DOWNES v The State of Western Australia - [2025] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DOWNES -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 50
CORAM:   MITCHELL JA
ARCHER JA

HEARD:   7 APRIL 2025
DELIVERED          :   7 APRIL 2025
PUBLISHED           :   8 APRIL 2025
FILE NO/S:   CACR 40 of 2025
BETWEEN:   MATTHEW GREGORY DOWNES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SWEENEY DCJ
File Number            :   IND 1527 of 2022

Catchwords:

Appeal - Practice and procedure - Whether appeal lies from a decision of the District Court of Western Australia dismissing an application for a stay of indictable proceedings

Legislation:

Criminal Appeals Act 2004 (WA), s 23 - s 26
District Court of Western Australia Act 1969 (WA), s 79

Result:

Appeal notice struck out on the ground that the appeal is incompetent

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	M L Wong

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Abbott v The Queen [2019] WASCA 90
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Connell v The Queen [No 5] (1993) 10 WAR 424
Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203
Costea v Commissioner of Police [2012] WASCA 118
Harvey v The Queen [2017] WASCA 43
House v The King (1936) 55 CLR 499
LAT v The State of Western Australia [2018] WASCA 215
Muir v The Queen [2006] WASCA 85
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
Wellstead v The State of Western Australia [2019] WASCA 130

REASONS OF THE COURT:

This is a purported appeal against a decision of the primary judge refusing to stay the appellant's sentencing proceedings. At the conclusion of argument on 7 April 2025, we ordered that the appeal notice be struck out on the ground that the appeal is incompetent. We said that we would publish reasons for making that order later. These are our reasons for making that order.

Background

On 2 February 2024,[1] the appellant was convicted on his pleas of guilty of the following two offences charged in the same indictment:
1.That between 13 February 2022 and 16 August 2022 at Orelia, he cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA).
2.That between the same dates and at the same place as in count 1, he fraudulently diverted to his own use electrical power derived from an apparatus, the property of Western Power Corporation, contrary to s 390 of the Criminal Code (WA).
[1] ts 02/02/2024, 29 - 30.
The matter was listed for a one-day trial of the issues in relation to sentencing on 22 April 2024.[2] That trial of the issues did not proceed, and on 29 April 2024 the matter was listed on 23 August 2024 for the court to consider an anticipated stay application by the appellant.[3]
[2] ts 02/02/2024, 31.
[3] ts 29/04/2024, 37.
On 19 July 2024, the hearing on 23 August 2024 was vacated on the application of the State. At the hearing on 19 July 2024, the appellant was again arraigned on, and pleaded guilty to, the charges in the indictment and the presiding judge at that hearing again recorded judgments of conviction.[4] The prosecutor then read the following statement of material facts:[5]
At approximately 4.58 on Sunday, 14 August 2022, officers from [the] Department of Fire and Emergency Services attended [the appellant's address], in Orelia in response to reports of a house fire.
Upon their arrival, [an] active fire was engulfing the roof area of the residence. Upon entering the residence, fire and rescue officers located an elaborate hydroponic cannabis-growing operation with three rooms converted for the purpose of sophisticated cultivation of cannabis.
Western Power attended the scene where it was established that the power system to the address had been tampered with to … bypass [the] power meter without recording any charge for using electricity.
Attending fire and rescue officers believed the fire was caused by the installed electrical bypass located in the rear of the house. Police attended the address and a protected forensic area was declared. On Monday, 15 August 2022, officers from the Drug and Firearms Squad executed a Misuse of Drugs Act search warrant at [the appellant's address].
A search of the residence located a sophisticated cannabis grow house. A total of three rooms were converted inside to cannabis grow rooms, which contained grow lights, transformers, extractor fans, carbon air filters and a total of 152 cannabis plants ranging between approximately 10 centimetres through to one metre in height, and 139 cannabis seedlings.
Inquiries with Landgate show that the residence was purchased on 14 February 2022 by a business owned by the [appellant].
(emphasis added)
[4] ts 19/07/2024, 40, 43.
[5] ts 19/07/2024, 43 - 44.
At the hearing on 19 July 2024, counsel for the appellant indicated that the issue the appellant wanted to raise was best dealt with as a trial of the issues rather than an application for a stay.[6] The issue concerned the fact that the material alleged to be cannabis, other than six samples, had been destroyed before the material could be independently examined by an expert engaged by the appellant. The appellant's position was that the court should find that the appellant possessed six cannabis plants rather than the 152 plants and 139 seedlings alleged in the statement of material facts.[7]
[6] ts 19/07/2024, 44.
[7] ts 19/07/2024, 45.
The trial of the issues was listed for 27 and 28 February 2025.[8]
[8] ts 19/07/2024, 48.
On 24 February 2025, counsel for the appellant made an oral application for a conditional stay of the prosecution of count 1 on the indictment until the prosecution amended its statement of material facts to allege only six plants.[9] That application was heard by the primary judge on 27 February 2025. The appellant was represented by senior and junior counsel at that hearing.
[9] ts 24/02/2025, 58 - 59.
The primary judge observed that the stay application was not made under s 90 of the Criminal Procedure Act 2004 (WA). Rather, the appellant asked the court to exercise its inherent jurisdiction to stay proceedings where their continuation would involve unacceptable injustice or unfairness or where the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of the court's processes.[10]
[10] ts 27/02/2025, 99.
The stay application arose out of the admitted failure of police to comply with the procedural requirements of s 27 of the Misuse of Drugs Act for the disposal of prohibited plants, which was said to have deprived the appellant of the opportunity to have the plants analysed under s 27A of that Act before they were destroyed.[11]
[11] ts 27/02/2025, 102, 104.
The primary judge gave detailed ex tempore reasons as to why she was not satisfied that the continuation of the proceedings involved any acceptable injustice or unfairness, or that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. Her Honour did not consider that the continuation of the proceedings should be conditional upon the prosecution amending its allegation to assert that the appellant was cultivating only six plants. She declined to make a ruling that any evidence of the approved botanist on the part of the State was inadmissible. The primary judge therefore dismissed the appellant's application to conditionally stay the prosecution.[12]
[12] ts 27/02/2025, 110 - 111.
After the primary judge made this ruling on 27 February 2025, senior counsel for the appellant sought and was granted a short adjournment to take instructions. Following that adjournment, senior counsel indicated that the appellant did not require a trial of the issues in the matter.[13] Sentencing in the matter was adjourned to 16 May 2025 to enable pre‑sentence reports to be obtained.[14]
[13] ts 27/02/2025, 113.
[14] ts 27/02/2025, 113 - 115.
The matter came back before the primary judge on 28 March 2025. On this occasion the appellant was self-represented, having terminated the services of his former lawyers. The appellant indicated that he may now wish to proceed with a trial of issues but wished for an opportunity to seek legal advice.[15] The matter was adjourned to a general duties list on 8 May 2025 for further directions after the appellant had an opportunity to obtain legal advice.
[15] ts 28/03/2025, 118 - 119.

