Supreme Court of WA|2006-07-26|Before: Hasluck J

EJUEYITSI -v- MALONEY [2006] WASC 146 (26 July 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : EJUEYITSI -v- MALONEY [2006] WASC 146

Criminal law - Charge of false statement pursuant to Migration Act 1958 (Cth) - Whether statement concerning residency was false or misleading in a material particular - Whether prosecution established beyond reasonable doubt that statement was false - Whether Magistrate erred in his appraisal of evidence - Assessment of credibility of witnesses - Delay in prosecuting appeal - Whether extension of time should be allowed - Comparison of earlier appellate legislation at time of conviction to current requirements - Leave to appeal refused - Turns on own facts

Courts Legislation Amendment and Repeal Act 2004 (WA), s 23

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA), s 3, s 4

Justices Act 1902 (WA), s 184, s 187(1), s 189, s 196, s 199, s 206C

Rules of the Supreme Court 1971 (WA), O 65A r 2(b)

Respondent : Commonwealth Director of Public Prosecutions

1 HASLUCK J: The applicant, Vincent Babatunde Ejueyitsi, seeks leave to appeal against a conviction that was recorded against him in the Court of Petty Sessions at Perth on 24 October 2001 arising out of an infringement of the Migration Act 1958 (Cth). The issue concerning leave to appeal is to be dealt with in conjunction with the appeal itself. The question arising on the appeal, if leave be granted, is whether the learned Magistrate erred in his appraisal of the evidence presented in support of the prosecution case.

2 It was common ground at the hearing before me that the applicant is a citizen of Nigeria who was born in 1961. It seems that he arrived in Australia on 13 April 1997 on a student visa. On 28 February 1999 he married Nola Khan, an Australian citizen, and about six weeks later lodged an application for what is known as a Spouse Visa. I understand from what was put to me at the hearing that his status at the present time is still in the course of being determined.

3 On 22 October 2001 the applicant appeared before the Court of Petty Sessions at Perth on certain charges brought pursuant to provisions of the Migration Act.

4 First, he was charged (No 48304/00) that on 1 April 1999 at Perth, in connection with an application for a further visa permitting a non-citizen to remain in Australia, he delivered to an officer performing functions under the Migration Act a document containing information that was false in a material particular, namely, in an Application to Remain Permanently in Australia Form dated 22 March 1999, he falsely stated that he first met his spouse in July/August 1997, contrary to s 234(1)(c) of the Act. I will call this the "visa application charge".

5 Second, the applicant was charged (No 48305/00) that on or about 22 June 1999 at Perth, he made to an officer performing functions under the Migration Act, a statement that to his knowledge was false in a material particular, namely, that he had lived at 3/187 Hardy Road, Belmont since 1997, contrary to s 234(1)(b) of the Act.

6 The effect of that provision is that a person shall not in connection with an application for a visa or a further visa permitting a non-citizen to remain in Australia, make to an officer performing functions under the Act, a statement that, to the person's knowledge, is false or misleading in a material particular. I will call this the "false statement charge".

7 The applicant was represented at the hearing by a solicitor, Mr Paul Roth. The prosecutor relied upon the testimony of various witnesses including that of Nola Khan, who married the applicant on 28 February 1999; Scott Brian Hughes, a case officer in the Department of Immigration, and Gail Marie McQueen, who said that in late December 1998 she commenced an intimate relationship with the applicant which continued until late April 1999, and was reinstated later in that year.

8 A number of other prosecution witnesses gave evidence bearing upon the applicant's movements after his arrival in Australia and upon the nature of his relationship with Nola Khan. All of these witnesses were cross-examined by counsel for the applicant and he himself gave evidence on his own behalf, and was then cross-examined.

9 A central feature of the prosecution case as to both charges was evidence given by Mr Hughes that in mid-1999 he had the file concerning the applicant's application for permanent residence based on spouse grounds. Mr Hughes was troubled by the evidence produced in support of the application. There were indications that the relationship between the applicant and his spouse had broken down, so Mr Hughes decided to interview them both to see if the relationship was genuine and whether it was still ongoing. It was clear from the evidence adduced in support of the prosecution case that at all material times Nola Khan had been living at 3/187 Hardy Road, Belmont, a suburb in the metropolitan area of Perth.

10 Mr Hughes said that he made notes in the course of both interviews. His evidence included reference to the relevant record of interview concerning the applicant dated 22 June 1999. The record of interview consisted of certain printed or typewritten questions on a standard form, followed by the answers. According to Mr Hughes, the handwritten answers on the document were in his hand and recorded the information provided to Mr Hughes by the applicant as interviewee in response to the questions put to him.

11 The first few questions and answers were as follows:

"What is your current address?---3/187 Hardy Road Belmont.

How long have you resided at that address?---Since 1997.

What is your spouse/partner's name and date of birth?---Nola Khan. 13/1/55.

