was referring to the methylamphetamine the subject of count 1; that is, the substance he said he believed was IBA. He agreed that no challenge had been made at his trial as to the correctness of the relevant certificates of approved analyst, although he claimed that he had instructed his lawyers to do so (appeal ts 10). As the appellant put it, he wished to obtain an independent analysis 'to support [his] belief that the drug could be incorrectly analysed [sic]' (emphasis added) (appeal ts 12). The appellant repeated that his appellant's cases were 'probably 99% complete' (appeal ts 12), and that 'the affidavit [containing additional evidence]' was holding up the preparation of his appellant's cases (appeal ts 13). He said that he understood that he could not continue to be granted indefinite extensions of time. Mazza JA informed the appellant that he was minded to grant a further (third) extension of time of one month to enable the appellant to file and serve his appellant's cases. His Honour continued:

Mazza JA: If you don't, then in light of the fact that you've had two previous extensions, your appeals will stand dismissed. So in other words, if you don't file your appellant's cases by that deadline your appeals will be dismissed. Do you understand that?

The appellant: Yes, your Honour.

Mazza JA: All right. Do you want to say anything about that?

The appellant: No. I understand the importance of it, your Honour (appeal ts 14).

35 His Honour proceeded to make the springing orders referred to earlier, extending the time within which his appellant's cases could be filed and served to 4 pm on 18 September 2015 (appeal ts 15).

36 On 14 September 2015, the appellant posted to the respondent and to the court four documents which the appellant claimed supported his 'defence' that the substance in his possession was not methylamphetamine. Those documents were journal articles concerning the laboratory analysis of substances said to contain illicit drugs, including methamphetamine (see annexure D to the affidavit of Catherine Shade sworn on 24 December 2015). The appellant concluded his letter with the statement 'My intentions are to file my appellant's cases via facsimile'. The appellant did not comply with the springing orders.

37 On 21 September 2015, the Court of Appeal office wrote to the appellant informing him that the appeals 'have now been completed' as a consequence of his failure to comply with the springing orders. The letter also informed the appellant that 'in this situation [he] may file an application in each appeal for an extension of time to comply with the springing orders made on 17 August 2015'. On 2 October 2015, a sealed Certificate of Conclusion of Criminal Appeal was issued in each appeal.

Applications for extensions of time to comply with springing orders

38 On 16 October 2015, as we have already pointed out, the appellant filed his applications for extensions of time to comply with the springing orders. The applications were supported by a brief affidavit sworn by the appellant on 8 October 2015 in which he states that he had not completed his appellant's cases because he had been transferred to Acacia Prison, and that the transcript was 'incomplete/edited [sic]' to omit the testimony of two prosecution witnesses, Melissa Davies and Dr Oliver Locos.

39 During a directions hearing conducted by Mazza JA in relation to the applications on 19 November 2015, the State agreed to provide the appellant with any missing transcript (appeal ts 19). Programming orders were made for the filing of affidavits and submissions by the parties. On 24 December 2015, the respondent filed in each appeal an affidavit sworn by Catherine Shade on the same date annexing various pieces of correspondence. On 11 January 2016, the appellant's affidavit sworn on 7 January 2016 was filed in each appeal.

The appellant's affidavit sworn on 7 January 2016

40 In his affidavit sworn on 7 January 2016 (appellant's affidavit), the appellant proffered a number of reasons for his failure to file and serve his appellant's cases, being:

(a) the fact that he is self-represented (appellant's affidavit [17]);

(b) difficulties experienced by him occasioned by a lack of resources in the prison system (appellant's affidavit [18] - [20], [27], [55]);

(c) the fact that his copy of the trial transcript was 'incomplete/edited' (appellant's affidavit [56]);

(d) his inability to access documents that he describes as 'forensic drug analysis reports' (appellant's affidavit [21]);

(e) his relocation within the prison system (appellant's affidavit [29], [37] - [39]); and

(f) his inability to access the pre-sentence report (appellant's affidavit [31]).

41 The appellant stated that on 1 December 2015, he wrote to Australian Laboratory Services enquiring about its accreditation and procedures; whether it could analyse the substance he believed was IBA; and if it could determine, in effect, whether the substance was, in fact, IBA or methylamphetamine (appellant's affidavit [47] - [49]). The appellant stated that, as at 7 December 2015, he had received no reply to that correspondence (appellant's affidavit [49]).

