Nyoni v Murphy
[2014] WASCA 70
•4 APRIL 2014
NYONI -v- MURPHY [2014] WASCA 70
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 70 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:162/2013 | 23 JANUARY 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 4/04/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EMSON CLEVER NYONI JILLIAN MURPHY |
Catchwords: | Criminal law Application for leave to appeal against decision Pharmacist Failure to comply with Poisons Regulations applying to storage of schedule 8 medications |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 18, s 27 Criminal Procedure Act 2004 (WA), s 178(2) Evidence Act 1995 (Cth), s 137 Federal Court Act 1976 (Cth), s 31A Magistrates Court Act 2004 (WA) Poisons Act 1964 (WA), s 62 Poisons Regulations 1965 (WA), r 44, r 45, r 56, r 56C, r 56D Sentencing Act 1995 (WA), s 11 |
Case References: | Browne v Dunn (1893) 6 R 67 (HL) Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 M v The Queen (1994) 181 CLR 487 Nyoni v Murphy [2013] WASC 298 Nyoni v Shire of Kellerberrin [2011] FCA 1299 Nyoni v Shire of Kellerberrin [No 2] [2012] FCA 1477 Nyoni v Shire of Kellerberrin [No 3] [2013] FCA 1090 Nyoni v Shire of Kellerberrin [No 4] [2014] FCA 22 Nyoni v Shire of Kellerberrin [No 5] [2014] FCA 204 R v Swaffield (1998) 192 CLR 159 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NYONI -v- MURPHY [2014] WASCA 70 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
JILLIAN MURPHY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
Citation : NYONI -v- MURPHY [2013] WASC 298
File No : SJA 1013 of 2013
Catchwords:
Criminal law - Application for leave to appeal against decision - Pharmacist - Failure to comply with Poisons Regulations applying to storage of schedule 8 medications
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18, s 27
Criminal Procedure Act 2004 (WA), s 178(2)
Evidence Act 1995 (Cth), s 137
Federal Court Act 1976 (Cth), s 31A
Magistrates Court Act 2004 (WA)
Poisons Act 1964 (WA), s 62
Poisons Regulations 1965 (WA), r 44, r 45, r 56, r 56C, r 56D
Sentencing Act 1995 (WA), s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Browne v Dunn (1893) 6 R 67 (HL)
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
M v The Queen (1994) 181 CLR 487
Nyoni v Murphy [2013] WASC 298
Nyoni v Shire of Kellerberrin [2011] FCA 1299
Nyoni v Shire of Kellerberrin [No 2] [2012] FCA 1477
Nyoni v Shire of Kellerberrin [No 3] [2013] FCA 1090
Nyoni v Shire of Kellerberrin [No 4] [2014] FCA 22
Nyoni v Shire of Kellerberrin [No 5] [2014] FCA 204
R v Swaffield (1998) 192 CLR 159
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA that leave to appeal should be refused and the appeal dismissed. Subject to the following observations, I agree with his Honour's reasons.
3 As to proposed grounds 1, 2 and 3, on my examination of the trial record and the magistrate's reasons for decision, his Honour carefully considered the evidence and the findings he should make. His Honour did not act unreasonably in accepting or rejecting particular evidence. The sufficiency and quality of the evidence which his Honour accepted supported his findings of fact.
4 The magistrate's decision to convict the appellant was not unreasonable. The decision is supported by evidence his Honour was entitled to accept. His Honour, acting reasonably, was not precluded by the state of the evidence at trial from being satisfied beyond reasonable doubt of the appellant's guilt. The evidence at trial does not require the conclusion that his Honour must necessarily have entertained a doubt about whether the prosecutor had proved each of the elements of each of the offences. I do not have a doubt.
5 MAZZA JA: This is an application for leave to appeal against a decision made by EM Heenan J in a single judge appeal: Nyoni v Murphy [2013] WASC 298.
6 None of the proposed grounds of appeal have any reasonable prospect of success. Accordingly, the appeal must be taken to be dismissed. My reasons are as follows.
