Santos v The State of Western Australia
[2014] WASC 36
•10 FEBRUARY 2014
SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 36
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 36 | |
| 10/02/2014 | |||
| Case No: | MCS:1/2013 | 22 JANUARY 2014 | |
| Coram: | JENKINS J | 22/01/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMIESON ANDREW SANTOS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Jurisdiction, practice and procedure Application to Supreme Court for order for disclosure in completed prosecution heard in District Court No jurisdiction |
Legislation: | Criminal Procedure Act 2004 (WA) Federal Court of Australia Act 1976 (Cth) Sentencing Act 1995 (WA) |
Case References: | Santos v The State of Western Australia [2013] HCASL 123 Santos v The State of Western Australia [No 2] [2013] WASCA 39 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Jurisdiction, practice and procedure - Application to Supreme Court for order for disclosure in completed prosecution heard in District Court - No jurisdiction
Legislation:
Criminal Procedure Act 2004 (WA)
Federal Court of Australia Act 1976 (Cth)
Sentencing Act 1995 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr J O'Sullivan
Solicitors:
Applicant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Santos v The State of Western Australia [2013] HCASL 123
Santos v The State of Western Australia [No 2] [2013] WASCA 39
1 JENKINS J: Mr Santos has applied for an order that the prosecution provide full disclosure of all fresh evidence in relation to 1616 of 2008 Operation 'NERANG' and 'NATTAI' as outline[d] in the subpoena, supporting affidavit and submissions. He asks that a subpoena be granted for the production of documents and for Detective Sergeant Roy Morrish to give evidence.
2 In this application he relies upon the Criminal Procedure Act 2004 (WA) (the Act), s 35, s 42, s 44, s 45 and s 95, as well as the Federal Court of Australia Act 1976 (Cth), pt 3, div 1A, s 23CD, s 23CE, s 23CG, s 23CH and s 23CM.
3 Mr Santos is self-represented and as he has said to me today, it has taken him some time to learn the correct procedures and the law in relation to the matter about which he complains. I have taken into account his lack of legal training when assessing this application. The application is supported by Mr Santos' affidavit which is sworn 26 September 2013. He has also filed written submissions and made oral submissions to me this morning.
4 The respondent, the State of Western Australia, objects to the making of the orders on the basis that this court does not have jurisdiction over this matter anymore given that the prosecution is completed and all avenues of appeal have been exhausted.
5 There is no doubt that Mr Santos is very frustrated because he believes there has been a miscarriage of justice in that he says he has been incorrectly convicted of offences. He also says that he has not been given a fair trial because of the failure of the prosecution and the police to comply with disclosure requirements. He says that the prosecution has admitted that it has not complied in the past with those disclosure requirements. He submits that the police and the prosecution lied about whether the disclosure requirements had been complied with. He says that the failures of the prosecution and the police in regard to disclosure have undermined the criminal justice system. He says that if proper disclosure had been made, it would have shown that he was not guilty of the offences of which he has been convicted. He says that if all the evidence had been available to the court, it would have shown that he was not guilty and he would not have been convicted. He asks rhetorically, if the Supreme Court does not have the power to require the prosecution and the police to make full disclosure, then who does?
6 The background to the application is set out not only in the documents filed by Mr Santos, but also in a number of judgments. Most recently, it was detailed by the Court of Appeal in its judgment refusing Mr Santos leave to appeal his conviction in the District Court for two counts of possession of a prohibited drug with intent to sell or supply it to another: Santos v The State of Western Australia [No 2] [2013] WASCA 39. Those are the convictions which Mr Santos says are, in effect, a miscarriage of justice. After the Court of Appeal refused him leave to appeal those convictions, Mr Santos sought and was refused special leave to appeal to the High Court: Santos v The State of Western Australia [2013] HCASL 123.
7 The applicant says that a single judge of this court has power under the statutory provisions outlined in his application to make the orders sought.
