Hodder v The State of Western Australia [No 2]
[2008] WASCA 246
•1 DECEMBER 2008
HODDER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 246 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:61/2008 | 21 NOVEMBER 2008 | |
| Coram: | WHEELER JA BUSS JA | 30/11/08 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES LESLIE HODDER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Community Protection (Offender Reporting) Act 2004(WA), s 63(1) Criminal Appeals Act 2004 (WA), s 9(2), s 16(2)(a) Criminal Code (WA), s 146, s 172(2) |
Case References: | Hodder v Hywell [2008] WASC 61 Hodder v The State of Western Australia [2008] WASCA 146 Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HODDER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 246 CORAM : WHEELER JA
- BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER JA
Citation : HODDER -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 146
File No : CACR 61 of 2008
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Community Protection (Offender Reporting) Act 2004(WA), s 63(1)
Criminal Appeals Act 2004 (WA), s 9(2), s 16(2)(a)
Criminal Code (WA), s 146, s 172(2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr R G Wilson
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hodder v Hywell [2008] WASC 61
Hodder v The State of Western Australia [2008] WASCA 146
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 WHEELER JA: This is an application for review of a decision of Miller JA, sitting as a single judge in the Court of Appeal. The appellant was convicted by Magistrate Edwards in respect of a number of charges. Those convictions were recorded on 28 December 2007 and the appellant was fined the sum of $3,000. The appellant sought leave to appeal against convictions and sentence. McKechnie J granted leave to appeal against sentence on 28 May 2008. McKechnie J refused the appellant leave to appeal against convictions (see Hodder v Hywell [2008] WASC 61 at [13]). The appellant appealed the decision of McKechnie J on five grounds. Miller JA found there was no reasonable prospect of success of any of the grounds of appeal (see Hodder v The State of Western Australia [2008] WASCA 146 at [65]) and dismissed the appeal against the decision of McKechnie J. This application seeks a review of the decision of Miller JA.
Background
2 On 16 June 2005, the appellant was convicted of indecent dealing with a child under 13 years of age and was ultimately sentenced to 12 months' imprisonment (following an appeal: Hodder v The State of Western Australia [2005] WASCA 257). As a result, the appellant became a reportable offender, and became subject to the reporting provisions under the Community Protection (Offender Reporting) Act 2004 (WA) (the Act) (s 6, s 9, s 10 and sch 1). The relevant provisions of the Act commenced operation on 1 February 2005.
3 It was alleged that the appellant failed to report in accordance with s 63(1) of the Act and, on 28 December 2007, he was convicted in the Magistrates Court of four offences of failing to report. He was also convicted by the magistrate of one offence of obstructing a police officer under s 172(2) of the Criminal Code and one offence of escaping lawful custody under s 146 of the Code. He was fined $3,000.
Appeals
4 The appellant sought leave to appeal against his convictions on four grounds. The application was heard by McKechnie J, who noted the grounds were as follows:
1. Ground 1: The magistrate failed to exclude evidence obtained involuntarily.
2. Ground 2: The magistrate unfairly denied the defendant his rights to questioning witnesses.
(Page 4)
- 3. Ground 3: The magistrate did not allow enough time for closing submissions.
4. Ground 4: The main witness to three of the charges did not give evidence.
5 McKechnie J refused leave on each of these grounds. His Honour's reasons concluded that on the four grounds of appeal there were no reasonable prospects of success: Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
6 In appealing the decision of McKechnie J, the appellant, who has at all times been self-represented, filed a brief outline of submissions and relied on the following grounds of appeal:
1. Magistrate Edwards refused defendent [sic] James Leslie Hodder and [sic] adjournment when witness Lisa White was unavailable to give evidence at trial date.
2. The Magistrate failed to exclude evidence obtained unlawfully and without consent of police video interview of defendent [sic].
3. Defendent [sic] refused legal rights to question police in regards Child Protection Act.
4. Police evidence was unsafe and unsatisfactory and the Magistrate arrived at a decision without proper evidence to support it. The evidence was unfounded hearsay and unsupported by the facts.
