Roddan v The Queen - [2005] WASCA 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RODDAN -v- THE QUEEN [2005] WASCA 87

CORAM: MALCOLM CJ
MCLURE JA
PULLIN JA

HEARD: 1 MARCH 2005

DELIVERED : 18 MAY 2005

FILE NO/S: CCA 263 of 2000

BETWEEN: LINDSAY GORDON RODDAN
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
For File No              :  CCA 263 of 2000
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY DCJ
Citation  :R -v- RODDAN [2000] WADC 293
File No  :IND 1283 of 1997

Catchwords:

Criminal practice and procedure - Motion to strike out appeal against conviction and application for leave to appeal against sentence for want of prosecution - Delay

Legislation:

Criminal Code (WA), s 317, s 473, s 474, s 697

Result:

Appeal against conviction and application for leave to appeal against sentence dismissed for want of prosecution

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: Mr B Fiannaca and Ms E Abou-Mehri

Solicitors:

Appellant: No appearance
Respondent: State Director of Public Prosecutions

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

Bilos v State of Western Australia [2004] WASCA 94
Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698, 7 October 1998
R v Mickelberg (1996) 90 A Crim R 126
R v Roddan (2002) 128 A Crim R 397
Roddan v The Queen, unreported; CCA SCt of WA; Library No 960733, 19 December 1996

Case(s) also cited:

Stingel v The Queen (1990) 171 CLR 312
"T" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 980456; 11 August 1998

MALCOLM CJ: The Court has before it two applications by the Crown. The first application is for an order striking out the appellant's application for leave to appeal against sentence dated 7 September 2000 for want of prosecution. The second application is for an order striking out the appellant's appeal against conviction and his "appeal [sic application for leave to appeal] against sentence".
At the conclusion of the argument on this application on 1 March 2005, the Court was unanimously of the opinion that the appeal against conviction and the application for leave to appeal against sentence should both be dismissed for want of prosecution. It was then indicated that the reasons for making those orders would be published later. These are my reasons for joining in making those orders.
On 9 November 2000, the appellant, who is the respondent to these applications, and to whom I will refer as "Mr Roddan", was convicted after trial of one count of assault occasioning bodily harm to the complainant contrary to s 317 of the Criminal Code (WA) ("the Code"). On 18 November 2000, Mr Roddan was sentenced to imprisonment for 18 months which was suspended for a period of 18 months.
On 15 November 2000, Mr Roddan was convicted after trial on one count of forgery contrary to s 473 of the Code and one count of uttering contrary to s 474 of the Code. On 21 November 2000 Mr Roddan was sentenced to pay a fine of $2500 in respect of each of those offences.
On 7 December 2000, Mr Roddan filed a notice of application for leave to appeal against conviction in respect of the conviction for assault. On the same day he filed a notice of application for leave to appeal against sentence in respect of the sentence imposed for the assault. By an oversight in the Criminal Registry, separate numbers were not assigned to each of these notices. Instead, both notices were assigned the same Court reference number, namely, CCA 263 of 2000. This led to some confusion whether CCA 263 of 2000 was both an appeal against conviction and sentence or an appeal against sentence only, particularly following the filing of a further notice of appeal in respect of the offences of forgery and uttering, which was assigned number CCA 268 of 2000. By a letter dated 19 December 2000, the Court notified Mr Roddan at his address for service at 10 Fairview Place, Dianella, informing him that the appeals CCA 263 and CCA 268 of 2000 were listed for hearing before a single Judge on 29 January 2001. Mr Roddan failed to appear at the hearing before the Hon Justice Miller on 29 January 2001. His Honour noted that Mr Roddan had not applied for Legal Aid and ordered that a copy of the transcript of the proceedings on 29 January 2001 be sent to Mr Roddan at his last known address. The appeals were adjourned for hearing before a single Judge on 7 February 2001. Mr Roddan failed to appear at the hearing before Scott J on 7 February 2001. At that time, the Crown foreshadowed an application to strike out the appeals for want of prosecution. Scott J ordered that such an application be filed within 14 days. The appeals were adjourned to a date to be fixed for the Crown to comply with that order.
On 1 May 2001, the Crown made an application to the Court of Criminal Appeal (Owen, Parker and Steytler JJ) to strike out the appeals for want of prosecution. On that day Mr Roddan filed an affidavit in opposition stating that he wished to pursue his appeals. He also raised the issue of CCA 263 of 2000 constituting both an appeal against conviction and an appeal against sentence. In the light of the contents of Mr Roddan's affidavit, the Crown did not pursue the application to strike out, which was dismissed. Mr Roddan was ordered to file an application to amend his grounds of appeal and an affidavit as to preparedness by 30 May 2001. In the meantime, the appeals were adjourned to 12 June 2001 before a single Judge.
On 12 June 2001, Mr Roddan appeared before Miller J when the appeals were adjourned to the next available sittings of the Court of Criminal Appeal. On 25 October 2001, the appeal books were filed and on 31 October, the Crown's outline of submissions was filed. On 2 November 2001, the appeals were due to be heard before the Court of Criminal Appeal constituted by Wallwork, Murray JJ and Einfeld AJ. On that occasion Mr Roddan was represented by Mr Stephenson. Mr Roddan did not himself attend. Because Mr Stephenson had received the brief only shortly before the hearing, the assault appeals were adjourned to 5 December 2001 before a single Judge for relisting. The forging and uttering conviction appeal was adjourned to be dealt with by way of written submissions.
On 5 December 2001, Mr Roddan appeared in person before Miller J when Mr Roddan applied for the assault appeals to be adjourned to a date to be fixed to be dealt with by a single Judge, on the basis that Mr Roddan would be represented by Mr Stephenson and that new issues relating to undiscovered documents had arisen. The assault appeals were adjourned to 17 January 2002. On 17 January 2002, they came before Miller J. His Honour was informed that Mr Stephenson was not on the record. The Crown foreshadowed that it would be making an application to strike out Mr Roddan's assault appeals for want of prosecution. The assault appeals were adjourned to 6 March 2002 and Miller J instructed his Associate to forward a copy of the transcript directly to Mr Roddan.
On 5 March 2002, the Crown filed and served an application to dismiss the assault appeals supported by an affidavit. On 6 March 2002, the matter came on before Wheeler J. Mr Roddan represented himself. He informed the Court that he was waiting on further documents relevant to his assault appeals to be supplied to him by the Office of the Director of Public Prosecutions ("the ODPP"). The Crown's application to dismiss the appeals was referred to the June 2002 sittings of the Court of Criminal Appeal. In the meantime, the assault appeals were referred to a mention date on 9 April 2002.
By a letter dated 11 March 2002, the ODPP asked Mr Roddan to provide a copy of his request for documents or clarify what documents were sought from the ODPP. No reply was received.
