Hayley v The State of Western Australia - [2006] WASCA 263

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAYLEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 263

CORAM: ROBERTS-SMITH JA

HEARD: 22 NOVEMBER 2006

DELIVERED : 22 NOVEMBER 2006

FILE NO/S: CACR 200 of 2005

BETWEEN: BELINDA JANE HAYLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 201 of 2005

BETWEEN :ALLAN WILLIAM BOLTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'SULLIVAN DCJ
File No  :IND 536 of 2004

Catchwords:

Criminal law and procedure - Appeal - Application for leave to appeal against conviction - Leave to appeal refused - Appeal dismissed by single Judge - Application to Court of Appeal to review decision of single Judge - Application to add a new ground - Status of appeal when no grounds outstanding - Effect of s 27(3) Criminal Appeals Act 2004 (WA) and r 43 Supreme Court (Court of Appeal) Rules 2005 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Result:

Hayley v The State of Western Australia - CACR 200 of 2005
Leave to appeal refused on all remaining grounds
Appeal dismissed pursuant to r 43(2)(g)(i)

Bolton v The State of Western Australia - CACR 201 of 2005
Appeal dismissed

Category: B

Representation:

CACR 200 of 2005

Counsel:

Appellant: In person
Respondent: Mr M R Jones

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

CACR 201 of 2005

Counsel:

Appellant: No appearance
Respondent: Mr M R Jones

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bolton v The State of Western Australia [2005] WASCA 232
Bolton v The State of Western Australia [2006] WASCA 34

Case(s) also cited:

