HIRWA
[2021] WASCA 201
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HIRWA [2021] WASCA 201
CORAM: MURPHY JA
MITCHELL JA
HEARD: 26 NOVEMBER 2021
DELIVERED : 26 NOVEMBER 2021
PUBLISHED : 26 NOVEMBER 2021
FILE NO/S: CACR 161 of 2021
BETWEEN: JEAN STEVE HIRWA
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: REGISTRAR GILICH
File Number : CACR 161 of 2021
Catchwords:
Appeal - Practice and procedure - Application for review of registrar's decision not to accept an appeal notice for filing - Whether respondent properly identified in appeal notice - Whether copies of emails and court documents were properly included in draft grounds of appeal - Whether an affidavit in support of an application for an extension of time was required - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA), s 20(3)(a)(iii)
Result:
Review application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
Solicitors:
| Appellant | : | In person |
Case(s) referred to in decision(s):
Hirwa v Muscara [2021] WASC 162
Hirwa v Muscara [2021] WASC 162 (S)
REASONS OF THE COURT:
At the conclusion of the hearing on 26 November 2021, we dismissed Mr Hirwa's application for review of the decision of the acting Court of Appeal registrar refusing to accept a document lodged by the appellant for filing as an appeal notice. These are our reasons for making that order.
On 4 June 2020, Mr Hirwa was convicted in the Magistrates Court at Joondalup on a charge of exceeding the speed limit by between 20km/h and 29km/h when driving on Indian Ocean Road in Lancelin on 1 June 2019. Mr Hirwa was ordered to pay a fine in the amount of $400.00 and $225.90 in costs.
The prosecution in the Magistrates Court was commenced by Senior Constable Renato Muscara, who as a police officer was authorised to commence the prosecution under s 20(3)(a)(iii) of the Criminal Procedure Act 2004 (WA).
On 1 July 2020, Mr Hirwa filed an appeal notice in the General Division of the Supreme Court, applying for leave to appeal against his conviction. The appeal notice in the General Division originally identified the speed camera operator, Paul Harris, as respondent. However, on 5 August 2020 the principal registrar of the court made an order substituting Senior Constable Muscara as respondent to the General Division appeal.
On 18 May 2021, Allanson J made orders refusing leave to appeal on each ground and dismissing the appeal to the General Division. These orders gave liberty to apply as to costs. His Honour published written reasons for making those orders: Hirwa v Muscara [2021] WASC 162.
On 11 August 2021, Allanson J ordered Mr Hirwa to pay Senior Constable Muscara's costs of the appeal to the General Division in the amount of $2,295. His Honour published supplementary written reasons for making that order: Hirwa v Muscara [2021] WASC 162 (S).
On 1 September 2021, Mr Hirwa lodged with the Court of Appeal office a form 1 appeal notice (criminal). The document identified 'Western Australia Police Force' as respondent, and the date of the decision appealed against as 11 August 2021. The decision details were:
Leave to appeal refused on all grounds, Appeal dismissed and Costs to Respondent: $2,295, and Officer Renato MUSCARA becoming a respondent in this matter.
The document lodged on 1 September 2021 set out 10 draft grounds of appeal, interposed with a series of emails and court documents. It also indicated that an extension of time was required.
On 6 September 2021, a customer service officer in the Court of Appeal office wrote to Mr Hirwa notifying him that the appeal notice had not been accepted for filing and explaining the reasons why that was the case. This explanation of the reasons was reiterated by letters of the Acting Court of Appeal Registrar dated 13 and 26 October 2021. The registrar's letter of 13 October 2021 was specific as to the amendments required to the document, and included the terms in which Mr Hirwa's draft appeal grounds could be properly expressed. The registrar's letter of 26 October 2021 explained why the document was not accepted for filing in the following terms:
• The parties to the appeal are incorrect. The respondent to the appeal must be 'Renato Muscara' and not the Western Australian Police Force. In this regard, the orders that you are seeking to appeal against (i.e. orders made by Justice Allanson on 18 May 2021 and 11 August 2021) refer to 'Renato Muscara' as being the first respondent and state that the 'WA Police' discontinued being the first respondent on 4 August 2020.
• The draft grounds of appeal document must be limited to setting out your draft grounds of appeal in numbered paragraphs and cannot include additional documents like emails or orders (see Note 6 to the Appeal Notice - Form 1).
• You are required to file an affidavit in support of an application for an extension of time within which to appeal as the appeal is out of time.
On 29 October 2021, Mr Hirwa filed an application for a review of a single judge's or registrar's decision. The application identified that the decision to be reviewed was a decision made on 26 October 2021 by the acting Court of Appeal registrar not to accept the appeal notice for filing. We are now dealing with that review application, which identifies four grounds on which review of the acting Court of Appeal registrar's decision is sought.
Grounds 1 and 2 of the review application relate to the identification of the respondent to the proposed appeal. There is no merit in those grounds. Senior Constable Muscara was the police officer who commenced the prosecution in the Magistrates Court by lodging the prosecution notice, and so is the proper respondent to an appeal against Mr Hirwa's conviction. The sealed order of the principal registrar of 5 August 2020 records the principal registrar's properly made order substituting Senior Constable Muscara as the respondent to the General Division appeal. Paul Harris, who was the speed camera operator, was a witness in the prosecution but was not a party to the proceedings. Senior Constable Muscara is the proper respondent to the proposed appeal to this court.
Ground 3 of the review application relates to the inclusion of emails and orders in the draft grounds. Form 1 requires an appellant to set out draft grounds of appeal in numbered paragraphs. Rule 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) relevantly requires grounds of appeal to state the grounds, and concise particulars of them, succinctly in numbered paragraphs. Mr Hirwa's draft grounds are prolix and set out evidentiary material which is not appropriately included in an appeal notice or grounds of appeal. The registrar was correct in refusing to accept the appeal notice for filing for this reason.
Ground 4 of the review application contends that an extension of time is not required as the form was lodged on 1 September 2021, which was within the 21 days allowed for appealing against the orders made on 11 August 2021. It is true that the document was lodged within 21 days of the order that Mr Hirwa pay Senior Constable Muscara's costs. However, it is apparent that Mr Hirwa seeks to appeal against the orders refusing leave to appeal and dismissing his appeal to the General Division. Those orders were made on 18 May 2021, so that Mr Hirwa requires an extension of time to appeal against those orders. The document lodged by Mr Hirwa correctly identifies that an extension of time is required. Rule 28(1)(d) and r 28(2) of the Rules required Mr Hirwa to file with his appeal notice an affidavit explaining why the appeal was not commenced in time. The registrar correctly refused to accept the appeal notice for filing for failure to comply with this requirement.
The registrar properly refused to accept the document which Mr Hirwa lodged on 1 September 2021 for filing, for the reasons which the registrar gave. Mr Hirwa's review application must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
26 NOVEMBER 2021