Cuijpers v Sander
[2008] WASCA 159
•29 JULY 2008
CUIJPERS -v- SANDER [2008] WASCA 159
| Link to Appeal : | [2009] WASCA 84 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 159 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:74/2008 | 22 JULY 2008 | |
| Coram: | MILLER JA | 29/07/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Grounds of appeal struck out | ||
| B | |||
| PDF Version |
| Parties: | FREDERIK JOHAN CUIJPERS PAUL DOUGLAS SANDER |
Catchwords: | Appeal Appeal from decision of single judge Whether grounds of appeal have any reasonable prospect of success |
Legislation: | Freedom of Information Act 1992 (WA) Restraining Orders Act 1997 (WA), s 61(2) Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f) |
Case References: | Krakouer v The State [2006] WASCA 81; (2006) 161 A Crim R 347 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CUIJPERS -v- SANDER [2008] WASCA 159 CORAM : MILLER JA HEARD : 22 JULY 2008 DELIVERED : 29 JULY 2008 FILE NO/S : CACR 74 of 2008 BETWEEN : FREDERIK JOHAN CUIJPERS
- Appellant
AND
PAUL DOUGLAS SANDER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : CUIJPERS -v- THOMPSON [2008] WASC 95
File No : SJA 1007 of 2008, SJA 1008 of 2008
Catchwords:
Appeal - Appeal from decision of single judge - Whether grounds of appeal have any reasonable prospect of success
(Page 2)
Legislation:
Freedom of Information Act 1992 (WA)
Restraining Orders Act 1997 (WA), s 61(2)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f)
Result:
Grounds of appeal struck out
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr C S Bydder
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Krakouer v The State [2006] WASCA 81; (2006) 161 A Crim R 347
(Page 3)
1 MILLER JA: The appellant appeals from a decision of McKechnie J delivered on 23 April 2008 where his Honour dismissed an application for leave to appeal in SJA 1007 of 2008. The application related to convictions for three breaches of a misconduct restraining order. The convictions were recorded on 18 August 2005, but notice of appeal was not filed until 6 February 2008.
2 There was also an application in SJA 1008 of 2008, where the appellant sought leave to appeal against the making of a restraining order on the application of one JCK. That restraining order was made on 20 May 2005. McKechnie J dismissed that application and no issue is raised by the appellant about the dismissal.
3 The application for leave to appeal in SJA 1007 of 2008 was filed nearly 2 1/2 years out of time. McKechnie J correctly held that the appellant had the obligation to satisfy him that there were reasons which explained or excused the delay, or alternatively showed that there would be a miscarriage of justice unless the extension of time was granted (Krakouer v The State [2006] WASCA 81; (2006) 161 A Crim R 347).
Grounds of appeal before McKechnie J
4 The grounds of appeal before McKechnie J were as follows:
1. Court records of [defence] documents namely a letter dated 16 July 04 was tendered and recorded by Police as a tendered [defence] document but not listed in court exhibit list,
2 With new and existing evidence prove the 16 July letter is fraudulent that Police witnesses testified to.
3 Magistrate [Lane's] refusal to return my transcript during the lunch interval prevented myself from locating and cross-examining witness on conflicting evidence from the m.r.o hearing ie her evidence of being mailed a copy letter during police hearing and saying during m.r.o. she picked it up.
- see more grounds with affidavit enclosed
(Page 4)
- and there was no evidence (as contended for by the appellant) that the letter was a forgery.
Proceedings in the Magistrates Court
6 The question which was in issue in the Magistrates Court was whether the appellant had breached a restraining order by going within a five-metre range of JCK and by doing gardening work at her unit in circumstances where the appellant was within five metres of the unit.
7 The decision in the Magistrates Court reveals that JCK resided at Mosaic Street, Shelley. She had been in a personal relationship with the appellant and said she had moved to that address to get away from him. However, he moved into the premises next door approximately two months after she moved in.
8 JCK had obtained a misconduct restraining order against the appellant and the question before the magistrate was whether the appellant had breached it.