Background
7 The appellant was, at all material times, a licensed pharmacist carrying on business in the wheatbelt town of Kellerberrin. He was authorised, among other things, to keep and sell drugs of addiction. Among the drugs of addiction he kept were Oxynorm 5 mg capsules and Durogesic 25 mcg per hour patches. A pharmacist who keeps drugs of addiction must comply with various requirements in the Poisons Regulations 1965 (WA). The appellant was obliged to maintain a register of the drugs of addiction '… manufactured, procured, used, supplied or kept' by him: Poisons Regulations reg 44(2). That register had to be maintained in such a way that, at any time, the amount of any drug of addiction 'manufactured, procured, used, supplied or kept' by him was clearly apparent: Poisons Regulations reg 44(4).
8 The appellant was also obliged to make an inventory of drugs of addiction held in stock at intervals of not more than one month and record the result of that inventory in the register: Poisons Regulations reg 45(1).
9 Further, the appellant was obliged to store drugs of addiction in a freestanding or underfloor safe: Poisons Regulations reg 56(1), Appendix M cl 1.
10 Where, as in this case, the safe is freestanding, it must be lockable by means of either a key or a combination lock. In the case of a key lock, the key must be kept in the pharmacist's 'immediate and personal possession': Poisons Regulations reg 56C. Moreover, the person in possession of the key is obliged to ensure that the safe is kept locked at all times except when items are being place into, or being removed from, the safe: Poisons Regulations reg 56D(1).
11 Any person who contravenes or fails to comply with the Poisons Regulations commits an offence under the Poisons Act 1964 (WA), s 62.
12 On 17 August 2011, two duly authorised compliance officers employed by the Department of Health conducted an audit at the appellant's pharmacy. Subsequently, he was charged in the Magistrates Court with six offences contained in a prosecution notice.
13 Counts 1 and 2 alleged a failure to maintain the register of drugs of addiction. Count 1 relates to the Oxynorm 5 mg capsules and count 2 relates to the Durogesic 25 mcg per hour patches. Each count alleged that the appellant failed to maintain the register in such a way that the amount of each drug 'procured' by him was clearly apparent. It is unclear why the prosecution chose to allege that the named drug of addiction was 'procured' by the appellant. However, nothing turns on this point. There was no issue that the appellant 'kept' these drugs of addiction. The appellant made no objection about the form of these charges before the prosecutor's opening address, as required by s 178(2) of the Criminal Procedure Act2004 (WA). In any event, the wording has not caused any injustice to the appellant.
14 Counts 3 and 4 alleged that in respect of drugs of addiction, the appellant failed to make an inventory at an interval of not more than one month and to record the result of that inventory in the register. It is evident from the record of the proceedings before the learned magistrate that the prosecution alleged and the appellant understood that these charges concerned drugs of addiction that included, but were not confined to, the Oxynorm 5 mg capsules and Durogesic 25 mcg per hour patches (ts 6, 57, exhibit 5 and exhibit 6.1).
15 Count 5 alleged that the appellant failed to keep the key to his drug safe in his immediate and personal possession.
16 Count 6 alleged that the appellant failed to ensure that his drug safe was kept locked at all times, other than when items were being placed into or removed from it.
17 On 23 January 2013, the appellant was convicted after trial before Heath CSM of each charge and was fined a total of $14,000 and ordered to pay costs of $2,500.
18 The appellant appealed to the Supreme Court against both his conviction and sentence. On 26 July 2013, EM Heenan J refused leave to appeal in respect of the appeal against conviction. However, he allowed the appeal against sentence in respect of the penalties imposed on charges 5 and 6. EM Heenan J reduced the individual fine imposed on count 5 from $3,000 to $2,000 and imposed no penalty on count 6 on the basis that the evidence necessary to establish it was the same as the facts which constituted count 5: s 11 Sentencing Act 1995 (WA). Thus, his Honour reduced the aggregate fine imposed by the court at first instance from $14,000 to $10,000.
Evidence led at trial
19 The learned magistrate heard evidence from the investigators, Jillian Murphy and Carrie Anne Gould. In the course of their evidence, a number of exhibits were tendered. The appellant, who was unrepresented, elected to give evidence in his defence. During his evidence, the learned magistrate sighted the original drug register. This document was later returned to the appellant.
