Gazeley v Fisheries Department (WA)
[2014] WASC 53
•26 FEBRUARY 2014
GAZELEY -v- FISHERIES DEPARTMENT (WA) [2014] WASC 53
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 53 | |
| Case No: | SJA:1129/2013 | 18 FEBRUARY 2014 | |
| Coram: | COMMISSIONER SLEIGHT | 26/02/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NORMAN GAZELEY FISHERIES DEPARTMENT (WA) |
Catchwords: | Practice and procedure Application for stay pending hearing of appeal Power to stay monetary penalties Power to stay nonmonetary penalties |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Code Compilations Act (1913) (WA) Criminal Procedure Act 2004 (WA), s 64 Criminal Procedure Rules 2005 (WA), r 65 Fines Penalties and Infringement Notices Enforcement Act 1994 (WA), s 12, s 28 Fish Resources Management Act 1994 (WA), s 222, s 223 Fish Resources Management Regulations 1995 (WA) |
Case References: | Anderson v Pankhurst [2012] WASC 287 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307 Gazeley v The State of Western Australia [2013] WASCA 279 Ridgeway v The Queen (1995) HCA 66; (1995) 184 CLR 19 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
FISHERIES DEPARTMENT (WA)
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M D WHEELER
File No : JO 6966 of 2012, JO 6967 of 2012, JO 6968 of 2012, JO 6969 of 2012, JO 6970 of 2012, JO 3982 of 2012, JO 3983 of 2012, JO 3985 of 2012, JO 3987 of 2012, JO 3963 of 2012
Catchwords:
Practice and procedure - Application for stay pending hearing of appeal - Power to stay monetary penalties - Power to stay nonmonetary penalties
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Compilations Act (1913) (WA)
Criminal Procedure Act 2004 (WA), s 64
Criminal Procedure Rules 2005 (WA), r 65
Fines Penalties and Infringement Notices Enforcement Act 1994 (WA), s 12, s 28
Fish Resources Management Act 1994 (WA), s 222, s 223
Fish Resources Management Regulations 1995 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms M J Woo
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Anderson v Pankhurst [2012] WASC 287
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307
Gazeley v The State of Western Australia [2013] WASCA 279
Ridgeway v The Queen (1995) HCA 66; (1995) 184 CLR 19
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
1 COMMISSIONER SLEIGHT: This is a decision concerning an informal application by Mr Norman Gazeley for a stay of enforcement of penalties imposed by his Honour Magistrate M D Wheeler in the Perth Magistrates Court pending the hearing of an appeal by Mr Gazeley. It was an informal application because no formal application was lodged but a series of affidavits was filed in support of such an application. The application was dismissed by me with reasons to follow.
2 On 28 November 2013 the appellant, Mr Gazeley, was convicted in the Joondalup Magistrates Court of 10 offences variously under the Fish Resources Management Act 1994 (WA) (the Act) or the Fish Resources Management Regulations 1995 (WA) (the Regulations). The following penalties were imposed:
• JO 6966/12 - fine $1,000;
• JO 6967/12 - fine $1,000;
• JO 6968/12 - fine $1,000;
• JO 6969/12 - fine $1,000;
• JO 6970/12 - fine $3,000 plus an additional monetary penalty of $3,995.85;
• JO 3982/12 - fine $750;
• JO 3983/12 - fine $1,000 plus an additional monetary penalty of $1,242.15;
• JO 3985/12 - fine $1,000 plus an additional monetary penalty of $4,401.30;
• JO 3987/12 - fine $750 plus an additional monetary penalty of $4,010.25;
• JO 3963/12 - fine $5,000 plus an additional monetary penalty of $14,597.85.
The additional monetary penalties imposed were mandatory penalties under s 222 of the Act by reference to either the weight of the fish or the number of fish.
3 His Honour also made the following additional orders:
1. Any licence held by Mr Gazeley under the Act is suspended for 12 months from 29 November 2013 pursuant to s 223 of the Act;
2. A forfeiture order against the property of Mr Gazeley seized by Fisheries officers except a Mitsubishi Triton registration number MH30120, the vessel Overdhu (registration number 60639) and a boat trailer registration number I THS 422; and
3. An order for destruction of fish seized.
History of proceedings
4 It is necessary that I make a brief comment about the history of these proceedings. Mr Gazeley was initially charged with six offences under the Act and the Regulations. On 16 December 2011, a Fisheries officer, and others executed a search warrant purportedly issued under the Act at Mr Gazeley's home in Cervantes. Various items were seized pursuant to the warrant. Mr Gazeley challenged the validity of the search warrant as a basis for objecting to the admissibility of items seized pursuant to it. The issue of the warrant validity was determined by a magistrate, pursuant to s 64 of the Criminal Procedure Act 2004 (WA), at a preliminary hearing on 15 May 2013. On 4 June 2013 Mr Gazeley filed an appeal notice purporting to appeal against the learned magistrate's decision. This appeal was dismissed on the basis that it was not a competent appeal under the Criminal Appeals Act 2004 (WA) (the Appeals Act) being an appeal on pre-trial orders. Mr Gazeley appealed to the Court of Appeal against this dismissal but the appeal to the Court of Appeal was unsuccessful: Gazeley v The State of Western Australia[2013] WASCA 279.
