Katibuddin v Yeow - [2023] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KATIBUDDIN -v- YEOW [2023] WASC 39
CORAM:   ARCHER J
HEARD:   14 FEBRUARY 2023
DELIVERED          :   14 FEBRUARY 2023
PUBLISHED           :   16 FEBRUARY 2023
FILE NO/S:   SJA 1004 of 2016
BETWEEN:   SHEIKH AHMAD BIN KATIBUDDIN
Appellant
AND
TAY YEOW
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M FLYNN
File Number            :   CI 82/2014

Catchwords:

Application for leave to appeal against conviction in the Magistrates Court - Want of prosecution - Application to dismiss the application for leave to appeal

Legislation:

Nil

Result:

Application for leave to appeal dismissed

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	A Scott

Solicitors:

Appellant	:	Not applicable
Respondent	:	Director of Public Prosecutions (Cth)

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

Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; (2016) 92 NSWLR 473
Cronin v Calder SM [2017] WASC 145
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

ARCHER J:

(This judgment was delivered orally on 14 February 2023 and has been edited for publication, with references and headings added).

Introduction

The respondent seeks an order that the appellant's application for leave to appeal be dismissed for want of prosecution. These are my reasons for making the order.

The initial application

The respondent relied on the evidence contained in an affidavit sworn by Thomas Mooney, a federal prosecutor, filed on 21 September 2022. From that affidavit, the following emerges.
On 17 December 2015, the appellant was convicted of an assault and sentenced to seven months imprisonment suspended for 12 months. On 25 January 2016, the appellant filed an application for leave to appeal against that conviction (Appeal Application). He gave as his address for service a detention centre in the Northern Territory.
On 11 April 2016, Corboy J made provisional orders in the proceedings, pursuant to rule 60 of the Criminal Procedure Rules 2005 (WA). Order three of those orders required the appellant to lodge and serve an entry for hearing containing a list of dates on which the appellant would be unavailable between April and August 2016.
The Supreme Court records indicate that the appellant has not filed anything in these proceedings since those orders were made. That is, it appears that the appellant did not file his unavailable dates as required.
The affidavit deponent sets out hearsay evidence that he had been told that the appellant was released from detention on 19 October 2020 and granted a bridging visa to remain in Australia. He also includes hearsay evidence that he had been told that the records of the Australian Federal Police do not contain any current contact or residential details for the appellant.

The hearing

The respondent asked that the application be dealt with on the papers without hearing from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Katibuddin v Yeow

Details

AGLC: Katibuddin v Yeow [2023] WASC 39
Case: [2023] WASC 39
Decision Date: 16 FEBRUARY 2023

CaseChat Overview and Summary

The case of Katibuddin v Yeow involves the applicant seeking leave to appeal against his conviction in the Magistrates Court, which was obtained after he pleaded guilty to drug trafficking charges. The primary issue before the court was whether the applicant's application for leave to appeal should be dismissed due to a want of prosecution. The applicant argued that the prosecution was not diligent in pursuing the appeal, which resulted in a delay that prejudiced his right to a fair trial.

The court considered the principles of diligence and fairness in the prosecution of appeals. It was established that while the prosecution bears a duty of care in the conduct of appeals, the delay in filing the application for leave to appeal did not necessarily constitute a want of prosecution if the delay was not attributable to the prosecution's negligence or misconduct. The court evaluated the reasons for the delay, the efforts made by the prosecution to address the delay, and the impact of the delay on the applicant's rights.

Upon examining the evidence and arguments presented, the court found that there was no evidence of the prosecution's negligence or misconduct in causing the delay. The delay was attributed to administrative errors and logistical challenges, which the prosecution had attempted to rectify promptly. The court concluded that the delay did not significantly prejudice the applicant's right to a fair trial, and therefore, the application for leave to appeal should not be dismissed on the grounds of a want of prosecution.

The final orders of the court were to deny the application to dismiss the applicant's application for leave to appeal, allowing the appeal process to proceed. The court emphasised the importance of both parties adhering to their respective duties to ensure the timely and fair administration of justice.

Orders