Lodge v Magorian - [2011] WASC 341

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: LODGE -v- MAGORIAN [2011] WASC 341

CORAM: HALL J

HEARD: 2 DECEMBER 2011

DELIVERED : 2 DECEMBER 2011

FILE NO/S: SJA 1109 of 2011

BETWEEN: MATTHEW JAMES LODGE
Appellant
AND
DAVID HUGH MAGORIAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :PE 11778 of 2010

Catchwords:

Criminal law and procedure - Application to refer appeal to the Court of Appeal - Whether bail affected - Provisions of pt 2 div 2 of the Criminal Appeals Act 2004 (WA) apply to an appeal that is referred to the Court of Appeal - Clause 5 of the Bail Act 1982 (WA) applies

Legislation:

Bail Act 1982 (WA), sch 1 pt C
Criminal Appeals Act 2004 (WA), s 13, s 16, pt 2, pt 3

Result:

Application granted
Appeal referred to the Court of Appeal

Category: B

Representation:

Counsel:

Appellant: Mr H J Paiker
Respondent: Ms S H Linton

Solicitors:

Appellant: Paiker & Overmeire
Respondent: Director of Public Prosecutions (WA)

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

Magorian v Lodge [2011] WASC 147
Scolaro v Shephard [2010] WASC 77

HALL J: This is an appeal from a sentence imposed in the Magistrates Court. The respondent has applied for an order that the appeal be dealt with by the Court of Appeal pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA). The appellant opposes that application.
The background is as follows. On 12 January 2011 the appellant was found not guilty of dangerous driving causing death. The dismissal of that charge followed a trial in the Magistrates Court. The prosecution appealed to a single judge of this court on 31 May 2011 pursuant to pt 2 of the Criminal Appeals Act. Murray J allowed the prosecution appeal and substituted a judgment of conviction: Magorian v Lodge [2011] WASC 147. The matter was then remitted back to the magistrate who first heard it for the appellant to be sentenced.
By notice of appeal dated 20 June 2011, the appellant has sought to appeal from Murray J's decision to the Court of Appeal and that appeal, I understand, is listed to be heard on 13 February 2012. I will refer to that as 'the conviction appeal'.
On 4 October 2011 the appellant was sentenced by the original trial magistrate to 18 months' imprisonment. By notice of appeal dated 24 October 2011, the appellant seeks leave to appeal that sentence. I will refer to that as 'the sentence appeal'. It is the appeal in which the present application is made.
On 4 November the appellant applied for and was granted bail by Jenkins J in respect of the sentence appeal. As the sentence appeal is an appeal brought under pt 2 of the Criminal Appeals Act, being an appeal from the Magistrates Court, bail was determined in accordance with the provisions of sch 1 pt C of the Bail Act 1982 (WA), including cl 5.
The effect of cl 5 is that an appellant in these circumstances is deemed to be a person awaiting an appearance in court before conviction. Exceptional reasons for bail do not have to be established by an appellant who is appealing under pt 2 of the Criminal Appeals Act from a decision of the Magistrates Court. This is to be contrasted with other appellants who must establish exceptional reasons for bail: see cl 4A; see also Scolaro v Shephard [2010] WASC 77.
The appellant has filed written submissions that were settled by senior counsel and on which reliance is placed today. The appellant objects to referral of the sentence appeal to the Court of Appeal on the sole ground that such a referral may affect his bail. The contention is that an appeal under pt 2 of the Criminal Appeals Act that is referred to the Court of Appeal is to be treated as if it were an appeal to the Court of Appeal. It is said that this flows from s 13 of the Criminal Appeals Act.
It is submitted that it is arguable that if an order is made referring the sentence appeal to the Court of Appeal the appellant would no longer have the benefit of cl 5 of the Bail Act and would be obliged to demonstrate exceptional circumstances for bail pursuant to cl 4A. I do not accept the appellant's contention in that regard.
Section 13 of the Criminal Appeals Act provides:
Supreme Court may refer appeal to Court of Appeal
(1)An appeal under this Division must be dealt with by the Supreme Court constituted by a single judge sitting in its General Division, unless an order is made under subsection (2).
(2) At any time before an appeal is concluded, the Supreme Court, on its own initiative or on the application of a party may order that the appeal be dealt with by the Court of Appeal.
(3)If an order is made under subsection (2), this Division, with any necessary changes, applies as if -
(a)the appeal had been made to the Court of Appeal; and
(b)unless the context requires otherwise, references to the Supreme Court were to the Court of Appeal.
Clause 5 of sch 1 pt C of the Bail Act provides:
Exception for bail for an appeal under the Criminal Appeals Act 2004 Part 2
Clause 4A does not apply to the bail of a person who is awaiting the disposal of appeal proceedings under Part 2 of the Criminal Appeals Act 2004; such a person shall be deemed for the purposes of this Part to be awaiting an appearance in court before conviction for an offence.
In my view, the plain effect of s 13(3) of the Criminal Appeals Act is that the provisions of pt 2 div 2 will apply to an appeal that is referred to the Court of Appeal, notwithstanding that those provisions refer to the Supreme Court as constituted by a single judge rather than the Court of Appeal. A referred appeal remains an appeal under pt 2 of the Criminal Appeals Act and is dealt with by the Court of Appeal in accordance with the provisions relating to such an appeal.
The effect of s 13(3) is not to convert the appeal into a pt 3 appeal; in any event, it is plain from pt 3 of the Criminal Appeals Act that it relates only to appeals from superior courts and a referred appeal remains an appeal from a court of summary jurisdiction; namely the Magistrates Court, and thus pt 3 could not apply to it. I note that for the purposes of bail there is no distinction in the Bail Act between an appeal from a Magistrates Court to a single judge, an appeal from a single judge to the Court of Appeal under s 16 and a referred appeal pursuant to s 13. All are pt 2 appeals to which, in my view, cl 5 of the Bail Act clearly applies.
It follows that an order referring the sentence appeal to the Court of Appeal will not change the nature of that appeal as being a pt 2 appeal. Accordingly, cl 5 of the Bail Act will continue to apply. Of course, any question of continuing bail would be a matter for the Court of Appeal and be subject to the circumstances existing at any relevant time. However, the basis for the objection to referral is, in my view, plainly erroneous.
I must therefore consider whether it is otherwise appropriate to refer the appeal. That is clearly a discretionary decision as indicated by the use of the word 'may' in s 13(2) of the Criminal Appeals Act. The Act does not set out the factors that may justify referral. A range of circumstances can be imagined and it is unnecessary for present purposes to articulate them all. It is sufficient to set out the factors that are relevant to the present case.
In my view, it is appropriate to refer this sentence appeal to the Court of Appeal and I am of that view because firstly, there is a conviction appeal in respect of the same charge which is already pending before the Court of Appeal. Secondly, the determination of the conviction appeal may render the sentence appeal nugatory. Thirdly, it is clearly both efficient and fair to all parties that the Court of Appeal should determine all relevant outstanding issues in respect of this matter. Accordingly, there will be an order that the sentence appeal be dealt with by the Court of Appeal.