Newton v The State of Western Australia
[2023] WASCA 116
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEWTON -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 116
CORAM: BUSS P
HALL JA
MORRISON AJA
HEARD: 4 MAY 2023
DELIVERED : 28 JULY 2023
FILE NO/S: CACR 58 of 2022
BETWEEN: QUINN PAUL NEWTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : INS 26 of 2020
Catchwords:
Criminal law - Appeal against conviction - Drug dealing offence - Appellant filed a discontinuance notice - Whether certificate of final outcome should be set aside on the ground that the discontinuance notice was a nullity - Whether the court should exercise its discretion to set aside the discontinuance notice if the notice was not a nullity
Legislation:
Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application to set aside certificate of final outcome and withdraw notice of discontinuance dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Huggins v The State of Western Australia [2018] WASCA 61
KAN v The State of Western Australia [2021] WASCA 182
JUDGMENT OF THE COURT:
On 28 March 2022 the appellant was convicted, after a trial, of the offence of attempting to supply a trafficable quantity of methylamphetamine contrary to the Misuse of Drugs Act 1981 (WA).
At the same trial the appellant's co-offender, Mr Gray, was convicted of the same offence, and a second co‑offender, Mr Maksimovic, was also convicted of attempting to possess a trafficable quantity of methylamphetamine, with intent to sell or supply it to another.
Each offence arose out of the same set of circumstances, concerning the importation by the appellant and Mr Gray of about 56 kg of methylamphetamine into Western Australia.
On 5 July 2022 the appellant filed an appeal notice challenging his conviction. That appeal advanced one ground, namely that a miscarriage of justice was caused by the joinder of the charges against the appellant with that against Mr Maksimovic.
The process of the appeal took a somewhat halting path. The following is a summary of the essential steps leading to the present time:
(a)the appellant's case was due to be filed on 31 August 2022; that was not done and the matter was listed for directions before Mazza JA on 14 September 2022;
(b)shortly prior to that hearing the appellant indicated that he had applied for a grant of legal aid; as a consequence the hearing was vacated and re‑listed for 19 October 2022;
(c)at the hearing on 19 October 2022, the appellant requested, and was granted, an adjournment to permit his intended counsel the opportunity of reviewing the trial material; the matter was adjourned to 22 November 2022;
(d)on 22 November 2022, Mazza JA granted the appellant an extension of time within which to file and serve the appellant's case; a springing order was made, extending time to file the appellant's case 'to 4.00 pm on 15 February 2023, failing which the appeal [would be] dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules2005 (WA)';
(e)after having made the springing order, Mazza JA stated:
So, Mr Newton, you know what you have to do. You've got a strict deadline. You need to tell your lawyer that a springing order has been made so that your lawyer understands what's happening. He will understand the language of springing order, so I think it's very clear that if you don't comply then your appeal will be dismissed.
(f)on 13 February 2023, the appellant filed a notice of discontinuance;[1] and
(g)on 14 February 2023, a certificate of conclusion of criminal appeal was issued by the Registrar.
[1] The notice is dated 13 February 2022 but that was plainly an error. It was signed and filed on 13 February 2023.
The following day, 15 February 2023, the appellant filed an application seeking that 'the springing order to be suspended pending an urgent hearing'. An affidavit was filed in support of that application in which the appellant deposed:
1.I have until 15 February 2023 to file my appellant's case.
2.I have applied for Legal Aid. The matter is pending a review and should be before the Review Committee on 21 March 2023.
3.I request the springing order be suspended pending an urgent hearing to request an extension of time in which to file my appellant's case.
4.I request the extension be until at least 21 March 2023 to allow for a decision to be made by Legal Aid as to whether I will be granted aid.
5.I filed a discontinuance yesterday as I panicked that I would not get my paperwork submitted in time.
6.I would like to continue with my appeal.
According to the appellant, someone from Legal Aid had a teleconference with him, advised that he should bring an application 'for an urgent hearing for an extension of time', and assisted in drawing the affidavit above.[2]
[2] Affidavit filed 31 March 2023, paragraphs [22] - [25].
Various orders have been made since to bring that application to a final hearing.
