Jamieson Andrew Santos v The State of Western Australia

[2013] HCASL 123

JAMIESON ANDREW SANTOS

v

THE STATE OF WESTERN AUSTRALIA

[2013] HCASL 123
P27/2013

1. On 9 December 2011, after a jury trial in the District Court of Western Australia, the applicant and his co-accused were found guilty of two counts of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 2 February 2012, the applicant was sentenced in the District Court (Stevenson DCJ) to 15 years imprisonment with a non-parole period of 13 years.

2. The applicant sought leave to appeal to the Court of Appeal of the Supreme Court of Western Australia against his conviction.  He relied on 19 grounds of appeal, including that the trial judge erred:  in failing to exclude certain evidence, in his directions to the jury on various issues, in ruling there was a joint criminal enterprise, and in refusing to order separate trials for the applicant and his co-accused.  The applicant also alleged that the prosecution failed to give full disclosure of relevant material, that the verdict should be set aside as unreasonable, that his counsel were inadequate, and that the trial judge was biased.  On 20 February 2013, the Court of Appeal (McLure P, Buss and Mazza JJA) unanimously refused the applicant leave to appeal on the basis that none of the proposed grounds of appeal had any reasonable prospect of succeeding.

3. The applicant seeks special leave to appeal from the judgment of the Court of Appeal. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

4. The proposed grounds of appeal are substantially identical to grounds raised before the Court of Appeal.  The applicant raises again the non-disclosure of prosecution evidence, and additionally complains that the Court of Appeal erred in dismissing the applicant's application for the assistance of a "McKenzie friend" in the appeal proceedings.

5. While the Court of Appeal found the prosecution's non-disclosure of material prior to 9 May 2011 concerning, it held that there was no evidentiary foundation for the applicant's claim that by the time of his trial in November 2011, police had not given full disclosure of all evidentiary material.  There is no reason to doubt the correctness of the Court of Appeal's decision on this ground.  There was no error in the exercise of the Court of Appeal's discretion with respect to the applicant's application for a McKenzie friend.  With regards to the remaining grounds of appeal that were agitated before the Court of Appeal, no question of principle is raised that would warrant the grant of special leave to appeal. 

6. The applicant requires an enlargement of time and has explained his relatively short delay in bringing his application.  An enlargement of time should be granted, but special leave to appeal should be refused.

7. The applicant has filed a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). He contends that s 109 of the Constitution is engaged because of alleged inconsistencies between the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth), which he appears to contend should have applied at his trial. By force of s 4(1), the Evidence Act 1995 (Cth) did not apply in the applicant's trial. No constitutional matter arises.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler