Santos v The State of Western Australia
[2011] WASCA 216
•7 OCTOBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 216
CORAM: McLURE P
BUSS JA
HALL J
HEARD: 6 MAY 2011
DELIVERED : 6 MAY 2011
PUBLISHED : 7 OCTOBER 2011
FILE NO/S: CACR 73 of 2011
BETWEEN: JAMIESON ANDREW SANTOS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
First RespondentJOSEPH FRANK MICALIZZI
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- MICALIZZI & SANTOS [2011] WADC 70
File No :IND 1616 of 2008
Catchwords:
Criminal law - Appeal against order to grant separate trials - Amendments under the Criminal Law and Evidence Amendment Act 2008 (WA) - Whether appeal time barred - Whether amendments operated retrospectively - Turns on own facts
Criminal law - Appeal - Whether right to appeal accrued - Right to appeal accrued when factual foundation for appeal exists - Expectation not the foundation of an accrued right
Criminal law - When is a trial considered to have been 'listed to commence' - Whether deferral of empanelment has any significance
Criminal law - Separate trial - Whether appellant unduly prejudiced at a joint trial - Existence of possible prejudice - Whether any prejudice can be guarded against by appropriate directions
Legislation:
Criminal Appeals Act 2004 (WA), s 23(1), s 26, s 27(2)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Procedure Act 2004 (WA), s 89, s 98, s 133, s 136, s 137, s 142
Criminal Procedures Rules 2005 (WA), r 24, r 29, r 33, r 34, r 65(2)
Evidence Act 1906 (WA), s 5, s 8(1), s 31A
Interpretation Act 1984 (WA), s 3(1), s 5, s 9, s 16(2), s 19(1), s 37
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal dismissed
Application for a stay dismissed
Category: A
Representation:
Counsel:
Appellant: Mr P B Cassidy & Ms J Seif
First Respondent : Ms C Barbagallo & Ms K A White
Second Respondent : Mr A E Eyers
Solicitors:
Appellant: Thames Legal
First Respondent : Director of Public Prosecutions (WA)
Second Respondent : Porter Scudds
Case(s) referred to in judgment(s):
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471
Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139
Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Director of Public Works v Ho Po Sang [1961] AC 901
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430
Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188
Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379
Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671
Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65
Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
McKain v RW Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1992) 174 CLR 1
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
R v Wheeldon (1978) 18 ALR 619
Robertson v City of Nunawading [1973] VR 819
Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
Rogers v The Queen (1994) 181 CLR 251
Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245
Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v Micalizzi [2010] WASCA 147
The State of Western Australia v Micalizzi and Santos [2011] WADC 70
The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229
The State of Western Australia v Russell [2009] WASCA 154
Victrawl Pty Ltd v Telstra Corporation [1995] HCA 51; (1995) 183 CLR 595
Winning v The Queen [2002] WASCA 44
Table of Contents
McLure P's reasons.................................................................................................................. 6
Buss JA's reasons...................................................................................................................... 6
The circumstances of the offences as alleged by the State
The State's fundamental contentions
Mr Micalizzi's earlier application for separate trials
The State's initial application to adduce propensity evidence
The date on which the joint trial was listed to start
The appellant's application to vacate the trial date
The primary judge's decision to defer the empanelment of the jury
The State's second application to adduce propensity evidence
The primary judge's reasons for decision in relation to the appellant's application for separate trials
Section 133 of the Criminal Procedure Act
Do s 133(7) of the Criminal Procedure Act and s 26(5) and s 26(6) of the Criminal Appeals Act as originally enacted, or as currently enacted, apply to the present appeal?
The legislative history culminating in the amendment of s 133(7) of the Criminal Procedure Act and s 26(5) and s 26(6) of the Criminal Appeals Act
The proper construction of s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted
Section 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted: was the present appeal commenced before the day on which the trial was listed to start?
The grounds of appeal
Hall J's reasons....................................................................................................................... 32
The alleged facts
History of court proceedings
The first propensity evidence application
The separate trial application
Relevant legislation
Preliminary issue - is the appeal time‑barred?
When did the right to appeal accrue?
Is s 26(6) procedural or substantive?
When was the trial listed to commence?
Separate trial
McLURE P: I agree with Buss JA.
BUSS JA: The appellant and Joseph Frank Micalizzi have been charged with two counts on an indictment dated 27 February 2009 and filed in the District Court.
Count 1 alleges that on 5 March 2008, at Jandakot, the appellant and Mr Micalizzi had in their possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). Count 2 alleges that on the same date and at the same place, the appellant and Mr Micalizzi had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
Each of the appellant and Mr Micalizzi has pleaded not guilty to each count.
On 18 April 2011, the appellant made application in the District Court for an order, relevantly, that the joint trial of the appellant and Mr Micalizzi 'currently scheduled for 2 May 2011' be severed, and that the appellant have a separate trial. The application was made pursuant to s 133(4) of the Criminal Procedure Act 2004 (WA).
On 21 April 2011, Martino CJDC listed the separate trial application for hearing on 29 April 2011 before the trial judge, Stevenson DCJ (the primary judge). On 29 April 2011, the primary judge adjourned the application to 2 May 2011.
On 2 and 3 May 2011, the primary judge heard the separate trial application (and other applications filed by the parties). On 3 May 2011, his Honour dismissed the application. He gave extemporaneous reasons which have been edited and published as The State of Western Australia v Micalizzi and Santos [2011] WADC 70.
On 4 May 2011, the appellant filed an appeal notice in respect of the dismissal of his separate trial application. On 6 May 2011, this court heard the appeal and an application by the appellant for a stay of the criminal trial. At the conclusion of the hearing, the appeal and the application for a stay were dismissed. We said that reasons for decision would be published later. These are my reasons.
The circumstances of the offences as alleged by the State
The circumstances of the offences, as alleged by the State, are relevantly, as follows.
On 5 March 2008, at about 12.01 am, the appellant and Mr Micalizzi departed from Bankstown airport, New South Wales, in a Piper Aztec light aircraft. The appellant was the pilot and Mr Micalizzi was a passenger. No‑one else was on board. On 5 March 2008, at about 3.50 pm ‑ 4.00 pm, the aircraft landed at Jandakot airport, Western Australia.
Shortly after the aircraft arrived at Jandakot airport, the appellant and Mr Micalizzi were met and spoken to by police. The aircraft was searched and a black sports bag was located in its cargo hold. The black sports bag contained vacuum sealed bags with, in total, about 30,000 ecstasy tablets weighing 8.843 kg and other vacuum sealed bags with, in total, 21.85 kg of methylamphetamine. The estimated value of the drugs exceeds $7 million.
Each of the appellant and Mr Micalizzi denied any knowledge of the black sports bag or its contents. There is no forensic evidence to link either of them to the black sports bag or the prohibited drugs it contained.
Police found the appellant in possession of two mobile telephones. One was activated on 17 January 2008 and the other on 12 June 2007. Both telephones were registered in names and at addresses unconnected to the appellant.
Police also found the appellant in possession of almost $9,000 cash. He had paid about $1,600 cash for the fuel required to fly from Bankstown to Jandakot.
The appellant was interviewed by police at Jandakot airport. He told police, relevantly:
(a)He had flown from Bankstown to Jandakot, leaving in the early hours of 5 March 2008.
(b)He had one passenger on the flight.
(c)He did not know the name of his passenger. They did not speak during the flight. It was 'too loud' to talk.
(d)The passenger had agreed to pay for the cost of the fuel, but no payment had yet been made.
(e)He did not put the black sports bag on the aircraft. He did not see his passenger put the bag on the aircraft, but it must have been the passenger who did this.
(f)He had undertaken about three trips to Perth by light aircraft in the past 12 months.
(g)He was trying to increase his flying hours in order to obtain a commercial pilot's licence.
(h)He was bankrupt and currently 'lived off the charity' of his family.
Police found Mr Micalizzi in possession of a false New South Wales driver's licence in the name of Tony Rizzo.
Mr Micalizzi did not have any cash or credit cards.
Police also found Mr Micalizzi in possession of a mobile telephone. He had first attempted to activate this telephone on 4 March 2008. It was registered in a female's name and at an address in New South Wales where a female by that name was unknown.
An analysis of records relating to Mr Micalizzi's mobile telephone revealed:
(a)Mr Micalizzi had been in contact with two people ('Oz' and 'Bowa'), each of whom used a mobile telephone, during the flight from Bankstown to Jandakot.
(b)These two other mobile telephones were activated on 4 March 2008 at similar times and similar locations to Mr Micalizzi's mobile telephone.
(c)The two other mobile telephones were used at or about the time of Mr Micalizzi's arrest on 5 March 2008.
(d)The two other mobile telephones were registered in names and at addresses in New South Wales. People by those names were unknown at the addresses in question.
(e)Telephone contact between Mr Micalizzi, Oz and Bowa on 5 March 2008, including immediately before his arrest, was prolific. More than 100 contacts were made between these people in a period of about 15 hours.
(f)SMS exchanges between Mr Micalizzi and Oz, and between Mr Micalizzi and Bowa, established that Mr Micalizzi was to meet both Oz and Bowa in Perth upon his arrival at Jandakot on 5 March 2008.
Mr Micalizzi was interviewed by police at Jandakot airport. He made no comment apart from denying that the black sports bag and its contents belonged to him and admitting that he may have carried the bag onto the aircraft for the purpose of assisting the appellant to load the aircraft for the flight.
The State's fundamental contentions
The State's case is that the appellant and Mr Micalizzi were jointly in possession of the prohibited drugs found on the aircraft.
The State contends that the transportation of the prohibited drugs from Bankstown airport to Jandakot airport was likely to have been part of a joint criminal enterprise, and that this enterprise involved other participants in addition to the appellant and Mr Micalizzi.
The State's alternative case is that one or other of the appellant and Mr Micalizzi was in possession of the prohibited drugs.
Mr Micalizzi's earlier application for separate trials
On 1 April 2010, Mr Micalizzi made application in the District Court for separate trials. The application was heard by Martino ACJDC. His Honour granted the application and ordered that the appellant and Mr Micalizzi be tried separately. The basis for his Honour's order was likely prejudice to Mr Micalizzi occasioned by continuing delay in the holding of a joint trial. The State appealed. This court (McLure P, Owen JA & Mazza J) allowed the appeal and set aside the order for separate trials. See The State of Western Australia v Micalizzi [2010] WASCA 147.