When and where did you first meet them?---At Burswood Casino. Unable to remember date met each other.

Were you introduced? If so, by whom, or did you meet by chance?---Met by chance.

When and where did you start living together?---Claimed in January-February 99. But was staying there frequently before.

Are you employed? If so, what do you do?---Not employed at present. Casual employment security. Studying public health."

12 In the course of his evidence-in-chief Mr Hughes confirmed that the questions he posed to the applicant included the question concerning his current address. Mr Hughes received the answer "3/187 Hardy Road Belmont". The applicant was asked also how long he had resided at that address and the applicant said "since 1997". Mr Hughes went on to say that after the interview he received a letter dated 22 June 1999 signed by the applicant and his nominator.

13 The applicant's 22 June letter was received in evidence as an exhibit. It reads as follows (omitting the inessential parts):

"I had an interview with you this morning and you officially requested for a statement or duration of stay within me and my wife.

Speaking officially, me and my wife started living together after the marriage as stated in the marriage certificate.

Thanks, best regards"

14 Under cross-examination, Mr Hughes agreed that at the time of the interview he had concerns about the legitimacy and genuineness of the relationship between the applicant and his wife. Mr Hughes could not say exactly whether the words he wrote on the document were a form of shorthand or the exact words used. This exchange then occurred (t/s 103):

"You can't recall whether you said - - whether you copied exactly or shorthand. Is it possible Mr Ejueyitsi said that they had been living together from January and February 1999, but he had been staying there frequently before that, so you put down claimed January 1999, but had been staying there frequently?---In - - I would have stated that he claimed in January, February 1999, but was staying there frequently before.

That's pretty much what you wrote down there, isn't it?---Yes.

So when you asked that question, would you agree it's certainly possible Mr Ejueyitsi responded 'Officially been living since January February 1999, but I've been staying there frequently before that'?---Yes."

15 The applicant gave evidence to the effect that he arrived in Australia in April or May 1997 on a student visa and went first to Melbourne to study social work at La Trobe University. He came to Perth in July or August 1997 on which occasion he met Nola Khan at the Burswood Casino. On the second occasion they met, he stayed the night at her residence at Unit 3/187 Hardy Road, Belmont. He went on to describe a subsequent meeting when he came back to Perth in October 1997 with mention being made of a card that she sent to him dated 4 November 1997 signed by her.

16 The applicant said that he returned to Perth in September 1998 and this led to an arrangement whereby he was staying both at her place and at a hostel linked to Curtin University where he was studying. He said that he cohabited with her in the residence (t/s 152) while also being in the hostel and at certain other addresses. They were married eventually on 28 February 1999.

17 The applicant's account of the relationship was challenged by the prosecutor in the course of cross-examination. It was put to the applicant that he was keen to migrate to Australia and that at about the time he was proposing marriage to Nola Khan, he had also put a proposal of marriage to Ms McQueen. It was put to the applicant that he had coached Nola Khan and another witness to give answers that would assist the applicant.

18 The learned Magistrate dealt with the two charges in turn. As to the first or visa application charge, his Honour noted that the prosecution had to establish by proof beyond reasonable doubt, that the applicant was intent on obtaining permanent residency in Australia and, in order to do so, completed an application form which falsely asserted that he met his wife Nola Khan in July/August 1997.

19 His Honour was satisfied that the applicant was a student at Curtin University and was at that institution from early September to mid-December 1998. He referred to the evidence of a Mr Watson who managed a residential hostel linked to the university and to some rather unsatisfactory evidence given by an acquaintance of the accused concerning the duration of their association.

20 His Honour referred also to the evidence of Ms McQueen about commencing a relationship with the applicant in late December 1998 and to the evidence of Nola Khan as to her relationship with the applicant. The former was found to be a "convincing and reliable witness", but the latter was thought to be "traumatised by the overall circumstances of the matter", with the result that the learned Magistrate was of the view "that she may be unreliable in her recollection of the time period during which she first met the accused person". His Honour clearly had reservations about the applicant's reliability as a witness.

21 In the end, as to the visa application charge, the learned Magistrate was not satisfied to the required standard of proof that the applicant's statement that he first met his spouse in July/August 1997 was false. Accordingly, the applicant was acquitted of that charge.

22 I note in passing, as it has a bearing upon the matters in issue in this appeal, that the prosecution's failure to satisfy the learned Magistrate that the applicant had first met Nola Khan shortly before the marriage on 28 February 1999, could arguably be regarded as an acknowledgement that there was some force in the applicant's contention that the parties met initially in mid-1997; or, putting it another way, that in the absence of sufficient proof to rebut the applicant's contention, the learned Magistrate, when he turned to the second or false statement charge, had to proceed upon the assumption that the parties had met in mid-1997.

