Armstrong v Reksmiss - [2014] WASC 134

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ARMSTRONG -v- REKSMISS [2014] WASC 134

CORAM: CORBOY J

HEARD: 5 JULY, 4 OCTOBER & 7 NOVEMBER 2013, 23 JANUARY 2014

DELIVERED : 15 APRIL 2014

FILE NO/S: SJA 1153 of 2012

BETWEEN: FAYE MARIE ARMSTRONG
Appellant
AND
STEFAN RICHARD REKSMISS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :FR 9720 of 2011

Catchwords:

Appeal - Single judge appeal - Practice and procedure - Dismissal of appeal for want of prosecution

Legislation:

Criminal Appeals Act 2004 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application to dismiss appeal for want of prosecution granted

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P Yovich

Solicitors:

Appellant: In person
Respondent: Department of Commerce

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

Bilos v The State of Western Australia [2004] WASCA 94
Birkett v James [1978] AC 297
Mano v Iriks [1999] WASCA 180
Nicholson v The Queen (Unreported, WASC, Library No 980698, 7 December 1998)
R v Mickelberg (1996) 90 A Crim R 126
Reilly v Devcon Australia Pty Ltd [2006] WASC 99
Roddan v Gwilliam [2005] WASCA 209
Roddan v The Queen [2005] WASCA 87
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
The State of Western Australia v Silich [2011] WASCA 135; (2012) 43 WAR 285

CORBOY J:

The appellant's conviction

The appellant was convicted on 27 November 2012 of 17 offences under the Animal Welfare Act 2002 (WA). She was convicted in her absence under s 55 of the Criminal Procedure Act 2004 (WA).
The circumstances surrounding the appellant's conviction were that the appellant was served on 16 August 2011 with a prosecution notice alleging offences against the Animal Welfare Act. Attempts were made in October and November 2011 to personally serve the appellant with the disclosure brief (pars 4 ‑ 9 of the affidavit of Stefan Richard Reksmiss, 19 January 2012 and pars 3 ‑ 7 of the affidavit of Holly Louise Kerr, 19 January 2012).
The prosecution was mentioned in the Magistrates Court on 21 February 2012. It was ordered that the prosecution brief be served on the appellant at a specified time and place (a caravan lot at a caravan park in Mandurah). Magistrate Jones further ordered that the brief be deemed to have been served if it was left at the caravan lot should the appellant not be present at the specified time.
The respondent stated in an affidavit made on 27 February 2012 that he had attended at the caravan lot at the specified time but no‑one was present. The manager of the caravan park had agreed to hold the brief for collection. The respondent had left a voice mail message on a mobile phone advising the appellant that the brief could be collected from the manager and instructed the manager to request identification from whoever attended to collect the brief. Subsequently, the manager had contacted the respondent and advised that a female person had attended at the caravan park to collect the brief but she had refused to provide any identification (affidavit of Stephen Richard Reksmiss, 27 February 2012, pars 4 ‑ 11). Consequently, the manager had retained the brief.
The prosecution was again mentioned in the Magistrates Court on 28 February 2012. The appellant advised the Chief Magistrate that she had not been present at the caravan lot at the specified time but that a friend had subsequently attempted to collect the brief. The friend had discovered that the brief had been left with the manager of the caravan park. However, the manager had refused to hand it over without a letter from the appellant authorising its collection by the appellant's friend.
The Chief Magistrate concluded, in effect, that the respondent had sufficiently complied with the order made by Magistrate Jones for service of the brief. He noted that the brief remained with the manager of the caravan park and could be collected by the appellant: 'You can get the materials. That's enough' (28 February 2012, ts 3).
The prosecution was again mentioned before the Deputy Chief Magistrate on 29 May 2012. The appellant contended that the respondent had failed to comply with the order made by Magistrate Jones by failing to leave the brief at the caravan lot. Her Honour concluded that the question of disclosure had been considered at the previous mention and listed the prosecution for trial for six days commencing on 27 November 2012.
The appellant applied on 23 November 2012 to stay the prosecution permanently on the grounds that it constituted an abuse of process and that the respondent and 'his lawyer' had committed perjury and a contempt of court. The appellant sought, in the alternative, an adjournment of the prosecution until all disclosure documents had been received. The application was supported a document purporting to be an affidavit but which was not made under oath or by affirmation. The appellant stated in the document that she had not received the disclosure brief despite having written to the respondent in August 2012 requesting that the brief be sent to her. She also made a number of serious allegations concerning the respondent, the Department of Commerce and the RSPCA.
The appellant's application was heard on 27 November 2012 by Magistrate Bayly. His Honour refused the application and adjourned the matter for an hour to enable the appellant to review further documents that had been served by the prosecution a few days previously. The appellant did not return to the court when the trial was fixed to resume. Accordingly, his Honour proceeded under s 55 of the Criminal Procedure Act.