In the meantime, the appellant filed a document entitled 'Appellant's proposed grounds'. New grounds of appeal were added, so that the grounds advanced were, in summary:
(a)Ground 1 - there was a miscarriage of justice by the joinder of the charge against Mr Maksimovic on the same indictment as the charge against the appellant;
(b)Ground 2 - counsel for the appellant was 'ineffective', causing a miscarriage of justice; this was particularised as being:
(i)counsel did not know the law; counsel failed in an attempt to make a second opening address to the jury;
(ii)counsel did not attend an appointment as agreed with the appellant;
(iii)the appellant was not advised on the defence;
(iv)the jury were misled by counsel's confusing examination of the appellant;
(v)counsel failed to re‑examine the appellant and cure any mistakes; and
(vi)counsel did not argue for severance of the indictment;
(c)Ground 3 - a transcript of telephone conversations involving the appellant was provided to the jury; it was a false transcription, inadmissible and prejudicial to the appellant; the jury accepted the transcript and not the appellant, causing a miscarriage of justice.
The appellant also filed a document entitled 'Appellant's proposed submissions'. That repeated the terms of Grounds 1 and 2 and expanded on Ground 3 (as to the transcript of telephone conversations).
The notice of discontinuance
The circumstances surrounding the filing of the notice of discontinuance need to be addressed in some greater detail.
The appellant filed an affidavit[3] in which he deposed in summary:
[3] 31 March 2023.
(a)the appellant's case was to be filed by 15 February 2023; failure to do so would result in the appeal being dismissed;[4]
(b)the appellant had made oral submissions on a previous occasion[5] stating that a lawyer 'had actually said to me that it might be best for me to withdraw [the] application and an application to reinstate could be made';[6]
(c)that advice was given by a named solicitor and communicated to the appellant by his partner, Ms Mitchell;[7]
(d)the decision of Legal Aid was still pending and the appellant, 'not knowing how long [the] review would take, relied upon what had been advised by [the solicitor]';[8]
(e)on 13 February 2023, the appellant attempted to file the discontinuance notice but the Supreme Court 'did not accept [it] for filing as the incorrect form had been used';[9]
(f)on the afternoon of 13 February 2023, the appellant was provided with 'an updated Form 16 that had been provided by the Supreme Court of Appeal';[10]
(g)the appellant 'did not have the necessary eyewear to view the details of [the] document, particularly the updated word forms';[11]
(h)the appellant asked for the help of a staff member at the prison where he was being held 'to guide him where to sign and date the document' before sending it by email to the Supreme Court;[12] and
(i)the appellant 'returned to the [prison] compound and viewed the details of [the] updated Form 16'.[13]
[4] Paragraphs [4] - [5].
[5] A hearing on 16 March 2023.
[6] Paragraph [9].
[7] Paragraph [10].
[8] Paragraph [13].
[9] Paragraphs [14] ‑ [15].
[10] Paragraph [16].
[11] Paragraph [18].
[12] Paragraph [19].
[13] Paragraph [20].
Ms Mitchell swore a statutory declaration[14] advising that the solicitor had told her 'the best thing to do would be to withdraw the intention to appeal as it would give us time to review and investigate our options'.
[14] Filed 31 March 2023.
The actual communications between Ms Mitchell and the solicitor are in evidence.[15] They reveal that the solicitor was told of the appellant's desire to appeal his conviction and she responded that the indictment, trial transcripts and other matters would need to be reviewed before advice could be given. Confusing information was then given to the solicitor about the nature of a forthcoming hearing, causing the solicitor to ask for more information about 'what proceedings were on foot'. The solicitor was told that the proceedings were for 'a review of [the appellant's] option to appeal', and a postponement was being sought so 'we have additional time to engage a lawyer and move forward with the appeal process'. That resulted in an email on 7 September 2022, from the solicitor stating:
I'm not prepared to seek an adjournment until an opinion has been prepared.
I would encourage Mr Quinn to withdraw his application whilst an opinion is prepared. It may be out of time but an extension of time application can be filed to explain any delay.
[15] Affidavit of Ms Beggs, filed 6 April 2023; Exhibit R2.
On 13 February 2023, the appellant signed two forms of notice of discontinuance. The first[16] was in the form of a notice of discontinuance before the amended Form 16 was adopted in June 2022. It was not accepted by the court for filing as the form was incorrect. On its face, the body of that document only contains one area under the heading 'Notice'. Otherwise, the document deals with the parties to the appeal and matters such as an address for service.
[16] Exhibit R1.
