K v The Queen
[2007] WASC 31
•13 FEBRUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: K -v- THE QUEEN [2007] WASC 31
CORAM: HASLUCK J
HEARD: 1 & 13 FEBRUARY 2007
DELIVERED : 13 FEBRUARY 2007
FILE NO/S: SJA 1092 of 2006
BETWEEN: K
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram :MS D D BENNETT-BORLASE SM
File No :PE 41420 of 1989, PE 41421 of 1989
Jurisdiction : COURT OF PETTY SESSIONS
Coram :MR P THOBAVEN SM
File No :PE 54136 of 1989, PE 54137 of 1989, PE 54138 of 1989, PE 54139 of 1989, PE 54140 of 1989, PE 54141 of 1989, PE 54142 of 1989, PE 54143 of 1989, PE 54144 of 1989, PE 54145 of 1989, PE 54146 of 1989, PE 54147 of 1989, PE 54148 of 1989, PE 54149 of 1989, PE 54150 of 1989, PE 54151 of 1989, PE 54152 of 1989, PE 54153 of 1989, PE 54154 of 1989, PE 54155 of 1989, PE 54156 of 1989, PE 54157 of 1989, PE 54158 of 1989, PE 54159 of 1989, PE 54160 of 1989, PE 54161 of 1989, PE 54162 of 1989, PE 54163 of 1989, PE 54164 of 1989
Catchwords:
Criminal law - Appeal - Indecent dealing with other charges - Convictions 17 years ago - Applications for extension of time and leave to appeal refused - Turns on own facts
Legislation:
Criminal Code (WA), s 183
Justices Act 1902 (WA), s 187, s 206C
Criminal Appeals Act 2004 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 65A r 2(b)
Result:
Application for extension of time dismissed
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr A A Liveris
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Atholwood v The Queen (2000) 110 A Crim R 417
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Di Camillo v Wilcox [1964] WAR 44
Dinsdale v The Queen (2000) 175 ALR 315
Ejueyitsi v Maloney [2006] WASC 146
Ejueyitsi v Maloney [2007] WASCA 3
Evans v Pelka [2005] WASC 240
Gallo v Dawson (1990) 93 ALR 479
Garrett v Nicholson (1999) 21 WAR 226
Lancaster v The Queen [1989] WAR 83
Lowndes v The Queen (1999) 195 CLR 665
R v Kaddour (2005) 156 A Crim R 11
Samuels v The State of Western Australia [2005] WASCA 193
HASLUCK J:
Introduction
The applicant, K, seeks leave to appeal against certain convictions recorded against him on 3 August 1989 in response to his plea of guilty to various charges in the Court of Petty Sessions at Perth. He also applies for an extension of time in respect of the proposed appeal.
The application for an extension of time and for leave to appeal is opposed by the respondent who is represented by counsel instructed by the State of Western Australia. The matter came before me initially on 1 February 2007 on which occasion the applicant was unrepresented and the respondent was represented by counsel. The part‑heard matter was then adjourned to a further hearing on 13 February 2007 to the intent that the applicant would be allowed an opportunity to study the respondent's submissions and locate some additional materials bearing upon his application, including, if possible, any transcript or notes of what occurred at the Court of Petty Sessions in 1989.
Preliminary observations
The materials before me are scant and lacking in coherence but I must do my best to try and reconstruct the history of the matter.
It seems that on 10 November 2006 an order was made by Blaxell J for the application for an extension of time for leave to appeal and the appeal to be heard together. Directions were given for the primary court to give the Supreme Court any surviving records of the proceedings on charges PE 54136 ‑ 54164/89 and PE 41420 ‑ 41421/89.
Certain court records in question have now been received and were before me at the initial hearing on 1 February 2007. However, the records consist only of charge sheets with handwritten annotations in the usual form describing the outcome. I will call these the "subject court records". There is no transcript or notes reflecting what took place at the crucial hearing on 3 August 1989.
I am obliged to say at the outset, bearing in mind that the initial hearing before a Magistrate or Magistrates took place over 17 years ago, that it has proved difficult to reconstruct what occurred in the primary court. I have to say also that as the convictions arose out of events concerning certain children named in the subject charges I made a suppression order at the hearing, which continues to apply. Any facts or matters or particulars which are likely to identify the children in question, or which may have the effect of identifying them, are not to be reported.
