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[2013] WASCA 279
General information, not legal advice.
Court of Appeal (WA)
2013-12-04
Pullin JA
Original judgment source is linked above.
4 What follows are my reasons for joining with the other members of the court in making these orders.
5 The appellant has been charged in the Joondalup Magistrates Court with six offences contrary to the provisions of the (WA) (the Act) and (WA). He has pleaded not guilty to the charges. They have been set down for a trial scheduled to last two weeks, to commence on 18 November 2013.
6 On 16 December 2011, Mr Garbellini, a Fisheries officer, and others executed a search warrant purportedly issued under the Act at the appellant's home in Cervantes. Various items were seized pursuant to the warrant which, it may be assumed, are intended to form part of the evidence the respondent will adduce at the trial.
7 The appellant challenged the validity of the search warrant as a basis for objecting to the admissibility of the items seized pursuant to it. The issue of its validity was determined by a magistrate, pursuant to s 64 of the Criminal Procedure Act 2004 (WA), at a preliminary hearing on 15 May 2013. After hearing sworn testimony from Mr Garbellini, two other Fisheries officers, the Justice of the Peace who issued the warrant and the appellant, the learned magistrate upheld the validity of the search warrant. He gave extempore reasons for doing so (AB 33 - 37).
8 On 4 June 2013, the appellant, acting in person, filed an appeal notice purporting to appeal against the learned magistrate's decision. The
proposed grounds of appeal, in general terms, alleged that there were formal defects in the issuing of the search warrant, deception and impropriety on the part of those who obtained it, impropriety on the part of the Justice of the Peace who issued it, and errors on the part of the learned magistrate in upholding its validity.
9 On 14 June 2013, the State Solicitor's Office on behalf of the respondent, wrote to the Supreme Court as follows:
In light of sections 6 and 7 of the Criminal Appeals Act 2004 (WA), it is respectfully submitted that Mr Gazeley has no right to appeal against his Honour Magistrate Cicchini's ruling and, consequently, the appeal is incompetent.
However, if the respondent is wrong in that, the respondent respectfully requests that the appeal be heard urgently. The decision by the primary court on 15 May 2013 was a decision on a preliminary issue. The actual trial of the charges against the appellant, as set out in the ... prosecution notices, is listed for two weeks commencing 18 November 2013. (original emphasis)
10 On 20 June 2013, the associate to Hall J sent a facsimile to the appellant notifying him that the appeal was listed before his Honour on 26 June 2013 at 9.30 am for a directions hearing in which 'the competency of the application [sic] will be considered, and clarification will be sought on the grounds of appeal'. Notice of this directions hearing was provided to the respondent.
11 The appellant did not appear at the scheduled hearing on 26 June 2013. Hall J told the respondent's counsel that he had listed the matter to give the appellant the opportunity to make oral submissions on the question of whether the appeal was competent. His Honour noted that the learned magistrate's decision was not, according to the terms of s 6 of the Criminal Appeals Act 2004 (WA), amenable to an appeal. His Honour said:
That ruling is not a decision within the terms of section 6 of the Criminal Appeals Act. And in this circumstance it seems to me that there is no basis upon which this appeal could be a valid appeal within the terms of the Criminal Appeals Act. It's therefore not a competent appeal. Now that's not to say that Mr Gazeley can't challenge that ruling. Ultimately, if he [is] convicted of the offences and wishes to bring an appeal against his conviction, he can of course raise that matter as a matter in any such appeal.
But at this stage it is not open to bring an appeal under the Criminal Appeals Act from the ruling made by the magistrate on 15 May (AB 31).
12 His Honour then made formal orders refusing leave to appeal and dismissing the appeal. His Honour directed that a transcript of the proceedings be obtained and sent to the appellant so that the appellant 'can appreciate why [the dismissal of his appeal] has occurred'. The Supreme Court file shows that the appellant personally attended at the court's registry on 2 July 2013 and obtained a copy of the transcript.
13 By letter addressed to Hall J dated 6 July 2013, the appellant said that he had been away and did not see the court's letter of 20 June 2013 until 25 June 2013. He said that he is caring for his terminally ill wife who has Alzheimer's disease, and that he was seeking legal counsel. He also claimed that his car had been seized by Fisheries officers, and he had no means of getting to Perth for the hearing on 26 June 2013. The appellant did not explain why he did not write or in some other way communicate with the court or the respondent prior to the hearing.
14 On 1 August 2013, the appellant filed, one week out of time, an appeal notice in this court against Hall J's decision. The draft grounds of appeal are as follows:
15 Significantly, the draft grounds do not challenge his Honour's decision to dismiss the appeal because it was incompetent.
16 In his affidavit in support of an extension of time to appeal, the appellant, in substance, referred to the same matters as those mentioned in his letter dated 6 July 2013.
17 The appellant did not file an appellant's case, in accordance with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). On 10 October 2013, the appellant filed an application seeking an extension of time to file this document. He did not specify how much further time he required. The affidavit in support of the application states that he travelled to Perth on 26 July 2013 to file his appeal notice against Hall J's decision, but the notice was not accepted because it was out of time and no application to extend time accompanied it. He deposed to most of the matters mentioned in his letter to Hall J dated 6 July 2013. In addition, the appellant said that he had made a request to the Freedom of Information Commissioner seeking material designed to show that the search warrant executed on 16 December 2011 was 'obtained unlawfully'.
18 In response to this application, the court made the following orders on 17 October 2013:
(i) The prosecution notices in the Magistrate's Court;
(ii) The transcript of the proceedings in the Magistrates Court including the Magistrate's ex tempore reasons on 15 May 2013;
(iii) The transcript of the proceedings before Hall J on 26 June 2013; and
(iv) The documents filed in the appeal.
19 These orders were sent by the court to the parties by facsimile on the day they were made. The accompanying letter stated:
The application for an extension of time to file the appellant's case, the application for an extension of time to appeal, the question of leave to appeal and the appeal itself will be heard by the Court of Appeal on 8 November 2013 at 10.30am. A formal listing notice will issue in due course.
The Court of Appeal will prepare the appeal books and provide a copy to each of the parties as soon as possible.
The submissions filed in accordance with the orders of Justice Mazza will be circulated separately to the Court when they have been filed.
For the appellant's information, he should address in his submissions the merit of his appeal and, in particular, whether the appeal is competent under the Criminal Appeals Act 2004.
20 The appeal books, which were prepared by the Court of Appeal office, were sent by mail to the parties on 21 October 2013.
21 On 25 October 2013, the appellant filed another application. This application sought to set aside the urgent appeal order that had been made, an extension of time to comply with order 3 above, and that order 5 'be amended to more reasonably reflect and accommodate all of the grounds of appeal'.
22 The affidavit in support of this application, also dated 25 October 2013, was sworn at Fremantle and contains 27 paragraphs of text. In it the appellant states that his personal circumstances were 'extremely trying' and that he has been referred for urgent specialised psychological counselling. He further stated that his freedom of information request had not been dealt with. An order was made on 25 October 2013 to refer the application filed that day to the hearing of the appeal.
23 On 7 November 2013, the day before the appeal hearing, the appellant sent a facsimile to the court advising that he did not intend to appear at the hearing. An affidavit sworn on 7 November 2013 accompanied the letter. That affidavit was sworn at Joondalup. The appellant repeated much of what he has said in the past. The appellant filed no submissions in accordance with order 3 of the orders made on 17 October 2013.
24 On 8 November 2013, after the matter was called and it was ascertained that the appellant was not in the precincts of the court, the orders referred to in [1] of these reasons were made.
25 An appeal is a creature of statute. Part 2 of the Criminal Appeals Act deals with appeals from courts of summary jurisdiction. Part 2 div 1 and div 2 of the Criminal Appeals Act concern appeals from courts of summary jurisdiction to a single judge of the Supreme Court. Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may apply to the Supreme Court (defined to be a judge of the General Division of that court) against the decision. A decision for the purposes of s 7(1) is defined in s 6, which reads as follows:
In this Part, unless the contrary intention appears -
decision, of a court of summary jurisdiction, means any of the following -
(a) a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b) a decision ordering a permanent stay of a prosecution;
(c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d) a decision to acquit an accused of a charge;
(e) a decision to acquit an accused of a charge on account of unsoundness of mind;
(f) a sentence imposed, or order made, as a result of a conviction or acquittal;
(g) a refusal to make an order that might be made as a result of a conviction or acquittal;
(h) a decision as to costs;
(i) a decision made under the Criminal Investigation Act 2006 section 151;
26 The definition of decision in s 6 does not include an interlocutory ruling of the sort made by the learned magistrate on 15 May 2013. Accordingly, there is no right of appeal to a single judge pursuant to the terms of the Criminal Appeals Act against the decision made by the magistrate.
27 There is, as Hall J explained in his reasons, an appeal against a decision by a magistrate to convict an accused after trial. Accordingly, if the appellant is convicted of any offence after trial, he may appeal in respect of it. The grounds for any such appeal are set out in s 8(1) of the Criminal Appeals Act which reads as follows:
(1) An appeal may be made under this Division on one or more of these grounds -
(i) made an error of law or fact, or of both law and fact;
(ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or excessive;
(b) that there has been a miscarriage of justice.
28 If the learned magistrate made an error of law or fact in his ruling concerning the validity of the search warrant, that could be a valid ground upon which to appeal against any conviction.
29 There is no doubt that Hall J's decision to dismiss the appeal brought against the learned magistrate's interlocutory ruling on the basis that the appeal was incompetent, was correct. The appeal to this court has no merit and is doomed to failure.
30 Accordingly, there was no justification in granting:
(b) the extension of time to file an appellant's case;
(c) any of the orders sought in the appellant's application dated 25 October 2013; and
(d) an adjournment of the appeal as sought in the appellant's letter dated 7 November 2013.
31 It is, strictly speaking, unnecessary to deal with the appellant's draft grounds of appeal, but I will do so out of completeness.
32 Draft grounds 1 and 4 amount to the same thing. The appellant alleges that he has been denied an opportunity to be heard at the directions hearing on 26 June 2013. In fact, he was given an opportunity. Although the matter was listed at short notice, he has acknowledged that he was aware of the listing on the day before the hearing. The matter was rightly considered by Hall J as having some urgency and should have received a like response from the appellant. Rather, he chose to do nothing. Given the number of occasions the appellant has visited the Perth metropolitan area to lodge documents, swear affidavits and attend medical appointments, it may be inferred that he has the means to come to Perth when he wishes to do so. Moreover, he made no attempt to contact the court or the respondent once he was aware of the hearing date. Accordingly, no miscarriage of justice was occasioned by Hall J's decision on 26 June 2013 to proceed in the appellant's absence.
33 Draft ground 2 does not allege any error of fact or law or miscarriage of justice and is not a proper ground of appeal.
34 Draft ground 3 alleges that Hall J misapplied the law in dismissing the appeal on 26 June 2013. As I have already explained, Hall J's interpretation of the relevant provisions of the Criminal Appeals Act was entirely correct.