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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 197
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:105/2013	Heard:	22 JULY 2014
Coram:	NEWNES JA MURPHY JA	Delivered:	30/10/14
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	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

1

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: [2014] WASCA 197
Decision Date: 30 OCTOBER 2014

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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