23 The false statement complained of in the second charge was that the applicant "had lived at 3/187 Hardy Road Belmont, since 1997". As to this charge, the prosecution relied heavily upon the answers given to Mr Hughes in the course of the interview conducted on 22 June 1999. It is immediately obvious that a distinction must be drawn between a statement to the effect that the applicant had met his future wife in 1997 and a statement to the effect that he had "lived" at her house since that time.

24 In the end the learned Magistrate arrived at this conclusion:

"In relation to the second count, I am satisfied beyond a reasonable doubt in accepting the evidence of Mr Hughes that he asked the accused the question, 'Where do you live and how long have you resided at that address?' The accused replied, '3/187 Hardy Road Belmont, since 1997.' He was not confused about the questions and answered them unequivocally. He knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship with Khan. I do not accept the accused's contention that he may have been attempting to indicate that he had only stayed at that address on occasions. His actual response was specific and intentional, and constituted a false declaration to his knowledge, which was false and accordingly he will be convicted of the charge."

25 I pause to observe that in arriving at this conclusion the learned Magistrate was clearly bringing to account the assessment of the credibility of the various witnesses including the applicant, being an assessment which he had made a little earlier in the course of resolving the first or visa application charge. His doubts about the genuineness of the relationship with Nola Khan (inadvertently spelt as "Carne" in the transcript) was clearly influenced by his doubts about the applicant's credibility and his favourable finding as to the credibility of and evidence given by Ms McQueen.

26 Thus, it might be said, on a fair reading of the reasons for decision as a whole, that although the learned Magistrate was prepared to accept that the parties might have met in 1997, he was not prepared to accept the applicant's evidence or to infer from the evidence given by other witnesses, that they had cohabited or lived together since that time. Having regard to the evidence given by Ms McQueen that she had been with the applicant at an address, being an address which appeared to be the applicant's place of residence, other than Unit 3/187 Hardy Road, Belmont, and after giving some weight to the evidence of Nola Khan, (notwithstanding that her evidence was thought to be somewhat unreliable), it would seem to have been open to the learned Magistrate to infer that the applicant consciously made a statement to Mr Hughes which he knew to be false when, on the prosecution case, he said that he had lived at 3/187 Hardy Road, Belmont since 1997.

27 The applicant's stance at the hearing before the Magistrate had been that he acted in the belief that Mr Hughes was trying to sort out the various phases of the relationship. Thus, in both his answers to Hughes during the interview and in what he said in his letter written later that day, the applicant was simply trying to make clear that he met Nola Khan in 1997, he stayed with her on occasions thereafter, but did not "officially" start living together until after the marriage on 28 February 1999. However, it is clear that the learned Magistrate was not persuaded to this point of view. The false statement which was found to have been made was that the applicant asserted that he lived at the home address of his then girlfriend, later his wife, in 1997, when in fact he was residing elsewhere at the time and did not actually begin living with her until after the marriage in 1999. The applicant's letter dated 22 June 1999 appears to be consistent with this conclusion.

28 Having delivered his reasons for decision, the learned Magistrate fined the applicant $1000 in respect of his conviction on the false statement charge.

29 It appears from the applicant's affidavit sworn 27 January 2005 in support of his application for leave to appeal, that the applicant's solicitor, Mr Roth, considered taking the learned Magistrate's decision on appeal. However, in the end, Mr Roth advised that given the minor nature of the offence and the cost of appealing, it was not worthwhile proceeding with the appeal, and thus no further step was taken in that regard.

30 The applicant said in his affidavit that he was unemployed at the time of the conviction and was unable to afford the fees required to lodge an appeal. He decided to act on the advice he had received that the offence was minor. He proceeded to pay the fine of $1000 by instalments.

31 In November 2004 the applicant lodged an application for permanent residency in Canada. A letter from the Consulate General of Canada in Sydney to the applicant indicated that his application has been refused upon the basis that he was a foreign national who had been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence. Reference was made to the applicant's conviction in respect of the false statement charge.

32 It was against this background that the applicant took steps to appeal the learned Magistrate's decision. However, as it turned out, the procedural matters that had to be attended to did not run smoothly.

33 On 4 March 2005 the applicant brought an application for leave to appeal before Justice Miller of the Supreme Court. The applicant appeared in person on that occasion and there was no appearance for the respondent.

34 The proposed grounds of appeal were not explained clearly to the learned Judge. The transcript of the hearing suggests that in looking at the materials before him, including the transcript of the hearing before the learned Magistrate, his Honour was of the view that the matters in issue had been determined after a full review of the evidence, and having regard to issues of credibility. Accordingly, Justice Miller refused leave to appeal.

35 The applicant then pursued an appeal against the refusal of leave. In the course of doing so he enlisted the aid of a legal practitioner, Mr de Alwis, who, at that time was under suspension. The applicant applied for an order that Mr de Alwis be granted leave to appeal or appear on the applicant's behalf as amicus curiae. However, as appears from a draft judgment on the Court file dated 9 September 2005, when this matter came before McLure JA and Le Miere AJA of the Court of Appeal, the proposed order was refused.