The purported appeal to this court

On 24 March 2025, the appellant lodged a form 1 appeal notice which is prescribed for appeals under pt 2 div 3 and pt 3 div 3 of the Criminal Appeals Act 2004 (WA). The form described the decision details as the primary judge's decision on 27 February 2025 to refuse the stay application in relation to count 1 on the indictment. The form indicates that an extension of time is needed. In the supporting affidavit, the appellant deposes that he is now self-represented in the appeal and undertook the preparation of the appeal notice without legal assistance.
On 28 March 2025, the acting Court of Appeal registrar issued a notice for the parties to attend on 7 April 2025 for the court to consider:
1.Whether the appeal notice should be struck out on the basis that the appeal is incompetent.
2.To any extent that a right of appeal is conferred by s 79(1)(b) of the District Court of Western Australia Act 1969 (WA), whether leave to appeal should be granted or refused under that section, or referred to the hearing of the appeal.

Competence of the appeal

The common law does not provide for appeals from judicial decisions. In Australia, appeals are entirely creatures of statute.[16] The appellant can only have a right of appeal to this court if, and to the extent that, it is provided for by statute.
[16] State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 [72] (Kirby J). This statement was repeated by Kirby J in the context of an appeal against criminal conviction in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 [68] and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [57].
Part 3 of the Criminal Appeals Act makes provision for appeals from 'superior courts' as defined in s 4(2) (here, the District Court) in relation to charges of indictable offences. Section 23(1) of the Criminal Appeals Act provides for an appeal to this court by an 'offender convicted of an offence on indictment'. Once convicted, the offender may appeal against the conviction, sentence or consequential orders. Section 24 gives rights of appeal to a prosecutor, including from a decision ordering an adjournment of proceedings on a charge of an indictable offence.[17] Part 3 does not confer a right of appeal of that kind on an accused person. Section 25 provides for the rights of appeal if an accused is acquitted of a charge in an indictment on account of mental impairment. Section 25A provides for the rights of appeal from certain decisions under the Criminal Law (Mental Impairment) Act 2023 (WA). Section 26 of the Criminal Appeals Act provides for rights of appeal from decisions about separate trials.
[17] Criminal Appeals Act s 24(2)(d).
None of the above provisions of the Criminal Appeals Act confer a right of appeal in the present case. While the appellant, as a convicted offender, can appeal against his conviction under s 23(1)(a) of the Criminal Appeals Act, it is not apparent that he seeks to do so in this appeal. Once the appellant is sentenced in respect of the charges, he can appeal against the sentence imposed under s 23(1)(b) of that Act, and may allege error or a miscarriage of justice in the sentencing process.[18] However, he has not yet been sentenced. None of the other provisions of the Criminal Appeals Act provide for the appellant to appeal against an order refusing to grant a conditional stay of sentencing proceedings which have not yet concluded.
[18] See LAT v The State of Western Australia [2018] WASCA 215 [39], approved in Abbott v The Queen [2019] WASCA 90 [44] and Wellstead v The State of Western Australia [2019] WASCA 130 [87].
Section 79(1) of the District Court of Western Australia Act relevantly provides:
A party to an action or matter who is dissatisfied with -
(a)a final judgment, may appeal from that judgment to the Court of Appeal;
(b)a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal[.]
It is established that s 79 operates subject to the Criminal Appeals Act. As this court noted in Harvey v The Queen:[19]
Part 3 div 2 of the Criminal Appeals Act was enacted in a context where it was established that cognate appeal provisions previously found in the Western Australian Criminal Code exhaustively stated the rights of appeal available in respect of decisions in criminal proceedings on indictment. Sections 23 - 25 of the Criminal Appeals Act were based on the former Criminal Code provisions. In our view, they should be construed in the same manner, so that generally an accused person in criminal proceedings on indictment has no right of appeal in respect of interlocutory orders unless and until they are convicted. At the point of conviction, the convicted person can challenge an interlocutory decision by appealing against conviction on the ground that the judge made a wrong decision on a question of law or there was a miscarriage of justice. In that manner the provisions of the Criminal Appeals Act reflect the public policy against the fragmentation of criminal proceedings by appeals against and other challenges to interlocutory decisions. (citations omitted)