The forging and uttering conviction appeal (CCA 268 of 2000) was dealt with in writing and dismissed on 3 April 2002: R v Roddan (2002) 128 A Crim R 397. This left the assault conviction appeal and the assault sentence appeal, both numbered CCA 263 of 2000, to be dealt with. It is convenient to refer to these as "the appeals".
The appeals came before Wheeler J on 9 April 2002. Mr Roddan was then represented by Mr Yin. They were adjourned to a further mention date on 24 June 2002. The Crown was requested to write to Mr Burgoyne, the solicitor for Mr Roddan, to suggest that the appeals be listed administratively for the June sittings of the Court of Criminal Appeal, so that the appeal and the application to dismiss might be heard together. By a letter dated 18 April 2002, the Crown wrote to Mr Burgoyne in those terms. By a letter dated 7 June 2002, counsel for Mr Roddan, Mr Stephenson, wrote to the ODPP requesting assistance to locate a large number of documents.
The appeals came on before Scott J on 24 June 2002. Mr Roddan was represented by Mr Stephenson. Mr Roddan had filed an affidavit sworn on 20 June 2002 which detailed the request to the ODPP of 7 June 2002, provided further details for the reasons behind each request and also reasons why the appeals should not be dismissed for want of prosecution. During the hearing, counsel for Mr Roddan indicated that an application might be made for the issue of subpoenas to access some of the documentation sought. The matter was adjourned to 19 August 2002 to enable the issue of access to the relevant documents to be discussed between the parties.
By a letter dated 25 June 2002, counsel for Mr Roddan requested the ODPP to provide access to documents in addition to those the subject of the request on 7 June 2002, indicating that if no response was received by 28 June 2002, an application may be made to the Court for the issue of a subpoena without further notice. By a letter dated 26 June 2002, the ODPP acknowledged the requests of 7 and 25 June 2002. It was indicated that it was unlikely that all issues could be addressed by 28 June 2002.
On 15 July 2002, Mr Roddan filed an application dated 12 June 2002 for subpoenas to issue against the ODPP and the Commissioner of Police. The ODPP was served on 17 July 2002.
On 19 August 2002, the application to dismiss and the application to issue subpoenas were both adjourned sine die in order that the ODPP consider whether to disclose the documents without the necessity of an order. By a letter dated 1 October 2002, the ODPP provided a comprehensive response to Mr Roddan regarding the information he had requested. The letter enclosed copies of various documents held by the ODPP and referred Mr Roddan to other authorities, such as the Western Australian Police Service ("WAPS") or the Australian Federal Police ("AFP") for other information requested that was not held by the ODPP.
Subsequently, the matter was relisted to be heard on 18 November 2002 before E M Heenan J. On that occasion there was no appearance on behalf of Mr Roddan. As the previously outstanding request for information directed to the ODPP had been dealt with by the ODPP, the Crown applied again for its application to dismiss to be referred to the Court of Criminal Appeal. The application was referred to the Court to be heard on 28 January 2003. In the meantime, the appeal itself was referred to the Listings Directorate with a view to allocating a hearing date, in the event that the application to dismiss did not succeed. In addition, appeal books and written submissions were ordered to be served by 31 December 2002. The ODPP was required to inform Mr Roddan's solicitors of these orders within 72 hours. This was done on 20 November 2002.
The matter came before Miller J on 28 January 2003. Orders were made that Mr Roddan have leave to issue subpoenas in terms of the application dated 12 July 2002, returnable on 11 March 2003, with submissions objecting to production to be filed four days prior to the hearing and Mr Roddan's response to be filed two days prior to the hearing.
On 11 March 2003, the parties attended at the return of the subpoenas before Roberts‑Smith J. The ODPP had not filed submissions in respect of the subpoenas but responded orally to each of the twelve items on the subpoena. His Honour was displeased with the way in which the ODPP had responded. Counsel for Mr Roddan indicated that they would not pursue item 1, which was likely to be privileged. In respect of item 2, the transcripts of AFP interviews, the ODPP indicated that the transcripts were with the Kennedy Royal Commission. Mr Roddan suggested that this problem be resolved by issuing a subpoena to the AFP, leave for which was granted. The application for the second subpoena was dismissed in respect of item 1, which was adjourned to a date to be fixed by the parties.
The matter next came before the Court before Barker J on 13 May 2003. Mr Roddan then agreed to release the AFP from the subpoena based on discussion with the AFP, which indicated that they did not hold the relevant documents. Prior to the hearing, the WAPS had produced a range of documents covered by item 2, notwithstanding that the subpoena in respect of the WAPS had been discharged. Mr Roddan informed the Court that the remaining documents would be disclosed by agreement with the WAPS before 23 May 2003. The appeals were then adjourned to 16 July 2003 before a single Judge. On that date, both parties attended before Miller J. Counsel for Mr Roddan indicated that an agreement had been reached with WAPS for access to the relevant documents, but counsel required more time to view them. The Crown noted, evidently in ignorance of the earlier dual allocation of file numbers, that Court records indicated that the appeal numbered CCA 263 of 2000 was an application for leave to appeal against sentence, not an appeal against conviction. The matter was then adjourned to 3 September 2003.
