Harvey v The Queen
[2017] WASCA 43
•9 MARCH 2017
HARVEY -v- THE QUEEN [2017] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 43 | |
| THE COURT OF APPEAL (WA) | 09/03/2017 | ||
| Case No: | CACR:54/2017 | 28 FEBRUARY 2017 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 28/02/17 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MICHAEL ROSS HARVEY THE QUEEN |
Catchwords: | Criminal procedure Application for leave to appeal against interlocutory order refusing to vacate trial dates Application incompetent No right of appeal |
Legislation: | Criminal Appeals Act 2004 (WA), pt 3 District Court of Western Australia Act 1969 (WA), s 79(1)(b) Judiciary Act 1903 (Cth), s 68 |
Case References: | Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 Christianos v Young (1990) 3 WAR 303 Connell v The Queen (No 5) (1993) 10 WAR 424 Duke v The Queen [1999] WASCA 215 Muir v The Queen [2006] WASCA 85 Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172 Snook v The State of Western Australia [2015] WASCA 29 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HARVEY -v- THE QUEEN [2017] WASCA 43 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT CJDC
File No : IND 961 of 2016
Catchwords:
Criminal procedure - Application for leave to appeal against interlocutory order refusing to vacate trial dates - Application incompetent - No right of appeal
Legislation:
Criminal Appeals Act 2004 (WA), pt 3
District Court of Western Australia Act 1969 (WA), s 79(1)(b)
Judiciary Act 1903 (Cth), s 68
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr G Rodgers
Respondent : Mr D Renton
Solicitors:
Appellant : Gary Rodgers Barrister & Solicitor
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Christianos v Young (1990) 3 WAR 303
Connell v The Queen (No 5) (1993) 10 WAR 424
Duke v The Queen [1999] WASCA 215
Muir v The Queen [2006] WASCA 85
Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172
Snook v The State of Western Australia [2015] WASCA 29
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
1 REASONS OF THE COURT: On 28 February 2017, we ordered that this appeal be dismissed, and indicated that we would publish our reasons later. These are our reasons for dismissing the appeal.
2 The appellant is charged with a number of Commonwealth drugs and proceeds of crime offences against the Criminal Code 1995 (Cth). On 27 February 2017, the Chief Judge of the District Court of Western Australia heard an application by the appellant to adjourn his trial, which had been listed to commence on 28 February 2017. The Chief Judge refused to vacate the trial dates, but adjourned the start of the trial by 2 days to 2 March 2017 to allow the appellant's counsel more time to prepare. After noting listing pressures which the District Court is under, the Chief Judge indicated that the ultimate test was whether the appellant can have a fair trial. The Chief Judge indicated that he was not satisfied that the appellant would suffer any unfairness by the trial proceeding as he proposed.
3 Later on 27 February 2017, the appellant filed an appeal notice in the registry of this court. Given the impending trial, the appeal was listed for an urgent hearing on 28 February 2017.
4 An initial question arises as to the competency of the appeal.
5 The Criminal Appeals Act 2004 (WA) does not give the appellant a right of appeal, at this stage, against the decision refusing, in part, his application to adjourn the trial. The provisions of that Act are applied to proceedings for a Commonwealth offence by s 68(1)(d) of the Judiciary Act 1903 (Cth). Under s 68(2) of the Judiciary Act, this court has 'the like jurisdiction' with respect to the hearing and determination of appeals arising out of a trial of a Commonwealth offence as it has for appeals arising out of the trial of a State offence. This court will only have federal jurisdiction under s 68 to hear the appellant's appeal to the extent that an appeal would lie against a refusal to adjourn a trial on an indictment which alleges an offence against State law.1
6 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 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.2 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 unsoundness of mind. Section 26 of the Criminal Appeals Act provides for rights of appeal from decisions about separate trials. Clearly, none of those provisions give the appellant a right of appeal in this case.
7 Section 79(1)(b) of the District Court of Western Australia Act 1969 (WA) provides for an appeal, subject to the grant of leave to appeal, by a party to 'an action or matter' from a 'judgment that is not a final judgment'. Section 6 of that Act defines 'action' in a manner that excludes criminal proceedings. However, s 6 simply defines the term 'matter' to mean 'a proceeding' in the District Court that is commenced otherwise than by writ. 'Judgment' is defined to include a 'judgment, order or other decision or determination' of the District Court or a District Court judge. Section 79 has been broadly construed in a way that is not confined to civil proceedings.
8 However, s 79 operates subject to the Criminal Appeals Act. 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.3 Sections 23 - 25 of the Criminal Appeals Act were based on the former Criminal Code provisions.4 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.5 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.6
9 The specific provision for interlocutory appeals by accused persons against decisions about separate trials is the exception that proves the rule. That provision, in s 26 of the Criminal Appeals Act,is necessary only because there is generally no appeal by an accused person against an interlocutory decision an indictable criminal trial.
10 A number of judges of this court have recognised that the Criminal Appeals Act covers the field in relation to appeals from interlocutory and final decisions in criminal proceedings to which it applies.7 A right of appeal has been recognised to exist where separate proceedings can be identified within a criminal trial.8 However, that is not the situation in the present case. The order which is the subject of this purported appeal concerns the adjournment of the appellant's trial on indictment.
11 For these reasons, this appeal must be dismissed as incompetent.
12 Even if, contrary to our opinion, s 79(1)(b) of the District Court of Western Australia Act provided for an appeal against the Chief Judge's decision subject to the grant of leave, we would have refused leave to appeal in this case. It is not in the interests of justice to grant leave to appeal from the Chief Judge's interlocutory discretionary decision9 to refuse a longer adjournment of the appellant's trial. If the appellant is convicted, he will be able to appeal under s 23 of the Criminal Appeals Act and contend that any unfairness of his trial arising from a lack of opportunity to prepare gave rise to a miscarriage of justice.10
1 The same limitation would arise under s 39(2) of the Judiciary Act, which invests State courts with federal jurisdiction 'within the limits of their several jurisdictions'.
2 Section 24(2)(d) of the Criminal Appeals Act.
3Connell v The Queen (No 5) (1993) 10 WAR 424; Duke v The Queen [1999] WASCA 215.
4 See the explanatory memorandum to the Criminal Appeals Bill 2004, notes to cl 23 - 25; Western Australia, Parliamentary Debates, Legislative Assembly, 26 August 2004, 5726 (Mr JA McGinty, Attorney General).
5 Section 30(3) of the Criminal Appeals Act. See also s 98(2) read with s 98(6) of the Criminal Procedure Act 2004 (WA).
6 See Christianos v Young (1990) 3 WAR 303, 305 - 307.
7Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351 [2], [27], [82]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [16], [282]; Muir v The Queen [2006] WASCA 85.
8Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 (drug trafficker declaration); Marrapodi (third party proceedings in relation to subpoenas) and Re Chief Judge Kennedy; Ex parte Western Australian Newspapers Ltd [2006] WASCA 172 [24] - [25] (Suppression orders).
9 The discretion is conferred by s 89 of the Criminal Procedure Act 2004 (WA). As to the nature of the discretion, and the limits of the capacity of an appellate court to interfere with such a decision on appeal, see Snook v The State of Western Australia [2015] WASCA 29 [92] - [95].
10 See s 23 read with s 30(3)(c) of the Criminal Appeals Act.
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