The appeal notice

The appellant commenced her appeal against conviction by a notice dated 18 December 2012. The notice proposed the following grounds of appeal:
1.I was denied natural justice.
2.I am waiting for the court transcript.
3.RSPCA & Dept of Commerce fraudulently lied about the service of disclosure documents.
4.RSPCA & Dept of Commerce fraudulently lied about the material facts.
5.Paul Yovich lied to the court that I was a breeder and had a puppy farm.
6.RSPCA & Dept of Commerce obtained a judgment by fraud.
7.RSPCA & Dept of Commerce are criminals. They stole 12 of my small dogs and are committing an ongoing offence day by day.
8.It is an abuse of the court's process and want of prosecution.
9.I am requesting an urgent stay of the decision because they are fraudulent liars.
10.Warrants were not signed and dated.
11.No warrant was given to me on another property.
The appellant also made an affidavit that was filed with her notice of appeal. The affidavit stated that she had been denied natural justice and had been wrongfully refused an adjournment as no disclosure documents had been served on her. She indicated that she would require an extension of time to obtain legal advice once she had obtained a copy of the transcript of the proceedings in the Magistrates Court.

The appeal chronology

The appeal was listed to be heard on 6 May 2013, with a directions hearing to be held on 23 April 2013 for the purpose of clarifying the appellant's proposed grounds of appeal. The appellant subsequently advised the court, by a letter dated 18 April 2013, that she would be unable to attend the directions hearing and the hearing of the appeal as she was unwell. She had experienced headaches, hearing difficulties, confusion and panic attacks. Her health concerns were being investigated.
The listing of the directions hearing was vacated and the parties were advised that the appeal would not be heard on 6 May 2013 but that a directions hearing would be held on that date. The appellant was further advised that the court would require a medical certificate if she wished to vacate that hearing.
The appellant wrote to the court on 3 May 2013. She referred to a number of matters in her letter but she did not indicate that she remained unwell or that she would be unable to attend the directions hearing on 6 May 2013 for any reason. However, the appellant did not attend the hearing. Rather, she transmitted a facsimile of a medical certificate during the afternoon of 6 May 2013 (that is, after the time fixed for the directions hearing). The certificate did not provide any information concerning the appellant's medical condition. It merely stated that the appellant was 'unfit for normal work' on 6 May 2013.
The appeal was relisted for hearing on 7 June 2013.
The respondent's solicitors inquired about the documents that had been filed for the purpose of the appeal by an email sent to the court on 10 May 2013. They subsequently filed copies of the prosecution brief (two volumes), transcripts of the various hearings in the Magistrates Court, applications made to the Magistrates Court and supporting affidavits and correspondence.
The appellant again wrote to the court on 20 May 2013 stating that she was unable to prepare submissions for the appeal from the disclosure brief that had been received by her on 26 April 2014. She complained that documents referred to in the index to the brief had not been received; copies of some documents could not be read; and full disclosure and discovery had not been given. She stated that she was preparing an affidavit 'detailing documents not in disclosure brief or indexed'.
A letter was sent by the court in reply requesting the appellant to advise whether the foreshadowed affidavit would be filed in advance of the hearing of the appeal and whether she intended to apply to vacate the hearing date.
