Court of Appeal (WA)|2011-10-07|Before: Mr P, Ms J, Lure P, Buss JA, Hall J

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 216 (7 October 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 216

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : THE STATE OF WESTERN AUSTRALIA -v- MICALIZZI & SANTOS [2011] WADC 70

Criminal law - Appeal against order to grant separate trials - Amendments under the Criminal Law and Evidence Amendment Act 2008 (WA) - Whether appeal time barred - Whether amendments operated retrospectively - Turns on own facts

Criminal law - Appeal - Whether right to appeal accrued - Right to appeal accrued when factual foundation for appeal exists - Expectation not the foundation of an accrued right

Criminal law - When is a trial considered to have been 'listed to commence' - Whether deferral of empanelment has any significance

Criminal law - Separate trial - Whether appellant unduly prejudiced at a joint trial - Existence of possible prejudice - Whether any prejudice can be guarded against by appropriate directions

Criminal Law and Evidence Amendment Act 2008 (WA)

Criminal Procedures Rules 2005 (WA), r 24, r 29, r 33, r 34, r 65(2)

First Respondent : Director of Public Prosecutions (WA)

Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471

Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88

Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139

Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394

Director of Public Works v Ho Po Sang [1961] AC 901

Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188

Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379

Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1

McKain v RW Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1992) 174 CLR 1

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

Rogers v The Queen (1994) 181 CLR 251

Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

The State of Western Australia v Micalizzi [2010] WASCA 147

The State of Western Australia v Micalizzi and Santos [2011] WADC 70

The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229

The State of Western Australia v Russell [2009] WASCA 154

Victrawl Pty Ltd v Telstra Corporation [1995] HCA 51; (1995) 183 CLR 595

Winning v The Queen [2002] WASCA 44

2 BUSS JA: The appellant and Joseph Frank Micalizzi have been charged with two counts on an indictment dated 27 February 2009 and filed in the District Court.

3 Count 1 alleges that on 5 March 2008, at Jandakot, the appellant and Mr Micalizzi had in their possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). Count 2 alleges that on the same date and at the same place, the appellant and Mr Micalizzi had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

4 Each of the appellant and Mr Micalizzi has pleaded not guilty to each count.

5 On 18 April 2011, the appellant made application in the District Court for an order, relevantly, that the joint trial of the appellant and Mr Micalizzi 'currently scheduled for 2 May 2011' be severed, and that the appellant have a separate trial. The application was made pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA).

6 On 21 April 2011, Martino CJDC listed the separate trial application for hearing on 29 April 2011 before the trial judge, Stevenson DCJ (the primary judge). On 29 April 2011, the primary judge adjourned the application to 2 May 2011.

7 On 2 and 3 May 2011, the primary judge heard the separate trial application (and other applications filed by the parties). On 3 May 2011, his Honour dismissed the application. He gave extemporaneous reasons which have been edited and published as The State of Western Australia v Micalizzi and Santos [2011] WADC 70.

8 On 4 May 2011, the appellant filed an appeal notice in respect of the dismissal of his separate trial application. On 6 May 2011, this court heard the appeal and an application by the appellant for a stay of the criminal trial. At the conclusion of the hearing, the appeal and the application for a stay were dismissed. We said that reasons for decision would be published later. These are my reasons.

The circumstances of the offences as alleged by the State

9 The circumstances of the offences, as alleged by the State, are relevantly, as follows.

10 On 5 March 2008, at about 12.01 am, the appellant and Mr Micalizzi departed from Bankstown airport, New South Wales, in a Piper Aztec light aircraft. The appellant was the pilot and Mr Micalizzi was a passenger. No-one else was on board. On 5 March 2008, at about 3.50 pm - 4.00 pm, the aircraft landed at Jandakot airport, Western Australia.

11 Shortly after the aircraft arrived at Jandakot airport, the appellant and Mr Micalizzi were met and spoken to by police. The aircraft was searched and a black sports bag was located in its cargo hold. The black sports bag contained vacuum sealed bags with, in total, about 30,000 ecstasy tablets weighing 8.843 kg and other vacuum sealed bags with, in total, 21.85 kg of methylamphetamine. The estimated value of the drugs exceeds $7 million.

12 Each of the appellant and Mr Micalizzi denied any knowledge of the black sports bag or its contents. There is no forensic evidence to link either of them to the black sports bag or the prohibited drugs it contained.

