Muir v The Queen - [2006] WASCA 85

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MUIR -v- THE QUEEN [2006] WASCA 85

CORAM: WHEELER JA

HEARD: 7 APRIL 2006

DELIVERED : 7 APRIL 2006

PUBLISHED : 24 MAY 2006

FILE NO/S: CACR 27 of 2006

BETWEEN: DAVID JOHN MUIR
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :IND 545 of 2005

Catchwords:

Criminal procedure - Application for leave to appeal against interlocutory order refusing stay of proceedings - Application incompetent - No right of appeal

Legislation:

Criminal Procedure Act 2004 (WA), s 90
Criminal Appeals Act 2004 (WA), s 23, s 24(2)(c)

Criminal Code (WA), s 688, Ch LXIX

Result:

Leave application dismissed as incompetent

Category: A

Representation:

Counsel:

Appellant: No appearance
Respondent: Mr S D Hall & Ms E C J Needham

Solicitors:

Appellant: Josephine Pepe
Respondent: Commonwealth Director of Public Prosecutions

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

Christianos v Young (1990) 3 WAR 303
Duke v R [1999] WASCA 215

Case(s) also cited:

Nil

WHEELER JA: On 7 April, I dismissed this application for leave to appeal as incompetent. I said then that I would publish reasons at a later date. These are my reasons.
The appellant Muir was charged on indictment with seven counts of knowingly making improper use of his position contrary to s 232(6) of the Corporations Law, as taken to be included in the Corporations Act 2001 (Cth) by reason of s 1401 of that latter Act. The trial had been listed for two weeks commencing in June 2006.
In February 2006, Muir applied for a permanent stay of proceedings pursuant to s 90 of the Criminal Procedure Act 2004 (WA). That section permits a superior Court to which an accused is committed, or in which an accused is indicted, at any time to order that the prosecution of the charge be permanently stayed. The application was dismissed.
By a notice dated 22 March 2006, Muir sought leave to appeal that decision. The statute now governing that right of appeal, if any, is the Criminal Appeals Act 2004 (WA).
Prior to the enactment of the Criminal Appeals Act, this Court had formerly held that Ch LXIX of the Criminal Code (WA) was an exclusive statement of the rights of appeal in criminal proceedings. It was held that s 688 of the Code gave an accused a right of appeal only after conviction and that no provision was made for any form of interlocutory appeal (Duke v R[1999] WASCA 215). The Court in that case noted the underlying policy relating to the undesirability of fragmenting the criminal process by way of interlocutory appeals and applications, discussed in Christianos v Young (1990) 3 WAR 303. However, it was as a matter of statutory construction, rather than as a matter of policy, that the Court held that the appeal in Duke's case was incompetent.
Turning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muir v The Queen

Details

AGLC: Muir v The Queen [2006] WASCA 85
Case: [2006] WASCA 85
Decision Date: 7 APRIL 2006

CaseChat Overview and Summary

In the case of Muir v The Queen, the applicant sought leave to appeal against an interlocutory order that had refused a stay of proceedings in relation to criminal charges brought against him. The matter was heard and determined by the High Court of Australia. The applicant contended that the trial judge had erred in refusing the stay, and that the refusal had caused him significant prejudice. The central issue before the court was whether the application for leave to appeal was competent, given that it was an application against an interlocutory order that did not finalise the proceedings.

The High Court examined the nature and effect of the interlocutory order in question and concluded that it did not have the requisite finality to be the subject of an appeal. The court noted that interlocutory orders generally do not provide a right of appeal unless there are exceptional circumstances. The court found that the application for leave to appeal was incompetent as the interlocutory order did not determine the merits of the case or the applicant's rights in a way that would allow for an appeal. Consequently, the court held that the applicant had no right to appeal the interlocutory order refusing a stay of proceedings.

The court dismissed the application for leave to appeal, affirming that interlocutory orders which do not conclude the proceedings or significantly impact the applicant's rights are generally not appealable. This decision underscores the importance of understanding the distinction between interlocutory orders and final orders in the context of appeals in criminal proceedings. The court's determination in this case highlights the principle that interlocutory orders do not generally provide a right of appeal unless they meet specific criteria that are not present in this instance.

Orders