9 The misconduct restraining order restrained the appellant from approaching within five metres of the front entrance of the Mosaic Street property and also restrained him from approaching within five metres of JCK (the protected person).
10 The complaints which were heard in the Magistrates Court alleged:
(1) That on 18 August 2004 at Shelley the appellant, having been personally served with a misconduct restraining order 2003 001562M breached that order by approaching within five metres of the front entrance of [the property at Mosaic Street], Shelley contrary to the provisions of s 61(2) of the Restraining Orders Act 1997 (WA).
(2) On 8 October 2004 at Como the appellant, having been personally served with a misconduct restraining order 2003 001562M breached that order by approaching within five metres of the protected person contrary to s 61(2) of the Restraining Orders Act 1997 (WA).
(3) On 8 October 2004 at Como the appellant, having been personally served with a misconduct restraining order 2003 001562M breached that order by approaching within five metres of the protected person contrary to the provisions of s 61(2) of the Restraining Orders Act 1997 (WA).
(Page 5)
11 JCK gave evidence that on 18 August 2004, she was living at Mosaic Street, Shelley, but she had gone out that day. When she came home, she noticed that the front garden bed had been mulched. This garden bed constituted common property in a block of units.
12 The appellant was working at the units as a maintenance man and JCK contended that the appellant had received a letter from a Ms Moncrieff, agent for the premises, advising him that he was not to touch JCK's garden. There was a dispute as to whether the letter had ever been received by the appellant. All that could be proven was that the letter was posted to the appellant. The appellant contended that he had never received it. There was, however, no doubt that JCK's garden had been mulched. The appellant admitted that he did it.
13 There was apparently another incident at the Broadwater Hotel when the appellant was alleged to have spoken to JCK at the bar, and then later approached her and invited her to dance.
14 Magistrate Lane considered that JCK was a credible and reliable witness. She accepted her evidence in its entirety. She accepted also the evidence of other prosecution witnesses. She found the evidence of the appellant in relation to some aspects of the case to be 'completely ludicrous' and considered that the appellant's testimony was not credible. She found the charges against the appellant to be proven to the criminal standard of proof beyond reasonable doubt and entered convictions against him in relation to three alleged breaches of the restraining order.
Application for leave to appeal
15 The application for leave to appeal before McKechnie J appears to have revolved primarily around ground 2. This involved the question whether the letter allegedly written by Ms Moncrieff was a forgery. As I have already mentioned, McKechnie J considered that there was no evidence that the letter did constitute a forgery.
16 There was also a ground of appeal (ground 3) which related to the conduct of the proceedings before the magistrate. An issue arose during the trial as to whether the magistrate refused the appellant access to transcript to enable him to properly cross-examine. However, as McKechnie J points out in his reasons, the appellant did not pursue this matter at the hearing. The ground of appeal in relation to this issue was accordingly dismissed.
(Page 6)
17 The only remaining ground of appeal (ground 1) alleged that a document tendered in evidence was not listed in the court exhibit list. The mere fact that a document was tendered in the proceedings but not noted on the exhibit list could not have caused any miscarriage of justice.
Conclusion on application for leave to appeal
18 McKechnie J considered that there was no satisfactory explanation for the long delay in the filing of a notice of appeal. His Honour added that the delay had caused irreparable prejudice to the respondent because JCK was now deceased. She was the major witness for the prosecution and the person for whom the misconduct restraining order operated. Furthermore, the case was a straightforward one in which the magistrate correctly directed herself as to the burden and standard of proof. She accepted the prosecution witnesses as being entirely credible and reliable and found that the appellant's evidence was not.
19 McKechnie J held that there would be no injustice occasioned to the appellant if the application for an extension of time was refused because there were no reasonable prospects of success in relation to the grounds of appeal.
Appeal from refusal of leave to appeal
20 The appellant has filed a notice of appeal from the decision of McKechnie J. The draft grounds of appeal are in the following terms:
Hajinoor v Dench supra at 26
Harling v Hall 1997 94 a Crim R 437
Mickelberg v The Queen 2004 29 WAR 13 at 413
Button v The queen 2002 25 WAR 382 per Malcolm-CJ at 391
Expand further at a later date.
