Conway v APOLLOS
[2005] WASC 267
CONWAY -v- APOLLOS [2005] WASC 267
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 267 | |
| Case No: | SJA:1071/2005 | 18 NOVEMBER 2005 | |
| Coram: | MCKECHNIE J | 5/12/05 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MARK LEWIS CONWAY WAYNE WILLIAM APOLLOS |
Catchwords: | Courts and Judges Whether bias shown Leave to appeal Absence of reasonably arguable grounds |
Legislation: | Nil |
Case References: | Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
WAYNE WILLIAM APOLLOS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MR P S MICHELIDES SM
File No : FR 1082 of 2005
Catchwords:
Courts and Judges - Whether bias shown - Leave to appeal - Absence of reasonably arguable grounds
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: On 18 October 2005 I issued a provisional decision on an application for extension of time within which to appeal and leave to appeal. The applicant requested a hearing and came before me on 18 November 2005.
2 My provisional decision was as follows: On 14 June 2005 the applicant was convicted in the Magistrate's Court of assaulting a public officer and refusing to give his name. From that decision the applicant seeks leave to appeal. Leave of the Supreme Court is required for each ground of an appeal and the Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA), s 9.
3 Under the Criminal Procedure Rules 2005 a judge has jurisdiction to decide an application on the basis of documents lodged and without listing the matter for hearing: Criminal Procedure Rules 2005, r 60.
4 In this case the applicant did not file a copy of the prosecution notice as required under the Criminal Procedure Rules 2005, r 65(1)(e).
5 He has advised the Court that he was never given a copy of the notice and cannot comply. As the nature of the charge appears clearly from the transcript of the proceedings which the applicant did file, I waive compliance.
6 The sole ground of appeal is "biased decision". The High Court has recently examined the question of bias in two judgments. In Johnson v Johnson (2000) 201 CLR 488 the Court said at [11]:
"It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."
7 The Court noted at [12]:
"… two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require
(Page 4)
- the judge to discard the irrelevant, immaterial and the prejudicial".
8 The High Court expressed itself in similar terms in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The Proceedings in the Court Below
9 The applicant was, as is variously described, an unrepresented litigant, self-represented litigant or a litigant pro se. He did not have the assistance of counsel.
10 The prosecution called two witnesses, the transit officers involved in the incident. Each was extensively cross-examined by the applicant. The applicant gave evidence and called one witness.
11 Magistrates routinely deal with matters where a person is unrepresented. Sometimes it is not easy. An unrepresented litigant may be in need of advice and assistance. They may be ignorant of procedures and the rules of evidence. Their right to present their case and a fair trial must be balanced against the right of the other side to have a fair trial according to law. Sometimes, and I judge this to be one of those times, it will be necessary for a magistrate to intervene in proceedings to ensure that the trial does not run off the rails. I am sure that on some occasions judicial intervention can seem to a litigant pro se, under some stress, that the Magistrate is favouring the other side. However, the test is not what the litigant feels, but what a fair-minded objective observer would think.
12 I have read the 103 pages of transcript. There were a number of interventions by the Magistrate in the applicant's cross-examination of the witnesses for the prosecution. Those interventions seemed designed to elucidate matters and to ensure that questions were asked in proper form. On one occasion the applicant became very angry, though not apparently with the Magistrate, and was given some time to compose himself. When it came to the applicant's evidence, the applicant was asked some non-leading questions by the Magistrate designed to elicit relevant information and then the applicant was permitted to give his evidence without interruption. At the conclusion of the evidence the Magistrate found each charge proved to the criminal standard and delivered coherent reasons based on his assessment of the credibility of the witnesses. There is nothing in the transcript which indicates to me that the Magistrate had made any prejudgment. There is nothing which indicates that he favoured the prosecution or was prejudiced against the defendant.
(Page 5)
13 Applying the principles of law on judicial bias to my reading of the transcript, I am unable to conclude that there is a reasonably arguable case that the Magistrate was biased. That being so, the appeal will be dismissed.
Review following hearing on 18 November 2005
14 At the oral hearing the applicant disclaimed reliance upon the sole stated ground of appeal. He was asked to articulate the grounds of appeal and what was his real complaint. He referred, among other things, to the lack of video surveillance. This reflected a submission he had made to the Magistrate. The applicant referred to inconsistencies in the evidence of the railway officers and particularised one such instance as the point at which they asserted that the applicant had been handcuffed. In his evidence-in-chief Police Officer Mardon (at TS 6) said that the applicant had been handcuffed in an office. Police Officer Doruk said (at TS 26) that the applicant was escorted to the security office and was placed on the ground and placed in hand restraints or handcuffs. He maintained that position in cross-examination (at TS 38).
15 Even though the grounds of appeal are not as set out in the application, I have further reviewed the whole of the transcript of the evidence and the Magistrate's reasons. There does not seem to be any material inconsistency within the prosecution witnesses. Ultimately, the question was whether the prosecution had satisfied the Magistrate beyond reasonable doubt as to the guilt of the applicant on the charges. The Magistrate correctly directed himself on several occasions to the burden and standard of proof and set out his reasons as to why, in the end, he accepted the prosecution witnesses and rejected the evidence of the applicant. In consequence, there is no reason for me to alter my provisional decision that the application for leave to appeal be reviewed.
16 The applicant requires an extension of time. I consider he has satisfactorily explained the delay but there is no point in extending time because I consider the appeal is without merit.
Conclusion
17 Leave to appeal is refused.
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