Nash v Director of Public Prosecutions (WA) - [2023] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NASH -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2023] WASCA 75
CORAM:   QUINLAN CJ
MAZZA JA
HALL JA

HEARD:   8 MAY 2023
DELIVERED          :   8 MAY 2023
FILE NO:   CACR 105 of 2022
BETWEEN:   MARK STEPHEN NASH
Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

Catchwords:

Criminal law – Appeal against conviction – Breach of bail – Summary trial by judge of the Supreme Court – Whether requirement for trial by jury – Whether criminal appeal may be transferred to the Supreme Court of another State – Whether miscarriage of justice – Whether in the interests of justice to admit additional evidence on appeal

Legislation:

Criminal Code (WA), s 338B(b)
Jurisdiction of Courts (Cross–vesting) Act 1987 (WA)
Surveillance Devices Act 1998 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

King v Nash [2022] WASC 102
Nash v Director of Public Prosecutions (WA) [2021] WASC 313

(This judgment was delivered extemporaneously on 8 May 2023 and has been edited from the transcript.)

QUINLAN CJ:

On 30 March 2022, the appellant, Mark Stephen Nash, was convicted by McGrath J of one charge that on 17 September 2021, without reasonable cause, he failed to appear at the Supreme Court Stirling Gardens Courthouse and failed to appear as soon as practicable thereafter, with such appearance being a requirement of a bail undertaking entered into by him, contrary to s 51(2) of the Bail Act 1982 (WA). He was fined $1,800.
The learned trial judge gave written reasons for finding Mr Nash guilty of the charge: King v Nash [2022] WASC 102 (trial reasons). It is not necessary to repeat his Honour's findings or his reasons. It suffices to note that the conviction related to Mr Nash's failure to attend, in accordance with his bail undertaking, the delivery of the decision in appeals to the General Division of this Court in Nash v Director of Public Prosecutions (WA) [2021] WASC 313 (appeal decision).
The appeal decision concerned Mr Nash's appeals against conviction and sentence for four counts of using an optical recording device to visually record a private activity to which he is not a party contrary to s 6(1)(a) of the Surveillance Devices Act 1998 (WA) and one count of threat to unlawfully distribute an intimate image contrary to s 338B(b) of the Criminal Code (WA) (the surveillance and threat convictions). Mr Nash had been sentenced to a total effective sentence of 8 months immediate imprisonment for the surveillance and threat convictions, and was on bail pending the appeal decision.
On 17 September 2021, Curthoys J dismissed the appeals against conviction and sentence for the surveillance and threat convictions. The charge tried by McGrath J arose from Mr Nash's failure to appear before the Court on that day, or as soon as practicable thereafter.
Mr Nash did appear at the trial before McGrath J. Indeed, he gave evidence and was cross‑examined. In the course of that cross‑examination Mr Nash accepted that he was aware that 'according to my bail' he was required to attend Court on 17 September 2021 and that he did attend the courthouse but left before the proceedings before Curthoys J were called. The learned trial judge concluded:[1]
The accused's contention that he answered his bail undertaking by turning up at the Supreme Court Stirling Gardens Courthouse and then leaving is misconceived. The accused was required to attend the court hearing before Curthoys J in the courtroom at the Supreme Court Stirling Gardens Courthouse. Entering a courthouse and then leaving before the hearing commences does not satisfy the requirement that an accused has appeared in answering his bail. I am satisfied beyond a reasonable doubt that the accused was subject to a bail requirement to attend court on 17 September 2021 and that the accused did not attend the court hearing before Curthoys J and thereby has failed to appear pursuant to his bail undertaking.
[1] Trial reasons [67] (McGrath J).
Mr Nash now seeks leave to appeal the conviction for breach of bail. The appeal was lodged well out of time, on 14 October 2022. Mr Nash requires an extension of time within which to appeal.
In addition to the notice of appeal, Mr Nash lodged a number of applications in the appeal. They are:
(a)an application dated 25 November 2022 to adduce additional evidence in the appeal;
(b)an application dated 11 December 2022 to adduce additional evidence in the appeal;
(c)an application dated 11 April 2023 with an affidavit in support seeking to transfer the appeal to the Supreme Court of New South Wales (Court of Appeal) under the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (Cross‑vesting Act); and
(d)an application dated 5 May 2023 seeking to amend the grounds of appeal and to adduce additional evidence in the appeal also accompanied by an affidavit annexing various documents.
In addition, Mr Nash forwarded various documents to the Court, which were not accepted for filing, as they were not supported by an application or affidavit. I have considered those documents, in case they shed any light on the complaints sought to be agitated by Mr Nash.
Mr Nash is unrepresented. He prepared the appellant's case himself, although it appears that he may have had some assistance with later submissions (including, perhaps, from an artificial intelligence program such as Chat GPT). Neither form of submission made coherent submissions as to why the trial judge's decision was affected by material error or otherwise gave rise to a miscarriage of justice. Nor did the material sought to be adduced by Mr Nash as additional evidence on the appeal disclose any miscarriage of justice.