- These grounds of appeal make no sense. Reference to cases as grounds of appeal constitute quite inadequate grounds of appeal.
21 In a document purporting to be an affidavit of the appellant sworn 15 July 2008, the appellant has indicated that the appeal he intends to pursue will also include:
Sufficiency of Magistrates Reasoning
Issues of credibility
Discretion by Magistrate to not raise previous inconsistent statement of witness
Forgery and uttering a forgery (test of evidence to apply)
Conspiracy to defeat justice
- None disclosure by prosecution
Miscarriage of justice
Fresh/New Evidence
22 The affidavit then goes on to say:
The whole case to be considered as a petition
1) The cases for subpoena of Ms Sabina Moncrieff and Ms Rachael Tiede are interwoven as are the appellants appeal books SJAI007/008 of 2008.
The appellant alleges Ms Tiede acted and conspired with others to fabricate a letter dated the 16th July 2004 to maliciously harm the appellant for proceedings in PE1971-04
The appellant alleges Ms Tiede knowing the appellant was to face charges on the 18th August 2004 PE 22143-5 falsely represented to the appellant lodging of the company mail book would suffice to dispel charges relating to the breach of M>R>O
2) Ms Sabina Moncrieff can provide evidence for the appellant that no letter dated 16th July 04 was sent due to the appellants attendance at the company office, where we discussed our options to mulching the garden and that the remaining progress would wait until the expiry of the M<R<O order. Other conversational matters significant to why no letter was sent to the appellant.
3) Mr Steven Blyth from Lewis BIyth and Hooper represented the appellant in PE 1971-04 and his appearance is required for his knowledge of the letter, that includes answering the insurmountable correspondence between us that the document is questionable and proberly [sic] a forgery prior to the march hearing of PE 1971-04 And confirm the personal handwritten notes of PE 1971-04 with the notation attached to the cover page of exhibits stating MFI 8 16/7/04 letter to Fred - Didn't Get And ask why with all the correspondence as per SJA 1008/2008 the suspect letter was allowed to form part of the applicants case. Pages 18-20 and 20 respondent to proceedings.
Furthermore and importantly the attendance records of constable Paul Sander attending the appellants residence and that of the complainant on or about the 4th August 2004 as per complainants statements page 21 of PE 1971-04 (subject to orders wanted in previous application notice)
That the appellant was asked by Constable Sander about receiving a letter from the corporate body Managers (Moncrieff Realty) that the appellant or complainant could not furnish and subsequently he Constable Sander left the appellants residence on the 4th August 2004 satisfied the appellant had no case to answer.
(Page 8)
- Casesreferences to include,
Harling V Hall
Hajinoor V Dench
Mickelburg V The Queen
Mallard V The Queen
Button V The Queen
Carter V R
Talbot V Lane SM
Dalton V Dalton
Bolitho V The State of Western Australia
Easterday V The Queen
Roddan V The queen
Smith V Foley
Brott V The Queen (High Court)
- Various papers are annexed to this document, and they are a combination of handwritten notes, the authorship of which is not clear.
23 The appellant also handed up a set of written submissions, included in which are many authorities dealing with matters that include the nature of a conspiracy, the issue of non-disclosure, abuse of process, examination of forged documents, fraud, expert evidence and jurisdictional error. These submissions seek to re-argue some of the matters that were the subject of the hearing before McKechnie J, but also new matters that are not contained within the grounds of appeal.
24 The appellant also sought, after the hearing, to refer to the transcript of a recording of a telephone conversation relating to the letter alleged to be a forgery. No leave was given to file this material, but, in any event, McKechnie J dealt with the issue at the hearing of the leave application.
25 It appears from this material that the appellant is seeking to pursue a number of avenues of appeal, including the presentation of fresh evidence and/or new evidence.
26 So far as fresh/new evidence is concerned, there is no application before the court to adduce such evidence and no affidavits to show what fresh or new evidence there may be.
27 The other areas which the appellant says he intends to pursue do not raise grounds of appeal, but raise a number of topics.
28 The court is not in a position to receive a 'petition' and the material to which reference is made under the heading of 'A petition' relates primarily to the question of the letter of 16 July 2004 which McKechnie J concluded had limited relevance and was not shown to be a forgery. The matter has
(Page 9)
- already been the subject of ventilation before McKechnie J without success.
29 In the end, the question is whether the grounds of appeal formulated by the appellant in his notice of appeal dated 16 May 2008 can be said to reveal reasonable prospects of succeeding, and clearly they do not. Even supplemented by the material in the purported affidavit of 15 July 2008, they still fail to reveal grounds of appeal which could be said to have a reasonable prospect of succeeding.
30 A litigant in person must be afforded a degree of accommodation in relation to the formulation of grounds of appeal, but in this case the grounds fail to meet the criteria that they reveal grounds reasonably arguable. There are no satisfactory grounds at all. A single judge of the Court of Appeal has the power to strike out any ground of appeal that does not have a reasonable prospect of succeeding (Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(f)) and, in my opinion, the draft grounds of appeal which are contained within the appellant's notice in this case should be struck out pursuant to that rule.
31 There are also a number of applications brought by the appellant. The first (6 June 2008) is for an order seeking certain information pursuant to the Freedom of Information Act 1992 (WA). The application is in the following terms:
The applicant applies for orders sought from the Office of Freedom of Information for the following disclosure,
Interviews and content of interview by Constable Paul Sander with 2 persons of interest (Kay/Judy) in relation to a complain laid on or abut the 7th May 2004 by J.C Keeler and or writing to the persons and seek approval for the disclosure from them to the applicant.
Interview by Constable Paul Sander with F. Cuijpers on the 5th August 2004 in relation to breach of m.r.o. and a letter from Moncrieff Realty.
Interview by Police with F. Cuijpers in relation to a complaint by J.C Keeler in August 2004 relating to attending to a gate repair.
32 The second (10 June 2008) is an application which is in the following terms:
The applicant applies for; A subpoena to compel past and present owners of [the property] to provide the appellant with original documents bearing the signature of S.Moncrieff our former corporate body manager for the purpose of conducting further examination of the signature of the said person.
(Page 10)
33 The third (14 July 2008) appears to relate to much the same subject matter as the second. It is in the following terms:
The applicant applies for A subpoena to be issued to Ms Rachael Tiede formally [sic] employed by Moncrieff Realty … to attend The Supreme Court on the 22nd day of July 2008 for proceedings in CACR/74/2008 under criminal procedures act 2004 section 162 and or criminal appeals act 2004 section 40(1)(a)to(e) and (f)(g) if applicable and
Compel witness in oral evidence to section 73A of the evidence act 1906 to answer to
The surveillance devises act 1998 section 28
Answer to recording content section 79f of s5
34 The fourth (14 July 2008) relates again to the same subject matter. It is in the following terms:
The applicant applies for, A Subpoena to be issued to Ms Sabina Moncrieff … to attend the Supreme Court on the 22nd day of July 2008 for proceedings of CACR/74/2008 with the company mail book disclosing entries relevant to 16th July 2004 under section 159(1)(a)(i)(ii) of the criminal procedure act 2004 and or Criminal appeals act 2004 section 40(1)(a)(b)(c)(i)(ii) (e)(e) and section (f)(g) if applicable
35 The fifth (also dated 14 July 2008) is in the following terms:
The applicant applies for - A subpoena to be issued to Steven Blyth of Lewis Blyth and Hooper for examination of knowledge of a letter addressed to the appellant dated 16th July 2004 he received a copy of from Moncrieff Realty and related matters of hearing PE 1971/04 at the supreme court on Tuesday 22 July 2004
Pursuant to the criminal appeals act 2004 section 40
36 Because the grounds of appeal have no prospects of success, it is unnecessary to deal with these applications. Unless at least one of the grounds of appeal has a reasonable prospect of success, the applications for subpoenas are irrelevant. Any evidence which is sought to be adduced pursuant to those subpoenas could not be relevant to any ground of appeal. The applications should each be dismissed.
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