Hayley v The Queen
[2006] WASCA 33
•2 MARCH 2006
HAYLEY -v- THE QUEEN [2006] WASCA 33
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 33 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2005 | 10 NOVEMBER 2005 & 16 FEBRUARY 2006 | |
| Coram: | ROBERTS-SMITH JA | 2/03/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted Application for order dismissing appeal under r 43(2)(g)(ii) dismissed | ||
| A | |||
| PDF Version |
| Parties: | BELINDA JANE HAYLEY THE QUEEN |
Catchwords: | Criminal law and procedure Appeal Appeal as of right on a question of law under s 688 Criminal Code (WA) Whether leave now required under s 27 Criminal Appeals Act 2004 (WA) Effect of "new rules order" under r 4 Supreme Court (Court of Appeal) Rules 2005 (WA) Grounds of appeal changed after Criminal Appeals Act came into operation Whether leave to appeal required Appeal Criminal law and procedure Application for extension of time to file Appellant's Case Application to dismiss appeal for want of prosecution |
Legislation: | Acts Amendment (Court of Appeal) Act 2004 (WA), s 38 Criminal Appeals Act 2004 (WA), s 27 Supreme Court (Court of Appeal) Rules 2005 (WA), r 4, r 43(2)(g)(ii) |
Case References: | Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369 Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422 Cooks Hotel Pty Ltd v Pope (1983) 33 SASR 240 Esber v Commonwealth (1992) 174 CLR 430 Maxwell v Murphy (1957) 96 CLR 261 Rodway v The Queen (1990) 169 CLR 515 Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Festa v The Queen (2001) 208 CLR 593 Pellicciotti v The Queen [2004] WASCA 10 R v Best [1998] 4 VR 603 R v Lewis (1998) 165 CLR 12 R v Ross (1987) 29 A Crim R 77 RPS v The Queen (2000) 199 CLR 620 TKWJ v The Queen (2002) 212 CLR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAYLEY -v- THE QUEEN [2006] WASCA 33 CORAM : ROBERTS-SMITH JA HEARD : 10 NOVEMBER 2005 & 16 FEBRUARY 2006 DELIVERED : 2 MARCH 2006 FILE NO/S : CACR 11 of 2005 BETWEEN : BELINDA JANE HAYLEY
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : IND 14 of 2004
Catchwords:
Criminal law and procedure - Appeal - Appeal as of right on a question of law under s 688 Criminal Code (WA) - Whether leave now required under s 27 Criminal Appeals Act 2004 (WA) - Effect of "new rules order" under r 4 Supreme Court (Court of Appeal) Rules 2005 (WA) - Grounds of appeal changed after Criminal Appeals Act came into operation - Whether leave to appeal required
(Page 2)
Appeal - Criminal law and procedure - Application for extension of time to file Appellant's Case - Application to dismiss appeal for want of prosecution
Legislation:
Acts Amendment (Court of Appeal) Act 2004 (WA), s 38
Criminal Appeals Act 2004 (WA), s 27
Supreme Court (Court of Appeal) Rules 2005 (WA), r 4, r 43(2)(g)(ii)
Result:
Application for extension of time granted
Application for order dismissing appeal under r 43(2)(g)(ii) dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr H G Dembo
Solicitors:
Appellant : Simon Watters
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161
Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369
Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422
Cooks Hotel Pty Ltd v Pope (1983) 33 SASR 240
Esber v Commonwealth (1992) 174 CLR 430
Maxwell v Murphy (1957) 96 CLR 261
Rodway v The Queen (1990) 169 CLR 515
Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28
Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228
(Page 3)
Case(s) also cited:
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Festa v The Queen (2001) 208 CLR 593
Pellicciotti v The Queen [2004] WASCA 10
R v Best [1998] 4 VR 603
R v Lewis (1998) 165 CLR 12
R v Ross (1987) 29 A Crim R 77
RPS v The Queen (2000) 199 CLR 620
TKWJ v The Queen (2002) 212 CLR 124
(Page 4)
1 ROBERTS-SMITH JA: On 4 February 2005, following trial before Muller DCJ and a jury in the District Court at Perth, the appellant was convicted on three counts of importing a prohibited drug (pseudoephedrine) contrary to s 233BAA(4) of the Customs Act 1901 (Cth). She was sentenced to 2 years' imprisonment, suspended for 12 months.