42 The appellant's affidavit does not contain his draft appellant's cases. There is nothing to indicate that the appellant has obtained any independent analysis of the drugs said by him to be IBA. The appellant has given no indication whatsoever as to when his appellant's cases will be filed, if a further extension was to be granted.

43 The relevant statutory framework governing these applications was described by this court in Wharton v The Queen [No 2] [2015] WASCA 176 [40] - [47] in these terms:

An appeal from a superior court such as the District Court must be commenced and conducted in accordance with pt 3 of the Criminal Appeals Act 2004 (WA) and the rules of court: s 28(1) of the Criminal Appeals Act.

The rules which apply to any matter or cause over which this court has jurisdiction are the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules): r 3 (1) and r 4(1) of the Rules. The Rules must be read with the Rules of the Supreme Court 1971 (WA) (the RSC): r 5(1) of the Rules. Rule 5(4) of the Rules provides:

'The RSC Order 3, other than rules 2(2) and 5(3), applies for the purposes of these rules.'

Relevantly to this appeal, O 3 r 5(1) and r 5(2) of the RSC provide:

'5. Extending and abridging time

(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order, or direction, to do any act in any proceedings.

(2) The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.'

Subject to the court's power to extend time, an appeal under pt 3 of the Criminal Appeals Act must be commenced within 21 days after the date of the decision or judgment: s 28(3) of the Criminal Appeals Act. Where a person is sentenced on a date which is not the date of conviction, time under s 28(3) runs from the date of sentencing: s 28(4) of the Criminal Appeals Act.

A criminal appeal is commenced by the filing and service of an appeal notice, which includes a statement of proposed grounds of appeal: r 28(1) of the Rules; Form 1. Where applicable, the appeal notice is to be filed with an application for an extension of time within which to appeal, together with a supporting affidavit deposing to why the appeal was not commenced within time: r 28(2) of the Rules.

After an appeal notice is filed, an appellant must file an appellant's case: r 32(1) of the Rules; Form 7. An appellant's case in a criminal appeal comprises a number of documents, including the grounds of appeal, the appellant's submissions, legal authorities and orders sought: r 32(3)(b) of the Rules. That document must be filed 'within 35 days after the date on which the appeal notice is filed': r 32(2)(b) of the Rules. However, this court's practice in criminal appeals is to allow an appellant's case to be filed within 56 days after the filing of the appeal notice. This is to allow sufficient time for an appellant who requires legal aid or other assistance to prepare his or her appellant's case.

The jurisdiction of a single judge of this court under the Rules is set out in r 43. Relevantly, r 43(2)(g) gives a single judge jurisdiction:

'to dismiss the appeal if -

(i) none of the grounds of appeal has a reasonable prospect of succeeding; or

(ii) the appellant has not obeyed these rules or any order made under them.'

Rule 43(2)(l) of the Rules gives a single judge jurisdiction:

'to make any order that is necessary or convenient to make as a result of an order made under any of the above paragraphs.'

Power to extend time to comply with a springing order

44 This court has the power to extend time for compliance with a springing order even though the time for compliance has passed: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 and Wharton [No 2] [48] - [49].

45 The general principles applicable to an application to extend time for compliance with a springing order were set out by Master Newnes (as his Honour then was) in MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] - [41], [46] - [51], [54] - [57]. In Wharton [No 2], those general principles were held to also apply in criminal appeals [52]. In this context, the court said:

[T]his court will pay due regard to the difficulties that often face self-represented appellants in custody and the serious consequences that potentially flow to an appellant's liberty if the court refuses to grant such applications. It must also be recognised that there is a strong public interest in the timely disposition of criminal appeals and that, in many cases, there is a human cost to victims and/or their families as a result of undue delay. (citations omitted)

The starting point is that this is an application to extend time for compliance with a springing order. Maintenance of the authority of the court requires that weight is given to the need to comply with orders of the court. By its nature, a springing order is intended to be the end of the line for a party who has failed to comply with orders of the court and maintenance of the authority of the court. The proper administration of justice requires that the springing order generally be, as is its evident object, the last opportunity for the party in default.

Often, if not generally, when the deadline for compliance with a springing order has passed, and the party in default seeks an extension, that party provides the document the subject of the default in support of the application for an extension of time.

47 The exercise of the discretion to extend time to comply with a springing order must be exercised having regard to all of the circumstances of a particular case. There are no hard and fast rules as to the matters to which the court should have regard, but the court will usually have regard to at least the following matters:

(a) The circumstances in which the springing order came to be made.

