Berry v The State of Western Australia [No 2] - [2008] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BERRY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 77

CORAM: BUSS JA
MILLER JA

HEARD: 19 MARCH 2008

DELIVERED : 8 APRIL 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  :WHEELER JA
Citation  :BERRY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 9
File No  :CACR 121 of 2007, CACR 122 of 2007

Catchwords:

Leave to appeal - Review - Decision of single judge - Whether stay of prosecution should have been granted by magistrate - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 51(1)
Criminal Appeals Act 2004 (WA), s 27(1)
Criminal Procedure Act 2004 (WA), s 76
Firearms Act 1973 (WA) , s 8, s 19, s 23(3)(a), s 30(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(5)(c)(iii), r 32(6), r 43(2)(c)
Supreme Court Act 1935 (WA), s 61(3)
Weapons Act 1999 (WA), s 6(1)(b), s 7(1)

Result:

Applications dismissed

Category: B

Representation:

CACR 121 of 2007

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

CACR 122 of 2007

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Jago v The District Court of New South Wales (1989) 168 CLR 23
Keating v The State of Western Australia [2007] WASCA 98

BUSS JA: I agree with Miller JA.
MILLER JA: The first appellant was charged in the Children's Court at Albany and the second appellant in the Magistrates Court at Albany with a number of offences which alleged breach of firearms and weapons legislation. The first appellant was charged with offences of (1) Carrying a firearm, namely, a 9 mm self‑loading Glock handgun without being the holder of a licence or permit under the Firearms Act 1973 (WA) and not being a person to whom s 8 of the Act applied (Firearms Act s 23(3)(a); (2) Not being a person exempted under the provisions of s 8 of the Firearms Act knowingly possessing ammunition, namely, 9 mm bullets without being the holder of the requisite licence or permit for such ammunition (Firearms Act s 19(1)); (3) Not being a person exempted under s 10 of the Weapons Act 1999 (WA) without lawful excuse possessing a controlled weapon (Weapons Act s 7(1)). The first appellant was also charged with a breach of bail (Bail Act1982 (WA) s 51(1)
The second appellant was charged with (1) Being a person having custody or control of a firearm and ammunition, namely, a 9 mm self‑loading Glock handgun and 9 mm ammunition, failed to take all reasonable precautions to ensure its safekeeping (Firearms Act s 23(9)(a)); (2) Permitting Joseph Wunnamurra Berry to be in possession of a firearm and ammunition, namely a 9 mm self‑loading Glock handgun and 9 mm ammunition, whilst such person was not the holder of a licence or permit under the Firearms Act entitling them to possess it and not a person to whom s 8 or s 30(2) of the Firearms Act applied (Firearms Act s 19(2)(c)); (3) Not being a person exempted under s 10(2) or s 10(3) of the Weapons Act possessing a prohibited weapon (Weapons Act s 6(1)(b)); (4) manufacturing ammunition, namely, 460 ammunition otherwise than in accordance with a licence issued under the Firearms Act authorising he to do so (Firearms Act s 19(4)(c)). The court was informed at the hearing of this appeal that the third charge preferred against the second appellant has been withdrawn.

Proceedings in Magistrates' Court

On 22 June 2007, the appellants came before Magistrate Nicholls in the Magistrates Court at Albany and they then sought a permanent stay of the prosecutions which had been brought against them: Criminal Procedure Act 2004 (WA), s 76(1). To obtain such a stay the appellants were required to satisfy the court that the charges against them were an abuse of the process of the court. This they sought to do by the filing of a number of documents, details of which are contained in the transcript of

the proceedings before the magistrate. It is unnecessary to refer to the contents of these documents. They included affidavits, complaint resolution reports, letters, police memoranda, newspaper reports and other documents.

