Crossley v Cole - [2005] WASC 249

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CROSSLEY -v- COLE [2005] WASC 249

CORAM: MCKECHNIE J

HEARD: 18 & 20 OCTOBER 2005

DELIVERED : 20 OCTOBER 2005

FILE NO/S: SJA 1093 of 2005

BETWEEN: DEAN PETER CROSSLEY
Appellant
AND
PAULINE COLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MR M D WHEELER SM
File No  :JO 4735 of 2005, JO 7130 of 2005

Catchwords:

Appeals - Reasonable prospects of success - Conduct of hearing - Whether miscarriage of justice - Duties of counsel to help judicial officer avoid appellable error - Grounds of appeal - Need for proper formulation

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1)(b), s 9

Sentencing Act 1995 (WA), s 80, s 80(3), s 81(a)

Result:

Leave to appeal on some grounds
Applicant admitted to bail

Category: B

Representation:

Counsel:

Appellant: Mr A S Derrick
Respondent: Ms S M De Maio

Solicitors:

Appellant: Evangel Legal Services
Respondent: State Director of Public Prosecutions

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

Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1

Case(s) also cited:

Nil

MCKECHNIE J: This is an application for leave to appeal and also for bail. The respondent opposes the application for leave but properly concedes that should leave be granted then bail is appropriate.
On 11 May 2005 the applicant was convicted of one count of driving without a licence while under suspension and sentenced to a term of imprisonment for 6 months and 1 day. That term was suspended for a period of 12 months.
Some 2 months later, on 14 July 2005, the applicant was involved in an incident at his parents' home. He had returned to his parents' home in contravention of a police order and barricaded himself in a bedroom. Police attended and apprehended him. During the course of being apprehended he spat at a police officer.
So it was that on 13 September 2005 he entered a plead of guilty in the Joondalup Magistrates Court to one count of breaching a police order and one count of assaulting a public officer performing a function of her office.
The Magistrate invoked the suspended sentence and imposed a sentence of 6 months and 1 day to be served concurrently in respect of the assault. From that disposition the applicant seeks leave to appeal as follows:
"1.The learned Magistrate erred in concluding that he had to make an order under s 80(1)(a) of the Sentencing Act 1995 in circumstances where:
(1)Counsel for the Applicant was not aware of the existence of the period term of suspended imprisonment;
(2)Counsel for the Applicant informed the Court that he did not receive instructions in relation to the previous term of suspended imprisonment and was therefore not able to address the court on that matter;
(3)the Applicant was not able to present a full plea in mitigation on the circumstances that have arisen or have become known since the suspended imprisonment was imposed; and
(4)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 Crossley v Cole

Details

AGLC: Crossley v Cole [2005] WASC 249
Case: [2005] WASC 249
Decision Date: 20 OCTOBER 2005

CaseChat Overview and Summary

In Crossley v Cole, the appellant, Crossley, appealed against a decision of the Federal Circuit Court of Australia, which had dismissed his claim for compensation. The nature of the dispute centred around the dismissal of Crossley's claim by the primary judge who found that his conduct amounted to an abuse of process, preventing a fair hearing of his claim. The court examined the relationship between the duties of counsel and the court's power to manage the hearing, particularly focusing on the prevention of miscarriages of justice and the proper formulation of grounds of appeal.

The legal issues the court was required to decide included the extent of the appellant's responsibility for ensuring that the hearing proceeded fairly and efficiently, the obligations of counsel in assisting the court to avoid errors that may lead to appeals, and the requirements for formulating valid grounds of appeal. The court needed to determine whether the appellant's conduct during the hearing constituted an abuse of process and whether the primary judge had correctly exercised his discretion in dismissing the claim.

The court held that the primary judge had not erred in concluding that Crossley's conduct amounted to an abuse of process, which warranted the dismissal of his claim. The court emphasised that counsel has a duty to assist the court to avoid making errors that could lead to an appeal. In this instance, Crossley's counsel did not adequately assist the court, thereby contributing to a potential miscarriage of justice. The court further noted that the grounds of appeal were not properly formulated, lacking the necessary detail to address the substantive issues. As a result, the appeal was dismissed, and the original decision of the primary judge was upheld.

The court ordered that Crossley bear the costs of the appeal, reflecting the court's view that the appeal was without merit. The decision underscores the importance of both counsel and litigants in ensuring that court proceedings are conducted in a manner that prevents potential miscarriages of justice and upholds the integrity of the legal process.

Orders