Mohammadi v Bethune
[2017] WASC 285
•4 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MOHAMMADI -v- BETHUNE [2017] WASC 285
CORAM: HALL J
HEARD: 26 SEPTEMBER 2017
DELIVERED : 26 SEPTEMBER 2017
PUBLISHED : 4 OCTOBER 2017
FILE NO/S: SJA 1045 of 2017
BETWEEN: AMIR SEYED MOHAMMADI
Appellant
AND
MATTHEW BETHUNE
First RespondentCARLOS RIVAS
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE M WHEELER
File No :PE 65577 of 2016, JO 13803 of 2016
Catchwords:
Criminal law - Single judge appeal from decision of magistrate refusing costs - Appellant wishing to argue that decision in another single judge appeal was wrongly decided - Whether appeal should be dealt with by the Court of Appeal - Relevant considerations in exercising the discretion to make an order that appeal be dealt with by Court of Appeal under s 13(2) Criminal Appeals Act 2004 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 13
Result:
Order made that appeal be dealt with by the Court of Appeal
Category: B
Representation:
Counsel:
Appellant: Mr C L J Miocevich
First Respondent : Mr E Fearis
Second Respondent : Mr E Fearis
Solicitors:
Appellant: C & G Miocevich Law Offices Pty Ltd
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Carcione v Robson [2017] WASC 165
HALL J:
(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)
This is an application by the appellant for an order pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA) for this appeal to be dealt with by the Court of Appeal. The application is supported by an affidavit of the appellant's solicitor. The application is not opposed by the respondents.
Background
The background is that on 15 October 2016 the appellant was charged with an offence of being in possession of a thing reasonably suspected of having been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (JO 1308/16). On 23 November 2016, he was charged with a further four offences, of which one (PE 65577/2016) was a second charge of the same nature. The appellant pleaded not guilty to the s 417(1) charges and they were set down for a trial on 18 July 2017.
The charges were either way charges; that is, they alleged indictable offences that can be dealt with summarily. Such charges must be tried summarily unless on an application by the prosecutor or the accused before a plea is entered the court decides that the charge is to be tried on indictment: see s 5 of the Criminal Code. No such application was made in respect of these charges.
On 18 July 2017, the prosecution stated that it intended to discontinue the prosecution of the charges. The magistrate then dismissed the charges for want of prosecution, pursuant to s 25 of the Criminal Procedure Act 2004 (WA).
An application was made on the appellant's behalf for costs, albeit that defence counsel acknowledged that the magistrate was bound by the recent decision of Pritchard J in Carcione v Robson [2017] WASC 165. The effect of that decision is that an accused person who has either way charges dismissed for want of prosecution is not entitled to costs pursuant to the Official Prosecutions (Accused's Costs) Act 1973 (WA). Acting in accordance with that decision, the magistrate did not order costs.
The appellant filed an appeal notice on 14 August 2017, appealing the refusal of costs. The ground of appeal states that 'There was an error in law in refusing to award costs'. The particulars of that ground set out the procedural history and then state that 'The decision in Carcione v Robson is wrong in law and should be overturned'. No further detail is provided in the ground as to why the decision is said to be wrong. However, the appellant has provided a draft of the written submissions that he intends to rely on. It is not appropriate at this stage to enter into any analysis of those submissions. It is sufficient to note that they refer to material that was not referred to by Pritchard J in her judgment and that may be capable of supporting a different interpretation of the relevant provisions (though the respondent advised that at least some, if not all, of this material had been provided to her Honour following the hearing of the appeal in Carcione v Robson). It should be noted that the decision in Carcione has not itself been appealed.
On 23 August 2017, Martino J made a provisional decision on the papers dismissing the application for the appeal to be dealt with by the Court of Appeal and making consequential orders regarding the hearing of the appeal before a single judge. A provisional decision becomes final unless a party seeks a hearing before a judge by filing a Form 25 within five days of being served with the notice of the provisional decision. The appellant filed a Form 25 requesting a hearing on 25 August 2017.
Should the appeal be dealt with by the Court of Appeal?
The power to order that an appeal to a single judge under pt 2 of the Criminal Appeals Act be dealt with by the Court of Appeal is discretionary in nature. Section 13 does not provide any indication of the considerations relevant to the exercise of that discretion. However, the structure of the Criminal Appeals Act provides some guidance.
Appeals from the Magistrates Court exercising criminal jurisdiction are dealt with in pt 2 of the Criminal Appeals Act. Such appeals must be dealt with by a single judge unless an order under s 13(2) is made. An unsuccessful party to a single judge appeal may appeal to the Court of Appeal pursuant to s 16.
In my view, the following factors are relevant considerations in exercising the discretion under s 13(2):
(1)The normal course for appeals of this nature is that they are determined by a single judge. In order to justify a different course there must be sufficient grounds for doing so. The onus in this regard is on the party applying for the order.
(2)The wishes of the parties are not in themselves sufficient grounds. An order under s 13 is not available merely because the parties seek it. However, the position of the parties is relevant and I note that this application is not opposed by the respondents, though counsel for the respondents made it clear that this positon did not mean that there was any acceptance of the appellant's claim that Carcione was wrongly decided.
(3)Even if the parties indicate that whatever the outcome a further appeal is inevitable, an order may not be appropriate. The Court of Appeal and the parties may be assisted by the testing of the arguments before a single judge and the production of reasons by that judge.
(4)The existence of conflicting decisions by single judges may be a sufficient reason to order that the matter be dealt with by the Court of Appeal. In such a case, the existence of a controversy that can only be authoritatively determined by the Court of Appeal would be a good reason to make an order. There are not conflicting decisions on this issue presently.
(5)The fact that an appellant intends to assert that the decision of a single judge in another appeal is wrong and should not be followed is a relevant but not necessarily determinative consideration. The existence of another decision does not necessarily mean that the outcome of this appeal is a foregone conclusion. Another judge would not be bound to follow that decision if it was shown to be clearly wrong. On the other hand, another judge may well reach the same conclusion after considering the merits of the submissions made on the present appeal.
(6)If there is some real potential for a different decision, that may, however, justify an order. New or additional material or arguments may have the potential to produce a different outcome. A realistic risk of conflicting decisions with equal authority on the same issue is something that should be avoided. Such an outcome would sow confusion and delay an inevitable further appeal.
(7)The public interest may favour a referral to the Court of Appeal if it is likely that the issue will arise in other cases and if there is some substantial reason to doubt its correctness. In this case, the appellant's solicitor states in his affidavit that the decision in Carcione has altered longstanding practice in the Magistrates Court. I have also heard in submissions today that this issue is one that is arising on a daily basis in the Magistrates Court. Accused persons who were formerly granted costs orders are no longer receiving them. There is said to be significant public interest in resolving this issue because of the financial consequences for accused persons generally and, of course, for the State.
The appellant's draft written submissions refer to aspects of the legislative history that were not expressly referred to in the judgment in Carcione. The appellant submits that different arguments will be raised on this appeal that favour a different conclusion.
It is difficult to assess the weight of those arguments on the limited material provided to me and having regard to the fact that I have heard no submissions in that regard from the respondent, but they do appear to be at least arguable. In these circumstances, there is a real risk that a different decision could be reached in this case by another single judge. That would not be in the public interest because it would produce conflicting authorities and, in all likelihood, a further appeal to the Court of Appeal.
For those reasons, I grant the application and make an order under s 13(2) that this appeal be dealt with by the Court of Appeal. The appellant also sought an urgent appeal order. Whether any such order should be made is a matter for the Court of Appeal.