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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

1. The respondent asked that the application be dealt with on the papers without hearing from the parties.  However, orders made in single judge appeals in the absence of a party are only provisional.[1]  Accordingly, the respondent was advised that the application would be listed for hearing.  The respondent was also advised of the deficiencies in its evidence.

   [1] See rule 60 and rule 63 of the Criminal Procedure Rules 2005 (WA).

2. The Court sent a letter to the appellant at the address he had provided when filing his Appeal Application.  The letter was returned to the Court as the sender.

3. The respondent subsequently filed a further affidavit sworn by Jian Tay Yeow of the Christmas Island Detention Centre.  Mr Yeow deposed that he searched the Australian Federal Police Realtime Online Management Information System and the National Police Reference System in an attempt to locate the appellant.  He was unable to find any information as to the appellant's current location or his whereabouts.  Mr Yeow's affidavit also included hearsay evidence of what he had been told by an Australian Border Force Inspector. 

4. The respondent did not file an affidavit from the Australian Border Force Inspector.

5. It is unsatisfactory that the respondent filed hearsay evidence, even after the nature of the hearsay evidence in the first affidavit had been drawn to his attention.  I have disregarded the hearsay evidence.

Jurisdiction to dismiss for want of prosecution

1. In Cronin v Calder SM,[2] Corboy J concluded that the Supreme Court has the power to hear and determine an application to dismiss an appeal for want of prosecution.  His Honour explained that the power came from the court's inherent jurisdiction and under the Rules of the Supreme Court 1971 (WA) (read with s 40(1)(l) of the Criminal Appeals Act 2004 (WA)). Section 40(1)(l) of the Criminal Appeals Act gives the Court power to exercise any power that the Supreme Court may exercise in a civil case.

   [2] Cronin v Calder SM [2017] WASC 145.

2. I respectfully agree.

Relevant principles

1. In Hancock Family Memorial Foundation Ltd v Fieldhouse,[3] the Court of Appeal discussed the relevant principles.  In short:

   [3] Hancock Family Memorial Foundation Ltd v Fieldhouse[2005] WASCA 93; (2005) 30 WAR 398 [99] - [100], [103].

   1.The court's discretion to dismiss an action for want of prosecution is not affected by any absolute or inflexible rules.

   2.There are five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:

   (a)the length of the delay;

   (b)the explanation for the delay;

   (c)the hardship to the plaintiff if the action is dismissed and the cause of action left statute‑barred;

   (d)the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and

   (e)the conduct of the defendant in the litigation.

   3.These considerations will usually be persuasive.  However, they are not a checklist.  They are not determinative.  Rather, they are matters the court should take into account in considering what justice requires.

Analysis

The delay

1. The Appeal Application was filed on 25 January 2016.  Provisional orders were made on 11 April 2016.  It seems that the appellant has not taken any steps in the proceedings since that time.

2. There is no explanation for the delay. 

Hardship to the appellant?

1. There is no evidence of any hardship to the appellant if the proceedings are dismissed.  The appellant is not serving a term of imprisonment in relation to the conviction the subject of the application. 

2. If the Appeal Application is dismissed for want of prosecution, the appellant would be (significantly) out of time to appeal.  However, the Court could grant an extension of time if it was just to do so.[4]

Prejudice to the respondent?

[4] See, in the context of an inactive case deemed to have been dismissed for want of prosecution under the District Court Rules 2005 (WA), Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [45]. The relevant District Court rules are in the same terms as the Rules of the Supreme Court in relation to inactive cases - Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329 [24]. See also Beavan v Industrial Relations Secretary (No 1) [2016] NSWIC 1; (2016) 92 NSWLR 473 [149] - [153] (although in that case, there was a statutory time limit that barred fresh proceedings).

1. The ground of appeal is that 'The learned Magistrate erred in law by failing to exclude propensity and relationship evidence where such evidence was not sufficiently particularised, was not significantly probative and was unfairly prejudicial.' 

2. The delay would not affect the determination of this ground.  However, if the appeal was upheld, the conviction quashed and a re-trial ordered, the respondent is likely to be significantly prejudiced.  The appellant was convicted of an assault on his wife on 2 December 2014 at Christmas Island.  The prosecution called four witnesses at trial, including his wife and a nurse who examined her injuries.[5]  The quality of their evidence is likely to have significantly degraded in the intervening years.

The conduct of the respondent in the litigation

[5] Transcript dated 16 December 2015.

1. There is no evidence that the respondent has contributed in any way to the appellant's failure to pursue his Appeal Application.

Conclusion

1. Weighing up all of the circumstances, I am satisfied that the balance of justice favours dismissing the Appeal Application.  I would make that order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KH

Associate to the Honourable Justice Archer

16 FEBRUARY 2023