The essence of the first appellant's case was that the police investigation was disorganised and 'chaotic' and that police procedures which had been adopted were not 'grounded in law' or 'in any serious concern for public safety'. Submissions to this effect were made by the first appellant's mother, Elspeth Berry, who was allowed to speak for the first appellant. Ms Berry added that there was a 'huge gap between what the police are saying and what we are saying', contending that 'what the police are saying really does not add up' because there was no mention of the fact that the firearm which was the subject of the charges was owned in relation to a club membership. She said that it was a firearm used at a club on a regular basis and being transported to the Albany Pistol Club.
A number of documents were put before the magistrate which confirmed the appellants' membership of the Albany Pistol Club, their suspension from it, and the question of reimbursement to them of fees.
The essential complaint of the first appellant seems to have been that, in the absence of legislation covering the transport of firearms between the Club and another location, the police had not used their discretion wisely in relation to the matter.
The prosecuting sergeant who appeared before the magistrate submitted that the issues raised by the first appellant were procedural issues with which the court need not be concerned. As he put it, the appellants may have had issues with the Commissioner of Police or with other police officers in relation to search of premises and seizure of property but there was no abuse of process within the meaning of s 76 of the Criminal Procedure Act.
The second appellant addressed the court and submitted that the prosecutions resulted from something which had got 'out of control'. It was submitted that the laying of charges was 'totally irrational' and had no basis whatsoever. Questions were raised whether a police search of the house was justified in the absence of the issue of a search warrant. Questions of 'endemic corruption' and 'undue haste' were also raised. Various assertions were made about misleading statements in the statement of material facts. The magistrate's attention was drawn to aspects of each of the charges preferred against the second appellant. It was argued that they were 'untenable' and constituted false accusations.
The magistrate dismissed the applications for a permanent stay. He considered that there was no substance in either application. His conclusion was that the matters raised by the appellants were matters 'for another forum and properly to be raised at the trial of the offences alleged'. In the magistrate's view, none of the material which had been put before him was sufficient to constitute an abuse of process. He added:
As to the law involving abuse of process, the law involving abuse of process is reasonably clear and to summarise what the law is in respect of abuse of process and whether a permanent stay should be granted I make the following comments to reflect what the law is. 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 and the concept of an abuse of process is not a precise one. It is not surprising that cases where a stay has been granted are, indeed, few. So it is certainly a difficult exercise for any applicant to establish an abuse of process.

Appeal to the Supreme Court

The appellants appealed the decision of the magistrate to the Supreme Court. The grounds of appeal of the first appellant (without accompanying text) were seven in number, as follows:
1)The Court has not acknowledged procedural corruption
2)Nothing stated in the supporting affidavits has been contested
3)The Charges are not grounded in law
4)The Prosecution is not supported by an adequate or credible Police Statement of Material Fact
5)The Prosecution is convoluted with the unlawful seizure of $8000 of property
6)The Prosecution has been defined by scandal and defamation: it cannot be separated from a long‑standing vendetta
7)A decision should assess genuine risk to the community
The grounds of appeal of the second appellant were also seven in number and were in the following terms:
1)The decision of 22 June 2007 does not consider the means by which the Prosecution was instituted
2)The decision of 22 June 2007 does not consider the unlawful search and seizure undertaken at 568 Nanarup Rd. on 13 April 2007
3)Charge No 1036 of the prosecution notice was not listed on my bail undertaking
4)The police statement of material fact is neither plausible nor adequate
5)The prosecution remains defined by a defamatory press release
6)The decision of 22 June 2007 does not consider the legal basis of the charges
7)The police memos of November 2004 indicate a history of police animosity towards the family and the decision of 22 June 2007 indicates prejudice towards civilian firearms ownership
The grounds of appeal of the first appellant did not, in any way, contest the dismissal of the application for a permanent stay. By inference, the grounds could be said to have that effect, but essentially they seemed to go to the validity of the charges which had been preferred against the first appellant. They include allegations of 'scandal, defamation and vendetta', and attack the justification of the police for preferring charges.
The grounds of appeal of the second appellant do attack the decision of the magistrate, but essentially allege bad faith on the part of the police in the prosecution of the charges and assertions of police animosity. They do, however, contend that the magistrate failed to consider the means by which the prosecution was instituted and failed to consider the circumstances of search and seizure. There are attacks on the validity of the charges, including an attack on the decision of the magistrate for failing to consider the 'legal basis of the charges'.
The appeals were dealt with on the papers by McKechnie J. Provisional decisions were given by his Honour on 6 August 2007 in which applications for leave to appeal were dismissed. McKechnie J said:
The essence of an abuse of process relates to the fairness of trial. The assertions made on behalf of Mr Berry may have substance but they are matters that can only be determined in the course of a trial. They do not of themselves affect the fairness of the trial process. Nor can it be said that those matters, without being tested at trial, mean that the prosecution is foredoomed to fail.
Application for leave to appeal was filed on 16 July 2007. The grounds of appeal attached are voluminous and to a degree argumentative. They have purportedly been clarified subsequently although the clarification is not a ground of appeal but in the nature of argument. Nevertheless, I have considered both the grounds and the clarification.
Under the Criminal Procedure Act 2004 s 9 the Court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: Samuels v The State (2005) 30 WAR 473. For the reasons I have set out none of the grounds has a reasonable prospect of success. Leave to appeal is refused.
On 18 September 2007, McKechnie J confirmed his provisional decisions. The decisions were reviewed after hearing argument. His Honour said:
The applicant is fully apprised of the charges which he is facing now and, as I repeat, the appropriate place to determine disputed facts is at a trial. Many of the matters advanced in relation to the statement of material facts and otherwise are simply allegations at this stage made on either side that can only be resolved by evidence.
This passage makes reference to a single 'applicant', but is to be read in the context of the draft judgment and can be taken to relate to both appellants.