5 Following the trial and his conviction, Mr Gazeley then lodged an amended appeal notice dated 6 December 2013. This lists the following grounds of appeal:
1. The appellant and his co-accused were denied natural justice and not afforded a fair trial.
2. A reasonable apprehension of bias to the test at law by Magistrate Wheeler against the appellant and his co-accused.
3. The learned magistrate made numerous errors at law, of fact and of both law and fact.
4. The conviction and sentence are a final product of Government officials, employees and agents engaging in countless Criminal Code Compilations Act (1913) (WA) offences, galvanised with the public policy and public interest tests and, flying directly in the face of the High Court authority of Ridgeway v The Queen(1995) HCA 66; (1995) 184 CLR 19 and others.
5. The conviction and sentence are a by product of Government interference with the purported independent third tier of Government, namely our judicial system.
6. The prosecution amounts to an abuse of process.
7. The sum total of the aforementioned grounds amount to a manifest miscarriage of justice, wherein an acquittal ought to be entered in favour of the appellant and or in the alternative, the charges ought to be stayed but in any event, the matter ought to be referred to all of the relevant authorities being the Corruption and Crime Commission, WA Police and the Legal Profession Complaints Committee and anywhere else deemed appropriate.
Appeal provisions
6 Pursuant to s 7 of the Appeals Act a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. Section 8 of the Appeals Act sets out the possible grounds of appeal. Section 8(1) provides as follows:
An appeal may be made under this Division on one or more of these grounds -
(a) that the court of summary jurisdiction -
(i) made an error of law or fact, or of both law and fact;
(ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or excessive;
(b) that there has been a miscarriage of justice.
7 The right of appeal given under the Appeals Act is not an absolute right. Leave of the Supreme Court is required for each ground of appeal (Appeals Act, s 9(1)). The Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding (Appeals Act, s 9(2)). This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Stay material
8 At this point of time Mr Gazeley has not obtained leave in relation to any ground of appeal and a leave application will need to be heard either before the appeal or in conjunction with the hearing of the appeal.
9 Mr Gazeley has filed in support of his application for a stay a number of affidavits, being:
1. an affidavit of Norman Thomas Gazeley sworn on 6 December 2013;
2. an affidavit of Norman Thomas Gazeley sworn on 12 December 2013;
3. an affidavit of Dale Robson sworn 21 January 2014; and
4. an affidavit of Norman Thomas Gazeley sworn 31 January 2014.
10 Mr Gazeley also seeks to rely upon an affidavit sworn by him on 13 November 2013 in relation to the unsuccessful notice of appeal previously dismissed. Mr Gazeley has also filed written submissions dated 16 February 2014.
11 From this considerable body of material I believe that Mr Gazeley's position can be summarised as follows
1. Mr Gazeley is 67 years of age. He lives in Cervantes. He is effectively illiterate and prepares court documents with the assistance of his family.
2. Mr Gazeley was represented prior to trial by a solicitor Mr Allen who withdrew, with leave of the learned magistrate, from representing Mr Gazeley at the start of a 10 day trial. This left Mr Gazeley unrepresented and unassisted and allegedly without access to and adequate time to inspect the considerable quantity of disclosure documents and video and audio surveillance material.
3. Mr Gazeley particularises ground one of the appeal by complaining that the learned magistrate failed to properly consider Mr Gazeley's illiteracy, his lack of understanding of the proceedings and reduced cognitive skills and the impact of not having a lawyer to argue on his behalf complex issues of procedure, evidence, cross-examination and legal complexity. It is this complaint upon which Mr Gazeley contends in ground 1 of the amended grounds of appeal that he was denied natural justice.
4. Mr Gazeley particularises ground 2 of the grounds of appeal by complaining that the learned magistrate was biased against him. Mr Gazeley says that this bias is demonstrated by the conduct and remarks of the learned magistrate which are revealed on an examination of the transcript of the trial.
