Lund v Davies
[2014] WASC 379
•21 OCTOBER 2014
LUND -v- DAVIES [2014] WASC 379
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 379 | |
| Case No: | SJA:1029/2014 | 8 OCTOBER 2014 | |
| Coram: | CHANEY J | 21/10/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on all grounds refused | ||
| B | |||
| PDF Version |
| Parties: | ERIC LOUIS LUND MATTHEW JONATHAN DAVIES |
Catchwords: | Criminal law Application for leave to appeal Whether second appeal available against decision of Magistrate |
Legislation: | Constitution (Cth) Criminal Appeals Act 2004 (WA) Criminal Code (WA) Criminal Law Consolidation Act 1935 (SA) Statutes Amendment (Appeals) Act 2013 (SA) |
Case References: | JS v The State of Western Australia [2014] WASCA 177 Lund v Davies [2013] WASC 52 Lund v Davies [2013] WASCA 268 Lund v Davies [2014] HCASL 102 Matta v The Queen (1995) 125 FLR 127 State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MATTHEW JONATHAN DAVIES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K M BOOTHMAN
File No : PE 37706 of 2009, PE 37707 of 2009, PE 37708 of 2009, PE 37709 of 2009, PE 37710 of 2009
Catchwords:
Criminal law - Application for leave to appeal - Whether second appeal available against decision of Magistrate
Legislation:
Constitution (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Law Consolidation Act 1935 (SA)
Statutes Amendment (Appeals) Act 2013 (SA)
Result:
Leave to appeal on all grounds refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms T McArthur
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Cases referred to in judgment:
JS v The State of Western Australia [2014] WASCA 177
Lund v Davies [2013] WASC 52
Lund v Davies [2013] WASCA 268
Lund v Davies [2014] HCASL 102
Matta v The Queen (1995) 125 FLR 127
State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
1 CHANEY J: By a notice of the appeal filed on 16 April 2014, the appellant, Eric Louis Lund, applied for leave to appeal against a decision of a Magistrate at Perth made on 21 June 2012, when Mr Lund was convicted of five charges. The charges were as follows:
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3 I will refer to the last three matters, being PE37708/09, PE37709/09 and PE37710/09 as the 'police matters'.
4 Leave to appeal is required for each ground of appeal.1 In addition to leave, an extension of time to commence the appeal is also required. No application for extension of time has been made. The appeal must be commenced within 28 days after the date of the decision,2 that is, it was required to be commenced by 19 July 2012. The application is, therefore, 26 months out of time.
5 It is not necessary to set out in full the 11 grounds of appeal. That is because leave is opposed by the respondent essentially on the ground that Mr Lund's rights of appeal have already been exhausted, so that no further right of appeal could be exercised in the manner proposed, and leave should be refused on that basis. It was about that issue that the parties addressed me when the application for leave was heard.
6 For the reasons which follow, leave to appeal on all grounds should be refused and the application should be dismissed.
Background
7 The events the subject of the charges against Mr Lund occurred on 13 June 2009. The trial was heard over 10 days in March and April 2012, with closing submissions on 18 May 2012. Mr Lund was convicted on 21 June 2012. Mr Lund then appealed to this Court in relation to all five convictions (the first appeal). There were three grounds of appeal. Grounds 1 and 2 related to P37706/09 and P37707/09, respectively. Ground 3 related to the police matters.
8 The appeal was heard before Allanson J on 4 December 2012. On 5 March 2013, Allanson J delivered his reasons for decision.3 Grounds 1 and 2 were upheld. The convictions and sentences in relation to P37706/09 and P37707/09 were set aside. The charge on the P37707/09 was dismissed, and the charge on P37706/09 was referred back to the Magistrates Court to be dealt with again. Ground 3 was unsuccessful, and the appeals in relation to the police matters were dismissed.