Appeal to Court of Appeal

The appellants then appealed to this court by notices dated 25 September 2007. Each of the notices of appeal appears relevantly to be in the same terms. Initially there were four grounds as follows:
(1)Prosecution has not contested my claim that none of the charges of 13/4/07 are based in law or fact.
(2)The decisions of 22/6/07 and 18/9/07 do not acknowledge s 76 of the Criminal Procedure Act as relating to a charge or charges.
(3)The above decisions do not acknowledge sections 24(1)(c), 28(4)(a), 35(9) and 42(5) Criminal Procedure Act as binding.
(4)prosecution has admitted that the charges are convoluted with an unlawful search and seizure.
These grounds of appeal were later varied when the appellants filed their respective Cases on 21 November 2007 and 20 November 2007 respectively. In the case of the first appellant, the grounds were expanded to eight as follows:
1)Fact: The decision of 22 June 2007 is not based on the submissions of the concerned parties,
2)Fact: Police have demonstrated that the charges cannot be applied to the circumstances of 13 April 2007.
3)Law and Fact: The decision of 22 June 2007 does not acknowledge the legislation corresponding to my application as relating to a charge or charges
WRITTEN LAW: * Criminal Procedure Act 2004 (W. A.) S. 76
4)Law and Fact: The decision of 22 June 2007 does not acknowledge that CHARGE NO 128 11 'Carry/Use Unlicensed Firearm' is not written on my Bail Undertaking.
WRITTEN LAW:
* Criminal Procedure Act 2004 (W. A.) S. 24(1)(c)(i),(ii)
* Criminal Procedure Rules 2005 (W. A.) R. 5 & 9
* Criminal Code (W. A.) S. 85, 133A & 134
5)Law and Fact: There is no basis for CHARGE 129 Possess Unlicensed Ammunition
WRITTEN LAW:
* Firearms Act 1973(W. A.) S. 19(1)
* Criminal Code (W. A.) S. 133A & 134
6)Law and Fact: There is no basis for CHARGE 130 Possess Controlled Weapon
WRITTEN LAW:
* Weapons Act 1999 (W. A.) S. 6(1 )(b) Weapons Act
* Weapons Regulations.(W. A.) Schedule 2 No 20
* Criminal Code (W. A.) S. 133A & 134
7)Fact: The charges are defined by tardy, inconsistent, inadequate and defamatory supporting Statements.
WRITTEN LAW: * * Criminal Code (W. A.) S. 345
8)Law and Fact: The charges are defined by an unlawful seizure of property
WRITTEN LAW: * Criminal Property Confiscation Act 2000 (W. A.) S. 33
In the case of the second appellant, the grounds were expanded to 10, as follows:
1)Law and Fact: The decisions of 22 June and 18 September 2007 do not acknowledge that my application concerns misappropriated charges.
WRITTEN LAW: * Criminal Procedure Act 2004 (W. A.) S. 76
2)Fact: The Decision Statements of 22 June and 6 August 2007 are not based on the submissions of either party.
3)Law and Fact: The legislation cited in respect of CHARGE 1033 (Fail to Secure Safekeeping of Firearm) relates to safekeeping other than by way of storage
WRITTEN LAW: * Firearms Act 1973 (W. A.) S. 23(9)(a)
4)Law and Fact: Prosecution has not contested my claim that CHARGE 1033 could not be applied to two entirely different sets of circumstances.
WRITTEN LAW: * Criminal Procedure Act 2004 (W. A.) Schedule 1 R 2(4) & 8
