Hodder v Hywell

[2008] WASC 61

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   HODDER -v- HYWELL [2008] WASC 61

CORAM:   McKECHNIE J

HEARD:   16 APRIL 2008

DELIVERED          :   16 APRIL 2008

FILE NO/S:   SJA 1003 of 2008

BETWEEN:   JAMES LESLIE HODDER

Appellant

AND

CERI HYWELL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE V C EDWARDS

File No  :MI 10294 of 2006, MI 10295 of 2006, MI 10313 of 2006, MI 10314 of 2006

Catchwords:

Criminal law and procedure - Appeal - Whether reasonable prospects - Turns on own facts

Legislation:

Community Protection (Offender Reporting) Act 2004 (WA), s 113
Criminal Appeals Act 2004 (WA), s 9

Result:

Leave to appeal against conviction refused
Leave to appeal against sentence adjourned for 28 days

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Samuels v State of Western Australia (2005) 30 WAR 473

1. McKECHNIE J:  This is an application for leave to appeal against convictions and sentence in respect of a number of charges under the Community Protection (Offender Reporting) Act 2004 (WA), one charge of obstructing a public officer, and one charge of escaping lawful custody.

2. On 28 December 2007, the appellant was convicted of those charges and seeks leave to appeal within time to this court.  In an application for leave to appeal, a judge on such an application is required to examine each ground of appeal and, by the Criminal Appeals Act 2004 (WA) s 9(1), the leave of the Supreme Court is required for each ground of appeal in an appeal under this division. The Supreme Court must not give leave on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. It is that test, as explained in Samuels v State of Western Australia (2005) 30 WAR 473, which I apply to the grounds.

3. I will deal with them seriatim. 

Ground 1: The magistrate failed to exclude evidence obtained involuntarily

1. During the course of the trial, the magistrate allowed evidence of two video records of interview to be tendered in evidence and in respect of the first, she found that it was in fact voluntary notwithstanding some earlier protestations.  The appellant subsequently answered questions.

2. That question of fact was open to her.  More importantly, however, the video records of interview were not tendered or accepted into evidence by her or used by her as evidence of admissions as to what was contained in them but as evidence, somewhat unusually, as to what the police had told the appellant, so they were evidence, visual evidence, of what the appellant had been told.  On that basis they were clearly admissible and the question whether they were voluntary or not did not really arise in view of the limited use to which they were put.

Ground 2: The magistrate unfairly denied the defendant his rights to questioning witnesses

1. The appellant is pro se,…