Bilos v State of Western Australia

[2004] WASCA 94

BILOS -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 94

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 94
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:81/2003	Heard:	10 MAY 2004
Coram:	MURRAY J STEYTLER J MCLURE J	Delivered:	10/05/04
No of pages:	4	Judgment Part:	1 of 1
Result:	Application granted, Appeal dismissed
Category:	B
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Parties:	ANNA ELIZABETH BILOS STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Application to strike out appeal for want of prosecution Turns on own facts
Legislation:	Criminal Code (WA), s 697 Prostitution Act 2000 (WA), s 16 Rules of the Supreme Court 1971
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BILOS -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 94 CORAM : MURRAY J

STEYTLER J
MCLURE J

HEARD : 10 MAY 2004 DELIVERED : 10 MAY 2004 FILE NO/S : CCA 81 of 2003 BETWEEN : ANNA ELIZABETH BILOS

Applicant

AND

STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WILLIAMS DCJ

File Number : IND 1927 of 2001

Catchwords:

Criminal law and procedure - Application to strike out appeal for want of prosecution - Turns on own facts

(Page 2)

Legislation:

Criminal Code (WA), s 697

Prostitution Act 2000 (WA), s 16
Rules of the Supreme Court 1971

Result:

Application granted

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : No appearance
Respondent : Mr S E Stone

Solicitors:

Applicant : Nil
Respondent : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil


(Page 3)

1 JUDGMENT OF THE COURT: This is an application brought by the respondent for an order that an application for leave to appeal be dismissed for want of prosecution. Applications of this kind draw on powers in that regard possessed by the Full Court sitting as such under the Rules of the Supreme Court 1971 (WA). The Full Court sitting as the Court of Criminal Appeal has the power by virtue of the Criminal Code (WA), s 697.

2 The respondent to this application was convicted in the District Court on 16 May 2003 of two offences. One of permitting a child to act as a prostitute and the second of acting with the intention of inducing a child to continue to act as a prostitute, contrary in each case to s 16 of the Prostitution Act 2000 (WA). The offences so created are indictable offences, punishable by a maximum of 14 years imprisonment. In each case, a sentence of 2 years imprisonment concurrent was imposed on the respondent and service of those sentences was suspended for a period of 2 years.

3 On 6 June 2003, and therefore just within time, the respondent filed a notice of application for leave to appeal against the convictions on the generally expressed grounds that the verdicts were against the evidence and the weight of the evidence and that the trial Judge erred in directions given to the jury in respect of the provisions of the Prostitution Act.

4 The matter was inserted into the process of case management by directions hearings conducted by a single judge of the Court of Criminal Appeal. Its first appearance in that list was on 3 September 2003. The respondent appeared in person. She advised the court that she was obtaining legal advice as to whether she should continue with the appeal and the matter was adjourned to 28 October 2003. Counsel for the prosecution referred to the need for properly particularised grounds of appeal.

5 On 28 October the respondent appeared by counsel who advised the court that he had only recently been briefed and he needed time to assess the merit of the appeal. The matter was adjourned to 16 December 2003.

6 Neither on that date nor on the date to which the matter was then adjourned, 18 February 2004, did the respondent appear in person or by counsel. On 18 February the case was referred to this sitting of the Full Court of Criminal Appeal to hear the application now brought.

7 The application was listed for this date and the Court wrote to the respondent advising her of the nature of the application and the date and

(Page 4)

time for which it had been listed. The application, the supporting affidavit and a letter from the office of the Director of Public Prosecutions giving the respondent the same advice, was served upon her on 4 May. She does not appear to respond to the application.

8 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.

9 In our opinion it is evident that the respondent to this application has no intention of advancing the matter, nor does she demonstrate that the appeal has any merit sufficient to cause the Court to decline at this stage to make the order sought. The application for leave to appeal against conviction is dismissed for want of prosecution.