Costea v Commissioner of Police
[2012] WASCA 118
•11 JUNE 2012
COSTEA -v- COMMISSIONER OF POLICE [2012] WASCA 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 118 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:46/2012 | ON THE PAPERS | |
| Coram: | PULLIN JA | 11/06/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NICOLAE CHRISTYAN COSTEA COMMISSIONER OF POLICE |
Catchwords: | Appeal Jurisdiction Application to cancel witness summons in part upheld by District Court judge Whether right of appeal to Court of Appeal Whether Criminal Appeals Act 2004 (WA) covers the field in relation to the appellate rights of a party to criminal proceedings Appeal Application for leave to appeal a decision made as part of the trial process Whether decision can be reviewed while trial still underway |
Legislation: | Criminal Procedure Act 2004 (WA) District Court of Western Australia Act 1969 (WA) Supreme Court (Court of Appeal) Rules 2005 (WA) |
Case References: | Australian Crime Commission v Marrapodi [2012] WASCA 103 Connell v The Queen (No 5) (1993) 10 WAR 424 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COSTEA -v- COMMISSIONER OF POLICE [2012] WASCA 118 CORAM : PULLIN JA HEARD : ON THE PAPERS DELIVERED : 11 JUNE 2012 FILE NO/S : CACV 46 of 2012 BETWEEN : NICOLAE CHRISTYAN COSTEA
- Appellant
AND
COMMISSIONER OF POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 1591 of 2011
Catchwords:
Appeal - Jurisdiction - Application to cancel witness summons in part upheld by District Court judge - Whether right of appeal to Court of Appeal - Whether Criminal Appeals Act 2004 (WA) covers the field in relation to the appellate rights of a party to criminal proceedings
Appeal - Application for leave to appeal a decision made as part of the trial process - Whether decision can be reviewed while trial still underway
Legislation:
Criminal Procedure Act 2004 (WA)
District Court of Western Australia Act 1969 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : No appearance
Solicitors:
Appellant : S C Nigam & Co
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
Connell v The Queen (No 5) (1993) 10 WAR 424
1 PULLIN JA: The appellant has made an application for an urgent appeal order.
2 The appellant has been charged with possession of drugs, with intent to sell or supply, which drugs were found in a car. The appellant arranged for the issue of a witness summons requiring the respondent to produce to the court notes and records, including police diaries, entries and running sheets, taken by all police officers relating to surveillance of a person or people other than the accused who the accused said may have had access to the vehicle in which the drugs were found. The respondent objected to the production of the records on the basis of public interest immunity. This objection was upheld by Scott DCJ on 23 May 2012 after giving the appellant a full opportunity to make submissions. The order was in effect an order made under s 166 of the Criminal Procedure Act 2004 (WA).
3 On 28 May 2012 the appellant filed an appeal notice in this court claiming that he had a right of appeal under s 79(1)(b) of the District Court of Western Australia Act 1969 (WA). If there is a right of appeal, leave to appeal is necessary because the decision appealed against is not a final order: s 79(1)(b) District Court of Western Australia Act. Attached to the appeal notice was one ground of appeal reading:
That the Learned Judge's order to discharge the Appellant's witness summons to produce be set aside.
Particulars:-
1. In upholding the Respondent's objection to produce the materials in accordance with the witness summons to produce, and, discharging the witness summons to produce, the Learned Judge has denied the Appellant procedural fairness.
5 The application for expedition has no merit. The decision of Scott DCJ was a decision which is taken to be a decision made in proceedings which are taken to be part of the accused's trial: see s 98(6) Criminal Procedure Act. The ground of appeal has no reasonable prospect of succeeding and in consequence the appeal should be dismissed pursuant to r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for the reasons given below. This decision is made on the papers as permitted under r 7(1)(b).
6 A third party has a right of appeal under s 79 of the District Court Act to challenge a decision about production of documents on a witness summons in criminal proceedings: see Australian Crime Commission v Marrapodi [2012] WASCA 103, but the right of appeal a party to a criminal case has is governed by the Criminal Appeals Act2004 (WA) which covers the field. This Act is later than the District Court Act 1969 and it specifically governs appeals against conviction.
7 Errors of law or miscarriages of justice occurring in the course of decisions made during a criminal trial are not dealt with unless there has been a conviction: Marrapodi [27] (McLure P). If there is no conviction there is no need for an appeal. If there is a conviction the decision may be reviewed in the course of an appeal against conviction. What was said by the President at [27] was obiter but, in my opinion, it is a correct reflection of the law. It was also the law based on the legislation which governed appeals before the legislative package of Acts creating the Court of Appeal and replacing the old statutory appeal rights with the appeal rights now conferred by the Criminal Appeals Act:Connell v The Queen (No 5) (1993) 10 WAR 424.
8 For the above reasons the application for the expedited appeal order is dismissed and the appeal is dismissed.
9 Even if that reasoning were wrong, and there were a right of appeal under s 79 of the District Court Act, then leave would have been refused because the decision is a decision made as part of the trial process. It would be inimical to the administration of justice in a jury trial to have decisions made by a trial judge during the course of the trial reviewed separately by the Court of Appeal while the trial was still underway.
3
3