Nil

ROBERTS-SMITH JA: These two matters come before me today for essentially two reasons. The first one simply is because I granted an adjournment earlier at the request of the appellants to enable them to make certain decisions in relation to the future conduct of the appeal in each instance and so the Court could be apprised of that.
When each matter did come before me on the last occasion, which was on 12 October 2006, one of the queries I raised in relation to the appeal by Mr Bolton is whether or not there is indeed still any extant live appeal. I raised that question, or that issue, because there appeared to me to be no continuing ground of appeal which was still live. That being so, there was a real question as to whether or not there was any appeal still on foot or whether it had, in effect, been dismissed.
The situation arises in short in this way. It is that the matter in Mr Bolton's case was referred to the Court of Appeal to deal with, on the basis of applications to review earlier decisions that leave to appeal be refused on the then existing grounds of appeal.
There was also an application before the Court for leave to add a further ground or grounds reliant upon fresh evidence or additional evidence.
When the matter came before the Court of Appeal on 21 September 2006, Mr Richter QC, who on that occasion appeared for Ms Hayley, indicated that on his understanding all of the grounds of appeal concerning the appellant Bolton had either been dismissed or abandoned. On that occasion also the application to adduce additional evidence was abandoned. Consequently, as the President pointed out (t/s 3), he took it that Mr Bolton's appeal was just dismissed because ground 5 (the additional evidence ground) was the only remaining ground. Mr Jones, who appeared on that occasion, said that was his understanding and that there was nothing left to agitate on behalf of Mr Bolton.
It was in those circumstances that I raised the query that I did.
Mr Bolton's appeal, which is CACR 201 of 2005, was commenced by an appeal notice on 25 October 2005. At that stage Mr Simon Watters was on record as the solicitor. That subsequently became Thames Legal. There were five grounds of appeal at that stage. They were the same grounds of appeal as were in the appeal notice for Ms Hayley, which was also filed the same day, in CACR 200 of 2005.
On 4 November 2005 Mr Bolton made an application for bail pending appeal and on 21 November made an application for an order that certain exhibits be delivered to the office of the Director of Public Prosecutions for them to be independently examined by an expert engaged by the appellant. Those applications were heard on 24 November 2006. I reserved my decision on the bail application and granted the application in respect of the exhibits seized by police.
On 1 December 2005 I dismissed Mr Bolton's bail application (Bolton v The State of Western Australia [2005] WASCA 232).
On 5 December 2005 each of the appellants filed their Appellants' Case. Grounds 1, 2, 4 and 5 were the same as on the appeal notice. There was a new ground 3, although it raised the same issue as the previous ground 3.
There were further applications made on 18 January 2006, one in each appeal, seeking further orders in relation to analysis of items collected or seized by police. I made an order in relation to each of those on 30 January 2006 allowing the taking of samples and their analysis.
On 13 February 2006 Ms Hayley made an application to vacate a single judge hearing which had been listed for 16 February on the grounds that she wished to finalise further evidence concerning the expert's report so as to ground an additional ground of appeal on what was described as "fresh evidence".
A similar application, that is, in relation to the evidence, was made in Mr Bolton's appeal, although that sought leave to rely upon such evidence at the hearing of the appeal against conviction in his case. There were amended grounds of appeal filed by him at that point. Grounds 1 to 4 remained the same as in the Appellant's Case of 5 December 2005. Ground 5 related to the additional evidence said to turn upon the report of a Mr John Franceschini dated 9 May 2006 and a further ground 6 which was an all‑encompassing ground that the errors as asserted in the preceding grounds had a cumulative effect such as to occasion a miscarriage of justice.
There was also a further application for bail pending appeal made by Mr Bolton. On 16 February 2006 I granted Ms Hayley's application to vacate the single Judge hearing in respect of her application for leave to appeal but I reserved my decision on Mr Bolton's application for leave to appeal, his application for leave to add a new ground, his application to adduce additional evidence and his application for bail.
On 2 March 2006 at a subsequent hearing I refused Mr Bolton leave to adduce additional evidence on appeal. I refused him leave to add a further ground of appeal and I refused his application for leave to appeal in respect of the grounds then relied upon. I also dismissed his application for bail and made an order that as leave to appeal in respect of each ground had been refused the appeal be dismissed. Those reasons were published in Bolton v The State of Western Australia [2006] WASCA 34.
On 7 March 2006 there was an application for review of my decisions made on 2 March. A further application for review of a single Judge's decision, namely, my decision refusing to grant bail pending appeal, was filed on 8 March 2006. The review applications were listed before the Court of Appeal on 12 April 2006, together with Mr Bolton's appeal against sentence.
On the review hearing on 12 April 2006, the Court of Appeal was told that all grounds of appeal were abandoned except ground 5 which related to the additional evidence. With the consent of the respondent the application in respect of ground 5 was adjourned to a date to be fixed for the purpose of hearing that ground once the final report of Mr Franceschini was obtained. At that stage, therefore, in relation to Mr Bolton's appeal there was only one ground left, that being ground 5.
On 18 May 2006 an amended appeal notice with amended grounds of appeal was filed on behalf of Mr Bolton. There was no application to amend filed with that. Grounds 1 to 5 remained the same as those in the amended grounds of appeal of 11 May 2006. Ground 6 was a ground asserting that the technique used by the Chemistry Centre of Western Australia to test the items seized for the presence of any illicit drug, namely, by way of washing and rinsing such items and then disposing of the residue, effectively destroyed the evidence and thereby denied any expert retained by the appellant the opportunity to test the equipment for the presence of either methylamphetamine or the chemical said to have been used in the manufacturing process, such that the appellant did not receive a fair trial.
Ground 7 was again the all-encompassing accumulation of errors ground. A further application for bail pending appeal was made. The application for an order that the appellant be permitted at the hearing of the appeal against conviction by way of review to rely upon the amended appeal notice and grounds of appeal dated 17 May 2006 was filed on 22 May that year. On 31 May Thames Legal came on record as Mr Bolton's solicitor. On 10 July 2006 there was an application on Mr Bolton's behalf for an order that his application for bail be listed for hearing as soon as possible.
On 17 July McLure JA made certain orders as to the filing and serving of written submissions in support of the renewed application for bail. On 1 August 2006 there was an application by Thames Legal to remove themselves from the record. On 4 August 2006 that application was granted and the bail application for Mr Bolton was adjourned indefinitely. On 7 September 2006 Andrew Maughan and Associates filed a notice of acting in both appeals. On 8 September 2006 various directions were given by the Registrar as to the presentation of the application for review before the Court of Appeal.
That application was heard on 21 September 2006 as I have indicated and a consent order was made in terms of minutes dated 21 September 2006, that the application to adduce new evidence be dismissed and that Mr Bolton's application for bail be dismissed. As I have already indicated, it was clearly the understanding of the President at that time that as the application for new evidence had been dismissed, ground 5 effectively had no standing since it relied entirely on that new evidence.
The situation thereafter was that Mr Richter QC, who appeared for Ms Hayley on that occasion, indicated that it was proposed in her case to seek leave to amend to add a further ground of appeal to do with the competence of counsel in the conduct of her trial. Although he was not acting for Mr Bolton, he suggested to the Court as amicus, that Mr Bolton may well seek leave similarly. It was on that understanding that the matter in each instance was adjourned back before me as a single Judge.
The procedure for commencing an appeal in this Court against conviction on any indictable offence is set out initially in s 28 of the Criminal Appeals Act 2004 (WA) ("the Act"). Subsection (1) requires that an appeal under this part must be commenced and conducted in accordance with this part and rules of court. Subsection (2) provides that an appeal must be commenced by lodging with the Court of Appeal, an application for leave to appeal that sets out the grounds of the appeal. The section goes on then to prescribe other requirements.
Rule 27 of the Supreme Court (Court of Appeal) Rules 2005 (WA) directs that an appeal is not commenced until an appeal notice, with any other document required by r 28 or 29, has been both filed and served in accordance with the Rules. Rule 27 requires the filing of a document, that is to say an appeal notice, in accordance with Form 1. That form requires, on its face, draft grounds of appeal. It seems to me that as a matter of ordinary commonsense and statutory construction, a notice which contained no draft grounds of appeal would not be an appeal notice within the meaning of the Act or Rules.
Section 27 of the Act provides that the leave of the Court of Appeal is required for each ground of an appeal and that the court must not give leave to appeal on a ground unless satisfied that that ground has a reasonable prospect of succeeding. Section 27(3) stipulates that unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
There are other provisions, notably r 43, which give a single Judge certain powers, including the power to order that an appeal be dismissed where leave to appeal is refused on each ground.
The question, it seems to me, is whether s 27(3) produces the automatic result that an appeal is taken to have been dismissed where leave is refused on all extant grounds of appeal. In my opinion it does.
The situation in relation to Mr Bolton on the face of it, it seems to me, is that there is no extant ground of appeal. That appears to have been the understanding of all concerned in the Court of Appeal on 21 October having regard to the orders made by consent on that occasion and the preceding history of the matter.
If that be so, then it seems to me inevitably to follow from the provisions of s 27(3) that the appeal in Mr Bolton's case is to be taken to have been dismissed and there therefore is no appeal in respect of which any further order can be made.
If I were wrong about that, it would seem to me necessarily to be the case that in the circumstances as I have outlined them and having regard to the present position as Ms Hayley has explained it to me today, there should be a formal order that leave to appeal be refused on ground 5, simply because there is nothing to support it.
