On 5 March 2019, the appellant's former solicitors filed Discontinuance Notices in these appeals against his convictions of and sentences for child sex offending. On 26 April 2019, the appellant, acting in person, applied for leave to withdraw those Discontinuance Notices.
Leave to withdraw the Discontinuance Notices should be granted on the basis that the notices were nullities, as the appellant misunderstood their effect. At the time of filing the Discontinuance Notices, the appellant intended to progress appeals against his convictions and sentences himself. He did not appreciate, and was not told by his legal advisers, that the proposed Discontinuance Notices would prevent him from doing so.
[2]
The following uncontroversial background facts are derived from the court's record or, where indicated, the affidavit of Ms Natalia Tasic sworn 3 April 2019. Ms Tasic is employed by Timpano Legal, the appellant's former solicitors, and she acted on behalf of the appellant at trial and on the appeals. Ms Tasic was not challenged on the contents of her affidavit, and there is no reason for this court not to accept them as correct. While the appellant's recollection of details appeared from his oral evidence to be poor, his account of events leading up to the filing of the Discontinuance Notices, to the extent he could recall them, was broadly consistent with that of Ms Tasic.
On 8 March 2018, the appellant was convicted, after a trial before Sweeney DCJ and a jury, of two counts of sexual penetration of a child under the age of 13 years, by inserting his finger into her vagina. The offending was alleged to have occurred at some time in 2009, when the complainant was 10 or 11 years old. The complainant was the granddaughter of the appellant's then de facto partner.
On 21 June 2018, the appellant was sentenced to 4 years' immediate imprisonment on count 2 and 2 years' immediate imprisonment on count 1. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 6 years' imprisonment. The appellant was made eligible for parole, and the sentences were backdated to 8 March 2018 to take account of time spent in custody on remand.
On 6 July 2018, the appellant commenced appeals against his convictions (CACR 129 of 2018) and sentences (CACR 130 of 2018). At this time, the appellant was unrepresented in the appeals.
By consent, orders were made extending the time for the appellant to file and serve his appellant's cases in both appeals until 30 November 2018. On 7 December 2018, the appellant applied for a further extension of time to file and serve his appellant's cases to 1 February 2019. In his affidavits in support of that application, the appellant indicated that he had engaged Timpano Legal (although they were not yet on the record), which had briefed Mr Tom Percy QC to advise as to the merits of an appeal against conviction and sentence.
The reason for the requested extension of time concerned the decision of this court in MCA v The State of Western Australia,[2] which had been argued but not determined at the date of the extension application. The appellant's affidavit in effect deposed that Mr Percy wished to wait for the decision of the court in MCA before settling the appellant's grounds of appeal against conviction. An extension of 2 months was requested, in anticipation that MCA would be decided by then. While the issue did not affect the appeal against sentence, the appellant in effect deposed that his lawyers considered it desirable to file both appellant's cases together.
On 11 December 2018, the acting Court of Appeal Registrar extended the time for the appellant to file and serve his appellant's cases to 1 February 2019.
On 31 January 2019, Timpano Legal filed a notice indicating that they acted for the appellant in both appeals.
On 4 February 2019, the appellant filed and served his appellant's cases in both appeals.
The appellant's case in the conviction appeal advanced three grounds of appeal:
The learned trial Judge erred in law by allowing the prosecution to adduce evidence by [the complainant's mother] and [the complainant's grandmother] of the change in behaviour in [the complainant] at a time proximate to the offending.
In the event the evidence referred to in ground one was admissible, the learned trial Judge erred in the exercise of her discretion in admitting the evidence, as the prejudice [to] the [appellant] outweighed any probative value.
In the event that the evidence referred to in ground one was properly admitted, the learned trial Judge erred by failing to give the jury an adequate warning as to the dangers of acting on such evidence.
The appeal against sentence in effect contended that the total effective sentence of 6 years' imprisonment breached the first limb of the totality principle.
