Geary v Shire of York
[2015] WASC 405
•29 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GEARY -v- SHIRE OF YORK [2015] WASC 405
CORAM: FIANNACA J
HEARD: 23 SEPTEMBER 2015
DELIVERED : 29 OCTOBER 2015
FILE NO/S: SJA 1051 of 2015
BETWEEN: SHAUN BRIAN GEARY
Appellant
AND
SHIRE OF YORK
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P A ROTH
File No :NO 763 of 2013, NO 764 of 2013
Catchwords:
Criminal Appeals Act - Appeal against convictions that were the subject of a previous appeal - One right of appeal - No power to re-open appeal - Appeal incompetent
Legislation:
Criminal Appeals Act 2004 (WA), s 7, s 9, s 16
Dog Act 1976 (WA), s 33D1
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr A Wadham
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Ascic v Bedworth [2015] WASCA 109
Geary v Shire of York [2014] WASC 224
JS v The State of Western Australia [2014] WASCA 177
FIANNACA J:
Background
This is an application for leave to appeal against convictions entered against the appellant in the Magistrates Court at Northam on 17 December 2013 in respect of two offences, under s 33D(1) of the Dog Act 1976 (WA), of being a person who was liable for the control of a dog which attacked a person (charge no NO 763/13 & NO 764/13). The offences occurred on 29 March 2013 and 3 April 2013 in the Shire of York. The dog the subject of the offences was described in the prosecution notices as a 'female Staffordshire Bull Terrier Sharpei Cross named "Suzy La La"'.
The appeal notice also purports to apply for leave to appeal against the penalties that were imposed, namely fines totalling $700, and the following orders made as a consequence of the convictions:
(1)a compensation order in the sum of $4,797;
(2)an order for the destruction of the dog (under s 39 of the Dog Act 1976), which was remitted on conditions concerning the confinement and control of the dog; and
(3)a costs order in the sum of $7,000.
However, it is apparent from the Appeal Notice that the appeal against the fines and consequential orders depends on the success of the appeal against the convictions. The ground of appeal is stated to be 'new evidence' in the form of dental impressions of the relevant dog and veterinary records in respect of that dog that are said to have been disclosed after trial. In relation to those records, it is alleged there was a failure by the prosecution to disclose evidentiary material. If the appeal were competent, the appellant would seek to have the convictions quashed, and the penalties and orders would be set aside as a consequence.
The appellant has previously sought leave to appeal against the same convictions and the orders imposed. That application was heard on 10 June 2014. Leave to appeal was refused, and the appeal was dismissed on 27 June 2014: see Geary v Shire of York [2014] WASC 224. That application also relied on a ground that there was new evidence, although the purported new evidence at that time was different to that on which the appellant purports to rely now.
The present application was made by an appeal notice filed on 29 June 2015. A directions hearing was held on 23 September 2015, at which time the court informed the appellant that the application for leave to appeal appeared to be incompetent because he had previously exercised a right to appeal against the magistrate's decisions, and that appeal had been dismissed. As the appellant did not have legal representation, he was given the opportunity to seek legal advice and to file written submissions if he wished to pursue the application further. The following orders were made:
1.The appellant file written submissions within 28 days as to why the appeal should not be dismissed on the basis that the appeal is incompetent.
2.The respondent to file submissions in response to the appellant's submissions within 7 days of being served with the appellant's written submissions.
3.The matter [be] adjourned to 28 October 2015 for hearing unless it is dismissed pursuant to order 4.
4.If the appellant does not comply with order 1, the appeal will stand as dismissed.
5.The respondent's costs of today's appearance are reserved in the event that the appeal is not dismissed pursuant to order 4.
As to costs, counsel for the respondent at the hearing informed the court that costs would not be sought if the appeal was dismissed either at the hearing or pursuant to order 4.
The appellant has not filed any written submissions pursuant to order 1.
The right of appeal
An appeal is wholly a creature of statute, and an appellate court's jurisdiction and power derive solely from the governing legislation: JS v The State of Western Australia [2014] WASCA 177 [4]. The appellant's right of appeal from the magistrate's decisions is found in the Criminal Appeals Act 2004 (WA) s 7. This right of appeal is qualified by s 9, which provides that the leave of the Supreme Court is required for each ground of appeal under s 7 and, unless leave is granted on at least one such ground, the appeal is to be taken to be dismissed.
An appellant has no entitlement under the Criminal Appeals Act to appeal more than once against the same conviction: JS v The State of Western Australia [5] ‑ [6]. The principle applies to a conviction entered in a court of summary jurisdiction: Ascic v Bedworth [2015] WASCA 109 [6]. After an appeal has been considered on its merits and finally disposed of, any further appeal under s 7 against the same decision would be beyond this court's jurisdiction and thus incompetent. Further, there is no power to re‑open an appeal that, under the Criminal Appeals Act, is taken to have been dismissed: JS v The State of Western Australia [13].
As was stated above, an appeal to this court by the appellant, under s 7 of the Criminal Appeals Act, against the same convictions has been considered on the merits and finally disposed of (as has his appeal against sentence). If the appellant was aggrieved by that decision, he had a right of appeal to the Court of Appeal: Criminal Appeals Act s 16.
Decision
For the reasons set out above, the present application for leave to appeal is incompetent and must be refused.
The appeal is dismissed.
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