Evidence of Jillian Murphy
20 Ms Murphy testified that at approximately 11.30 am on 17 August 2011, she and Ms Gould attended at the appellant's pharmacy to conduct an audit (ts 15). As she was undertaking the audit, she took notes in what was referred to in the evidence as an audit tool (ts 16 exhibit 2). She observed that the key to the safe in which the drugs of addiction were stored was in the lock and that the safe itself was unlocked. She testified that she took photographs of the safe. Those photographs were marked exhibit 3(1) and 3(2). Exhibit 3(1) shows a freestanding safe with a key lock and handle. The key is clearly visible in the lock. Ms Murphy said that the appellant reached down and opened the safe without unlocking it (ts 17 and 18).
21 Ms Murphy said that two of the drugs of addiction stocked by the appellant were Oxynorm 5 mg capsules and Durogesic 25 mcg per hour patches. She inspected the register for these drugs. She observed two things about them. First, in respect of each drug, the register had not been kept up to date on a monthly basis. Second, the recorded quantities of each drug were less than the quantities shown on the register for that drug.
22 Ms Murphy testified that she took photographs of the relevant pages of the register and the boxes of the particular drugs (exhibit 5).
23 Ms Murphy testified that a letter, dated 27 September 2011, was sent to the appellant by Neil Keen, chief pharmacist, which notified him of a number of discrepancies, including those that are the subject of the charges (exhibit 6.1). With respect to the discrepancy between the number of drugs of addiction on the register and the quantities found in the safe, it was noted that the register recorded that there were 10 Durogesic 25 mcg per hour patches, yet only five were found in the safe, and that there were 20 Oxynorm 5 mg capsules, yet none were found in the safe. The letter also provided that, in respect of the Durogesic patches, the last inventory was completed on 30 May 2011, while, in relation to the Oxynorm capsules, the last inventory was completed on 31 May 2011. The letter also particularised failures of the appellant to make an inventory of other named drugs of addiction and record the result of that inventory. Another letter in the same terms as the letter dated 27 September 2011 was sent to the appellant on 17 November 2011.
24 Ms Murphy said that the appellant responded to the letter of 17 November 2011 by a facsimile dated 5 December 2011. In that letter, the appellant admitted that in relation to the register, there were 'two minor omissions in updating information' and that 'the ability to accurately maintain the S8 register consistent with the Poisons Regulation 44(4) is evident from 99% of the recorded transactions'. He went on to state that, '[t]he two transactions were simply updated in seconds.'
25 In relation to the inventory checks, the appellant wrote, 'I must acknowledge that the inventory checks for the nine drugs listed between May and August 2011 as found by the auditors are regrettable. I have addressed this problem by performing the inventory twice a month to avoid this issue in the future to conform with Poisons Regulations 45(1)'.
26 In cross-examination, the appellant suggested to Ms Murphy that the safe was opened by him to enable the audit to take place. Ms Murphy denied this suggestion. The appellant put to Ms Murphy that she had not taken any photographs on 17 August 2011 and that the photographs she had produced were taken by her at a later point in time, when he was absent from the pharmacy. Ms Murphy denied these suggestions.
Evidence of Ms Gould
27 With the appellant's consent, Ms Gould remained in court during Ms Murphy's examination-in-chief, but left the courtroom for cross-examination.
28 Ms Gould confirmed the accuracy of Ms Murphy's examination-in-chief (ts 32).
29 In cross-examination, Ms Gould said that when she and Ms Murphy started the audit, she saw that 'the keys were already in the safe' and that the safe 'wasn't locked' (ts 32 and 33).
30 The appellant did not put to either Ms Murphy or Ms Gould that they had altered the drugs of addiction register, even though the learned magistrate clearly explained to him, pursuant to s 30 of the Magistrates Court Act 2004 (WA), his obligation to, in effect, comply with the rule in Browne v Dunn (1893) 6 R 67 (HL).
The appellant's evidence
31 The appellant testified that there were in fact no discrepancies in the drug register on 17 August 2011. He said that the auditors had altered the register (ts 37 and 38). He said that the register had been tested and that he had a report from a laboratory saying that this had occurred. When the appellant was asked by the learned magistrate if he could see that report, the appellant said that he could not produce it. Later, he claimed that he had not brought it with him (ts 40).