36 I digress briefly to note that this application for Mr de Alwis to have a role in the matter was renewed at the hearing before me, but I proceeded upon the basis that I was obliged to follow the earlier ruling of the Court of Appeal, and declined to grant leave.

37 It appears from the transcript of a hearing before Pullin JA and Murray AJA of the Court of Appeal on 24 October 2005 (on which occasion the applicant appeared in person) that the applicant's appeal against the ruling of Miller J was allowed. It was said that there was an ascertainable ground of appeal reflected in the materials before his Honour that might have been formulated in terms that the learned Magistrate erred in failing to make a finding in relation to a relevant fact and failed to provide adequate reasons for his decision to convict. The matter was therefore to be remitted back to a single Judge of the Supreme Court for consideration of the application for leave to appeal. The Court of Appeal foreshadowed that on that occasion there would be an opportunity given to the respondent to raise any questions about the grant of an extension of time and any questions of prejudice that might arise if an extension of time were granted.

38 On 5 December 2005, McKechnie J ordered that the application for extension of time and leave to appeal be heard and determined at the same time as the appeal. The appeal books filed for the Full Court appeal were to stand as the appeal books for the application. The orders anticipated that written submissions would be filed on both sides, and this has now been attended to.

39 It emerges, then, that the applicant must obtain an extension of time and leave to appeal. The strength of the applicant's case is undoubtedly relevant to the grant or refusal of leave. Accordingly, as anticipated by the orders of McKechnie J, the procedural issue and the merits of the appeal were addressed by the parties at the hearing before me.

40 At various stages of the rather complicated procedural history of this matter, attempts were made by the judicial officers involved, having regard to the fact that the applicant was unrepresented, to define exactly the grounds of appeal being relied upon by the applicant. As I indicated in earlier discussion, the Court of Appeal constituted by Pullin JA and Murray AJA treated the grounds of appeal as being: first, that the learned Magistrate erred in failing to make a finding in relation to a relevant fact (that is, as to the date when the applicant first met his wife); second, that the learned Magistrate failed to give adequate reasons for his decision.

41 This definition of the issues emerged after the Court of Appeal had given consideration to the applicant's plea that the learned Magistrate did not give sufficient consideration to the applicant's contention that he thought that the question asked of him by Mr Hughes was directed to when the applicant had first met and stayed with Nola Khan. This contention was supported to some extent by the applicant's 22 June letter.

42 In other words, allowing for some possibility of confusion in the applicant's mind as to what was being asked of him, in a context in which the interviewer was interested in the genuineness of the relationship between the parties, it was important for the learned Magistrate to make findings which would distinguish between when the parties met, when the parties began cohabiting, and when they began "officially' living together as man and wife. An important element of the applicant's case on appeal was that the Magistrate had failed to make relevant findings of this kind.

43 Prior to the hearing before me, the applicant had prepared detailed written submissions (dated by me at the hearing 8 June 2006) directed to the leave to appeal issue and the proposed grounds of appeal if leave were to be granted. The grounds of appeal are set out at some length. However, in essence, it is said that the learned Magistrate did not make correct findings on the material facts as to whether the applicant did in fact meet Ms Khan in 1997 or 1999. Having found that Ms Khan was an unreliable witness, the learned Magistrate was not in a position to make a finding beyond reasonable doubt as to when the parties met. The learned Magistrate failed to give the applicant the benefit of the doubt as to that issue.

44 It might be said that to some extent this plea echoes the first and second grounds of appeal formulated by the Court of Appeal. However, to avoid confusion, I will call this plea the third ground of appeal.

45 The applicant's 8 June written submissions went on to refer to additional grounds of appeal. It is said, having regard to the applicant's endeavours to clarify the meaning of the questions put to him at the interview, and the effect of his answers to them (as evidenced by the interviewer's handwritten notes on the record of interview and by the applicant's subsequent 22 June letter) the learned Magistrate failed to give sufficient weight to the applicant's contention that the statement complained of arose out of a misunderstanding. Thus, the learned Magistrate erred in holding that the applicant had deliberately provided a false answer. I will call this the fourth ground of appeal.

46 It is said in the applicant's written submission that, in the circumstances, the learned Magistrate erred in law and in fact in failing to make findings in relation to a relevant fact and failed to give adequate reasons for his decision. Again, this echoes what I have called the first and second grounds of appeal, but for the sale of completeness, I will call it the fifth ground of appeal.

47 Finally, it is said that the learned Magistrate erred in law and in fact in relying on extraneous matters not forming part of the elements of the charge to convict the applicant even though his Honour accepted that the applicant had clarified his position regarding his residential status. I will call this the sixth ground of appeal.