2 By notice dated 21 February 2005 and filed in the Court of Criminal Appeal on 23 February 2005, she appealed on a single ground claiming the trial Judge allowed the prosecution to lead evidence of a search of premises at 100 and 101 Foskew Way, Geraldton, which evidence was prejudicial but not probative of any fact in issue. No particulars were given.
3 There were appearances before a single Judge on 14 April, 23 June and 18 August 2005. On the last occasion, I made a "new rules order". That was an order in standard form, pursuant to r 4 of the Supreme Court (Court of Appeal) Rules 2005 (WA), that r 32 and all consequential rules applied to this appeal and that the time limit referred to in r 32(2)(b) be taken to run from that date. The appellant therefore had 35 days from that day to file the Appellant's Case, in accordance with r 32(2)(b).
4 By application filed 11 October 2005, the appellant sought an extension of time to 8 November 2005 to file the Appellant's Case. That was supported by an affidavit of Mark Russell Gunning, the appellant's then solicitor, sworn 11 October 2005. He relevantly deposed that:
"4. An opinion as to the merits of the appeal was sought from a barrister, Mr. Anthony Karstaedt. Mr. Karstaedt's opinion was received on 5 September 2005.
5. Following receipt of the opinion, further instructions were required from the Appellant. In addition, further funding was required in the event that the Appellant wished to continue with the appeal, which she has instructed she wishes to do.
6. The Appellant is facing a District Court trial listed from 27 September 2005 October 2005 [sic]. This trial has been the Appellant's primary focus. For that reason, while the Appellant has instructed that she wishes to proceed with her appeal, no further funding has been provided in order to prepare the documents required for the 'Appellant's case.'
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- 7. The Appellant resides in Geraldton and further details need to be ascertained over and above her simply wishing to appeal. We would ask that the date be extended to the [sic] 8 November 2005 in order to obtain further instructions and progress the appeal."
5 On 14 October 2005 the respondent filed an application for an order dismissing the appeal for want of prosecution.
6 On 25 October 2005 Mr Watters filed a "Lawyer's Notice of Acting" for the appellant. Also on 25 October 2005, the matter was referred to a single Judge of Appeal for directions. Wheeler JA directed that the applications for extension of time and dismissal of the appeal be listed for hearing before a single Judge of Appeal. Her Honour also made programming orders as to the filing of outlines of submission and lists of authorities. The Registrar listed the applications for hearing before me on 10 November 2005.
7 On 4 November 2005 the appellant filed an amended appeal notice setting out the original ground but with six stated particulars. On the same date the appellant also filed a 63 page affidavit of Simon Barry Watters, sworn that day, in support of the application for extension of time.
8 When the applications came before me on 10 November 2005, it became apparent in the course of counsel's submissions that the merits or otherwise of the appeal would likely be a significant factor in the determination of the applications for extension of time and dismissal. It was also submitted that was interrelated with the question whether or not leave to appeal should be granted. Mr Watters informed me that the Appellant's Case, when filed, would reflect the submissions already put before the Court. In light of that, and with the agreement of counsel, I granted the application for extension of time to the extent of allowing the applicant 14 days from that date to file the Appellant's Case, on the basis the respondent's application to dismiss the appeal and the question of leave would thereafter be dealt with on the papers (in the first instance at least).
9 The Appellant's Case was filed on 23 November 2005. On 30 November 2005 the respondent filed submissions, headed "Respondent's Submissions that Leave to Appeal Should Not be Granted".
10 Neither the Appellant's Case nor the respondent's submissions, dealt with the question whether leave to appeal was required, or whether the
(Page 6)
- appellant was entitled to proceed with her appeal as of right on grounds quite different from that in her initial notice. I accordingly had the matter listed on 16 February 2006 for further submissions on that question and on the applications generally. It is necessary to deal first with the question whether leave to appeal is required.
Whether leave to appeal required
11 The Appellant's Case sets out two grounds of appeal. They are not merely reformulations of the previous grounds.
12 I have already described the ground the subject of the initial notice.
13 In the amended appeal notice filed 4 November 2005, the ground was:
"1. The learned trial Judge's discretion miscarried when he allowed the Respondent to lead evidence of a search of premises at 101 Foskew Way, Geraldton, which evidence was prejudicial but not probative of any fact in issue:
Particulars
- a. The Appellant resided at Lot 100 Foskew Way, Geraldton, a two acre property.
b. The Respondent's case (as particularised in its opening) was that the Appellant lived at Lot 100, Foskew Way Geraldton.
c. The Respondent's case was that the imported pseudoephedrine was to be used to manufacture an illegal drug, namely methylamphetamine and amphetamine.
d. Lot 101 adjoined but was separate to Lot 100.
e. Lot 101 is on an adjoining block that houses a welding premises, also owned by the Appellant and her de facto partner (Allan William Bolton).
f. On 14 August 2002 both Lot 100 and Lot 101 Foskew Way, Geraldton were searched." (transcript references omitted)
(Page 7)
- "1. Inadmissible evidence was before the jury such that it created a prejudice to the Appellant which was incapable of being overcome by direction.
