Application for leave to appeal against conviction dismissed for want of prosecution

1 JUDGMENT OF THE COURT: This is an application for an order that the applicant's application for leave to appeal against conviction be dismissed for want of prosecution. On 1 September 2000, the applicant was convicted after trial of one count of stealing as a servant contrary to s 378(7) of the Criminal Code.

2 On the same day he was sentenced to an intensive supervision order for 2 years with a requirement to perform 240 hours of community service work. The learned sentencing Judge also made a compensation order against the applicant in favour of CATIC Western Australia Pty Ltd, for the sum of $24,000.

3 The applicant applied for leave to appeal against the conviction by notice of appeal dated 18 September 2000. The facts relevant to the manner in which the appeal has proceeded is set out in an affidavit of Seamus Francis Rafferty sworn on 22 January 2003 and the affidavit of Kathryn Emma Ellson sworn on 26 September 2003.

4 The applicant's appeal was first referred to this court by McKechnie J on 22 July 2002 after numerous adjournments. The matter was subsequently adjourned by order of Steytler J at a directions hearing on 17 September 2002 in order to give the applicant time to prepare appeal books.

5 The applicant's appeal was again referred to the Court of Criminal Appeal by Heenan J on 18 November 2002. Heenan J directed that the application for leave to appeal be referred to the listing directorate for allocation of a date for hearing as soon as practicable in 2003. It was also directed that the registry prepare an electronic transcript of the trial and make it available to the applicant and the Director of Public Prosecutions and that an appeal book be prepared by the applicant and filed and served before 31 December 2002.

6 It was then noted that the preparation of the appeal book had been delayed in the past because of a number of applications made in relation to evidence and affidavits. Heenan J then concluded that the application for leave to appeal was ready for hearing.

7 On 1 April 2003 the applicant appeared before the Court of Criminal Appeal. The respondent applied on that occasion for the appeal to be dismissed for want of prosecution. After hearing from the applicant, the Court declined to make the order sought by the respondent but ordered that the applicant file and serve appeal books within 10 days. That order is recorded in the transcript of the proceedings on 1 April 2003, at page 78. The applicant was told that he was being given one final opportunity to get the matter in order so that it could be heard. That appears from the transcript on 1 April 2003 at pages 77 to 78. The appeal was then adjourned to a date to be fixed at the earliest opportunity.

8 The applicant subsequently filed and served appeal books. The appeal was listed for hearing on 16 July 2003. The applicant failed to appear at the Court on that day. It was evident that he was aware that the matter was listed for hearing on that day as he had been sent a notice by the Court listings co-ordinator on 16 May 2003 because he responded by letter, informing the Court that he was leaving Western Australia on an urgent trip and requesting an adjournment of the hearing. This is referred to in the transcript on 16 July 2003, at pages 80 to 82.

9 The respondent renewed its application for an order dismissing the appeal for want of prosecution. On 16 July 2003, the Court declined to make an order dismissing the appeal. However, Anderson J, speaking for the Court, said, as recorded at page 82 of the transcript on 16 July 2003, that the application to strike out the appeal very nearly succeeded on that occasion.

10 The applicant's attempt to explain his absence was deficient. The case was a bad case of delay at that stage. There were signs that the applicant really did not want his appeal to come on for hearing or was wishing to defer the disposition of the appeal as long as possible. Although the applicant's conduct was explicable only on that basis, the Court could not then be sure that it was so, as he was not represented. The Court could not be fully satisfied that there might not be a good reason for the applicant not attending court.

11 The applicant would be given one last chance to be ready to present his appeal. Should the applicant not be ready to present his appeal on the appointed day, no further adjournments would be granted, except in extreme circumstances which were fully explained to the Court.

12 The Court ordered that the appeal be listed for one day as soon as possible and that the applicant be given notice well in advance of the appointed hearing date. The Court also ordered that the applicant be provided with a copy of the transcript of the proceedings on 16 July 2003.

13 By a letter dated 21 August 2003 from the listings co-ordinator, the applicant was informed that the appeal was listed for hearing on 2 October 2003. The applicant replied by a facsimile letter to the Court, dated 12 September 2003, that he would be unavailable to attend the hearing at that time. He asked for the appeal to be rescheduled to be heard in November 2003.

14 By a letter dated 15 September 2003 from the listings co-ordinator, the applicant was informed that the hearing date could not be vacated administratively. He was advised that if he wished to vacate the hearing he would need to make an application by motion to the Court of Criminal Appeal, supported by an affidavit.

15 He was informed that unless the hearing of the appeal was vacated by order of the Court, if he did not attend on 2 October 2003 the Court may make such orders as it thought fit, including orders to dismiss the appeal. By a facsimile dated 18 September 2003, the applicant acknowledged receipt of the letter of 15 September, but said that he was leaving Western Australia the following week and could only come back at the end of the month. He said he did not think he had enough time to apply to the Court to vacate the hearing. He asked for the appeal to be put on hold.

16 By a letter dated 24 September 2003, the applicant was informed by the associate to the Chief Justice that if he did not attend the hearing on 2 October 2003 and make submissions in relation to his application, there was a very real probability that the Court would dismiss the appeal for want of prosecution and failure to appear. This letter may not necessarily have been received by the applicant, but he must have been well aware of the position as he did clearly receive the letter dated 15 September 2003 from the listing co-ordinator, to which he responded.

17 The applicant has not filed an application to vacate the hearing date, nor has he placed any evidence before the Court to explain his failure to attend the Court on either 16 July 2003 or today. In our opinion, the applicant has been given every opportunity to proceed with this appeal. He has been extended indulgences which would not be sought for, claimed or granted to many other litigants.

18 Due to his lack of legal representation and language difficulties, he has been extended indulgence by the Court at various times and by the Office of the Director of Public Prosecutions. Judges of this Court have informed the applicant what he should do in relation to the appeal. The Office of the Director of Public Prosecutions has provided him with translations of the documents upon which he relies.

19 More recently, his conduct in disregarding the hearing date set by the Court, failing to provide any adequate explanation for his failure to appear and failing to make any attempt to apply for an order to vacate the present hearing date, demonstrates a complete lack of respect for the Court and its procedures.

20 Section 697 of the Criminal Code brings into play all of the powers of the Full Court in relation to civil appeals, including the power to dismiss an appeal for want of prosecution under O 63 r 7 of the Rules of the Supreme Court 1971; see R v Mickelberg (1996) 90 A Crim R 126, Malcolm CJ at 129, and Nicholson v The Queen, unreported; CCA SCt of WA; Library 980698; 7 December 1998:

21 A Court may dismiss the appeal if it is satisfied that the default has been intentional and contumelious. Alternatively, it may do so if there has been inordinate and inexcusable delay on the part of the applicant and such delay is likely to cause serious prejudice to the respondent.

22 It is submitted that in the context of criminal proceedings the Court is also entitled to have regard to the prejudice that may be caused to a complainant; R v Mickelberg (supra), per Malcolm CJ at 129.

23 The Court can be satisfied that the applicant's default in failing to prosecute his appeal has been intentional and contumelious. In our opinion, he has made a deliberate decision not to follow the advice that he has been given regarding the manner in which he should apply to have the hearing date vacated and has chosen to ignore the convenience of the Court.

24 In our view, the facts show that his absence from the proceedings today is an act of deliberation knowing what the position was and disregarding the warnings which were extended to him. He has offered no explanation that would justify this Court in extending him any further indulgence. In our view, the point has been reached where his conduct can properly be regarded as an abuse of the processes of the Court, showing complete disrespect for its orders and directions.

25 It is also the case that there has been inordinate and inexcusable delay on the part of the applicant and in our view that delay has resulted in prejudice to the respondent, the complainant, and the applicant's former employer. The appeal is concerned with an offence alleged to have been committed in 1996. In the event of a successful appeal and if the matter were to proceed to a retrial, the delay would be likely to affect adversely the capacity of the two significant prosecution witnesses to accurately recall relevant events.

26 Furthermore, the complainant in the proceedings has been denied for three years the benefit of the compensation order made by the learned sentencing Judge. Finally, the community is entitled to expect the applicant to serve his community-based order at a time that is not inordinately remote from the time of his conviction in the event that his appeal fails. For those reasons, we would order that his application for leave to appeal be dismissed for want of prosecution.