5. Mr Gazeley particularises ground 3 that the learned magistrate made an error in law by complaining that:
• the learned magistrate allowed a prosecution witness, operative 2, to give his evidence under an assumed name and from a remote witness room;
• that the learned magistrate wrongfully admitted exhibits (although no particulars are provided as to what exhibits were wrongly admitted); and
• that the learned magistrate failed to give proper consideration to the inconsistencies in the various witnesses for the prosecution (although no particulars are provided as to the inconsistencies referred to).
6. Mr Gazeley particularises ground 4 by alleging that Fisheries officers engaged in unlawful actions in order to manufacture offences and evidence against Mr Gazeley. As I understand this ground of appeal it is contended that evidence against Mr Gazeley ought to have been excluded under the principles in the decision of the High Court of Ridgeway. However the material filed by Mr Gazeley does not disclose exactly on what basis it is contended that Ridgewayapplies.
7. Mr Gazeley particularises ground 5 by alleging that an unfair trial occurred due to conduct of various entities such as the Department of the Attorney General, the State Solicitor's office and the Legal Aid Commission. Mr Gazeley calls for an independent investigation and judicial review of the conduct of these various agencies.
8. Mr Gazeley particularises grounds 6 and 7 by claiming that there was an abuse of process by the collective matters already raised in grounds 1 - 5.
9. Mr Gazeley contends that due to his poor financial position unless a stay is made on the enforcement of the orders made by the learned magistrate then the appeal process will be made nugatory.
Stay provisions
12 The power to make a stay order is contained in s 12 of the Appeals Act. Pursuant to s 12 of the Appeals Act the Supreme Court can in certain situations make any order it thinks fit that suspends a decision of a court of summary jurisdiction (including any sentence imposed or orders made) until the appeal is concluded. Such an order can be made before or after leave is given to appeal. However, if the appeal is commenced against a decision involving or giving rise to the imposition of a fine (as defined in the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA), s 28(1)), an order cannot be made under s 12.
13 A 'fine' is defined in s 28 of the Fines Penalties and Infringement Notices Enforcement Act as meaning:
[A] monetary penalty imposed on an offender by a court in criminal proceedings for an offence and includes:
(a) any costs ordered to be paid by the offender in connection with the proceedings; and
(b) any amount ordered to be paid in connection with or as a result of an offence, if the order is of a kind, and is made under an enactment, prescribed for the purposes of this definition.
14 The fine and monetary penalties imposed by the learned magistrate come within this definition being 'a monetary penalty imposed on an offender by a court in criminal proceedings for an offence'.
15 The effect of s 12of the Appeals Act is that the court has no power to make an order to stay enforcement in relation to the monetary penalties imposed by the learned magistrate.
16 However, s 11 of the Appeals Act provides that once leave to appeal is granted and until the appeal is concluded, no warrant or order to enforce the decision shall be issued and no action taken to enforce the decision (except in relation to certain penalties which are not applicable in this case).
17 This means that Mr Gazeley would obtain an automatic stay if he is able to obtain leave in relation to any of his grounds of appeal.
18 There is also the question of the application by Mr Gazeley to stay the non-pecuniary orders made by the magistrate. Because they are not monetary penalty orders the court does have power to make an order under s 12 of the Appeals Act. Section 12 provides no guidance as to the circumstances in which a suspension order should be appropriate. However, by analogy the principles that apply for a stay in civil proceedings apply: Anderson v Pankhurst [2012] WASC 287. These principles are listed in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307 as follows:
• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted [9].
19 Mr Gazeley was unable to identify any inconvenience created by the non-monetary orders made by the learned magistrate. Nor at this stage am I able to conclude that the appeal process ultimately has reasonable prospects of success for reasons set out below. Accordingly, I am not persuaded that an order for suspension of the non-monetary orders made by the learned magistrate should be made.
20 Rule 65 of the Criminal Procedure Rules 2005 (WA) prescribes that the appellant must lodge with the Supreme Court a number of documents including a copy of the primary courts transcript of the proceedings. This had not been done at the time of the hearing of this application. Without a copy of the transcript and identification of passages in the transcript which Mr Gazeley relies upon to establish his grounds of appeal, it is impossible to form any opinion as to the merits of any of the grounds in the appeal notice. I make the preliminary observation that it is difficult to see how Mr Gazeley can obtain leave to appeal in relation to grounds 4 and 5 and the alternative ground in ground 7. None of these grounds, on the face of it, disclose any arguable ground of appeal.
21 As to the other grounds of appeal it should be noted that ground 3 in its current form is invalid as r 65(2)(a) of the Criminal Procedure Rules prescribes that the grounds of appeal must not merely allege 'that the court erred in fact or in law'.
22 For the above reasons the application for a stay of enforcement of the orders made by the learned magistrate is dismissed. (Orders were made by way of directions to further progress the hearing of Mr Gazeley's application for leave to appeal and appeal.)
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