Background
The applications before me were initiated by an appeal notice dated 12 September 2006 filed and served pursuant to provisions of the Criminal Appeals Act 2004 (WA). I will look at the proposed grounds of appeal in due course. However, for the time being, it is sufficient to note that the appeal notice describes the conviction appealed against as "procuring to indecently deal" and speaks of the sentence imposed as being "Four and a half years no parole".
It is apparent from the appeal notice that the applicant seeks leave to appeal against a conviction, or various convictions, and against the aggregate sentence imposed. The applicant is conscious that an extension of time is needed. The appeal notice says that the applicant is not legally represented and that was the position at the hearing before me. It is not entirely clear from the notice what convictions are being appealed against.
Summary of charges and convictions
Because the appeal notice is not entirely clear, it will be useful, for the sake of completeness, to summarise the position reflected in the subject court records.
On 3 August 1989 the applicant appeared in the Perth Children's Court and was sentenced in relation to 20 counts of indecently dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code (PE 54137‑8/89, PE 54140‑44/89, PE 54146‑49/89, PE 54151/89, PE 54153‑55/89, PE 54157‑8/89, PE 54161/89 and PE 54163‑4/89) and 7 counts of procuring a child to indecently deal (PE 54136/89, PE 54139/89, PE 54145/89, PE 54150/89, PE 54152/89, PE 54156/89 and PE 54162/89).
In relation to the first group of offences he was sentenced to 18 months' imprisonment for PE 54161/89 and 54141/89, cumulative upon each other and the term for PE 54136/89 (mentioned below). The applicant was sentenced to 3 months' imprisonment for the remaining 18 counts in that group, to be served concurrently. The second group of offences were punished by 18 months' imprisonment for charge PE 54136/89. The remainder of the charges in that group were punished by terms of imprisonment for 3 months, to be served concurrently. The applicant was not made eligible for parole.
It follows from the above that the applicant was sentenced to an effective aggregate term of 4 years 6 months without parole, being the sentence mentioned in his appeal notice. Thus, it might reasonably be assumed that his appeal is intended to relate to all the convictions covered by that term, being the convictions just mentioned. I will proceed accordingly.
The applicant was also sentenced for other matters on 3 August 1989 that arguably form part of this appeal. It is noted that those matters (41420‑41421/89) were disposed of by way of fines in one instance and a wholly concurrent term of imprisonment on another. No evidence was offered to a further two charges and they were dismissed.
The applicant's affidavit
The applicant's affidavit sworn 11 September 2006 suggests that he wishes to challenge all of the convictions underlying his aggregate term of imprisonment; that is, he wishes to challenge the various sentences imposed which amounted to an effective aggregate term of 4 years 6 months without eligibility for parole, being the period mentioned in the appeal notice.
I understand from the affidavit that the applicant served the term of imprisonment in question and was then discharged. However, in essence, he wishes to correct what he perceives to be an injustice referable to the charges brought against him.
The materials before me did not include any transcript or other record of what took place at the hearing in the lower court or the reasons for decision underlying the sentences imposed. I understand that it has not proved possible to place materials of this kind before the Court and there is no real likelihood that such materials can be obtained. In dealing with the matters before me, including the applicant's explanation for his delay in seeking leave to appeal, I am obliged to draw principally upon the applicant's supporting affidavit and certain related documents handed to the Court and upon what I was told at the hearing. There were many inconsistencies in these sources of information and most of what I was told came from the applicant himself, with his account of the relevant events being presented in a fragmentary and rather disjointed manner. It follows that the narrative has to be approached with considerable caution. Nonetheless, I have adopted the pragmatic approach that it is necessary to have some form of narrative before me in order to review the matters in issue.
It seems that as at 1989 the applicant lived in Perth with his wife and 10‑year‑old son. His wife was from the Philippines originally and his wife's sister was living in that country. The applicant travelled to the Philippines alone. He returned via Singapore, bring with him his niece and nephew, who were about the same age as his son, because they had been promised a holiday in Australia.
The applicant said at par 3 of his affidavit that in early April 1989 when he arrived back from overseas at Perth Airport he was accosted by customs officials. His baggage was searched, and he was challenged about the validity of certain documents. It was later alleged that he was involved in an indecent assault upon one of the children at the customs checkout.