On 5 June 2013, the appellant contacted the court by telephone to advise that she was unable to attend the hearing of the appeal on 7 June 2013 due to ill health. She indicated that she would provide a medical certificate. Subsequently, a certificate was received. The certificate merely stated that the appellant was unable to attend court on 7 June 2013; it did not identify the nature of the appellant's medical condition or indicate when she might be fit to attend court.
The hearing of the appeal on 7 June 2013 was vacated and the appeal was relisted for hearing on 5 July 2013.
The appellant transmitted by facsimile on the morning of 5 July 2013 a medical certificate stating that she was unfit to attend court that day. Again, the certificate did not provide details as to the appellant's medical condition or when she would be fit to attend court. The listing of the appeal was vacated and a directions hearing was listed for 14 August 2013. The appellant was advised that she could attend that directions hearing by telephone. Orders were made requiring the appellant to provide further particulars of her grounds of appeal and to file and serve an affidavit giving details of her medical condition, including any treatment that she was receiving and advice as to when she would be fit to attend court for the hearing of her appeal.
The appellant subsequently filed a document in which she stated that she was suffering from flu and persistent episodes of coughing and abscesses on her teeth. She also stated that she was suffering from migraines but that she expected to be well enough to attend court by the end of October or early November 2013.
The court wrote to the appellant following receipt of that document requesting that she provide a medical certificate and further information as to why she could not attend court until October or November 2013. On 13 August 2013, the appellant provided the court with a medical certificate which merely stated that she was unfit on that day and the following day.
The appellant did not attend the directions hearing on 14 August 2013, either in person or by telephone. The appeal was listed for hearing on 4 October 2013.
The appellant wrote to the court on 27 September 2013, stating that she had not received some correspondence from the court and claiming that she had been available to attend the directions hearing on 14 August 2013 by telephone but had not received any call. The letter confirmed, however, that she had received other correspondence from the court referring to the fact that the appeal had been listed for hearing on 4 October 2013 (a notice had earlier been sent to the appellant that advised that the appeal had been re‑listed; it was that notice that the appellant stated that she had not received).
The appellant did not attend the hearing of the appeal on 4 October 2013. The respondent applied for an order dismissing the appeal for want of prosecution. That application was listed for hearing on 7 November 2013.
On the afternoon of 4 October 2013, the appellant transmitted to the court by facsimile a medical certificate. The certificate merely stated that the appellant was receiving treatment and was unfit to attend court on 4 October 2013.
The appellant attended the hearing on 7 November 2013. The respondent accepted that the appellant should be permitted to proceed with her appeal given her appearance and the appeal was listed for hearing on 23 January 2014. The appellant indicated that she would be ready to argue the appeal on that date and that her health would permit her to be able to attend court.
The appellant did not attend for the hearing of the appeal on 23 January 2014. There was no communication with the court in advance of the hearing of the appeal that indicated that she would not attend or that she was unable to do so due to ill health. The respondent applied to have the appeal dismissed for want of prosecution.
I have concluded that the respondent's application should be allowed for the reasons that follow.