By contrast, the amended Form 16, signed by the appellant on the afternoon of 13 February 2023, contains an additional panel headed 'Acknowledgment of appellant', stating that by the notice the appeal would be brought to an end, and unable to be continued or reinstated. The additional words are obvious on the face of the document.
The appellant gave evidence during the hearing before this court and was cross-examined. The relevant points to emerge were:
(a)as at 13 February 2023, he was well aware that the effect of the springing order was that if it was not complied with it would automatically bring the appeal to an end;[17]
(b)as at 13 February 2023, he knew that he could not meet the deadline under the springing order and that the appeal would be dismissed;[18]
(c)it was this realisation that made him 'panic';[19]
(d)he was also well aware that he could write or apply to the court for an extension of time, or make an appearance to do so, and he had previously used all three methods;[20]
(e)when he signed the first discontinuance notice he wrote all the handwritten parts on it, including the CACR number, his name, and his name and address in the section for inserting an address for service;[21] he did not say he did not have his glasses when he signed this document;
(f)later that day he signed the second notice of discontinuance but said he did not have his glasses with him at that time and could not read the words on the document; nonetheless, he added all the handwritten parts on that document, including the CACR number, the parties, his signature and the date; all of those were written in their correct spaces, and neatly on the correct lines; he could see the lines on which entries had to be made;[22]
(g)having signed the second notice the appellant went to the prison office and arranged for the second notice to be sent to the Court of Appeal Office by email;[23] he then left the prison office and returned to his cell with his own copy of the notice just signed; with his glasses on he read the contents of the notice, and understood the effect of the words to be that he was acknowledging that the appeal was at an end and could not be revived;[24]
(h)he took no further step in relation to the second notice until he filed the application on 15 February 2023, which sought to suspend the springing order;
(i)he said he had been advised that a withdrawal of his appeal would gain more time (which he needed in order to file his appellant's case) and believed that a discontinuance was the same as a withdrawal of his appeal; when he signed the notice of discontinuance he was acting on the advice given via his partner, namely to withdraw the appeal to gain time;[25] and
(j)he signed the discontinuance form in order to try and avoid the impact of the springing order.[26]
[17] ts 33 - 34, 54.
[18] ts 54.
[19] ts 47.
[20] ts 43 - 46.
[21] ts 38.
[22] ts 38 - 39, 54 - 55.
[23] Affidavit filed 31 March 2023, paragraph [19].
[24] ts 56.
[25] ts 32, 35, 47 - 48, 50, 54.
[26] ts 54.
In his evidence and later oral address the appellant conceded a number of matters:
(a)at the time he signed the second notice of discontinuance he believed that if he ended the appeal by withdrawing it or by filing the notice of discontinuance he could reinstate the appeal later;
(b)he thought a discontinuance was 'just part of … the resource I had to withdraw to do what I recalled there's legal advice to do – just to pull it back';
(c)when he signed the second form he appreciated that there was something different about that form compared to the first one;
(d)when he signed the second form he absolutely 'would have reacted on the spot had [he]' seen the difference in the form;
(e)when he filed the application on 15 February 2023, he did not try to withdraw the form; and
(f)by the time he filed his affidavit in support of the 15 February 2023 application he knew that the notice of discontinuance had brought the appeal to an end.
Effect of the application to suspend the springing order
The springing order was made on 22 November 2022 in these terms:
The time for the appellant to file and serve his appellant's case is hereby extended to 4.00 pm on 15 February 2023, failing which the appeal is dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
The court has power under O 3 r 5 of the Rules of the Supreme Court 1971 (WA) to extend the time for compliance with a springing order, even though the time for compliance has passed, whether or not the proceedings are pending. By r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), those rules must be read with the Rules of the Supreme Court 1971. So, if the appellant had not filed the second notice of discontinuance, the appellant could have made an application to the court for an extension of the time specified in the springing order made on 22 November 2022, even if the time specified had passed and the appeal had been dismissed for non‑compliance with the order. See FAI General Insurance Company Limited v Southern Cross Exploration NL.[27] See also A v C [No 2].[28]
[27] FAI General Insurance Company Limited v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 286.
[28] A v C [No 2] [2015] WASCA 199 [1] ‑ [4].
