Cuijpers v Thompson
[2008] WASC 95
•23 APRIL 2008
CUIJPERS -v- THOMPSON [2008] WASC 95
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 95 | |
| Case No: | SJA:1007/2008 | 23 APRIL 2008 | |
| Coram: | McKECHNIE J | 23/04/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | FREDERIK JOHAN CUIJPERS STEVEN THOMPSON JCK |
Catchwords: | Criminal law and procedure Breach of restraining order Extension of time No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STEVEN THOMPSON
Respondent
- Appellant
AND
JCK
Respondent
(Page 2)
ON APPEAL FROM:
For File No : SJA 1007 of 2008
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 22143 of 2005, PE 22144 of 2005, PE 22145 of 2005
For File No : SJA 1008 of 2008
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R BURTON
File No : PE 1971 of 2004
Catchwords:
Criminal law and procedure - Breach of restraining order - Extension of time - No new principles
Legislation:
Nil
Result:
Leave to appeal refused
(Page 3)
Category: B
Representation:
SJA 1007 of 2008
Counsel:
Appellant : In person
Respondent : Mr C S Bydder
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
SJA 1008 of 2008
Counsel:
Appellant : In person
Respondent : No appearance
Amicus Curiae : Mr C S Bydder
Solicitors:
Appellant : In person
Respondent : No appearance
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 McKECHNIE J: Before the court are two applications for leave to appeal. SJA 1007/08 seeks leave to appeal convictions for three breaches of a misconduct restraining order. The convictions occurred on 18 August 2005. The appeal notice was not filed until 6 February 2008. SJA 1008/08 seeks leave to appeal against the making of a restraining order on the application of JCK. The restraining order was made on the 20 May 2005.
2 I will deal with SJA 1008/08 first. The appeal to this court is incompetent. If there is an appeal against that order it must be to the District Court under the Restraining Orders Act 1997 (WA): s 64 and the Magistrates Court Civil Proceedings Act 2004 (WA).
3 Counsel appearing as amicus curiae on that matter draws attention to the Supreme Court Act 1935 (WA) s 17 which provides that the court may transfer a case to the lower court. I doubt whether s 17 can cover a situation such as the present where this court lacks jurisdiction to begin with. However, even if I am wrong about this, I would not remit the matter in discretion because the appellant has sworn that JCK died and was cremated on 3 July 2007. Application SJA 1008/08 is therefore dismissed.
4 I return to SJA 1007/08. The application for leave to appeal was filed nearly 2 1/2 years out of time. Any right of appeal has therefore been lost. An appeal cannot be commenced unless the court otherwise orders. It is therefore necessary for the appellant to satisfy me that there are reasons which explain or excuse the delay, or to show that there will be a miscarriage of justice such that would necessitate granting an extension of time.
5 The appellant swore an affidavit dated 22 January 2008 which sets out some of the history since the hearing, from his point of view. Some of the matters raised in the affidavit centre on a letter apparently written by Moncrieff Real Estate on 16 July 2004. The appellant places store on this letter as he says he never received it. The letter seems to have very limited relevance.
6 I note the handwriting expert engaged by the appellant noted there is some doubt about the authenticity of the questioned signature in the form of some fairly obvious differences. On the other hand the similarities found provide some support for genuineness of the original signature. The expert says:
(Page 5)
- I am not able to express a conclusion that favours one scenario over the other with any confidence in this particular case. My conclusion lies in the inconclusive level [24].
7 That report was received in February 2007 nearly a year before this application was lodged. This is hardly a firm base for the introduction of fresh evidence, even if that evidence was relevant. I also take into account the other non-expert material to which the appellant has referred this morning. Contrary to the appellant's repeated submissions this morning, there is no evidence that the letter was a forgery. There is, at most, some material which raises some question about it but the evidence is far short of establishing that the letter is a forgery.
8 At the commencement of the hearing, the magistrate confirmed that there was a misconduct restraint order in place and that the appellant had been personally served with it. Those matters were conceded.
9 The only matter in issue was whether or not the appellant had breached the order in the first instance by going within a 5 m range and doing some mulching. Whether or not the appellant received the letter dated 16 July 2004 advising him not to do any gardening or maintenance on the common property therefore seems to be immaterial.
10 The appellant testified at the hearing before the magistrate (ts 94), that he spoke with Ms Moncrieff. He said to her:
I can mulch the gardens without coming within the 5 m of her front door.
11 And on that, Ms Moncrieff said:
Well go ahead then Fred, go ahead and do it. We've got to get this done.