13 Police found the appellant in possession of two mobile telephones. One was activated on 17 January 2008 and the other on 12 June 2007. Both telephones were registered in names and at addresses unconnected to the appellant.

14 Police also found the appellant in possession of almost $9,000 cash. He had paid about $1,600 cash for the fuel required to fly from Bankstown to Jandakot.

15 The appellant was interviewed by police at Jandakot airport. He told police, relevantly:

(a) He had flown from Bankstown to Jandakot, leaving in the early hours of 5 March 2008.

(d) The passenger had agreed to pay for the cost of the fuel, but no payment had yet been made.

(e) He did not put the black sports bag on the aircraft. He did not see his passenger put the bag on the aircraft, but it must have been the passenger who did this.

(f) He had undertaken about three trips to Perth by light aircraft in the past 12 months.

(g) He was trying to increase his flying hours in order to obtain a commercial pilot's licence.

(h) He was bankrupt and currently 'lived off the charity' of his family.

16 Police found Mr Micalizzi in possession of a false New South Wales driver's licence in the name of Tony Rizzo.

17 Mr Micalizzi did not have any cash or credit cards.

18 Police also found Mr Micalizzi in possession of a mobile telephone. He had first attempted to activate this telephone on 4 March 2008. It was registered in a female's name and at an address in New South Wales where a female by that name was unknown.

19 An analysis of records relating to Mr Micalizzi's mobile telephone revealed:

(a) Mr Micalizzi had been in contact with two people ('Oz' and 'Bowa'), each of whom used a mobile telephone, during the flight from Bankstown to Jandakot.

(b) These two other mobile telephones were activated on 4 March 2008 at similar times and similar locations to Mr Micalizzi's mobile telephone.

(d) The two other mobile telephones were registered in names and at addresses in New South Wales. People by those names were unknown at the addresses in question.

(e) Telephone contact between Mr Micalizzi, Oz and Bowa on 5 March 2008, including immediately before his arrest, was prolific. More than 100 contacts were made between these people in a period of about 15 hours.

(f) SMS exchanges between Mr Micalizzi and Oz, and between Mr Micalizzi and Bowa, established that Mr Micalizzi was to meet both Oz and Bowa in Perth upon his arrival at Jandakot on 5 March 2008.

20 Mr Micalizzi was interviewed by police at Jandakot airport. He made no comment apart from denying that the black sports bag and its contents belonged to him and admitting that he may have carried the bag onto the aircraft for the purpose of assisting the appellant to load the aircraft for the flight.

21 The State's case is that the appellant and Mr Micalizzi were jointly in possession of the prohibited drugs found on the aircraft.

22 The State contends that the transportation of the prohibited drugs from Bankstown airport to Jandakot airport was likely to have been part of a joint criminal enterprise, and that this enterprise involved other participants in addition to the appellant and Mr Micalizzi.

23 The State's alternative case is that one or other of the appellant and Mr Micalizzi was in possession of the prohibited drugs.

Mr Micalizzi's earlier application for separate trials

24 On 1 April 2010, Mr Micalizzi made application in the District Court for separate trials. The application was heard by Martino ACJDC. His Honour granted the application and ordered that the appellant and Mr Micalizzi be tried separately. The basis for his Honour's order was likely prejudice to Mr Micalizzi occasioned by continuing delay in the holding of a joint trial. The State appealed. This court (McLure P, Owen JA & Mazza J) allowed the appeal and set aside the order for separate trials. See The State of Western Australia v Micalizzi [2010] WASCA 147.

The State's initial application to adduce propensity evidence

25 On 24 January 2011, the State made application in the District Court for leave to adduce 'propensity evidence' in relation to the appellant, pursuant to s 31A of the Evidence Act 1906 (WA), at the trial.

26 The State contended that the appellant was in the business of drug dealing, and had been involved in drug dealing activities in the 12-month period preceding 5 March 2008. The evidence it relied on for these contentions included:

(b) The appellant had no legitimate form of income.

(d) The appellant appeared to have access to large amounts of cash.

(e) The appellant purchased property in or about May 2007. The property was not purchased in his own name, but was used and occupied by him. The property comprised a 200 acre rural property at Narrabri in New South Wales and the Piper Aztec aircraft.

(f) The appellant undertook numerous flights in the aircraft to various locations throughout Australia in the 12-month period preceding 5 March 2008.

(g) The appellant made numerous cash payments for various expenses including a payment of $20,000 cash towards the purchase of the aircraft and cash payments for aviation fuel on the numerous flights in the aircraft.