Dismissal of a criminal appeal for want of prosecution

The Court of Criminal Appeal dismissed an appeal for want of prosecution in R v Mickelberg (1996) 90 A Crim R 126. The court noted that the application by the Crown to dismiss the appeal for want of prosecution was without precedent. Malcolm CJ, with whom Steytler J agreed, held that the court had power to dismiss a criminal appeal for want of prosecution under s 697 of the Criminal Code, read with O 63 r 7 of the Rules of the Supreme Court 1971 (WA).
Section 697 of the Criminal Code provided (prior to its repeal on enactment of the Criminal Appeals Act 2004 (WA)) that the Court of Criminal Appeal might do a number of things if it was thought necessary or expedient or in the interests of justice. The section further provided, after enumerating those matters, that the court might 'exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters'. Malcolm CJ held that:
This provision, in my opinion, is sufficient to bring into play all of the powers of the Full Court in civil appeals, including the power to dismiss an appeal for want of prosecution under O 63 r 7 of the Rules of the Supreme Court 1971 (WA).
In my opinion also, these provisions equally bring into play the residual powers of the court in its inherent jurisdiction: Muto v Faul [1980] VR 26 at 27 and 31; Lewandowski v Lovell (1994) 11 WAR 124 at 137 and Hughes v Gales (1995) 14 WAR 434, in my judgment at [12], [26] (129).
His Honour further observed:
What then is the test to be applied? Counsel for the respondent has submitted that the test to be applied is that which would be applied in civil appeals; namely, the test which was most recently applied in the Full Court in Lewandowski v Lovell (1994) 11 WAR 124 at 132 ‑ 133 in the judgment of Murray J. His Honour referred to the decision of the House of Lords in Birkett v James [1978] AC 297 and applied the statement of the general principles applicable by Lord Diplock, which was in the following terms (at 318):
'A power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party (129).'
In Nicholson v The Queen (Unreported, WASC, Library No 980698, 7 December 1998), Kennedy J (with whom White and Scott JJ agreed) adopted the observations of Malcolm CJ in Mickelberg regarding the source of the court's power to strike out a criminal appeal for want of prosecution. The Court of Criminal Appeal subsequently exercised that power in Bilos v The State of Western Australia [2004] WASCA 94 and Roddan v The Queen [2005] WASCA 87.
In Bilos, the Court of Criminal Appeal observed that:
An appeal or application for leave to appeal will only be struck out or dismissed for want of prosecution in a clear case, where it appears that the appellant has no intention of progressing the matter to a final hearing and determination, or where there are other reasons to suppose the matter is without merit and the appellant has had every opportunity to put it into a state where it might be heard and determined, particularly if issues of prejudice to another party or witnesses can be advanced [8].
I have only been able to locate one case involving an application to dismiss a single judge appeal for want of prosecution following the enactment of the Criminal Appeals Act: Reilly v Devcon Australia Pty Ltd [2006] WASC 99. In that case, McKechnie J had granted leave to appeal against the dismissal of charges made under the Occupational Safety and Health Act 1984 (WA). His Honour made programming orders for the hearing of the appeal that required the appellant to lodge and serve written submissions, a chronology of events relevant to the appeal and a list of the principal authorities on which it intended to rely at the hearing of the appeal. The appellant failed to comply with that direction within the time specified. Two extensions of time were granted but the appellant remained in default of the direction. The respondent applied to strike the appeal out for want of prosecution.
McKechnie J dismissed the application, applying the principles stated by the Court of Appeal in Roddan v Gwilliam [2005] WASCA 209 and The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398. However, his Honour observed:
Clearly the delay is unexplained. The delay is significant, though measured against tardy litigation that has been excused in this court for one reason or another, was probably not inordinate. The respondent has not contributed to the delay.
This application is appropriate. The discretion to dismiss the appeal is enlivened by the appellant's continued failure without explanation to comply with [the order made for written submissions, a chronology and a list of authorities]. In the end two matters stand out as decisive. Both derive from this being a criminal prosecution. The defendant has been acquitted. The prosecution at trial is not simply the first step in a process that may include many appeals. It is a final decision. A party is entitled to the fruits of judgment and if an acquittal is put in issue by an appeal is entitled to a prompt resolution. A delay in the appeal without default by the respondent presumptively increases the prejudice necessarily suffered.
On the other hand, there is a clear public interest that the Occupational Health and Safety laws are upheld and that convictions and acquittals are attained without error. The Criminal Appeals Act imposes no restriction on prosecution appeals from the Magistrates Court. There is a clear public interest in an authoritative determination of questions of law and this appeal raises questions of mixed law and fact. The public interest represented by a prosecutor is a different interest from those of other litigants. That public interest is not easily defeated notwithstanding the unexplained, and I hope extraordinary delay in this case unless the prejudice to the respondent becomes too great a cost to allow the matter to continue.

McKechnie J gave the appellant a last chance to comply with the direction that had been made on the public interest ground identified in the passage cited above. However, there was no suggestion in his Honour's reasons that the court lacked the power to dismiss the appeal for want of prosecution.

The Criminal Appeals Act, the Criminal Procedure Rules and the Rules of the Supreme Court