The State's initial application to adduce propensity evidence
On 24 January 2011, the State made application in the District Court for leave to adduce 'propensity evidence' in relation to the appellant, pursuant to s 31A of the Evidence Act 1906 (WA), at the trial.
The State contended that the appellant was in the business of drug dealing, and had been involved in drug dealing activities in the 12‑month period preceding 5 March 2008. The evidence it relied on for these contentions included:
(a)The appellant was an undischarged bankrupt.
(b)The appellant had no legitimate form of income.
(c)The appellant would have required significant financial resources to maintain his lifestyle.
(d)The appellant appeared to have access to large amounts of cash.
(e)The appellant purchased property in or about May 2007. The property was not purchased in his own name, but was used and occupied by him. The property comprised a 200 acre rural property at Narrabri in New South Wales and the Piper Aztec aircraft.
(f)The appellant undertook numerous flights in the aircraft to various locations throughout Australia in the 12‑month period preceding 5 March 2008.
(g)The appellant made numerous cash payments for various expenses including a payment of $20,000 cash towards the purchase of the aircraft and cash payments for aviation fuel on the numerous flights in the aircraft.
(h)On 15 November 2010, the appellant was convicted in the District Court of New South Wales of knowingly taking part in the cultivation of a prohibited plant (being cannabis), and possession of cannabis leaf, those offences having been committed between 1 January 2008 and 8 March 2008 at Narrabri. The cannabis was cultivated on the Narrabri property purchased in or about May 2007. At the material time, the appellant used the aircraft to travel to and from his property at Narrabri.
The propensity evidence sought to be adduced by the State comprised:
(a)All flights made by the appellant in the 12‑month period preceding 5 March 2008; in particular, the number, destinations, times, costs, relevant conversations pertaining to, and dates of these flights.
(b)Numerous cash payments made by the appellant in the 12-month period preceding 5 March 2008, including the $20,000 cash payment towards the purchase of the aircraft and the cash payments for aviation fuel in relation to the flights in question.
(c)The appellant's convictions in the District Court of New South Wales on 15 November 2010, and his convictions in that court on 13 March 2005 for drug‑related offences and the possession of an unregistered firearm, those offences having been committed on or about 5 August 2004 at Tamworth, New South Wales.
The State's application to adduce propensity evidence was heard and determined by Macknay AUDCJ between 8 April 2011 and 15 April 2011. His Honour ruled, relevantly:
(a)the 2010 drug convictions were admissible, but the State was confined to adducing evidence of the agreed facts relating to the convictions and the certificates of conviction;
(b)evidence of flights to and from Western Australia was admissible, but evidence of other flights was inadmissible;
(c)evidence of cash payments in relation to the purchase of the aircraft and flights to and from Western Australia was admissible, but evidence of other cash payments was inadmissible; and
(d)the fact of the appellant's bankruptcy was admissible.
Macknay AUDCJ reserved his decision on, relevantly, the admissibility of the 2005 drug convictions. In the event, the State did not pursue its application to adduce evidence of these convictions.
The date on which the joint trial was listed to start
On 11 February 2011, the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011.
The appellant's application to vacate the trial date
As I have mentioned, on 29 April 2011, the primary judge adjourned the appellant's application for separate trials to 2 May 2011.
On 29 April 2011, his Honour informed counsel that he was unable to hear and determine the separate trial application on that date. Counsel for the appellant then moved for an order that the trial date be vacated. This motion was opposed by counsel for Mr Micalizzi and counsel for the State. His Honour said he would not vacate the trial date. He noted that the application for separate trials had been made late, and said it was desirable that the trial proceed without further delay (ts 385 ‑ 386).
The primary judge's decision to defer the empanelment of the jury
A little later on 29 April 2011, his Honour stated in open court, in the presence of counsel, that 'the jury panel in respect of this trial which will start on Monday [2 May 2011], are not required until Monday, 9 May 2011' (ts 419).
On 2 May 2011, the indictment was called by the clerk of arraigns, and the primary judge then said:
STEVENSON DCJ: Thank you, [the appellant] and Mr Micalizzi. Please, take a seat.
The trial of District Court indictment 1616 of 2008, dated 27 February 2009, is listed to commence today before me as the trial judge. Therefore, this is the first day of the trial. The jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011. The reason for the delay in the trial at this stage is to allow sufficient time for the outstanding issues to be resolved and some time for the parties to prepare for the evidence as soon as they know the outcome of those issues.
I'm now going to ask the clerk of arraigns to formally take the plea of the accused (ts 422). (emphasis added)
The appellant and Mr Micalizzi were arraigned and pleaded not guilty. His Honour then proceeded to hear argument on a number of outstanding issues between the State and the accused.
The State's second application to adduce propensity evidence
On 29 April 2011, the State made another application in the District Court for leave to adduce 'propensity evidence' in relation to the appellant at the trial.
In this application, the State sought a reconsideration by 'the trial judge' (that is, the primary judge) of the admissibility of evidence of all flights and cash payments made by the appellant in the 12‑month period preceding 5 March 2008.
The primary judge did not determine the State's further application to adduce propensity evidence until after his Honour had determined the appellant's application for separate trials on 3 May 2011. However, in his reasons for dismissing the appellant's application for separate trials, his Honour said in relation to the State's pending application:
I appreciate that there is an application dated 29 April 2011 before me by the State for leave to adduce certain evidence described as propensity evidence which it seeks to lead against [the appellant]. The resolution of that application might be relevant to the outcome of this application, but I am in a position to rule on this application, because I have knowledge of the nature of the propensity evidence application. And, in my view, whatever the outcome of that application, it will not affect the outcome of this application.
As I indicated, it is important that I rule on this application as soon as possible, given the importance of the application to the trial which has started, and the position of the parties insofar as their continuing preparations in the trial are concerned. In my view, the outcome of the resolution of the State's propensity evidence application would not materially affect the view I have come to in respect of [the appellant's] severance application.
The State's propensity evidence would not, in my view, if admitted, be of such gravity or moment to cause the application of [the appellant] to reach a threshold where any prejudice 'in the trial' arising out of that evidence would, on its own, or in combination with the other evidence, have the effect that the court should order by reason of such prejudice separate trials [67] ‑ [69]. (emphasis added)
At the hearing of the appeal before this court, counsel for the State informed us that, after deciding the appellant's application for separate trials and publishing his reasons for that decision, the primary judge ruled that the State should be permitted to adduce, as propensity evidence, at the trial, the evidence referred to in the State's further application (appeal ts 25 ‑ 26).
The primary judge's reasons for decision in relation to the appellant's application for separate trials
The State and Mr Micalizzi opposed the appellant's application for separate trials.
Counsel for the appellant submitted to the primary judge, in essence, that the appellant was likely to be prejudiced by a joint trial and that this likelihood of prejudice could not be guarded against adequately by directions to the jury.
The apprehended prejudice to the appellant was that counsel for Mr Micalizzi would, by cross‑examination of the State's witnesses and otherwise, adduce evidence of the appellant's alleged criminal propensity in relation to drug dealing that would not be admissible, or had already been ruled inadmissible by Macknay AUDCJ, in the State's case against the appellant.
The primary judge referred to the submission of counsel for the appellant on this point, as follows:
The basis for this position is based on anticipated cross-examination by [the appellant's] co-accused of witnesses which the State may not be permitted to call in its case, and that by pursuing a rigorous line of cross‑examination of himself and raising all matters concerning 'his prior convictions and all other matters that were excluded in the pre-trial directions hearings, such as flights in the preceding 12 months that do not relate to east coast to west coast, cash payments for aviation, fuel concerning intra-travel in New South Wales and other evidence of a similar nature'.
There is also expressed concern that the co-accused would seek to adduce information not confined to the 2005 and 2010 prior conviction[s] and surrounding matters that form part of the police investigation in respect of them. I understand that material in relation to these matters is included in the prosecution brief [32] ‑ [33].
As I have mentioned, his Honour referred to the pending application by the State for leave to adduce additional propensity evidence against the appellant at the trial and said, 'whatever the outcome of that application, it will not affect the outcome of this application [for separate trials]' [67].
The primary judge was of the opinion that the appellant's application for separate trials must fail because the discretion conferred by s 133(4)(a) of the Criminal Procedure Act had not been enlivened. He said:
[The appellant] has not demonstrated any actual or likely prejudice that he will suffer in the trial which enlivens the court's discretion to order separate trials [66].
His Honour added that, in any event:
Even if this threshold is reached, I am not persuaded that any such prejudice, whether anticipated or real, is of a sufficient magnitude in the interests of justice to warrant separate trials of the two accused [66].
Section 133 of the Criminal Procedure Act
Section 133(1) of the Criminal Procedure Act provides that the powers in s 133 may be exercised by a court on its own initiative or on an application by an accused and may be exercised before or during a trial.
By s 133(2), a court may amend or cancel an order made under s 133.
Section 133(3) provides, relevantly, that if a court is satisfied that an accused is likely to be prejudiced in a trial of a prosecution notice or indictment because it contains two or more charges, the court may order that the accused be tried separately on one or more of the charges.
Section 133(4) provides:
If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order ‑
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
By s 133(5):
In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court ‑
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if ‑
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
Section 133(7) is crucial in determining whether the present appeal is competent or not. I will set out the text of s 133(7), and consider its proper construction and its application to the facts of this appeal later in these reasons.
Do s 133(7) of the Criminal Procedure Act and s 26(5) and s 26(6) of the Criminal Appeals Act as originally enacted, or as currently enacted, apply to the present appeal?
At all material times, s 26(3)(b) of the Criminal Appeals Act 2004 (WA) has provided that if two or more accused are charged on indictment with an offence, any accused may appeal to this court against a refusal by a judge of a 'superior court' to order that there be a separate trial of any of the accused. The term 'superior court' includes the District Court: see the definition in s 4(2).
Section 26(3)(b) makes provision for a preliminary appeal before trial against the dismissal of an accused's application for separate trials. However, if an accused applies for an order for separate trials, the application is dismissed, the accused does not appeal under s 26(3)(b) and the accused is convicted after trial, the accused may nevertheless appeal against his or her conviction, under the general appeal provision in s 23(1) of the Criminal Appeals Act, on the ground, for example, that there was a miscarriage of justice occasioned by the fact that the accused was tried jointly with his or her co‑accused. This is apparent from s 26(4), which reads:
If an accused is tried with one or more other accused in one trial and is convicted of any offence, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the accused in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (3)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.