On 3 September 2003, the appeal came on before Barker J. The Crown indicated that it would not oppose the appeal against sentence being substituted by the appeal against conviction, based on an affidavit by Mr Roddan explaining how the appeals were lodged together and the apparent error by the Registry. Counsel for Mr Roddan then indicated that further evidence relating to the complainant's credibility had emerged in the previous 48 hours from the Kennedy Royal Commission, in both a public and a confidential report, which allegedly detailed how several ODPP staff had concluded that the complainant was not a witness of truth. Mr Roddan then indicated that an application to adduce fresh evidence might be made but Mr Roddan required further time to amend the grounds of appeal to deal with evidence about the complainant's credibility. Counsel for Mr Roddan indicated that this 1998 ODPP report was the last piece of evidence required and that he did not expect there to be more.
His Honour allowed an amendment to the grounds of appeal in terms of annexure A to an affidavit sworn on 30 April 2003 which substituted the provocation grounds. The application for leave to appeal was adjourned to 6 October 2003 on the basis that any further amendments to the grounds of appeal be made seven days prior to the hearing. As to the application to adduce fresh evidence, counsel for Mr Roddan indicated that a subpoena may be sought against the ODPP for access to the material that emerged in the Royal Commission, namely, a nolle prosequi recommendation on another charge involving the same complainant.
On 6 October 2003, the parties appeared before Pullin J. It appears that the grounds of appeal were then amended in terms of a minute dated 2 October 2003. Counsel for Mr Roddan, Mr Stephenson, undertook to write to the Court to ascertain when a decision of Roberts‑Smith J would be delivered, suggesting that such a decision had been reserved on 11 March 2003. Mr Stephenson foreshadowed that he would be making an application to adduce fresh evidence at a special appointment in respect of which all affidavits on behalf of Mr Roddan had been filed. As a consequence, the matter was adjourned with motions to be filed by 11 November 2003.
On 25 November, the matter came before Miller J. His Honour anticipated that there would be a subpoena against the Royal Commission in relation to the nolle prosequi memorandum. Mr Roddan appeared in person but did not make such an application. His Honour commented adversely on representations made on 6 October 2003 by Mr Stephenson to the effect that there were matters on which Roberts‑Smith J had reserved his decision on 11 March 2003. This was not the case. The matter was adjourned to 29 January 2004 and the Crown again invited to make an application to strike out the appeals for want of prosecution.
On 24 December 2003, the ODPP received a Notice of Ceasing to Act from Mr Burgoyne of D G Price & Co. On 29 January 2004, Mr Roddan failed to appear before McKechnie J. His Honour then listed the Crown's application to strike out at the next sittings of the Court of Criminal Appeal on 1 June 2004. In the meantime, on 18 May 2004, the ODPP served on Mr Roddan a Notice of Motion to dismiss the appeal for want of prosecution. The application was supported by an affidavit of Lester Hobson sworn 13 May 2004 and an affidavit of service by Curtis Roe sworn 18 May 2004. Due to an administrative error, however, the Notice of Motion filed and served by the ODPP gave the date of the hearing as Thursday, 1 June 2004 instead of Tuesday, 1 June 2004. Mr Scutt of the ODPP telephoned Mr Stephenson on 27 May 2004 and was told by Mr Stephenson that he no longer acted for Mr Roddan.
The application was listed for hearing before the Court of Criminal Appeal on 1 June 2004. The Court was told by counsel for the ODPP that attempts were made to contact Mr Roddan once it was realised there had been an error, but they had been unable to re‑serve him with any documents because they had been unable to contact him. In the result, on 1 June 2004 the Court dismissed the application on the basis that the Crown could make a further application.
It was against this background that the Crown made a fresh application to strike out both the assault conviction appeal and the assault sentence appeal, both numbered CCA 263 of 2004, for want of prosecution.
So far as the appeal against conviction is concerned, until approximately September 2003, Mr Roddan understood the matter to be progressing in the care of Mr Stephenson. He became aware, however, that a conflict had developed between his instructing solicitor and counsel, resulting in matters not being attended to as he would expect. Mr Roddan said in his affidavit:
"I do not wish to comment on this conflict other than to say I have no cause for concern regarding the efforts of Mr Burgoyne."
In the result, his relationship with Mr Stephenson began to deteriorate resulting in Mr Burgoyne subsequently getting off the record for reasons Mr Roddan said he fully supported.
Mr Roddan says when he appeared before the Court on 25 November 2003 before Miller J, comments were made to him that Mr Stephenson had misled the Court when he appeared before Pullin J on 6 October 2003. Mr Roddan said he was concerned by the comments made by the learned Judge as he was of the view that the matter should have been determined by this time. He was also concerned that Mr Burgoyne was blamed for the delay. In the result, matters between Mr Stephenson and Mr Roddan were said to have deteriorated to the extent that he had briefed counsel "to deal with Mr Stephenson". Although he had been advised that his concerns ought to be the subject of a complaint to the Legal Practitioners Complaints Committee, Mr Roddan said that his preferred option was that the matters be dealt with amicably and resolved with Mr Stephenson, but as Mr Roddan put it:
"Until such time as matters can be resolved with Mr Stephenson, there is little I can do to progress this matter."
On 28 August 2004, Mr Roddan was personally served by a police officer with a true copy of:
(a)a letter from the ODPP dated 27 August 2004;
(b)an application to strike out appeal for want of prosecution listed for hearing on 8 September 2004; and
(c)the affidavit of Mr Hobson sworn 27 August 2004 in support of the application.