48 The applicant's 8 June written submissions were supported by supplementary submissions (dated by me at the hearing 9 June 2006) which were directed principally to identifying those portions of the transcript in the Court of Petty Sessions which were said to underpin the applicant's grounds of appeal. Related evidence includes the notes of Mr Hughes on the record of interview and the applicant's subsequent 22 June letter.

49 The applicant's 8 June written submissions were directed also to the requirement that the applicant obtain an extension of time and be allowed leave to appeal. In summary, it is said that erroneous legal advice caused the applicant to refrain from appealing the conviction, although he has always maintained his innocence. It is said that, but for the character check by the Canadian High Commission, the applicant would not have come by the knowledge that his failure to appeal was an error of judgment based on erroneous legal advice.

50 It is said that the applicant has a Master of Public Health degree and is desirous of advancing his career by travelling to international conferences. He is precluded from doing so by the conviction. The delay in pursuing the appeal was occasioned by the wrong legal advice and the grant of an extension of time will not cause any prejudice to the respondent as a representative of the Minister for Immigration. However, the refusal to grant an extension to the applicant will cause grave prejudice to him. Moreover, the conviction will stand in the applicant's way as to his application for a spouse visa which is still outstanding and was recently remitted by Justice Weinberg of the Federal Court to the Federal Magistrates Court for further consideration (as the result of a successful appeal to the Federal Court).

51 It is said that all these considerations amount to exceptional circumstances which are sufficient to justify an extension of time. Further, and in the alternative, the decision of the learned Magistrate amounted to a miscarriage of justice which of itself is sufficient to justify an extension in the grant of leave to appeal at a late stage.

52 The applicant submits that the appeal and related procedural issues should be dealt with not pursuant to the provisions of the Criminal Appeals Act 2004 (WA) which are presently in force, but pursuant to provisions of the Justices Act 1902 (WA) and related rules which were the provisions in force at the time of the conviction.

53 Counsel for the respondent by his written submissions dated 5 April 2006 and in the course of argument, conceded that the matter should be dealt with pursuant to the law as it applied at the time that the original appeal period expired. Counsel submitted that the matter gives rise to no exceptional circumstances that would justify an extension of time to be granted. He submitted that an extension of time should not be allowed and leave to appeal should be refused. It had not been demonstrated that a miscarriage of justice had occurred.

54 Moreover, if the appeal were allowed and the matter was remitted back to the Magistrates Court for a rehearing, the prosecution would be prejudiced. Even if the present whereabouts of the principal prosecution witness Nola Khan could be established, it would be difficult, with the passage of time, to have her give coherent evidence. The recollection of other prosecution witnesses was likely to be impaired also as to the timing of events that had taken place over seven years ago.

55 It will be useful now to turn to the statutory provisions and legal principles bearing upon the issues before me.

56 Since 2 May 2005, applications for leave to appeal from decisions of Magistrates have had to be brought pursuant to the provisions of the Criminal Appeals Act 2004 (WA) which replaced similar provisions in the Justices Act 1902 (WA).

57 Section 9 of the Criminal Appeals Act provides that the leave of the Supreme Court is required for each ground of appeal. The Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. By s 10, an appeal is to be commenced in accordance with the rules of court and not later than 28 days after the date of the decision unless the Supreme Court orders otherwise.

58 This may be compared with the earlier provisions of the Justices Act 1902 (WA) that were in force in 2001, when the applicant was convicted. Section 184 of that Act provided that an appeal lay to the Supreme Court by leave. An application for leave was to be made to a Judge in Chambers. By s 187(1), a Judge was to grant leave to appeal unless he or she considered that the appeal was frivolous or vexatious, or that the grounds of appeal advanced did not disclose an arguable case. I note in passing that by s 189, the refusal of a Judge to grant leave to appeal could itself be taken on appeal to the Full Court, being the avenue of relief pursued by the applicant in the present case.

59 Order 65A r 2(b) of the Rules of the Supreme Court 1971 (WA) required, as at 2001, that an application for leave to appeal was to be filed and served on the Clerk of Petty Sessions within 21 days after the day of the decision which was sought to be appealed. Thus, in the present case, if this rule is held to apply, the applicant was required to file and serve an application for leave to appeal by 14 November 2001. Section 206C provided that the Court may, on such terms as it thinks fit, extend or shorten the time allowed for doing any act.

60 When these provisions are compared, having regard also to the decided cases, it is apparent that under the earlier legislation (that is, the Justices Act) the standard of persuasion in regard to obtaining leave to appeal was less rigorous. The applicant had to establish merely that the case to be argued on appeal was arguable, or had some prospect of success. See King v City of Fremantle [2004] WASCA 212 per Barker J at [25] and [95]. However, the effect of the changes represented by s 9(2) of the Criminal Appeals Act is to require a more searching approach in that the Court must be satisfied that each ground has a reasonable prospect of succeeding. Accordingly, it is a matter of importance to the applicant as to whether his application for an extension of time and leave to appeal is to be dealt with (as he contends) under the provisions of the Justices Act.