12 The evidence from JCK was that when she came home on 18 August 2004 she pulled into her carport and noticed that the garden was buried in mulch. Another prosecution witness, Ms L, said that the appellant had told her the reason he touched JCK's garden was that he wanted to make a uniform garden and that this was the only one reason he touched her garden. He said he received a letter from the Strata not to touch her garden but just wanted to make a uniform garden. That is why he touched her garden.
13 That seems to me to be the chief relevance of the letter which is a matter of credibility, and limited credibility at that. The letter does not have any bearing on the incident at the dance hall on 8 October 2004, or Ms H's evidence.
(Page 6)
14 The grounds of appeal also complain that the magistrate refused to return transcript during the lunch interval, 'Preventing myself from locating and cross examining a witness on conflicting evidence.' The matter appears (ts 56) where the appellant wished to put certain parts of the evidence of the previous hearing to the witness.
15 The witness was asked (ts 59): 'Well, [JCW], you've had a chance to inspect this?' 'No I haven't.' The magistrate pointed out if the appellant was not prepared he could continue asking questions and get back to it later.
16 The matter was referred to again at (ts 63). At transcript 64, after detailing areas about which he cross-examined, he said in an interchange with the bench:
MR CUIJPERS: But all - - but your Worship, this includes the evidence of - - that Ms H's going to be testimony - - testifying to.
HER HONOUR: That's a separate question and - -
MR CUIJPERS:Yeah.
HER HONOUR: - - she can find both.
MR CUIJPERS: Yes. That's - - that's what I require for her to find for me, - -
HER HONOUR: Thank you.
MR CUIJPERS: - - because it's - - it's very relevant. Thanks. I don't know what to bring up now.
17 It was then that her Honour said:
HER HONOUR: It - - look, it- - -it's probably a convenient time to give everybody a break and allow the witness the opportunity to look through the document.
MR CUIJPERS: Yes.
18 At that stage it would appear on the transcript that the appellant wanted the witness to examine the transcript.
19 There was some discussion and the magistrate gave the witness the standard warning about not discussing her evidence with others. When the court resumed the witness said she was not able to answer the question. She said, 'I believe that is not the full transcript. It just says end
(Page 7)
- of request at the end of it.' The matter was not further pursued by the appellant at the trial. There is nothing in this ground.
20 The reasons advanced by the appellant in both of his affidavits are quite unsatisfactory to explain the delay. He complains about his lawyers. He speaks of the various action he took in relation to the police through Freedom of Information and complaints about them. He has detailed to me the difficulties he had in obtaining lawyers to act on his behalf.
21 None of these matters entirely explains the delay, even making allowances for the fact that the appellant is a litigant pro se. Moreover, the delay has caused irreparable prejudice to the respondent because JCK is now deceased. She was the major witness for the prosecution, being the person for whom the misconduct restraining order operated. Moreover memories fade with time which may affect other witnesses.
22 Should there be a retrial, the general prejudice suffered by a respondent when there has been a gross delay for reasons not properly explained are amplified in this case by the death of a major witness.
23 In the end, this was a straightforward case. The magistrate correctly directed herself 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. In fact she found him to be an unmitigated liar, a fact which the appellant obviously takes great issue with.
24 Those were matters which were for the magistrate. While there are some oddities in relation to some of her views of the evidence during the course of the hearing (not reflected in the grounds of appeal), I have nevertheless considered them in relation to whether the interests of justice require an extension of time.
25 I have listened to the appellant advance the arguments he wished to advance on both the grounds of appeal as specified in the notice and any other matters that he wished to raise. There is nothing which gives rise to any sense that there has been an injustice requiring an extension of time.
26 For example, the appellant produces photographs showing distances in relation to the garden. I am not sure that the photographs actually particularly support the appellant's case but even so they were obviously material freely available and could have been led at the trial.
(Page 8)
27 The grounds do not satisfy me that there are reasonable prospects of success in respect of any of them. The lengthy delay in seeking leave to appeal is largely unexplained, at least satisfactorily unexplained.
28 Although there appears to be much activity by the appellant in the period, even making all allowances for a litigant pro se, the delay in lodging an appeal for so long is nevertheless inexplicable having regard, as I say amongst other things, to the fact that the expert's report (which the appellant does not like) was in his possession for nearly a year before the application was made. Moreover, in this case there is real prejudice to the prosecution in granting an extension of time within which to appeal.
29 Therefore on the basis that the delay is unsatisfactorily explained, that there is real prejudice to the prosecution, and that there is in any event no injustice because there are no reasonable prospects of success, the application for an extension of time in SJA 1007/08 is refused.
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