(h) On 15 November 2010, the appellant was convicted in the District Court of New South Wales of knowingly taking part in the cultivation of a prohibited plant (being cannabis), and possession of cannabis leaf, those offences having been committed between 1 January 2008 and 8 March 2008 at Narrabri. The cannabis was cultivated on the Narrabri property purchased in or about May 2007. At the material time, the appellant used the aircraft to travel to and from his property at Narrabri.

27 The propensity evidence sought to be adduced by the State comprised:

(a) All flights made by the appellant in the 12-month period preceding 5 March 2008; in particular, the number, destinations, times, costs, relevant conversations pertaining to, and dates of these flights.

(b) Numerous cash payments made by the appellant in the 12-month period preceding 5 March 2008, including the $20,000 cash payment towards the purchase of the aircraft and the cash payments for aviation fuel in relation to the flights in question.

(c) The appellant's convictions in the District Court of New South Wales on 15 November 2010, and his convictions in that court on 13 March 2005 for drug-related offences and the possession of an unregistered firearm, those offences having been committed on or about 5 August 2004 at Tamworth, New South Wales.

28 The State's application to adduce propensity evidence was heard and determined by Macknay AUDCJ between 8 April 2011 and 15 April 2011. His Honour ruled, relevantly:

(a) the 2010 drug convictions were admissible, but the State was confined to adducing evidence of the agreed facts relating to the convictions and the certificates of conviction;

(b) evidence of flights to and from Western Australia was admissible, but evidence of other flights was inadmissible;

(c) evidence of cash payments in relation to the purchase of the aircraft and flights to and from Western Australia was admissible, but evidence of other cash payments was inadmissible; and

(d) the fact of the appellant's bankruptcy was admissible.

29 Macknay AUDCJ reserved his decision on, relevantly, the admissibility of the 2005 drug convictions. In the event, the State did not pursue its application to adduce evidence of these convictions.

The date on which the joint trial was listed to start

30 On 11 February 2011, the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011.

The appellant's application to vacate the trial date

31 As I have mentioned, on 29 April 2011, the primary judge adjourned the appellant's application for separate trials to 2 May 2011.

32 On 29 April 2011, his Honour informed counsel that he was unable to hear and determine the separate trial application on that date. Counsel for the appellant then moved for an order that the trial date be vacated. This motion was opposed by counsel for Mr Micalizzi and counsel for the State. His Honour said he would not vacate the trial date. He noted that the application for separate trials had been made late, and said it was desirable that the trial proceed without further delay (ts 385 - 386).

The primary judge's decision to defer the empanelment of the jury

33 A little later on 29 April 2011, his Honour stated in open court, in the presence of counsel, that 'the jury panel in respect of this trial which will start on Monday [2 May 2011], are not required until Monday, 9 May 2011' (ts 419).

34 On 2 May 2011, the indictment was called by the clerk of arraigns, and the primary judge then said:

STEVENSON DCJ: Thank you, [the appellant] and Mr Micalizzi. Please, take a seat.

The trial of District Court indictment 1616 of 2008, dated 27 February 2009, is listed to commence today before me as the trial judge. Therefore, this is the first day of the trial. The jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011. The reason for the delay in the trial at this stage is to allow sufficient time for the outstanding issues to be resolved and some time for the parties to prepare for the evidence as soon as they know the outcome of those issues.

I'm now going to ask the clerk of arraigns to formally take the plea of the accused (ts 422). (emphasis added)

35 The appellant and Mr Micalizzi were arraigned and pleaded not guilty. His Honour then proceeded to hear argument on a number of outstanding issues between the State and the accused.

The State's second application to adduce propensity evidence

36 On 29 April 2011, the State made another application in the District Court for leave to adduce 'propensity evidence' in relation to the appellant at the trial.

37 In this application, the State sought a reconsideration by 'the trial judge' (that is, the primary judge) of the admissibility of evidence of all flights and cash payments made by the appellant in the 12-month period preceding 5 March 2008.

38 The primary judge did not determine the State's further application to adduce propensity evidence until after his Honour had determined the appellant's application for separate trials on 3 May 2011. However, in his reasons for dismissing the appellant's application for separate trials, his Honour said in relation to the State's pending application:

I appreciate that there is an application dated 29 April 2011 before me by the State for leave to adduce certain evidence described as propensity evidence which it seeks to lead against [the appellant]. The resolution of that application might be relevant to the outcome of this application, but I am in a position to rule on this application, because I have knowledge of the nature of the propensity evidence application. And, in my view, whatever the outcome of that application, it will not affect the outcome of this application.

