King v Lankford

[2001] WASCA 301

KING -v- LANKFORD [2001] WASCA 301

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 301
Case No:	SJA:1165/1999	Heard:	6 SEPTEMBER 2001
Coram:	WHEELER J	Delivered:	28/09/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Application for extension of time dismissed
Category:	B
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Parties:	PAUL ANTHONY KING TROY LANKFORD FELICITY JEAN CRAWFORD LISA BARGAIN
Catchwords:	Justices Appeal Delay Turns on own facts
Legislation:	Nil
Case References:	Weinel v Fedcheshen (1995) 65 SASR 156 Button v The Queen [2001] WASCA 7 Dietrich v R (1992) 177 CLR 292 Hall v Fonceca [1983] WAR 309 NSW v Cannellis (1984) 181 CLR 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KING -v- LANKFORD [2001] WASCA 301 CORAM : WHEELER J HEARD : 6 SEPTEMBER 2001 DELIVERED : 28 SEPTEMBER 2001 FILE NO/S : SJA 1165 of 1999 BETWEEN : PAUL ANTHONY KING

Appellant

AND

TROY LANKFORD
Respondent

FILE NO/S : SJA 1001 of 1999 BETWEEN : PAUL ANTHONY KING

Appellant

AND

FELICITY JEAN CRAWFORD
Respondent

FILE NO/S : SJA 1095 of 2000 BETWEEN : PAUL ANTHONY KING

Appellant

AND

LISA BARGAIN
Respondent

(Page 2)

Catchwords:

Justices - Appeal - Delay

Turns on own facts

Legislation:

Nil

Result:

Application for extension of time dismissed

Category: B

Representation:

SJA 1165 of 1999

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : No appearance

(Page 3)

SJA 1001 of 1999

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : No appearance

SJA 1095 of 2000

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : No appearance

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

Weinel v Fedcheshen (1995) 65 SASR 156

Case(s) also cited:

Button v The Queen [2001] WASCA 7
Dietrich v R (1992) 177 CLR 292
Hall v Fonceca [1983] WAR 309
NSW v Cannellis (1984) 181 CLR 309

(Page 4)

1 WHEELER J: The matters out of which this application for an extension of time and for leave to appeal to the Full Court arise are set out in my reasons for decision dated 18 August 2000 [WASCA 214]. I note that in one respect those reasons mis-state a portion of the relevant chronology, referring to an application apparently made in January of 1999 as being made "late" in 1999 (par 3). For that reason, and in order to bring the chronology up to date, I set out the chronology of these matters.

14 October 1998	Offences (hindering, resisting, and assault) allegedly committed by applicant
11 December 1998	Applicant convicted of 3 offences
5 January 1999	Application SJA 1001 of 1999 seeks leave for extension of time and to appeal in relation to assault
15 January 1999	SJA 1001 of 1999 adjourned to 15 February 1999 "to enable transcript to be obtained and legal aid to be explored".
15 February 1999	SJA 1001 of 1999 adjourned sine die due to non-appearance of applicant
15 September 1999	Application for leave to appeal and extension of time. SJA 1165 of 1999 filed relating to resisting arrest and hindering
4 October 1999	Extension of time and leave to appeal granted SJA 1165 of 1999
8 June 2000	Application for leave to appeal and extension of time brought in relation to assault conviction SJA 1095 of 2000
14 June 2000	SJA 1095 of 2000 adjourned to 21 June 2000

2 (It should be noted at this point that there is a quantity of correspondence between the applicant and the registry of this Court, and a record of some telephone conversations, in which the applicant on a number of occasions, sought to have allocated dates vacated in relation to these matters because he was or had been unwell or had other difficulties.)

21 July 2000

Appeals in relation to resisting and hindering and applications for leave and extension of

(Page 5)

time in relation to assault heard by me
18 August 2000	Appeal and applications dismissed
12 December 2000	Application for leave to appeal and extension of time filed in relation to the whole of the decision 18 August 2000
2 February 2001	The applicant appeared before me and I advised him that he would need to produce some evidence explaining his delay
22 June 2001	Affidavit concerning delay filed

3 The affidavit of 22 June 2001 consisted largely of extracts of a diary kept by the applicant which included this period, some medical certificates and correspondence relating to the applicant's son and a medical certificate relating to the applicant's head injury. The medical certificates relating to the child do not assist me. One refers to treatment during the course of this year, not 2000. The other, dated February 2001, refers to an illness "from October 2000" but its duration is not specified. The medical certificate (unfortunately undated) relating to the applicant refers to his having symptoms of "poor concentration and poor memory" but otherwise being "reasonably well". The effect of the diary is, in broad terms: that the applicant has the care of two young children; that their mother is an erratic and difficult person suffering from mental illness; and that the contact, or lack of contact, with her causes problems for them and for the applicant. The burden that he has by reason of their mother's condition is obviously over and above that to which single parents are normally subject. There are some gaps in the diary, particularly in relation to the period from approximately 18 September to 11 October. It seems to me that it would be overstating the position to say that there were no periods of calm prior to December of 2000 during which the applicant could have considered the possibility of appealing, and drafted relevant materials. However, there is some explanation proffered for the delay and the applicant's difficult circumstances and own medical problems are such as to suggest that some delay – although not in my view a delay as long as that which in fact occurred – would not be unreasonable.