An issue which must be resolved in the present appeal is whether s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as originally enacted, or s 133(7), and s 26(5) and s 26(6), as introduced with effect from 27 April 2008, are applicable to the appellant's appeal.
Section 133(7), as originally enacted, provided:
If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26.
Section 26(5) and s 26(6), as originally enacted, provided:
(5)An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the trial of the accused starts.
(6)If an appeal under this section is commenced after the trial of the accused concerned has started, it must be dismissed.
By s 26 of the Criminal Law and Evidence Amendment Act 2008 (WA), s 133(7) of the Criminal Procedure Act, as originally enacted, was repealed and the following subsection was inserted instead:
If a superior court makes or refuses to make an order under subsection (3) or (4) before the day on which the accused's trial is listed to start, the court must not start the trial unless the court is satisfied ‑
(a)that no party who could commence an appeal against the order or refusal under the Criminal Appeals Act 2004 section 26 intends to do so;
or
(b)that ‑
(i)the time for commencing such an appeal has expired; and
(ii)any such appeal commenced before the time expired has been concluded.
Also, by s 34 of the Criminal Law and Evidence Amendment Act, s 26(5) and s 26(6) of the Criminal Appeals Act, as originally enacted, were repealed and the following subsections were inserted instead:
(5)An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the day on which the accused’s trial is listed to start.
(6)If an appeal under this section is commenced on or after the day on which the accused's trial is listed to start, the appeal must be dismissed.
The new section s 133(7), and the new s 26(5) and s 26(6), commenced on 27 April 2008. The Criminal Law and Evidence Amendment Act did not contain any savings or transitional provisions in relation to the new provisions or generally. Section 2(1) merely provided that the Act 'comes into operation on a day fixed by proclamation'. The day so fixed was 27 April 2008.
The relevant chronology, for present purposes, is this:
(a)On 5 March 2008, the alleged offences were committed.
(b)On 5 March 2008, the appellant and Mr Micalizzi were charged with the offences.
(c)On 6 March 2008, the appellant first appeared in the Magistrates Court at Perth pursuant to a prosecution notice.
(d)On 31 July 2008, each of the appellant and Mr Micalizzi appeared in the Magistrates Court pursuant to a prosecution notice. The appellant and Mr Micalizzi were not, at that stage, jointly charged. There were two prosecution notices, one naming the appellant as the accused and the other naming Mr Micalizzi as the accused. Each notice contained two charges. The charges corresponded to counts 1 and 2 in the indictment with the notable exception that each charge referred only to the accused named in the prosecution notice.
(e)On 20 February 2009, the appellant and Mr Micalizzi were committed to the District Court for trial.
(f)By the indictment dated 27 February 2009, filed in the District Court, the appellant and Mr Micalizzi were charged jointly for the offences allegedly committed on 5 March 2008.
(g)On 8 May 2009, the appellant and Mr Micalizzi first appeared in the District Court.
(h)On 11 February 2011, the joint trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011.
(i)On 18 April 2011, the appellant file the application for separate trials.
(j)On 29 April 2011, the primary judge said he would defer the empanelment of the jury until 9 May 2011, so that a number of outstanding issues between the State and the accused, including the appellant's application for separate trials, could be resolved.
(k)On 2 May 2011, the clerk of arraigns called the indictment. The appellant and Mr Micalizzi were arraigned and pleaded not guilty. The primary judge noted that the 'jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011' (ts 422). His Honour then proceeded to hear argument on a number of outstanding issues between the State and the accused, including the separate trial application.
(l)On 3 May 2011, the primary judge dismissed the appellant's application for separate trials.
(m)On 4 May 2011, the appellant filed his appeal notice in this court.
The general rule, at common law, is that a statute which changes the law should not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events. See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ).
Dixon CJ did not express this general rule on the basis of the simple classification of a statute as either procedural or substantive. That classification does not necessarily determine whether a statute may have a retrospective operation. See Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 519 (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ).
The effect of the general rule is that a statute is prima facie construed as not attaching new legal consequences to facts and events which occurred before its commencement. See Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 (Fullagar J); Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1, 22 (Gibbs J); Geraldton Building Co Pty Ltd v May [1977] HCA 17; (1977) 136 CLR 379, 399 ‑ 400 (Stephen J), 401 (Mason J).
However, there is no presumption against retrospectivity in the case of statutes which affect 'mere matters of procedure'. See Rodway (518), where Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ elaborated:
Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural ‑ statutes of limitation, for example ‑ may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations (518 ‑ 519).
A little later in Rodway, their Honours noted that a person who commits an offence does not have a right to be tried in a particular way. He or she merely has a right to be tried in accordance with the practice and procedure which exists at the time of trial (521). See also Maxwell, (267) (Dixon CJ).
There is a well‑established distinction between a true statute of limitations, which operates to bar a right of action independently existing, but does not extinguish that right, on the one hand, and a limitation period annexed by a statute to a right which it creates, on the other. See Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471, 488 (Windeyer J); Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 497 (McHugh J). A true statute of limitations has been classified as procedural in nature. By contrast, a limitation period which creates a right of limited duration so that, after the expiry of the prescribed time, the right ceases to exist for any purpose, has been classified as substantive in nature. See McKain v RW Miller & Co (South Australia) Pty Ltd [1991] HCA 56; (1992) 174 CLR 1, 43 ‑ 44 (Brennan, Dawson, Toohey & McHugh JJ).
In Rodway, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ made these observations about amendments to statutory limitation provisions for the commencement of legal proceedings (519):
Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights ‑ either the right to be free of a claim or the right to bring a claim ‑ and such an operation could not be said to be merely procedural. This distinction was recognized by Williams J in Maxwell v Murphy ((1957) 96 CLR 261, at p 278), and his remarks were adopted by the Privy Council in Yew Bon Tew v Kenderaan Bas Mara ([1983] 1 AC 553, at p 562). Gibbs J re-examined the question in Yrttiaho v Public Curator (Q) ((1971) 125 CLR 228, at p 242) and he expressed his view as follows:
'Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought.'
Section 37(1) of the Interpretation Act 1984 (WA) provides, relevantly, that where a written law repeals an enactment, the repeal does not, unless the contrary intention appears:
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
The interpretation statutes of other Australian jurisdictions contain provisions comparable to s 37(1). It has been suggested that the statutory provisions do not, relevantly, produce results different from those at common law. See Robertson v City of Nunawading [1973] VR 819, 827 (Winneke CJ, Gowans & Starke JJ); Carr v Finance Corporation of Australia Ltd (No 2) [1982] HCA 43; (1982) 150 CLR 139, 152 (Mason, Murphy & Wilson JJ); The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [34] (Steytler P, McLure & Buss JJA agreeing, Martin CJ relevantly agreeing).
By s 16(2) of the Interpretation Act, a reference in a written law to a provision of a written law shall be construed as a reference to such provision 'as it may from time to time be amended'. The term 'amend' is defined in s 5 to mean 'replace, substitute, in whole or in part, add to or vary, and the doing of any 2 or more of such things simultaneously or by the same written law'. Section 9 provides that where a word or phrase is defined in a written law (including the Interpretation Act), other parts of speech and grammatical forms of that word or phrase have corresponding meanings. By s 3(1), relevantly, s 16(2) applies to every written law unless, in relation to a particular written law:
(a)express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c) …
In the present case, counsel for the appellant submitted that the appellant had a right of appeal under s 26(3)(b) of the Criminal Appeals Act against the decision of the primary judge dismissing his application for separate trials, and that this was 'a right that existed from the time on which the prosecution commenced in the Perth Magistrates Court' on 6 March 2008, that date being before s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, commenced on 27 April 2008. This right, so it was submitted, was a 'substantive right' and, by virtue of s 37(1)(c) of the Interpretation Act, s 133(7), and s 26(5) and s 26(6), as originally enacted and in force on 6 March 2008, apply to the appellant's right. Counsel for the appellant submitted that the appellant's alleged right of appeal under s 26(3)(b) was unaffected by the amendments made by the Criminal Law and Evidence Amendment Act.
In my opinion, the appellant's submissions on this issue are without merit. My reasons are as follows.
First, the appellant filed his application for separate trials on 18 April 2011. He did not file an application for separate trials before 27 April 2008, which was pending and undetermined as at that date. The present case is plainly distinguishable from such cases as Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430 and Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1, where there was a pending application or appeal under a previous statutory framework when the legislative provisions in question were amended.
Secondly, the powers of the court under s 133 of the Criminal Procedure Act are predicated on the existence of, relevantly, a prosecution notice or indictment that charges 'one or more other accused': s 133(4). As I have mentioned, the appellant and Mr Micalizzi were not jointly charged under the prosecution notices filed on 31 July 2008. They were not jointly charged until 27 February 2009 when the indictment was filed in the District Court. Accordingly, the powers in s 133 did not become exercisable, either by the court on its own initiative or on an application by the appellant or Mr Micalizzi, until, at the earliest, 27 February 2009. By that date, the relevant amendments to s 133 of the Criminal Procedure Act and s 26 of the Criminal Appeals Act had commenced.
Thirdly, the effect of s 16(2) of the Interpretation Act in relation to s 133 of the Criminal Procedure Act, and s 26 of the Criminal Appeals Act, as currently enacted, was not displaced by the text of the Criminal Law and Evidence Amendment Act or the text of the subsections introduced by that amending Act. Also, there is nothing in the intent and object of the Criminal Law and Evidence Amendment Act or the subsections introduced by the amending Act, and there is nothing in the subject or context of those provisions, inconsistent with the application of s 16(2) of the Interpretation Act. The reference in s 133(7), as currently enacted, to s 26 of the Criminal Appeals Act is therefore to s 26 as amended from time to time. Similarly, the right of appeal conferred by s 26(3)(b) is a right to appeal in accordance with s 26 as amended from time to time.
Fourthly, s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, do not operate retrospectively.
In Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, Hayne, Heydon and Crennan JJ noted:
As Jordan CJ rightly said in Coleman v Shell Co of Australia ((1943) 45 SR (NSW) 27 at 30-31), an Act 'is not retrospective because it interferes with existing rights. Most Acts do. There is no presumption that interference with existing rights is not intended; but there is a presumption that an Act speaks only as to the future.' The amendments made by IPOLA 2004 spoke only as to the future. They were engaged in respect of applications made after the amendments came into operation. As the authors of one text (Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006), p 308 [10.3]) have put it:
'All legislation impinges on existing rights and obligations. Conduct that could formerly be engaged in will have to be modified to fit in with the new law.'