61 As I have indicated, counsel for the respondent accepted that these issues should be dealt with under the earlier legislation, and, thus, the matter was not fully argued. Nonetheless, I share the view put to me by both sides, that the earlier legislation does apply. I have arrived at this conclusion as follows.

62 Section 23 of the Courts Legislation Amendment and Repeal Act 2004 (WA) changed the name of the Justices Act to the Criminal Procedure (Summary) Act 1902 (WA). The effect of s 3 and s 4 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA) is to repeal the Criminal Procedure (Summary) Act 1902 and to provide that for the purposes of s 36 of the Interpretation Act 1984 (WA), the statute is to be taken as having been repealed and re-enacted and by the Criminal Appeals Act 2004.

63 Section 36 of the Interpretation Act provides that where a written law repeals and re-enacts, with or without modification, any enactment, then all subsidiary legislation and all other Acts, matters and things whatsoever, which were in force shall, insofar as is consistent with the repealing law, subsist and continue as if the repealing law had been in operation when they had originated.

64 Section 37 of the Interpretation Act provides, inter alia, that where a written law repeals an enactment, the repeal does not, unless the contrary intention appears, affect any right or privilege acquired prior to the repeal, or affect any investigation, legal proceeding or remedy in respect of a right or privilege, and any such investigation, legal proceeding or remedy may be instituted or enforced as if the repealing written law had not been passed or made.

65 The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267.

66 It is said that statutes dealing with procedure are an exception to this rule and that they should be given a retrospective operation. However, it is probably more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. However, the difference between substantive law and procedure is often difficult to draw. Statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way, they are not merely procedural and they fall within the presumption against retrospective operation. See Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.

67 In the present case, as at 14 November 2001, being the date when an appeal should have been instituted under the earlier legislation, the position was that as to the first charge the applicant had been acquitted and, thus, had secured a right not to be tried again for the same offence. By s 184 of the Justices Act, he had a right of appeal to the Supreme Court, subject to the appeal being instituted within 21 days from the date of conviction and a grant of leave to appeal. I can see nothing in the legislation effecting the repeal of the Justices Act which purports expressly to extinguish or modify these rights, or to override the effect of s 37 of the Interpretation Act which purports to preserve or save such rights.

68 Accordingly, notwithstanding that the provisions concerning the applicant's right of appeal might be characterised as procedural provisions, I am of the view that the provisions of the Criminal Appeals Act 2004, treated as the repealing Act, do not act retrospectively so as to require that the appeal and the grant of leave is to be governed by the requirements of the Criminal Appeals Act. I will proceed accordingly. This obliges me to look not only at the provisions of the Justices Act (as the law in force when the right to appeal arose and the application for leave to appeal was made on 23 March 2005) but also at certain decided cases bearing upon the procedural issues before me.

69 Section 196 of the Justices Act provides that the Court shall determine the appeal on the material before the Court below. There is power to receive further evidence as the Court thinks fit. By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the applicant.

70 If the appellate court, having made its own assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

71 However, where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of hearing and seeing the witnesses, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

72 If an inference is drawn from primary facts and is said to be wrong, it is for the Court of Appeal by way of rehearing to analyse the evidence and objective facts in order to determine the issues afresh: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 448. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.

73 A Magistrate must set out the facts and findings and the reasons for his or her decision. A finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The Court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.

74 It is apparent from the reasoning of the Full Court in Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 that in the circumstances of the case there was no requirement for the Magistrate to say why he was impressed with the applicant's evidence. Also, while the learned Magistrate had only referred to the evidence of one prosecution witness, where a second prosecution witness had testified in similar terms, it was implied that the doubt created by the applicant's evidence was sufficiently strong to cause the learned Magistrate not to act on the evidence of either prosecution witness. Moreover, in choosing not to act on the prosecution evidence, there was no requirement for the learned Magistrate to make express adverse findings as to the credibility of the prosecution witness.

75 Owen J observed, at [73], that at common law there was (and is) a duty upon a decision-maker required to act judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. He said further, at [74], that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which he had referred. It is sometimes the case that by dissecting the reasons line by line, word by word, the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way, something which appears at first glance to be a material omission may be adequately explained.

76 The rationale of the obligation to provide adequate reasons for decision was summarised recently by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273. The giving of reasons is a normal incident of the judicial process. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly-based rational judgment. Further, where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or a fact.

77 The Full Court observed at [29] that inadequacy of reasons does not necessarily amount to an appealable error. An Appeal Court will only intervene when no reasons have been given in circumstances in which they are required, or when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The Appeal Court is entitled to consider the matter and, if it can do so, it may itself decide the matter.

