Conomy v Maden
[2015] WASCA 208
•15 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CONOMY -v- MADEN [2015] WASCA 208
CORAM: BUSS JA
MAZZA JA
HEARD: 1 OCTOBER 2015
DELIVERED : 1 OCTOBER 2015
PUBLISHED : 15 OCTOBER 2015
FILE NO/S: CACR 113 of 2015
CACR 114 of 2015
BETWEEN: JERROD JAMES CONOMY
Appellant
AND
CHRISTOPHER MADEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTINO J
File No :SJA 1065 of 2014, SJA 1010 of 2015
Catchwords:
Criminal law - Stalking - Violence restraining order - Stay in proceedings - Application dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18, s 38(3), s 39(1)
Criminal Code (WA), s 338E
Restraining Orders Act 1997 (WA), s 61(1)
Result:
Application dismissed
Other orders made
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D Leigh
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Conomy v Maden [2015] WASC 179
Conomy v Western Australian Police [2015] WASC 178
Wharton v The Queen [2015] WASCA 176
REASONS OF THE COURT: On 1 October 2015, we made the following orders:
1.The application filed by the appellant on 17 August 2015 in CACR 114 of 2015 is dismissed.
2.The applications for leave to appeal in CACR 113 of 2015 and CACR 114 of 2015 and, if leave be granted, the appeals are to be heard one after the other, on the same day, and before the same bench.
We indicated that our reasons would be published later. These are those reasons.
The application
The appellant is an in‑person litigant. On 17 August 2015, in respect of CACR 114 of 2015, he filed an application seeking these orders:
1.A stay of this matter (CACR 114 of 2015) pending the completion of my other appeal (CACR 113 of 2015). The stay would also include the completion of costs proceedings and any potential subsequent appeals to Higher Courts [sic].
2.An open‑ended extension of the due date for the appellant's case for this matter (CACR 114 of 2015) to be determined on the resumption of this matter after stay.
3.An order be made that the stay remain active until an application is made by the appellant for this matter (CACR 114 of 2015) to resume. That application will include the appellant's proposed due date for the appellant's case.
The application is supported by affidavits sworn by the appellant on 17 August 2015 and 16 September 2015.
Background
By a prosecution notice filed in the Magistrates Court on 15 August 2013, the appellant was charged that, in the period 23 December 2012 to 12 August 2013, he pursued the complainant in a manner that could reasonably have been expected to intimidate and that did, in fact, intimidate her, contrary to s 338E(2) of the Criminal Code (WA) (the stalking charge).
On 7 August 2014, after a trial spanning five sitting days, his Honour Magistrate Wheeler found the appellant guilty of the charge and fined him $3,000.
By a prosecution notice filed in the Magistrates Court on 14 August 2013, the appellant was further charged that on 13 August 2013 he, having been personally served with a violence restraining order, breached that order by sending text messages to the complainant, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the VRO charge).
On 16 January 2015, after a trial that took place on that day before his Honour Magistrate Temby, the appellant was found guilty and was fined $1,200. His Honour made a spent conviction order.
Each offence concerned the same victim and arose in the context of the appellant's relationship with that person.
The appellant appealed to a single judge of the General Division of this court in respect of the convictions and the sentences that were imposed upon him. The appeals were heard by Martino J. The appeal in respect of the stalking charge was heard on 12 May 2015 and the appeal in respect of the VRO charge was heard on 14 May 2015. The appellant represented himself in these proceedings. On 29 May 2015, his Honour dismissed all of the appeals. His Honour's reasons for doing so are set out in respect of the stalking charge in Conomy v Maden [2015] WASC 179 and, in respect of the VRO charge, in Conomy v Western Australian Police [2015] WASC 178.
The appellant has appealed to this court against Martino J's decisions. The appeal with respect to the stalking charge is CACR 113 of 2015 and the appeal with respect to the VRO charge is CACR 114 of 2015. The appellant requires leave to appeal in respect of each ground of appeal. See s 9 read with s 18 of the Criminal Appeals Act 2004 (WA).
On 11 August 2015, an appellant's case was filed in respect of CACR 113 of 2015. That document is 38 pages in length and includes 18 grounds of appeal. As yet, the question of leave to appeal in respect of those grounds has not been considered.
On 29 September 2015, an appellant's case was filed in respect of CACR 114 of 2015. That document contains two grounds of appeal, both of which are particularised at length over 11 pages of text. The written submissions in support of those grounds run for an additional 19 pages. Again, the question of leave to appeal in respect of the grounds has not been considered.