According to the applicant, those events led to the police obtaining a search warrant which was executed at his home in Perth about two days later. This in turn led to the police taking possession of certain family photo albums and other items including video tapes. The indications are from the limited information available to me that at least one video tape portrayed two young children together, having been filmed at premises other than the applicant's home at a time prior to his trip to the Philippines. This tape was allegedly used by the prosecution to underpin a number of the charges brought against the applicant eventually.
The applicant maintains that much of what was found and later used by the police served educational or innocent purposes. He contends that he was not involved in any criminal conduct and was ultimately prejudiced by the media attention given to his case. He says also that the video was presumed to show the subject children together on separate occasions when in fact it portrayed one occasion only.
As I have indicated, it appears from the subject court records that various charges were brought against the applicant. Such charges included the possession on 18 April 1989 at Armadale of three child abuse video tapes contrary to s 37(1)(b)(i) of the Video Tapes Classification and Control Act (41420); on or about 1 October 1988 procuring one X, a child under the age of 14 years, to unlawfully and indecently dealing with a girl A contrary to s 183 of the Criminal Code (54136/89); between 24 December 1987 and 24 December 1988 at Armadale unlawfully and indecently dealing with a girl A, a child under the age of 14 years contrary to s 183 of the Criminal Code (54141/89); between 12 December 1987 and 12 December 1988 at Armadale indecently dealing with a girl A, a child under the age of 14 years contrary to s 183 of the Criminal Code (54161/89).
There were also various other charges brought pursuant to s 183 of the Criminal Code concerning the girl A and charges under the same statutory provisions concerning the boy B and the boy C.
The proceedings
It appears from the subject court records that in the period 2 May to 3 August 1989 the applicant came before a special Magistrate in the Children's Court on various occasions and was allowed bail. I understand from the applicant's affidavit and related documents that he engaged the senior partner of a family law firm to represent him at the hearing of the charges. However, the lawyer in question unfortunately died on the eve of the hearing with the result that the applicant, on his account, was represented at short notice by another partner in the firm.
The applicant's contention is that he was persuaded to plead guilty to the various charges as a consequence of what was put to him by his legal representative and in the belief that the Court would take a sympathetic view of his position when the background to the charges was fully explained. It does appear from the subject Court records that in respect of each of the subject charges a plea of guilty was entered. It does not appear to be disputed that the applicant was represented by his lawyer at the hearing. The applicant seems to accept that he instructed his lawyer to enter pleas of guilty (and did not protest when the pleas were entered) although he now criticises his lawyer's judgment and handling of the matter. It appears from the applicant's supporting affidavit that he complains of his lawyer's submission to the Magistrate that the applicant was a sick man who was in need of help.
I note in passing that there appears to be little doubt that the applicant did instruct his lawyer to enter pleas of guilty, for the applicant, at the hearing before me said that one of the factors underlying his guilty plea was his wish to ensure that the media attention focused on his case did not lead to identification of one of the children mentioned in the complaints.
I pause here to observe that after a plea of guilty has been entered it does not follow that the Magistrate must inquire into the facts and form his own opinion thereon as if the plea had been one of not guilty. The plea of guilty admits all the essential elements of the offence charged. An appellate court usually proceeds upon the basis that there is no error in a Magistrate acting on the guilty plea and convicting without further inquiry into the facts: Di Camillo v Wilcox [1964] WAR 44 at 46.
The convictions
As I have indicated, the subject court records indicate that for the most part convictions were recorded in respect of the subject charges mentioned earlier. A separate penalty was imposed in respect of each conviction. Sentences of 18 months cumulative were imposed in respect of charges 54136/89, 54141/89 and 54161/89, being the charges mentioned earlier concerning the girl A and the alleged contravention of s 183 of the Criminal Code. Lesser terms of imprisonment were imposed in respect of the other charges on the basis that such terms would be served concurrently with the effective aggregate term of 4 years 6 months resulting from what I will call the "three principal charges".