Section 14 of the Criminal Appeals Act provides that the Supreme Court may do one of a number of things in deciding an appeal - they are expressly identified in s 14(1)(a) to s 14(1)(h). Section 14(1)(i) then provides that the court may make any other order that it thinks fit.
Part 4 of the Act contains provisions that are applicable to any appeal under the Act. Part 4 includes s 40. That section provides, 'for the purposes of dealing with an appeal' the court may do all or any of a number of things, including exercise any power that the Supreme Court may exercise in a civil case (s 40(1)(l)). Consequently, s 40(1)(l) is in substantially identical terms to that part of s 697 of the Criminal Code that was held by the Court of Criminal Appeal in Mickelberg to expressly confer a power on the court to dismiss a criminal appeal for want of prosecution.
Section 50 of the Criminal Appeals Act provides that, 'the Supreme Court may make rules of court prescribing any matter that is required or permitted by this Act to be prescribed, or that is necessary or convenient to be prescribed for giving effect to the purposes of the Act', including providing for a proceeding under the Act to be dismissed without a hearing if the person who commenced it 'does not conduct it in accordance with the rules of court or orders made by the court'. Part 14 of the Criminal Procedure Rules 2005 (WA) contains rules that apply to appeals and applications for leave to appeal commenced under the Criminal Appeals Act.
Rule 61(2) of the Criminal Procedure Rules provides that 'if a party who has been notified of a hearing does not attend the hearing before a judge, the judge may proceed in the party's absence'. Rule 62(1) further provides that 'if in a party's absence a judge makes an order, whether or not at a hearing, the judge may subsequently, but before the order is carried out, set aside the order and again deal with the matter that gave rise to the order'. Rule 72 provides for the discontinuance of an appeal. However, the rule does not deal with the dismissal of an appeal for want of prosecution. Consequently, there is no rule in the Criminal Procedure Rules that expressly deals with that matter.
Order 1 r 4A of the Rules of the Supreme Court provides that:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
Order 1 r 4B provides that:
Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
The effect of the case management principles set out on O 1 r 4A and r 4B was considered in the context of an application to dismiss an action for want of prosecution in The Hancock Family Memorial Foundation Ltd v Fieldhouse. Steytler P and Owen JA observed that:
The court has inherent power to prevent its processes from being abused and the corresponding power to protect their integrity once they are set in motion … The court also has inherent power to dismiss actions for gross disregard of case management orders. The rules have always prescribed time frames within which particular steps are to be taken in proceedings. Their effect is that the legal advisers for the parties are responsible for bringing cases to a reasonably expeditious conclusion. Until recently, as a general rule delay in bringing proceedings to a conclusion was only considered by the court on an application to strike out for want of prosecution. Today the position is different. The inherent jurisdiction to dismiss an action for want of prosecution is to be exercised having regard to the case flow management principles set out in the O 1 r 4A and r 4B …
The effect of O 1 r 4A is that the court takes its own positive steps to require parties to conduct litigation with proper expedition. Order 1 r 4B introduces management and supervision of litigation by the court to the extent that its resources permit in accordance with a system of positive case flow management. If a party fails to comply with case flow management orders, that party runs grave risks …
On the other hand, the courts have acknowledged that case management is not an end in itself and that the ultimate aim of the court is the attainment of justice which no principle of case management can be allowed to supplant …
These principles of case management reflect the public aspect of the notion of justice as much as they do the private interests of the litigants. The longer a case is in the system the greater the chance that it will use more than its fair share of the scarce public resource [93] ‑ [97].
In The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285, Martin CJ observed:
There is a strong public interest in the timely disposition of all criminal cases, including criminal appeals. In most cases, those who are interested in the final resolution of a criminal case are not limited to the prosecutor and the accused. In addition to the public interest in the final resolution of serious criminal cases such as this, there will often be others with a specific and identifiable interest in the timely conclusion of the proceedings. In the present case, it is reasonable to infer from the victim impact statement that was provided by the appellant's brother, that there are members of the appellant's family who have a very real interest in the closure of issues relating to the deaths of their parents and grandparents in horrific circumstances. Public resources provided to the prosecution and the court are also dissipated every time there is a late adjournment. In this sense, the interests of the parties are to be balanced with the effect of the adjournment on 'court resources and the competing claims by litigants in other cases awaiting hearing': Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane and McHugh JJ).
While these are important and weighty considerations, they will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused, or an appellant, of the opportunity to present a case which has a real prospect of success. However, this is not such a case [36] ‑ [37].
Similarly, Buss JA observed in Silich:
The court's power to grant an adjournment to an offender who is appealing against conviction is broad and flexible. The purpose of the power is to enable the court to achieve justice in the particular case. This is not, of course, confined to justice from the offender's perspective. There is a public interest in the prompt disposition of proceedings on appeal. However, the overriding consideration is whether an adjournment is necessary to ensure that the offender is given a reasonable opportunity properly to present his or her case on appeal. This is fundamental to the proper administration of justice in the criminal jurisdiction. Compare, in the different context of an application by an accused for the adjournment of a criminal trial, the observations of Hunt CJ at CL, Grove and Dunford JJ in Alexandroaia v The Queen (1995) 81 A Crim R 286, 289 and Gummow J in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [126].
In general, four factors of relevance in determining whether to grant an application for an adjournment by an offender who is appealing against conviction are these. First, the nature and extent of the delay if the adjournment is granted. Secondly, the reasons for the adjournment. Thirdly, the prejudice (if any) to the offender if the adjournment is not granted. Fourthly, the prejudice (if any) to the State or the public interest if the adjournment is granted. This is not intended to be an exhaustive statement. In a particular case, there may be other factors [111] ‑ [112].
The principles of case management for civil proceedings cannot be imported into the management of criminal appeals without acknowledging the significance of the different contexts. However, the observations of the Court of Appeal in Silich make it clear that there are competing interests in the management of a criminal appeal, including the public interest in the expeditious determination of appeals and in the efficient allocation of the court's limited resources. See also the comments of McKechnie J in Mano v Iriks [1999] WASCA 180 [15] ‑ [17].
Order 1 r 4B of the Rules of the Supreme Court does not expressly apply to the conduct of a criminal appeal. However, the rule specifies objectives for the just, efficient and economical conduct of all proceedings in this court. The fact that in Mickelberg the Court of Criminal Appeal adopted the principles applied by the House of Lords in Birkett v James indicates that those principles are not confined to the management of civil litigation (and note the reference to Sali in the reasons of the Chief Justice in Silich). The interests and concerns embodied in the principles are fundamental to the proper administration of all proceedings.
The application of the objectives in O 1 r 4B and the principles relevant to the dismissal of proceedings for want of prosecution will, of course, reflect the nature and particular circumstances of the proceedings under consideration. For example, there will be an obvious reluctance to strike out an appeal by a person who has been convicted of a criminal offence. However, that consideration must be balanced against other interests and concerns as the reasons in Silich make clear.
A particular concern in the management of criminal appeals is the possibility of a re‑trial being ordered. Inordinate delay in the prosecution of a criminal appeal may prejudice a fair trial if a further trial is ordered.