On 8 September 2004, the matter came before the Court of Criminal Appeal constituted by Murray, Steytler and Templeman JJ. Initially there was no appearance by Mr Roddan at the appointed time, although steps were taken to determine whether he was in the precincts of the Court. There being no appearance on the part of Mr Roddan, Murray J then commenced to give some oral reasons for granting the application by the Crown. Before those reasons were fully delivered, Mr Roddan appeared in person. He apologised and indicated that he had difficulty finding a parking place and was attempting to find out where the matter was being heard. He said he had been in no position to do anything and referred to the last occasion when he appeared before the Court and Miller J had made comments about his then counsel misleading Pullin J. He indicated that he had some issue with counsel who had been dealing with the matter. He had been told that the ODPP had failed to supply information to counsel which they had agreed to supply.
Mr Roddan said that the application for leave to appeal against sentence was withdrawn before Scott J. He explained that he had not appeared on the correct date because the notice he had been given had given the wrong day. He explained that because of his difficulties with counsel he had not been able to get the papers and was waiting for a final opinion from new counsel to decide whether to issue proceedings against his former counsel or make a formal complaint to the Legal Practitioners Complaints Committee or, hopefully, reach some form of "amicable resolution" of the disputes. In the result, the Court decided that it would not dispose finally of the application to dismiss for want of prosecution. The application was adjourned sine die. An order was made that Mr Roddan file and serve an affidavit within 21 days dealing with the reasons for the delay, the steps taken by him to put himself or his solicitors in possession of the documents which he believed to be necessary to enable the appeal to proceed and state what arrangements he had made so as to indicate what the future progress of the matter would be. It was ordered that Mr Roddan's affidavit having been filed and served within 21 days, the Crown would have leave to file any further affidavit it wished to rely on within a further 14 days. Leave was given to either party to make an application to relist the application before the Court for final determination. It was made clear to Mr Roddan that the orders made left him free to progress the appeal and that what ultimately happened with his application could very well depend upon what he did in that respect.
On 7 October 2004, in an affidavit sworn and filed on the same day, Mr Roddan deposed to the fact that in or about November 2001 he instructed Mr Burgoyne to brief Mr Stephenson on the appeal. Prior to that date, it had come to Mr Roddan's attention that there had been an error when he filed the documents as the Criminal Registry at the Supreme Court had inadvertently filed the appeal as an appeal against sentence only and returned the documents relating to the appeal against conviction, which had been stamped by the Court, to Mr Stephenson. Mr Roddan says this error was only brought to his attention after a number of further appearances before a single Judge of the Court of Criminal Appeal. He had previously appeared before Scott J and had already served the sentence imposed and withdrawn the application for leave to appeal against sentence. He pointed out that because his relationship with Mr Stephenson had become strained, he did not have access to the papers relating to the appeal when completing his affidavit. He made it clear that he wished to abandon his application for leave to appeal against sentence, should the Court record not already reflect that fact.
The Court now has before it an affidavit sworn by Mr Roddan on 28 February 2005 in par 3 of which he says he relies on his submission in opposition to the strike‑out application. In par 4 he said that he was unable to appear that day due to prior work commitments, presumably as a mine manager in the mid‑west. He says that he had arranged for an unnamed legal practitioner to appear on his behalf, but that "this was cancelled at the last moment and I have been unable to find an alternative practitioner to appear on my behalf".
Mr Roddan also says in his affidavit that since the matter was last before the Court, he has been absent from Perth for a substantial part of the time in his work as a mine manager. He says he was in hospital at Meekatharra in December 2004 as a result of receiving burns to his face from a gas explosion. This event, together with his work commitments, and the "festive season" has put him substantially behind in his commitments.
Mr Roddan says that Mr Garry Lawton, a solicitor with Lawton Gillon, has authorised him to inform the Court that, if Mr Roddan is able to provide him with the papers relating to this matter, he was prepared to prosecute the appeal in a timely manner. Currently, Mr Roddan's file is held by Mr Stephenson, who claims a lien over it, presumably in respect of costs, which Mr Roddan says he disputes. There are now issues between Mr Roddan and Mr Stephenson in relation to alleged neglect and misconduct by Mr Stephenson. Mr Roddan says that he has instructed Ms Coulsen of counsel to demand a copy of the relevant file from Mr Stephenson so that Mr Roddan's appeal may be prosecuted. Mr Roddan contends that as he has served the penalty imposed, the prospect of the Court ordering a retrial would be "nil".
The affidavit initially filed by Mr Roddan in response to Mr Hobson's affidavit, namely, his affidavit of 7 October 2004, did not address the particular matters that the Court required him to address, namely, precisely what steps he would take to ensure that the appeal could proceed. Mr Fiannaca, who appeared for the Crown, informed the Court that on 1 March 2005, he received a fax dated 28 February 2005 from Mr Roddan attaching a further affidavit sworn on 28 February 2005. In that affidavit, Mr Roddan says that he was unable to appear before the Court at the hearing on 1 March 2005:
"… due to prior work commitments in the mid‑west. I had arranged for a legal practitioner to appear on my behalf however this was cancelled at the last moment and I have been unable to find an alternative legal practitioner to attend on my behalf."
He acknowledges that the history of the matter "is far from satisfactory as evidenced by the Court record". He refers to the fact that the matter was previously in the conduct of Mr Stephenson and ought to have been disposed of "long ago". It is plain that the problem regarding the availability of documents could be solved by obtaining copies from the Court or from the ODPP.
In my opinion, Mr Roddan has been given every opportunity and considerable indulgence by the Court to proceed with his appeal against conviction and application for leave to appeal against sentence, but has failed to take adequate steps to do so. It is now more than four years since these proceedings were commenced. Section 697 of the Criminal Code (WA) confers on the Court of Appeal in exercising the jurisdiction formally exercised by the Court of Criminal Appeal all the powers which were exercised by the Full Court in civil appeals under O 63 r 7 of the Rules of the Supreme Court 1971 (WA): see R v Mickelberg (1996) 90 A Crim R 126, Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698, 7 October 1998; and Roddan v The Queen, unreported; CCA SCt of WA; Library No 960733, 19 December 1996.
In R v Mickelberg, (supra), at 129, in a judgment with which Murray and Steytler JJ agreed, I said in relation to the power to dismiss for want of prosecution:
"What then is the test to be applied? Counsel for the respondent has submitted that the test to be applied is that which would be applied in civil appeals; namely, the test which was most recently applied in the Full Court in Lewandowski v Lovell [(1994) 11 WAR 124] at 132‑133 in the judgment of Murray J. His Honour referred to the decision in the House of Lords in Birkett v James [1978] AC 297 and applied the statement of the general principles applicable by Lord Diplock which was in the following terms (at 318):
'The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.'"
In my opinion, it is sufficient in this case that there has been inordinate and inexcusable delay on the part of Mr Roddan and his

