Hawke v The State of Western Australia
[2019] WASCA 202
•12 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAWKE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 202
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 19 NOVEMBER 2019
DELIVERED : 19 NOVEMBER 2019
PUBLISHED : 12 DECEMBER 2019
FILE NO/S: CACR 137 of 2018
BETWEEN: RYAN CHRISTOPHER HAWKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 339 of 2014
Catchwords:
Practice and procedure - Springing order - Application for extension of time to comply with springing order
Legislation:
Nil
Result:
Application for extension of time to comply with a springing order refused
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Hawke v The State of Western Australia [2017] WASCA 40
The State of Western Australia v Hawke [2018] WASCSR 116
Wharton v The Queen [No 2] [2015] WASCA 176
REASONS OF THE COURT:
On 19 November 2019, this court unanimously ordered that the appellant's application filed on 9 August 2019 for an extension of time to comply with a springing order be dismissed. The court said that it would publish its reasons at a later date. Here are those reasons.
Background
The application was decided against this factual background.
On 27 November 2017, the appellant was convicted after a trial before Corboy J and a jury of the murder of Mark Colin Koller (the deceased) on 14 April 2014.
Based on the trial judge's sentencing remarks, the parties' cases may be briefly summarised as follows. The State's case at trial was that, in early April 2014, the appellant and his partner, Ms Shelly Williams, resided at the Orange Grove caravan park. So too did the deceased and his partner, Ms Gina Cooke. At the time, the appellant was a fly‑in/fly‑out worker on a monthly rotation.[1]
[1] The State of Western Australia v Hawke [2018] WASCSR 116 [7], [11].
In early April 2014, the appellant's partner told him that she had been involved in a sexual encounter with the deceased and his partner while the appellant had been away working.[2]
[2] The State of Western Australia v Hawke [12].
On 14 April 2014, the appellant armed himself with a knife and, in an angry mood, went to confront the deceased about the sexual encounter.[3]
[3] The State of Western Australia v Hawke [13] - [15].
During the confrontation, the appellant inflicted four stab wounds to the front of the deceased's torso. The deceased died from one of those wounds or from a combination of two of the wounds.[4] Part of the incident was videoed on a mobile telephone by Ms Ingrid Turner.
[4] The State of Western Australia v Hawke [20] - [26].
At trial, the appellant claimed that he acted in self‑defence or, alternatively, that the act or acts that caused the deceased's death occurred independently of the exercise of the appellant's will. As to this latter excuse, the appellant, in substance, argued that the deceased had impaled himself upon the appellant's knife.[5]
[5] The State of Western Australia v Hawke [17] - [19].
Having regard to the verdict, the jury must have been satisfied beyond reasonable doubt that the appellant did not act in self‑defence and that fatal wounds were voluntarily and deliberately inflicted upon the deceased by the appellant.[6]
[6] The State of Western Australia v Hawke [23].
The trial before Corboy J and a jury was the second time the appellant had been tried and convicted for this offence, the first conviction having been overturned on appeal to this court: Hawke v The State of Western Australia [2017] WASCA 40.
On 25 June 2018, the appellant was sentenced to life imprisonment with a minimum term of 17 years, backdated to commence on 15 April 2014.[7]
[7] The State of Western Australia v Hawke [43].
On 16 July 2018, the appellant's then solicitors filed notices of appeal against conviction and sentence. On 14 August 2018, a notice of discontinuance was filed in respect of the appeal against sentence (CACR 138 of 2018).
The appellant's case in respect of his appeal against conviction was due to be filed and served on 10 September 2018.
The appellant failed to file and serve an appellant's case by this date. Consequently, the matter was listed for a directions hearing before Mazza JA. On 4 October 2018, counsel who appeared for the appellant, and presumably on the appellant's instructions, said that he had provided a 'negative' opinion in respect of the appellant's appeals against conviction and sentence. In respect of the appeal against conviction, counsel said that the appellant 'may wish to pursue [the appeal] in person'.[8] Counsel also informed the court that his instructing solicitors would no longer be acting for the appellant.[9] The appeal was adjourned to a further directions hearing on 14 November 2018.[10] On 14 October 2018, the appellant's then solicitors were granted leave to cease acting for the appellant.
[8] Appeal ts 2 - 3.
[9] Appeal ts 3, 6.
[10] Appeal ts 7.
On 14 November 2018, the appellant told the court that he would apply to the Legal Aid Commission of Western Australia (LAWA) for legal assistance.[11]
[11] Appeal ts 12.
On 20 December 2018, the appellant informed the court that his application for legal aid was unsuccessful.[12] The matter was adjourned to 12 February 2019 to allow the appellant time to apply to LAWA for a reconsideration of its decision to refuse aid.[13]
[12] Appeal ts 15.
[13] Appeal ts 17.
On 12 February 2019, the appellant informed the court that his application for a reconsideration was unsuccessful. The appellant sought and was given a further adjournment of the proceedings to enable him to appeal against the decision to refuse him aid.[14]
[14] Appeal ts 21 - 22.
On 11 April 2019, the appellant informed Mazza JA that he had not pursued an appeal against the refusal to grant legal aid.[15] The appellant said that he was being represented by a new lawyer, Mr Terry Dobson.[16] He also said that he had found 'new evidence' in the prosecution brief in the form of mobile telephone downloads which 'would back up my story as far as how I defended myself'.[17]
[15] Appeal ts 26.
[16] Erroneously described in the transcript as Mr Terry Dawson.
[17] Appeal ts 27.
His Honour noted that, since the filing of the appellant's appeal notice on 16 July 2018, no real progress had been made to prosecute the appeal. In particular, no appellant's case had been filed. His Honour then made an order in these terms:[18]
The time for the appellant to file and serve the appellant's case is hereby extended to 4.00 pm on 11 June 2019, failing which the appeal is dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA). [The springing order.]
[18] Appeal ts 28 - 29.
The appellant did not comply with the springing order. However, at approximately 3.13 pm on 11 June 2019, an application was filed on behalf of the appellant, seeking the following orders:
• An order that the springing order not be sprung.
• An adjournment to 9 July 2019 to enable instructions to be obtained.
On 11 June 2019, Mr Dobson filed a lawyer’s notice of acting.
This application was supported by an affidavit sworn by Mr Dobson, on 11 June 2019. In the affidavit, Mr Dobson said:[19]
(a)The appellant did not have a grant of legal aid.
(b)That he intended to visit the appellant at Casuarina Prison 'probably on Tuesday 18 June 2019, with the hope of identifying whether [the appellant] is able to properly explain a ground of appeal'.
It is clear that, at the time of swearing the affidavit, Mr Dobson was unaware of whether there was any merit in the appeal.
[19] Mr Dobson's affidavit sworn 11 June 2019, pars 8, 11.
Mr Dobson did not state whether he intended to file an appellant's case and, if so, when it could be done.
At directions hearings on 19 and 28 June 2019, counsel appeared for the appellant on instructions from Mr Dobson. At the directions hearing on 28 June 2019, counsel sought an adjournment of three weeks to enable Mr Dobson to speak to the appellant's trial counsel. Mazza JA emphasised to counsel that the appellant's appeal had been dismissed due to the operation of the springing order and that it was incumbent upon the appellant to expeditiously make an application for an order to extend time.[20] On 29 July 2019, Mr Dobson attempted to file a notice of ceasing to act for the appellant in the appeal.
[20] ts 39 - 40.
On 30 July 2019, a signed and sealed certificate of conclusion of criminal appeal was issued.
On 9 August 2019, the appellant in person filed an application for an extension of time in which to file and serve his appellant's case. The application was supported by an affidavit sworn by him on 8 August 2019.
In the affidavit, no explanation was given as to the appellant's failure to complete and file an appellant's case prior to 11 April 2019. The appellant said that between 11 April 2019 and 11 June 2019 he could not complete his appellant's case and that this period was, as he put it, 'wasted'.[21] The appellant asserted that his appeal against conviction turned upon mobile telephone records that had not been, as he put it, 'included in the final brief by either the DPP or WAPOL'.[22] The appellant went on to explain that he had been provided with four disks of material by the DPP, which he had been unable to read on the computer provided to him at Casuarina Prison. The appellant went on to state that, since 11 June 2019, he had been able to obtain some of the information he required. However, most of the records he sought had 'mysteriously … been deleted or not provided'.[23]
[21] The appellant's affidavit sworn 8 August 2019, page 1.
[22] The appellant's affidavit sworn 8 August 2019, page 1.
[23] The appellant's affidavit sworn 8 August 2019, page 2.
The appellant's application filed 9 August 2019 was listed for a directions hearing on 5 September 2019. At that hearing, the appellant informed the court, 'There's still more evidence I require to get off the DPP'.[24] He explained that the evidence he required was text messages downloaded from the mobile telephones of the deceased, Ms Williams, Ms Cooke and Ms Turner. Counsel for the respondent advised the court that downloads from the mobile telephones of the appellant, the deceased and Ms Williams had been disclosed to the defence prior to the appellant's first trial. Counsel for the respondent undertook to conduct a review of the material downloaded from the mobile telephones and make inquiries of the investigating officer prior to a further directions hearing which was listed for 12 September 2019.