(Emphasis added.)
In this case, the appellants' development application being made after the amendments made by IPOLA 2004 had come into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. No question of retrospective operation of the legislation arises [113].
Section 133(7), and s 26(5) and s 26(6), as currently enacted, apply, relevantly, to any right of appeal under s 26(3)(b) which is acquired or comes into existence on or after 27 April 2008, being the date on which those provisions commenced.
Fifthly, an application for separate trials filed by an accused on or after 27 April 2008 must be determined in accordance with s 137 of the Criminal Procedure Act, as currently enacted. If the primary judge dismisses the accused's application, any right of the accused to a preliminary (or interlocutory) appeal against the dismissal is governed by s 26 of the Criminal Appeals Act, as currently enacted. The limitation in s 26(5) is annexed to the right created by s 26(3)(b). The accused does not acquire a subsisting or accrued right to appeal under s 26(3)(b) before the primary judge dismisses the application for separate trials. If the primary judge dismisses the application then, subject to s 26(5), the accused will acquire a subsisting or accrued right to appeal under s 26(3)(b). However, this conditional right will cease to exist, for any purpose, if the accused does not comply with s 26(5). See s 26(6).
Sixthly, when the prosecution against the appellant was initiated in the Magistrates Court on 6 March 2008, the appellant did not acquire a subsisting or accrued right to have any future appeal that might possibly be brought under s 26(3)(b) of the Criminal Appeals Act, after an indictment was filed in relation to the charges, determined in accordance with s 133 of the Criminal Procedure Act, and s 26 of the Criminal Appeals Act, as in force on 6 March 2008. No such right was conferred, either expressly or by necessary implication, by s 133 or s 26 or any other statutory provision. At best, as at 6 March 2008, the appellant had a possible or potential 'right' to appeal under s 26(3)(b) if, in the future, he was jointly charged with Mr Micalizzi and he brought an application under s 133 and the application was dismissed. Any such 'right' is not a subsisting or accrued right within the protection afforded by s 37(1)(c) of the Interpretation Act.
I am therefore of the opinion that s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted, apply to the present appeal.
The legislative history culminating in the amendment of s 133(7) of the Criminal Procedure Act and s 26(5) and s 26(6) of the Criminal Appeals Act
In Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122, the appellant was charged on indictment with 18 sexual offences relating to four complainants. His trial was listed to start on 9 May 2005. On that date, before the empanelment of the jury, the appellant was arraigned. He then made an application for separate trials pursuant to s 133 of the Criminal Procedure Act. After argument on the first and second days allocated for the trial, the trial judge adjourned his decision on the severance application until the fourth day allocated for the trial. On that date, he dismissed the application. The appellant then announced that he wished to appeal against the dismissal of his application pursuant to s 26(1)(b) of the Criminal Appeals Act. A majority of this court (Wheeler & Roberts-Smith JJA) held, relevantly, that, for the purpose of s 26(6) as originally enacted, a trial starts when the jury is sworn and the accused is put in the charge of the jury [4] (Wheeler JA), [71] ‑ [73] (Roberts‑Smith JA). Miller AJA (dissenting on this issue) was of the view that a trial starts 'at least' when the accused is arraigned [208].
At common law (that is, independently of s 19 of the Interpretation Act) a court is permitted, in construing a statutory provision, to have regard to the words used by the Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113.
The original Bill which, with subsequent amendments, culminated in the enactment of the Criminal Law and Evidence Amendment Act, was introduced into the Parliament in 2006, after Donaldson was decided.
The original Bill provided for s 133(7) and s 26(5) and s 26(6) to be amended to read, relevantly:
(a)In s 133(7), if a superior court makes or refuses to make an order under s 133(3) or s 133(4) before 'any evidence has been adduced in a trial, the court must not continue' with the trial unless 'the court is satisfied' etc.
(b)In s 26(5), an appeal under s 26 against a decision must be commenced within seven days after the date of the decision and before 'any evidence is adduced in the accused's trial'.
(c)In s 26(6), if an appeal under s 26 is commenced 'after any evidence is adduced in the accused's trial', the appeal must be dismissed.
The original Bill was amended, relevantly, on 2 November 2006.
The Attorney General, the Honourable JA McGinty, explained the amendments to the proposed new s 133(7), as follows:
Mr JA McGINTY: I move ‑
Page 16, lines 6 and 7 ‑ To delete 'any evidence has been adduced in a trial, the court must not continue' and substitute ‑
'the day on which the accused's trial is listed to start, the court must not start'
This deals with appeals against interlocutory orders about severance. It applies to both clauses 27 and 36, so the comments I make now are also relevant to clause 36, given their interrelationship.
Justice Miller from the Supreme Court provided me with comments on the bill. He suggested that the proposed amendments to section 133 of the Criminal Procedure Act 2004 and section 26 of the Criminal Appeals Act2004, contained in the bill in clauses 27 and 36 respectively, do not prevent the institution of preliminary appeals interfering with the efficacious conduct of trials. These amendments will prevent the institution of a preliminary appeal against a refusal to order severance on the day the trial is listed to start. That will avoid the ambiguity that arose recently in the case of Donaldson v WA [2005] WASCA, page 196, in which the court was required to consider the question of when a trial was deemed to have commenced for the purposes of limiting such appeals. The amendment will prevent the institution of appeal on the day the trial is due to commence, thus having the effect of aborting the trial. That is the import of these two amendments. (emphasis added)
The amendment was put and passed. See Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 2006, p 8185.
Similarly, the Attorney General explained the amendments to the proposed new s 26(5) and s 26(6), as follows:
Mr JA McGINTY: I move ‑
Page 20, lines 7 and 8 ‑ To delete 'any evidence is adduced in the accused's trial.' and substitute ‑
'the day on which the accused's trial is listed to start.'
Page 20, lines 9 and 10 ‑ To delete 'after any evidence is adduced in the accused's trial,' and substitute ‑
'on or after the day on which the accused's trial is listed to start,'
In addressing the amendment to clause 27, I addressed the rationale behind these amendments. There is nothing I wish to add to those words.
Ms SE Walker interjected.
Mr JA McGINTY: In Justice Miller's commentary on the bill, he suggested that the proposed amendment to section 133 of the Criminal Procedure Act 2004 and section 26 of the Criminal Appeals Act contained in the bill, in clauses 27 and 36 respectively, do not prevent the institution of preliminary appeals interfering with the efficacious conduct of trials. The amendment will prevent the institution of a preliminary appeal against a refusal to order severance on the day that the trial is listed to start. That will avoid the ambiguity that arose in the case of Donaldson v WA [2005] WASCA, page 196, when the court was required to consider the question of when the trial was deemed to have commenced, for the purposes of limiting such appeal rights. The amendment will prevent the institution of appeal on the day the trial is due to commence, thus having the effect of aborting the trial. (emphasis added)
The amendments were put and passed. See Western Australia, Parliamentary Debates, Legislative Assembly, 2 November 2006, pp 8215 ‑ 8216.
It is well-established that where two or more statutory enactments comprise an overlapping legislative scheme, the enactments should be construed accordingly. See Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, 726 (Griffith CJ); R v Wheeldon (1978) 18 ALR 619, 622 (Bowen CJ, Blackburn & Fisher JJ); Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 ‑ 724 (Kirby P); Le Blanc v Queensland TAB Ltd [2002] QSC 323; [2003] 2 Qd R 65 [42] (Muir J); Southside Autos (1981) Pty Ltd v Commissioner of State Revenue [2008] WASCA 208; (2008) 37 WAR 245 [64] (Buss JA, McLure JA & Newnes AJA agreeing).
In Commissioner of Stamp Duties v Permanent Trustee Co Ltd, Kirby P said:
Upon the hypothesis (which is admittedly often sorely tried) that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand (722).
Later, his Honour said in relation to the legislation under consideration in the appeal before the court:
The result is that, in construing the legislation under consideration here, I will prefer that construction which is available in the language used and which facilitates the sensible operation together of the four statutes mentioned, avoiding inefficiency and the capricious operation of revenue law which would seriously impede or discourage the availability of beneficial statutory provisions for the sale or partition of property held by co-owners. In the case of ambiguity of the legislation I consider this to be the modern approach which this Court should adopt in implementing the will of Parliament. We should presume that Parliament intended its legislation to operation rationally, efficiently and justly, together (723 ‑ 724).
The proper construction of s 133(7) of the Criminal Procedure Act, and s 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted
In my opinion, s 133 of the Criminal Procedure Act (in particular, s 133(7)) and s 26 of the Criminal Appeals Act (in particular, s 26(3)(b), s 26(5) and s 26(6)) comprise an overlapping legislative scheme to the extent they relate to a preliminary (or interlocutory) appeal to this court from a decision of a judge on a separate trial application. The provisions of each statute which deal with such appeals must be construed accordingly.
Section 133(7), and s 26(5) and s 26(6), were amended against the background of the decision of the majority in Donaldson that, where an accused is to be tried before a judge and jury, the trial actually 'starts' when the jury is empanelled.
Section 133(7), and s 26(5) and s 26(6), as currently enacted, are predicated on the basis that a superior court has made or refused to make, relevantly, an order for separate trials, pursuant to an application made under s 133(4), before 'the day on which the accused's trial is listed to start' (emphasis added). Section 26(5) and s 26(6), as originally enacted, were concerned with when the trial of the accused actually 'starts' or when it had actually 'started', and not with the day on which the accused's trial is 'listed to start'.
By s 133(7), as currently enacted, if a superior court has made or refused to make an order for separate trials before 'the day on which the accused's trial is listed to start', then the court 'must not start the trial' unless the court is satisfied in terms of either par (a) or par (b) of that subsection.
Section 124(1) of the Criminal Procedure Act empowers a superior court to make rules of court to regulate the practice and procedure to be followed in the court and its registries in relation to all or particular cases that involve the court's criminal jurisdiction. By s 124(2), rules of court made by the Supreme Court under s 124(1) operate in respect of the practice and procedure in the District Court unless rules of court made by the District Court under s 124(1) expressly provide otherwise. The Criminal Procedure Rules 2005 (WA) apply in the Supreme Court and the District Court.