[19] Harvey v The Queen [2017] WASCA 43 [8].
In Harvey, this court held that s 79 of the District Court of Western Australia Act did not provide for a right of appeal against a refusal of an adjournment of a trial before conviction.
The question of whether an appeal lay from a refusal of a stay of indictable proceedings prior to conviction under the former appeal provisions of the Criminal Code was considered by Malcolm CJ, Rowland and Franklyn JJ in Connell v The Queen[No 5].[20] The court held that the appeal in that case was incompetent. The same approach was taken by Wheeler JA under the provisions of the Criminal Appeals Act in Muir v The Queen,[21] where an appeal against an order refusing to stay proceedings prior to trial was found to be incompetent.
[20] Connell v The Queen[No 5] (1993) 10 WAR 424.
[21] Muir v The Queen [2006] WASCA 85.
These cases establish that a decision to refuse a stay of criminal proceedings falls within the field covered exclusively by the Criminal Appeals Act. We see no basis for distinguishing a refusal of a stay after conviction and prior to sentence from a refusal of a stay prior to conviction. A right of appeal under s 79 of the District Court of Western Australia Act has been recognised to exist where separate proceedings can be identified within a criminal trial.[22] Connell and Muir also establish that an application for a stay of criminal proceedings is not a separate proceeding of this kind.
[22] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 (drug trafficker declaration); Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [27] (third party proceedings in relation to subpoenas); Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172 [24] ‑ [25] (suppression orders).
In oral submissions, the appellant contended that he could establish all the grounds for challenging an interlocutory decision referred to in House v The King.[23] However, House deals with the way an appellate court should determine an appeal against a discretionary decision. House is concerned with how a court exercises its appellate jurisdiction when a right of appeal is conferred, rather than when a right of appeal exists.
[23] House v The King (1936) 55 CLR 499, 504 - 505.
For these reasons, neither the Criminal Appeals Act nor the District Court of Western Australia Act create a right of appeal in the present case.
Even if, contrary to the view we have just expressed, s 79(1)(b) of the District Court of Western Australia Act provided for an appeal against refusal of a conditional stay subject to the grant of leave, we would have refused leave to appeal in this case. It has now been over a year since the appellant was convicted of the offences charged in the indictment. Contrary to s 16(2) of the Sentencing Act 1995 (WA) which provides that the sentencing of an offender must not be adjourned for more than 6 months after the offender has been convicted, the appellant has still not been sentenced. While, under s 16(3) of the Sentencing Act, this does not prevent the appellant from being sentenced, any further delay of the appellant's sentencing should be avoided. The grant of leave to appeal against the refusal of a stay would have the almost inevitable consequence of further delay of the sentencing proceedings. It is not in the interests of justice for the sentencing proceedings to be fragmented by an appeal. Further, the refusal of leave to appeal would leave it open to the appellant to appeal against his sentence, once it was imposed, on the ground of error or miscarriage of justice in the sentencing process. The above circumstances would justify the refusal of leave to appeal in the present case even if (contrary to our view) the present appeal was provided for by s 79(1)(b) of the District Court of Western Australia Act.[24]
[24] See Harvey [12]; Costea v Commissioner of Police [2012] WASCA 118 [9].

Orders

For the above reasons, at the hearing on 7 April 2025, we ordered that the appeal notice in this matter should be struck out on the ground that the appeal is incompetent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
8 APRIL 2025