Said v Watson - [2019] WASCA 72

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SAID -v- WATSON [2019] WASCA 72
CORAM:   BUSS P
MITCHELL JA
PRITCHARD JA

HEARD:   8 MAY 2019
DELIVERED          :   8 MAY 2019
PUBLISHED           :   10 MAY 2019
FILE NO/S:   CACR 132 of 2018
BETWEEN:   MICHAEL NASSIB SAID
Appellant

AND

GEOFF WATSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: SAID -v- WATSON [2018] WASC 181
File Number             :   SJA 1057 of 2017

Catchwords:

Criminal practice - Application for an extension of time in which to file an appellant's case following dismissal of appeal for failure to file an appellant's case - Turns on own facts

Legislation:

Road Traffic Code 2000 (WA), reg 197(2)

Result:

Application for an extension of time in which to file an appellant's case is dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr D E Leigh

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

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

Wharton v The Queen [No 2] [2015] WASCA 176

REASONS OF THE COURT:

At the conclusion of the hearing of the appellant's application for an extension of time in which to file and serve an appellant's case, we made an order dismissing the application. These are our reasons for making that order.
On 21 August 2017, the appellant was convicted in the Magistrates Court of an offence against reg 197(2) of the Road Traffic Code 2000 (WA), and fined $50. The prosecution notice alleged that, on 16 September 2016 at Wellington Street, Perth, the appellant contravened a red pedestrian signal. The offence is commonly referred to as 'jaywalking'. At trial, the only contentious element of the offence was whether the pedestrian signal facing the appellant was showing red when he entered the intersection.
The appellant filed an appeal notice in the General Division of the Supreme Court on 22 September 2017, in which he sought an extension of time in which to appeal against his conviction. On 20 June 2018, the primary judge made orders refusing an extension of time in which to appeal, refusing leave to appeal on all grounds and dismissing the appeal. Her Honour published written reasons for making those orders, in which she concluded that there was no merit in any of the appellant's proposed grounds of appeal.[1]
[1] Said v Watson [2018] WASC 181.
On 10 July 2018, the appellant filed an appeal notice seeking leave to appeal against the primary judge's orders. Despite being given a number of extensions of time in which to do so, the appellant has never filed an appellant's case that complies with the Supreme Court (Court of Appeal) Rules 2005 (WA).
On 19 February 2019, Mazza JA ordered that the time for the appellant to file and serve his appellant's case be extended to 4.00 pm on 1 March 2019, failing which the appeal was to be dismissed (springing order). The appellant attempted to file an appellant's case on 1 March 2019, but the document was not accepted for filing as it did not comply with the Rules. The springing order made by Mazza JA sprung when the appellant failed to file an appellant's case which complied with the Rules within the required time. A Certificate of Conclusion of Criminal Appeal was signed by a Registrar of the Court on 5 March 2019.
By an application in the appeal filed on 12 March 2019, the appellant seeks a further extension of time to file and serve his appellant's case, to 7 June 2019. At the hearing, the appellant indicated that he would not be in a position to prepare an appellant's case by 7 June 2019, and would now require a longer (unspecified) extension for that purpose.
The principles relevant to the exercise of this court's discretion to extend time to comply with a springing order even though the time for compliance has passed are well established and need not be repeated.[2]
[2] See Wharton v The Queen [No 2] [2015] WASCA 176 [48] - [52].
We were not satisfied that it was in the interests of justice to grant the appellant a further extension of time in which to file and serve his appellant's case, having regard to the following matters.
First, the appeal to this court has been on foot since 10 July 2018, and the appellant has been given a number of extensions of time in which to file his appellant's case. By application dated 3 September 2018, the appellant sought, amongst other things, an order for a two month extension of time to file his case after his receipt of copies of documents which he considered pertained to the appeal he had filed in this Court, and to the appeal at first instance. On 3 September 2018, the appellant was granted an extension of time within which to file and serve the appellant's case to Friday 2 November 2018.
On 26 October 2018, the appellant made an application for further orders in the appeal, including, amongst other things, an order that the time in which he was to file and serve all documents in the appeal be extended until a further 2 months after the appellant had obtained access to various documents.
On 2 November 2018, the appellant filed a consent notice, indicating that the respondent had consented to an extension of time to 8 February 2019, in which to file the appellant's case in the appeal. At that point, the appeal was listed for a directions hearing before Mazza JA on 23 November 2018.
At the hearing on 23 November 2018, the appellant submitted that he required the 3 month extension of time because he needed to obtain further copies of documents that he considered pertained to the appeal. Mazza JA granted the extension of time until 8 February 2019, and made a further springing order, ordering that if the appellant's case was not filed by that time, the appeal would stand dismissed.
On 6 February 2019, the appellant applied for a further extension of time, until 5 April 2019, in which to file and serve the appellant's case. In his affidavit in support of that application, the appellant referred to some health issues that he had experienced, and indicated that he had had some difficulty in preparing the appellant's case due to his limited access to public computer facilities.
On 7 February 2019, Buss P ordered that the time for the appellant to file and serve the appellant's case be extended to 22 February 2019, failing which the appeal would be dismissed. The appellant's application in an appeal dated 6 February 2019 was then listed for a hearing before Mazza JA on 19 February 2019.
On that occasion, Mazza JA made the further springing order to which we referred at the outset, extending the time for the appellant to file and serve the appellant's case to 4.00 pm on 1 March 2019, failing which the appeal was to be dismissed. That springing order has since come into effect, giving rise to the present application.
Secondly, the appellant has filed two affidavits, sworn 12 March 2019 and 1 April 2019, in support of his application for a further extension of time. Those affidavits assert the existence of a wide‑ranging conspiracy against the appellant by a very large number of persons. While they refer to some ongoing health issues from which the appellant suffers, those affidavits do not adequately explain why an appellant's case has not been filed or made ready for filing notwithstanding the extensions already granted.
Thirdly, we note that, while the appellant is unrepresented, the factual and legal issues relating to the offence with which the appellant was charged, and those raised at trial and on appeal, at least at first instance, were not complex. The extensions of time already granted permitted ample time for the appellant to prepare, file and serve his case on the appeal. We note that the appellant has not annexed to his affidavits grounds of appeal or a draft of the appellant's case he would file if an extension of time were granted.
Fourthly, while there would have been no prejudice to the respondent (who did not seek to be heard in respect of the appellant's application for an extension of time) if a further extension was granted, the refusal of the present application does prejudice the appellant's capacity to seek to impugn his jaywalking conviction. However, nothing in the affidavits filed by the appellant provides any grounds for apprehending that there was any miscarriage of justice involved in the appellant's conviction, or for doubting the correctness of the orders made by the primary judge.
In all the circumstances, we were not satisfied that refusing a further extension of time would give rise to any injustice. The application dated 12 March 2019 for a further extension of time in which to file and serve an appellant's case was therefore refused.
The appellant also sought orders that the State of Western Australia and the Attorney General for Western Australia be joined as respondents to the appeal. It was unnecessary to deal with that aspect of the application in view of the fact that the appeal has already been dismissed.
For these reasons, we dismissed the application in an appeal filed on 12 March 2019 at the conclusion of the hearing of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell
10 MAY 2019