As a result of the appellant filing his appellant's case in respect of CACR 114 of 2015, proposed order 2 in his application dated 17 August 2015 is otiose. There remains the question of whether there should be a stay of CACR 114 of 2015 pending the completion of CACR 113 of 2015. It is to this issue that we now turn.
The affidavits
In essence, the appellant deposes that a stay of CACR 114 of 2015 should be granted, having regard to the following:
(a)He is an in‑person litigant with a personal and emotional involvement in the matters.
(b)He has found the experience of being an in‑person litigant very stressful and wishes to 'take time to destress between assignments and hearings to keep my stress levels to a minimum' (affidavit dated 16 September 2015).
(c)A brief medical certificate purportedly signed by Dr Hermann Meyer of the Murray Medical Centre dated 19 August 2015, states that:
[The appellant] has been diagnosed with clinical depression and anxiety. This has impacted on his ability to cope with stress and has interfered with his ability to comply with the requirements of 2 separate court cases at the same time. I support his application to hear one matter at a time to not overburden him with stress.
(d)He wishes to concentrate on the appeal in CACR 113 of 2015 because it is that conviction 'that really damages my career' (affidavit dated 16 September 2015).
It is also evident from the appellant's affidavits that, leaving aside questions of his stress, the appellant is opposed, as a matter of principle, to the appeals being heard together by this court. He appears to be under the impression that as his trials in the Magistrates Court were heard separately, so too should his appeals to this court.
Disposition
This court well appreciates the difficulties that often face in‑person litigants and the stresses upon them. It must also be recognised that there is a strong public interest in the timely disposition of criminal appeals: Wharton v The Queen [2015] WASCA 176 [52]. While we are prepared to accept, for the purpose of this application, that the appellant is suffering stress and anxiety in connection with his appeals, it is also clear that these conditions have not prevented him from preparing detailed appellant's cases in respect of each of his appeals. Nor have they prevented him from making effective oral submissions in the proceedings so far. These objective facts are inconsistent with Dr Meyer's statement that the appellant's clinical depression and anxiety have 'interfered with his ability to comply with the requirements of two separate court cases at the same time'. The evidence before this court is insufficient to persuade us that the hearing of CACR 114 of 2015 should be stayed until after CACR 113 of 2015 is concluded and any application for special leave to appeal to the High Court and, if special leave be granted, the appeal has been determined. Such a delay would potentially be considerable and would be contrary to the strong public interest in the timely disposition of criminal appeals.
There is no merit in the appellant's submission that, as a matter of principle, the appeals should be heard on separate dates. It appears that the proceedings in the Magistrates Court occurred on separate days and before different magistrates because it was thought that the evidence in respect of the separate charges was not cross‑admissible. Such a consideration is irrelevant to the hearing and determination of appeals. This court will give each appeal separate consideration based only on the evidence and material relevant to that appeal: s 39(1) of the Criminal Appeals Act.
Section 38(3) of the Criminal Appeals Act allows this court to hear and decide two or more appeals, each of which is against a different decision at the same time if it is in the interests of justice to do so. In our opinion, it is plainly in the interests of justice that the applications for leave to appeal in CACR 113 of 2015 and CACR 114 of 2015 and, if leave is granted, the appeals be heard one after the other, on the same day, and by the same bench. Also, in our opinion, that course of action will not occasion any material prejudice to, or difficulty for, the appellant. Our reasons for these opinions are as follows:
(a)although the facts of each alleged offence are different, the alleged victim in each offence is the same person and the offences arise in the context of the appellant's relationship with that person;
(b)the applications for leave to appeal will be heard at least 3 months before the hearing of the appeals (on the assumption that leave to appeal is granted);
(c)the appellant will be given adequate time (at least 2 months) to prepare his oral submissions for the hearings (bearing in mind that he has already filed extensive written submissions as part of his appellant's cases);
(d)ordinarily, this court hears applications for leave to appeal by in‑person litigants on an ex parte basis;
(e)if the applications for leave to appeal are heard on an ex parte basis then the appellant will not have to deal with, or respond to, any submissions from the respondent;
(f)the total time required to hear the applications for leave to appeal and, if leave be granted, the appeals will be very significantly less than the total time occupied by the trials; and
(g)the cases will be more conveniently dealt with one after the other on the same day by the same bench.
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