Re Birmingham DCJ; ex parte Agapis
[2014] WASCA 197
•30 OCTOBER 2014
RE BIRMINGHAM DCJ; EX PARTE AGAPIS [2014] WASCA 197
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 197 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:105/2013 | 22 JULY 2014 | |
| Coram: | NEWNES JA MURPHY JA | 30/10/14 | |
| 9 | Judgment 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
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
1 JUDGMENT OF THE COURT: This appeal has been brought on pursuant to a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. The notice also raised for consideration by the court seven interim applications filed by the appellant.
2 When the matter came on for hearing we adjourned the appellant's interim applications to another date. Accordingly, the only issue currently before the court for determination is whether any of the grounds of appeal has a reasonable prospect of succeeding.
Background
3 The appeal has its genesis in criminal proceedings in the District Court in 2011. The appellant was tried in the District Court before Birmingham DCJ and a jury between 10 and 13 May 2011, on a charge of aggravated burglary as follows:
On 18 September 2010 at Kallaroo Raoul Agapis, entered or was in the place of Adam Griffin without his consent, with intent to commit an offence therein.
And that Raoul Agapis threatened to kill Adam Griffin and Lauren Plummer.
And that immediately before the commission of the offence Raoul Agapis knew or ought to have known that there was another person in the place.
And that the place was ordinarily used for human habitation.
4 The appellant was convicted as charged, except for the pleaded circumstance of aggravation of threat to kill. On 31 August 2011, he was sentenced to 1 year and 3 months' imprisonment which was suspended for two years. An appeal by the appellant against his conviction was dismissed: Agapis v The State of Western Australia [2012] WASCA 132.
5 The appellant subsequently applied for judicial review, seeking a writ of 'certiorari/mandamus' and a declaration in respect of the decision of Birmingham DCJ. While the application was not in conventional form, it is apparent that in substance the appellant sought to have his conviction quashed. The grounds of the application were as follows:
1. Gross Miscarriage of Justice based on the Trial Judge's Misdirection to the Jury renders the Verdict null and void (the Misdirection to the Jury).
2. The Lack of Jurisdiction of the Trial Judge and Jury on the grounds of Errors in law and Errors in fact, renders the Verdict null and void.
3. The Denial of Justice to the Applicant in the Trial process or the Lack of Procedural Fairness renders the Verdict null and void.
4. The Denial of the Applicant his Dietrich's Right to Counsel or the Applicant's Right to Defence or taking a Step in his Defence renders the Verdict null and void.
5. The Refusal of the Trial Judge to take into Account Relevant Considerations and NOT TO TAKE INTO ACCOUNT Irrelevant Considerations, thereby misdirecting the Jury and thus rendering the Verdict Null and Void (the 'Inferability' [sic] Issues).
6 Ground 5 was further particularised by complaints against witnesses who were said to have perjured themselves.
The decision of the primary judge
7 On 29 August 2013, the application came before McKechnie J for the appellant to show cause why it should not be dismissed as incompetent. His Honour dismissed the application for reasons which he succinctly stated as follows:
• The District Court in its criminal jurisdiction, is a superior court not amenable to prerogative relief except to the extent that may be allowed under the District Court of Western Australia Act: Day v The Queen (1984) 153 CLR 475, 479; Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; Craig v State of South Australia (1995) 184 CLR 163.
• There is no matter pending in the District Court so certiorari under the District Court of Western Australia Act s 81 is unavailable.
• No writ of mandamus can issue to a District Court judge: District Court of Western Australia Act s 84.
• No order in lieu of mandamus is possible as judgment has been entered and the judge's jurisdiction is complete.
• The application is a collateral attack on the conviction and therefore an abuse of process especially in circumstances where the applicant, having a right of appeal, exercised that right: Re Judge Ackland; Ex parte Love (Unreported, SCWA, Appeal 139/89, Library No 8362, File No 1982/1988, 2 August 1988) (Brinsden J); Reichel v Magrath (1889) 14 App Cas 665, 668 (Lord Halsbury); Hunter v Chief Constable of West Midlands Police (1982) AC 529, 541 (Lord Diplock)
The grounds of appeal
8 The grounds of appeal contained in the appellant's case are as follows:
1. The evasive reasoning of Justice McKechnie erred in law and fact by ignoring the rule of law, that 'jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record' are the requirements that a Certiorari/Mandamus can be issued.
2. Justice McKechnie failed to wait for the evidence that proves the District Court Trial 349 of 2011 verdict of guilty cannot be supported by the evidence and the Trial was completely unfair which created a miscarriage of justice.
