Brooks v Drysdale - [2021] WASCA 189

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BROOKS -v- DRYSDALE [2021] WASCA 189
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   10 AUGUST 2021
DELIVERED          :   25 OCTOBER 2021
FILE NO/S:   CACR 34 of 2021
BETWEEN:   RICHARD CHARLES BROOKS
Appellant
AND
ANTHONY JAMES DRYSDALE
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: BROOKS -v- DRYSDALE [2020] WASC 466
File Number            :   SJA 1009 of 2020

Catchwords:

Criminal law - Appellant convicted, on his pleas of guilty in the Magistrates Court, of six offences against s 61(1) of the Restraining Orders Act 1997 (WA) - Each offence involved the appellant breaching a conduct agreement order made in the Magistrates Court - Appellant's appeal to the Supreme Court in its General Division dismissed - Whether the primary appeal judge made material errors in dismissing the appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 14, s 16, s 18
Restraining Orders Act 1997 (WA), s 3, s 10A, s 10D, s 10F, s 10G, s 10H, s 61

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Brooks v Drysdale [2020] WASC 466
Brooks v Lathong [2019] WADC 24
Brooks v Lathong [2019] WASCA 176

JUDGMENT OF THE COURT:

On 5 August 2019, the appellant was convicted, on his pleas of guilty in the Magistrates Court, of six charges in a prosecution notice.
Each charge alleged, in essence, that the appellant had breached a conduct agreement order made in the Magistrates Court on 14 February 2018. The particulars of each of the first five breaches were that the appellant had contacted the protected person by sending her a text message. The particulars of the sixth breach were that the appellant had contacted the protected person by sending her an explicit image of her through Australia Post.
Each breach was an offence against s 61(1) of the Restraining Orders Act 1997 (WA).
On 20 January 2020, Magistrate Webb sentenced the appellant on each offence to a 12 month intensive supervision order with programme and supervision conditions. The orders were to be served concurrently.
The appellant applied for leave to appeal to the Supreme Court in its General Division against conviction and sentence. On 15 December 2020, Smith J granted leave to appeal on one ground, refused leave to appeal on three grounds and dismissed the appeal. See Brooks v Drysdale.[1] Her Honour ordered the appellant to pay the respondent's costs of the appeal fixed in the sum of $995.
[1] Brooks v Drysdale [2020] WASC 466.
The appellant has now applied for leave to appeal to this court against Smith J's decision.
We would refuse leave to appeal. The appeal must be dismissed.

Relevant provisions of the Restraining Orders Act

Section 3(1) of the Restraining Orders Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Drysdale

Details

AGLC: Brooks v Drysdale [2021] WASCA 189
Case: [2021] WASCA 189
Decision Date

CaseChat Overview and Summary

Brooks was convicted in the Magistrates Court of six charges of breaching a conduct agreement order made under the Restraining Orders Act 1997 (WA). Brooks appealed to the Supreme Court in its General Division against the conviction and sentence. On one ground, Smith J granted leave to appeal, but dismissed the appeal and refused leave to appeal on three grounds. Brooks has now appealed to this court against Smith J's decision. We would refuse leave to appeal and the appeal must be dismissed. The appeal before Smith J was governed by div 2 of pt 2 of the Criminal Appeals Act 2004 (WA). The appeal before this court is governed by div 3 of pt 2 of the Criminal Appeals Act. In the appeal before Smith J, the appellant's grounds of appeal were that the magistrate erred in fact and in law in finding that the appellant had not filed a form 23 to cancel the conduct agreement order, the magistrate erred in law by failing to afford procedural fairness and failing to take into account mitigating factors, the magistrate erred in not ordering disclosure of the pre-sentence psychological report and the victim impact statement, and the magistrate acted unfairly by having regard to the matters stated in the pre-sentence psychological report, which gave rise to a miscarriage of justice. Smith J held that leave to appeal on the first ground should be granted, but the appeal could not succeed on that ground alone as no substantial miscarriage of justice had occurred. Smith J held that leave to appeal on the other grounds should be refused and the appeal dismissed as those grounds did not have a reasonable prospect of success. In the appeal before this court, the appellant's grounds of appeal are that Smith J erred in deciding that grounds 2, 3 and 4 did not have a reasonable prospect of success and consequently in refusing leave to appeal on those grounds, Smith J erred in deciding that no substantial miscarriage of justice had occurred as a result of the error identified in ground 1, Smith J erred in rejecting the appellant's submissions in reply and in failing to address other submissions he had made, the respondent's submissions before Smith J were misleading and designed to misinform her Honour, the respondent's submissions before Smith J were incompetent and deliberately used false information that was irrelevant, and the appellant was denied a fair hearing in the proceedings in the Magistrates Court and in the proceedings in the General Division. None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed.

Orders