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

1. 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.

2. 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.

3. 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.

4. 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).

5. 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.

6. Turning to the Criminal Appeals Act, it should first be noted that rights of appeal are, of course, entirely statutory, there being no common law right of appeal. Part 3 of the Criminal Appeals Act provides for rights of appeal. Section 23, to which I will return in a moment, is headed "Rights of appeal of offender". Section 24 deals with the prosecutor's rights of appeal, and by s 24(2)(c), there is expressly conferred upon the prosecutor a right of appeal against "a decision ordering a permanent stay of proceedings". Section 25 deals with rights of appeal in circumstances where a person is acquitted of a charge on a count of unsoundness of mind, and s 26 deals with appeals against orders relating to a separate trial of charges joined in one indictment.

7. By process of elimination, it can be seen that s 23 is the only section which could potentially confer a right of appeal upon Muir in circumstances such as the present. Section 23 provides:

   "Rights of appeal of offender

   (1)An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

   (a)the conviction;

   (b)the sentence imposed on the offender or any order made as a result of the conviction;

   (c)a refusal to make an order that might be made as a result of the conviction.

   (2)An offender convicted by a court of summary jurisdiction and sentenced by a superior court may appeal to the Court of Appeal against any or all of the following decisions -

   (a)the conviction;

   (b)the sentence imposed on the person or any order made as a result of the conviction;

   (c)a refusal to make an order that might be made as a result of the conviction."

8. It can be seen that s 23 applies only to offenders convicted of an offence on indictment. It confers no right to appeal in relation to decisions prior to conviction. So far as the question of a stay is concerned, it is to be contrasted with the express provision in s 24 which confers a right of appeal in relation to the order of a stay upon the prosecutor. One can see why that might be so; the grant of a stay brings the criminal proceedings to an end, while a refusal of a stay does not. The conferral of such a right upon the prosecutor, but not upon an accused person, is plainly deliberate.

9. Confirming the conclusion which would in any event appear to flow from the clear meaning of the words used in Pt 3 of the Criminal Appeals Act, is the explanatory memorandum relating to the Act, which notes that s 23 was based upon the former s 688 of the Criminal Code (WA). That section had been interpreted in the way in which I have described in Duke. 

10. It followed, that the purported appeal by the accused from the refusal of a stay was incompetent, and that leave should not be granted.