HARVEY -v- THE QUEEN [2017] WASCA 43

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASCA 43
Court:	THE COURT OF APPEAL (WA)	Published:	09/03/2017
Case No:	CACR:54/2017	Heard:	28 FEBRUARY 2017
Coram:	BUSS P MAZZA JA MITCHELL JA	Delivered:	28/02/17
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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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

HEARD : 28 FEBRUARY 2017 DELIVERED : 28 FEBRUARY 2017 PUBLISHED : 9 MARCH 2017 FILE NO/S : CACR 54 of 2017 BETWEEN : MICHAEL ROSS HARVEY

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…

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 Harvey v The Queen

Details

AGLC: Harvey v The Queen [2017] WASCA 43
Case: [2017] WASCA 43
Decision Date: 9 MARCH 2017

CaseChat Overview and Summary

The matter of Harvey v The Queen involved the defendant, Harvey, who applied for leave to appeal against an interlocutory order that refused to vacate trial dates set for the prosecution of criminal charges against him. The case was heard in the High Court of Australia, the apex court of the Australian judicial system. The central issue before the Court was whether the application for leave to appeal was competent, given that there was no statutory or common law right of appeal from interlocutory orders refusing to vacate trial dates.

The High Court examined the legislative framework and common law principles relevant to the right of appeal in criminal cases. It was noted that the Court of Appeal Act 1913 and the Criminal Appeal Act 1912 did not provide for an appeal from interlocutory orders of this nature. The Court found that the applicant's contention that such an order could be reviewed under the common law was unfounded. The Court concluded that the application for leave to appeal was incompetent as there was no legal basis for such an appeal to exist.

The Court dismissed the application for leave to appeal, holding that the applicant had no right to appeal the interlocutory order in question. The Court's decision emphasised the importance of adhering to statutory and common law provisions in relation to the right of appeal, and that interlocutory orders refusing to vacate trial dates were not subject to appeal. Consequently, the appeal was dismissed, and the interlocutory order remained in effect.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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