K v The Queen
[2007] WASCA 167
•10 AUGUST 2007
K -v- THE QUEEN [2007] WASCA 167
Pending Appeal
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 167 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:23/2007 | 27 JULY 2007 | |
| Coram: | WHEELER JA | 10/08/07 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | K THE QUEEN |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | K v The Queen [2007] WASC 31 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : K -v- THE QUEEN [2007] WASCA 167 CORAM : WHEELER JA HEARD : 27 JULY 2007 DELIVERED : 10 AUGUST 2007 FILE NO/S : CACR 23 of 2007 BETWEEN : K
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : K -v- THE QUEEN [2007] WASC 31
File No : SJA 1092 of 2006
Catchwords:
Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
K v The Queen [2007] WASC 31
(Page 3)
1 WHEELER JA: In 1989, the appellant pleaded guilty to various charges in the Court of Petty Sessions in Perth. Convictions were recorded against him and he was subsequently sentenced. On 12 September 2006, the appellant filed an appeal notice together with a request for an extension of time within which to appeal. The application was dismissed by Hasluck J on 13 February 2007 (K v The Queen [2007] WASC 31). On 23 February 2007, an application for leave to appeal against Hasluck J's decision was lodged. There is an order prohibiting the report of any details which might identify the children involved in the proceedings.
The application before Hasluck J
2 On 3 August 1989, the appellant was sentenced in relation to 20 counts of indecently dealing with a child under the age of 14 and 7 counts of procuring a child to indecently deal. Hasluck J proceeded on the basis that the appeal was intended to relate to all of the convictions covered by the effective aggregate term of 4 years and 6 months' imprisonment (at [12]). However, the affidavit filed in support of the SJA application states that "my only charge was which [sic] relevant to this appeal is procuring" (at par 12).
3 There were five grounds of appeal before his Honour. The grounds are difficult to comprehend. The first appears to suggest that certain information was not made available to the trial Magistrate. The second alleges that the Magistrate "expressed ignorance" regarding a certain exhibit at trial. The third ground relates to the structure of the sentence. The fourth ground alleges that the Magistrate was "affected" by the media. The final ground complains that a psychological report was not placed before the court. On the Appeal Notice, the word "Cont:" appears at the end of the fifth ground which might suggest that the appellant sought to rely on additional grounds. However, I have been unable to locate any additional grounds.
4 The original appeal notice was accompanied by a lengthy affidavit. In the affidavit, the appellant suggests that he was not competently represented at trial (par 7) and that the trial Magistrate erred in "assuming" that there were multiple counts of procurement which I interpret to mean that the appellant sought to raise a totality argument (par 12). With regard to the lateness in lodging an appeal notice, the affidavit suggests that the appellant was denied access to transcripts and court files (par 10). That suggestion is supported, to an extent, by correspondence from lawyers engaged by the appellant in 1991 to appeal his sentence. That application would have been, even at that stage, grossly out of time, which may
(Page 4)
- explain the difficulty in locating material. There is, however, no explanation for the failure to pursue that appeal, at a time when the memories of the participants might have been fresh, and some reconstruction might have been possible.
Decision of Hasluck J
5 After independently searching the court records, Hasluck J learned that the appellant had sought leave to appeal the convictions in 1993 (at [34]). That application concerned most, if not all, the convictions the subject of the application before Hasluck J (at [35]). During the course of that application, he had also complained about the way in which he was initially represented. He acknowledged that he had instructed his lawyer to enter a plea of guilty, but submitted that the plea in mitigation was not competently handled.
6 The 1993 application for leave to appeal was refused. Hasluck J therefore held that "[t]here is an issue estoppel which stands in the way of leave being granted" (at [38]) and commented that "the [appellant's] lack of candour about the 1993 proceedings … weighs heavily against him" (at [65]).
7 His Honour also concluded that the matters referred to in the affidavit do not amount to exceptional circumstances justifying an extension of time (at [66]) and noted that the appellant's motivation in bringing a new application for leave appeared to be the fact that he has been approached by the Department of Justice to repay an amount of money that had been awarded to one of the complainants pursuant to the Criminal Injuries Compensation Act 1985 (WA) (at [41]).
The Current application
8 There are nine proposed grounds of appeal in the current application. Again, many are difficult to understand, but the basic issues appear to be as follows:
• if trial transcripts were available, they would show that the appellant was not prepared to enter guilty pleas in relation to the charges;
• that a psychological assessment supportive of the appellant was not placed before the Magistrate but ought to have been;
• that he was pressured to plead guilty as a result of "an underhand arrangement" between police and his trial counsel;
(Page 5)
- • that certain statements and exhibits have "disappeared to cover-up the truth"; and
• that the multiple counts of procurement should have been treated as a single count.
9 None of these matters casts any doubt upon the correctness of the decision of Hasluck J. It is clear that the appellant was convicted upon the basis of a plea of guilty which was entered on his instructions, in circumstances where he was legally represented. He has already once been refused leave to appeal, by Wallwork J. There is no evidence before me, and there was none before Hasluck J, which would suggest that the appellant has a good defence, on the merits, to any of the charges against him. He asserts that, as to at least some of the charges, he was engaged in an innocent exercise in sex education. There is no material to support that claim. In various documents, he asserts a conspiracy against him, but there is no evidence showing any ground for that belief. Finally, he is grossly out of time within which to appeal, his delay is largely unexplained, and the delay is such that it is difficult to see how any of the claims he makes could ever be tested.
Conclusion
10 I would not grant leave in relation to any of the grounds, and would dismiss the appeal.