2. The learned trial Judge failed to direct the jury adequately as to the limits of the use to which they might put the evidence of the Appellant's propensity, thereby giving rise to a substantial miscarriage of justice."
15 No particulars are given, but from the submissions contained in the Appellant's Case, it is revealed that the evidence referred to arose out of cross-examination of a police officer by the appellant's then counsel, in the course of which counsel inadvertently elicited evidence from the officer that traces of amphetamine were found at the appellant's premises. Although the present grounds assert errors of law, as did their predecessors, they are entirely new grounds which turn on quite a different point.
16 When the appellant filed her original notice of appeal on 22 February 2005, the relevant statutory provision was s 688 of the Criminal Code (WA), which stated that a person convicted on indictment had a right of appeal to the Court of Criminal Appeal against conviction on any ground which involved a question of law alone, but otherwise could appeal only with leave of the Court of Criminal Appeal or upon the certificate of the trial Judge.
17 Since 2 May 2005 there is no right of appeal from conviction or sentence on indictment. Leave to appeal is required in respect of each proposed ground of appeal (s 27 Criminal Appeals Act 2004 (WA)).
18 The threshold question is whether s 27 of the Criminal Appeals Act and the Supreme Court (Court of Appeal) Rules 2005 (WA) (to the extent they apply to these proceedings by reason of the new rules order made on 18 August 2005) operate so that the appellant cannot proceed with her appeal, unless she is given leave to appeal in respect of either or both grounds.
19 The appellant submits that the matter is governed by s 688 of the Criminal Code and as a consequence she does require leave in respect of ground 1 (because "that relates to a question of fact") but not in respect of ground 2 (because that raises only a question of law). Mr Dembo, for the respondent, submits that s 27 of the Criminal Appeals Act 2004 applies, and as a consequence the appellant requires leave on both grounds.
(Page 8)
20 There is a further statutory provision which I mention in passing at this point. It is s 38 of the Acts Amendment (Court of Appeal) Act 2004 (WA) ("the Amendment Act").
21 The purpose of the Amendment Act was to amend the Supreme Court Act 1935 (WA), to establish the Court of Appeal and to amend various Acts as a consequence of establishing the Court of Appeal.
22 Section 38 is in Pt 5, which is headed "Transitional provisions". That section provides:
"(1) If on the commencement of this Act an appeal or an application for leave to appeal is pending before -
(a) the Full Court of the Supreme Court; or
(b) the Court of Criminal Appeal,
the appeal or application is to be taken to have been commenced or made and to be pending before the Court of Appeal.
(2) Despite subsection (1), if on the commencement of this Act an appeal or an application for leave to appeal is part heard by -
(a) the Full Court of the Supreme Court; or
(b) the Court of Criminal Appeal,
then the hearing and determination of the appeal or application may be completed by the Full Court or the Court of Criminal Appeal, as the case requires, as if this Act had not commenced."
24 The sole ground set out in the appellant's notice filed 22 February 2005, in substance, claimed the trial Judge erred in allowing evidence to be given which was not probative of any fact in issue. That is a ground claiming error of law in admitting inadmissible evidence. If evidence is
(Page 9)
- not probative, it is irrelevant, and if it is irrelevant, it is inadmissible. For that ground, therefore, the appellant did not require leave to appeal. She was entitled to appeal as of right under s 688 of the Criminal Code.
25 The first question is whether the coming into operation of s 27 of the Criminal Appeals Act on 2 May 2005, imposed a requirement that the appellant obtain leave to appeal for any ground of appeal, including one raising a question of law and which she would therefore otherwise have been entitled to appeal as of right under s 688 of the Code.
26 Counsel for the appellant does not directly address this first question, submitting only that the Criminal Appeals Act does not expressly state that it subsumes or applies to appeals commenced prior to 2 May 2005, that the relevant legislation concerning the applicant is the Criminal Code as her appeal is not one brought pursuant to the Criminal Appeals Act and accordingly ground 1 requires leave because that relates to a question of fact, but ground 2 does not because that relates to a question of law.