78 In summary, then, a Court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusions. But the sufficiency of fact-finding will vary widely with the exigencies of each case: Skerritt v O'Keefe [1999] WASCA 183, at [146]. A Magistrate's duty to provide reasons does not extend to identifying precisely every item of evidence which he has considered. Where the finding depends to any substantial degree on the credibility of witnesses, the finding must stand unless it can be shown that the Magistrate has failed to use, or palpably used, his advantage of having seen the witnesses, or has acted on evidence which was inconsistent with the facts incontrovertibly established. It is not for an Appeal Court to reverse the findings merely on the result of its own view of the probabilities of the case: Lawless v Turner [2005] WASC 254, at [26], [30] and [49]; also see Hajinoor v Dench [2005] WASC 274, at [32] to [45].

79 In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, McHugh J of the High Court was dealing with a summons for an extension of time in which to file a notice of appeal against an order dismissing an action brought in the original jurisdiction of the High Court against a judicial officer.

80 The rule under notice allowed the Court to enlarge the time for doing an act. His Honour observed that the grant of an extension of time under this rule was not automatic. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.

81 This means that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension. When the application is for an extension of time in which to file and appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind that, upon the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application is granted. It follows that, before the applicant can succeed, there must be material upon which the Court can be satisfied that to refuse the application would constitute an injustice. An extension of time will usually be granted only upon established facts which, in the judgment of the Court, appear positively to justify the extension: Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417, at 435.

82 In Lancaster v The Queen [1989] WAR 83, Malcolm CJ said, at 85, that it is well settled that where there has been lengthy delay, the Court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. His Honour was of the view that in the circumstances of the case before him, where the application was 21 months out of time, there were no exceptional circumstances justifying an extension, with the result that the question of an extension depended on the Court being persuaded that there would be a miscarriage of justice if an extension was not granted. The Court was not satisfied that there had been a miscarriage of justice in respect of the counts of armed robbery and assault before it, with the result that the application for an extension of time was dismissed.

83 Let me now return to the circumstances of the present case. It will be useful to look firstly at the merits of the proposed ground of appeal, as this will have a bearing upon whether an extension of time and leave to appeal should be allowed.

84 The reasons for decision given by the learned Magistrate concerning the second or false statement charge were quite short. However, taking account (as I do) of what was said by Owen JA in Garrett v Nicholson (supra) about the need to assess the adequacy of the reasons by looking at them in context and as a whole, I am of the view that I must give weight to what was said by the learned Magistrate in dealing with the visa application charge before he proceeded to the second matter.

85 As I indicated in earlier discussion, at an early stage the learned Magistrate correctly referred to the burden lying upon the prosecution to establish beyond reasonable doubt each element of the subject offences. It emerges also that he gave careful consideration to the credibility of the various witnesses. This led to him accepting and giving weight to the evidence of Mr Hughes and Ms McQueen and expressing reservations about the evidence of Nola Khan and the applicant. To my mind, there are no indications that the learned Magistrate failed to use, or palpably misused, the advantage of hearing and seeing the witnesses.

86 It is clear also that there was no compelling or independent evidence before the learned Magistrate which established when the parties met, or when the applicant commenced living or residing at the subject address (that is, Unit 3/187 Hardy Road, Belmont). The postcard purportedly signed by Nola Khan in November 1997 is an equivocal piece of evidence because it was said to have been brought into existence as a contrivance. The only incontrovertibly established date was that of the marriage between the parties on 28 February 1999. In the end, the learned Magistrate, as he himself indicated, was heavily dependent for his findings upon the testimony of various witnesses and his estimation of their credibility.

87 It was clearly necessary for the prosecution to satisfy the learned Magistrate beyond reasonable doubt that in the course of the interview, the applicant made a statement corresponding to the statement complained of, namely, that he had lived at 3/187 Hardy Road, Belmont, since 1997. Evidence to that effect was given by Mr Hughes in the course of confirming that the questions and answers appearing on the record of interview correctly reflected the exchanges between the parties. Having regard to the learned Magistrate's appraisal of the credibility of the witnesses, the Hughes evidence appears to be good and sufficient evidence that an assertion was made by the applicant that his current address was 3/187 Hardy Road, Belmont, and he had been residing at that address since 1997. Indeed, that appears to be confirmed by the evidence-in-chief given by the applicant in answer to questions asked of him by his own counsel (t/s 160) when he said that he remembered being asked the question by Mr Hughes as to how long he had been residing at the subject address and he remembered answering, "Yes, since 1997, I've lived there."

88 I pause briefly to note that a query might possibly arise as to whether an assertion that one has resided at a certain address can be regarded as amounting to an assertion that one has lived at the address in question. The learned Magistrate seems to have proceeded upon the assumption that the two terms were interchangeable. To my mind, the two terms are essentially interchangeable and this is borne out by the fact that the applicant himself, in the evidence I mentioned a moment ago, agreed that he conveyed to Mr Hughes that he had been living at the subject address since 1997. Accordingly, the learned Magistrate does not appear to have erred in finding that the statement complained of was made.