9 Mr Lund then appealed to the Court of Appeal against the dismissal of the appeal in relation to the police matters. That appeal was unsuccessful.4 An application for leave to appeal the Court of Appeal's decision to the High Court was refused.5
The proposed appeal
10 Surprisingly, Mr Lund's proposed appeal includes appeals against the convictions which have already been set aside by Allanson J. The proposed grounds of appeal incorporate the same complaints as were raised in the first appeal, although additional grounds are now put forward. In general, however, Mr Lund accepted that his proposed grounds of appeal covered matters which were generally raised in the course of argument, or in the reasons of Allanson J, in the first appeal or in the course of argument in the Court of Appeal. For example, Allanson J made observations about the adequacy of the Magistrate's reasons in the course of dealing with findings challenged in grounds 1 and 2 of the first appeal. A ground of appeal based on adequate reasons is now found as ground 10 in the proposed grounds of appeal. Another example is ground 1 of the proposed grounds which assert bias on the part of the Magistrate. Mr Lund submitted at the hearing before me that he asserted bias before the Court of Appeal, even though it was not a specific ground either of his first appeal, or of the appeal to the Court of Appeal.
11 With one possible exception, it is quite clear that Mr Lund, by his fresh appeal, seeks to re-agitate matters which he either agitated, or at least could have agitated, in his earlier appeals.
12 The one possible exception is that, from the bar table, Mr Lund indicated that he had recently, become aware of some historic association between the Magistrate and a woman who in turn had a connection to a man, Craig, whose name was mentioned in the trial before the Magistrate. Craig's nephew was said by Mr Lund to have assaulted the Magistrate after being sentenced by him some 12 months before Mr Lund's trial. According to Mr Lund, Craig was a childhood friend of his. Mr Lund also indicated that he had recently become aware that the same woman, who was known to the Magistrate, was possibly related to the complainant in his trial. Further, he indicated, that he had also become aware that Craig's nephew had been seeing the Magistrate's niece.
13 Ground 1 of the proposed grounds asserts that the Magistrate erred in law by not excusing himself from continuing to hear the matters having regard, it would appear, to the relationships described above. It is difficult to conceive how the relationships described could possibly give rise to an apprehension of bias, but, in any event, there was no evidence of any of these matters produced for the purposes of the leave application. On the face of the materials produced for the leave application, therefore, there is nothing which could be said to be in the nature of new or fresh evidence which might be sought to be adduced on appeal. The proposed appeal is, therefore, entirely concerned with matters which either were, or could have been, raised in the initial appeal.
Is the second appeal open?
14 Subject to one proviso, Mr Lund accepted that the authorities are clear that there is only one right of appeal. That proviso was that the authorities all relate to multiple appeals in relation to indictable offences, and do not deal with multiple appeals from magistrates' decisions. The distinction was said by Mr Lund to arise from the fact that magistrates are triers of both fact and law, whereas juries decide questions of fact, and judges decide questions of law, in trials for indictable offences. For the purposes of determining whether second appeals are available, that is a distinction of no consequence.
15 The position is abundantly clear. It has been most recently stated by the Court of Appeal in JS v The State of Western Australia,6 where McLure P said:
The appellant contends that the relevant law permits multiple (or at least more than one) appeals against his convictions. A related issue is whether this court has power to re-open the first appeal to permit the appellant to raise new grounds of appeal. The answer is no on both counts.
An appeal is wholly a creature of statute. An appellate court’s jurisdiction and power derive solely from the governing legislation (Davern v Messel (1984) 155 CLR 21, 47), in this case the Criminal Appeals Act 2004 (WA) (the CAA). The CAA covers the field in relation to appeals from statutory offences: Allbeury v Corruption and Crime Commission [2012] WASCA 84 ; (2012) 42 WAR 425 [16].
There is nothing in the text, context or purpose of the CAA to provide an arguable foundation for the appellant’s claim that he can appeal more than once against the same convictions.
16 That outcome is entirely consistent with the position as it existed in relation to appeals under the Criminal Code (WA) prior to the enactment of the Criminal Appeals Act 2004 (WA) as explained in Matta v The Queen.7Matta makes it clear that, not even where, unlike this matter, the second application proceeds on different grounds from those advanced on the first occasion, no second application is possible.
17 Appeals from a court of summary jurisdiction under s 7 of the Criminal Appeals Act are no less a creature of statute than are appeals from a single judge under s 16 of the Criminal Appeals Act, which were being considered in JS v The State of Western Australia. There is no right to a second appeal.
