Berry v The State of Western Australia
[2008] WASCA 9
•17 JANUARY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BERRY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 9
CORAM: WHEELER JA
HEARD: 17 DECEMBER 2007
DELIVERED : 17 JANUARY 2008
FILE NO/S: CACR 121 of 2007
BETWEEN: JOSEPH WUNNAMURRA BERRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 122 of 2007
BETWEEN :SETH MEADOWS BERRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :SJA 1052 of 2007, SJA 1053 of 2007
Catchwords:
Stay of prosecution - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 76
Weapons Act 1999 (WA)
Result:
Applications dismissed
Appeals dismissed
Category: B
Representation:
CACR 121 of 2007
Counsel:
Appellant: In person
Respondent: Mr J Mactaggart
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
CACR 122 of 2007
Counsel:
Appellant: In person
Respondent: Mr J Mactaggart
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jago v District Court of New South Wales (1989) 168 CLR 23
WHEELER JA: These are applications by Mr Joseph Berry and Mr Seth Berry for leave to appeal from the decision of McKechnie J dismissing an application for leave to appeal from a decision of a magistrate. The decision of the magistrate was that the various applications made for a stay of proceedings in respect of charges against each of the two appellants pursuant to s 76 of the Criminal Procedure Act 2004 (WA) should be dismissed.
The grounds of appeal from McKechnie J appear to fall into two categories. There are assertions that, in effect, his Honour has not properly applied the Criminal Procedure Act 2004. There are also assertions that certain admissions have been made, or that matters have not been contested, by the prosecution.
As to the latter category, it is claimed that the prosecution has not contested the claim that none of the charges against the appellants are "based in law or fact" and that the prosecution has admitted that the charges are "convoluted with an unlawful search and seizure". Precisely where these admissions, or failures to contest claims of the appellants, are to be found, was not the subject of submission before me. However, I have read the transcript of hearing before the magistrate, the transcript of hearing before McKechnie J, and all the various materials filed on behalf of the appellants. I do not find in them any admission that any of the offences alleged to have occurred on 13 April 2007, the subject of complaints against the appellants, lack a proper foundation. Those offences are alleged to be offences against the Firearms Act 1973 (WA) and the Weapons Act 1999 (WA). In addition, there is an allegation of a breach of a bail undertaking, and I do not find any such admission about that matter.
The detail of the underlying facts alleged against the appellants, for reasons which will appear, is irrelevant. Further, I do not find in any of the materials to which I have referred an admission that there had been an unlawful search and seizure or, if there had, that such search and seizure in some way infected the complaints against the appellants.
Turning to the grounds which allege that there was either no application, or a wrong application, of the Criminal Procedure Act 2004, I set out very briefly the matters relied upon before the magistrate, which were, of course, the subject of the application to McKechnie J.
I should begin by noting that it is not easy to discern from any of the materials the precise basis of the appellants' claims that the prosecutions, or any part of them, constitute an abuse of process. The written materials before me do not set out the legal test for an abuse of process, or identify with particularity the basis upon which these proceedings are said to be an abuse. That is, it is not clear whether it is suggested that there is some bad faith, or that there is some reason why a fair trial cannot be had (eg, loss or destruction of evidence), or whether the proceedings are said to be in some other way oppressive (see generally Jago v District Court of New South Wales (1989) 168 CLR 23). Nor do the various materials collected together in the appellants' documents contain any identification of what are said to be the particular relevant events which ground the application. Rather, there is an indiscriminate provision of materials, the legal relevance of much of which appears to be either negligible or non‑existent. By way of example, I mention that an affidavit prepared by Mr Seth Berry, the purpose of which on its cover sheet is described as "[a]dmission of correspondence relevant to appeal" has annexed to it correspondence concerning a contractual dispute between Mr Seth Berry and a firearms dealer about the cancellation of an order for a firearm, and with the Albany Pistol Club concerning an alleged non‑return of a key and a dispute over membership fees. Neither of these entities is involved in the prosecution of the appellants and these disputes appear to be entirely irrelevant to the questions which arise on an application for a stay.
It can be seen from the correspondence which the appellants have engaged in with or about various officers of the police force, that the appellants harbour a sincere conviction that the police, or some members of the police force, have singled them out for investigation and prosecution for reasons which are not well‑founded as a matter of fact. However, that subjective conviction on the part of the appellants is not sufficient to ground a stay.