As I indicated, it is important that I rule on this application as soon as possible, given the importance of the application to the trial which has started, and the position of the parties insofar as their continuing preparations in the trial are concerned. In my view, the outcome of the resolution of the State's propensity evidence application would not materially affect the view I have come to in respect of [the appellant's] severance application.

The State's propensity evidence would not, in my view, if admitted, be of such gravity or moment to cause the application of [the appellant] to reach a threshold where any prejudice 'in the trial' arising out of that evidence would, on its own, or in combination with the other evidence, have the effect that the court should order by reason of such prejudice separate trials [67] - [69]. (emphasis added)

39 At the hearing of the appeal before this court, counsel for the State informed us that, after deciding the appellant's application for separate trials and publishing his reasons for that decision, the primary judge ruled that the State should be permitted to adduce, as propensity evidence, at the trial, the evidence referred to in the State's further application (appeal ts 25 - 26).

The primary judge's reasons for decision in relation to the appellant's application for separate trials

40 The State and Mr Micalizzi opposed the appellant's application for separate trials.

41 Counsel for the appellant submitted to the primary judge, in essence, that the appellant was likely to be prejudiced by a joint trial and that this likelihood of prejudice could not be guarded against adequately by directions to the jury.

42 The apprehended prejudice to the appellant was that counsel for Mr Micalizzi would, by cross-examination of the State's witnesses and otherwise, adduce evidence of the appellant's alleged criminal propensity in relation to drug dealing that would not be admissible, or had already been ruled inadmissible by Macknay AUDCJ, in the State's case against the appellant.

43 The primary judge referred to the submission of counsel for the appellant on this point, as follows:

The basis for this position is based on anticipated cross-examination by [the appellant's] co-accused of witnesses which the State may not be permitted to call in its case, and that by pursuing a rigorous line of cross-examination of himself and raising all matters concerning 'his prior convictions and all other matters that were excluded in the pre-trial directions hearings, such as flights in the preceding 12 months that do not relate to east coast to west coast, cash payments for aviation, fuel concerning intra-travel in New South Wales and other evidence of a similar nature'.

There is also expressed concern that the co-accused would seek to adduce information not confined to the 2005 and 2010 prior conviction[s] and surrounding matters that form part of the police investigation in respect of them. I understand that material in relation to these matters is included in the prosecution brief [32] - [33].

44 As I have mentioned, his Honour referred to the pending application by the State for leave to adduce additional propensity evidence against the appellant at the trial and said, 'whatever the outcome of that application, it will not affect the outcome of this application [for separate trials]' [67].

45 The primary judge was of the opinion that the appellant's application for separate trials must fail because the discretion conferred by s 133(4)(a) of the Criminal Procedure Act had not been enlivened. He said:

[The appellant] has not demonstrated any actual or likely prejudice that he will suffer in the trial which enlivens the court's discretion to order separate trials [66].

Even if this threshold is reached, I am not persuaded that any such prejudice, whether anticipated or real, is of a sufficient magnitude in the interests of justice to warrant separate trials of the two accused [66].

47 Section 133(1) of the Criminal Procedure Act provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.

48 By s 133(2), a court may amend or cancel an order made under s 133.

49 Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.

50 Section 133(4) provides:

If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -

(a) that one or more of the accused be tried separately from the other or others; and

(b) the prosecutor to tell the court the order in which the accused will be tried.

In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -

(a) to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;

(b) to so decide irrespective of the nature of the offence or offences charged; and

(c) to so decide even if -

(i) the evidence on one of the charges is inadmissible on another; or

(ii) the evidence against one of the accused is not admissible against another,

52 Section 133(7) is crucial in determining whether the present appeal is competent or not. I will set out the text of s 133(7), and consider its proper construction and its application to the facts of this appeal later in these reasons.

Do s 133(7) of the Criminal Procedure Act and s 26(5) and s 26(6) of the Criminal Appeals Act as originally enacted, or as currently enacted, apply to the present appeal?

53 At all material times, s 26(3)(b) of the Criminal Appeals Act 2004 (WA) has provided that if two or more accused are charged on indictment with an offence, any accused may appeal to this court against a refusal by a judge of a 'superior court' to order that there be a separate trial of any of the accused. The term 'superior court' includes the District Court: see the definition in s 4(2).