Practice Direction 1.2.2 relevantly provides in relation to the filing of documents by email:
(a)A document presented for filing by email will not be accepted as filed unless it complies with the Supreme Court (Court of Appeal) Rules 2005, any relevant provision of those rules and Practice Direction 1.2.2. The Court of Appeal Office will advise the sender if the document is not accepted for filing for any reason (par 82).
(b)A document presented for filing by email is to be taken to have been received at the Court of Appeal Office:
(i)if it is received before 4.00 pm on a working day, on that day; or
(ii)otherwise, on the next working day (par 84).
(c)The date of filing is the date the document is accepted for filing, not necessarily the date of receipt by email. Where a document meets the requirements of Practice Direction 1.2.2 and has been accepted for filing under par 82, the date of filing will be the same as the date the document is taken to have been received under par 84 (par 85).
Rule 59 of the Supreme Court (Court of Appeal) Rules 2005 provides, relevantly, in relation to the discontinuing of an appeal:
(a)The appellant may discontinue an appeal by filing and serving a Form 16 (r 59(1)).
(b)If the appeal is a criminal appeal, the Form 16 must be signed by both the appellant and a legal practitioner (if any) acting for the appellant (r 59(1A)).
(c)Subject to r 59(2), which is irrelevant in the present case, the appeal is deemed to be dismissed on filing a Form 16 (r 59(1B)).
The appellant's second notice of discontinuance was received by the Court of Appeal Office before 4.00 pm on 13 February 2023, that day being a working day. The second notice was therefore received at the Court of Appeal Office on 13 February 2023. That was the date of filing of the second notice.
Consequently, pursuant to r 59(2), the appellant's appeal was deemed to be dismissed on 13 February 2023, being the date of filing of the second notice of discontinuance.
Rule 62 of the Supreme Court (Court of Appeal) Rules 2005 provides, relevantly, in relation to a certificate of conclusion of criminal appeal:
(a)When a criminal appeal is concluded, a registrar must issue a Form 17, which is headed 'Certificate of conclusion of criminal appeal' (r 62(2)).
(b)The Form 17 is the formal record of the Court of Appeal and forms part of the Supreme Court's record (r 62(3)).
On 14 February 2023, the Registrar issued a certificate of conclusion of criminal appeal in respect of the appellant's appeal.
On 15 February 2023, the appellant filed the application 'for the springing order to be suspended'.
However, as at 15 February 2023, there was no operative order that could be the subject of the appellant's application 'for the springing order to be suspended', because the appeal had been dismissed on 13 February 2023. The basis of such an application is misconceived and it amounts to an abuse of process.
The appellant seems to accept that to be the case. In his affidavit filed on 31 March 2023, he refers to the oral submissions made by him at a directions hearing on 16 March 2023, which 'were in support of an application for leave to set aside the Discontinuance Notice and to continue with the appeal'.[29]
[29] Affidavit filed 31 March 2023, paragraph [3].
The second notice of discontinuance having been filed and the certificate of conclusion of criminal appeal having been issued, the appellant must have the second notice of discontinuance and the certificate set aside in order to succeed in reinstating the appeal. The respondent contends that any application to do so would have to be on the grounds that the second notice of discontinuance was a nullity, or by persuading the court to exercise its discretion pursuant to s 40(1)(l) of the Criminal Appeals Act 2004 (WA).
In our respectful view, that characterisation is correct.
The principles concerning withdrawal of a notice of discontinuance, whether as a nullity or in the exercise of discretion in s 40(1)(l), were set out by this court in KAN v The State of Western Australia.[30] There the court said that:
[30] KAN v The State of Western Australia [2021] WASCA 182, [31] ‑ [39].
31.It is established that this court may permit the withdrawal of a discontinuance notice that is a nullity or, where the notice is not a nullity, in the exercise of its discretionary power pursuant to s 40(1)(l) of the Criminal Appeals Act 2004(WA) (CAA). In Shah v The Queen, this court distilled the following principles from its earlier decision in Ponnambalam v The State of Western Australia:
(1)An appeal is solely a creature of statute. Save for limited exceptions (which were inapplicable in Ponnambalam and to the present case), there is nothing in the text, context or purpose of the CAA which provides this court with power to re-open an appeal in which the merits were considered and determined and the order of the court, pursuant to that determination, has been perfected.
(2)The CAA provides for but one appeal (with leave) and an appellant is not entitled to commence multiple appeals from the same decision.