The oral submissions made by or on behalf of the appellants provide some clues to the basis of the application. There, too, there was some tendency for the appellants to be preoccupied with what appeared to be irrelevant side issues. For example, when Mrs Berry was first asked to address the magistrate, in relation to Joseph's stay application she began by saying:
Well, I guess one of the main reasons from the point of view of the family of asking for the prosecution to be stayed is - really, the ... two main reasons are - and with respect to Joseph's charges, I never signed his original bail undertaking. The charges on that, two of them, were dropped and another one was put in the next day. Now, the new charges were not served and I have got a number of issues around one of those charges that was dropped and quite apart from that ‑ ‑ ‑ ' (ts 3)
Unfortunately, "the two main reasons" were never articulated, once Mrs Berry had become distracted by the charges which had been dropped. However, Mrs Berry did refer to the following matters:
•"[T]his is just I guess on the periphery of a whole disorganised and chaotic procedure initiated by the police"'
•the police action was "not grounded in law";
•the police action was "not grounded in any serious concern for public safety";
•the other "major" point concerned the seizure of property following a police search; and
•there was also a concern that the statement of material facts was, so far as the appellants were concerned, incorrect.
The oral submissions of Mr Seth Berry do not appear to add anything of significance to the submissions made by his mother on Joseph's behalf. He spoke to a document which he said dealt with "all the things that I and my mother and my brother believe have, you know, been done totally irrationally and with no basis whatsoever".
Dealing with those issues one by one, it is plain that a general complaint of "disorganised and chaotic procedure" is not one which can be sensibly dealt with. It would be necessary to demonstrate how the allegedly chaotic procedures had the potential to impact upon the fairness of the trial. The same comment could be made in relation to the allegation that some unidentified procedures had not been "grounded in law". If it was intended to assert that the complaints laid against the appellants had no foundation in law, that, of course, would be one of the very questions which could and should be determined by a trial.
So far as the allegation that the police action is not "grounded in any serious concern for public safety" is concerned, there are a number of observations to be made. In the absence of bad faith, the motivation for a prosecution is irrelevant. The question raised by the prosecution is whether an offence has been committed. Whether an individual police officer does or does not believe that the commission of an offence, or the facts surrounding an offence, gives rise to any concern for public safety - let alone a serious concern - is not to the point. The duty of the police is to investigate and prosecute breaches of relevant legislation. It is the existence of, and enforcement of, the legislation which, in a broad sense, ensures public safety.
So far as the seizure of property is concerned, it appears that the explanation given to the appellants is that the property, or some of it, is required as exhibits in the prosecution of the appellants. Once the prosecution has been heard and determined, appropriate orders regarding that property can be made. So far as the appellants are concerned, if the charges are without factual foundation and the police are not entitled to retain the property, the sooner the prosecutions are heard and determined the better.
Finally, so far as any factual disputes between the police and the appellants are concerned about the circumstances of the alleged offences, these are issues which can only be determined at a trial. That is the purpose of a trial.
Against that background, I turn to the magistrate's determination of the stay application, and the reasons which his Honour gave. He summarised the law involving abuse of process in these terms:
For there to be an abuse of process there must be a fundamental defect which is necessarily unfair to the accused. The power to prevent an abuse of process is derived from the public interest. A stay is only exercised in exceptional cases and may contain such things as unfairness to the accused, bad faith and oppression. The applicant seeking a permanent stay, indeed, bears a heavy onus to establish it ... (ts 15 ‑ 16)
That seems to me to be a perfectly adequate summary of law for the purposes of the application before his Honour. Broadly, then, his Honour formed the view that the various complaints raised by the appellants were either matters which should be determined at the trial of the charges against the appellants or, in some cases were "matters for another forum". With respect, it is my view that the learned magistrate reached the only view open to him on the materials which were placed before him.
It follows that McKechnie J was correct in determining that the application for leave to appeal from that decision had no prospect of success. Similarly, the proposed appeal from McKechnie J has not only no reasonable prospect of success but, so far as I can discern from the materials before me, no prospect of success whatever. I would therefore dismiss the applications of each appellant, and dismiss their appeals.
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