Nafranec v Nicol
[2013] WASCA 123
•17 MAY 2013
NAFRANEC -v- NICOL [2013] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 123 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:277/2012 | 7 MAY 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 17/05/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALISON GAIL NAFRANEC DUNCAN NICOL JACEK JERZY TECZAR |
Catchwords: | Criminal law Application for leave to appeal against conviction Interruptions by magistrate Cumulative effect of magistrate's conduct Whether unfair trial Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 18 Criminal Code (WA), s 378(6), s 409 |
Case References: | Nafranec v Nicol [2012] WASC 436 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NAFRANEC -v- NICOL [2013] WASCA 123 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
DUNCAN NICOL
JACEK JERZY TECZAR
Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
Citation : NAFRANEC -v- NICOL [2012] WASC 436
File No : SJA 1040 of 2012
(Page 2)
Catchwords:
Criminal law - Application for leave to appeal against conviction - Interruptions by magistrate - Cumulative effect of magistrate's conduct - Whether unfair trial - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18
Criminal Code (WA), s 378(6), s 409
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondents : No appearance
Solicitors:
Appellant : LMB Barristers & Solicitors
Respondents : No appearance
Case(s) referred to in judgment(s):
Nafranec v Nicol [2012] WASC 436
(Page 3)
1 McLURE P: This is an application for leave to appeal against the decision of Hall J refusing an extension of time to appeal against conviction and dismissing the appeal: Nafranec v Nicol [2012] WASC 436.
2 On 20 December 2011 the appellant was convicted of 10 offences of stealing as a servant contrary to s 378(6) of the Criminal Code (WA) (the Code) and one offence of dishonestly obtaining a financial advantage contrary to s 409 of the Code. Those convictions followed a two-day trial in the Magistrates Court.
3 The sole ground of appeal below was that 'the hearing was unfair because of the learned magistrate's constant interventions and a miscarriage of justice has resulted'. Although the ground did not identify the interventions complained of by reference to the approximately 200 pages of transcript, the appellant's written submissions included a schedule identifying the passages relied on. Hall J refused an extension of time to appeal because he was not satisfied that any miscarriage of justice had occurred.
4 The ground of appeal to this court is in terms that 'there was a miscarriage of justice when the learned Judge determined the appellant did receive a fair trial at the initial summary hearing'. The particulars are to the effect that Hall J should have found that (1) the magistrate's frequent interruptions as to the relevance of questions did affect the fairness of the trial; (2) the magistrate's interruptions did assist the prosecution; (3) defence counsel was prevented from pursuing the defence case by frequently being cut off by the magistrate; and (4) the collective detrimental effect of the magistrate's interruptions prevented the appellant receiving a fair hearing.
5 The appellant requires leave to appeal to this Court: Criminal Appeals Act 2004 (WA), s 9, s 18.
6 Hall J gave detailed consideration to all of the interventions on which the appellant applied, analysing their content, context, meaning and effect. He correctly identified the relevant legal principles and concluded:
The number and length of passages … may give the impression that there were significant interruptions during the course of this trial. In fact … the trial was a comparatively long one by the standards of the Magistrates Court. It proceeded over two days and a large number of witnesses were called. There were a significant number of charges and the evidence was relatively detailed and complex. In these circumstances, it would be
(Page 4)
- expected that there may be some interruptions from the magistrate, particularly where it was necessary to clarify evidence.
The passages referred to … are not the only ones where the magistrate spoke. There were many others to which no exception was taken. The appellant did not suggest that the tone or behaviour of the magistrate was in issue. The only matters relied upon were the contents of the transcript passages.
Neither individually nor together do the passages represent such a significant interference in the normal conduct of the trial as to render it unfair. The suggestions that the appellant was denied an opportunity to properly present her case are without foundation … defence counsel at the trial was a senior and very experienced criminal lawyer. To the extent that on occasions his questions were interrupted and the magistrate may have expressed some irritation, particularly regarding leading questions, there is nothing to suggest that counsel was intimidated or deterred from putting all matters that he wished to put on behalf of his client [102] - [104].
7 The correctness of Hall J's conclusions is borne out by a consideration of the trial transcript.
8 At one stage in the course of the leave hearing, counsel for the appellant flirted with the proposition that the tone used by the magistrate may be relevant. However, it emerged that counsel had not listened to the recording and was not suggesting that this court should do so.
9 There was also a suggestion that Hall J had failed to consider the cumulative effect of the conduct of the magistrate as a whole. That proposition is contradicted in the above extract (see [104]). Further, Hall J expressly acknowledged that the appellant relied upon the cumulative effect of the interruptions, which when viewed individually may not be considered unfair but have a different complexion when viewed in totality [8].
10 The ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed.
11 BUSS JA: I agree with McLure P.
12 MAZZA JA: I agree with McLure P.