lawyers which, given the length of time involved and the opportunities extended to Mr Roddan by way of extension of time, has been such that there has been an abuse of the process of the Court.

In my opinion, the explanations and actions taken by Mr Roddan in relation to this matter are entirely unsatisfactory, taking full account of the allegations made regarding the conduct of Mr Stephenson. In my opinion, Mr Roddan has contributed substantially to the delay by not taking steps open to him to arrange alternative representation, having regard to the alleged failure of Mr Stephenson to prosecute the appeal. There is nothing in the materials before the Court which satisfies me that this appeal is likely to be prosecuted and prepared for a hearing within a reasonable time. In my opinion, both the appeal against conviction and the application for leave to appeal against sentence should be dismissed for want of prosecution.
MCLURE JA: The State applied to strike out for want of prosecution the appellant's appeal against conviction and his application for leave to appeal against sentence. At the conclusion of the hearing the Court dismissed the appeal and the application for leave for want of prosecution. These are my reasons for doing so.
On 16 November 2000 the appellant was convicted after trial of one count of assault occasioning bodily harm contrary to s 317 of the Criminal Code (WA). He was sentenced to 18 months' imprisonment, suspended for 18 months, for that offence. On 7 December 2000 the appellant filed an appeal against his conviction for assault and on the same date, filed an application for leave to appeal against his sentence for that offence. Both matters were assigned the same court reference number, being CCA 263 of 2000. Unless the context otherwise requires, I refer to both matters as the appeals.
The appeals have a very long history. The history up to 1 June 2004 is detailed in an affidavit of Lester Hobson sworn on 27 August 2004 and referred to in the reasons of the Chief Justice. I do not repeat it here. The evidence establishes that in the period 7 December 2000 to 1 March 2005 there have been more than 20 court hearings relating to the appeals. The majority of the hearings were before a single Judge for programming and interlocutory matters. The appellant represented himself at some of the hearings, was represented by counsel at others and, on a significant number of occasions, failed to appear either in person or by a solicitor. As appears from the history, the State has made a number of applications to strike out the appeals for want of prosecution. The first was heard in May 2001 after the appellant had failed to appear at hearings in January