4 I pause to note that at the hearing of the application before me on 6 September 2001 counsel for the respondent appeared and filed submissions. The applicant sought an adjournment of the application on the basis that it would be necessary for him to consider these submissions

(Page 6)

of the respondent. After a brief discussion with counsel for the respondent, I learned that he appeared only as a matter of courtesy because the respondent had been advised by the Court of listing of the application. Therefore I excused him, and I consider this matter as an ex parte application and without reference to any submissions filed on behalf of the respondent.

5 The grounds upon which the applicant seeks to rely in his appeal appear in the document headed "Minute to amend application for leave to appeal and extension of time" filed by him on 30 January 2001. Although the grounds were not numbered originally, in consultation with the applicant I have hand numbered the paragraphs so that there appear to be twenty numbered grounds and one initial, unnumbered ground. I deal with them in order.






Unnumbered ground, and Grounds 1-3

6 All of these complain of the failure to vacate the hearing of the appeal. These could only relate to the appeal in respect of the hindering and resisting conviction. No application was made to vacate the hearing of the application for leave and extension of time in relation to the assault. They do not appear to raise any alleged error either of fact or law.




Ground 4

7 Complains that evidence given at the trial before the learned Stipendiary Magistrate was not "correct and factual". This ground appears to be based on the misconception, not unusual in unrepresented litigants, that error can be established merely by making an assertion which is not consistent with the findings of a judicial officer, without the need to point to any matter either of fact or of law which would suggest that those findings were incorrect.




Ground 5

8 Asserts that the application in relation to the assault conviction had previously been adjourned sine die. This is correct in the sense that one of the applications (SJA 1001 of 1999) had been adjourned sine die at one stage. However the application had been relisted and the applicant was aware that it was to be heard.

(Page 7)

Ground 6

9 Asserts that in relation to the assault matter "the applicant confirmed with the Learned Justice that this matter was not for Appeal hearing on this day …". However I can find no mention in the transcript of any such confirmation. The applicant is plainly correct in asserting that the only matter for hearing in relation to the assault conviction was the application for extension of time and for leave to appeal, not the appeal itself. The transcript reveals that the applicant was advised that it was necessary to address the merits of the proposed appeal in order to justify the application for extension of time and for leave to appeal.




Grounds 7, 8, 9, 11, 12 & 19

10 Restate matters which were raised on the appeal from the decision of the Magistrate as grounds V, VII and VIII, and restates one factual issue in relation to the layout and dimension of certain steps which is dealt with at par 30 of my reasons for decision of 18 August 2000. For the reasons which I then gave, it is my view that those grounds have no prospect of success whatever.




Ground 10

11 Complains of failure to refer to the list of authorities submitted by the applicant. It does not identify any particular authority as containing a principle which was not applied and identifies no error of law.




Ground 13

12 Complains that there was evidence before the learned Magistrate that the applicant was impecunious. It does not identify the evidence and as a matter of fact the assertion cannot be sustained.




Ground 14

13 Complains that there was evidence before the learned Magistrate in relation to the applicant's head injury which her Worship "chose to ignore ….". It is not explained how evidence of that head injury could have had any bearing on the matters which her Worship had to determine, and as a matter of fact I cannot see any relevance in it.

(Page 8)

Ground 16

14 Asserts that the decision of Perry J in Weinel v Fedcheshen (1995) 65 SASR 156 should have been applied. That decision is referred to and applied in par 27 of my reasons.




Grounds 17 and 18

15 These complain of perceived bias on the part of her Worship which prevented the applicant from properly presenting his case. This is in my view the only issue of any substance. It was not a matter which was strictly raised by any of the applicant's grounds of appeal before me but did arise during the course of argument and was dealt by me at par 21-31 of my reasons. While it appears to me that there are as a matter of principle issues arising from the way in which her Worship conducted the trial which might well be appropriate for the attention of the Full Court, it is my view that in the particular circumstances of this case these are not grounds which have sufficient merit to require that the application for an extension of time should be granted. I would not have regarded them as so wholly unarguable, as to require dismissal of the application even if it had been within time. However, the real difficulty which the applicant faces in relation to these grounds is that his trial was, as I have endeavoured to explain in my previous reasons for decision, a relatively straightforward one in which, leaving issues of demeanour aside, aspects of the account presented by the applicant were inherently improbable. The applicant did in fact present his case to her Worship in much the same way as he presented it to me on appeal. Her Worship disbelieved him, and accepted the evidence of the prosecution witnesses.

16 Having regard therefore to the fact that the application is some four months out of time; that the reasons for delay go some way towards explaining the delay but do not, in my view, excuse a delay of that magnitude; that these offences were committed now some three years ago and there would be obvious prejudice to the respondent if the question of a retrial were to arise; and having regard to the view I take of the merits of the proposed appeal; it is my view that the application should be refused.

17 I would therefore dismiss the application for extension of time.