54 Section 26(3)(b) makes provision for a preliminary appeal before trial against the dismissal of an accused's application for separate trials. However, if an accused applies for an order for separate trials, the application is dismissed, the accused does not appeal under s 26(3)(b) and the accused is convicted after trial, the accused may nevertheless appeal against his or her conviction, under the general appeal provision in s 23(1) of the Criminal Appeals Act, on the ground, for example, that there was a miscarriage of justice occasioned by the fact that the accused was tried jointly with his or her co-accused. This is apparent from s 26(4), which reads:

If an accused is tried with one or more other accused in one trial and is convicted of any offence, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the accused in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (3)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.

55 An issue which must be resolved in the present appeal is whether s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as originally enacted, or s 133(7), and s 26(5) and s 26(6), as introduced with effect from 27 April 2008, are applicable to the appellant's appeal.

56 Section 133(7), as originally enacted, provided:

If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26.

57 Section 26(5) and s 26(6), as originally enacted, provided:

(5) An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the trial of the accused starts.

(6) If an appeal under this section is commenced after the trial of the accused concerned has started, it must be dismissed.

58 By s 26 of the Criminal Law and Evidence Amendment Act 2008 (WA), s 133(7) of the Criminal Procedure Act, as originally enacted, was repealed and the following subsection was inserted instead:

If a superior court makes or refuses to make an order under subsection (3) or (4) before the day on which the accused's trial is listed to start, the court must not start the trial unless the court is satisfied -

(a) that no party who could commence an appeal against the order or refusal under the Criminal Appeals Act 2004 section 26 intends to do so;

(i) the time for commencing such an appeal has expired; and

(ii) any such appeal commenced before the time expired has been concluded.

59 Also, by s 34 of the Criminal Law and Evidence Amendment Act, s 26(5) and s 26(6) of the Criminal Appeals Act, as originally enacted, were repealed and the following subsections were inserted instead:

(5) An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the day on which the accused's trial is listed to start.

(6) If an appeal under this section is commenced on or after the day on which the accused's trial is listed to start, the appeal must be dismissed.

60 The new section s 133(7), and the new s 26(5) and s 26(6), commenced on 27 April 2008. The Criminal Law and Evidence Amendment Act did not contain any savings or transitional provisions in relation to the new provisions or generally. Section 2(1) merely provided that the Act 'comes into operation on a day fixed by proclamation'. The day so fixed was 27 April 2008.

61 The relevant chronology, for present purposes, is this:

(a) On 5 March 2008, the alleged offences were committed.

(b) On 5 March 2008, the appellant and Mr Micalizzi were charged with the offences.

(d) On 31 July 2008, each of the appellant and Mr Micalizzi appeared in the Magistrates Court pursuant to a prosecution notice. The appellant and Mr Micalizzi were not, at that stage, jointly charged. There were two prosecution notices, one naming the appellant as the accused and the other naming Mr Micalizzi as the accused. Each notice contained two charges. The charges corresponded to counts 1 and 2 in the indictment with the notable exception that each charge referred only to the accused named in the prosecution notice.

(e) On 20 February 2009, the appellant and Mr Micalizzi were committed to the District Court for trial.

(f) By the indictment dated 27 February 2009, filed in the District Court, the appellant and Mr Micalizzi were charged jointly for the offences allegedly committed on 5 March 2008.

(g) On 8 May 2009, the appellant and Mr Micalizzi first appeared in the District Court.

(h) On 11 February 2011, the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011.

(i) On 18 April 2011, the appellant file the application for separate trials.

(j) On 29 April 2011, the primary judge said he would defer the empanelment of the jury until 9 May 2011, so that a number of outstanding issues between the State and the accused, including the appellant's application for separate trials, could be resolved.

(k) On 2 May 2011, the clerk of arraigns called the indictment. The appellant and Mr Micalizzi were arraigned and pleaded not guilty. The primary judge noted that the 'jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011' (ts 422). His Honour then proceeded to hear argument on a number of outstanding issues between the State and the accused, including the separate trial application.

(l) On 3 May 2011, the primary judge dismissed the appellant's application for separate trials.

(m) On 4 May 2011, the appellant filed his appeal notice in this court.

62 The general rule, at common law, is that a statute which changes the law should not, unless the intention appears with reasonable certainty, 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 past events. See Maxwell v Murphy [1957] HCA 7; [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).

