Boers v Bayliss

[2011] WASC 336

BOERS -v- BAYLISS [2011] WASC 336

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 336
Published:	05/12/2011
Case No:	SJA:1073/2011	Heard:	5 DECEMBER 2011
Coram:	HALL J	Delivered:	5/12/11
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	STEVEN JOHN BOERS MATTHEW BAYLISS
Catchwords:	Criminal law Appeal against convictions Failure to comply with requirements of police officer Obstructing police officer Whether appellant suffered a miscarriage of justice as a result of trial not being adjourned Did not take up opportunity to present case at hearing Grounds of appeal have no reasonable prospect of success
Legislation:	Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3) Criminal Code Act Compilation Act 1913 (WA), s 172(2) Criminal Procedure Rules 2005 (WA), r 65 Road Traffic Act 1974 (WA), s 66
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : BOERS -v- BAYLISS [2011] WASC 336 CORAM : HALL J HEARD : 5 DECEMBER 2011 DELIVERED : 5 DECEMBER 2011 PUBLISHED : 5 DECEMBER 2011 FILE NO/S : SJA 1073 of 2011 BETWEEN : STEVEN JOHN BOERS

Appellant

AND

MATTHEW BAYLISS
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE HEANEY

File No : BU 480 of 2011, BU 481 of 2011

Catchwords:

Criminal law - Appeal against convictions - Failure to comply with requirements of police officer - Obstructing police officer - Whether appellant suffered a miscarriage of justice as a result of trial not being adjourned - Did not take up opportunity to present case at hearing - Grounds of appeal have no reasonable prospect of success

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 9(3)

Criminal Code Act Compilation Act 1913 (WA), s 172(2)
Criminal Procedure Rules 2005 (WA), r 65
Road Traffic Act 1974 (WA), s 66

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : No appearance

Solicitors:

Appellant : No appearance
Respondent : No appearance

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

Nil

(Page 3)

1 HALL J: This is an application for leave to appeal against convictions in the Bunbury Magistrates Court. On 21 June 2011 the appellant was convicted of failing to comply with the requirement of a police officer, contrary to s 66 of the Road Traffic Act 1974 (WA) and of obstructing a police officer in the performance of the officer's functions, contrary to s 172(2) of the Criminal Code (WA). He was fined $300 on the first charge, $500 on the second charge and ordered to pay costs. His driver's licence was also suspended for three months.

2 On 19 July 2011 the appellant filed a notice of appeal. Essentially the proposed grounds are that the magistrate erred by failing to grant an adjournment for the appellant to seek legal representation and that there was fresh evidence in the form of video footage that had not been available at the trial in the Magistrates Court.

3 Leave to appeal is required in respect of each ground of an appeal: s 9(1) Criminal Appeals Act 2004 (WA). Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act. Unless the court gives leave to appeal on at least one ground, the appeal is taken to have been dismissed: s 9(3) Criminal Appeals Act.

4 In order to commence an appeal under pt II of the Criminal Appeals Act an appellant must lodge an appeal notice and copies of the prosecution notice, the primary court's transcript and a copy of every other record that the court will need to decide the appeal: r 65(1) Criminal Procedure Rules 2005 (WA). Any documents lodged with the court must be served on the respondent and, as soon as practicable thereafter, the appellant must lodge a service certificate: r 65(6) and r 65(7) Criminal Procedure Rules.

5 The appellant failed to lodge a service certificate and on 29 August 2011 I made provisional orders requiring him to do so, amongst other things, failing which the appeal would be dismissed. A copy of the orders was sent to the appellant by letter on 29 August 2011, sent to the address given by the appellant in the appeal notice. A further letter was sent on 25 October 2011 noting that the orders had not been complied with and that if an extension of time was sought an application should be made.

6 As the appellant is self-represented, I decided that rather than dismissing the appeal on the papers I would afford him the opportunity to present his case for leave to appeal at a hearing. I also took into account that in an affidavit filed with the notice of appeal, the appellant referred to

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having suffered bipolar disorder which had made it difficult for him to represent himself before the magistrate.

7 On 28 November 2011 a letter was sent to the appellant advising him that the application for leave to appeal had been set down for hearing on 5 December 2011. The letter noted that the hearing would be an opportunity for the appellant to satisfy the court that his appeal grounds had merit. He was advised that he would need to bring to the hearing any material that he relied on in support of the grounds, in particular the fresh evidence that he referred to in ground 2 (the video) and any medical reports relevant to his suggestion that the hearing before the magistrate should have been adjourned on medical grounds. The letter stated that if he failed to appear at the hearing his appeal may be dismissed.

8 On Monday, 5 December 2011 the appellant failed to appear at the listed hearing. His name was called outside the court but there was no appearance. I dismissed his application for leave at that time and these are my reasons for doing so.

9 As regards the complaint that the hearing before the Magistrates Court should have been adjourned, the transcript does not support the appellant's contention that he was unwilling to proceed on that day. What occurred was that the appellant advised the magistrate that he had made an appointment with a solicitor from Legal Aid the day following the trial date. He also said he had an appointment to see his doctor. He told the magistrate that the length of time it was taking for the matter to be resolved was causing him stress and anxiety. The magistrate suggested that in those circumstances it was better to proceed with the trial on that day and the appellant agreed saying: 'I will go with that'. He was asked by the magistrate whether he was ready to proceed and he said that he was. A duty lawyer who was in attendance told the magistrate that the appellant did have an appointment with a lawyer from Legal Aid the following day and that he had had numerous appointments previously but that there had been no grant of aid for the purposes of the trial.

10 I have read the transcript of the proceedings and it is not apparent that the appellant was incapable of participating. It was open to the magistrate to come to the conclusion that the grounds for an adjournment had not been made out. The available material does not establish that the appellant suffered any miscarriage of justice as a result of the trial not being adjourned. In an affidavit filed with the notice of appeal the appellant stated that he had annexed a certificate that had been handed up

(Page 5)

to the magistrate which stated that he was unfit to participate in the court proceedings. No such certificate was annexed.

11 As regards the proposed ground relating to fresh evidence, no such evidence has been provided to this court. In the affidavit filed by the appellant he stated that since the trial date he had obtained video footage of the incident which resulted in the charges and that he also had available to him three witnesses who had been unable to attend at the trial. No affidavits from those witnesses have been filed and the video has not been produced. In those circumstances there is simply no basis upon which this ground can be argued.

12 Notwithstanding the failure to comply with procedural requirements, the appellant was afforded an opportunity to present his case at a hearing. He did not do so. Having examined the available material, I am not satisfied that any of the grounds have a reasonable prospect of succeeding. In those circumstances the appeal will be dismissed.