27 Counsel for the respondent on the other hand, submits simply that "criminal appeal" is defined in the Rules as meaning an appeal under the Criminal Appeals Act 2004 and that by virtue of the new rules order made on 18 August 2005, this appeal "was converted to an appeal under the Act". It is submitted that r 28(8) provides that the rule does not affect the operation of s 28 of the Act which deals with commencing an appeal under Pt 3 Div 3 of the Act. An appeal under this Part must be commenced and conducted in accordance with Pt 3 and the Rules of Court. As s 27 of the Act requires leave of the Court of Appeal for each ground in an appeal under Pt 3, it is submitted that an appeal cannot proceed to determination until and unless leave is granted.
28 The well established rule at common law is that a statute changing the law ought not, unless that intention appears with reasonable certainty, be understood as applying to facts or events which have already occurred, in such a way as to affect rights or liabilities which the law had defined by reference to past events (per Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267).
29 This common law rule has been given statutory force in s 37 of the Interpretation Act 1984 (WA). That section provides that where a written law repeals an enactment, the repeal does not, unless the contrary intention appears:
(Page 10)
- "(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, … as if the repealing written law had not been passed or made"
30 It is probable that such legal proceedings should have been commenced in order to establish that the right has been asserted (Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103 CLR 422, 426), but if that be so, the applicant did in fact institute her appeal prior to 2 May 2005 in any event. However, this does not resolve the question, because all s 37 does is preserve the availability of legal proceedings and remedies in respect of accrued rights and does not preserve the procedure to be followed in the course of any legal proceedings (Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228 per Gibbs J at 245). The presumption against retrospective operation of statutes does not apply to statutes affecting matters of procedure only, as distinct from substantive rights (Rodway v The Queen (1990) 169 CLR 515).
31 In Rodway, the applicant had been charged with certain sexual offences in relation to a girl under the age of 17 years. At the date of the alleged offences, the Criminal Code (Tas) required corroboration of the evidence of the complainant before a person could be convicted of the offences alleged against the applicant. Before the commencement of the applicant's trial, the Tasmanian Criminal Code was amended by repealing the requirement for corroboration and replacing it with a provision which abolished any rule of law or practice requiring a Judge to warn the jury of the danger of convicting on the uncorroborated evidence of the complainant, and precluded him from giving such a warning unless satisfied that it was justified in the circumstances. The issue before the High Court was whether the new provisions applied to the trial of the applicant.
(Page 11)
32 The High court held the new provisions applied to the trial on the ground that the amendment did not affect existing rights and obligations, but operated to affect the way in which rights fell to be determined at trial, and thus did not fall within the presumption against the retrospective operation of a statute.
33 In a unanimous judgment, the High Court observed at 518:
"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw..."
34 After referring to examples where (at 519) "… the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation", the Court continued at 521:
"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by
(Page 12)
- Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale (1860) 6 H&N 227 at p233 [158 ER 94 at p96], per Wilde B; Attorney-General v Sillem (1864) 10 HLC 704 at p763 [11 ER 1200 at p1224], per Lord Wensleydale; Warner v Murdoch (1877) 4 Ch D 750 at p 752, per James LJ."
35 At 522, their Honours held:
"Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v Minahan (1908) 7 CLR 277 at p304; Baker v Campbell (1983) 153 CLR 52 at pp96-97, 104, 116, 123; Sorby v The Commonwealth (1983) 152 CLR 281 at pp289-290; Hamilton v Oades (1989) 166 CLR 486 at p495."
36 It has been held that the power to appeal from a lower Court decision is a matter affecting rights and not a mere matter of procedure (Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28; Colonial Sugar Refinery Co Ltd v Irving [1905] AC 369; Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161). So too, the right to have a decision reconsidered and determined by a Tribunal is not a mere matter of procedure, but a substantive right (Esber v Commonwealth (1992) 174 CLR 430).
(Page 13)
37 In Cooks Hotel Pty Ltd v Pope (1983) 33 SASR 240, it was held that the procedure in relation to the method of bringing an appeal cannot be altered in a way that affects an existing appeal. However, if the procedure does not prevent the appeal being brought, it can properly be described as a procedural amendment and can operate retrospectively. In Cooks Hotel the amendment gave the Supreme Court wider power to dispense with compliance with any provision of the Justices Act 1921 (SA) relating to the institution of appeal, than it had previously. The amendment came into force after the appellant's time for appeal had expired. Mitchell ACJ (with whom White J agreed) held that the section was procedural in that it related to the remedy and not the right, and so was to be construed as operating retrospectively unless it affected vested rights adversely. That it did not do, because a complainant in a prosecution under the Licensing Act 1967 (SA) did not have a vested right in the conviction.
