Hayley v The State of Western Australia
[2007] WASCA 130
•13 MARCH 2007
HAYLEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 130 | |
| THE COURT OF APPEAL (WA) | 26/06/2007 | ||
| Case No: | CACR:200/2005 | 13 MARCH 2007 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 13/03/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | BELINDA JANE HAYLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(3) |
Case References: | Barry v The State of Western Australia [2007] WASCA 12 Bolton v The State of Western Australia [2006] WASCA 34 Hayley v The State of Western Australia [2006] WASCA 263 Keating v The State of Western Australia [2007] WASCA 98 Lawless v The Queen (1979) 142 CLR 659 Mickelberg v The Queen (2004) 29 WAR 13 Morey v The State of Western Australia [2007] WASCA 103 Tkacz v The State of Western Australia [2005] WASCA 108 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAYLEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 130 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH JA
File No : CACR 200 of 2005
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(3)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr M R Jones
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2007] WASCA 12
Bolton v The State of Western Australia [2006] WASCA 34
Hayley v The State of Western Australia [2006] WASCA 263
Keating v The State of Western Australia [2007] WASCA 98
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (2004) 29 WAR 13
Morey v The State of Western Australia [2007] WASCA 103
Tkacz v The State of Western Australia [2005] WASCA 108
(Page 3)
1 STEYTLER P: The appellant and her co-accused, Allan Bolton, were convicted on 3 October 2005, after a trial, of manufacturing methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA). Both sought leave to appeal against their conviction. Each lodged identical grounds of appeal. There were five grounds in all.
2 Bolton later applied for leave to amend his grounds by adding a new ground (the new ground was numbered 5 and the original ground 5, which relied upon the cumulative effect of the other grounds, was renumbered 6). The new ground 5 was to the effect that evidence obtained since the trial, taken together with the other matters raised by the grounds of appeal, was capable of raising a reasonable doubt in respect of Bolton's guilt of the offence of which he was convicted. The evidence consisted of a report by an analytical chemist, Mr John Franceschini, dated 6 February 2006. Essentially, this report expressed the opinion that chemicals and equipment said to have been used in manufacturing the methylamphetamine were not "fully" representative of the items expected of a typical drug manufacturing facility of the kind said to have been used by Bolton and the appellant. The report also mentioned that some of the items that had been seized from Bolton's premises and said to have been used for the manufacture of methylamphetamine had not been tested for the chemicals used in that process. Bolton lodged an application for leave to adduce this evidence in support of the proposed new ground 5.
3 In Bolton v The State of Western Australia [2006] WASCA 34, delivered on 2 March 2006, Roberts-Smith JA held that Bolton's original five grounds of appeal (grounds 1 to 4 and 6 of the amended grounds of appeal) had no reasonable prospect of success. In relation to the proposed ground 5, Roberts-Smith JA concluded (at [40]) that the evidence said to support it was new rather than fresh, with the consequence that no miscarriage of justice would be demonstrated unless it was capable of satisfying the court that Bolton was innocent, or at least raised such a doubt that Bolton should not have been convicted: Tkacz v The State of Western Australia [2005] WASCA 108 at [49]; Lawless v The Queen (1979) 142 CLR 659 at 676; Mickelberg v The Queen (2004) 29 WAR 13 at [413]. He concluded (at [41]) that the evidence relied upon by Bolton was not capable of showing that he was innocent or of raising such a doubt that he should not have been convicted. He consequently refused the application for leave to adduce that evidence and also refused the application for leave to add the new ground 5. Because leave to appeal was refused on all grounds, the appeal was dismissed: s 27(3) of the Criminal Appeals Act 2004 (WA).
(Page 4)
4 An application for review of Roberts-Smith JA's decision to dismiss Bolton's appeal was lodged. It was listed for hearing by the Court of Appeal on 12 April 2006. On that day, the court was told that all grounds of appeal were abandoned other than the proposed new ground 5. The application for review of Roberts-Smith JA's decision refusing leave to introduce that ground and refusing leave to adduce the new evidence was adjourned in order to enable a further report to be obtained from Mr Franceschini.
5 On 10 May 2006 the appellant lodged an application to amend her grounds of appeal and to rely upon additional evidence. As had been the case with Bolton's grounds of appeal, the proposed new ground (similar to that which Bolton had sought leave to introduce) was numbered 5 and the original ground 5 was renumbered 6. Proposed ground 5 relied upon a further report that had been prepared by Mr Franceschini dated 9 May 2006. Then, on 17 May 2006, a further set of amended grounds of appeal was filed by the appellant. Grounds 1 to 5 of the amended grounds remained the same. Ground 6 was renumbered 7. A proposed new ground 6 asserted that the technique used by the Chemistry Centre of Western Australia to test items seized for the presence of an illicit drug effectively destroyed the evidence and thereby denied the appellant the opportunity to have that equipment tested by her own expert for the presence of methylamphetamine or any other chemical said to have been used in the manufacturing process. This proposed new ground also relied upon material in the report dated 9 May 2006. On 18 May 2006 Bolton lodged an application to amend his grounds of appeal by the introduction of a new ground 6 similar to that raised by the appellant.
6 On 21 September 2006, Bolton's application for review of the dismissal of his appeal and the appellant's application for leave to appeal came before the Court of Appeal. In each case, by consent, orders were made that the application that had been brought by each of Bolton and the appellant to adduce additional evidence was dismissed. Senior counsel who appeared on behalf of the appellant on that occasion informed the court that he had come to the view that "it would waste the court's time to argue that [the additional evidence] meets the criteria" and that it was for that reason that that application was no longer pursued. However, he foreshadowed that, when the appellant's application for leave to appeal was heard, it was proposed to pursue a new ground "which involves conduct of legal practitioners".
7 During the hearing on 21 September 2006, the court questioned whether Bolton's appeal was any longer on foot, given that it had been
(Page 5)
- dismissed by Roberts-Smith JA and his decision in that respect was challenged only so far as it related to the proposed new ground 5 which had relied upon the fresh evidence that was now no longer relied upon. However, Bolton's application for review and the appellant's application for leave to appeal were sent back to Roberts-Smith JA for further directions.
8 Both matters came before Roberts-Smith JA on 12 October 2006. On that day, he also questioned whether or not there was any appeal still on foot in Bolton's case. Shortly, thereafter, the respondent applied to dismiss both appeals for want of prosecution.
9 The two matters came on for hearing again on 22 November 2006. After hearing from the parties, Roberts-Smith JA delivered a judgment in respect of both matters: Hayley v The State of Western Australia [2006] WASCA 263.
10 In his judgment, Roberts-Smith JA concluded that Bolton's appeal had been dismissed, because leave had been refused in respect of all existing grounds of appeal and there was then no application for review in respect of his decision refusing leave to introduce the proposed new ground 5, that application having effectively been abandoned once the application to lead additional evidence was dismissed by consent ([27], [29] and [30] of the judgment). The application to amend the grounds with the introduction of proposed new ground 6 was therefore incompetent: s 27(3) of the Criminal Appeals Act; Barry v The State of Western Australia [2007] WASCA 12 at [24] and Morey v The State of Western Australia [2007] WASCA 103.
11 Roberts-Smith JA then turned to the appellant's application for leave to appeal. He said that none of the original five grounds had any reasonable prospect of success for the reasons that he had given in respect of Bolton's application for leave to appeal. As to the grounds proposed to be added by way of amendment he said (at [42] and [44]) that, because the application to adduce new evidence had been dismissed, there was no reasonable prospect that these proposed grounds could succeed. He added (at [44]) that this appeared effectively to have been conceded.
12 Roberts-Smith JA then went on to deal with an application that had been made by the appellant for an adjournment in order to enable her to obtain further legal advice with a view to adding a further or different ground of appeal. He said, in that respect, that the matter had been continuing since October 2005, that there had been a multiplicity of
(Page 6)
- grounds which had appeared from time to time, with the basis of the appeal changing constantly, and that there was no realistic prospect that there would be any further cogent ground of appeal ([31] and [45]). He said (at [45]) that it was not in the interests of justice to allow the matter to continue any further "on the purely speculative basis that some further ground may yet be found". The appellant's appeal was consequently dismissed.
13 The appellant applied for review of Roberts-Smith JA's decision by notice dated 22 November 2006. The grounds of review raise two complaints. The first is that Roberts-Smith JA erred in refusing to allow the appellant an adjournment to find legal representation in circumstances in which she had done her best to do so. The second is that he erred in refusing to grant leave to appeal in circumstances where it was appropriate that leave be granted. No particulars of those grounds have been provided.
14 The application for review was listed for hearing on 13 March 2007. However, by letter dated 14 February 2007 the appellant applied, in effect, to vacate the hearing date. Her application was supported by a letter from Mr Franceschini which recorded, amongst other things, that he was "continuing to seek experts in the areas of testing and analysis", an exercise which, he said, had "proved fruitless to date". He said that another six to eight weeks was needed to make further inquiries. The application was refused by a single judge of the court, Wheeler JA, on 16 February 2007.
15 When the matter came on for hearing on 13 March 2007, the appellant appeared in person. She said that she had been in touch with a solicitor and that the solicitor and Mr Franceschini needed more time "to find out more information". It was pointed out to her that the only basis upon which she had sought the vacation of the hearing date was in order to pursue an issue which seemingly added little to that which had been abandoned by her counsel. She was reminded that the only new ground that had been foreshadowed by her counsel was one relating to incompetence of trial counsel and that nothing had ever eventuated from her in that respect. She was also reminded that the only application before the court was one to review the decision of Roberts-Smith JA to refuse an adjournment and to dismiss her appeal. The appellant responded by saying that she was not in court to discuss what Roberts-Smith JA did "or what anyone has done". She declined to make any further submissions and her application was dismissed with reasons to follow.
(Page 7)
16 In my opinion no error was made by Roberts-Smith JA and there is consequently no basis for upsetting his decision (as to which see Keating v The State of Western Australia [2007] WASCA 98 at [21], [23] and [62]). There is no proper challenge to his decision to refuse leave to appeal on any of the original grounds of appeal and, as I understand the appellant, the only basis upon which she wishes to pursue her appeal is in the hope that some additional expert evidence might be obtained which casts doubt upon her conviction. There is nothing to suggest that anything of that kind will be found over and above what is said in the report dated 9 May 2006 which, as her senior counsel rightly conceded, fell well short of raising a doubt sufficient to conclude that she should not have been convicted. No basis was consequently made out and nor, on the available evidence, could any basis be made out for a grant of leave to amend the appellant's grounds of appeal by introducing proposed grounds 5 and 6. Leave to amend having accordingly been rightly refused, and there being no real challenge to the refusal of leave to appeal on each of the original grounds, the appeal is taken to have been dismissed: s 27(3) of the Criminal Appeals Act; Barry at [24]; Morey.
17 It follows that no error has been demonstrated and the application for review must fail. It was for these reasons that I joined in the decision to dismiss the application for review.
18 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
19 BUSS JA: I agree with the President.
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