Ibrahim v Herring [No 4]

[2012] WASCA 56

IBRAHIM -v- HERRING [No 4] [2012] WASCA 56

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 56
Court:	THE COURT OF APPEAL (WA)	Published:	13/03/2012
Case No:	CACR:133/2010	Heard:	13 DECEMBER 2011
Coram:	McLURE P BUSS JA	Delivered:	13/12/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for stay refused
Category:	B
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Parties:	MOHAMED TAREK IBRAHIM RAL HERRING
Catchwords:	Appeal Application for leave to appeal Application for stay of delivery of judgment on the application for leave Stay refused Turns on own facts
Legislation:	Nil
Case References:	Ibrahim v Herring [2011] WASCA 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- HERRING [No 4] [2012] WASCA 56 CORAM : McLURE P

BUSS JA

HEARD : 13 DECEMBER 2011 DELIVERED : 13 DECEMBER 2011 PUBLISHED : 13 MARCH 2012 FILE NO/S : CACR 133 of 2010 BETWEEN : MOHAMED TAREK IBRAHIM

Appellant

AND

RAL HERRING
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : HALL J

Citation : IBRAHIM -v- HERRING [2010] WASC 190

File No : SJA 1091 of 2009

Catchwords:

Appeal - Application for leave to appeal - Application for stay of delivery of judgment on the application for leave - Stay refused - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application for stay refused

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr N T L John

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

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

Ibrahim v Herring [2011] WASCA 266


(Page 3)

1 JUDGMENT OF THE COURT: On 13 December 2011, the reasons for decision of this court (McLure P, Buss JA and Mazza J) in Ibrahim v Herring [2011] WASCA 266 were delivered.

2 The reasons in Ibrahim [2011] WASCA 266 concerned an application for leave to appeal from Hall J's refusal of leave to appeal against the appellant's conviction in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA).

3 This court decided that leave to appeal on all grounds relied on by the appellant should be refused. As a result, the appeal was dismissed.

The appellant's application for a stay

4 On 9 December 2011, the appellant filed an application in the appeal for, in essence, a stay of delivery of judgment in relation to his application for leave to appeal. The application for a stay was supported by the appellant's affidavit sworn 9 December 2011.

5 The ground for the stay, as expressed in the sole paragraph of the appellant's affidavit, was as follows:

On the 20/9/2011 I appeared before Mazz J [sic] with an application in an appeal. He addressed one point only and he failed to address the other points in the application. These points needed to be addressed.

The orders made on 13 December 2011

6 On 13 December 2011, when the reasons for decision were delivered, orders were made, relevantly, as follows:

1. Appellant's application for stay of delivery of judgment refused, with reasons to be published.

2. Leave to appeal refused.

3. Appeal dismissed.

Our reasons for refusing the application for a stay

7 Our reasons for refusing the application for a stay are these.

8 The appellant's application for leave to appeal was heard on 20 September 2011 by McLure P, Buss JA and Mazza J.

9 Earlier on 20 September 2011, before the substantive hearing of the application for leave to appeal, Mazza J heard an application in the

(Page 4)

appeal, filed by the appellant on 13 September 2011, for orders, as follows:

1. Mazz J [sic] to disqualify himself from the proceedings.

2. The court orders police investigation of a corruption in the Supreme Court judicial [sic].

3. The respondent [sic] submission to be dismissed.

4. An interstate judge to be appointed.

5. The hearing to be adjourned until an Interstate Judge is appointed.

10 The hearing before Mazza J, sitting alone, on 20 September 2011 was confined to that part of the appellant's application filed on 13 September 2011 which sought an order that Mazza J disqualify himself. After hearing the application on that matter, Mazza J refused to disqualify himself. His Honour indicated that he would publish reasons for his decision later.

11 The substantive hearing of the application for leave to appeal then proceeded before McLure P, Buss JA and Mazza J.

12 In our opinion, the fact that the other matters raised in the appellant's application filed on 13 September 2011 had not been heard or resolved did not justify granting a stay of delivery of judgment in relation to his application for leave to appeal.

13 First, none of the orders sought in respect of the outstanding matters (namely, orders 2, 3, 4 and 5: see [9] above) appears to have a reasonable prospect of success.

14 Secondly, the appellant did not apply at the substantive hearing of the application for leave to appeal, before McLure P, Buss JA and Mazza J on 20 September 2011, for the hearing to be adjourned until the outstanding matters had been resolved. Relevantly, his complaint at the substantive hearing was that the application for leave should be heard by a single judge of appeal and not by a bench of three judges (20/09/11: ts 20 - 23).