Ryll v The State of Western Australia
[2006] WASCA 114
•19 MAY 2006
RYLL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 114 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:86/2005 | 19 MAY 2006 | |
| Coram: | PULLIN JA | 19/05/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal on ground 2 dismissed | ||
| B | |||
| PDF Version |
| Parties: | DEREK EASTWOOD RYLL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43g(ii) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RYLL -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 114 CORAM : PULLIN JA HEARD : 19 MAY 2006 DELIVERED : 19 MAY 2006 FILE NO/S : CACR 86 of 2005
- CACR 87 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
File No : IND 774 of 2003
Catchwords:
Criminal law - Application for leave to appeal - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43g(ii)
(Page 2)
Result:
Application for leave to appeal on ground 2 dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No Appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 PULLIN JA: The appellant was convicted of aggravated burglary and fined $1000. The appellant appeals against both the conviction and the sentence. In relation to both appeals the grounds read as follows:
"(1) I was denied the benefit of the precept
(2) It is a double punishment."
2 On 23 February 2006 I made an order that within 14 days the appellant file written submissions expanding on and explaining the grounds of appeal. That order was not complied with and so it would be possible to make an order striking out the appeal because of non-compliance with that order. Rule 43(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that:
"A judge may dismiss an appeal if the appellant has not obeyed any order made under them."
3 Subsequently, because of the non compliance with that order, this application for leave to appeal was listed and the appellant was given limited time to make submissions in relation to it and he was told that he should be ready to make submissions as to why the appeal should not be dismissed pursuant to r 43 as a result of his failure to comply with the rules.
4 The appellant has appeared today and because he has appeared and explained what he means by the first ground I would not strike out the appeal because of his failure to comply with my order, although if subsequent orders are made in relation to other aspects of this appeal he increases the risk that the appeal will be struck out if orders made by this court are not complied with.
5 In relation to ground 2, the ground which reads "It is a double punishment", information has been given to me from the Bar table which I am prepared to act upon. It seems, as the appellant explains, that he was made the subject of a restraining order which prohibited him from going near to the premises of, he tells me, his stepdaughter. He breached that restraining order. He then pleaded guilty to a charge that he breached the restraining order.
6 Subsequently he was charged with aggravated burglary. He was convicted of that offence and it is that conviction and the sentence that was imposed in relation to it which he appeals against.
(Page 4)
7 The submission that there was double punishment is made by the appellant on the basis that he could not be convicted of both the breach of the restraining order and the aggravated burglary, but that is to misunderstand what is involved in the concept of double punishment and double jeopardy. The elements of the offences are quite different. The restraining order required the appellant not to go within a certain distance of the premises and he breached that by not complying with its terms. In relation to the burglary charge the issues and elements of the offence are not the same.
8 In my opinion I should not grant leave to appeal on that ground. The application for leave to appeal is made under s 27(2) of the Court of Appeal Act and it provides the court must not grant leave unless a ground has a reasonable prospect of succeeding and in my opinion the second ground has no reasonable prospect of succeeding. On that basis I would refuse leave in relation to the second ground in both appeals.
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