On 4 February 2019, this court dismissed the appeal in MCA and published its reasons for doing so. In MCA, the court rejected grounds of appeal in relation to the admissibility of, and directions about, evidence of a change of behaviour by the complainant in that case at about the time of the alleged offending.
On 11 February 2019, Buss P referred the appellant's application for leave to appeal on the grounds of appeal contained in the appellant's case in the conviction appeal to the hearing of the appeal.
On 13 February 2019, the acting Court of Appeal Registrar gave notice to the State requiring a respondent's answer to be filed in the conviction appeal by 6 March 2019.
On 15 February 2019, a registrar's notice to attend was issued, indicating that the appeal against sentence had been listed on 6 March 2019 to consider the application for leave to appeal.
On 21 February 2019, Timpano Legal received an opinion from Mr Percy, and arrangements were made for Mr Percy's opinion to be provided to the appellant and the appellant's sister.[3]
On 1 March 2019, a teleconference took place between the appellant, Ms Tasic and Mr Percy. The appellant was advised that Mr Percy's opinion was that an appeal against either conviction or sentence was unlikely to succeed. In that teleconference, the appellant indicated that he required some time to think about how he wanted to proceed.[4]
On 4 March 2019, the appellant's sister advised Ms Tasic by email that the appellant did not want to proceed with either his appeal against sentence or his appeal against conviction.[5]
On 5 March 2019, Ms Tasic spoke to the appellant by telephone. The appellant confirmed that he did not want to pursue either the appeal against his conviction or his appeal against sentence. The appellant indicated that he accepted Mr Percy's advice to the effect that the prospects of a successful appeal against either sentence or conviction were marginal, and he considered that proceeding any further would effectively be a waste of time and money. Ms Tasic advised that she would send the appellant a document which needed to be signed and received by Timpano Legal before they would file discontinuance notices, notifying the court that the appeals would be abandoned.[6] The appellant accepted in his evidence that he had told Timpano Legal that he did not want to continue with his appeals.[7]
At 1.37 pm on 5 March 2019, Timpano Legal emailed the following form to Acacia Prison, where the appellant was being held:[8]
[3]
AUTHORITY TO ABANDON APPEAL
I [the appellant] hereby instruct my solicitors Timpano Legal ... and Counsel as follows:
[4]
I have lodged two appeals in the Western Australian Court of Appeal, as follows:
CACR 129 of 2018 - Appeal against conviction; and
CACR 130 of 2018 - Appeal against sentence.
I now wish to abandon both my appeal against conviction and appeal against sentence, as set out in paragraph 1 above, of my own accord and have not been pressured or influenced in this regard by my solicitors or by my Counsel to do so;
I understand all of the above and accordingly instruct my solicitors and Counsel that, having full regard to all of the forgoing, it is my intention that on 5 March 2019 my solicitors lodge a Notice of Discontinuance with the Court of Appeal in respect of each appeal.
[5]
Ms Tasic deposes that she has been unable to locate a copy of this authority signed by the appellant. However, she believes that it was received based on her indication, in an email to Mr Percy the next day, that a written authority to discontinue the appeals had been obtained by Timpano Legal.[9] The appellant's oral evidence in the appeal was that he could not recall whether he received the Authority to Abandon Appeal, but that he now had a copy.[10] However, in his affidavit of 14 February 2020 (set out below), the appellant accepts that he was given 'a sheet of paper by my legal team to sign which was to say that I agreed with the barrister to stop the appeal'. In the circumstances, we infer that the Authority to Abandon Appeal was seen, signed and returned by the appellant to Timpano Legal before the Discontinuance Notices were filed.
Also on 5 March 2019, Timpano Legal filed the Discontinuance Notices, indicating that the appellant discontinued his appeals against conviction and sentence. That day, the acting Court of Appeal Registrar issued certificates of conclusion of both criminal appeals, certifying that they had been discontinued by the appellant.
