Horsman v McAdam

[2019] WASC 288

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   HORSMAN -v- MCADAM [2019] WASC 288

CORAM:   QUINLAN CJ

HEARD:   2 AUGUST 2019

DELIVERED          :   2 AUGUST 2019

PUBLISHED           :   13 AUGUST 2019

FILE NO/S:   SJA 1042 of 2019

BETWEEN:   AARON JOHN HORSMAN

Appellant

AND

FRANK RICHARD MCADAM

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE G A BENN

File Number             :   GN 4243 of 2018

Catchwords:

Criminal law - Single judge appeal - Appeal against a decision of the Magistrates Court - Competency of appeal - Definition of 'decision' - 'Dismissal of application to dismiss charge'

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr B Murray

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

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

Dean v Legal Practice Board [2013] WASC 155

Sprylan v Wyborn [2019] WASC 227

Yates v Wilson (1989) 168 CLR 338

QUINLAN CJ:

(This judgment was delivered extemporaneously on Friday 2 August 2019 and has been edited from the transcript.)

1. Aaron John Horsman has lodged an appeal notice seeking leave to appeal a decision of a magistrate.  There is a preliminary issue as to whether the appeal is competent.  The matter was listed before me today to address that issue. 

2. I will identify the background briefly as follows.

Background

1. Mr Horsman is currently awaiting trial in the Magistrates Court, in Geraldton, in relation to a prosecution alleging that on 25 September 2018, he obstructed a public officer in the performance of the officer's functions.  The prosecution has been allocated charge number GN 4243 of 2018. 

2. Mr Horsman seeks to challenge the validity of the prosecution notice in GN 4243 of 2018 on the basis that it is 'unlawful'.  The basis for that challenge would appear to be that Mr Horsman does not accept that the prosecution notice was properly signed in accordance with the Criminal Procedure Act 2004 (WA) by the person issuing the prosecution notice (the respondent to this application).

3. Mr Horsman raised that issue before Magistrate Benn in the Magistrates Court on 21 February 2019 and sought to have the court dismiss the matter on 'procedural unlawfulness'.[1] 

   [1] Ts 2 (21 February 2019).

4. Magistrate Benn refused the application, saying:[2]

   The charge has been properly laid.  Whether or not it can be proved, of course, is another question entirely, and that’s the purpose of the trial, and I’m now going to set a trial date.

   [2] Ts 3 (21 February 2019).

5. There followed an exchange between the learned Magistrate and Mr Horsman in relation to differences between the signed copy of the prosecution notice and the unsigned copies of the notice generated by the court's electronic document system.  A number of issues in relation to the operation of the electronic document system were recently addressed by Jenkins J in Sprylan v Wyborn.[3]  As set out below, it is not necessary, for the purposes of dealing with the competence of this appeal, for me to address the issues that Mr Horsman seeks to raise.

   [3] Sprylan v Wyborn [2019] WASC 227 [217] - [267] (Jenkins J).

6. Magistrate Benn adjourned the prosecution to 12 June 2019 for trial.  The matter was called on for trial on that date, but did not proceed in light of the fact that Mr Horsman had brought an appeal to this Court. 

7. The trial was, therefore, adjourned to 1 October 2019 with a callover on 8 August 2019. 

Disposition

1. In the circumstances, I am satisfied that the appeal brought by Mr Horsman is incompetent, that leave must be refused and the appeal dismissed.

2. The decision referred to in the appeal notice is a 'dismissal of application to dismiss charge' and the proposed grounds refer to the issues raised by Mr Horsman before Magistrate Benn. 

3. The learned Magistrate's dismissal of Mr Horsman's application to dismiss the charge was not a decision within the meaning of s 6 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). 

4. The position in this case is the same as that dealt with by Hall J in Dean v Legal Practice Board.[4]  I can do no better than repeat what his Honour said on that occasion:[5]

   The right to appeal to this court from a decision of a magistrate arises from s 7 of the Criminal Appeals Act 2004 (WA) (CAA). Appeals are entirely creatures of statute, and the rights of appeal must be determined by the words of the CAA: See Davern v Messel [1984] HCA 34; (1984)155 CLR 21 and Mansell v Mignacca-Randazzo [2013] WASC 16 [32].

   Section 7 of the CAA provides that 'a person who is aggrieved by a decision of a magistrate may appeal to the Supreme Court'. The word 'decision' as used in s 7 is defined in s 6 of the CAA. The types of decisions referred to include a permanent stay, a conviction or an acquittal. They are decisions with a final character. There is very good reason for this. It prevents the disruption of criminal proceedings by appeals of rulings and interlocutory decisions. That is not to say such rulings can never be raised in an appeal; they can, but only in the context of an appeal from a final decision.

   In this case, there has been no final decision. The decision appealed does not fall within any of the limbs of the definition of 'decision' in s 6. In these circumstances, the appeal is incompetent and must be dismissed.

   [4] Dean v Legal Practice Board [2013] WASC 155 (Hall J).

   [5] Dean v Legal Practice Board [2013] WASC 155 [18] - [20] (Hall J).

5. The same conclusion must follow in the present case. 

6. Section 6 of the Criminal Appeals Act provides for the definition of decision, 'unless the contrary intention appears'.  In his submissions before me, Mr Horsman maintained there was a 'contrary intention'.

7. No such contrary intention, in my view, is manifest by the provisions of the Criminal Appeals Act generally.  Indeed, the provisions of the Criminal Appeals Act as a whole reflect the long-standing recognition of the undesirability of fragmenting the criminal process.  The undesirability of that occurring is so clear that it requires no elaboration by me.[6] 

   [6] Yates v Wilson (1989) 168 CLR 338, 399 (Mason CJ, Toohey & Gaudron JJ).

8. For these reasons, leave must be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

BC
Principal Associate to the Honourable Chief Justice Quinlan

13 AUGUST 2019