The Criminal Procedure Act and the Criminal Procedure Rules contain various provisions for the setting or fixing of a date for an accused's trial and for the adjournment of a trial (including a trial that has been listed but has not actually 'started'). For example:
(a)By s 136(1) of the Criminal Procedure Act, relevantly, the accused or the prosecutor may apply at any time to the court for an order setting a trial date or, if a trial date has already been set, for an earlier (but not a later) trial date. On such an application, the court, after hearing all parties to the prosecution, may set a trial date: s 136(2).
(b)By r 29 of the Criminal Procedure Rules, an application under s 136(1) must be made by lodging a Form 1.
(c)By r 33(6)(g) of the Criminal Procedure Rules, the powers of the court at a status hearing include fixing 'the date of the trial'.
(d)Section 137 of the Criminal Procedure Act confers various case management powers on a superior court. By s 137(2), a power under s 137 to make an order includes a power to amend or cancel the order. Section 137(3) states, relevantly, that unless the Act or the rules of court or another written law provides otherwise, a court may, for the purposes of controlling and managing cases before it, do anything that in the court's opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously.
(e)Rule 33 of the Criminal Procedure Rules, which is concerned with status hearings, provides that at the conclusion of a status hearing 'the proceedings must be adjourned to the date of a pre‑trial hearing or to the date of the trial, as the case requires': r 33(7). Rule 34 is concerned with pre‑trial hearings. It provides, relevantly, that at the conclusion of a pre‑trial hearing 'the proceedings are to be adjourned to the date of the trial': r 34(4).
(f)Neither the Criminal Procedure Act nor the Criminal Procedure Rules provides, in terms, for the date fixed for an accused's trial to be 'vacated'. The Act and the Rules refer, instead, to the adjournment of proceedings or cases.
(g)Section 89 of the Criminal Procedure Act reads, relevantly:
(1)A superior court to which an accused is committed on a charge or in which an accused is charged, may at any time adjourn proceedings on the charge whether or not ‑
(a)the prosecutor or the accused is present;
(b)the accused has pleaded to the charge;
(c)a jury has been sworn; or
(d)any evidence has been given.
(2)A superior court that adjourns proceedings on a charge ‑
(a)may do so until a set date or until a date to be set by the court;
(b)may discharge the jury, if any, from giving its verdict on the charge;
(c)may, subject to the Bail Act 1982, order that the accused be kept in custody; and
(d)may make any order and issue any document needed to ensure that any person, including the accused, whose presence will be needed, appears at the time and place to which the proceedings are adjourned.
(h)Rule 24(d) of the Criminal Procedure Rules provides, relevantly, that in the District Court, despite r 23(1), an application 'to adjourn a listed trial' may be made orally unless the court in any particular case orders otherwise.
Section 142 of the Criminal Procedure Act requires an accused to plead at 'the start of the trial'. It reads:
Whether or not an accused has previously pleaded to a charge, the court trying the accused on the charge must, at the start of the trial and in such manner as the court decides is just ‑
(a)inform the accused of the charge; and
(b)require the accused to enter a plea in accordance with section 126(1) and (4). (emphasis added)
In my opinion, the phrase 'the day on which the accused's trial is listed to start', in s 133(7), s 26(5) and s 26(6), as currently enacted, has a broader connotation than the language of s 26(5) and s 26(6), as originally enacted, which referred to when the trial of the accused actually 'starts' or when it had actually 'started'. It was necessary in Donaldson, in construing the former s 26(5) and s 26(6), to identify a discrete event or procedure which constituted the actual 'starting' of the trial. This is unnecessary in construing the new s 133(7), s 26(5) and s 26(6). The phrase 'the day on which the accused's trial is listed to start' refers to the date set or fixed by the court as the date on which, subject to the court's power of adjournment and overall case management powers, the final proceedings (as distinct from preliminary or interlocutory proceedings including a status conference and a pre‑trial hearing) for the trial of the accused on the count or counts in the indictment will commence and, thereafter, continue until the trial has been completed. Usually, the trial will be completed by the entry of a judgment of acquittal or conviction.
Section 26(5) and s 26(6) of the Criminal Appeals Act, as currently enacted: was the present appeal commenced before the day on which the trial was listed to start?
By s 26(5), as currently enacted, the present appeal will be incompetent if it was not commenced, relevantly, 'before the day on which the accused's trial is listed to start'.
On 11 February 2011, the trial of the appellant and Mr Micalizzi was listed to start on 2 May 2011.
On 29 April 2011, his Honour decided that the empanelment of the jury should be deferred until 9 May 2011.
On 2 May 2011, his Honour confirmed that '[t]he jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011' (ts 422).
The evident purpose of the new s 133(7), s 26(5) and s 26(6) was to ensure that a criminal trial is not adjourned or aborted on the day on which the accused's trial is listed to start as a result of a preliminary (or interlocutory) appeal having been commenced on that day against a decision made on a separate trial application. This purpose is apparent from the ordinary meaning conveyed by the statutory text of the new
provisions, compared to the statutory text of the old provisions as construed by the majority in Donaldson. The Attorney General's explanation of the amendments to the proposed new s 133(7), s 26(5) and s 26(6) confirms that the meaning of the new provisions is the ordinary meaning conveyed by the statutory text.
As I have mentioned, on 29 April 2011, the primary judge refused a motion by counsel for the appellant to vacate the trial date.
His Honour, in the course of conducting the proceedings on 29 April 2011 and 2 May 2011, decided that the jury would not be sworn, and the appellant and Mr Micalizzi would not be put in the charge of the jury, until 9 May 2011.
The primary judge did not, however, amend the date on which the trial of the appellant and Mr Micalizzi was 'listed to start' from 2 May 2011 to 9 May 2011 or re‑list the trial to start on 9 May 2011.
On 2 May 2011, the clerk of arraigns called the indictment. The appellant and Mr Micalizzi were arraigned and pleaded not guilty, as required by s 142 of the Criminal Procedure Act. The final proceedings (as distinct from any preliminary or interlocutory proceedings including a status conference and a pre‑trial hearing) for the trial of the appellant and Mr Micalizzi on the counts in the indictment commenced on 2 May 2011. However, his Honour, after the appellant and Mr Micalizzi were arraigned and pleaded not guilty, then adjourned the final proceedings for the trial of the appellant and Mr Micalizzi to 9 May 2011 and, in the intervening period, dealt with a number of outstanding issues between the State and the accused, including the appellant's application for separate trials.
In my opinion, the primary judge did not refuse to make an order for separate trials before 'the day on which the accused's trial is listed to start', within s 133(7). The appellant did not commence his appeal before the day on which his trial was listed to start. By s 26(6), the appeal must therefore be dismissed.
The grounds of appeal
It is unnecessary, in the circumstances, to consider the grounds of appeal.
HALL J: This is an appeal from an order made by Stevenson DCJ on 3 May 2011 that an application by the appellant that he be tried separately from the second respondent be dismissed. The appeal was heard on
6 May 2011. At the conclusion of the hearing the court was unanimously of the view that an application for an order staying the trial should be refused and that the appeal should be dismissed. The following are my reasons for joining in that conclusion.
The appeal raises two issues. Firstly, whether the appeal is time‑barred. This issue arises because s 26(6) of the Criminal Appeals Act 2004 (WA) provides that an appeal of this type that is commenced on or after the day on which the accused's trial is listed to start must be dismissed. That subsection commenced on 27 April 2008, but it has been submitted by the appellant that it does not apply to the present case. The second issue is whether the trial judge was in error in refusing the appellant's application for a separate trial. The second issue arises only if s 26(6) does not apply to this case.
The alleged facts
The prosecution case is that on 5 March 2008 the appellant and the second respondent, Mr Micalizzi (who I will refer to hereafter as the co‑accused), flew in a small plane from Bankstown airport in New South Wales to Jandakot airport. The appellant was the pilot. They landed at Jandakot airport at about 4.00 pm and were spoken to by police.
The plane was searched and a black sports bag was found in the cargo hold of the plane. The sports bag contained vacuum sealed bags which held a total of approximately 30,000 ecstasy tablets weighing 8.843 kg and, in separate bags, a total of 21.85 kg of methylamphetamine.
The appellant and the co‑accused both denied any knowledge of the sports bag or its contents. There is no forensic evidence to link either of them to the bag or the drugs. The co‑accused was found to be in possession of a false New South Wales driver's licence and had no cash or credit cards on him. He was also in possession of a mobile telephone which had been activated on 4 March 2008 in the name of a female at an address at which that name was not known. An analysis of the co‑accused's telephone showed that he had been contacted by two other mobile phones during the course of the flight and also shortly prior to the plane landing at Jandakot. The two other phones were also activated on 4 March 2008 in names that were not known at the addresses given to the telephone company.
The appellant was found in possession of almost $9,000 in cash. He was also in possession of two mobile phones which were not subscribed for in his name or in an address associated with him. When interviewed, the appellant claimed that the co‑accused was on a joy flight and had offered to pay for the cost of the fuel from New South Wales to Western Australia, though no money had been paid to him at that time. He said he did not know the name of the passenger, that the sports bag was not his and that he did not know if his passenger had any bags when he came aboard the plane.
History of court proceedings
The appellant and the co‑accused were each charged with possession of MDMA with intent to sell or supply and possession of methylamphetamines with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Though the charges were in identical terms and evidently related to the same quantity of drugs, the appellant and the co‑accused were separately charged on separate prosecution notices.
There were some delays before the appellant and the co‑accused appeared in the District Court. On 7 August 2008 the co‑accused was granted bail. After an initial unsuccessful bail application the appellant was also granted bail on 13 October 2008. He then returned to New South Wales where he was arrested by the New South Wales police on charges of cultivation of a commercial quantity of cannabis. He was remanded in custody in New South Wales until he had been dealt with on that charge.
On 28 November 2008 the co‑accused appeared in the District Court for the first time and the State indicated it intended to present a joint indictment against both accused. The appellant was committed to appear in the District Court on 20 February 2009. On 27 February 2009 the State filed a joint indictment. The charges were essentially the same but now the two accused were jointly named as being in possession of the drugs.
The appellant first appeared in the District Court on 8 May 2009. He was at this time still in custody in New South Wales awaiting trial. The Western Australian Director of Public Prosecutions (WA DPP) wrote to the New South Wales Director of Public Prosecutions (NSW DPP) asking that the appellant be transferred back to Western Australia to stand trial. That request was declined at that time.
