Bartlett v Commonwealth Director of Public Prosecutions
[2013] WASCA 223
•27 SEPTEMBER 2013
BARTLETT -v- COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2013] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 223 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:46/2013 | 23 JULY 2013 | |
| Coram: | McLURE P PULLIN JA MAZZA JA | 27/09/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Appellants pay the respondents' costs of the appeal, including the strike-out application, on a party/party basis, to be taxed | ||
| B | |||
| PDF Version |
| Parties: | PETER MERVYN BARTLETT RONALD GEORGE SAYERS COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
Catchwords: | Jurisdiction Application for leave to appeal from decision setting aside a summons to produce documents Whether appeal incompetent Rights of appeal of parties in criminal proceedings Whether appeal rights are exhaustively and exclusively covered by the Criminal Appeals Act 2004 (WA) Costs Indemnity costs Whether arguable case on jurisdiction Whether evidentiary basis for adverse inference as to motives for bringing the appeal |
Legislation: | Australian Crime Commission Act 2002 (Cth) Crimes Act 1914 (Cth), s 4G Criminal Appeals Act 2004 (WA), s 4(1), pt 3, s 23, s 24, s 26 Criminal Code 1995 (Cth), s 135.4(3) Criminal Procedure Act 2004 (WA), s 3, s 98, s 159, s 166 Criminal Procedure Rules 2005 (Cth), r 38 Director of Public Prosecutions Act 1983 (Cth), s 9 Judiciary Act 1903 (Cth), s 68, s 69(2A) |
Case References: | Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 Carter v Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993) Christianos v Young (1990) 3 WAR 303 Connell v The Queen [No 5] (1993) 10 WAR 424 Duke v The Queen [1999] WASCA 215 Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447 R v Seller; R v McCarthy [2013] NSWCCA 42 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) X7 v Australian Crime Commission [2013] HCA 29 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARTLETT -v- COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2013] WASCA 223 CORAM : McLURE P
- PULLIN JA
MAZZA JA
- First Appellant
RONALD GEORGE SAYERS
Second Appellant
AND
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Catchwords:
Jurisdiction - Application for leave to appeal from decision setting aside a summons to produce documents - Whether appeal incompetent - Rights of appeal of parties in criminal proceedings - Whether appeal rights are exhaustively and exclusively covered by the Criminal Appeals Act 2004 (WA)
Costs - Indemnity costs - Whether arguable case on jurisdiction - Whether evidentiary basis for adverse inference as to motives for bringing the appeal
Legislation:
Australian Crime Commission Act 2002 (Cth)
Crimes Act 1914 (Cth), s 4G
Criminal Appeals Act 2004 (WA), s 4(1), pt 3, s 23, s 24, s 26
Criminal Code 1995 (Cth), s 135.4(3)
Criminal Procedure Act 2004 (WA), s 3, s 98, s 159, s 166
Criminal Procedure Rules 2005 (Cth), r 38
Director of Public Prosecutions Act 1983 (Cth), s 9
Judiciary Act 1903 (Cth), s 68, s 69(2A)
Result:
Appeal dismissed
Appellants pay the respondents' costs of the appeal, including the strike-out application, on a party/party basis, to be taxed
Category: B
Representation:
Counsel:
First Appellant : Mr C Boyce & Mr B Luscombe
Second Appellant : Mr C Boyce & Mr B Luscombe
Respondent : Mr P Roberts SC & Mr S M Mullins
Solicitors:
First Appellant : Clifford Chance
Second Appellant : Clifford Chance
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638
Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
Carter v Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993)
Christianos v Young (1990) 3 WAR 303
Connell v The Queen [No 5] (1993) 10 WAR 424
Duke v The Queen [1999] WASCA 215
Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447
R v Seller; R v McCarthy [2013] NSWCCA 42
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
X7 v Australian Crime Commission [2013] HCA 29
1 REASONS OF THE COURT: The appellants applied for leave to appeal from the decision of EM Heenan J made on 16 April 2013 setting aside a summons to produce documents directed to the Commonwealth Director of Public Prosecutions (the CDPP) (the Summons). The respondent applied to strike out the appeal as incompetent.
2 At the conclusion of the hearing on 23 July 2013, this court ordered that the appeal be dismissed as incompetent and that the appellants pay the respondent's costs of the appeal, including the strike-out application, to be taxed. These are the reasons of the court.
3 The appellants are the second and third accused in a criminal prosecution on indictment INS 107 of 2012 in the Supreme Court of Western Australia (the criminal proceedings). The prosecution against each accused is for an offence of conspiring with another with the intention of dishonestly causing a loss to a Commonwealth entity contrary to s 135.4(3) of the Criminal Code 1995 (Cth). The offences are indictable offences against the laws of the Commonwealth (Crimes Act 1914 (Cth), s 4G) and are being prosecuted by and in the name of the CDPP (Director of Public Prosecutions Act 1983 (Cth), s 9; Judiciary Act 1903 (Cth), s 69(2A)).
4 In the criminal proceedings, this court is exercising federal jurisdiction pursuant to s 68 of the Judiciary Act. Section 68(1) relevantly provides that the laws of a State respecting the procedure for trial and conviction on indictment and the hearing and determination of appeals arising out of any such trial or conviction shall apply and be applied as far as they are applicable to persons who are charged with offences against the laws of the Commonwealth. Section 68(2) relevantly provides that the several courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the laws of the State, and with respect to the hearing and determination of appeals arising out of any such trial or conviction, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. Thus, this court's appellate jurisdiction with respect to persons charged with or convicted of Commonwealth indictable offences is the same as its appellate jurisdiction with respect to persons charged with or convicted of State indictable offences. See Peel v The Queen (1971) 125 CLR 447.
