ON APPEAL FROM:
For File No              :  SJA 1004 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CALDER SM
File No  :PE 42140 of 2000
For File No              :  SJA 1005 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CALDER SM
File No  :PE 51590 of 1998, PE 53620 of 1998, PE 53621 of 1998, PE 53622 of 1998, PE 53624 of 1998, PE 4290 of 1999, PE 4293 of 1999, PE 5744 of 1999, PE 5746 of 1999, PE 5747 of 1999, PE 5748 of 1999, PE 2577 of 2000
For File No              :  SJA 1035 of 2001
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :GORDON SM
File No  :CC 4044 of 2000
For File No              :  SJA 1061 of 2001
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :CULLEN SM
File No  :PE 611 of 2001

Catchwords:

Appeal - Single judge appeal - Children and Community Services Act 2004 (WA) - Protection order - Delay - Utility of appeal

Appeal - Single judge appeal - Dismissal for want of prosecution - Delay

Criminal law - Appeal against conviction and sentence - Delay - Utility of appeal where sentence no longer impacts time to be spent in custody

Criminal law - Appeal against conviction and sentence - Automatic cancellation of parole order - Calculation of time liable to be served as a consequence of cancellation

Practice and procedure - Governing legislation for parole orders made prior to the commencement of the Sentence Administration Act 1999 (WA)

Practice and procedure - Governing legislation for applications for leave to appeal under the Criminal Procedure (Summary) Act 1902 (WA) that were pending before the repeal of the Criminal Procedure (Summary) Act and the commencement of the Criminal Appeals Act 2004 (WA) - Applicable statutory test for such applications for leave to appeal

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Appeals Act 2004 (WA), s 40, s 50
Criminal Code (WA), s 697
Criminal Procedure (Summary) Act 1902 (WA), s 187, s 206A
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Justices Act 1902 (WA), s 41
Rules of the Supreme Court 1971 (WA), O 63 r 7, O 1 r 4A, O 1…

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 Cronin v Calder SM

Details

AGLC: Cronin v Calder SM [2017] WASC 145
Case: [2017] WASC 145
Decision Date: 30 MAY 2017

CaseChat Overview and Summary

The appellant, Cronin, appealed against the respondent Calder SM's decision to dismiss his appeal against a protection order under the Children and Community Services Act 2004 (WA) for want of prosecution. The appeal was dismissed due to a significant delay in filing the appeal, which the court found to be unjustifiable. The appellant also sought leave to appeal the dismissal of his appeal against conviction and sentence, and the cancellation of his parole. The appellant argued that the delay in filing the first appeal did not prejudice the respondent and that the appeal was still useful. The respondent contended that the delay was unjustifiable and that the appeal was futile.

The court examined the utility of the appeal and the delay in filing it. It noted that the appeal against the protection order was dismissed due to the significant delay in filing, which the court found to be unjustifiable. The court also considered the appellant's argument that the delay did not prejudice the respondent and that the appeal was still useful. However, the court held that the delay was unjustifiable and that the appeal was futile. The court also noted that the appeal against conviction and sentence was dismissed because the sentence no longer impacted the time to be spent in custody. The court held that the appeal was futile as the sentence had already been served.

The court further examined the calculation of time liable to be served as a consequence of the cancellation of parole. The court held that the governing legislation for parole orders made prior to the commencement of the Sentence Administration Act 1999 (WA) was the Criminal Law (Sentences) Act 1988 (WA). The court also held that the applicable statutory test for applications for leave to appeal under the Criminal Procedure (Summary) Act 1902 (WA) that were pending before the repeal of the Criminal Procedure (Summary) Act and the commencement of the Criminal Appeals Act 2004 (WA) was the test set out in section 359 of the Criminal Procedure Act 2004 (WA). The court dismissed the appeal and the application for leave to appeal.

The court dismissed the appeal against the dismissal of the appeal against the protection order and the application for leave to appeal. The court held that the delay in filing the appeal was unjustifiable and that the appeal was futile. The court also held that the appeal against conviction and sentence was futile as the sentence had already been served. The court further held that the governing legislation for parole orders made prior to the commencement of the Sentence Administration Act 1999 (WA) was the Criminal Law (Sentences) Act 1988 (WA) and that the applicable statutory test for applications for leave to appeal under the Criminal Procedure (Summary) Act 1902 (WA) that were pending before the repeal of the Criminal Procedure (Summary) Act and the commencement of the Criminal Appeals Act 2004 (WA) was the test set out in section 359 of the Criminal Procedure Act 2004 (WA).

Orders