[24] Appeal ts 44.
Following the directions hearing, on 12 September 2019, the respondent provided, under cover of a letter to the Court of Appeal and the appellant, printed materials which, it was said, duplicated the electronic records that had been disclosed to the defence prior to the appellant's first trial. That material comprised downloads of mobile telephone records including text messages of the appellant, Ms Williams and the deceased, relevantly between 4 April 2014 and 14 April 2014. The police had not seized Ms Cooke's mobile telephone and had not downloaded any material from that source.[25]
[25] Appeal ts 62.
On 17 September 2019, Mazza JA made the following orders:
(1)The appellant shall file and serve by no later than 4.00 pm on 8 October 2019 any affidavit in support of the application to extend time, any application to adduce additional evidence, and his submissions in support of the application.
(2)The respondent shall file and serve by no later than 4.00 pm on 29 October 2019 any affidavit in response, any application to adduce additional evidence, and its submissions in relation to the application.
(3)The appellant shall file and serve by no later than 4.00 pm on 6 November 2019 any material in response to the material filed by the respondent pursuant to order 2 of these orders.
(4)The application is listed for hearing before three judges of this court at 10.30 am on 19 November 2019.
The appellant failed to comply with order (1). Pursuant to order (2), the respondent filed written submissions in respect of the application. The respondent sought the dismissal of the appellant's application filed on 9 August 2019 because he had not satisfactorily explained the delay in filing an appellant's case. Moreover, there is no material before this court to show that there is any merit in the appellant's appeal.[26]
[26] Respondent's submissions dated 29 October 2019, pars 24 - 28.
The legal principles relating to the power to extend time to comply with a springing order
The relevant statutory framework applicable to this application and the power of this court to extend time to comply with a springing order were described by this court in Wharton v The Queen [No 2].[27] We adopt, without repetition, what was said in that case on these subjects. For present purposes, it is sufficient to say that this court has the power to extend time for compliance with a springing order, even though the time for compliance has passed. The power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored. A failure to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity offered to the party to put its case in order.
[27] Wharton v The Queen [No 2] [2015] WASCA 176 [40] ‑ [52].
The starting point for any application to extend time is that the defaulting party must establish why it should be permitted to continue with the litigation despite its failure to comply with a springing order. Although each case must be determined on its own facts and there are no hard and fast rules, a court considering an appellant's application would normally have regard to at least the following matters:
(1)The circumstances in which the springing order came to be made.
(2)The reason for non‑compliance with the springing order.
(3)The prejudice to the defaulting party if the time were not extended.
(4)The prejudice to the other party if the time were extended.
It is also generally a relevant consideration whether or not the defaulting party has a reasonably arguable case on its merits.
Of course, this court will pay due regard to the difficulties that self‑represented appellants in custody often face and the serious consequences that may potentially flow to the appellant if the court refuses to grant the application. This court must also recognise that there is a strong public interest in the timely disposition of criminal appeals and that, in many cases, there is a human cost to victims and/or their families as a result of undue delay.
Disposition
At the hearing of this application, the appellant's initial position was that he had no further submissions to make. However, he added that he had tried to contact witnesses, but had been unable to get, as he put it, 'evidence'.[28] In reference to this 'evidence', the appellant conceded that 'it's not going to happen'.[29]
[28] Appeal ts 93.
[29] Appeal ts 93.
The appellant's delay in filing an appellant's case has been inordinate. The appellant's case was initially due on 10 September 2018. The appellant has been provided with legal advice and when his lawyers withdrew, he was given every opportunity to obtain further legal representation. Despite the very lengthy period of time that the appellant was given to file an appellant's case, and even in the face of a springing order, he failed to do so. Bearing in mind, as we do, that the appellant is self‑represented and a serving prisoner, no adequate explanation has been given for the appellant's failure to file his appellant's case.
Further, there would be no point in granting an extension of time without this court being satisfied that the appellant has a reasonably arguable case. Based on the materials provided and in the absence of a draft appellant's case, there is no basis for this court to conclude that the appellant has a reasonably arguable case. In statements made by the appellant at directions hearings and in his affidavit sworn 8 August 2019, his principal focus has been upon the contents of text messages downloaded from the mobile telephones of the deceased and Ms Williams. The appellant believes that this material would have assisted his claim that he acted in self‑defence.
None of the material described in [29] above which the respondent provided to this court and to the appellant could reasonably have assisted the appellant's claim of self‑defence. It would have been futile to grant the appellant's application to extend time.
Having regard to the inordinate and unexplained delay and the absence of a reasonably arguable case, we dismissed the appellant's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza12 DECEMBER 2019
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