As I have indicated in earlier discussion, the reasons for decision of the sentencing Magistrate are not available. The entries on the Court records are in the usual cursory note form and do not cast light on the figures mentioned. However, the length of the effective aggregate term of imprisonment (without eligibility for parole) and of the lesser terms strongly suggests that the Magistrate took a serious view of the charges before him and characterised the conduct complained of as criminal conduct. In other words, as the Magistrate was entitled to do, he acted upon the basis that there had been an admission of guilt as to all the essential elements of the subject offences.
Subsequent events
The applicant commenced the service of his term of imprisonment. It seems that he was later able to engage another law firm to act on his behalf with a view to obtaining legal aid and mounting an appeal against his convictions and the sentences imposed. This is evidenced by a letter dated 24 January 1991 from the second law firm to the Court of Petty Sessions which reads in part as follows:
"We refer to previous correspondence in this matter. We confirm that we obtained a typed version of the Magistrate's notes in relation to Children's Court Charge Nos. 6253 to 6275 of 1989 dated 31st July, 1990. The matters were heard by His Worship Mr. Thobaven S.M. on 3rd August, 1989.
We are instructed that a number of video tapes were tendered by the Prosecution and viewed by the Magistrate prior to sentencing.
We now have instructions to appeal to the Supreme Court of Western Australia against the severity of [K's] sentence. In order to resolve a factual issue, we seek the permission of the Court to view the video tapes.
Please advise whether the video tapes are still in the possession of the Court, and if not, whether they have been returned to the W.A. Police. If so, please let us know how we may obtain those video tapes from the W.A. Police.
We would appreciate your urgent attention to this matter and thank you in anticipation of your assistance."
It seems that at about this time the second law firm corresponded with the Legal Aid Commission and prepared various documents in draft with a view to mounting an appeal. It is apparent from the documents put before me in that regard that the second law firm complained of difficulty in obtaining adequate records or notes of what occurred in the primary Court.
By letter dated 9 April 1991 to the Legal Aid Commission the second law firm said that their client was adamant that the videos supported his proposition that the three incidents that formed the subject of the charges against him occurred on the same day. Further, the client maintained that the offences that he pleaded guilty to would have been seen in a different light if the Court viewed a book called "Show Me", being a book used to instruct children. If the Court had perused the book and viewed it in conjunction with the videos it would have been seen that he was only following the instructions in the book and whatever the children did (upon his instructions) was because the applicant was only following the procedures in the book. It was therefore not obscene.
The draft order nisi to review the sentence imposed by the Children's Court sitting at Perth before Mr Thobaven SM on 3 August 1989 contained the following grounds:
"1.The Court viewed the charges against the Appellant as being in 3 separate batches. The Appellant states that the 3 incidents that formed such of the charges occurred on the same day and accordingly warrants a review of the sentence.
2.The Appellant states that the offences upon which he was sentenced would have been seen in a different light if the Court had taken the opportunity to view a book called 'Show Me' which is freely available throughout Australia. The Appellant says that he used this book to instruct the children and as a result of those instructions they led to the charges against him. The Appellant maintains that if the Court, prior to sentencing had perused the book and viewed it in conjunction with the videos that they could well have reached the conclusion that the Appellant was only following the instructions in the book and they would not have led to such a severe sentence against him.
3.The appellant also maintains that there was a psychological assessment available to the Court, but was not put before the Court and accordingly not considered by the Court at the time of sentencing and this again would have affected the length of his sentence.
4.The Appellant also refers herewith to his supporting Affidavit together with exhibits for consideration by the Court."
It is not entirely clear to me why the attempt to mount an appeal was not proceeded with at that stage, but it seems that this was possibly due to legal aid not being available. At the initial hearing before me on 1 February 2007, the applicant said also that he was gravely affected by what had occurred and he and his wife decided to take no further action. I understood from this that no further attempt was made to appeal the decision complained of prior to the present attempt by appeal notice dated 12 September 2006, although the applicant seems to have engaged in correspondence with various agencies and persons who were thought by him to have been a possible source of assistance.
It was then, after the adjournment of the initial hearing, that a search of the Court records revealed that the applicant had previously sought leave to appeal against the 1989 convictions giving rise to his prison sentence of 4 years 6 months via proceedings commenced fourteen years ago known as SJA 1040/93 and SJA 1041/93. I confess to having been unpleasantly surprised to learn of these proceedings, not as a consequence of anything put to me by the applicant at the initial hearing, but by a search of the Court records. I regard the conduct of the applicant in regard to this aspect of the matter as being less than forthright, and this bears upon his application for an extension of time.
