Heedes v The State of Western Australia [No 3]
[2016] WASCA 26
•8 FEBRUARY 2016
HEEDES -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2016] WASCA 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 26 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:170/2005 | 25 JANUARY 2016 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 8/02/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARTHUR SAMUEL HEEDES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction and sentence Appellant tried on indictment Appeal against conviction allowed Application for costs Whether court empowered to award costs |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h), s 19(2), s 20, s 21, s 35 |
Case References: | Heedes v The State of Western Australia [No 2] [2008] WASCA 142 R v Jackson [1962] WAR 130 The State of Western Australia v Burke [No 2] [2012] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEEDES -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2016] WASCA 26 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- CACR 171 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : IND 486 of 2004
Catchwords:
Criminal law - Appeal against conviction and sentence - Appellant tried on indictment - Appeal against conviction allowed - Application for costs - Whether court empowered to award costs
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h), s 19(2), s 20, s 21, s 35
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr L M Fox
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Heedes v The State of Western Australia [No 2] [2008] WASCA 142
R v Jackson [1962] WAR 130
The State of Western Australia v Burke [No 2] [2012] WASCA 129
1 JUDGMENT OF THE COURT: On 15 July 2005, the appellant was convicted, after a trial in the District Court before Yeats DCJ and a jury, on two counts in an indictment.
2 The trial judge sentenced the appellant to 6 months' immediate imprisonment on each count. Her Honour ordered that the individual sentences be served cumulatively. The total effective sentence was therefore 12 months' immediate imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 29 August 2005.
3 On 4 July 2008, this court (Buss and Miller JJA and Murray AJA) allowed the appellant's appeal against conviction (being CACR 170 of 2005). The court set aside the convictions and entered judgments of acquittal on both counts. See Heedes v The State of Western Australia [No 2] [2008] WASCA 142.
4 Although it was strictly unnecessary to consider the appeal against sentence (being CACR 171 of 2005), this court indicated that the trial judge's decision to impose sentences of immediate imprisonment was erroneous. Sentences of suspended imprisonment were clearly an open disposition. If the court had not allowed the appeal against conviction and entered judgments of acquittal it would have allowed the appeal against sentence and ordered that the sentences of imprisonment be suspended for 12 months as from 29 August 2005.
5 On 30 November 2015, the appellant, who is self-represented, filed an application in each appeal for an order that the State pay him counsel fees in the amount of $20,000 plus interest of $10,000 plus out-of-pocket disbursements in respect of each appeal.
6 The appellant filed in support of his applications an affidavit sworn by him on 27 November 2015. The appellant deposes in the affidavit that he was initially represented in the appeals by defence counsel. He paid them $20,000 'but then due to running out of funds, [the appellant] was forced to represent himself' [16(b)]. At the hearing of the appeals the appellant was self-represented. The appellant deposes that the interest of $10,000 represents 'interest [on the $20,000] from the 12th June 2008 being when the appeal was heard' [21].
7 The applications were listed for hearing before this court on 25 January 2016. The appellant was given notice of the hearing. He did not appear. On 25 January 2016, this court ordered that the appellant be at liberty to file and serve written submissions, in response to written submissions that had been filed and served by the State, by 4.00 pm on 3 February 2016. The appellant did not file any written submissions pursuant to that order.
8 It is apparent from the appellant's affidavit that he seeks to rely on s 14(1)(h) of the Criminal Appeals Act 2004 (WA) (the Act) as a source of power to award costs and interest.
9 Section 14(1)(h) provides:
In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
10 Section 19(2) of the Act provides:
In deciding an appeal under this Division, the Court of Appeal may, in addition to exercising any of the powers in section 14, do one or more of the following -
(a) order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court -
(i) as to how or by whom it is to be constituted;
(ii) as to how it must deal with the case;
(b) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
- See also s 20 and s 21 of the Act.
11 Section 14 is in div 2 of pt 2 of the Act. Division 2 applies to appeals to the Supreme Court, constituted by a single judge sitting in its General Division, from a decision of a court of summary jurisdiction.
12 Section 19 is in div 3 of pt 2 of the Act. Division 3 applies to appeals to this court from a decision of a single judge of the Supreme Court, sitting in its General Division, in an appeal under div 2 of pt 2.
13 The provisions with respect to costs in s 14(1)(h) and s 19(2) (and, also, in s 20 and s 21) of the Act do not apply to appeals against conviction or sentence by a person who has been convicted of an offence on indictment. Those appeals are governed by pt 3 of the Act. Part 3 comprises s 22 to s 35A. By s 35:
(1) A party to an appeal under this Part must not be charged a fee by a court for or in respect of any act or proceeding that relates to the appeal or its commencement.
(2) The Court of Appeal cannot order a party to an appeal under this Part to pay another party’s costs of or relating to the appeal.
14 Accordingly, by s 35(2), this court does not have power under the Act to order the State to pay counsel fees, interest and out-of-pocket disbursements as sought by the appellant.
15 Section 35 of the Act reflects the common law rule that the Crown or the State neither receives nor pays costs in trials on indictment or on appeals therefrom. See R v Jackson [1962] WAR 130 (Virtue J); The State of Western Australia v Burke [No 2] [2012] WASCA 129 [42] (Buss JA, Martin CJ & Mazza JA agreeing).
16 The applications must be dismissed.
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