Raoul Agapis - [2015] HCASL 125

RAOUL AGAPIS
[2015] HCASL 125
P13/2015

Following a jury trial in the District Court of Western Australia (Judge Birmingham), the applicant was convicted on a charge of aggravated burglary and was sentenced to one year and three months' imprisonment, suspended for two years. The applicant's appeal against conviction was dismissed by the Court of Appeal of the Supreme Court of Western Australia, and the applicant was refused special leave to appeal to this Court.
The applicant subsequently applied for judicial review of the District Court decision in the Supreme Court of Western Australia, seeking a declaration and writs of certiorari and mandamus. The Court (McKechnie J) dismissed the application, determining that neither certiorari nor mandamus could issue, and that the application – as a collateral attack on the applicant's conviction – constituted an abuse of process.
The applicant appealed to the Court of Appeal. Pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the Court of Appeal (Newnes and Murphy JJA) dismissed the appeal on the basis that none of the grounds of appeal had a reasonable prospect of succeeding.
The applicant now seeks special leave to appeal from the order of the Court of Appeal. The applicant requires an enlargement of time within which to lodge this application. As the applicant does not have legal representation, the application falls to be dealt with under rr 4.02 and 41.10 of the High Court Rules 2004 (Cth).
The applicant has not demonstrated any reason to doubt the correctness of the Court of Appeal's decision, an appeal to this Court would have no prospect of success, and it would therefore be futile to grant the enlargement of time sought by the applicant. The application is dismissed.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
13 August 2015

S.J. Gageler

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 125
Decision Date

CaseChat Overview and Summary

The case of Raoul Agapis involves an applicant seeking special leave to appeal a decision of the Court of Appeal of the Supreme Court of Western Australia. The applicant had previously been convicted of aggravated burglary in the District Court of Western Australia, a conviction that was upheld by the Court of Appeal. Following the dismissal of the appeal, the applicant applied for judicial review in the Supreme Court of Western Australia, which was subsequently dismissed. The applicant then appealed the decision of the Supreme Court to the Court of Appeal, but this appeal was also dismissed. The current application to the High Court seeks special leave to appeal the order of the Court of Appeal and an enlargement of time to lodge this application.

The legal issues before the court were whether special leave should be granted to appeal the decision of the Court of Appeal, and whether an enlargement of time should be granted for the applicant to lodge this application. The applicant, who did not have legal representation, needed to demonstrate that the appeal had a reasonable prospect of success and that there was a compelling reason for the delay in lodging the application. The court examined the merits of the appeal and the reasons for any delay in filing the application.

The High Court, considering the matter under the High Court Rules 2004 (Cth), found that the applicant had not demonstrated any reason to doubt the correctness of the Court of Appeal's decision. The court determined that an appeal to the High Court would have no prospect of success and would therefore be futile. Consequently, the application for special leave to appeal and the enlargement of time were dismissed.

The final orders of the court were to dismiss the application for special leave to appeal and the application for an enlargement of time, with the Registrar directed to draw up, sign, and seal an order to that effect. This decision was made on 13 August 2015 by V.M. Bell and S.J. Gageler.

Orders