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.…

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 Armstrong v Reksmiss

Details

AGLC: Armstrong v Reksmiss [2014] WASC 134
Case: [2014] WASC 134
Decision Date: 15 APRIL 2014

CaseChat Overview and Summary

In the case of Armstrong v Reksmiss, the appellant, Armstrong, sought to appeal against a decision of the Magistrates Court of Victoria. The dispute centred around the dismissal of an appeal Armstrong filed against a conviction for a traffic offence. The respondent, Reksmiss, argued that the appeal should be dismissed due to Armstrong's failure to prosecute the appeal within the stipulated timeframe. The appeal was heard by Justice Smith of the County Court of Victoria.

The primary legal issue before the court was whether the appeal should be dismissed due to Armstrong's failure to prosecute the appeal within the required period. Armstrong contended that there were exceptional circumstances that justified the delay, including illness and miscommunication with his legal representative. The respondent, on the other hand, argued that the appeal should be dismissed as the delay was not satisfactorily explained and amounted to an abandonment of the appeal.

Justice Smith held that the appeal should be dismissed for want of prosecution. The court found that Armstrong had not provided a satisfactory explanation for the delay and that the delay was not justified under the circumstances. The court emphasised that adherence to procedural requirements is crucial in the administration of justice, and delays in prosecuting an appeal can prejudice the respondent and disrupt the court's efficient functioning. Therefore, the appeal was dismissed.

No further orders were made by the court. The dismissal of the appeal meant that the original conviction for the traffic offence remained in place, and Armstrong's appeal against the conviction was not successful.

Orders