Ginn (Dec) v WA Police - [2023] WASC 447

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GINN (Dec) -v- WA POLICE [2023] WASC 447
CORAM:   HOWARD J
HEARD:   ON THE PAPERS (LAST SUBMISSIONS
8 NOVEMBER 23)

DELIVERED          :   22 NOVEMBER 2023
FILE NO/S:   SJA 1028 of 2023
BETWEEN:   JAMIE FREDERICK GINN
Appellant
AND
WA POLICE
Respondent

FILE NO/S: SJA 1031 of 2023
BETWEEN: JAMIE FREDERICK GINN
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1028 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 48334/2022 & PE 48355/2022
For File No:   SJA 1031 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HARRIES
File Number            :   PE 1368/2022 & PE 22973/2022

Catchwords:

Criminal law - Appeals against conviction where fines imposed by Magistrates Court - Appellant died before appeals were heard - Whether appeals have abated - Appeals abated and dismissed

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)

Result:

Appeals abated and dismissed

Category: B

Representation:

SJA 1028 of 2023

Counsel:

Appellant	:	Not applicable
Respondent	:	J Berson
Amicus Curiae	:	Z A Gilders

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office
Amicus Curiae	:	Z G Law

SJA 1031 of 2023

Counsel:

Appellant	:	Not applicable
Respondent	:	J Berson
Amicus Curiae	:	Z A Gilders

Solicitors:

Appellant	:	Not applicable
Respondent	:	State Solicitor's Office
Amicus Curiae	:	Z G Law

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

Bell (dec) v State of Western Australia [2015] WASCA 236
JS v The State of Western Australia [2014] WASCA 177
Perre v R [2023] SASCA 55
Quartermaine v The Queen [2002] WASCA 345
R v Jeffries [1969] 1 QB 120
R v Kearley [1994] 2 AC 414
R v Rowe [1955] 1 QB 573
Sen v R (1991) 30 FCR 173

HOWARD J:

Introduction

By separate Prosecution Notices,[1] the appellant was charged with four offences against s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Prohibited Insignia Act).
[1] Dated 28 October 2022 (PE 48334/2022 and 48335/2022); 9 January 2022 (PE 1368/2022); and 10 June 2022 (PE 22973/2022).
That provision provides:
A person commits an offence if the person displays insignia of an identified organisation in a public place.
Following two trials in the Magistrates Court at Perth:
1.on 20 March 2023, the appellant was convicted of one charge (displaying a tattoo of '1%')[2] (First Conviction); and
2.on 28 March 2023, the appellant was convicted of one charge (displaying a tattoo of '1%')[3] (Second Conviction).
[2] Prosecution Notice: PE 48334/2022.
[3] Prosecution Notice: PE 1368/2022.
On the First Conviction, the appellant was fined $750 and ordered to pay costs of $264.30.
On the Second Conviction, the appellant was fined $1,000 with no order as to costs.