(3)Prior to the commencement of the CAA (and the [Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules)]), under the former legislative regimes applicable to criminal appeals, where an appellant filed a notice of abandonment or a notice of discontinuance, an appeal was deemed or taken to be dismissed.
(4)Under the current legislative regime, r 59 of the Rules permits an appellant to discontinue an appeal by filing and serving a form 16 (a discontinuance notice). Rule 62 of the Rules provides that, when an appeal is concluded, the registrar must issue a certificate of conclusion (form 17) which is the formal record of the Court of Appeal and forms part of the record of the Supreme Court. The term 'concluded' is defined in the Rules to mean, in a Court of Appeal matter, 'decided, dismissed or discontinued'. In contrast to the previous legislative regime, there is no express provision in the CAA or the Rules which provides that the filing of a discontinuance notice is a deemed dismissal of the appeal.
(5)Under the previous legislative regimes, this court's predecessor, the Court of Criminal Appeal, in Bridges v The Queen, following the decision of the Court of Appeal of England and Wales in R v Medway, recognised that it had the power to grant leave to withdraw a notice of abandonment if satisfied that it was a nullity, but rejected the existence of a discretion to allow a notice of abandonment to be withdrawn.
(6)A notice of abandonment was a nullity if the abandonment was not as a result of a deliberate and informed decision by the appellant.
(7)It is, at least, implicit from the reasons in Ponnambalam that the nullity doctrine which existed under the previous legislative regimes remains under the CAA and the Rules.
(8)Further, in the absence of a provision in the CAA or the Rules to the effect that a discontinued appeal is taken to have been dismissed and where:
(a) the discontinuance notice is not a nullity;
(b)there has been no determination of the appeal on the merits; and
(c)the appeal has been concluded by the appellant filing the discontinuance notice and not by court order,
this court has the discretionary power to permit the withdrawal of the discontinuance notice in an appeal by reason of s 40(1)(l) of the CAA, which allows this court to exercise any power that the Supreme Court may exercise in a civil case. In Ponnambalam, the [c]ourt noted that the Supreme Court has the power to permit a plaintiff in a civil action, at first instance, to withdraw a notice of discontinuance, there having been no determination on the merits.
(9)The exercise of the discretionary power to permit an appellant to withdraw a discontinuance notice is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must be taken into account. Further, the merits of the appeal will always be relevant and often determinative. If there has been a significant delay after the discontinuance, the appellant must establish that a miscarriage of justice would occur if the applicant was not permitted to withdraw the discontinuance notice.
(citations omitted)
32.The court in Shah also referred to the following summary of Ipp J in Bridges v The Queen:
To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.
33.In Shah, the court also noted:
As is illustrated by the decision of the court in Johnson v The Queen (one of the cases to which Ipp J referred), an appellant may misunderstand the nature or effect of a discontinuance notice for these purposes when he or she signs and files it under the misapprehension that there was a right to reinstate the appeal later.
In Bridges, Ipp J went on to explain that a notice of abandonment filed on the basis of legal advice as to the prospects of the appeal is not a nullity, even if that advice is mistaken.
34.The appellant in Shah filed a discontinuance notice in the belief that he could continue his appeal at a later date, once he had gathered together sufficient funds to instruct lawyers to act on his behalf. It did not appear that Mr Shah filed the discontinuance notice because he had been given legal advice or believed that his appeal against conviction was unlikely to succeed. He misapprehended the effect of the discontinuance notice in that he did not appreciate that, by filing the notice, his appeal against conviction was concluded and that he could not, by filing the notice, put a hold on his appeal or file the appeal notice again, when he had the money to afford legal representation. The court held that, by reason of that misunderstanding, the discontinuance notice was a nullity and did not have the legal effect of bringing the appeal to an end.
35.Similarly, the appellant in YNT was given leave to withdraw discontinuance notices on the basis that they were nullities, in circumstances where he instructed his solicitors to file the discontinuance notices intending to progress the appeals on his own and without appreciating that filing the notices would prevent him from doing so.
…
36.Counsel for the respondent submitted that there is an important distinction to be drawn between:
(1)a belief that the filing of a discontinuance notice suspends an appeal but does not bring the appeal to an end; and
(2)an understanding that a discontinuance notice brings an appeal to an end combined with a mistaken belief that there is a right to later institute a new appeal.