The applicant's 1993 application for leave to appeal came before Wallwork J on 12 March 1993. The transcript shows that the material presented to his Honour was scant but it is clear that the application for leave concerned the applicant's prison sentence and at least his convictions in respect of charges numbered 54136 – 54158 and 54161 ‑ 54164/89; that is to say, most, if not all, the convictions the subject of his present application for leave.
During the course of the lengthy hearing the applicant complained about the conduct of his lawyer at the 1989 hearing in much the same way as he raised before me. However, when pressed, he acknowledged that he had instructed his lawyer to plead guilty to the charges. In essence, his complaint was that the lawyer had failed to make an effective plea in mitigation in that he had failed to refer to a certain book and other matters which may have made what the applicant was accused of seem educational and innocent.
At the end of the hearing, Wallwork J refused leave to appeal. His Honour made these observations (TS 27):
"[K], as far as I can understand it you have got two applications for leave to appeal against convictions which involve a whole series of unlawfully and indecently dealing with young children, of which you were ultimately sentenced in August 1989 to 18 months' imprisonment in the Court of Petty Session at Perth. Three lots of 18 months cumulative upon one another making a sentence of 4½ years. Now, at the same time you got 6 months which made it 5 years. However, that was later altered back, according to those papers you showed me, to make a total sentence of three lots of 18 months cumulative being 4½ years, which prison term I understand you have served.
You have come along here this morning on 12 March 1993 with two applications for leave to appeal and I understand that what you say is that you never should have been convicted and sentenced for these offences, because of some matter that happened at the airport, but fundamentally that you were wrongly pressured by your lawyer into pleading guilty to all these charges. Now, I am not satisfied at all that you were wrongly pressured … Now, I am not prepared to accept of what you have told me that there was anything wrong at all with what happened to you in that court. There is no evidence before me that anything went wrong."
I pause here to say that, in my view, this ruling represents the first and short answer to the present application for leave to appeal: the matter was decided by Wallwork J's ruling on 12 March 1993. There is an issue estoppel which stands in the way of leave being granted. The matter cannot be reopened. However, for the sake of completeness, and to avoid any suggestion that the 1993 appeals did not cover all the convictions or that all the issues have not been considered, I will proceed further.
Hence, it is against this background, that I come now to the question of what prompted the applicant to revive this painful episode in his past by instituting the application for leave appeal.
Further matters
Exhibited to the applicant's supporting affidavit is a letter dated 11 October 2002 from the Department of Justice which reads in part as follows:
"On 14 October 2002 the Chief Assessor of Criminal Injuries Compensation awarded a claimant $15,000.00 for injuries and losses sustained as a result of an incident for which you were convicted at Perth Children's Court on 3 August 1989 of inter alia procuring a child under 14 to indecently deal.
In accordance with section 38A of the Criminal Injuries Compensation Act 1985, the award paid to the claimant is now repayable by you to the State of Western Australia."
It seems that in recent times the applicant has been pressed for payment of the amount due and it was this that led to the present appeal being instituted. I am left with an impression from what was put to me at the initial hearing that but for this claim no attempt would have been made by the applicant to disturb the convictions.
Let me now turn to the grounds of appeal set out in the appeal notice before me dated 12 September 2006.
Grounds of appeal
The grounds of appeal read as follows:
"1.Necessary statements being withheld [sic] or was not available to the judge and he have to made assumptions as to a weigh of persecution.
2.Judge expressed ignorance over examinations of a book 'Show Me' that is not a porn material but a valuable educational reference source for young families [sic], unrestricted.
3.the alleged offence was [sic] occurred at a single visit occasion in our friend's place and not four different occasions and in our place as the judge was missinterpreted [sic] (hence the cumulative sentence) was being given X four times 18 months. Far excessive.
4.Judgement [sic] was also being affected by the unprecedented pressure of the media because the wrong informations [sic] gathered from police.