32 The appellant said that, on the day of the audit, the safe containing the drugs of addiction was locked and that he had the key. He said that the photographs that were tendered were not taken on 17 August 2011, but were taken on an unknown date when Ms Murphy and Ms Gould entered his pharmacy without his knowledge (ts 42).
33 In cross-examination, counsel for the respondent drew the appellant's attention to parts of the letter sent by the appellant to the Department of Health dated 5 December 2011, in which he appeared to confirm that he had made errors in the drug register and that he had failed to carry out monthly inventory checks. He testified, in effect, that what he had written was not accurate. The appellant maintained his position that the safe was locked. He said it was opened for the purpose of the audit.
The reasons for decision of the learned magistrate
34 The learned magistrate's extempore reasons are succinct. He briefly summarised the evidence. He noted that, in cross-examination (when Ms Gould was not in the courtroom), there was an element of consistency between Ms Murphy and Ms Gould.
35 The learned magistrate positively rejected the evidence of the appellant. He described it as 'fanciful'. He rejected the proposition that the register had been altered. He referred to his own inspection of the original register which showed no indication of alteration. He noted that the appellant had not adduced any evidence 'either by way of hearsay or report' which showed that the register had been altered. He suggested other features of the register which contradicted the proposition that the register had been altered. He noted that some of the appellant's evidence was inconsistent with his letter to the Department of Health. He found the appellant to be 'completely unreliable'. He disregarded his evidence and accepted the evidence of the prosecution.
36 He concluded by stating that he was satisfied beyond a reasonable doubt that the prosecution had established all of the elements of each of the offences (ts 62 -63).
The appeal to EM Heenan J
37 The proposed grounds of appeal against conviction pursued by the appellant in the proceedings before EM Heenan J were as follows:
1(a) that the court of summary jurisdiction –
(i) made an error of both law and fact that hearsay material and evidence used to procure conviction for charges 1 to 6 by prosecution and primary witnesses was fabricated;
(ii) photographs for charges 5 and 6 supplied by investigators to procure conviction were unrelated to the allegation and made up to procure prosecution and conviction;
(iii) the alleged investigators were the only witnesses used by the prosecution to procure conviction;
(iv) on material in front of the court below the court did not have jurisdiction to deal with the appellant on the charges;
(v) the offences charged are not offences under the provisions referred to in the Criminal Code Act 1913 s 4 and the court erred in law by failing to recognise that fact;
(vi) the appellant has a defence to the charges under the Criminal Code s 17 and the court erred in law; and
…
(d) that there has been a miscarriage of justice based on all the above.
38 Having regard to the test in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, his Honour concluded that none of the proposed grounds of appeal had any prospects of success. His Honour said:
Without going into a detailed review of the evidence or the proposed grounds of appeal relating to the convictions, I can say there is nothing whatever to suggest that any of the proposed grounds of appeal against conviction has any prospect of success. This was a case where the only issues for determination by the learned magistrate were issues of fact based on a choice of credibility between the witnesses for the prosecution, the two inspectors, and the present applicant as a respondent. Of course, it is not merely a choice as to whether one witness is more credible than another which counts in a prosecution like this. For a prosecution to succeed and a conviction to stand it must be the case that the judicial officer is satisfied beyond reasonable doubt by all the evidence that the prosecution has established the offence or offences charged, not merely that the matter depends on a balance of probabilities with respect to credibility. But the learned magistrate was obviously alive to that distinction and expressed himself to be satisfied that the charges had been proved and proved to the requisite degree.
As for the contentions that the safe was closed and locked, that the photographs were taken on some other day, that the registers as shown in the photographs were not accurate and had been interfered with in some way, and that the evidence of the prosecution witnesses was false, there was simply no evidence at all to support any such finding and these contentions were rejected by the learned magistrate. I have no doubt that his Honour was correct in that disposition and, in any event, I am satisfied that this is not a case which would justify any modification of those findings of fact if one applies the principles established by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. For those reasons the application for leave to appeal against conviction will be refused [12] - [13].