37In the former case, counsel accepts that the discontinuance notice is a nullity as the mind of the person did not go with the act because he or she did not understand the legal effect of filing a discontinuance notice. In the latter case, counsel submits that the discontinuance notice is not a nullity because the person properly understood the effect of the discontinuance notice. The mind of the person went with the act, even though they may have had a mistaken view about their other rights.
38We accept the above submissions. It is true that the distinction drawn may be regarded as fine. However, it flows from the juridical basis for the nullity doctrine, which is that:
[T]he court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the [appellant] did not go with his act of abandonment.
39If this conclusion is invited on the basis of a misunderstanding of the effect of a discontinuance notice, then regard must be had to the actual legal effect of a discontinuance notice. That legal effect is simply to conclude the appeal in which the discontinuance notice is filed. For a misunderstanding to lead to a conclusion that the discontinuance notice is a nullity, the misunderstanding must relate to that legal effect of the notice. A mistake as to rights which exist independently of the notice will not suffice.
(footnotes omitted)
Was the second notice of discontinuance a nullity?
As can be seen from the passages cited from KAN v The State of Western Australia, central to the proposition that a notice of discontinuance is a nullity, is the issue of whether it was executed by someone who did not intend to abandon the appeal or did not understand the legal nature or effect of the notice.
In our respectful view, for the reasons which follow, the appellant cannot establish that his steps in filing the second notice of discontinuance were not deliberate and intended or made under any relevant misapprehension about its legal nature or effect.
First, the appellant accepted that he signed the notice of discontinuance as a means of circumventing the springing order. Under that order the appeal would stand dismissed if the appellant's case was not filed by 15 February 2023. As the appellant knew, he had no chance of meeting that deadline.
Secondly, when the appellant signed the second notice of discontinuance he was aware that it would end the appeal and that the appeal could not subsequently be continued or reinstated. We reject the appellant's evidence that he could not read the words on the second notice without his glasses. We reject that evidence because the appellant admitted that he added all the handwritten parts on the second notice, including the CACR number, the parties, his signature and the date; all of that handwriting was written in the correct spaces, and neatly on the correct lines; and he could see the lines on which entries had to be made.[31] In those circumstances, and absent any expert evidence as to the condition of his eyesight, we are satisfied that the appellant's evidence that he could not read the words on the second notice without his glasses is highly implausible and is unable to be accepted. The appellant read and understood the import of the words in the acknowledgment on the second notice that the appeal was at an end and unable subsequently to be continued or reinstated.
[31] ts 38 ‑ 39, 54 ‑ 55.
Our conclusion that the appellant's evidence that he could not read the words of the second notice without his glasses should be rejected is reinforced by the appellant's failure to make any attempt to withdraw the second notice of discontinuance after he left the prison office where the second notice was sent to the Court of Appeal Office by email and returned to his cell with his own copy of the notice. On the appellant's evidence, he then put on his glasses and read the contents of the second notice.[32] The appellant accepted during his oral submissions that upon putting on his glasses and reading the contents he understood in effect that he was acknowledging that the appeal was at an end and could not be revived.[33] Notwithstanding the knowledge that the appellant, on his own admissions, had acquired by that time as to the legal nature and effect of the second notice, the appellant took no further step in relation to the second notice until he filed the application on 15 February 2023, which sought to suspend the springing order.
[32] ts 56.
[33] ts 62 ‑ 63.
Thirdly, the appellant's use of the discontinuance forms was in the context that:
(a)no-one had given any advice to do so;
(b)no-one had advised that doing so would be effective to achieve the ends he says he sought to achieve (i.e. withdrawing the appeal in a way that meant it could be revived);
(c)no such advice was given by the solicitor who corresponded with Ms Mitchell, nor the several lawyers to whom the appellant spoke with a view to securing representation on his appeal; if it matters, no evidence was adduced as to what, if anything, the self-represented litigants' kit (which was sent to the appellant by the Court of Appeal Office on 7 July 2022 and which the appellant acknowledged at the hearing that he had access to)[34] said on the matter; and
(d)he had not attempted to ask for a further extension of the time limit for filing the appellant's case; from his evidence it seems that this option did not enter into his consideration.
[34] ts 35.
Consequently, when the appellant decided that discontinuing the appeal was simply another way to achieve withdrawal of the appeal without prejudice to the prospect of reinstating it, that was a conclusion drawn on his own counsel.
