Re Birmingham DCJ; ex parte Agapis

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RE BIRMINGHAM DCJ; EX PARTE AGAPIS [2014] WASCA 197



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASCA 197
THE COURT OF APPEAL (WA)
Case No:CACV:105/201322 JULY 2014
Coram:NEWNES JA
MURPHY JA
30/10/14
9Judgment Part:1 of 1
Result: Appeal dismissed
B
PDF Version
Parties:RAOUL AGAPIS

Catchwords:

Practice and procedure
Whether grounds of appeal have reasonable prospect of success
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Appeal from dismissal of application for judicial review of criminal conviction in District Court
Whether writ of certiorari or mandamus available
Whether collateral attack on conviction in District Court
Whether abuse of process

Legislation:

District Court of Western Australia Act 1969 (WA), s 42(1), s 44, s 80, s 81, s 84(1)

Case References:

Agapis v The State of Western Australia [2012] WASCA 132
Craig v South Australia (1995) 184 CLR 163
Day v The Queen (1984) 153 CLR 475
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 WLR 906
Re his Honour Judge Hammond Ex; Parte Roddan (1996) 17 WAR 50
Reichel v Magrath (1889) 14 App Cas 665
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE BIRMINGHAM DCJ; EX PARTE AGAPIS [2014] WASCA 197 CORAM : NEWNES JA
    MURPHY JA
HEARD : 22 JULY 2014 DELIVERED : 30 OCTOBER 2014 FILE NO/S : CACV 105 of 2013 MATTER : BIRMINGHAM DCJ EX PARTE

    RAOUL AGAPIS
    Applicant

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : McKECHNIE J

Citation : AGAPIS -v- BIRMINGHAM DCJ [2013] WASC 329

File No : CIV 2139 of 2013


Catchwords:

Practice and procedure - Whether grounds of appeal have reasonable prospect of success - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Appeal from dismissal of application for judicial review of criminal conviction in District Court - Whether writ of certiorari or mandamus available - Whether collateral attack on conviction in District Court - Whether abuse of process

Legislation:

District Court of Western Australia Act 1969 (WA), s 42(1), s 44, s 80, s 81, s 84(1)

Result:

Appeal dismissed


Category: B


Representation:

Counsel:


    Applicant : In person

Solicitors:

    Applicant : In person



Case(s) referred to in judgment(s):

Agapis v The State of Western Australia [2012] WASCA 132
Craig v South Australia (1995) 184 CLR 163
Day v The Queen (1984) 153 CLR 475
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 WLR 906
Re his Honour Judge Hammond Ex; Parte Roddan (1996) 17 WAR 50
Reichel v Magrath (1889) 14 App Cas 665
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351



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Details
Case
[2014] WASCA 197
Decision Date

CaseChat Overview and Summary

In the case of Re Birmingham DCJ; ex parte Agapis, the applicant sought leave to appeal against the dismissal of his application for judicial review of a criminal conviction in the District Court. The application was brought before the Court of Appeal in Western Australia, which was required to determine the merits of the grounds of appeal and whether they had a reasonable prospect of success. The applicant argued that the District Court had erred in its handling of the case and that a writ of certiorari or mandamus should be available to address these errors. Additionally, the court had to consider whether the application constituted a collateral attack on the conviction and whether there had been an abuse of process.

The Court of Appeal examined the grounds of appeal and found that they did not have a reasonable prospect of success. The court held that the application for judicial review was essentially a collateral attack on the conviction, which is not permissible under the Supreme Court (Court of Appeal) Rules 2005 (WA). Furthermore, the court found that there was no abuse of process in the District Court's handling of the case. The Court of Appeal concluded that the applicant had not demonstrated that the grounds of appeal had a reasonable prospect of success, and therefore, the appeal was dismissed.

Given the findings of the Court of Appeal, the only order made was to dismiss the appeal. This decision reinforces the principle that collateral attacks on criminal convictions are not permitted and that judicial review is not available to address errors in the underlying conviction. The dismissal of the appeal in this case serves as a reminder of the limitations of judicial review in relation to criminal convictions and the importance of adhering to established legal principles.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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