The appellant's arguments
18 Mr Lund argues that he should be permitted to prosecute his fresh appeal for two reasons. The first is that he says that, in fact, he has not had an effective first appeal. The second is that he says he is entitled to the benefit of a South Australian statute which contemplates more than one appeal. Neither of those contentions has any merit.
Has there been a first appeal?
19 Mr Lund contends that his first appeal 'never really happened' because all of the proceedings from the Magistrates Court up to the High Court were affected by a breach of the rules of procedural fairness. The denial of procedural fairness is said to arise from the multiplicity of errors contained within the Magistrate's reasons for decision which, Mr Lund contends, are so egregious as to demonstrate bias. As I understand the submission, it is to the effect that the Magistrate has made so many errors that it should be inferred that he could not possibly have brought an unbiased mind to the determination of the case.
20 Putting aside the great difficulty, if not impossibility, of drawing an inference of bias, even apprehended bias, merely from (allegedly) erroneous findings of fact, errors of fact or law made by a magistrate are correctable by appeal. Mr Lund did appeal. Any errors of fact or law by the Magistrate could have been dealt with (and indeed Allanson J did detect some errors) at the first appeal. In substance, Mr Lund simply seeks to re-agitate his appeal, perhaps by framing some of his complaints differently. It is not open for him to do so.
21 A second difficulty, which in my view is also fatal to Mr Lund's proposition, is that even if the Magistrate's decision was affected by bias (which has certainly not been established), there is no basis upon which that bias can be imputed to any of the proceedings on appeal. Mr Lund's complaints about the proceedings before the Magistrate do not in any way impugn the validity and effectiveness of the subsequent appeals so that it could in any way be suggested that the previous exercise by Mr Lund of his rights of appeal was somehow illusory.
The South Australian legislation
22 This ground can be shortly be dealt with. It relies on amendments to the Criminal Law Consolidation Act 1935 (SA) enacted by the Statutes Amendment (Appeals) Act 2013 (SA) on 28 March 2013. The amendment introduced s 353A to the Criminal Law Consolidation Act. That section provides that the Full Court of the South Australian Supreme Court may hear a second or subsequent appeal against a conviction by a person if the Court is satisfied that there is fresh and compelling evidence that should, in the interest of justice, be considered on an appeal. Permission of the Full Court is required for such an appeal, which may be allowed if the Court considers that there was a substantial miscarriage of justice.
23 Obviously, s 353A of the Criminal Law Consolidation Act has no application in this State. Mr Lund argued that the right conferred under the South Australian legislation should be available to him because the Constitution (Cth) does not permit different grades or qualities of justice from State to State. In support of that proposition, Mr Lund relies on Wainohu v New South Wales8 andState of South Australia v Totani.9 Both those cases concerned questions of whether certain legislation infringed the institutional integrity of courts. The passages relied upon in Mr Lund's written submissions were observations made in that context. Nothing in those cases can possibly be taken to suggest that the courts of Western Australia are obliged to determine rights of appeal by reference to legislation in another State.
Conclusion
24 Mr Lund has exhausted his rights of appeal. It is not open to him to institute any further appeal in relation to the matters dealt with on 21 June 2012. His appeal cannot succeed. It is, in any event, out of time. Leave to appeal on all grounds must be refused, and the application dismissed.
1Criminal Appeals Act 2004 (WA) s 9(1).
2Criminal Appeals Act 2004 (WA) s 10(3).
3Lund v Davies [2013] WASC 52.
4Lund v Davies [2013] WASCA 268.
5Lund v Davies [2014] HCASL 102 (19 June 2014).
6JS v The State of Western Australia [2014] WASCA 177 [3] - [5] (McLure P, Buss & Mazza JJA agreeing).
7Matta v The Queen (1995) 125 FLR 127 [131] (Owen J); [131] (Pidgeon J, Rowland J agreeing).
8Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181, 228 - 229 (Gummow, Hayne, Crennan & Bell JJ).
9State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, 42 (French CJ).
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