Agapis v Birmingham DCJ - [2013] WASC 329

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: AGAPIS -v- BIRMINGHAM DCJ [2013] WASC 329

CORAM: McKECHNIE J

HEARD: 29 AUGUST 2013

DELIVERED : 29 AUGUST 2013

FILE NO/S: CIV 2139 of 2013

BETWEEN: RAOUL AGAPIS
Applicant
AND
RONALD EDWARD BIRMINGHAM DCJ
First Respondent
ADAM GRIFFIN
Second Respondent
LAUREN PLUMMER
Third Respondent
JASON JOSEPH MERCER
Fourth Respondent
JASON PAUL CAMP
Fifth Respondent

Catchwords:

Courts and judges - Prerogative relief - Whether available in respect of District Court - Abuse of process - Collateral attack on conviction

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent          :     No appearance

Solicitors:

Applicant:     In person
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Fifth Respondent          :     No appearance

Case(s) referred to in judgment(s):

Agapis v The State of Western Australia [2012] WASCA 132
Craig v State of South Australia (1995) 184 CLR 163
Day v The Queen (1984) 153 CLR 475
Hunter v Chief Constable of West Midlands Police (1982) AC 529
Re Judge Ackland; Ex parte Love (Unreported, SCWA, Appeal 139/89, Library No 8362, File No 1982/1988, 2 August 1988)
Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50
Reichel v Magrath (1889) 14 App Cas 665

McKECHNIE J:

The background

The applicant was charged:
On 18 September 2010 at Kallaroo Raoul Agapis, entered or was in the place of Adam Griffin without his consent, with intent to commit an offence therein
And that Raoul Agapis threatened to kill Adam Griffin and Lauren Plummer
And that immediately before the commission of the offence Raoul Agapis knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation
Between 10 and 13 May 2011 the applicant stood trial before Birmingham DCJ and a jury. He was convicted as charged except for the pleaded circumstance of aggravation of threat to kill which the jury found not proven. On 31 August 2011 he was sentenced to 1 year and 3 months' imprisonment which was suspended for 2 years.
The applicant appealed against his conviction unsuccessfully: Agapis v The State of Western Australia [2012] WASCA 132.

Why this matter comes for decision

The applicant has now applied for judicial review and seeks a writ of certiorari/mandamus and a declaration in respect of the decision of Birmingham DCJ. The grounds for the application are:
1.Gross Miscarriage of Justice based on the Trial Judge's Misdirection to the Jury renders the Verdict null and void (the Misdirection to the Jury).
2.The Lack of Jurisdiction of the Trial Judge and Jury on the grounds of Errors in law and Errors in fact, renders the Verdict null and void.
3.The Denial of Justice to the Applicant in the Trial process or the Lack of Procedural Fairness renders the Verdict…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agapis v Birmingham DCJ

Details

AGLC: Agapis v Birmingham DCJ [2013] WASC 329
Case: [2013] WASC 329
Decision Date: 29 AUGUST 2013

CaseChat Overview and Summary

In Agapis v Birmingham DCJ, the appellant sought prerogative relief against the District Court judge, challenging the judge's conduct in a prior criminal proceeding. The appeal focused on whether prerogative relief, specifically certiorari, was available to challenge the conduct of a District Court judge in a criminal matter and whether the application constituted an abuse of process or a collateral attack on a conviction. The High Court was tasked with determining the scope of prerogative relief in the context of a District Court judge's conduct and the applicability of principles governing abuse of process and collateral attacks.

The legal issues centred on the availability of prerogative relief to address the conduct of a District Court judge in criminal proceedings and the boundaries of abuse of process and collateral attacks. The court needed to assess whether the application was an attempt to undermine the finality of criminal convictions and whether it constituted an abuse of the court's process. The central question was whether the principles governing the availability of prerogative relief and the prohibition against collateral attacks applied equally to District Court judges as they did to higher courts.

The High Court held that prerogative relief, such as certiorari, was not available to challenge the conduct of a District Court judge in criminal proceedings. The court found that the application was an abuse of process and constituted a collateral attack on the appellant's criminal conviction. The principles governing the availability of prerogative relief and the prohibition against collateral attacks were deemed applicable to District Court judges. The court emphasised the importance of maintaining the finality of criminal convictions and the need to protect the integrity of the criminal justice system. Consequently, the application was dismissed.

Orders