Before briefly addressing the grounds of appeal, I first record that at the hearing of the appeal today, the Court dismissed the application dated 11 April 2023 to transfer the appeal to the Supreme Court of New South Wales (Court of Appeal). There was no merit in the application. First, there is no jurisdiction to transfer criminal proceedings. The Cross‑vesting Act expressly excludes criminal matters. There is otherwise no jurisdictional basis to transfer criminal proceedings under State law in this Court to the court of another State. The authorities cited by Mr Nash in support of such jurisdiction do not exist; they are fictitious. Secondly, and in any event, the bases cited for transferring the proceedings (including corruption, apprehension of bias and conflict of interest) are entirely unsupported by the evidence and without substance. They entirely rested on what Mr Nash described at the hearing of the appeal as his own 'perspective' and 'opinion', rather than objective evidence.
As to the appeal itself the appellant's case identified four grounds. They may be briefly dealt with.
Ground 1 alleges a substantial miscarriage of justice variously alleging an 'abuse of process' and that documents are 'varied and misleading'. The 'particulars' to the ground, and the submissions in support of it, are either irrelevant to the proceedings before McGrath J or are, on their face, fanciful. In particular:
(a)ground 1.2 alleges that on two earlier appearances on the breach of bail proceedings before Curthoys J on 9 December 2021 and 27 January 2022, respectively, some other person was 'impersonating Judge Curthoys'. Needless to say, none of the additional evidence sought to be adduced in this Court came close to supporting such a preposterous submission;
(b)ground 1.3 alleges that the signature of Curthoys J 'in the Appeals' do not match those of the 'real' signature of Curthoys J. Again, the proposition is fanciful and, in any event, irrelevant to the conviction entered by McGrath J;
(c)ground 1.4 appears to make some unspecified complaint about the proceedings before the Chief Magistrate leading to the surveillance and threat convictions. The appeals against those convictions were dismissed. Those complaints are irrelevant to the breach of bail charge;
(d)ground 1.5 likewise appears to complain that counsel who initially represented Mr Nash before the Chief Magistrate on the surveillance and threat charges, 'allowed my plea to be entered in' the Magistrates Court. This appears to be a reference to Mr Nash having pleaded guilty to the offence contrary to s 338B(b) of the Criminal Code, which while a crime, is able to be tried summarily. That complaint, if it had any validity (which it does not) would be relevant to an appeal from the surveillance and threat convictions. It is irrelevant to the breach of bail charge; and
(e)ground 1.6 makes essentially the same complaint, in relation to the Chief Magistrate, as that made in relation to Mr Nash's own counsel in ground 1.5. It is equally misconceived.
Ground 2 alleges that McGrath J failed to exclude evidence that was obtained unlawfully, namely body worn footage from the police officers who arrested Mr Nash on 27 September 2021, pursuant to an arrest warrant issued by this Court. The learned trial judge dealt with the allegation that the footage was unlawfully obtained. His Honour rejected that allegation. For the reasons his Honour gave,[2] which I need not repeat, his Honour was correct to do so.
[2] Trial reasons [33] ‑ [36] (McGrath J).
There is an additional reason for rejecting Mr Nash's submissions, in this context, that he was required to be shown the arrest warrant at the time of his arrest, namely Criminal Investigation Act 2006 (WA), s 144(1), which provides that:
If a police officer reasonably suspects that a warrant has been issued for the arrest or imprisonment of a person, the officer may arrest the person even though the officer does not have the warrant at the time.
Ground 3 alleges that McGrath J erred by proceeding to trial of the breach of bail charge without a jury. That complaint is misconceived. The Bail Act provides, in s 52, that where the accused was bound to appear before the General Division of the Supreme Court, a breach of bail shall be dealt with 'summarily' before a judge of the Supreme Court. Section 52(4) confirms that, in such a case, the prosecution of the charge is to be conducted 'as if it were a prosecution of a simple offence in a court of summary jurisdiction'.
Ground 4 variously alleges that there is 'fresh evidence' relevant to the appeal. Mr Nash refers to four matters, namely:
(a)in ground 4.1, an allegation that body worn camera footage of officers during a different arrest (on 6 August 2021) show an indication of 'tampering'. Precisely what that means, or what it might establish is not clear from Mr Nash's submissions. In any event, the allegation is irrelevant to the breach of bail charge. For completeness, I note that an analysis of 'wavelengths' from that body worn camera footage was also contained in the affidavit sought to be adduced by the application in the appeal dated 5 May 2023 and other documents forwarded to the Court today, including an expert report as to body worn camera footage from 2 July 2020 and 6 August 2021. They were equally irrelevant and suggested no error or miscarriage of justice in the conviction for breach of bail;
(b)in ground 4.2, an allegation that the audio recording of the appeals on 17 September 2021 show signs of 'tampering'. 'To what end?', is again unclear. There is no suggestion that the recording of that hearing could have in any way affected the findings made by McGrath J referred to above as to Mr Nash's failure to appear in answer to his bail on that day;
(c)in ground 4.3, an allegation that the police made 'false allegations of not reporting subject to bail'. It is apparent that Mr Nash was referring here to comments made by the prosecutor in relation to Mr Nash's reporting to police pursuant to the continuing bail granted during the proceeding before McGrath J. They do not concern the conviction entered by his Honour and are irrelevant to this appeal; and
(d)in ground 4.4, Mr Nash refers to an automated message that he says that he received on 27 September 2021 as to an appearance in the Magistrates Court on 29 September 2021. Such a message could not reasonably be described as 'fresh' and, in any event, Mr Nash's submissions do not identify how it could be relevant to this appeal. It is not.