5.Psychological report was being prepared by order but judge not ask for it and my councyl [sic] was failed to insist it to put before the court. Cont:"
I note in passing that the subject court records do not substantiate or cast light upon these allegations and in the absence of transcript or notes it is difficult to ascertain as a matter of fact whether the position is as represented by the applicant. It is clear, however, that the case being put up by the applicant is essentially the same case that was examined by the second law firm in 1991 and later addressed by Wallwork J at the hearing in 1993.
As I have indicated, the recent applications for an extension and leave to appeal were listed for hearing before me initially on 1 February 2007. On that occasion the applicant spoke in support of his position at some length but the matter was then adjourned to allow him an opportunity to study the subject court records and to use his best endeavours to locate any transcript and/or notes concerning the hearings on 3 August 1989 and the psychological report mentioned in his grounds of appeal. The adjournment also afforded him time to study the respondent's submissions and, if possible, to ascertain the whereabouts of the contentious video. The hearing resumed on 13 February 2007.
At these hearings before me I endeavoured to define more exactly the nature of the issues before me. It follows from the narrative I have provided and the grounds of appeal that there was a general issue as to whether the applicant was bound by the pleas of guilty entered on his behalf. There were further issues concerning the regularity of the sentencing process and the appropriateness of the sentences imposed.
Let me now turn to certain statutory provisions and legal principles bearing upon the matters before me.
Legal principles re time and leave to appeal
Since 2 May 2005 applications for leave to appeal have had to be brought pursuant to the Criminal Appeals Act 2004 (WA) which replaced similar provisions in the Justices Act 1902 (WA).
By s 9 of the Criminal Appeals Act leave to appeal is required for each ground of appeal and is not to be granted unless the Court is satisfied that the ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia [2005] WASCA 193 it was said that leave to appeal must not be granted unless the ground has a real prospect of success, for the purpose of the provisions is to weed out unmeritorious appeals. By s 10 an appeal is to be commenced not later than 28 days after the date of the decision unless the Supreme Court orders otherwise.
This may be compared with the earlier provisions of the Justices Act that were in force in 1989 when the applicant was convicted. An appeal was made to the Supreme Court by leave. By s 187, a Judge was to grant leave to appeal unless the appeal was thought to be frivolous or vexatious or that the grounds did not disclose an arguable case. Order 65A rule 2(b) of the Rules of the Supreme Court 1971 (WA) required that an application for leave to appeal be filed and served within 21 days after the day of the relevant decision.
In Ejueyitsi v Maloney [2006] WASC 146 a full review of the law was undertaken as to whether an appeal against a decision made prior to the coming into effect of the Criminal Appeals Act should be governed by the provisions of that Act or by the Justices Act and related rules.
It was held that the provisions of the Criminal Appeals Act did not act retrospectively with the result that a contested decision made prior to 2 May 2005 is to be governed by the provisions of the Justices Act and related rules as the law in force when the right of appeal arose. This view was upheld on appeal by Wheeler J in Ejueyitsi v Maloney [2007] WASCA 3. I am conscious also that counsel for the respondent concedes that the matter must be dealt with pursuant to the law as it applied at the time the original appeal period expired.
Put shortly, O 65A r 2(b) applies. This means that the applicant was required to file and serve an application for leave within 21 days; that is, by 25 August 1989.
It follows that as the applicant filed an appeal notice on 12 September 2006 the application for leave to appeal is out of time by 17 years.
Section 206C of the Justices Act provided that the Court may extend the time allowed for doing any act. Thus, a question arises as to whether time should be extended.
In Gallo v Dawson (1990) 93 ALR 479 McHugh J observed that the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the Rules will work an injustice upon the applicant.
This means that it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties to the grant or refusal of the application for extension. It is always necessary to consider the prospects of the applicant succeeding in the appeal. There must be material upon which the Court can be satisfied that to refuse the application would constitute an injustice.
An extension of time will usually be granted only upon established facts which appear positively to justify the extension: Atholwood v The Queen (2000) 110 A Crim R 417 at 435. The onus upon an appellant for an extension of time will increase as time goes by: Evans v Pelka [2005] WASC 240 per McKechnie J at [11] – [13]. In Lancaster v The Queen [1989] WAR 83 Malcolm CJ said at 85 that it is well settled that where there has been lengthy delay, the Court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. In that case, where the application was 21 months out of time, the application for an extension was dismissed.