The determination of the respondent's application

The factors that were identified in Birkett v James [1978] AC 297 as justifying the dismissal of an action for want of prosecution are almost inevitably applied in circumstances where there has been failure by a party to obey an interlocutory order made by the court or a failure to expeditiously prosecute the interlocutory stages of a matter. In this instance, the respondent has applied to dismiss the appellant's appeal for want of prosecution following her failure to attend the hearing of her appeal.
In my view, there are five factors that justify dismissing the appellant's appeal for want of prosecution:
(a)the appellant has had ample opportunity to prosecute her appeal;
(b)the appellant's failure to prosecute her appeal has not been satisfactorily explained;
(c)the respondent has been prejudiced by the appellant's failure to prosecute her appeal;
(d)the administration of justice has been prejudiced by the appellant's delay in prosecuting her appeal in two respects: prejudice to a fair trial of the charges alleged against the appellant if a trial was ordered and inefficiencies in the allocation of the court's resources;
(e)the lack of apparent merit in the appellant's appeal.

The appellant's opportunity to have prosecuted her appeal

The appeal has been listed for hearing on five occasions, including the listing on 23 January 2014. The appellant did not attend the court on any of those occasions. Indeed, the only time that she appeared following the commencement of her appeal was on 7 November 2013, when the respondent's application to strike the appeal out for want of prosecution was listed for hearing.
The appellant has provided several medical certificates. However, the certificates merely certified that she was unfit to attend court on the various days that the appeal had been listed. The certificates did not identify the reason why she was unfit or provide any indication as to when the appellant would be fit to attend court. The appellant only ever provided a general description of her symptoms. That description did not include a diagnosis or any proper prognosis.
The appellant sent a letter to the court dated 5 November 2013 that attached:
(a)correspondence exchanged with the respondent regarding affidavits said to have been made by the respondent - the correspondence did not refer to any matter that would explain the delay in the prosecution of the appellant's appeal;
(b)an affidavit made by the appellant on 5 November 2013 in which she alleged that the prosecution notice had not been properly served in August 2011; that the appellant had not been served with the disclosure brief in accordance with the order made by Magistrate Jones; that the respondent had not provided the disclosure brief in response to a request made by the appellant by letter dated 22 August 2012; that the documents delivered by the respondent on 26 April 2013 were incomplete; that the Department of Commerce and the RSPCA had acted improperly or unlawfully in several respects and that there were irregularities in the way in which the respondent and others had entered the properties at which the appellant allegedly kept the dogs that were the subject of the charges made against her.
The respondent filed two affidavits in relation to the allegation that the appellant had not been served with the prosecution notice. It is not necessary to further consider that allegation - it was apparent from her appearances in the Magistrates Court that the appellant must have received the notice at some point and the proposed grounds of appeal do not appear to raise this allegation.
The appellant alleged that the disclosure brief and the materials served by the respondent in April 2013 were incomplete in numerous respects. One set of complaints concerned the fact that the appellant had been served with copy rather than original documents. Those complaints cannot explain any delay in the appeal nor are they relevant to the merits of the proposed grounds of appeal.
Other complaints concerned an alleged failure by the respondent to produce documents about particular topics. There was no evidence that the respondent held, but had not disclosed, documents relating to the nominated topics. Rather, the complaints of non‑disclosure appeared to be, in substance, demands for the respondent to produce evidence of matters that the appellant considered to be relevant. The complaints were apparently rhetorical in that their real purpose was to demonstrate that the respondent lacked evidence of the appellant's alleged wrongdoing, rather than to prove that the respondent held documents that existed and which had been suppressed. Further:
(a)Some topics about which the appellant required disclosure related to matters that were not apparently relevant to the prosecution – for example, pars 27, 28, 73 and 73 of the appellant's affidavit.
(b)Some topics related to allegations of impropriety by employees of the Department of Commerce or the RSPCA – for example, pars 37 ‑ 54 and 66 ‑ 69. Those matters were apparently irrelevant to the prosecution.
(c)Some topics related to matters that were apparently the subject of disclosure – for example, pars 25, 26, 30 ‑ 32 and 70. Whether the expert and other evidence, as disclosed, would be sufficient to sustain a finding of guilt was a matter to be determined in the trial.
(d)Some topics related to matters that may have been relevant to the prosecution but which were peculiarly within the knowledge of the appellant and about which it would be unlikely that the respondent would have had documents in his possession or power – for example, pars 29, 30.
(e)Some topics concerned proof that two of the dogs that were the subject of charges belonged to the appellant – pars 33 ‑ 37. Whether the respondent could prove that the appellant was the person in charge of those dogs was a matter to be determined in the trial (see s 5 of the Animal Welfare Act). However, there was no reason to suppose that the respondent held documents about the matters to which the appellant referred in this category of demands.
The question of whether the matters raised by the appellant in her affidavit were relevant to her proposed grounds of appeal was deferred to the hearing of the appeal. However, the affidavit did not provide any explanation as to why it had taken the appellant until early November 2013 to prepare a document itemising what she alleged were the deficiencies in the disclosure brief.
Further, the only explanation provided by the appellant for her failure to appear at the hearing of her appeal was her ill health as evidenced by the medical certificates sent to the court.