5 Prior to being charged with any offence, the appellants were compulsorily examined by the Australian Crime Commission (ACC) under the Australian Crime Commission Act 2002 (Cth). The compulsory examinations were on matters relating to, and connected with, the offences which became the subject of the criminal proceedings.
6 The appellants applied for a permanent stay of the criminal proceedings. The basis for the stay application is that they have been denied their right to a fair trial because the ACC has provided to the CDPP evidence compulsorily provided by the appellants to the ACC. As to which, see R v Seller; R v McCarthy [2013] NSWCCA 42; X7 v Australian Crime Commission [2013] HCA 29.
7 The Summons was issued at the request of the appellants so as to further the evidential basis for their application for a permanent stay which had not been finally determined at the time of the hearing of the appeal. The Summons was issued under the Criminal Procedure Act 2004 (WA), s 159 and the Criminal Procedure Rules 2005 (WA), r 38.
8 The CDPP applied to cancel the Summons under s 166 of the Criminal Procedure Act which relevantly provides:
(1) On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it thinks fit.
9 This court has held that the Criminal Appeals Act 2004 (WA) (CAA) exhaustively and exclusively provides for the rights of appeal of parties to criminal proceedings in relation to offences to which it applies: Allbeury v Corruption and Crime Commission (2012) 42 WAR 425 [16]; Australian Crime Commission v Marrapodi (2012) 42 WAR 351 [27]. It is clear that Part 3 of the CAA exhaustively and exclusively provides for the rights of appeal of parties to criminal proceedings in relation to a charge of an indictable offence.
10 Unless a contrary intention appears, the words and expressions in the CAAhave the same definitions as in the Criminal Procedure Act: CAA, s 4(1). The expression 'indictable offence' is defined in s 3 of the Criminal Procedure Act to mean a crime or any other offence described by a written law as an indictable offence. The appellants are charged with an indictable offence against the laws of the Commonwealth. Part 3 of the CAA applies by virtue of s 68(1) of the Judiciary Act.
11 Unlike other jurisdictions in the federation, in this State there is no general right of appeal (with leave) from interlocutory decisions in criminal proceedings to which the CAA applies. The public policy justification for that position is the need to avoid fragmentation and delay in the determination of criminal proceedings: Christianos v Young (1990) 3 WAR 303, 307; Duke v The Queen [1999] WASCA 215. There is however a broad power for a trial judge to refer a matter of law to this court: Criminal Procedure Act, s 98.
12 The only interlocutory appeal in criminal proceedings available to an accused charged with an indictable offence is an appeal from a refusal to order that there be a separate trial of any charges or a separate trial of any of the accused: CAA, s 26(1)(b) and s 26(3)(b). In all other circumstances, an accused charged with an indictable offence is confined to challenging the correctness of an interlocutory decision in any appeal against conviction.
13 We should make it clear that the characterisation of a decision as interlocutory or otherwise is not determinative. The position is that, with the exceptions in s 26 of the CAA, an accused charged with an indictable offence has no rights of appeal. His rights of appeal only arise once his status has changed from accused to offender. An offender convicted of an offence on indictment has the rights of appeal provided for in s 23 of the CAA.
14 The appeal rights of the State as a party to criminal proceedings for an indictable offence are conferred on the prosecutor and are wider than the appeal rights of an accused: CAA, s 24(2), s 26(1)(a). The prosecutor in a superior court is defined in the Criminal Procedure Act to mean, relevantly, the authorised officer who commenced the prosecution. Section 68(2) of the Judiciary Act, when applied to s 24 and s 26 of the CAA, has the effect of conferring a right of appeal on the Attorney-General of the Commonwealth, which right is also vested in the CDPP under s 9(7) of the Director of Public Prosecutions Act: Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 [4]. The prosecutor in criminal proceedings for an indictable offence is in effect the privy of the State or Commonwealth Crown, as the case may be.
15 The court in Marrapodi held (McLure P, Martin CJ agreeing) that the CAA does not cover the field in relation to the appeal rights of a non-party to criminal proceedings, in that case a non-party recipient of a summons to produce documents. The respondent challenged the correctness of that conclusion. However, it is unnecessary to determine that issue because Marrapodi is against the appellants. The majority said:
The [CAA] covers the field in relation to appeals from interlocutory and final decisions in criminal proceedings to which it applies. Generally, a party to a criminal proceeding has no right of appeal from an interlocutory decision unless and until there has been a conviction [27].
16 In this case, the appellants are parties to the criminal proceedings; as a party, the appellants' rights of appeal in respect of decisions made in the course and for the purpose of the criminal proceedings are exhaustively and exclusively covered by the CAA; and there is no right of appeal in the CAA against the decision under challenge except in the course of any appeal against conviction. Thus the appeal is incompetent.
17 The appellants relied on a number of cases decided prior to the commencement of the CAA, including Connell v The Queen [No 5] (1993) 10 WAR 424; Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159; and Carter v Managing Partner, Northmore Hale Davy & Leake (Unreported, WASC, Library No 930375, 15 July 1993). Those cases were decided in a different statutory context. Moreover, the courts in those cases were prepared to assume, without deciding, that the appeals were competent.
18 The respondent sought indemnity costs, claiming that 'it was plain and obvious' that this court had no jurisdiction to entertain the appeal and asserting that the appellants were motivated by a desire to 'stymie' the determination of the stay application. The principles applicable to the award of indemnity costs are stated in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. They are well known and do not require repetition. Having regard to the state of the authorities in this jurisdiction, it cannot be said that the appellants' case on jurisdiction was unarguable. Moreover, there was no proper evidentiary foundation for an adverse inference as to the appellants' motives in bringing the appeal. An award of costs on a party/party basis was the only appropriate order.
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