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, and it is clear that he has strong views about the prosecution and the way it was mounted.  However, many questions concerned what should have been really legal submissions as to the interpretation of the Community Protection (Offender Reporting) Act.

2. I have read the transcript.  It does not appear to me that when the appellant was asking questions of fact that he was interrupted to an adverse degree.  When he was asking what are essentially questions as to the opinion of certain witnesses as to the law, then the magistrate intervened and ultimately did not permit that line of question.

Ground 3: The magistrate did not allow enough time for closing submissions

1. The submissions by the appellant, it must be said, were somewhat diffuse and, in the end, I note that the magistrate put a time limit on the appellant for making his submissions.

2. It is within the power of a magistrate, or any judicial officer, to control the court so long as justice is done and a person is given a fair opportunity to be heard.

3. I have read the transcript and, in my opinion, the magistrate's decision to, as it were, truncate the appellant's submissions did not lead to a miscarriage of justice and cannot fairly be said to have done so.  Importantly, I consider the appellant, in the course of the submissions, had been able to put the points that he wished to make to the magistrate.  That is somewhat reflected in her reasons for decision.

Ground 4: The main witness to three of the charges did not give evidence

1. The Community Protection (Offender Reporting) Act, s 113, provides for a certificate to be provided indicating that during any particular period a specified person failing to notify information as required by the Act is evidence and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

2. Such a certificate was tendered.  The magistrate dealt with that evidence and does not appear to have been in error.

Conclusion on grounds of conviction

1. In respect of the grounds of appeal against conviction, I am not persuaded that any of the grounds, either taken together or singly, have any reasonable prospect of succeeding and I refuse leave to appeal in respect of conviction.

Sentence

1. The appellant also appeals in respect of sentence and says that the ground is 'the magistrate in sentencing did not allow for time in custody'.  He was fined a global sum of $3,000.  He tells me today he spent 19 days in custody on one of the reporting offences and that was not taken into account.

2. I do not have transcript of the sentencing on 28 December 2007, so I am unable to form any view as to whether that ground has prospects of success or not.

3. I will adjourn this application for 28 days in order that the appellant may obtain and provide sentencing transcript for 28 December 2007.