On 17 July 2009 a District Court judge listed the matter for a seven‑day trial to begin on 9 November 2009, notwithstanding that the court was made aware of the NSW DPP's negative response to the request for the transfer of the appellant to Western Australia.
Committal proceedings in New South Wales commenced on 30 July 2009 but were adjourned due to illness of the presiding magistrate. There were further adjournments and those proceedings had not been completed by 1 April 2010. On that day the co‑accused brought an application for a separate trial based upon the delay. That application was granted and the State then appealed to this court. On 30 July 2010 the State's appeal was allowed and the order for separate trials made on 1 April 2010 was set aside: The State of Western Australia v Micalizzi [2010] WASCA 147.
On 15 November 2010 the proceedings in New South Wales were completed and the appellant was transferred to Western Australia.
The first propensity evidence application
On 24 January 2011 the State applied, pursuant to s 31A of the Evidence Act 1906 (WA), to lead propensity evidence in respect of the appellant as part of its case. The propensity evidence was said to fall into three categories:
1.All evidence of all flights made by [the appellant] in the 12 months preceding his arrest on March 5 2008 - that is, the number, the destinations, the times, the costs, the relevant conversations and the dates of all such flights.
2.All evidence of the numerous cash payments made by [the appellant] in the 12 months preceding his arrest on March 5 2008 including the $20,000 cash paid towards the purchase of the aircraft and cash payments made in payment for aviation fuel for all flights made by [the appellant] as outlined in 1 above.
3.[The appellant's] previous criminal convictions for drug offences including a drug conviction in the District Court at Sydney on November 15 2010 for 'knowingly took part in the cultivation of a prohibited plant' and 'possession of cannabis leaf' pursuant to the Crimes Act (NSW) and Drug Misuse and Trafficking Act (NSW) - offences committed between January 1 2008 and March 8 2008 at Narrabri.
That application was subsequently amended on 28 January 2011 by adding to the third category 'AND a drug conviction in the District Court at Sydney (Burwood) on May 13 2005 for "cultivate cannabis exceeding commercial quantity", "cultivate prohibited plant" and "possess unregistered firearm" - offences committed on or about August 5 2004 at Tamworth'. This aspect was later dropped by the State (ts 427).
The State contended that this evidence was relevant because it was capable of establishing that at the time of being intercepted by police on 5 March 2008 the appellant was in the business of drug dealing. The State submitted that the appellant's possession of large quantities of cash and ability to operate an aircraft were inconsistent with him being a bankrupt from 21 November 2006 with no legitimate source of income. The implication was that the cash was derived from drug dealing. The State asserted that it was no coincidence that the appellant was the pilot of an aircraft engaged to transport a large quantity of drugs and that his past experience and ability to pilot a private aircraft made it likely that he was a trusted participant in a drug distribution cartel.
The State's application was heard by Auxiliary District Court Judge Macknay between 8 and 15 April 2011, pursuant to s 98 of the Criminal Procedure Act 2004 (WA). The appellant opposed the application. It was submitted on his behalf that evidence of flights and cash payments were not logically probative of guilt of the current charges. It was also submitted that the admitted facts in respect of the 2010 New South Wales conviction did not support the level of involvement in that offence alleged by the State.
Macknay AUDCJ ruled that some of the evidence that the State wished to adduce was admissible and some was not. It is unnecessary for present purposes to provide details of the evidence falling into each category. It is sufficient to note that in respect of some of the evidence of flights his Honour was not satisfied that there was a basis for asserting that they were drug‑related (ts 310). His Honour also confined the evidence in relation to the 2010 conviction to the admitted statement of facts (ts 313).
These rulings had been made in anticipation of the trial which, on 11 February 2011, had been set down to commence on 2 May 2011.
The separate trial application
On 18 April 2011 the appellant filed an application in the District Court for a separate trial. In submissions in support of that application counsel for the appellant said that following the rulings made by Macknay AUDCJ, counsel for the co‑accused had advised that, in his view, the rulings did not confine him, on behalf of his client, in adducing evidence relating to the appellant's character. The submissions went on to say that on 17 April 2011 counsel for the appellant became aware that a witness summons had issued on behalf of the co‑accused to the New South Wales police officer who was responsible for the investigation that led to the 2010 conviction.
The appellant's counsel submitted on the application that the appellant would be prejudiced at a joint trial on the basis that the co‑accused may seek to adduce evidence that had been ruled inadmissible as part of the prosecution case by Macknay AUDCJ. It was submitted that the appellant had 'real concerns that if he now has a joint trial with the second respondent the whole purpose of the pre‑trial directions hearing [will] become obsolete'. In particular, it was said that the appellant was likely to suffer prejudice at his trial because there was a likelihood of 'a very vigorous line of cross‑examination and raising all matters concerning his prior convictions and all other matters that were excluded at the pre‑trial directions hearing'.
The application for a separate trial, together with a further application on behalf of the State to lead the evidence that had been ruled inadmissible by Macknay AUDCJ, was listed before the trial judge, Stevenson DCJ, on 29 April 2011. Some argument was heard that day, but was not concluded and his Honour determined that he would continue to hear the applications and any other legal arguments in the first week of the trial commencing 2 May 2011. In order to avoid inconvenience to a jury, his Honour decided that the jury would not be empanelled until 9 May 2011.
The State submitted that if the trial judge concluded that the evidence previously ruled inadmissible by Macknay AUDCJ was in fact admissible then the prejudice said to arise from the possibility that the co‑defendant would adduce that evidence would fall away. However, the State also submitted that regardless of the outcome of its application to adduce the evidence the application for a separate trial should be dismissed (ts 352 ‑ 353).
In the course of argument counsel for the co‑accused confirmed that the trial involved 'cut‑throat defences'; that is, that each of the accused would deny knowledge of the drugs and suggest that they were in the exclusive possession of the other. He also said that he did not consider that the rulings made by Macknay AUDCJ necessarily impacted or affected the way in which his client would conduct his defence. However, he noted that his client was not obliged to give notice of his intentions in that regard (ts 360).
There was argument as to whether it was open to reconsider the admissibility of evidence ruled inadmissible by another judge. The State submitted that it was not seeking a review of Macknay AUDCJ's decision but making a fresh application. It was submitted that proper consideration to the admissibility of the evidence under s 31A of the Evidence Act had not been given and that it was open to the trial judge to consider that question. It is unnecessary for the purposes of this appeal to determine whether those submissions were correct. That is because his Honour decided the separate trial application first and on the basis that his decision in that regard would not be affected by the outcome of the fresh application by the State to adduce the propensity evidence. However, I note what was said in Rogers v The Queen (1994) 181 CLR 251 about the provisional quality of rulings whilst a trial is continuing (in particular by Brennan J, as he then was, at 268 ‑ 269) and Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [17] (Roberts‑Smith JA).
In the course of submissions on 29 April 2011 counsel for the appellant noted that the effect of amendments to s 133 of the Criminal Procedure Act and s 26 of the Criminal Appeals Act was to require any pre‑trial appeal on a separate trial determination be commenced before the trial was listed to commence. As the trial was listed to commence on 2 May 2011 (the next working day) counsel urged the trial judge to decide the severance application on 29 April 2011. She said:
The difficulty is that if your Honour doesn't deal with the application for severance today completely, and make a determination, and adjourns part of it to Monday when the trial is set to start, then that frustrates any possibility for redress for [the appellant] (ts 371).
The trial judge said that he had another matter listed for the afternoon and that he would not be in a position to make a decision on the severance application on 29 April 2011. He also noted that the application had been made very late and that the likelihood that a trial would involve cut‑throat defences should always have been apparent (ts 371).
The appellant's counsel then sought that the trial date be vacated. Such a course was opposed by both the co‑accused (ts 377) and the State (ts 381). His Honour refused that application, noting the lateness of the severance application and the desirability of the trial proceeding without further delay (ts 386).
On 2 May 2011 the trial judge commenced by saying:
The trial of District Court indictment 1616 of 2008, dated 27 February 2009, is listed to commence today before me as the trial judge. Therefore, this is the first day of the trial. The jury panel have been delayed in order to deal with some preliminary applications, and the jury will be empanelled next Monday, 9 May 2011. The reason for the delay in the trial at this stage is to allow sufficient time for the outstanding issues to be resolved and some time for the parties to prepare for the evidence as soon as they know the outcome of those issues.
The accused were then arraigned on the indictment. This appears to have been done because of the trial judge's view that the trial would commence on that day. That is consistent with s 142 of the Criminal Procedure Act which provides that the accused are required to enter pleas to the charges at the start of the trial (whether or not they have previously pleaded to those charges).
The trial judge then dealt with some other issues regarding the evidence. As regards the applications by the appellant for a separate trial and the State to adduce propensity evidence, his Honour noted that written submissions had been filed on behalf of the appellant. The State had filed submissions the previous week. Prosecuting counsel then said that she wished to file further submissions in response to those of the appellant. Those issues were then adjourned for oral submissions the next day.
On 3 May 2011 the trial judge heard oral submissions on the applications. The submissions on behalf of the appellant were that significant prejudice would arise from the co‑accused adducing evidence that the State had been precluded from leading by Macknay AUDCJ.
On 3 May 2011 the trial judge dismissed the application for a separate trial (a published version was issued on 4 May 2011). In doing so, his Honour said:
The basis of the application, in summary, appears to be anticipated prejudice [the appellant] believes he will suffer in the course of the trial by reason of his and his counsel's perception that his co‑accused has, in part, assisted the State in certain pretrial interlocutory applications concerning the admissibility of evidence against him, and that at the trial itself, [the co‑accused] will adduce evidence which the State is not permitted to rely upon in its case against him, as a matter of law or by reason of some rulings made in the matter already by other judges on s 98 hearings.
The application is based on 'anticipated prejudice' and 'a likelihood of the prejudice that he will suffer' if the trial proceeds on a joint basis. (according to [the appellant's] written submissions). It can be seen that the basis of the perceived prejudice is prospective and anticipatory [15] ‑ [16].
The trial judge said that, in his view, it would have been apparent to the appellant from the outset that the trial would involve cut‑throat defences. His Honour then said:
I do not agree that there is any proper basis to suggest that by reason of the interlocutory hearings before Auxiliary Judge Macknay and his rulings on 13 and 15 April 2011 that the position has changed so far as the trial itself is concerned or the basis of the alleged prejudice.
