Roth*Beirne v The State of Western Australia - [2006] WASCA 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROTHBEIRNE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 155

CORAM: ROBERTS-SMITH JA

HEARD: 27 JULY 2006

DELIVERED : 27 JULY 2006

FILE NO/S: CACR 101 of 2005
CACR 102 of 2005

BETWEEN: SALLY ROTHBEIRNE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
File No  :IND ALB 32 of 2004

Catchwords:

Criminal law and procedure - Appeal - Application for leave to appeal against conviction and sentence - Failure to comply - Application by respondent for dismissal of appeal for want of prosecution - Power of single Judge to dismiss appeal under r 43(2)(g) if applicant has not obeyed Rules or any order made under them

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(ii)

Result:

Application for leave to appeal dismissed pursuant to r 43(2)(g)(ii)

Category: B

Representation:

Counsel:

Applicant: No appearance
Respondent: Mr M R Jones

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

ROBERTS-SMITH JA: This is an application by the respondent for an order pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) that the applicant's notices of appeal be dismissed due to non‑compliance with r 32(2)(b) of the Rules.
The application is supported by two affidavits: the first is one of Mr John Carberry sworn 17 July 2006, which is an affidavit of service certifying that service of the application and the affidavit of Craig Jeffrey Astill in support of it was effected by handing a true copy of those documents to the applicant personally on 17 July 2006 at Torbay.
The affidavit of Mr Astill sets out the history of the matter in broad terms. CACR 101 of 2005 is a notice of appeal against conviction and CACR 102 of 2005 is a notice of appeal against sentence for an offence of possession of cannabis to which the applicant pleaded guilty in the Albany sittings of the District Court. The notice was filed on 20 May 2006. The notice is brief in the extreme and by no means clear. It appeared to indicate there was a sentence of 18 months' imprisonment suspended for 18 months and indeed my recollection is that that is what Ms Roth-Beirne said to me on a previous occasion on which she did appear.
On that earlier occasion she appeared to explain that her appeal was on the basis that she wanted citizenship and a suspended sentence was an impediment to that. She said on 24 November 2005, speaking of an intensive supervision order, that she would like it lowered or quashed, as she put it, because she could not claim citizenship until that was finished in May "next year"; that is to say, May 2006 and she thought that was "a little excessive of the Judge".
The grounds of appeal simply read, "Excessive sentence and order. And I was convicted of a quantity I did not have, wrongly convicted".
An examination of the District Court file indicates that on 8 November 2004, the applicant pleaded guilty to the offence of possessing cannabis on 23 October 2003. When she entered that plea she said she was pleading guilty to simple possession and that she did not have 500 grams, which was the amount alleged by the prosecution.
At that time the applicant was represented by Mr Kevin Prince. On that same occasion she also admitted a breach of a suspended sentence order imposed by French DCJ on 16 September 2003. That was a suspended sentence of two years' imprisonment suspended for two years. It had been imposed for one count of cultivating cannabis with intent, to which charge she had pleaded not guilty and was convicted after trial.
The offence of 23 October 2003, according to the prosecutor's statement of facts to her Honour, involved 498.1 grams of cannabis. For the breach of the suspended sentence O'Brien DCJ reimposed a sentence of 12 months' imprisonment suspended for 18 months and on the possession of cannabis conviction she made an intensive supervision order for 18 months.
On 29 November 2004 the State applied to the District Court for correction of the suspended sentence on the basis that the Sentencing Act 1995 (WA) did not empower her Honour to reduce the term of imprisonment, only to reduce the term of suspension. O'Sullivan DCJ subsequently corrected the sentence and imposed a sentence of two years' imprisonment suspended for 18 months on 5 September 2004.
The notices of appeal were filed on 20 May 2005, together with an application for extension of time. In her supporting affidavit in respect of the application for extension of time the applicant said that the delay in filing her notices was due to "severe legal stresses".
The applicant's appeals were listed before me on 24 November 2005 for mention and on that occasion the applicant appeared in person without legal representation.
The proceedings were adjourned to 19 January 2006 in order to allow the applicant to pursue an application for a grant of legal aid. On 9 March 2006 the proceedings were relisted before me and on that occasion the applicant failed to appear. I was informed by the then Legal Aid representative, Ms Parsons, that the applicant's application for a grant of legal aid had been declined and at that date no application had been received from her for reconsideration of that decision.
The proceedings were adjourned for the applicant to file her outline and Appellant's Case. The matter was relisted before me again on 11 May 2006 and again the applicant failed to appear. Ms Farley appeared on behalf of the applicant as amicus curiae to assist the Court. She told me that the applicant wished to continue with her appeal but had only made sporadic contact with Ms Farley.
At that hearing counsel for the respondent foreshadowed the making of an application should the applicant again fail to appear. The proceedings were adjourned to 8 June 2006 in order to allow Ms Farley to make contact with the applicant. On that date, 8 June 2006, the applicant again failed to appear before the Court and the proceedings were adjourned to today. On 8 June the Court was advised by Ms Zillessen, amicus curiae on behalf of the Legal Aid Commission, that the applicant had requested review of her application for a grant of aid. That review was to take place on 21 June 2006.
I am now informed that legal aid was subsequently refused on review. There is accordingly no further avenue for the applicant to seek or obtain legal aid through the Legal Aid Commission.
The applicant, according to Mr Astill's affidavit, has had no contact with the respondent since the lodging of her notices of appeal. Pursuant to the Rules, the Appellant's Case was required to be filed by the applicant within 35 days after the filing of the notices of appeal. The last day on which the applicant could have filed her Appellant's Case was 26 June 2005. That is, of course, obviously now over a year ago.
The applicant has failed to appear today, notwithstanding the personal service upon her of the application. Of course the period of the 18 months' intensive supervision order and suspension of sentence has now expired. To that extent at least, and having regard to the expressed reason of the applicant for wishing to appeal, namely that she could not apply for citizenship until those orders were no longer in force, that reason seems to therefore have disappeared.
In any event there has been nothing put to the Court which would suggest any reasonable prospect of success on the grounds of appeal as they currently stand. The reason for that is because the applicant has failed wholly to comply with the requirements of the Rules, notwithstanding the extensive time which has passed since the filing of her notices of appeal. Under these circumstances the respondent's application must succeed. Each appeal will be dismissed pursuant to r 43(2)(g)(ii) of the Rules. I will order accordingly.