REYNOLDS -v- BYRAM [2025] WASCA 59 (17 April 2025)

(1) Leave to appeal is granted in respect of charge AL 2097/2021.

(2) The appeal is allowed in respect of charges AL 2097/2021, AL 2150/2021 and AL 682/2022.

(3) The appellant's conviction on charge AL 2150/2021 is set aside and substituted with a judgment of acquittal.

(4) The appellant's conviction on charge AL 2097/2021 is set aside and that charge be referred to the Magistrates Court at Albany for trial.

(5) The appellant's conviction on charge AL 682/2022 is set aside and there be a retrial of that charge in the Magistrates Court at Albany before a different magistrate.

1. As is apparent from those orders, the appellant was successful in his appeal. The convictions on all three charges were set aside. An acquittal was entered in respect of one of the breach of bail charges. The other charges were remitted to the Magistrates Court for those charges to be dealt with in the ordinary course. On the face of it, the appellant achieved all that he could have reasonably expected to achieve in bringing the appeal. However, notwithstanding his success, he has sought leave to appeal to this court.
2. On 24 February 2025, the appellant filed a notice of appeal. He subsequently filed an amended notice on 24 March 2025. The proposed grounds of appeal as contained in the amended notice are problematic. There is no identification of what orders the appellant wants on the appeal. This is not the occasion to make any final determination of the merits of the appeal as the appellant has yet to file his appellant's case. However, the existing proposed grounds are relevant for the purposes of this application for a suspension order.
3. An appeal may be brought, relevantly, on the grounds that the primary judge made an error of law or fact, or of both law and fact, or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[4] The proposed grounds in the amended notice consist of a confused and confusing collection of assertions, catchphrases and unconnected words and phrases. These grounds would not, if repeated in the appellant's case, comply with the requirements of r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). In particular, they do not identify, succinctly and with concise particulars, the alleged errors of the primary judge. They do not identify whether any such errors are errors of fact or law, or errors of mixed fact and law. They do not identify, by reference to the paragraph or page numbers of the primary judge's reasons, each passage where such errors are alleged to have occurred. They do not identify the basis on which any miscarriage of justice is alleged to arise. Insofar as it is alleged that the primary court acted without, or in excess of, jurisdiction, the grounds do not state the basis for such an allegation.
4. On 21 March 2025, the appellant filed an application in an appeal seeking the suspension of orders 4 and 5 made by Lemonis J; that is the orders setting aside the convictions on charges AL 2097 of 2021 and AL 682 of 2022, and remitting those matters to the Magistrates Court for trial. The application states that the reason for seeking suspension is to avoid any possible conflict between judgments of the Magistrates Court and this court. There is reference to the appellant having a 'case load in excess of what is fair and reasonable' and to a need on his part to focus on this appeal. There is also a mention of seeking a suspension of fines that were imposed on the appellant at the time of his original convictions. The fines fell away with the setting aside of the convictions, so this part of the application is redundant.
5. In an affidavit in support of the application, the appellant states that the consequence of the orders is that the relevant charges may be dealt with in the Magistrates Court while the appeal is still pending. The appellant claims that he has a 'multitude of litigation' in process and that forcing him to defend the charges in the Magistrates Court in Albany would amount to an abuse of process and cause 'further harm and financial hardship' to the appellant. No further details are provided of the alleged hardship.[5]
6. The power of this court to suspend orders made by a primary court arises from s 12, as applied by s 18 of the Criminal Appeals Act. Section 12 relevantly provides as follows:

(1) At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded -

(a) the decision;

(b) any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;

(c) any statutory consequence of the decision.

(2) The Supreme Court may amend or cancel an order made under this section at any time.

(3) An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.

1. The provisions of s 12 apply to a further appeal brought to the Court of Appeal from the decision of a single judge of the General Division by virtue of s 18. Section 18 provides as follows:

Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if -

(a) the appeal were an appeal under Division 2; and

(b) unless the context requires otherwise, references in Division 2 -

(i) to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and

(ii) to the Supreme Court were to the Court of Appeal.

1. The principles set out in Eastland Technology Australia Pty Ltd v Whisson,[6] although developed in relation to civil proceedings, provide a useful guide to the exercise of the discretion under s 12 of the Criminal Appeals Act.[7] Those principles can be summarised as follows:
   1. The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
   2. It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
   3. The court will not do so unless special circumstances are shown justifying a departure from the ordinary rule.
   4. The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. In other words, if a stay is refused, will the appeal be rendered nugatory.
   5. In any event, a stay will generally be refused unless it can be established that the appeal process has reasonable prospects of success.
   6. The stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
2. In the present case, as has been noted earlier, the appellant was wholly successful in the appeal to the primary judge. His convictions on all three charges were set aside. It is not apparent how he could possibly achieve any better result on further appeal to this court. The only better outcome that could be achieved would be orders for acquittal in respect of the two outstanding charges, but, as the primary judge pointed out, the merits of those matters have yet to be determined. The appropriate forum for those merits to be dealt with is in the Magistrates Court. The appellant will have the opportunity to raise a defence to the charges in that court, if he has one.
3. The risk of inconsistency between this court and the Magistrates Court is not readily apparent. There is nothing to indicate that the charges have been listed for hearing in the Magistrates Court. Furthermore, as the respondent points out, it is open to the appellant to seek an adjournment of the proceedings in the Magistrates Court until the appeal is resolved.
4. This is not a case where the grant of a stay is necessary to preserve the subject matter or the integrity of the litigation. The only practical difficulties which the appellant raises are the inconvenience and expense of defending proceedings in the Albany Magistrates Court, in circumstances where he is also involved in other litigation. Those are not factors that would justify the granting of a stay pending the final resolution of this appeal. The refusal of a stay would not render the appeal any more nugatory than it already is.
5. In any event, it has not been established that the appeal has reasonable prospects of success. As noted, the grounds of appeal do not clearly identify any appellable errors. Nor is it apparent that the appellant has any prospect of achieving an outcome that is more favourable to him than he has already achieved.
6. There is no proper basis for making a suspension order. For these reasons, at the hearing of the application, we dismissed the appellant's application for a suspension order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Prosecution notice, dated 5 May 2022 (AL 2097 of 2021); prosecution notice, dated 2 August 2022 (AL 2150 of 2021); prosecution notice, dated 2 August 2022 (AL 682 of 2022).

[2] Reynolds v WA Police [No 2] [2025] WASC 10.

[4] Criminal Appeals Act, s 8, s 18.

[5] Affidavit of Kellan John Reynolds, dated 25 February 2025, 2.

[6] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

[7] Anderson v Prankhurst [2012] WASC 287 [11].