I would make that order and in that circumstance would further order that the appeal in Bolton's case be dismissed pursuant to r 43(2)(g)(i). I would do that in any event, as I have indicated because this matter has now been continuing since October 2005. There has been a multiplicity of grounds which have appeared from time to time so that the basis of the appeal has been changing constantly. Even on what Ms Hayley has said to me today, there appears to be no realistic prospect that there will be any further cogent ground of appeal which might be filed and it cannot be in the interests of justice for the matter to continue in this way indefinitely.
She has indicated that even were those lawyers who have said to her they would be prepared to consider the material in this matter from the point of view of an appeal prepared to act, they would need at least a couple of months to do so. That is the basis upon which she has sought more time both on her own account and that of Mr Bolton.
In light of the protracted and unsatisfactory history of the matter, it seems to me that it would be quite contrary to the interests of justice, even were Mr Bolton's appeal still live, to allow it to continue purely on the speculative proposition that some further ground of appeal may be formulated and leave eventually sought to proceed on the basis of it. For those reasons, as I have indicated, even were I wrong in my conclusion that Mr Bolton's appeal has in fact already been dismissed by operation of the statute, I would not be minded to allow it to continue further.
In relation to Ms Hayley's appeal, the situation is somewhat different. As I indicated a moment ago, her application for leave to appeal on the then live grounds was adjourned on 16 February 2006. The next event which occurred in relation to that was on 10 May 2006 when there was made an application for leave for her to rely upon the fresh evidence referred to in ground 5 of the amended grounds of appeal. In fact no amended grounds of appeal had been filed at that point but the report of John Franceschini dated 9 May 2006 was annexed to her affidavit.
There was also a further application for an order that police provide running sheets relating to their investigation. Also on that day, 10 May 2006, Thames Legal came on record as her solicitor. Submissions were filed on 11 May prior to the hearing in support of the application to rely upon fresh or new evidence.
On that occasion I determined that the application for leave to appeal following the receipt of expert reports could not be dealt with since no amended grounds of appeal had been filed and I ordered that they be filed by 11 May 2006. Amended grounds of appeal and an amended appeal notice were filed on 11 May 2006. Grounds 1 to 4 remained the same as those in the appellant's case.
Ground 5 related to evidence obtained since the trial. That concerned the report of Mr Franceschini dated 9 May. Ground 6 again was similarly expressed to that in Mr Bolton's appeal, being the accumulation of error ground. On 17 May 2006 an amended appeal notice and amended grounds of appeal were filed. Grounds 1 to 5 remained the same. Ground 6 related to the technique used by the Chemistry Centre and was in similar terms as ground 6 in Mr Bolton's appeal. Likewise ground 7 became the cumulative error ground.
On 22 May 2006 there was an application by Ms Hayley for an order that she be permitted at the hearing of her appeal against conviction to rely upon the amended appeal notice and grounds of appeal. At the hearing on 25 May the State sought an adjournment for further time to consider the issues raised in the amended grounds of appeal and that application was therefore adjourned to 14 June.
As it happened, on 26 May I made further orders that the order that the application to amend grounds of appeal and to adduce additional evidence on the appeal be adjourned for hearing before me on 14 June, be revoked and that the applications be listed for hearing before the Court of Appeal together with the hearing of the additional evidence ground in Mr Bolton's appeal.
A further application was made by Ms Hayley on 21 July for orders that the respondent provide police running sheets and any warrants relating to tracking devices placed on certain vehicles. Those applications were adjourned indefinitely on 27 July and on 1 August 2006 Thames Legal made an application to get off the record in relation to Ms Hayley. That application was granted on 4 August 2006.
There were various other matters then, including directions being given by the Registrar, submissions being filed and so on, and on 20 September 2006 Andrew Maughan and Associates gave notice of acting on behalf of Ms Hayley.
Ms Hayley's appeal came before the Court of Appeal on 21 September 2006 together with that of Mr Bolton. Likewise in her case a consent order was made in terms of a minute produced that the application to adduce new evidence be dismissed and accordingly ground 5 had no standing since it relied on that evidence.
We therefore seem to be in the situation that grounds 1 to 4 and 6 to 7 still need to be determined in relation to the question of leave. I do not propose to canvass all of the reasons again but those grounds which were common to Ms Hayley's appeal and Mr Bolton's appeal have no reasonable prospect of success for the reasons which I gave in relation to Mr Bolton's application for leave to appeal.
Likewise in relation to the remaining grounds which were not the subject of reasons previously it seems to me that having regard to them that there is no reasonable prospect that they could succeed. That indeed appears effectively to be conceded.
What Ms Hayley seeks now is an adjournment to enable her to obtain further legal advice with the prospect that there is or may be a further and different ground of appeal. For the reasons which I have already indicated in respect of Mr Bolton's appeal it appears to me not to be in the interests of justice to allow this matter to continue any further on the purely speculative basis that some further ground may yet be found.

Leave to appeal must be refused on all of the extant grounds of appeal in Ms Hayley's appeal and I would accordingly also order formally, in light of that, that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Rules.
Both appeals are accordingly dismissed.