and February 2001. The final strike‑out application first came before the Court of Criminal Appeal on 8 September 2004. When the matter was called, there was no appearance for the appellant. In the course of the presiding Judge stating his reasons for allowing the State's application, the appellant appeared. He informed the Court from the bar table that the reason he had been unable to progress the appeal was that he was then in dispute with his former counsel, Mr Stephenson, and was unable to obtain the relevant papers from him. It was put to the appellant by members of the Court that there appeared to be alternative sources of the documents required for the appeal, including the Court Registry and the Office of the Director of Public Prosecutions who had supplied documents (or provided his counsel with access to them) pursuant to an agreement. The Court decided to adjourn the application and required the appellant to file an affidavit within 21 days identifying the arrangements he was making to put himself in possession of the necessary documentation to enable the appeal to be advanced and the arrangements he intended to make for the future progress of the appeal. The Court also informed the appellant that the steps he took to progress the appeal before the next hearing was likely to determine the fate of the strike‑out application.

The matter came before this Court on 1 March 2005. The appellant did not appear and was not represented by counsel. However, he had sworn, filed and served two affidavits; the first was sworn on 7 October 2004 and the second on 28 February 2005. In the first affidavit the appellant states his belief that the application for leave to appeal against sentence had been withdrawn and advised that he wished to abandon that application should the Court record not already reflect that fact. The Court record does not reflect the withdrawal and the appropriate course was to deal with the State's application. Otherwise, the affidavit relevantly refers to the breakdown in his relationship with Mr Stephenson and states that he did not have access to the papers relating to the appeal and could not progress it until the dispute with Mr Stephenson was resolved. In his second affidavit the appellant swears that a solicitor has agreed to act for him in the appeal and prosecute it in a timely manner "if I am able to provide him with the papers relating to this matter".
The clear inference from the appellant's affidavits is that he has taken no steps to secure the documents from other sources such as the Supreme Court Registry or the Office of the Director of Public Prosecutions and has done nothing of significance to progress the appeals. He was put on notice by the Court on 8 September 2004 that these matters would weigh heavily against him in the exercise of the discretion on the strike‑out application.

The power to strike out or dismiss a proceeding for want of prosecution is exceptional and should only be exercised in clear cases: Bilos v State of Western Australia [2004] WASCA 94. On any assessment, there has been inordinate and inexcusable delay on the part of the appellant in the prosecution of the appeals. At various times throughout the history of this matter the appellant (by himself or his counsel) has sought and obtained the indulgence of the Court to his continuing failure to properly progress the appeals. He was given very significant latitude. The appellant effectively resisted the Court's attempts to case manage the appeals to hearing in a timely fashion. Having regard to the appellant's conduct as a whole in the long and tortured history of this matter, I was satisfied that he had no intention of progressing the appeals in a proper or timely manner, or at all, to final hearing and determination. That is an abuse of the process of the Court.
PULLIN JA: I have read in draft the reasons prepared by McLure JA. I agree with those reasons and have nothing to add.