In our view, that serves to demonstrate that the appellant's decision to sign and file the second notice of discontinuance was a deliberate or intentional one.
Fourthly, the appellant said in effect that he signed and filed the second notice of discontinuance 'as I panicked that I would not get my paperwork submitted in time'. That supports the conclusion that the signing and filing of the second notice of discontinuance was a deliberate or intentional step, albeit prompted by panic at not being able to meet the springing order.
This is not a case where the notice of discontinuance is a nullity.
Merits of the proposed grounds of appeal
The grant of leave to withdraw a notice of discontinuance is a matter for the discretion of the court. Relevant to that is the question of whether the proposed grounds of appeal are meritorious.[35] An examination of the proposed grounds of appeal does not lead to the conclusion that there are any reasonable prospects of success.
Ground 1 - miscarriage of justice by improper joinder
[35] KAN v The State of Western Australia [44].
This ground contends that there was a miscarriage of justice by the joinder of the charge concerning Mr Maksimovic on the same indictment as the appellant. Without reference to the evidence at trial the appellant contends that:
(a)nearly all of the evidence adduced in support of the charge relating to Mr Maksimovic was irrelevant to the charge concerning himself;
(b)the evidence concerning Mr Maksimovic was highly prejudicial to the appellant, and not able to be cured by direction; and
(c)as a result, the appellant did not receive a fair trial.
There are considerable difficulties confronting this ground. First, the charges against the appellant arose out of the same transaction as that for the charge against Mr Maksimovic. The appellant was charged with attempting to supply a trafficable quantity of methylamphetamine, namely about 56 kg imported into Western Australia by train. Mr Maksimovic was charged with attempting to possess a trafficable quantity of methylamphetamine with intent to sell or supply it to another. Each charge concerned the same 56 kg of methylamphetamine, imported into Western Australia by train. On the State's case the intended recipient of the drugs was a syndicate controlled by Mr Maksimovic. In those circumstances it is hardly surprising that the evidence in relation to one offender would be relevant to the charge against the other. As long as the jury understood that they had to consider each offence separately and by reference to the evidence relating to it, any potential prejudice would be guarded against adequately.
Secondly, no application was made to sever the indictment. It seems also that the risks of the charges being on the one indictment were not so evident to the trial judge that he intervened.
Thirdly, the jury were directed that the three accused[36] were being tried separately and the jury's obligation was to consider the case against each of them individually. No complaint was made as to those directions by the representatives of any of the accused.
Ground 2 - counsel's conduct of the trial
[36] The appellant, his co‑accused Mr Gray and Mr Maksimovic.
The separate parts of this ground are that:
(a)counsel was 'ineffective as they did not know the law'; this concerned defence counsel's failed attempt to give a second opening address immediately prior to the appellant giving evidence;
(b)counsel did not attend an appointment as agreed with the appellant;
(c)the appellant was not advised on the direction the defence would take;
(d)the jury were misled by counsel's confusing examination of the appellant;
(e)counsel failed to re‑examine the appellant, and failed to cure any mistakes during cross‑examination;
(f)counsel did not argue for severance of the indictment; it is asserted here that the appellant asked his counsel for advice regarding the joinder but counsel could not give competent advice in that regard; as a consequence the joinder of the charge resulted in an unfair trial.
The principles concerning an allegation that counsel's conduct occasioned a miscarriage of justice were outlined in Huggins v The State of Western Australia:[37]
[37] Huggins v The State of Western Australia [2018] WASCA 61, [375] ‑ [381].
375.It is necessary to commence with the basic but important point that incompetence of counsel is not, of itself, a ground of appeal. Rather, the relevant ground of appeal is that there was a miscarriage of justice.
376.An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.
377.In Nudd v The Queen, the court concluded that notwithstanding that counsel's conduct of the trial was incompetent to a serious degree and that some of that conduct could not be rationally justified, there was no miscarriage of justice. That illustrates the challenging character of a ground of appeal that asserts a miscarriage of justice arising through counsel's conduct of the trial.
378.Because the ground of appeal is that there was a miscarriage of justice, the focus of inquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged. So, generally at least, the question will not turn on the adjectival characterisation of competence, such as being 'flagrant' or, with some exceptions, to the reasons for an incompetent act or omission. The focus is on what happened or did not happen, not on why any error occurred.
