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[2012] WASC 361
General information, not legal advice.
Supreme Court of WA
2012-09-24
Hall J
Original judgment source is linked above.
(This judgment was delivered orally and has been edited from the transcript)
1 On 16 August 2012 Ms van Lieshout filed three documents:
(1) a notice of appeal seeking to appeal a conviction for an unspecified offence on 23 July 2012 in the Magistrates Court at Fremantle;
2 On 24 August 2012 I dismissed the application for interim orders. I did so on the papers and without listing that application for a hearing as I am empowered to do pursuant to r 60(1)(b) of the Criminal Procedure Rules 2005 (WA) (CPR).
3 A decision made on the papers is a provisional decision. This means that a party can apply for a hearing, failing which the provisional decision becomes final: r 60(2) and r 63. If a party applies for a hearing the matter must be listed before the judge who made the provisional decision, or if that judge is absent, before another judge: r 63(5). Ms van Lieshout has applied for a hearing and the matter has therefore been listed before me today.
4 On 17 September 2012 Ms van Lieshout filed further documents, being:
5 In her applications for interim orders Ms van Lieshout seeks:
(2) 'a stay order to set aside (cancel)' the Magistrates Court decision; and
6 A party can make an application for an interim order at any time after an appeal is commenced. Such an application is made by filing a Form 23 together with an affidavit explaining why the order is wanted and documents setting out the proposed order: r 68.
7 In order to commence an appeal within time an appellant must lodge:
8 In the present case Ms van Lieshout has lodged an appeal notice - in fact, two notices if the amended notice is taken into account. The prosecution notice has also been filed, though it is not a copy of the Magistrates Court original on which the magistrate's notes would be endorsed. The transcript of the Magistrates Court proceedings has not been filed. Without the necessary documents it is impossible to know exactly what occurred in the Magistrates Court. Until those documents are provided the appeal has not been properly commenced.
9 On 22 August 2012 an officer of the court wrote to Ms van Lieshout advising that, inter alia, a certified copy of the Magistrates Court's copy of the prosecution notice and the transcript were required and that the appeal could not proceed further without them. Those documents had not been received at the time I made the provisional decision. I made orders requiring that they be filed and served by 27 September 2012. As at the date of this hearing they have yet to be received.
10 Because the appeal has not yet been properly commenced it is not open to make an interim order under r 68. That was one of the reasons that I made the provisional decision to dismiss the application for interim orders. It continues to apply. There are good reasons why the court should not make interim orders when the necessary papers are unavailable. Chief amongst those reasons is that it may be simply impossible in such a case to be sure of exactly what occurred without those papers being filed.
11 The second reason that I made the provisional orders was that the orders sought by Ms van Lieshout were in the nature of final orders, not interim orders; final orders allowing or dismissing an appeal, setting aside orders made by the primary court or ordering the costs of the appeal can only be made following a final hearing. There has not been a hearing on the merits of the appeal yet; whether there is one may depend on whether the necessary papers are filed.
12 Ms van Lieshout has referred in her most recent affidavit to a stay order under s 12 of the Criminal Appeals Act 2004 (WA) (CAA). It is a little unclear, but it appears that she is seeking a stay of execution of a fine of $2,000 and costs of $5,358 that were imposed in the Magistrates Court. Her reasons for wanting the stay are that she says the magistrate was wrong to impose those amounts and that the fine and costs are an infringement of her civil and political rights. Other similar claims are made in the affidavit.
13 What Ms van Lieshout is saying in simple terms is that a stay order should be made because her appeal is a strong one. That, however, is something that cannot be determined now, largely because the necessary papers have not been filed and because the grounds of appeal are difficult to comprehend. The affidavit does not establish any proper basis for making a stay order under s 12.
14 In any event, s 12(6) precludes an order under s 12 where an appeal against a decision involves the imposition of a fine, as defined under the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
16 The stay of a fine and costs will occur automatically if leave is granted under s 11 CCA, but without the documents that I have referred to it is impossible to consider granting leave at this stage of the proceedings.
17 An appeal may be made on the grounds that the Magistrate:
(3) imposed a sentence that was inadequate or excessive; or
Section 8 CCA.
18 Grounds have to identify clearly and with precision exactly what it is that is said to be the error or miscarriage of justice. Grounds cannot merely allege that a miscarriage of justice or an error has occurred; they must contain more particulars than that. In my provisional orders I required Ms van Lieshout to file an amended notice of appeal complying with s 8 CCA and r 65(2) CPR. I made this order because her grounds were in my view difficult to comprehend.
19 It is important that both the respondent and the court be able to understand exactly what she is alleging. Fairness and justice to both parties cannot be achieved if the grounds are vague and confusing. Ms van Lieshout has referred to written submissions which she has filed and which she asks be taken into account in considering her grounds of appeal. She has also made some oral statements today in regards to what her grounds mean.
20 It is unnecessary to state all the grounds, but to illustrate the difficulty with some of them, ground 1 states, 'The decision "offence details" are not legally stated under any Commonwealth or State law.' What exactly that ground means is not readily apparent. What error it is that is asserted is not apparent.
21 Ground 2 refers to s 8 of the Defamation Act 2005 (WA) and states:
Breach of section 8 Defamation Act 2005; I am a Christian Teacher, not a 'criminal', as branded by the respondent, the respondent's law firm and court. They're engaged in serious defamation of my character.
22 These are of course not defamation proceedings and s 8 of the Defamation Act would not appear, on the face of it, to have anything to do with this appeal. What exactly the error of fact or law is that is said to have been made by the magistrate is not apparent.
23 Ms van Lieshout did file an amended notice of appeal on 17 September but it was in almost identical terms as the first. Whether she is unable or unwilling to clearly state her grounds, I do not know. The fact is that the grounds are not, as stated, proper grounds. They are a confused and confusing collection of assertions. The only course remaining is to list the matter for a hearing to determine whether leave to appeal should be granted.
24 Leave is required for each ground of appeal. Leave cannot be granted unless the court is satisfied that the grounds have a reasonable prospect of succeeding. If no ground has such a prospect the appeal must be dismissed s 9 CAA. I will give Ms van Lieshout an opportunity to establish that her grounds have a reasonable prospect of succeeding, provided that she files the necessary papers.