This has been the position from the outset between the accused, and there has been no material change in circumstances or in the matter which would, in my view, justify the application being granted at this point in time, accepting that it has been brought at such a late stage. That of course does not mean that the application must be refused on the basis of delay alone. As I have said, the power to order separate trials can be invoked, and in some cases must be invoked, even if the trial has commenced before the jury.
As I have said, in my view the application must fail, because the discretion is not enlivened, in that I am not persuaded that there is any requisite prejudice that [the appellant] will suffer 'in the trial' if there is a joint trial. I recognise that it will be necessary for directions to be given to the jury throughout the course of the trial and before they retire in relation to aspects of the evidence which concern the accused separately, but this of course is the nature of joint trials.
I have asked counsel to assist me in this regard during the course of the trial as much as possible before the evidence is given so I can warn the jury accordingly.
In my view nothing raised by [the appellant] in support of his application for separate trials suggests, in the circumstances of this case, that the court should or can exercise its discretion to order separate trials. It seems to me that the administration of and the interests of justice require there be a joint trial, even when one considers the competing interests of [the appellant] and his co‑accused.
[The appellant] has not demonstrated any actual or likely prejudice that he will suffer in the trial which enlivens the court's discretion to order separate trials. Even if this threshold is reached, I am not persuaded that any such prejudice, whether anticipated or real, is of a sufficient magnitude in the interests of justice to warrant separate trials of the two accused [61] ‑ [66].
The trial judge also noted that the State had made an application to adduce propensity evidence previously ruled inadmissible. His Honour took that into account and concluded that if such evidence was admitted in the prosecution case there would not be prejudice requiring an order for separate trials.
The appellant's counsel then stated that she had instructions to appeal and sought that the trial be delayed pending any such appeal. The trial judge was of the view that, his decision to refuse the severance application having been made after the trial was listed to start, s 133(7), which would otherwise require an adjournment, did not apply.
For the sake of completeness I note that following the commencement of this appeal on 4 May 2011 the trial judge made a ruling on the new application by the State to adduce the propensity evidence previously ruled out by Macknay AUDCJ. His Honour ruled that the evidence was admissible in the State's case.
Relevant legislation
Section 133 of the Criminal Procedure Act relevantly provides:
(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried.
(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires.
...
(7)If a superior court makes or refuses to make an order under subsection (3) or (4) before the day on which the accused’s trial is listed to start, the court must not start the trial unless the court is satisfied -
(a)that no party who could commence an appeal against the order or refusal under the Criminal Appeals Act 2004 section 26 intends to do so; or
(b)that -
(i)the time for commencing such an appeal has expired; and
(ii)any such appeal commenced before the time expired has been concluded.
Section 26 of the Criminal Appeals Act relevantly provides:
(3)If 2 or more accused are charged on indictment with an offence -
(a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the accused; and
(b)any accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the accused.
(4)If an accused is tried with one or more other accused in one trial and is convicted of any offence, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the accused in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (3)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.
(5)An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the day on which the accused’s trial is listed to start.
(6)If an appeal under this section is commenced on or after the day on which the accused’s trial is listed to start, the appeal must be dismissed.
Preliminary issue - is the appeal time‑barred?
Prior to 27 April 2008 s 133(7) of the Criminal Procedure Act provided as follows:
If a superior court makes or refuses to make an order under subsection (3) or (4), the court must adjourn the trial to enable an appeal against the order or refusal to be commenced and concluded under the Criminal Appeals Act 2004 section 26.
Prior to 27 April 2008 s 26(5) and s 26(6) of the Criminal Appeals Act 2004 (WA) provided as follows:
(5)an appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the trial of the accused starts.
(6)if an appeal under this section is commenced after the trial of the accused concerned has stated, it must be dismissed.
This form of s 26(6) was considered in Donaldson. A majority of the court (Wheeler JA and Roberts‑Smith JA, Miller JA dissenting as to the interpretation of s 26(6)) concluded that the relevant time when a trial starts is when the jury is sworn and the accused is put in the charge of the jury.
The relevant provisions were then amended by the Criminal Law and Evidence Amendment Act 2008 (WA). Those amendments came into effect on 27 April 2008. The amended provisions have been reproduced above at [149] ‑ [150].
As at the date this appeal was commenced, 4 May 2011, the jury had not been empanelled. Accordingly, if the old version of s 26(6) is applicable this appeal would have been brought within time. However, if the amended s 26(6) is applicable then the appeal would have to be dismissed as it was commenced after the appellant's trial was listed to commence. Thus there are two questions that arise. First, does the amended s 26(6) apply to this appeal? Second, if it does, was this appeal commenced after the day listed for commencement of the trial?
As regards s 26(6) of the Criminal Appeals Act, some attention was focused at the hearing of the appeal on whether the amendment operated retrospectively. It is more correct to first determine whether any right to appeal against a refusal of an application for a separate trial had accrued prior to the time that the amendment came into effect. If so, there would be a question as to whether there was a substantive right to appeal and whether the amendment could properly have affected any such right.
When did the right to appeal accrue?
It is important not to use too narrow a concept of an accrued right otherwise the essential justice of the rule against the retrospective operation of laws that affect rights or liabilities would be eroded: Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139, 151 (Mason, Murphy and Wilson JJ). In Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 [40] Kirby J used the word 'entitlement' rather than 'right'. He said that this 'indicates that what is involved may fall short of an immediately enforceable legal right in the strict sense' (see also The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [37] ‑ [40] (Steytler P). However, an accrued right must be distinguished from a mere hope or expectation that a right will be created: Director of Public Works v Ho Po Sang [1961] AC 901; Mathieson v Burton (1971) 124 CLR 1, 23 (Gibbs J); Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 [20] ‑ [33] (Steytler P).
Prior to the date the amendment to s 26 came into effect, 27 April 2008, the appellant had been charged with the two possession offences, as had the co‑accused. However, they had both been separately charged. They did not become jointly charged until 27 February 2009.
The power of a court to order the separate trials of jointly charged accused presumes the existence of a joint charge. That is apparent from the wording of s 133(4) of the Criminal Procedure Act which refers to the power of the court arising where the court is satisfied that an accused is likely to be prejudiced in the trial of an indictment 'because it also charges one or more other accused'. This subsection was the same at all material times.
Similarly, a pre‑trial appeal in respect of the issue of whether there should be separate trials presumes the existence of an order by a judge to either grant or refuse a separate trial. That is clear from s 26(3) of the Criminal Appeals Act, which has also been the same at all material times. Accordingly, there was no basis for making an application for separate trials, for the court making any order in that regard or any pre‑trial appeal being brought until 27 February 2009.
Assuming that s 26 of the Criminal Appeals Act confers a right to appeal, then that right could not accrue until the factual foundation for an appeal existed. In particular, the right could not accrue at least until the appellant and the co‑accused were jointly charged. By the time that occurred on 27 February 2009 the amended s 26(6) was applicable. Prior to that time the appellant may have had an expectation that he would be jointly charged, but such an expectation could not be the foundation of an accrued right to bring a preliminary appeal. Thus, in my view, it is clear that the amended s 26(6) applies to this appeal.
Is s 26(6) procedural or substantive?
An alternative argument was raised that s 26(6) operated retrospectively because it was procedural rather than substantive in nature. Although the right to appeal against a separate trial decision can be described as a substantive right it was submitted that it is not one that was materially affected by the amendment. This is because pursuant to s 23 of the Criminal Appeals Act the appellant always had a right to appeal against the decision of the primary judge refusing a separate trial in the event that he was convicted of the offences on the indictment. Section 26(6) in its amended form arguably does not abolish any right, it merely places a limitation on the circumstances in which a right can be exercised prior to the trial. Section 133(7) Criminal Procedure Act and s 26(3)(b) Criminal Appeals Act enable the appellant to institute an appeal at a pre‑trial stage within the timeframes allowed, rather than solely at the conclusion of the trial following conviction. The timeframe in which such an appeal can now be brought prior to trial has been effectively narrowed. In this sense, it can be distinguished from 'a right of limited duration' referred to by the High Court in McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, as it is not a right that ceases to exist for any purpose. The amendment could be said to affect the available remedies, but not the right.
The starting point in considering the effect of a change to a law is the general rule that an amendment to an enactment is prima facie to be construed as having prospective operation only. That presumption is supported by s 37(1)(c) of the Interpretation Act 1984 (WA). See The State of Western Australia v Richards [31] ‑ [35] and Maxwell v Murphy (1957) 96 CLR 261, 267. The correct question is whether the provision is merely procedural in the sense that it would not, if given unconfined operation, affect pre‑existing substantive rights or liabilities: Victrawl Pty Ltd v Telstra Corporation [1995] HCA 51; (1995) 183 CLR 595, 615; Rodway v The Queen (1990) 169 CLR 515, 518.
As the High Court explained in Rodway:
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation (518).
The relevant right in question could be characterised as a right to appeal against the decision of a trial judge to refuse a separate trial. Seen in that light the amendment to s 26(6) could be said to only serve to limit the circumstances in which the decision in question can be challenged at a pre‑trial stage. In that sense, it would not deprive a person from seeking to challenge the decision at a later stage in the event of conviction. On that basis, even if a right to appeal against a separate trial decision had accrued at the time the appellant was first charged on 6 March 2008, that right was not relevantly affected by the amending Act. Accordingly, in these circumstances s 26(6) would still be applicable.
It is unnecessary to determine the issue of whether s 26(6) is procedural or substantive in nature in the circumstances of this case. That is because of the conclusion that any right to appeal in this case did not accrue until after the amendment became operative. To say that a provision operates retrospectively in this context means that it applies to what may be done in the future even where what is to be done relates to past events. That does not arise here. The operative effect of the amended s 26(6) does not relate to anything that occurred prior to 27 April 2008.
When was the trial listed to commence?
The remaining question is whether this appeal was commenced before the day on which the appellant's trial was listed to start. There can be no doubt that the trial was listed to start on 2 May 2011 and that the appeal was commenced on 4 May 2011. However, it was suggested by the appellant that the effect of the trial judge's decision on 29 April to defer empanelment of the jury was that the trial listing was vacated and the trial relisted to commence on 9 May. That contention is not borne out by an examination of the transcript. It is evident that his Honour had no intention of vacating the listing. To the contrary, he intended that the trial would proceed on the listed date but that the first week would be utilised to deal with legal issues. His Honour considered the possibility of empanelling the jury on 2 May and sending them away but thought the preferable course was not to empanel a jury until 9 May.