379.Buss P has recently explained the objective character of the inquiry when an appellant asserts that counsel's conduct of the trial caused a miscarriage of justice:
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [107] (Hayne J, Gummow J agreeing).
…
381.In McMahon, McLure P (Buss JA and Mazza JA relevantly agreeing) said as follows:
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd[17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
(footnotes omitted)
There are substantive reasons to conclude that this proposed ground does not enjoy reasonable prospects of success.
First, the way in which the case was conducted does not support the appellant's assertion. After the case for the State was opened, the appellant's counsel made an opening address. During that address, counsel reminded the jury of the importance of keeping an open mind and not having a pre‑determined view. Counsel then indicated that much of the State's evidence would not be disputed, and that the defence case was that the appellant did not have the requisite knowledge or intention concerning the attempted possession of the drugs in the container.
At the close of the State's case, and prior to the appellant giving evidence, the appellant's senior counsel applied to make a further opening address to the jury. True it is, that senior counsel (who was from Victoria) did not appreciate that s 143(2) read with s 143(3) of the Criminal Procedure Act 2004 (WA) prevented having two openings, however, leave was pressed even in the face of that provision. The trial judge refused the application. There was no error in that approach and therefore no irregularity or unfairness can result.
Secondly, insofar as the appellant appears to suggest that the failure to make a second opening address contributed to his lack of awareness of the defence strategy and led to confusion and anxiety on the part of the appellant, there is nothing that objectively supports such a conclusion. The defence approach to the evidence was announced at the outset of the trial and, no doubt, reflected instructions given to counsel by the appellant. The absence of a second opening could hardly have resulted in the appellant being unaware of his own defence case.
Thirdly, insofar as the contention asserts that counsel conducted a confusing examination‑in‑chief of the appellant, and failed to re‑examine, the assertion confronts long‑standing authority to the effect that decisions as to what questions to ask are matters entirely within the province of defence counsel, and would not ordinarily give rise to a miscarriage of justice. Nothing is offered here to suggest that a more acute approach would have had any different result.
Fourthly, the contention that counsel did not attend an appointment 'as agreed with the [appellant] and as per orders of the court', is not supported by the transcript. What the transcript reveals is that the appellant's trial bail conditions were altered in order to facilitate a meeting with his counsel but there was no order that such a meeting occur. There is no basis in the material before this court to infer that the absence of a meeting materially prejudiced the appellant's defence.
Fifthly, counsel's failure to argue for severance of the indictment does not advance the matter any further. For the reasons given above, such an application would have failed. That perhaps explains the fact that no application for severance was made at the trial.
Ground 3 - transcript of the telephone calls
At its heart, the contention here is that the transcript was inadmissible and its provision to the jury was objectionable. Therefore provision of the transcript to the jury meant that the trial miscarried.
The recordings of the intercepted telephone calls were tendered as the relevant evidence.[38] The prosecution did not rely on the transcripts. Rather, they were provided to the jury as an aid prior to the playing of the telephone calls themselves, and the jury were directed that the transcripts were not evidence, and where there were discrepancies the recording was to prevail. After the recordings had been played and tendered as an exhibit, various discrepancies in the transcripts were identified and corrected, and the jury were again reminded that the evidence was the recordings themselves, and not the transcripts. The appellant's counsel participated in the identification of errors in the transcripts.
[38] Exhibit 78.
Further, in his evidence‑in‑chief, the appellant was taken to the transcripts and asked various questions about their contents and context. The appellant was therefore given a perfect opportunity to put his evidence regarding those calls.
No miscarriage of justice could be occasioned by the provision of the transcripts to the jury, merely as an aid, particularly when the jury were told on more than one occasion that the transcripts were not the evidence.
Conclusion - merits of the proposed grounds of appeal
In our view, the proposed grounds of appeal do not have any merit. They do not have any reasonable prospects of success.
Conclusion - application to withdraw the second notice of discontinuance
For the reasons which we have discussed above, the second notice of discontinuance was not a nullity. There is no basis for the exercise of the discretion under s 40(1)(l) of the Criminal Appeals Act.
The application should be dismissed. We will make the following order:
(1)The application to set aside the certificate of final outcome and withdraw the notice of discontinuance is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SG
Research Associate to the Honourable President Buss
28 JULY 2023
3
9
0