Appeal

The appellant had sought to appeal pursuant to the Criminal Appeals Act 2004 (WA):
1.against the First Conviction by SJA 1028 of 2023 (commenced 17 April 2023); and
2.against the Second Conviction by SJA 1031 of 2023 (commenced 26 April 2023).
The appeals were scheduled to be heard before this Court on 24 October 2023 (SJA 1028 of 2023) and 31 October 2023 (SJA 1031 of 2023) respectively.
On 10 October 2023, the appellant died. For convenience I will continue to call him the appellant.
The hearings for both SJA 1028 of 2023 and SJA 1031 of 2023 were adjourned. Both matters were called on for directions on 31 October 2023.
Ms Gilders had been representing the appellant in both appeals. In the circumstances I have taken her appearance on the directions hearing and her filing of submissions on 1 November 2023 as her acting as an amicus curiae. I am grateful she has done so.
Ms Gilders submits that the appeals should remain on foot and the putative executor of the estate, Mr Tyler Emmerton-Ginn, be substituted as the appellant when there is a grant of probate.
In Bell (dec) v State of Western Australia [2015] WASCA 236, it was held (McLure P for the Court) that:
5An appeal is wholly a creature of statute. An appellate court's jurisdiction and power derives solely from the governing legislation, in this case the Criminal Appeals Act 2004 (WA): JS v The State of Western Australia [2014] WASCA 177.
6The Criminal Appeals Act does not expressly address the consequences of the death of an appellant after the commencement of an appeal against conviction or sentence but prior to its determination. The relevant rules, being the Supreme Court (Court of Appeal) Rules 2005 (WA) and the Rules of the Supreme Court 1971 (WA) are silent on the subject.
…
9Section 23(1)(b) of the Criminal Appeals Act is the source of the appellant's right of appeal to this court. It is a personal, statutory right. There is no statutory provision extending the right to any other person. In the circumstances, on the appellant's death, no-one has standing to conduct the appeal against his sentence of imprisonment, whether for or on behalf of the appellant or otherwise. That conclusion is supported by the statutory scheme as a whole.
…
12It follows that, on a proper construction of the Criminal Appeals Act as a whole, the appeal instituted by the appellant against his sentence of imprisonment abated upon his death. That conclusion is consistent with authority in this jurisdiction relating to the repealed s 688 of the Criminal Code (WA) (Quartermaine v The Queen [2002] WASCA 345) and in other jurisdictions (Sen v The Queen (1991) 102 ALR 71, R v Jefferies [1969] 1 QB 120). Accordingly, the only proper course was to dismiss the appeal.
In Bell (dec), the appellant had appealed against his sentence of life-imprisonment with a non-parole period of 27 years.
Ms Gilders seeks to distinguish this case from Bell (dec), on the basis that the appellant was fined here and not imprisoned.
Ms Gilders submits that the appellant's estate stands to be burdened by any adverse orders made as a result of a failure to meet the penalty imposed, and also bears the costs of any proceedings to date, irrespective of the determination of the matter. Similarly, the estate stands to benefit from any order as to costs of the appeal.
There is no evidence before the Court as to whether the fines and costs order had been paid before the appellant's death.
Ms Gilders cited R v Rowe [1955] 1 QB 573. In that case, Lord Goddard CJ (for the Court) said that an appeal could not be continued unless: 'a widow… executor or an administrator of a deceased person… can show a legal interest': p 574. Lord Goddard CJ accepted the possibility that a fine might be appellable after death (at the suit of an appropriate person) but did not need to decide the matter as Rowe had been imprisoned: p 575.
R v Rowe may be seen to provide dicta which supports Ms Gilders' submissions, but it does not appear to be the law in England now.
In R v Jeffries [1969] 1 QB 120, 124, a widow appealed against a sentence and a costs order imposed, Widgery CJ (for the Court) said that:
We take it to be a general principle that whenever a party to proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject matter and can by virtue of the express terms of a statute (or from Rules of Court made by virtue of jurisdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Although in this case the estate would benefit if the widow were allowed to continue the appeal and were successful, there is no procedure whereby she can be substituted as an appellant and we do not see how there can be an inherent power in the court to allow this when the appeal is itself the creature of statute.
The House of Lords in R v Kearley [1994] 2 AC 414, 422 - 433, considered that R v Jefferies clearly established that an appeal was abated on the death of the appellant. R v Kearly was a case of an imprisonment and a financial confiscation order. The House of Lords endorsed the view that R v Rowe provided dicta only.
As I understand Bell (dec), the significance of appeals in this State being wholly statutory is that Ms Gilders would need to identify some warrant in the legislation in support of her argument. I think, with respect, Bell (dec) precludes me from reaching such a conclusion: see especially at [5] and [9].
While the Court of Appeal in Bell (dec) [8] limited its consideration to the statutory framework of an appeal against a sentence of imprisonment, by parity of reason I think the statute confers a personal statutory right which does not survive death (even in the case of a fine).
I accept that there is a difference in the language used in s 7(1) of the Criminal Appeals Act ('a person who is aggrieved') compared with s 23(1) ('an offender convicted of an offence'). But s 31(5) referred to in Bell (dec) [10] has an analogue (at least in effect) in s 14(1)(c), s 14(1)(d), s 14(1)(e), and, or, s 14(1)(i) of the Criminal Appeals Act.
A consequence of accepting Ms Gilders' submissions would be, I think, that an appeal after death could not be maintained where a person had been sentenced to a fine by a superior court, (based on the statutory construction of Bell (dec)), whereas it could be if the person had been sentenced by the Magistrates Court. That would seem a surprising result and one which suggests that the construction or submission is not to be preferred.
The Court of Appeal in Bell (dec) cited R v Jeffries and Sen v R (1991) 30 FCR 173.
In Sen v R at 175, the ACT Full Court held that
The deceased appellant was the only person entitled to bring an appeal against sentences imposed upon him by Kelly J. There being no provision in the legislation entitling the deceased's father or executor or administrator to prosecute the appeal, we must hold that it has abated. We do not think it can be said that the appellant's father has any legal interest in the subject matter of the appeal. Even if he were the executor or administrator of the appellant's estate, we do not think he would be in any stronger position to prosecute the appeal. There is no suggestion in the present case that the outcome of the appeal will have any effect on the appellant's estate.
The Court's rules as to changing or substituting parties (cited by Ms Gilders)[4] can only apply if the cause of action (or appeal) survives the death of the appellant. That is not this case.
[4] See Criminal Appeals Act s 40(1)(l) and Rules O 18 r 7.
I do not think the question of statutory construction turns on whether the personal representative could assert a proper interest in the criminal appeal: cf, with respect, Perre v R [2023] SASCA 55 [33].
In my judgment, both appeals are abated and I will dismiss them.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
22 NOVEMBER 2023