The proposed grounds of appeal
39 The appellant has represented himself in his appeals. The proposed grounds of appeal in this court are to some extent argumentative and difficult to understand. As expressed in his appellant's case, they are as follows:
1. By relying entirely on witness prosecutors, Justice Heenan failed to true facts underpinning the proceedings resulting in conviction of Mr Nyoni, when Mr Nyoni should have been acquitted.
2. On the evidence provided by the sole witness, it was unsafe for Justice Heenan to convict Mr Nyoni.
3. Documents, photographs and other evidence were generated by the key witnesses prosecuting Mr Nyoni to procure a conviction and were in no way connected to the alleged events.
4. Justice Heenan incorrectly applied the well established principles of success.
5. The investigators were in the prosecution thus defeating and perverting the course of justice resulting in a substantial miscarriage of justice.
6. The jurisdiction of this matter on proceedings currently on foot in the Federal Court raised questions about this Court's jurisdiction over this matter, suggests that Justice Heenan may have acted in excess of his jurisdiction.
7. While Justice Heenan attempted to reduce the fines as the case itself is unfounded, so is the sentence.
8. His Honour was influenced by actual or apprehended bias.
9. There has been a substantial miscarriage of justice following His Honour's decision of 26 July 2013.
Merits of the appeal to this court
Proposed grounds 1, 2 and 3
40 In substance, these grounds allege that the verdicts were unreasonable or cannot be supported having regard to the evidence and that EM Heenan J erred in failing to so find.
41 The test to be applied by an appellate court in this regard is the same whether the case was heard by a judge (or magistrate) alone or with a jury. That test is whether this court, having made its own assessment of both the sufficiency and quality of the evidence, is persuaded that it was not open to the court at first instance, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [13] and M v The Queen (1994) 181 CLR 487.
42 In assessing whether it was open to be satisfied beyond reasonable doubt that the appellant was guilty of the offences, this court must not disregard or discount either the consideration that the court at first instance is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the court had the benefit of having seen and heard the witnesses. This court must pay full regard to these considerations: M v The Queen, 493.
43 The magistrate at first instance had advantages that this court does not have in assessing credibility of the witnesses. First, the learned magistrate had the benefit of actually seeing and hearing the witnesses testify. Second, the learned magistrate had the opportunity to actually inspect the original drug register. Thus, this court, unlike the learned magistrate, did not have the advantage of examining the original drug register to see whether it had been altered.
44 I have undertaken my own assessment of the whole of the evidence adduced at the trial. The oral evidence of Ms Murphy and Ms Gould as to the deficiencies in the appellant's record-keeping was consistent and confirmed by the documentary exhibits, including the photographs that they took, and, in general terms, by the contents of the appellant's letter dated 5 December 2011. Their evidence with respect to the safe and the location of the key was also confirmed by photographs. Contrary to the appellant's submissions, there is nothing to support his assertions that Ms Murphy and Ms Gould were biased or prejudiced against him and that they had altered documents and taken photographs on a day other than 17 August 2011.
45 I have weighed the competing evidence of the appellant. His testimony was contradicted, in material respects, by the documentary exhibits and his letter of 5 December 2011. I reiterate that there was no evidence to support his assertion that the drug register had been altered or that the photographs had been taken on a day other than 17 August 2011.
46 The learned magistrate found that Ms Murphy and Ms Gould were both truthful and reliable. He made contrary findings in respect of the appellant. Having regard to the advantages that he had, these conclusions were amply justified. There is nothing to suggest that the learned magistrate failed to use, or palpably misused, the advantages that he had.
47 My examination of the record reveals that it was well open to the learned magistrate to be satisfied of the appellant's guilt beyond reasonable doubt. Proposed grounds 1, 2 and 3 have no reasonable prospect of success.
Proposed ground 4 - EM Heenan J incorrectly applied the well-established principles with respect to leave to appeal
48 Section 9(1) of the Criminal Appeals Act 2004 (WA) requires that in appeals from courts of summary jurisdiction to a single judge, the leave of that court is required for each ground of appeal. Section 9(2) provides that the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.