An application to vacate the trial date was made and refused. This was done expressly because counsel for the appellant was of the view that unless the listed commencement date was vacated s 26(6) would act as a bar to a pre‑trial appeal. Clearly, at that point, it was not considered that a delay in empanelment of the jury affected the listed commencement date. It would seem that that position has been resiled from. It is therefore necessary to consider whether the listed commencement date changed, notwithstanding the trial judge's refusal to change it.
The amendment of the wording of s 26(6) must have been intended to effect some real change in the timeframe in which a pre‑trial appeal could be brought. Prior to the amendment the critical date was the date on which the trial started. That time was held in Donaldson to be the day when the jury was sworn and the accused was put in the charge of the jury. It was acknowledged in Donaldson that a consequence of this interpretation was that it left open the possibility that an adjournment of a trial may occur where an application was made at a very late stage (Wheeler JA [3], Miller JA [203]).
The facts in Donaldson are similar in this respect to the present case. In Donaldson an application to adjourn the trial was made on the day it was listed to commence. That application was dismissed and an application for separate trials was then made. No jury was empanelled, rather the jury panel was sent away pending resolution of the application.
Although in dissent on the issue of when a trial commenced, Miller JA's comments at [203] on the significance of the listed commencement date are relevant. In the circumstances of Donaldson that significance included the fact that a jury panel had been present and that, presumably, prosecution witnesses had been assembled on the basis the trial would proceed.
The amendment of s 133 Criminal Procedure Act and s 26 Criminal Appeals Act occurred after Donaldson was decided. The effective change was to require any preliminary appeal against a separate trial decision to be commenced before the date on which the trial is listed to commence, rather than before the trial starts. Thus it is no longer relevant to ask (for these purposes) when the trial started. The question is when was it listed to start.
The trial judge was of the view that the trial started on 2 May 2011. The correctness of that view may be doubted given what was said in Donaldson. However, even if the trial did not start until the jury was empanelled that would not assist in determining when the trial was listed to commence.
In argument before the trial judge counsel for the appellant referred to the Explanatory Memorandum to the Criminal Law and Evidence Amendment Act 2008 (WA). That Explanatory Memorandum relevantly states:
27.Section 133 amended
Replaces section 133(7) with a new subsection which clarifies the inconsistency which existed between that subsection and section 26 of the Criminal Appeals Act 2004 in relation to the circumstances in which an appeal against an order or refusal in respect of an application that the accused be tried separately on one or more charges, or that one or more of the accused be tried separately from the other or others. The new section 133(7) provides that if a superior court makes or refuses to make an order in relation to the separation of charges or accused before any evidence is adduced in a trial, the court must not continue the trial unless it is satisfied that an appeal will not be commenced under section 26 of the Criminal Appeals Act 2004.
It was submitted that use of the words 'before any evidence is adduced in the trial' was relevant in determining the meaning of s 133(7) Criminal Procedure Act. The implication appeared to be that a preliminary appeal was not barred because no evidence had yet been adduced.
In fact no reliance can properly be placed on the Explanatory Memorandum. This was conceded on the hearing of the appeal. That is because it refers to an earlier version of the amending Bill which specifically referred to evidence being adduced at the trial. The Bill was amended on 2 November 2006 to substitute the present words relating to the listing of the trial (Hansard, Legislative Assembly, 2 November 2006 page 8185). That amendment was said to be required to 'prevent the institution of a preliminary appeal against a refusal to order severance on the day the trial is listed to start'. Reference was made to the 'ambiguity' encountered in Donaldson.
For the reasons that follow I do not accept that the words 'listed to start' are to be equated with either the empanelment of the jury or the commencement of the evidence. Firstly, those words are plain English words that are not obscure in their meaning. The date a trial is listed to commence is the date it has been set down to commence, whether or not it in fact does ultimately commence on that day. Secondly, it is reasonable to assume that the amendment was intended to change the position that had previously applied. It must have been intended that late applications determined on or after the day the trial was due to start would not attract a preliminary appeal even though a jury had not been empanelled. This would appear to address the issues identified in Donaldson. Thirdly, it is unnecessary to have regard to the Explanatory Memorandum because the meaning of the amendments is clear. In any event, it would appear that the Explanatory Memorandum does not relate to the form of s 133(7) and s 26(6) as finally enacted. Extrinsic materials may only be considered as an aid to the interpretation of the words used where those materials confirm the ordinary meaning or where the meaning is ambiguous or obscure or the ordinary meaning would lead to a result that is manifestly absurd or unreasonable: s 19(1) Interpretation Act 1984 (WA).
In the present case it is clear that the trial was listed to commence on 2 May 2011. The trial judge expressly refused to vacate or vary that date. The date continued to have significance because the intention remained to empanel the jury and complete the trial within the allotted time. The deferral of empanelment was intended simply to avoid unnecessary inconvenience to jurors whilst legal issues were resolved.
It was open to the trial judge to have taken an alternative approach. That is, to have empanelled a jury on 2 May 2011 and then sent them away whilst the legal issues were dealt with. In that event, the argument raised by the appellant would have fallen away. But it cannot have been intended that, in a situation like the present, the availability of a preliminary appeal would depend upon whether or not a jury had been empanelled. The undesirability and potential inconvenience caused by a late severance application would be the same. In my view, it is for this reason that the amendments changed the critical date from the date of the trial to the date the trial was listed to commence.
For these reasons I am of the view that the date the trial was listed to commence was, and remained, 2 May 2011. As I am also of the view that s 26(6) of the Criminal Appeals Act in its present form is applicable to this appeal it necessarily follows that the appeal must be dismissed.
Separate trial
In the event that I am wrong about the application of s 26(6) and the requirement to dismiss the appeal on that basis I will consider the merits of the appeal.
The grounds are as follows:
1.The learned judge erred in failing to grant separate trials.
2.The learned judge erred in holding that the Court's jurisdiction was not enlivened due to the fact that the prejudice was only 'anticipated prejudice' and was not persuaded that there was 'any or actual prejudice' to the Appellant.
3.The learned judge erred in holding that the risk of any prejudice that may arise during the trial could be cured by an appropriate direction to the jury.
Those grounds were predicated on the assumption that the co‑accused would seek to adduce evidence that had been ruled inadmissible in the prosecution case by Macknay AUDCJ. The underlying premise is that if there were separate trials the evidence would not be before the jury at the appellant's trial. In fact, the trial judge subsequently ruled that the evidence in question was admissible in the prosecution case against the appellant. That ruling was made after this appeal was commenced and accordingly the appeal falls to be determined on the position as it existed at the date the notice of appeal was filed. That is the most favourable view of the circumstances that can be taken as regards the appellant. However, the changed circumstances are relevant to whether this court should interfere with the decision of the trial judge.
In the circumstances of this case it was not necessary for the co‑accused to disclose whether or not he would seek to adduce evidence relevant to the propensity and character of the appellant. It was, however, open to him to seek to do so: Jones v The Queen [2009] HCA 17; (2009) 83 ALJR 671; Winning v The Queen [2002] WASCA 44. It does not follow that there was a proper basis upon which the likelihood of prejudice could be determined at that stage of the proceedings.
Whether the co‑accused would seek to adduce evidence and in what form could not be known at the time the severance application was made. Furthermore, it could not necessarily be assumed that such evidence would be admitted or that it would prejudice the appellant. It must be remembered that the evidence in question formed a relatively small part of that which the State had proposed to lead. The evidence of the 2010 conviction and some flights and cash payments was to be admitted in any event. The possible prejudice that might flow from the additional evidence would have to be viewed in this light.
An issue was raised at the hearing of the appeal as to the impact s 8(1)(e) of the Evidence Act 1906 might have on cross‑examination of the appellant. It is unnecessary to determine that issue, other than to note that the exception contained in s 8(1)(e)(i) must clearly be read in light of the issues raised in the trial and other provisions of the Evidence Act including s 5 and s 31A.
In The State of Western Australia v Russell [2009] WASCA 154 an issue arose in respect of a co‑accused who was charged with being an accessory after the fact to murder in circumstances where there was said to be a likelihood that she would seek to advance a defence of duress that would reflect adversely upon the co‑accused. At [77] Miller JA said:
In other cases, it is apparent that it will not be until evidence is adduced that the question of likely prejudice to one or other accused can be determined. This will often be the case where (as in the present case) the evidence to be given by accused persons jointly indicted is unknown. There is no obligation upon an accused person to declare his or her hand. The depositions may suggest the possibility of certain lines of defence, but it will often be hypothetical to consider an application for separate trials until such time as evidence has been given. This necessarily means that sometimes an application will have to be made for a separate trial after the trial has begun. Hopefully, cases of that nature will be rare, but sometimes the interests of justice will necessitate that it be so.
In any event, the existence of possible prejudice only enlivens the discretion to order a separate trial, it does not require that it be exercised in a particular way. A trial judge must then go on to consider whether any prejudice can be guarded against by appropriate directions. In the present case, the trial judge was of the view that even if the evidence that Macknay AUDCJ had ruled inadmissible were to be admitted in the trial the prejudice was not such as could not be guarded against by appropriate directions. No error in this regard has been established.
It is also relevant to note that a decision by a trial judge involves the exercise of discretionary judgment. The exercise of such a discretionary judgment should not be lightly interfered with: The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [23] (Pullin JA). There is a powerful reason not to interfere here. That is that the trial judge has subsequently ruled the disputed evidence to be admissible in the prosecution case. On that basis the evidence would be adduced in a separate trial of the appellant if one was granted. In those circumstances the prejudice said to flow from a joint trial falls away.
Ground 1 is merely an assertion and does not comply with the requirements of r 65(2) of the Criminal Procedure Rules 2005 (WA). In my view, neither grounds 2 or 3 have been made out. Accordingly, even if s 26(6) of the Criminal Appeals Act did not require this appeal to be dismissed I would have concluded that none of the grounds have any reasonable prospect of succeeding: s 27(2) Criminal Appeals Act. In those circumstances I would, in any event, have concluded that leave to appeal in respect of the grounds should be refused and the appeal dismissed. For the same reasons I also agreed that the application for a stay of the trial should be refused.
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