9 The appellant has, however, filed an application to amend the grounds of appeal by substituting the following grounds:
The learned Appeal Court Judge His Honour McKechnie J of the Supreme Court of WA is in jurisdictional error when he erred in law and in facts [sic] in terms of the following grounds:
1. The Supreme Court of Western Australia with its supervisory powers over the District Court of Western Australia, does have valid jurisdiction to issue Prerogative Writs of Certiorari and Mandamus against the trial judge His Honour Judge Birmingham of the District Court of Western Australia in CR. 349 of 2011 to set aright his jurisdictional errors and to compel him to dispense justice in accordance with the law only in the exceptional circumstances where the decision has been procured by one or more of a number of distinct established grounds, procedural fairness, fraud and errors on the face of the court record are as evident in the trial proceedings below;
2. The Appellant does have his rights in law to have the fraud upon the court committed by the Prosecution witnesses namely Plummer and Griffin in the District Court Trial proceedings properly ventilated in the appeal process to the point of finality such that the contaminating fraud is reasonably seen to vitiate everything that is affected by it;
3. The appellant does have his rights in law to have the fraud upon the court committed by the prosecution witnesses Griffin and Plummer in the District Court Trial proceedings be unravelled and as such the collateral attack is justified because fraud vitiates everything;
4. The Jurisdictional Errors of the trial judge DCJ Birmingham in District Court Trial CR 349 of 2011 which resulted in the Appellant not receiving procedural fairness in the following factual circumstances;
4.1 Denial of Procedural Fairness: The Denial of an Adjournment to Seek Competent Counsel;
4.2 Denial of Procedural Fairness: the right of the Appellant in law especially while trying to conduct his defence during a criminal trial, whilst under involuntary detention during the trial process, is to be accorded his human rights in accordance with the International Covenant of Civil and Political Rights (the ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which Australia has ratified and is a signatory, but he has been inhumanely treated;
4.3 Denial of Procedural Fairness: The right of the appellant in law to access the Prosecution Evidence before and during the Trial process so as to enable him to be adequately prepared for his case and defence;
4.4 Denial of Procedural Fairness: Right of access to the trial evidence in terms of the trial transcripts, so as to enable the appellant to prepare himself adequately in the progress for the next day of the trial;
4.5 Denial of Procedural Fairness: The right of the appellant in law to correct procedure to have the Indictment served upon him and the arraignment regarding the Indictment before the start of the trial and not the second day of the trial;
5. Fraud - Perjury: Right to inquire into the frauds committed upon the original trial court by the Prosecution Witnesses Griffin and Plummer which cannot be denied by both the trial judge and the Appeal Judge; the denials of which renders both the trial judge’s decision and the Appeal judge’s decision nullities, which can be set aside by the Court of Appeal inquiring into the frauds upon the courts.
10 The application to amend the grounds of appeal has not yet been heard and it is unnecessary to determine it. While the appellant said that he sought to rely only on the proposed new grounds of appeal, the issue before the court can be dealt with having regard to both the existing grounds and the proposed grounds.
The disposition of the appeal
11 The appeal has no prospect of success. The primary judge was, with respect, quite correct to dismiss the application for judicial review. As his Honour pointed out, it was misconceived and doomed to failure.
12 The appellant's claim for mandamus has no merit. Section 84(1) of the District Court of Western Australia Act 1969 (WA) (the Act)provides, in effect, that:
• no writ of mandamus shall issue to a District Court judge for refusing to do any act relating to the duties of his or her office; but
• the Supreme Court may, by rule or order, direct a District Court judge to do an act relating to the duties of his or her office.
13 As the primary judge observed, the power of the Supreme Court under that provision could have no application in this case. There was nothing further to be done by the trial judge in relation to the criminal proceedings. Those proceedings were complete in 2011.
14 The appellant's claim for a writ of certiorari has no greater merit. At common law, a writ of certiorari goes only to an inferior court or to certain tribunals exercising governmental functions; it does not, subject perhaps to some anomalous exceptions, go to a superior court: Craig v South Australia (1995) 184 CLR 163, 174 - 175: The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351, 386 - 387, and the cases there cited. In its criminal jurisdiction, the District Court is a superior court of record: the Act, s 42(1), s 44;Day v The Queen (1984) 153 CLR 475, 479; Re his Honour Judge Hammond Ex; Parte Roddan (1996) 17 WAR 50, 56 - 57, 59; and it is subject to appellate process: s 79 of the Act.
15 The availability of certiorari is, of course, for relevant purposes, capable of being modified by statute, as it has been in respect of the District Court.
16 Section 80 of the Act provides:
No judgment or order of a District Court judge, nor any proceedings brought before him or pending in the Court, shall be removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act.
17 The only provision in the Act under which certiorari may issue is s 81. That permits the Supreme Court to remove into it by writ of certiorari 'any cause, matter or proceeding pending in the [District] Court' if it considers it desirable that the cause, matter or proceeding be tried in the Supreme Court. Section 81, as the primary judge observed, has no application. The criminal proceedings against the appellant in the District Court are not pending; they have long since been completed.
18 The appellant placed considerable reliance on observations made in Ex Parte Roddan, where Malcolm CJ (with whom Kennedy and Murray JJ agreed) suggested that notwithstanding s 80 and s 81 of the Act, the Supreme Court may have a supervisory jurisdiction by way of certiorari in respect of the District Court's criminal jurisdiction in the case of absence or excess of jurisdiction, and possibly where the exercise of jurisdiction was procured by fraud (56).
19 That, however, does not assist the appellant. While it is evident that the appellant has attempted to couch his complaints about the criminal trial in terms of jurisdictional error and fraud, there is nothing which might be capable of suggesting absence or excess of jurisdiction. Plainly, in conducting the criminal trial Birmingham DCJ acted within jurisdiction.
20 In relation to fraud, the appellant relied in particular on what he alleged was perjury by prosecution witnesses. It is unnecessary to consider the effect of perjury in this context. The allegations of perjury are in substance simply a reiteration of allegations previously advanced by the appellant on the appeal against his conviction and rejected by this court: Agapis v The State of Western Australia [84] - [94]. They cannot be run again under the guise of an application for a writ of certiorari. As Halsbury LC observed in Reichel v Magrath (1889) 14 App Cas 665, in a passage which has been frequently cited:
I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again (668).
21 See also Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 WLR 906; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251.
22 It is quite clear, as the primary judge found, that the application for judicial review is a collateral attack by the appellant on his conviction in the District Court and is an abuse of process. The conviction was entered after trial. The appellant had a right of appeal against his conviction, which he exercised, but the appeal was dismissed. Dissatisfied with that outcome, he now seeks to attack the conviction by a different route. That is not permissible.
23 None of the present or proposed grounds of appeal has any prospect of success and the appeal must be dismissed.
Conclusion
24 The appeal is dismissed. It follows that the interim applications filed by the appellant fall away.
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