89 It was also necessary for the prosecution to establish beyond reasonable doubt that the statement was false. This was a central issue at the hearing before the learned Magistrate.

90 To my mind, it does not follow that the prosecution case was bound to fail simply because Nola Khan was found to be unreliable. The evidence of other prosecution witnesses, including that of Ms McQueen, was directly contrary to the evidence given by the applicant concerning his movements and living arrangements in the period 1997 to mid-1999. Moreover, the evidence of the applicant himself was arguably too vague to be given any real weight. It was certainly open to the learned Magistrate to conclude that there was an element of sophistry or contrivance in the applicant's contention that he was residing or living with his girlfriend at the subject address since 1997, because he had spent the night at that address soon after he met Nola Khan in 1997 and had stayed at the address on some occasions thereafter.

91 After considering the evidence concerning the first or visa application charge, the learned Magistrate was not satisfied that the applicant had first met Nola Khan in 1999, shortly before he was married, as alleged by the prosecution. To my mind, for the Magistrate's reasons to be regarded as sufficient, it was not essential for him to make a finding for the purposes of the false statement charge as to when exactly they did meet, because it was inherent in his reasoning, having regard to his conclusion on the first charge, that they had met at some stage prior to 1999. The issue before him on the second charge was whether the applicant made a false statement in asserting that he had been living at the subject address since 1997. An explicit finding as to when they met might have been useful in regard to resolving that issue, but it was not an essential element of the reasoning process in the context I have described. Accordingly, I am not persuaded that the reasons for decision provided by the learned Magistrate can be characterised as inadequate.

92 It emerges from earlier discussion that another issue before the Magistrate was the question of whether the record of interview reflected a misunderstanding by the applicant as to what was being asked of him about his current address and how long he had been living or residing at that address.

93 To my mind, the 22 June letter written by the applicant after the interview cannot be regarded as compelling evidence that he was unsure of what had been put to him and was trying to get the story straight. The letter is open to the interpretation that he was simply trying to emphasise that there was a genuine relationship; that he and his wife had been living together since their marriage at the end of February 1999. It seems somewhat surprising that, if the applicant was truly intent upon setting out the position concerning his place or places of residence fully and accurately, no mention was made in the letter of the applicant's statement to Mr Hughes that he had been living at the address in question (that is, 3/187 Hardy Road, Belmont) since 1997.

94 In the end, it was a matter for the learned Magistrate to determine, having regard to the credibility of the witnesses and the whole of the evidence. To my mind, it was open to him to find, as he did, that the applicant "was not confused about the questions". And to find further that the applicant "knew that the information was false, being material to the picture he was trying to paint in his attempt to establish the genuineness of his relationship" with Nola Khan.

95 For all these reasons, having regard to the decided cases which demonstrate a reluctance upon the part of Appeal Courts to interfere with findings of fact which depend heavily upon an appraisal of witnesses, I do not consider that the appeal should be allowed on any of the proposed grounds of appeal. I do not consider that there has been a miscarriage of justice.

96 It is against this background that I turn now to the application for an extension of time. I am not persuaded that the applicant has shown that extraordinary circumstances exist which would justify an extension of time being allowed. He was being guided by a professional legal adviser at the time his right of appeal was under notice in the immediate aftermath of his conviction. He decided not to proceed with the appeal after receiving legal advice. Moreover, I am of the view that if the appeal did succeed, and the matter was remitted back to a Magistrate for rehearing, the respondent would be prejudiced in that the passage of time is likely to adversely affect presentation of the prosecution case.

97 It follows from my review of the decided cases that the considerations I have just mentioned cannot be regarded as sufficient of themselves to justify refusal of an extension if it be clear that a miscarriage of justice has occurred, for I accept that the presence of the conviction is a serious matter in the case of a person such as the applicant who wishes to pursue an academic, or professional career, and whose status has yet to be determined.

98 However, for the reasons I have given previously, I am not persuaded that a miscarriage of justice has been demonstrated. In the end, I consider that the learned Magistrate reviewed the evidence carefully and the conclusion he came to concerning the second or false statement charge was open to him on the evidence. Where the case turns upon credibility, as in the present case, an appeal court will generally refuse to intervene. I am therefore of the view that the verdict in the present case should not be disturbed.

99 The applicant's application for an extension of time to appeal will be refused. It follows that the application for leave to appeal will be dismissed. I must add, in case this matter is taken further, that it follows also from the reasons I have given that even if leave to appeal were allowed, in my view, the grounds of appeal have not been substantiated and the appeal must be dismissed. I will hear from the parties as to whether any further orders or directions are required.

Legislation Amendment and Repeal Act 2004

Procedure (Summary) Act 1902

Procedure and Appeals (Consequential and Other Provisions) Act 2004

EJUEYITSI -v- MALONEY [2006] WASC 146 (26 July 2006)

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EJUEYITSI -v- MALONEY [2006] WASC 146 (26 July 2006)

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