5)Law and Fact: CHARGE 1034: (Permit Unlicensed Person to Possess Firearm/Ammunition) does not correspond to the circumstances of 10.30 a. m. on 13 April 2007.
WRITTEN LAW:
* Firearms Act 1973 (W. A.) S. 23(9) (a)
* Criminal Code (W. A.) S. 133A
6)Law and Fact: CHARGE 1036 (Unlicensed Manufacture of Ammunition) was not written on my Bail Undertaking.
WRITTEN LAW:
* Criminal Procedure Act 2004 (W. A.) S. 24(1 )(c)(i),(ii)
* Criminal Code (W. A.) S. 85
7)Law and Fact: CHARGE 1036 is not grounded in law or fact. WRITTEN LAW: * Firearms Act 1973 (W. A.) S. 19(4) (c)
8)Law and Fact: The State Police Commissioner has acknowledged that the charges are convoluted with an unlawful search and seizure.
WRITTEN LAW: * Criminal Property Confiscation Act 2000 (W. A.) S. 88
9)Law and Fact: The Police Disclosure of 17 October 2007 withholds critical information and is otherwise inconsistent, misleading and defamatory.
WRITTEN LAW:
* Criminal Code (W. A.) S. 345
* Criminal Code (W. A.) S. 134
10)Law and Fact: The Charges rely on defamation and related manipulation of the court and the community.
WRITTEN LAW * Criminal Code (W.A.) S. 345
Many of the grounds are described as either 'law and fact' or 'fact' and, again, they appear to challenge the validity of the charges. The only reference in the grounds to the decision of McKechnie J on 18 September 2007 is ground 1 of the second appellant's grounds, which contends that the decision does not acknowledge that the application for a stay concerned 'misappropriated charges'.
There is also an attack on the provisional decision of McKechnie J on 6 August 2007, in that it is contended in the grounds of the second appellant that the decision was not based on the submissions of either party.
In the grounds of the first appellant, the challenge appears to be restricted to the decision of the magistrate and/or the validity of the charges themselves. There is no specific challenge to the decisions of McKechnie J, either the provisional decision of 6 August 2007, or the confirmed decision of 18 September 2007.
The applications for leave to appeal from the decision of McKechnie J came before Wheeler JA exercising the power of the Court of Appeal pursuant to r 43(2)(c) of the Supreme Court (Court of Appeal) Rules 2005 (WA), Criminal Appeals Act 2004 (WA), s 27(1).
Wheeler JA referred to the grounds of appeal contained with the appellants' notices of 25 September 2007, not to the grounds which were annexed to the appellants' Cases. This may have been because the grounds formulated in the original notices were easier to understand than the grounds contained within the appellants' Cases.
The appellants now make complaint about Wheeler JA's failure to refer to the detailed grounds annexed to the Cases and I shall come to that issue in due course.
Wheeler JA summarised the grounds of appeal in the following way:
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'. [2], [3]
In dealing with the second category of the grounds of appeal Wheeler JA said:
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. [3], [4]