63 Dixon CJ did not express this general rule on the basis of the simple classification of a statute as either procedural or substantive. That classification does not necessarily determine whether a statute may have a retrospective operation. See Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 519 (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ).

64 The effect of the general rule is that a statute is prima facie construed as not attaching new legal consequences to facts and events which occurred before its commencement. See Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 (Fullagar J); Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J); Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379, 399 - 400 (Stephen J), 401 (Mason J).

65 However, there is no presumption against retrospectivity in the case of statutes which affect 'mere matters of procedure'. See Rodway (518), where Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ elaborated:

Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and 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. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations (518 - 519).

66 A little later in Rodway, their Honours noted that a person who commits an offence does not have a right to be tried in a particular way. He or she merely has a right to be tried in accordance with the practice and procedure which exists at the time of trial (521). See also Maxwell, (267) (Dixon CJ).

67 There is a well-established distinction between a true statute of limitations, which operates to bar a right of action independently existing, but does not extinguish that right, on the one hand, and a limitation period annexed by a statute to a right which it creates, on the other. See Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471, 488 (Windeyer J); Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 497 (McHugh J). A true statute of limitations has been classified as procedural in nature. By contrast, a limitation period which creates a right of limited duration so that, after the expiry of the prescribed time, the right ceases to exist for any purpose, has been classified as substantive in nature. See McKain v RW Miller & Co (South Australia) Pty Ltd [1991] HCA 56; [1991] HCA 56; (1992) 174 CLR 1, 43 - 44 (Brennan, Dawson, Toohey & McHugh JJ).

68 In Rodway, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ made these observations about amendments to statutory limitation provisions for the commencement of legal proceedings (519):

Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim - and such an operation could not be said to be merely procedural. This distinction was recognized by Williams J in Maxwell v Murphy ((1957) [1957] HCA 7; 96 CLR 261, at p 278), and his remarks were adopted by the Privy Council in Yew Bon Tew v Kenderaan Bas Mara ([1983] 1 AC 553, at p 562). Gibbs J re-examined the question in Yrttiaho v Public Curator (Q) ((1971) [1971] HCA 29; 125 CLR 228, at p 242) and he expressed his view as follows:

'Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought.'

69 Section 37(1) of the Interpretation Act 1984 (WA) provides, relevantly, that where a written law repeals an enactment, the repeal does not, unless the contrary intention appears:

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;

(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;

...

(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.

70 The interpretation statutes of other Australian jurisdictions contain provisions comparable to s 37(1). It has been suggested that the statutory provisions do not, relevantly, produce results different from those at common law. See Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, 827 (Winneke CJ, Gowans & Starke JJ); Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139, 152 (Mason, Murphy & Wilson JJ); The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [34] (Steytler P, McLure & Buss JJA agreeing, Martin CJ relevantly agreeing).

71 By s 16(2) of the Interpretation Act, a reference in a written law to a provision of a written law shall be construed as a reference to such provision 'as it may from time to time be amended'. The term 'amend' is defined in s 5 to mean 'replace, substitute, in whole or in part, add to or vary, and the doing of any 2 or more of such things simultaneously or by the same written law'. Section 9 provides that where a word or phrase is defined in a written law (including the Interpretation Act), other parts of speech and grammatical forms of that word or phrase have corresponding meanings. By s 3(1), relevantly, s 16(2) applies to every written law unless, in relation to a particular written law:

(a) express provision is made to the contrary; or

(b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or

(c) ...

72 In the present case, counsel for the appellant submitted that the appellant had a right of appeal under s 26(3)(b) of the Criminal Appeals Act against the decision of the primary judge dismissing his application for separate trials, and that this was 'a right that existed from the time on which the prosecution commenced in the Perth Magistrates Court' on 6 March 2008, that date being before s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, commenced on 27 April 2008. This right, so it was submitted, was a 'substantive right' and, by virtue of s 37(1)(c) of the Interpretation Act, s 133(7), and s 26(5) and s 26(6), as originally enacted and in force on 6 March 2008, apply to the appellant's right. Counsel for the appellant submitted that the appellant's alleged right of appeal under s 26(3)(b) was unaffected by the amendments made by the Criminal Law and Evidence Amendment Act.