The ground of appeal sought to be introduced by the application in the appeal dated 5 May 2023 simply reads 'Entrapment'. It adds nothing to the other grounds. At the hearing of the appeal, Mr Nash referred to having been 'entrapped and gaslighted' in relation to his failure to appear on 17 September 2021. That assertion was inconsistent with Mr Nash's own evidence at trial that when he attended the courthouse on 17 September 2021, he saw his matter on the board of the Court and then walked out of his own accord before 11.00 am.[3]
[3] BAB 133 ‑ 134.
None of the material contained in Mr Nash's affidavits or other documents that he seeks to be adduced as additional evidence in the appeal arguably support any error on the part of the learned trial judge or otherwise support Mr Nash's contention that there has been a miscarriage of justice in his conviction for breach of bail. It is not in the interests of justice to admit that material as additional evidence in the appeal.
For these reasons, I would make the following orders:
(a)the application in the appeal dated 25 November 2022 to adduce additional evidence in the appeal is refused;
(b)the application in the appeal dated 11 December 2022 to adduce additional evidence in the appeal is refused;
(c)the application in the appeal dated 5 May 2023 seeking to amend the grounds of appeal and to adduce additional evidence in the appeal is refused;
(d)the application for an extension of time is refused;
(e)leave to appeal on grounds of appeal 1 to 4 is refused;
(f)the appeal is dismissed.

MAZZA JA:

I agree with the reasons given by the Chief Justice and orders he proposes.

HALL JA:

I also agree with the reasons of the Chief Justice and the proposed orders.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Honourable Chief Justice Peter Quinlan
8 MAY 2023