On 19 March 2019, the Court of Appeal office received a typed letter from the appellant dated 12 February 2019 and purportedly signed by the appellant on 13 March 2019. The letter indicated:
[6]
I find that I have been misrepresented and would now wish to represent myself.
After the Legal Team had prepared an appeal in 2018, and this was extended three times. Then it was decided by them, that it would be un-tenable (sic), and I believe that to be wrong.
I believe that, all the relevant evidence was not presented at my trail (sic), and this is what I wish to correct.
[7]
On 22 March 2019, the associate to the acting Court of Appeal Registrar responded to this letter, in effect indicating that the appeals had been concluded and that, if he now wished to pursue the appeals, the appellant would need to apply for leave to withdraw the Discontinuance Notices with a supporting affidavit. A copy of this letter was also sent to Timpano Legal and the Director of Public Prosecutions.
A second request from the appellant to represent himself in the appeals was received by the Court of Appeal office on 17 April 2019. A response of 18 April 2019, copied to Timpano Legal and the Director of Public Prosecutions, reiterated the need for the appellant to apply for leave to withdraw the Discontinuance Notices with a supporting affidavit.
On 26 April 2019, the Court of Appeal office received applications in the appeals to withdraw the Discontinuance Notices and supporting affidavits. The applications and affidavits were dated 24 April 2019.
There followed a series of directions hearings and documents filed in the appeals, which it is unnecessary to detail. Generally, the material relates to the merits of the appellant's convictions, and does not go to his state of mind at the time the Discontinuance Notices were filed. However, in an affidavit sworn by the appellant on 14 February 2020 in his sentence appeal, he relevantly deposed:
When first charged and convicted of this crime I wanted an appeal immediately, my then barrister who does not do appeals brought in a colleague of his to handle my appeal. This was cancelled 3 times over a period of 9 months waiting for the handing down of a new law, when this did not eventuate he decided not to proceed with it. I was given a sheet of paper by my legal team to sign which was to say that I agreed with the barrister to stop the appeal.
Unbeknown to myself I was not informed that by doing this I would be stopping all appeals, even that my next step was to mount my own appeal and thereby represent myself.
An affidavit received from [Ms Tasic] on the subject of filing notices of discontinuance states that I had abandoned my appeal, as before I believed that all I was doing was releasing Timpano Legal from their obligations to my case as I was short of funds and also had doubts as to whether or not I was being listened too (sic) regarding my trial and the appeal as there was a lack of communication and matters of concern on my behalf were ignored, forgotten about or basically left out and not followed.
In her evidence, Ms Tasic said that she could not recall telling the appellant that the effect of filing notice of discontinuances was that he could not subsequently continue with the appeals.[11]
[8]
It is established that this Court may permit the withdrawal of a discontinuance notice that is a nullity or, where the notice is not a nullity, in the exercise of its discretionary power pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA) (CAA). In Shah v The Queen,[12] this court distilled the following principles from its earlier decision in Ponnambalam v The State of Western Australia:[13]
[9]
(1) An appeal is solely a creature of statute. Save for limited exceptions (which were inapplicable in Ponnambalam and to the present case), there is nothing in the text, context or purpose of the CAA which provides this court with power to re-open an appeal in which the merits were considered and determined and the order of the court, pursuant to that determination, has been perfected.
(2) The CAA provides for but one appeal (with leave) and an appellant is not entitled to commence multiple appeals from the same decision.
(3) Prior to the commencement of the CAA (and the Rules), under the former legislative regimes applicable to criminal appeals, where an appellant filed a notice of abandonment or a notice of discontinuance, an appeal was deemed or taken to be dismissed.
(4) Under the current legislative regime, r 59 of the Rules permits an appellant to discontinue an appeal by filing and serving a form 16 (a discontinuance notice). Rule 62 of the Rules provides that, when an appeal is concluded, the registrar must issue a certificate of conclusion (form 17) which is the formal record of the Court of Appeal and forms part of the record of the Supreme Court. The term 'concluded' is defined in the Rules to mean, in a Court of Appeal matter, 'decided, dismissed or discontinued'. In contrast to the previous legislative regime, there is no express provision in the CAA or the Rules which provides that the filing of a discontinuance notice is a deemed dismissal of the appeal.