73 In my opinion, the appellant's submissions on this issue are without merit. My reasons are as follows.

74 First, the appellant filed his application for separate trials on 18 April 2011. He did not file an application for separate trials before 27 April 2008, which was pending and undetermined as at that date. The present case is plainly distinguishable from such cases as Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 and Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1, where there was a pending application or appeal under a previous statutory framework when the legislative provisions in question were amended.

75 Secondly, the powers of the court under s 133 of the Criminal Procedure Act are predicated on the existence of, relevantly, a prosecution notice or indictment that charges 'one or more other accused': s 133(4). As I have mentioned, the appellant and Mr Micalizzi were not jointly charged under the prosecution notices filed on 31 July 2008. They were not jointly charged until 27 February 2009 when the indictment was filed in the District Court. Accordingly, the powers in s 133 did not become exercisable, either by the court on its own initiative or on an application by the appellant or Mr Micalizzi, until, at the earliest, 27 February 2009. By that date, the relevant amendments to s 133 of the Criminal Procedure Act and s 26 of the Criminal Appeals Act had commenced.

76 Thirdly, the effect of s 16(2) of the Interpretation Act in relation to s 133 of the Criminal Procedure Act, and s 26 of the Criminal Appeals Act, as currently enacted, was not displaced by the text of the Criminal Law and Evidence Amendment Act or the text of the subsections introduced by that amending Act. Also, there is nothing in the intent and object of the Criminal Law and Evidence Amendment Act or the subsections introduced by the amending Act, and there is nothing in the subject or context of those provisions, inconsistent with the application of s 16(2) of the Interpretation Act. The reference in s 133(7), as currently enacted, to s 26 of the Criminal Appeals Act is therefore to s 26 as amended from time to time. Similarly, the right of appeal conferred by s 26(3)(b) is a right to appeal in accordance with s 26 as amended from time to time.

77 Fourthly, s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, do not operate retrospectively.

78 In Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, Hayne, Heydon and Crennan JJ noted:

As Jordan CJ rightly said in Coleman v Shell Co of Australia ((1943) 45 SR (NSW) 27 at 30-31), an Act 'is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future.' The amendments made by IPOLA 2004 spoke only as to the future. They were engaged in respect of applications made after the amendments came into operation. As the authors of one text (Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006), p 308 [10.3]) have put it:

'All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law.'

(Emphasis added.)

In this case, the appellants' development application being made after the amendments made by IPOLA 2004 had come into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. No question of retrospective operation of the legislation arises [113].

79 Section 133(7), and s 26(5) and s 26(6), as currently enacted, apply, relevantly, to any right of appeal under s 26(3)(b) which is acquired or comes into existence on or after 27 April 2008, being the date on which those provisions commenced.

80 Fifthly, an application for separate trials filed by an accused on or after 27 April 2008 must be determined in accordance with s 137 of the Criminal Procedure Act, as currently enacted. If the primary judge dismisses the accused's application, any right of the accused to a preliminary (or interlocutory) appeal against the dismissal is governed by s 26 of the Criminal Appeals Act, as currently enacted. The limitation in s 26(5) is annexed to the right created by s 26(3)(b). The accused does not acquire a subsisting or accrued right to appeal under s 26(3)(b) before the primary judge dismisses the application for separate trials. If the primary judge dismisses the application then, subject to s 26(5), the accused will acquire a subsisting or accrued right to appeal under s 26(3)(b). However, this conditional right will cease to exist, for any purpose, if the accused does not comply with s 26(5). See s 26(6).

81 Sixthly, when the prosecution against the appellant was initiated in the Magistrates Court on 6 March 2008, the appellant did not acquire a subsisting or accrued right to have any future appeal that might possibly be brought under s 26(3)(b) of the Criminal Appeals Act, after an indictment was filed in relation to the charges, determined in accordance with s 133 of the Criminal Procedure Act, and s 26 of the Criminal Appeals Act, as in force on 6 March 2008. No such right was conferred, either expressly or by necessary implication, by s 133 or s 26 or any other statutory provision. At best, as at 6 March 2008, the appellant had a possible or potential 'right' to appeal under s 26(3)(b) if, in the future, he was jointly charged with Mr Micalizzi and he brought an application under s 133 and the application was dismissed. Any such 'right' is not a subsisting or accrued right within the protection afforded by s 37(1)(c) of the Interpretation Act.

82 I am therefore of the opinion that s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, apply to the present appeal.

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 216 (7 October 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (364 paragraphs)

SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 216 (7 October 2011)

Legislation Cited (7)

Cases Cited (25)