38 In my view, an appellant who has instituted an appeal on a ground which raises a question of law only, prior to the coming into operation of the Criminal Appeals Act on 2 May 2005, has a vested right to appeal without leave pursuant to s 688 of the Code. Section 27 of the Criminal Appeals Act cannot therefore operate retrospectively to stand in the way of that right by requiring leave to appeal.
39 This conclusion is consistent with s 38(1) of the Acts Amendment (Court of Appeal) Act 2004 (WA).
40 Thus, under s 688 of the Code, on 2 May 2005, the applicant had an appeal before the Court of Criminal Appeal as of right on a single ground raising a question of law. By virtue of s 38(1) of the Acts Amendment (Court of Appeal) Act, that became an appeal before the Court of Appeal on that date.
41 The new rules order made under r 4 of the Rules on 18 August 2005 applied r 32 and all consequential rules to the appeal. That did not, and could not, have made the appeal on that existing ground subject to the requirement of leave in s 27 of the Criminal Appeals Act.
42 However, the way in which an extant appeal is to progress, including amendment of grounds of appeal, is a matter of procedure. Any amendment sought to be made in this appeal after 2 May 2005 fell to be determined in accordance with the provisions of the Criminal Appeals Act and Rules. An applicant is entitled to reformulate or add new grounds in the Appellant's Case (r 28(5)). Nonetheless, contrary to the respondent's submission, none of this converts the applicant's appeal to an appeal under
(Page 14)
- the Criminal Appeals Act. It remains an appeal brought under s 688 of the Code, albeit to be taken to have been commenced or made, and to be pending before the Court of Appeal. It is noteworthy that s 38(1) of the Acts Amendment (Court of Appeal) Act does not stipulate that such an appeal is to be taken as having been made under the Criminal Appeals Act. On her appeal therefore, the applicant has a right to proceed without leave to appeal, on any ground which she is entitled to add under r 28(5) or otherwise with leave to amend, which raises a question of law only. The applicant's present grounds raise questions of law solely. Leave to appeal is therefore not required.
Extension of time/application to dismiss for want of prosecution
43 The extension of time sought is not for time to institute the appeal (which has been done) but to file the Appellant's Case in accordance with the Rules and the time limit imposed by my order of 18 August 2005. Although expressed as an application to dismiss the appeal for want of prosecution, that application by the respondent presumably seeks an order dismissing the appeal under r 43(2)(g)(ii) which allows a single Judge to dismiss an appeal if the appellant has not obeyed the Rules or any order made under them.
44 The delay was quite lengthy and is not satisfactorily explained.
45 The applicant's conviction was on 4 February 2005. I shall presently put aside the delay from the date of filing the appeal notice (22 February 2005) until 18 August 2005. That last date was the third occasion on which counsel for the applicant had appeared before a single Judge, but it was not until that date that any time requirement for the applicant to progress her appeal was crystallised.
46 The time for the applicant to file her Appellant's Case was up on 22 September 2005. It was not until 11 October 2005 that her application for extension of time was filed. The very brief affidavit of Mr Gunning was insufficient explanation. Although he deposed that counsel's opinion was received from Mr Karstaedt on 5 September 2005, he did not depose when that opinion was sought, nor why the application for extension of time could not have been made earlier. The explanation that although the applicant wishes to proceed with her appeal, she had not provided funding to do so because her "primary focus" was on a trial then forthcoming in the District Court from 27 September 2005, is unsatisfactory, as is the statement that time to obtain further instructions was necessary because the applicant lives in Geraldton. The grounds of appeal raise matters which will either be demonstrated or not on the record. It is difficult to
(Page 15)
- see how there could be a need for further detailed instructions of a kind which could not be obtained readily over the telephone.
47 However, the situation has changed since the respondent's application was made on 14 October 2005.
48 The fact is, the Appellant's Case was filed on 23 November 2005. The respondent advances no claim of any particular prejudice in the appeal now proceeding.
49 In light of these circumstances, I am disposed to extend time for the filing of the Appellant's Case to 23 November 2005. It follows that I would dismiss the respondent's application.
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