Wheeler JA then turned to the first category of the grounds of appeal, namely those which alleged that there was no application or a wrong application of the Criminal Procedure Act. Her Honour pointed out that the written materials before her did not set out the legal test for an abuse of process or identify with particularity the basis upon which the proceedings were said to be an abuse.
Oral submissions were referred to and her Honour noted that in those submissions the appellants were preoccupied with what appeared to be irrelevant side issues. The oral submissions of the first appellant were said to add nothing of any significance to those which had been made by the second appellant.
Wheeler JA dealt with the submissions of the appellants on the various issues in the following way:
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. [11] ‑ [14]
Wheeler JA referred to the magistrate's reasons for refusing the application for a permanent stay. She said that the magistrate's summary of the law was perfectly adequate for the purposes of the application and that he reached the only view which was open to him on the materials which were before him.
Wheeler JA also referred to McKechnie J's decision and concluded that it was correct in determining that the application for leave to appeal from the magistrate's decision had no prospect of success.
Wheeler JA concluded that the proposed appeal from McKechnie J had neither reasonable prospect for success nor any prospects of success whatever. The applications for leave to appeal and the appeals were dismissed.

Review

The appellants now seek to review the decision of Wheeler JA. The respective grounds for review are slightly different. The first appellant's grounds are as follows:
1.Decision not based on the Grounds of November 2007
2.Decision includes a critical error re transcript of 22 June 2007
3.Decision does not refer to Appellant's List of Legal Authorities
The second appellant's grounds are:
1.Decision 1 not based on the Grounds of November 2007
2.Decision 1 does not refer to Appellant's List of Legal Authorities
3.No hearing conducted/reasons given re Decision 2.
The third ground of the second appellant's grounds appears to relate to the description of Wheeler JA's decision under review on the application for review. This reads:
2.Application for legal representation dismissed.

The test to be applied on review

The test to be applied on a review or appeal provided for by s 61(3) of the Supreme Court Act 1935 (WA) was set out by Steytler P and McLure JA in Keating v The State of Western Australia [2007] WASCA 98:
It consequently seems to us that the appeal contemplated by s 61(3) of the Supreme Court Act, although by way of rehearing, is not one by way of hearing de novo and that error on the part of the single judge of appeal must be shown. …
That brings us to the present case, which, as we have said, involves an appeal from a decision of a single judge of appeal under s 27(2) of the Criminal Appeals Act. That should be considered in the context that a decision under s 27(2) does not involve a discretion in the ordinary sense of that word, being that of allowing the decision-maker some latitude as to the choice of the decision to be made: Coal and Allied at [19].
As we read s 27(2), given its context and evident purpose, leave to appeal must be given if the Court is satisfied that a ground has a reasonable prospect of succeeding (albeit the section is couched in negative terms, requiring the Court not to give leave unless satisfied that the ground has a reasonable prospect of succeeding). While there may be some limited scope for reasonable minds to differ on the issue of whether an individual ground does or does not have a reasonable prospect of succeeding, the test is an objective one. Consequently if, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the ground or grounds differently than the single judge, finding that there is a reasonable prospect of success, it is difficult to imagine that, even if no express error is found, the Court would not find implied error, entitling it to set aside or vary the decision of the single judge. [21], [22], [23]
In the same case, I said:
I agree with the joint reasons of Steytler P and McLure JA which conclude that an appeal from a decision of a single judge of appeal under s 27(2) of the Criminal Appeals Act is an appeal by way of rehearing rather than a hearing de novo. The intent of the package of legislative changes of which the Criminal Appeals Act was part is clear. The requirement for leave to appeal is clearly intended to promote the aim of controlling the workload of the Court: Samuels v Western Australia (2005) 30 WAR 473 at [37] per Steytler P, Wheeler and Roberts-Smith JJA. It is consistent with this intent that an appeal under s 27(2) of the Criminal Appeals Act should be limited to an appeal by way of re-hearing. [62]