(5) Under the previous legislative regimes, this court's predecessor, the Court of Criminal Appeal, in Bridges v The Queen, following the decision of the Court of Appeal of England and Wales in R v Medway, recognised that it had the power to grant leave to withdraw a notice of abandonment if satisfied that it was a nullity, but rejected the existence of a discretion to allow a notice of abandonment to be withdrawn.
(6) A notice of abandonment was a nullity if the abandonment was not as a result of a deliberate and informed decision by the appellant.
(7) It is, at least, implicit from the reasons in Ponnambalam that the nullity doctrine which existed under the previous legislative regimes remains under the CAA and the Rules.
(8) Further, in the absence of a provision in the CAA or the Rules to the effect that a discontinued appeal is taken to have been dismissed and where:
[10]
(a) the discontinuance notice is not a nullity;
(b) there has been no determination of the appeal on the merits; and
(c) the appeal has been concluded by the appellant filing the discontinuance notice and not by court order,
[11]
this court has the discretionary power to permit the withdrawal of the discontinuance notice in an appeal by reason of s 40(1)(l) of the CAA, which allows this court to exercise any power that the Supreme Court may exercise in a civil case. In Ponnambalam, the Court noted that the Supreme Court has the power to permit a plaintiff in a civil action, at first instance, to withdraw a notice of discontinuance, there having been no determination on the merits.
(9) The exercise of the discretionary power to permit an appellant to withdraw a discontinuance notice is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If there has been a significant delay after the discontinuance, the appellant must establish that a miscarriage of justice would occur if the applicant was not permitted to withdraw the discontinuance notice.
(citations omitted)
[12]
The court in Shah also referred to the following summary of Ipp J in Bridges v The Queen:[14]
[13]
To summarise, it is the essence of a null notice of abandonment that it was executed or served by the applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.
[14]
As is illustrated by the decision of the court in Johnson v The Queen[16] (one of the cases to which Ipp J referred[17]), an appellant may misunderstand the nature or effect of a discontinuance notice for these purposes when he or she signs and files it under the misapprehension that there was a right to reinstate the appeal later.
In Bridges, Ipp J went on to explain that a notice of abandonment filed on the basis of legal advice as to the prospects of the appeal is not a nullity, even if that advice is mistaken.[18]
[15]
The appellant in Shah filed a discontinuance notice in the belief that he could continue his appeal at a later date, once he had gathered together sufficient funds to instruct lawyers to act on his behalf. It did not appear that Mr Shah filed the discontinuance notice because he had been given legal advice or believed that his appeal against conviction was unlikely to succeed. He misapprehended the effect of the discontinuance notice in that he did not appreciate that, by filing the notice, his appeal against conviction was concluded and that he could not, by filing the notice, put a hold on his appeal or file the appeal notice again, when he had the money to afford legal representation. The court held that, by reason of that misunderstanding, the discontinuance notice was a nullity and did not have the legal effect of bringing the appeal to an end.[19]
[16]
The appellant's affidavit of 14 February 2020 is not clearly expressed. However, it conveys that, at the time he signed the Authority to Abandon Appeal, the appellant intended to pursue appeals on his own and without legal assistance, and did not appreciate that filing Discontinuance Notices would prevent him from doing so. He maintained that position in his evidence before this court.
The appellant's conduct shortly after the appeals were discontinued is consistent with that understanding. The appeals were discontinued on 5 March 2019. On 13 March 2019, the appellant signed a letter to the Court of Appeal office, which indicated that he wanted to represent himself in the appeals. When advised on 22 March 2019 and 18 April 2019 that he needed to seek leave to withdraw the Discontinuance Notices, the appellant filed applications and supporting affidavits on 26 April 2019.