The merits of the appeal

The merits of a party's claim is a relevant factor in determining whether to strike out a proceeding for want of prosecution. However, the merits of the claim cannot be decisive having regard to the basis on which the court is asked to dismiss the proceeding – and, of course, the court is not able to make a final determination of the merits given the nature of an application. Where the proceeding sought to be dismissed is a criminal appeal, the possibility that a substantial injustice will be caused to a convicted appellant must, of course, weigh heavily in the exercise of the court's discretion.
In my view, it is strongly arguable that the appellant was not denied procedural fairness by the decision of Magistrate Bayly to not adjourn the trial of the charges alleged against her. The question of whether the disclosure brief had been served had been dealt with some time earlier by the Chief Magistrate and subsequently, the Deputy Chief Magistrate. As the Chief Magistrate had observed, there was no reason why the appellant could not have collected the disclosure brief from the manager of the caravan park once she had been advised of the need for identification and/or authorisation. Certainly, there had been ample time for the appellant to obtain and review the brief prior to the time when the trial of the charges was to commence in late November 2012.
The prosecution had been listed for trial since 29 May 2012. The trial was listed for six days – a lengthy period for a summary prosecution. The magistrate was entitled to conclude that it was not unfair to the appellant that the trial should proceed. His Honour's decision was consistent with the public interest considerations to which reference has already been made.
The appellant was charged with offences under s 19(1) of the Animal Welfare Act. That section makes it an offence to be cruel to an animal. Section 19(3) of the Act specifies various acts that constitute cruelty to an animal. The appellant was charged with having been cruel to dogs by confining the dogs in a manner that caused, or was likely to cause, unnecessary harm (s 19(3)(b)(ii)); by not providing the dogs with proper and sufficient food or water (s 19(3)(d)) and by not seeking veterinary care for one dogs (s 19(1)(h)).

I have reviewed the disclosure brief. The brief included statements from three veterinary surgeons concerning the condition of the dogs the subject of the charges. The brief also included statements from the respondent, an RSPCA inspector and two local authority officers. Their statements also contained evidence about the condition of the dogs and the circumstances in which they had been kept.
The material contained in the disclosure brief establishes that there was evidence available to the respondent to support the charges that had been laid.
The appellant's notice of appeal made various allegations about the RSPCA, the Department of Commerce and the respondent's counsel. The notice did not provide particulars of those allegations. The purpose of the directions hearings listed on 23 April and 6 May 2013 had been to give the appellant an opportunity to provide those particulars. An order that the appellant provide particulars of her grounds of appeal was eventually made but the appellant did not comply with that order.
Proposed ground 3 of the appeal obviously concerned the circumstances surrounding service of the disclosure documents. I have been unable to discern any basis for the allegation that the respondent 'lied' about service. At most, there may have been an argument as to whether there had been sufficient compliance with the order made by Magistrate Jones. That argument was resolved by the Chief Magistrate at the mention on 28 February 2012.
Proposed grounds 2 and 7 self‑evidently do not raise matters that are relevant to the decision of Magistrate Bayly or to the prosecution of the charges by the respondent. Proposed grounds 4, 5, 10 and 11 do not appear to be relevant to the decision of Magistrate Bayly to refuse to adjourn the trial and to proceed in the absence of the appellant under s 55 of the Criminal Procedure Act. They may raise matters that might have been relevant to the prosecution, but it is not possible to identify in what way without further particulars. Proposed grounds 6, 8 and 9 are expressed as conclusions rather than as allegations raising separate matters that might constitute proper grounds of appeal.
A number of the appellant's complaints about non‑disclosure related to the allegations made in the proposed grounds of appeal concerning the conduct of the Department of Commerce, the RSPCA and the respondent's counsel. Those matters did not appear to be relevant to the prosecution. There was no evidence in relation to all of the matters identified by the appellant that the respondent had not disclosed documents that existed and which were in his possession or power.

Prejudice

The respondent attended each of the hearings listed in the appeal. Submissions were prepared on his behalf and, no doubt, the appeal was got up for hearing by counsel and those responsible for instructing him on each occasion that it was listed.
Further, the appellant made very serious allegations in her notice of appeal concerning the conduct of the respondent, the Department of Commerce, RSPCA and counsel. Each of those persons and organisations had an interest in the appellant speedily prosecuting her appeal. The nature of the allegations was such that there was a public interest in the appeal being determined without undue delay.
Moreover, the appellant had been convicted in her absence pursuant to the procedure provided by s 55 of the Criminal Procedure Act. A retrial would inevitably have been ordered if she had succeeded in her appeal. The prosecution concerned events that had occurred in October 2010. That reinforced the public interest in the efficient and timely prosecution of the appeal.

Conclusion

I consider that there has been inordinate delay by the appellant in prosecuting her appeal. I do not consider that the delay has been satisfactorily explained.
I further consider that the delay has been prejudicial to the respondent and to the public interest in the speedy disposition of prosecutions and criminal appeals and in the efficient allocation of the court's resources. Finally, I do not consider the merits of the appeal are such that any injustice to the appellant outweighs the other considerations that favour dismissing her appeal for want of prosecution.