49 The statutory language of s 9 is replicated in s 27(1) and (2) of the Criminal Appeals Act, which deals with appeals from superior courts to this court. The meaning of the words 'reasonable prospect of succeeding' was comprehensively analysed by this court in Samuels. In that case, Steytler P, Wheeler and Roberts-Smith JJA held that:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper [56].
50 In the present case, EM Heenan J applied this test.
51 The appellant, in his written submissions, has referred to a number of cases decided in the Federal Court with respect to applications for summary judgment pursuant to s 31A of the Federal Court Act 1976 (Cth). He does so without any real analysis of them and without making any particular point about the correctness or otherwise of Samuels. It is unnecessary to list or discuss these cases. They have been decided in respect of a different statutory provision. There is no reason whatever to doubt the correctness of Samuels.
52 Proposed ground 4 has no reasonable prospect of succeeding.
Proposed ground 5
53 Proposed ground 5 alleges that Ms Murphy and Ms Gould defeated or perverted the course of justice. This claim is nothing more than an unsubstantiated and unjustified assertion of fact and is not a proper ground of appeal. It has no reasonable prospect of success.
Proposed ground 6
54 This ground of appeal makes no sense. It refers to proceedings which are apparently currently before the Federal Court. I infer that the appellant is here referring to litigation he is pursuing in the Federal Court against the Shire of Kellerberrin: see Nyoni v Shire of Kellerberrin [2011] FCA 1299; Nyoni v Shire of Kellerberrin [No 2] [2012] FCA 1477; Nyoni v Shire of Kellerberrin [No 3] [2013] FCA 1090; Nyoni v Shire of Kellerberrin [No 4] [2014] FCA 22; Nyoni v Shire of Kellerberrin [No 5] [2014] FCA 204. In broad terms, the appellant claims that the Shire and Shire officials have embarked upon a course of conduct intended to denigrate him and injure his pharmacy business and to replace him with another pharmacist. These proceedings have not been decided and have no relevance to this case. This proposed ground has no reasonable prospect of succeeding.
Proposed ground 7
55 Ground 7 is incomprehensible. It has no reasonable prospect of succeeding.
Proposed ground 8
56 Ground 8 alleges that EM Heenan J was 'influenced by actual and apprehended bias'. The appellant appears to base this allegation on no more than a claim that his Honour erred in failing to allow his appeal. That is not, in itself, sufficient to base an allegation of actual or apprehended bias.
57 Ground 8 has no reasonable prospect of succeeding.
Proposed ground 9
58 Ground 9 alleges that there has been a substantial miscarriage of justice following EM Heenan J's decision of 26 July 2013. This ground is ambiguous. If it is designed to be a catch-all ground, it fails. If it is designed to raise events which have occurred since his Honour's decision, no evidence has been put before the court which could reasonably sustain such an argument. Ground 9 has no reasonable prospect of succeeding.
Other matters
59 In his oral submissions to this court, the appellant said that his 'main point' (although made for the first time in this court) was that EM Heenan J had failed to exclude what he described as 'prejudicial evidence'. He referred to previous cases against him involving, he said, the same investigators as had testified against him in the present case. His argument seemed to be that the investigators were prejudiced against him and that therefore the learned magistrate should have excluded their evidence at the hearing and EM Heenan J erred in not so deciding.
60 The appellant elaborated by submitting that the evidence of Ms Murphy and Ms Gould should have been excluded pursuant to s 137 of the Evidence Act 1995 (Cth) which reads:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
61 The Commonwealth Evidence Act has no application to the proceedings before the learned magistrate, which were State proceedings. If the appellant was seeking to invoke the common law discretion to exclude admissible evidence because its probative value was outweighed by its prejudicial effect (R v Swaffield (1998) 192 CLR 159, 191 - 193 (Toohey, Gaudron and Gummow JJ)), his submission is misconceived. The prejudice referred to in the common law discretion is not prejudice in the sense of bias. There is nothing which would have justified the exclusion of the evidence of Ms Murphy and Ms Gould on the basis of the common law discretion.
62 As none of the appellant's proposed grounds of appeal have any reasonable prospect of succeeding, leave to appeal should be refused with the effect that the appeal is taken to have been dismissed: Criminal Appeals Act s 9(1), (2) and (3) read with s 18.
Orders
63 The orders I would make are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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