It is also significant that Ms Tasic does not recall advising the appellant that the effect of filing the Discontinuance Notices was that the appellant could not subsequently continue with the appeals. We infer that this advice was not given. The terms of the Authority to Abandon Appeal were not such as to clearly indicate to the appellant, who is not legally trained and does not appear to be well-educated, that he could not subsequently prosecute appeals against his convictions and sentences if Discontinuance Notices were filed.
We do not accept the appellant's submissions to the effect that he did not understand that he was bringing the appeals to an end by filing the Discontinuance Notices, or that he did not intend to discontinue the appeals. Ms Tasic's unchallenged account indicates that the appellant wanted to stop the appeals, and the Authority to Abandon Appeals made it clear that was what he was doing. The appellant knew that he was bringing the appeals on the grounds prepared by his solicitors and counsel to an end. But that is not to say that the appellant properly understood the effect of a discontinuance notice.
However, as noted, the appellant's stated understanding of the effect of filing Discontinuance Notices is consistent with his conduct very shortly thereafter and what he was told by his solicitors. Further, it is not inconsistent with the terms of the signed Authority to Abandon Appeal. Counsel for the State did not, in cross-examining the appellant on his affidavits, put to the appellant that he did not have the understanding deposed to in the affidavit of 14 February 2020. In those circumstances we accept the appellant's evidence to the effect that, at the time of filing the Discontinuance Notices, he intended to progress appeals against his convictions and sentences himself, and did not understand that the proposed Discontinuance Notices would prevent him from doing so. Whatever the appellant's understanding of the mechanism for doing so, we are satisfied that, when giving instructions to file the Discontinuance Notices, the appellant intended to progress appeals on his own and did not appreciate that filing the notices would prevent him from doing so.
In our view, that misunderstanding as to the effect of the Discontinuance Notices means that the notices were nullities, within the meaning of the above authorities, and so did not have the legal effect of bringing the appeals to an end. It is true that the appellant had received legal advice that the appeals were unlikely to succeed. Acting on that legal advice would not make the Discontinuance Notices nullities, even if the advice was mistaken. But the fact that legal advice was received does not preclude the conclusion that the appellant misunderstood the effect of the notices in that he did not appreciate that filing them would preclude him from prosecuting the appeals himself.
The State did not contend that this court had or should exercise any discretionary power to refuse to set aside the Discontinuance Notices if it concluded that they were nullities. We doubt that such a discretion exists. However, as in Shah, it is unnecessary to reach any conclusion as to the existence of such a power. We would not exercise any such discretion in the present circumstances. The appellant has filed a large volume of material, much of which is difficult to follow, seeking to challenge his convictions and sentences. It is appropriate for the appellant to be given an opportunity to amend his appellant's cases and distil his argument into succinct grounds of appeal and supporting submissions in relation to each grounds. That will facilitate the determination of the appeals on their merits.
As we have found the Discontinuance Notices to be nullities, it is unnecessary to consider the exercise of this court's discretionary power pursuant to s 40(1)(l) to set aside notices which are not nullities.
Counsel for the State objected to the admissibility of various paragraphs of the appellant's affidavits sworn 24 April 2019 and 31 May 2019.[20] It has proved unnecessary to consider those affidavits, which appear to be directed to the merits of the appeals, in determining whether leave to withdraw the Discontinuance Notices should be granted. While those objections appear to be well made, it is unnecessary to resolve them. There was no objection to the appellant's affidavit sworn 14 February 2020, on which we have relied.
[17]
For the above reasons, we would make the following orders in each appeal:
[18]
(1) The appellant have leave to withdraw his Discontinuance Notice filed on 5 March 2019.
[19]
(2) The Certificate of Conclusion of Criminal Appeal dated 5 March 2019 be set aside.
[20]
(3) The appellant is to file an Amended Appellant's Case by 4 pm on 18 June 2020.
[21]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[22]
Research Orderly to the Honourable Justice Mitchell