Grounds of review

The first ground upon which Wheeler JA's decision is sought to be reviewed asserts that her Honour's decision was not based on the grounds of November 2007.
As I have pointed out, Wheeler JA did rely upon the grounds of appeal which were annexed to the notices of the 25 September 2007. Her Honour conveniently put those grounds into two separate categories and dealt with those categories in some detail.
Had Wheeler JA dealt with the grounds of appeal annexed to the first appellant's Case, the position would have been no different. The same can be said of the grounds annexed to the second appellant's Case. Those sets of grounds seem to go to the same matters which are raised in the four grounds of appeal in the notices of 25 September 2007, with additional assertions that the charges were not properly preferred, not 'grounded in law or fact' and preferred by reason of some bad faith on the part of the prosecution. There are also assertions that unlawful search and seizure occurred, the police have withheld critical information and certain notations were not made upon a bail undertaking. There is also a claim that there has been 'defamation and related manipulation of the court and the community'.
In my opinion, Wheeler JA sufficiently identified the grounds upon which the appellants were seeking to reverse the decision of McKechnie J. It may be that her Honour did not refer in detail to the eight grounds raised by the first appellant and the 10 grounds raised by the second appellant in the grounds of appeal annexed to their respective Cases, but many of those grounds could not be characterised as grounds of appeal at all, and, to the extent that they can be so characterised, they fall, in my opinion, broadly within the two categories that Wheeler JA identified. Accordingly, I can find no error on the part of Wheeler JA in dealing with those grounds.
A subsidiary issue raised by the appellants at the hearing before this court was the fact that Wheeler JA had not dealt with a number of affidavits filed by the appellants and by Elspeth Berry. In the Magistrates Court at Albany, there was an affidavit of the first appellant, sworn 23 May 2007, an affidavit of the second appellant, sworn 23 May 2007 and an affidavit of Elspeth Berry, sworn 23 May 2007. In the Supreme Court of Western Australia, there is an affidavit of the second appellant, sworn 5 September 2007 and an affidavit of Elspeth Berry, sworn 5 September 2007.
These affidavits are not contained within the Review Book, but for good reason. They are voluminous and contain a multiplicity of documents. They are aimed (inter alia) at demonstrating (1) that the charges preferred against the appellants have no substance; (2) the search and seizure procedures adopted by police were unlawful; (3) there has been a long history of conflict between the appellants and Albany police; (4) there has been unjustifiable confiscation and retention of investment property of the appellants (a matter which seems to be irrelevant to present proceedings); (5) there was some deficiency in the bail papers of at least one of the appellants; and (6) there has been general abuse of office on the part of Albany police officers. Having read the affidavits, I can find nothing in them that could have assisted Wheeler JA in considering the grounds of appeal annexed to the respective Cases of the appellants.
The second ground of the first appellant's notice contends that Wheeler JA made a critical error in relation to the transcript of 22 June 2007. This ground was expanded in oral submissions to constitute an assertion that because there was no contest by the prosecuting sergeant in the Magistrates Court with the claims made by or on behalf of the appellants, this meant that their application for a permanent stay of proceedings ought to have been granted. A subsidiary issue which was raised related to the question of bail. It appears that, on the bail papers of the first appellant, there was reference to cultivation of a prohibited plant, when such a reference should not have been made. This was described in the oral submissions as an 'irregularity' and the contention was that both McKechnie J and Wheeler JA should have dealt with the matter and reached a conclusion different from the conclusion reached by the magistrate. That is, they should have seen this irregularity as a proper basis for a stay of proceedings. I can see no substance in these assertions. Certainly no error has been shown on Wheeler JA's part.
The second ground in the second appellant's notice and the third ground in the first appellant's notice contend that Wheeler JA failed to refer to the appellant's list of legal authorities. This is not a ground of appeal. A judge is not required to refer to a list of authorities submitted by either party. Submissions are required to make reference to legal authority upon which reliance is placed and a list of authorities is required to assist the court: Supreme Court (Court of Appeal) Rules r 32(5)(c)(iii) and r 32(6). Nothing contained within the provisions of the Criminal Appeals Act or the Supreme Court (Court of Appeal) Rules or any other authority suggests that the court is required to refer to an appellant's list of legal authorities. In any event, the lists of authorities refer only to legislation and not to any cases. All aspects of the relevant legislation were clearly before Wheeler JA. No error on the part of Wheeler JA has been identified.
The third ground referred to in the second appellant's notice is that no hearing was conducted/reasons given in relation to 'decision 2'. During the course of oral submissions at the hearing of this appeal, Buss JA sought to clarify what this ground meant. It seems to relate to the second appellant's purported description of Wheeler JA's decision of 17 January 2008 under review; namely:
2.Application for Legal Representation dismissed.
This issue was not pursued before the court on the hearing of this review. Before us, Ms Berry was allowed to make oral submissions on behalf of the first appellant. She did this at some length. The second appellant added to those submissions.
A number of oral submissions were made by the second appellant to the effect that all charges faced by both appellants were 'politically motivated'. The second appellant in his submissions went so far as to assert that the judiciary belonged to a 'syndicate' that had political connections. A statement was made that there was a 'tacit agreement to keep certain doors firmly shut', which I took to be an assertion that this court was actuated by political considerations and was refusing to listen to valid argument. Both of these contentions are arguably contemptuous. They have no justification. The appellants were given the opportunity to develop their argument, but seemed unable or unwilling to hold to the grounds of review which had been formulated.
No error on the part of Wheeler JA has been identified by the second appellant in his third ground of his notice.

