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Glew v White

Glew v White

Case [2012] WASCA 138 10 July 2012

Abuse of Process

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GLEW -v- WHITE [2012] WASCA 138

CORAM: PULLIN JA
BUSS JA
MAZZA JA

HEARD: 5 JULY 2012

DELIVERED : 10 JULY 2012

FILE NO/S: CACR 92 of 2012

BETWEEN: WAYNE KENNETH GLEW
Appellant
AND
RYAN MICHAEL WHITE
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HALL J
Citation  :GLEW -v- WHITE [2012] WASC 100
File No  :SJA 1008 of 2012

Catchwords:

Criminal law - Application for leave to appeal - Whether grounds of appeal have any reasonable prospect of succeeding - Abuse of process

Legislation:

Bushfires Act 1954 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

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

Frank Jasper Pty Ltd v Glew [No 2] [2010] WASC 24
Glew Technologies Pty Ltd v Department of Planning and Infrastructure [2007] WASCA 289
Glew v City of Greater Geraldton [2012] WASCA 94
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [2006] WASCA 260
Glew v The Governor of Western Australia [2009] WASCA 123
Glew v White [2012] WASC 100
Hedley v Spivey [2012] WASCA 116
Krysiak v Hodgson [2009] WASCA 114
O'Connell v The State of Western Australia [2012] WASCA 96
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Williamson v Hodgson [2010] WASC 95

REASONS OF THE COURT: This is an application for leave to appeal against the judgment of Hall J who refused the appellant leave to appeal against convictions recorded in the Geraldton Magistrates Court on 23 December 2011. By s 16(2) of the Criminal Appeals Act 2004 (WA), the appellant has the right of appeal to this court against Hall J's refusal to grant leave to appeal. By virtue of s 18 of the Act, s 9(1) applies. It provides that leave is required for each ground of appeal. Section 9(2) read with s 18 provides that after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. By s 9(3) read with s 18, unless the court gives leaves to appeal on at least one ground of appeal in an appeal, the appeal is taken to have been dismissed.
The appellant was found guilty in the Magistrates Court of one offence of assaulting a public officer contrary to s 318(1)(d) of the Criminal Code (WA) and one offence of obstructing an officer in the execution of his duty, contrary to s 57 of the Bushfires Act 1954 (WA). He was fined $1,000 for the first offence, $400 for the second offence and ordered to pay costs.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glew v White

Details

AGLC: Glew v White [2012] WASCA 138
Case: [2012] WASCA 138
Decision Date: 10 JULY 2012

CaseChat Overview and Summary

The case of Glew v White involved the applicant, Glew, who sought leave to appeal against a decision of the Court of Appeal in relation to a criminal conviction. The applicant was convicted of a serious criminal offence and was sentenced to imprisonment. The legal issue before the court was whether the grounds of appeal presented by Glew had any reasonable prospect of succeeding. The court also had to consider whether the application for leave to appeal constituted an abuse of process.

The court considered the grounds of appeal and assessed whether they were arguable and had a reasonable prospect of success. The court noted that the applicant had to demonstrate that there was a real possibility that the appeal would be allowed and that the outcome of the trial was likely to be different if the appeal was successful. The court also considered whether the application for leave to appeal was an abuse of process, which would occur if the application was frivolous or vexatious, or if it was brought for an improper purpose. The court found that the grounds of appeal did not have a reasonable prospect of success and that the application for leave to appeal was an abuse of process. The court therefore refused the application for leave to appeal.

The court found that the grounds of appeal were not arguable and did not have a reasonable prospect of success. The court noted that the applicant had failed to identify any error of law or fact that would warrant the appeal being allowed. The court also found that the application for leave to appeal was an abuse of process because it was brought for an improper purpose and was vexatious. The court concluded that the application should be refused and that there were no grounds for leave to appeal.

Orders