In R v Kaddour (2005) 156 A Crim R 11 it was said at [33] that considerations of justice were not confined to the situation of an appellant but must take into account also the interests of the community and of the administration of law generally. One factor relevant was whether the alleged error, if established, would mean that an appellant would be entitled to an acquittal as a right, or merely to a new trial. If the latter were the case, the question would arise whether such a new trial would be fair to both sides.
In Ejueyitsi's case (supra) considerations of that kind were held to justify the refusal of an extension because that was a case which depended heavily upon questions of credibility and upon the recollection of a number of witnesses about the precise timing of events which had occurred approximately 9 years prior to the application for leave to appeal. There was thought to be clear prejudice to the respondent from a passage of time in that case, even assuming that the principal witnesses could be located.
Legal principles re appeal against conviction and sentence
The question of whether the applicant's application for leave has an arguable case (having regard to the criteria to that effect in the Justices Act) requires that some consideration be given to additional provisions and principles.
An appeal court must generally decide the appeal on the evidence and material that were before the primary court. A Magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision: Garrett v Nicholson (1999) 21 WAR 226. However, the question on appeal will often be not whether the Court would have formed a different view, but whether the Magistrate's approach in view of the evidence was defensible: Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
It is a well established principle in appeals against sentence that it is not enough that an appeal court may have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting on a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. The reasons of an appellate court must clearly find and identify error: Dinsdale v The Queen (2000) 175 ALR 315 at 317; see also Lowndes v The Queen (1999) 195 CLR 665.
Conclusion
I must begin by noting that the applicant's supporting affidavit does not really serve to explain why there has been a lengthy delay in instituting an appeal, although it is apparent that he has initiated communications with many people and organisations in relation to the subject convictions. It is evident also from the subject records that many years ago the applicant received some legal advice in relation to a possible appeal but it seems that the matter was not pursued by his legal advisers. Later, as an unrepresented litigant, he initiated the 1993 appeals but without success. For all practical purposes, this did, and should have, put the question of an appeal to rest. However, many years later the applicant received a claim for compensation. The indications are that the present appeal has been instituted essentially as a consequence of compensation being awarded against the applicant.
To my mind, as I have indicated, Wallwork J's refusal of leave with respect to the 1993 appeals is sufficient of itself to justify the refusal of leave in respect of the present appeal and precludes the grant of any extension of time. Moreover, the applicant's lack of candour about the 1993 proceedings at the initial hearing weighs heavily against him.
Further, and in any event, the many matters referred to in the applicant's affidavit do not amount to exceptional circumstances justifying an extension of time. Moreover, the applicant has failed to establish that there has been any miscarriage of justice. He was legally represented throughout the proceedings in the primary court and made several appearances prior to a plea of guilty being entered. It follows from Di Camillo's case (supra) that the Magistrate was entitled to act upon that plea and proceed upon the basis that all the elements of the subject offences had been made out.
Further, if relief were to be granted on appeal it would probably be necessary for there to be a rehearing as to the matters in issue as to liability and also as to factual matters bearing upon sentence in the event of a further sentence having to be imposed. It follows from the decided cases mentioned earlier that considerations of justice are not confined to the situation of the applicant but must take into account the interests of the community including the difficulty in proceeding with a matter which has been in abeyance for many years owing to the failure or neglect of the applicant in pursuing his right of appeal, being a right of appeal that he knew to exist as a consequence of his dealings with the second law firm. In this case, after 17 years, it will be virtually impossible to locate witnesses with a clear recollection of the facts. It seems that the video evidence has been destroyed.
For these reasons, I consider that the applicant has failed to establish that there has been any miscarriage of justice with the result that the application for extension of time should be refused. It follows that leave to appeal should not be granted.
To my mind, in the absence of evidentiary materials permitting a proper assessment of the primary court's reason for imposing sentence, I have not been able to find and identify error in respect of the convictions or in respect of the sentences imposed. For offences of the kind charged the aggregate term imposed cannot be regarded as excessive. This reinforces the conclusion I have come to, for I am of the view that even if the time for appeal was extended and leave to appeal granted, the grounds relied upon by the applicant are not sufficient to justify allowance of the appeal.
Summary
The application for an extension of time for leave to appeal will be dismissed. The application for leave to appeal will be dismissed.
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