Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Application for leave to appeal against conviction - 12 years out of time - Appeal previously heard and dismissed - No petition to nor referral by the Attorney General - Incompetent appeal

R v Diaz [1982] WAR 60

1 ROBERTS-SMITH JA: There is a notice of appeal filed by the applicant dated 12 April 2005, filed on 13 April. There is also before me an affidavit of the applicant affirmed on 12 April and likewise filed on the 13th, and an application for leave to appeal out of time, filed on 13 April.

2 The documents seek leave to appeal against conviction of the applicant on 13 May 1993 in the District Court at Perth on three counts of indecent dealing and one of indecent assault.

3 The proposed grounds set out in the notice are not lengthy. They are:

"1. Mr Powell was entitled to be discharged pursuant to Section 608 of the Code, applied for in open Court on the 13th March 1992.

2. Section 612 of the Code does not apply as the 13th March 1992 was not the trial proper.

3. According to two witnesses at the said trial of Mr Powell, namely; Mr Kenneth Evans & Rhoda Downey, the accused was alleged to have confessed to them on the 5th October 1991 at around noon. The alleged incident is meant to have occurred at around 6 pm on the 5th October 1991. Mr Powell was at work allday [sic]. This does not add up and must surely raise doubt to the Juries [sic] decision.

4. The alleged confessional statement to the arresting Detectives was obtained by promises & threats and while in a different state of mind, again there is doubt as to the reliability of the alleged confession. Mr Powell was clearly of unsound mind at the time, so there is the question of temporary insanity. Section 27 of the Code covers making omissions while not having the capacity to understand. Mr Powell has been diagnosed as suffering from a major psychaitric [sic] disorder; namely; Paranoid Schizophrenic. He was also heavily doped up during his trial and was also assaulted during a break in the trial."

4 The affidavit in support likewise is brief. The salient parts of it recite that the trial dates for these matters were 12 and 13 May 1993 in the District Court, he was sentenced to two years' imprisonment minus 10 months for remand time, resulting in 14 months to serve and then he was said to be detained under s 662A of the Criminal Code ("Code").

5 He deposes that he was sentenced on 21 May 1993 by his Honour Judge Clarke, having been convicted on three counts of indecent dealing and one of indecent assault. He appealed against conviction in the Court of Criminal Appeal on 8 August 1993 (CCA 71 of 1993). He then deposes that he was heavily doped up on psychiatric drugs at the time of his trial and again whilst his appeal was heard, on a mind-altering drug called zuclopenthixol. This made it, he says, nearly impossible to have a fair hearing.

6 He gives then as his antecedents that he was born on 9 October 1959 and at the date of the affidavit was 45 years six months. He married in November 1986 and divorced in early 1991. He gives his occupation as a student at Victory Life Bible College.

7 He deposes that he has a son born 10 September 1989 residing with his ex-wife; that he believes in the Westminster system of justice and respects the Australian Constitution and has been actively campaigning for funding to prevent abuse in our society.

8 Under the heading "Case For Appeal" in his affidavit, the deponent says that he is entitled to be discharged pursuant to s 608 of the Code and the Habeas Corpus Act of 1679 and that s 612 of the Code does not apply "as Friday, 13th March 1992 was not the trial proper".

9 On the face of it, the application is some 12 years out of time and there is an application for extension of time, but no explanation for the delay. However, the applicant faces a more immediate problem, adverted to in his affidavit of 12 April, filed in support of his application for leave to appeal. I refer specifically to his reference to the previous appeal to the Court of Criminal Appeal.

10 I have examined the Supreme Court file. The applicant's previous appeal was heard on 7 October 1993. The applicant represented himself. The grounds upon which he now seeks leave to appeal are the same grounds as were before the Court on that occasion, subject to the point as to s 612 of the Code.

11 The Court of Criminal Appeal (Pidgeon, Rowland and Wallwork JJ), dismissed the applicant's appeal and reasons were published on 22 December 1993. As to the first ground - that in respect of s 608 of the Code - Pidgeon J, with whom both the other Judges agreed on this, held that the question raised by the applicant which was whether he was entitled to be discharged having made an application to be brought to his trial had been raised in the context as to whether a previous decision - namely, R v Diaz [1982] WAR 60 - applied, that case having held that the application must be made during the first sittings of the Court held after the committal. Their Honours concluded that it did.

12 It followed that the application had to be made to the January sittings of the District Court in this case. The question on that view was then academic because the applicant had not made an application at that time or at a time when no indictment was filed. Wallwork J came to a similar conclusion, as I have indicated.

13 His Honour also dismissed the applicant's other grounds, Pidgeon and Rowland JJ agreeing with his Honour in respect of those. Wallwork J pointed out that the appellant's second ground of appeal at that stage was based on the fact that he was alleged to have made admissions to two persons on 5 October 1991 at around noon and had contended that the offences were said to have occurred around 6 pm that day and that he was at work at a goldfish and lily farm on that day.

14 Wallwork J pointed out that the appellant was not correct in his contention that the alleged offences were said to have occurred around 6 pm on 5 October 1991. His Honour canvassed the evidence in relation to that and concluded that the evidence did not go in any way, nor to any extent, to establishing the possibility or the fact asserted by the applicant.

15 His Honour noted that the appellant in that appeal told the Court that he did not give evidence at his trial and did not say in evidence that he was at work at the time he was alleged to have told the two witnesses what they told the jury. His Honour observed that it might be that the appellant had left work prior to speaking to those persons on that day; alternatively it may be that he did not go to work at all on that day. The jury was entitled to accept the witnesses' evidence and obviously did so. For those reasons his Honour concluded that the second ground of appeal could not be sustained.

16 His Honour then addressed the third ground of appeal going to the alleged confessional statement to the arresting detectives, contending that had been obtained by promises and threats and there was some doubt as to its reliability. He noted that the appellant stated he was of unsound mind at the time and there was a question of temporary insanity, the appellant contending he had been diagnosed as suffering from paranoid schizophrenia.

17 It is not necessary for me to reiterate here his Honour's reasons and findings. Suffice to say the grounds which are sought to be ventilated by the applicant were canvassed fully before the Court and dealt with by the Court on that occasion.

18 The applicant also does seek to challenge the last appeal. I indicated to him in the course of the hearing today that if that were so, his appropriate avenue would appear to be an application for special leave to appeal to the High Court. The applicant informs me from the bar table that he made such an application but it was refused by the High Court.

19 So far as the present application is concerned, it is clearly not competent. The applicant's appeal against conviction having been heard and determined by the Court of Criminal Appeal, he has no further right of appeal against that conviction unless on referral by the Attorney General on a petition for the exercise of the royal prerogative of mercy pursuant to s 140 of the Sentencing Act 1995 (WA), formerly s 21 of the Code. There has been no such referral. Again Mr Powell says to me today from the bar table that he has in fact made several approaches to the Attorney General to that end but has been refused.

20 The end result and position then is that there is no referral to the Court of Appeal from the Attorney General; the matters sought to be ventilated on an appeal against conviction of the applicant have been dealt with and the appeal has been dismissed. Accordingly, the applicant's proposed appeal is incompetent and the application must be struck out.