5. When sentenced in 2005 no court order to report to police when released from prison.
7 Miller JA held that the appellant's grounds of appeal were defective in that they failed to challenge any aspect of the reasons of McKechnie J for refusing leave to appeal. However, his Honour also dealt with the grounds of appeal which were advanced before him. Those are the grounds upon which the appellant relied before him and, also, before us. I set out below each of the grounds, with a brief summary of Miller JA's reasons, and, where necessary, refer to submissions made to us.
Ground 1:
8 Miller JA said that Lisa White's letter dated 13 September 2007, addressed to the registrar at the Midland Court was tendered in evidence, and it did not appear that the appellant required her attendance [25]. Before us, the appellant complained that the letter should not have been admitted as evidence. However, the trial transcript shows that the letter
(Page 5)
- was tendered by the appellant (ts 45), with the consent of the prosecution. The appellant did not indicate to us what relevant evidence Ms White could have given, in addition to the content of the letter. It appears he wished to ask her opinion on questions of law, which ties in with ground 3.
Ground 2:
9 Miller JA agreed with McKechnie J's analysis that, because the video record of interview on 5 July 2006 (being the only video record of interview said not to have been voluntary) was used only as evidence of what was said to the appellant, there was no substance in the objection made to it [40].
Ground 3:
10 Miller JA held that it was not open to the appellant to ask witnesses for their interpretation of provisions of the legislation [43]. Before us, the appellant complained that he was being required to comply with legislation which was not clear. However, it appears that a large part of the appellant's difficulty in understanding the Act is that he disagrees with it, rather than that he does not understand it.
Ground 4:
11 Ground 4 was not a ground of appeal which was argued before McKechnie J. However, Miller JA found that on each of the charges there was ample evidence before the magistrate to enable her to be satisfied that the offence charged was proven beyond reasonable doubt [62].
12 The appellant raised three issues under this heading, in his oral submissions to us. His main submission in relation to the charges of failure to report, was that there were no witnesses who had given evidence that he had failed to appear as and when directed. There is, in the Act, however, provision for a certificate which is evidence and, in the absence of evidence to the contrary, is proof of the matters specified therein (s 113). The learned magistrate, correctly, accepted such certificates as evidence in relation to each of the failure to report charges (reasons [60], [68], [73], [81]).
13 In relation to one of the failure to report charges, the appellant also considered that the prosecution should have called a witness called "Antonio", whom he wanted to question. However, as her Honour explained at trial, she could not dictate to the prosecution how it should prove its case. In any event, it appears that the appellant wanted to
(Page 6)
- question him in order to establish a foundation for a "reasonable excuse" (s 63) for non-reporting on one occasion, the excuse being that he was told by a receptionist that Antonio, to whom he was to report, was on leave. The magistrate granted an adjournment so that the receptionist could be fetched from the nearby police station, and she gave evidence (ts 48 - 55). It was her evidence, not Antonio's, which was relevant to the appellant's belief and, hence, to any possible reasonable excuse.
14 In relation to the charge of obstruction, the appellant simply asserted that on all of the evidence, he should have been acquitted. The learned magistrate summarised the relevant evidence (including security video footage of the incident) and her conclusions of law and fact, in careful reasons, at [5] - [27] of her decision. No error has been demonstrated.
Ground 5
15 His Honour said this ground made no sense, and that there were no submissions in support of it, and struck it out. In connection with this ground, I note that the learned magistrate found the appellant to be a reportable offender, for reasons set out at [47] - [50] of her reasons, and made findings, in relation to the notices to report issued to the appellant, at [51] - [58], [61], [69], [71], [74], [77] and [83]. No court order was required to make the appellant a reportable offender: see [2] above.
16 In my view, no error has been demonstrated in Miller JA's reasons, or conclusions. In particular, he did not make an error in refusing leave to appeal: see Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21].
17 I would dismiss the application for review.
18 BUSS JA: I agree with Wheeler JA.
6
3