Conclusion on review

In my opinion, the appellants have failed to identify any error on the part of Wheeler JA in refusing leave to appeal from the judgment of McKechnie J. What the appellants sought in the Magistrates' Court was an order for stay of proceedings which had been commenced against them. The grounds upon which the stay was sought related to a multitude of contentions about the manner in which the police had prosecuted the matters the subject of the complaints against the appellants. There were also other complaints which went to the nature of the charges. Wheeler JA identified in her reasons at [11] ‑ [14] what the contentions were. She found no substance in them.
In Jago v The District Court of New South Wales (1989) 168 CLR 23 Mason CJ said of applications for a permanent stay:
The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo (1972) 407 US 514 ; Bell v Director of Public Prosecutions [1985] AC 937 , as explained in Watson (1987) 8 NSWLR 685 and Gorman v Fitzpatrick (1987) 32 A Crim R 330 In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at 263 ‑ 264http://thomsonnxt4/links/Handler.aspx?tag=5c168be32f41ca9d4238a027de29b4bd&product=ac.
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton (1980) 147 CLR 111 , per Wilson J. (33, 34)
In the present case, the appellants do not complain about any long delay in the bringing of the prosecutions. They do complain about delays in disclosure of materials requested of the prosecution, but they are matters that should be raised in the Magistrates Court. There has been delay occasioned by the many appeals, but that is the responsibility of the appellants.
The appellants do not complain about any fundamental defect in the proceedings going to the root of the trial process. Their complaints refer to police conduct in relation to the proceedings. These are matters which, if relevant to the charges and their determination, should be aired at the hearing of the charges in the Magistrates' Court.
There was never any basis for a permanent stay of proceedings and the magistrate was correct in the decision which he reached. McKechnie J was correct in the decision he reached on the application for leave to appeal and Wheeler JA has not been shown to have made any material error in relation to any aspect of the reasons that her Honour gave in dismissing the applications for leave to appeal from McKechnie J.
In my opinion, the applications to review the decision of Wheeler JA should be dismissed.