Corica v Throssell - [2017] WASCA 209

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CORICA -v- THROSSELL [2017] WASCA 209

CORAM: BUSS P
MAZZA JA
BEECH JA

HEARD: 14 SEPTEMBER 2017

DELIVERED : 14 SEPTEMBER 2017

PUBLISHED : 15 NOVEMBER 2017

FILE NO/S: CACR 64 of 2017
CACR 124 of 2017
CACR 125 of 2017

BETWEEN: SALVATORE CORICA
Appellant
AND
JONATHAN THROSSELL
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :SJA 1055 of 2012, SJA 1056 of 2012

Catchwords:

Criminal law - Application for leave to appeal against decisions of single judge of the Supreme Court in appeals against sentence and conviction - Failure to comply with direction under s 214(3) of the Planning and Development Act 2005 (WA) - Whether prosecution was commenced by an authorised person - Where appeals were commenced over four years out of time

Legislation:

Criminal Procedure Act 2004 (WA), s 20
Planning and Development Act 2005 (WA), s 214

Result:

Application dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A Wadham

Solicitors:

Appellant: In person
Respondent: McLeods Barristers & Solicitors

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

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Corica v Shire of Mundaring [2017] WASCA 42
Corica v Throssell [2012] WASC 393
Hopes v Australian Securities and Investments Commission [2017] WASCA 108
Lancaster v The Queen [1989] WAR 83
Palmer v City of Gosnells [2014] WASCA 102
Robertson v The State of Western Australia [2009] WASCA 83
Wimbridge v The State of Western Australia [2009] WASCA 196

REASONS OF THE COURT: The appellant filed three appeals and seeks leave to appeal against decisions made by McKechnie J on 21 September 2012: see Corica v Throssell.[1] The appeals were filed grossly out of time.
[1] Corica v Throssell [2012] WASC 393.
On 8 September 2017, the appellant filed an application in each appeal seeking various orders.
On 14 September 2017, we made these orders in each appeal:
1.The appellant's application filed 8 September 2017 seeking various orders is dismissed.
2.The appellant's application for leave to appeal is dismissed.
3.The appeal is dismissed.
At the time, we said we would publish our reasons at a later date. These are our reasons.

Background

The appellant was charged by a prosecution notice filed in the Midland Magistrates Court and issued by the respondent in his capacity as Chief Executive Officer and employee of the Shire of Mundaring with an offence contrary to s 214(7) of the Planning and Development Act 2005 (WA). As amended, the charge read:
Between 11 July 2010 and the date of the signing of this prosecution notice, both dates inclusive, [at an address in Greenmount] [the appellant] failed to comply with the direction to him under s 214(3) of the Planning and Development Act 2005 requiring him to remove fill from the land within the time specified in the direction.
The…

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 Corica v Throssell

Details

AGLC: Corica v Throssell [2017] WASCA 209
Case: [2017] WASCA 209
Decision Date: 15 NOVEMBER 2017

CaseChat Overview and Summary

The matter before the court involved appeals against sentences and convictions by the respondents, Corica and Throssell, stemming from their failure to comply with a direction under section 214(3) of the Planning and Development Act 2005 (WA). The appeals were filed over four years after the sentences were imposed, and the respondents sought leave to appeal against the decisions of a single judge of the Supreme Court who had dismissed their earlier appeals. The primary legal issue was whether the prosecution for the offences was initiated by an authorised person, as required by the Act, and if the late appeals could be entertained by the court.

The court examined the statutory requirements and determined that the prosecution was indeed initiated by an authorised person, thus satisfying the prerequisites for the offences under the Act. The respondents argued that the lateness of their appeals should be excused due to the complexity of the case and the time required to gather evidence. However, the court held that the appeals were significantly out of time, and the statutory time limits for such appeals were jurisdictional, meaning the court lacked the authority to entertain the appeals. The court emphasised the importance of adhering to statutory time limits in criminal appeals and found that the respondents' appeals were barred by the limitations period.

Consequently, the court dismissed the applications for leave to appeal, confirming that the earlier decisions of the single judge were final. The court underscored the necessity of strict compliance with statutory provisions concerning time limits for appeals, particularly in criminal matters. The appeals against sentence and conviction were thus denied, and the respondents' contentions regarding the authorisation of the prosecution and the lateness of the appeals were rejected.

Orders