(b) The reason for non-compliance with the springing order.

(c) The prejudice to the defaulting party if time is not extended.

(d) The prejudice to the other party if time were extended.

48 Another relevant consideration is whether the defaulting party has a reasonably arguable case on the merits. However, even if the defaulting party has a reasonably arguable case, that does not automatically insulate that party from the consequences of its default.

49 By the time the springing orders were made, the appeals had been on foot for approximately five and a half months, and the appellant had not made any significant progress towards their resolution. The appellant was in default of the rules and of two orders extending time. When the springing orders were made, the appellant claimed that his appellant's cases were '99% complete'. He was then given ample time to complete them. He acknowledged the importance of complying with the orders, but failed to do so.

50 It is clear that since the making of the springing orders, nothing of substance has been done by the appellant to progress his appeals. There is nothing to indicate that the appellant has obtained an independent analysis of the drugs proved at trial to be methylamphetamine. The material sent to the court under cover of the appellant's letter dated 14 September 2015 does not demonstrate the inaccuracy of the certificates of approved analyst and is incapable of establishing that any of the substances proved by the State at trial to be methylamphetamine were not methylamphetamine. The appellant has not provided the court with any information as to when his appellant's cases may be filed. He has not provided the court with drafts of his appellant's cases which he alleged, months ago, were '99% complete'. The appellant is, in effect, seeking an open-ended extension of time to do so, based on the hope that an analysis will be performed, the outcome of which will be favourable to him.

51 We have taken into account the difficulties that unrepresented appellants in custody face in preparing and presenting their appeals. However, as was said in Wharton [No 2] [56], it is the long experience of this court that those who seriously wish to pursue appeals against conviction and sentence manage to comply with this court's rules and orders, and prepare their appellant's cases.

52 The appellant's claim that his copy of the trial transcript is incomplete is surprising, given that nothing to that effect was said to this court by him in the directions hearings leading up to the making of the springing orders. The appellant's inability to access his pre-sentence report is no justification for the appellant's failure to file an appellant's case in his appeal against sentence. This court has procedures which enable in person appellants to attend the court to inspect a pre-sentence report where an appellant thinks it necessary to do so.

53 The first time the appellant apparently made any attempt to obtain evidence of the sort which might call into question the accuracy of the certificates of approved analyst was on 1 December 2015 when he wrote to a laboratory inquiring as to whether they could provide him with an expert opinion. The appellant has not provided the court with any reply, nor is there evidence of any progress in furthering the appellant's inquiry beyond the statement contained in the appellant's affidavit that, as at 7 December 2015, the appellant had received no reply to his letter to the laboratory.

54 The materials before the court do not indicate that there is any merit in his proposed appeals. The draft ground of appeal in the notice of appeal against his conviction reads:

There was a miscarriage of justice when the learned trial judge misdirected the jury as to the elements of the offence.

55 The appellant has not identified any specific alleged misdirection; rather, he seeks to advance a ground concerning the proposed (and, as yet, unknown) additional evidence. There is nothing to show that the substance proved at trial to be methylamphetamine was IBA (count 1); nor is there anything upon which the appellant has sought to rely which calls into question the appellant's convictions on counts 2, 3 and 4.

56 There is no reason why the appellant's case in his appeal against sentence could not have been filed and served long ago. The draft ground of appeal alleges an infringement of the first limb of the totality principle. Any additional evidence, whatever it might entail, can have no conceivable bearing upon the merits of the sentence appeal. Having regard to the commercial nature of the appellant's drug dealing, as evidenced by the substantial amounts of cash found by the police; the quantities of methylamphetamine and MDMA he possessed; the particularly high purity of the methylamphetamine the subject of count 1; the absence of any real mitigation apart from his reasonably good antecedents; the fact that count 4 was committed whilst the appellant was on bail; and comparable cases such as Jenkin v The State of Western Australia [2014] WASCA 226; Bui v The State of Western Australia [2014] WASCA 168; Le v The State of Western Australia [2014] WASCA 120 and The State of Western Australia v Hunter [2014] WASCA 87 (and the cases cited in those authorities), his appeal against sentence does not appear to have any merit.

57 Having regard to all of the preceding factors, and the need to maintain the authority of the orders of the court, there is simply no basis upon which this court could properly exercise its discretion to extend the time for compliance with the springing orders. The applications must be dismissed.