8 I have considered this matter. But after having done so, I am not able to agree with Mr Santos. It is both explicit and implicit that the procedures specified in the Act and the obligations imposed by the Act apply to parties to a prosecution at various times during a prosecution. Those parties are the accused and the prosecution.
9 An accused, as that term is used in the Act, is a person who has been charged with an offence. Mr Santos is no longer an accused. He is no longer a party to a prosecution. He is now an offender who has been convicted of the offences with which he was charged. The provisions in the Act no longer apply to him. He cannot use those provisions to obtain the orders he seeks.
10 The process involved in a prosecution requires the prosecution to be commenced in a certain court and then for the trial to be held in a court with jurisdiction to hear the charge or charges. In this case, that court was the District Court. Mr Santos was convicted in that court, after trial. The law then enables him to appeal against those convictions to the Court of Appeal. That occurred. The Court of Appeal heard his appeal and delivered its reasons for declining to grant him leave to appeal. The law then provides that there is the power for him to seek special leave to appeal to the High Court. Mr Santos exercised that power. That court heard the application and dismissed it. Those were the avenues, open to Mr Santos to ask for a review by the courts of his conviction.
11 A single judge of this court does not have power to review the conviction or what happened in the course of the prosecution. Whilst I understand Mr Santos' frustration at what happened in the prosecution, the simple fact is that I do not have the power to consider his grounds of complaint and to make a decision on their merits. I am not saying that I would agree with what Mr Santos says. I am simply saying I do not have the power to review the matter.
12 Mr Santos does have other avenues of complaint open to him. I have discussed them both with him and with counsel for the State.
13 Mr Santos has made an application pursuant to s 140 of the Sentencing Act 1995 (WA). That application is to ask the Attorney General to refer his convictions back to the Court of Appeal.
14 Counsel for the State has advised me that that application is being considered by the Attorney General and those advising him. He has told me that a large amount of material has been obtained for that application to be considered on its merits. Counsel has also told me that Mr Santos' affidavit that he has filed in this matter will be taken into account in advising the Attorney General in respect of that application. So that is one avenue that is still available to Mr Santos. Counsel for the State has advised that once the Attorney General has made a decision in that regard, Mr Santos will be advised.
15 The other avenue which Mr Santos may still have available to him is to report the matter to the Corruption and Crime Commission. He may do that if he is of the view that there has been police misconduct. The Corruption and Crime Commission has statutory obligations to investigate complaints made to it.
16 So the fact is that there are other avenues which are open to Mr Santos to pursue his concerns. I, as a single judge of this court, do not have power at this point to review the conduct of the prosecution. Indeed, given the prosecutorial process and as the indictment in this matter was filed in the District Court, a single judge of the Supreme Court has never had the power to make orders in respect of this particular prosecution.
17 I also note that the complaint which Mr Santos makes against the police and the DPP was dealt with as ground 12 of his appeal to the Court of Appeal. McLure P, with whom Buss and Mazza JJA agreed, dealt with the merits of the complaint. McLure P found that there was no evidentiary basis for his complaint. It is clear that Mr Santos does not agree with that decision. But that is the decision that was made.
18 Further, when he sought leave to appeal to the High Court, the High Court also considered whether the Court of Appeal was right in its decision in that regard. At [5] of the High Court's decision it said:
While the Court of Appeal found the prosecution's non-disclosure of material prior to 9 May 2011 concerning, it held that there was no evidentiary foundation for the applicant's claim that by the time of his trial in November of 2011, police had not given full disclosure of all evidentiary material. There is no reason to doubt the correctness of the Court of Appeal's decision on this ground.
19 Those decisions having been made, the opportunity for Mr Santos to raise these issues in the prosecution and appeal procedure has been finalised. Given the decisions of the Court of Appeal and the High Court, I would not be justified in making the orders sought, even if I had the power to do so. It is true that the Court of Appeal said that there should be further investigation 'by appropriate authorities' of the police's conduct up to and including the late disclosure.
20 It is a matter of regret that the Western Australian Police has not taken that view on board and, it seems, has not reviewed the matter of its own volition. But because of the application that Mr Santos has made under s 140 of the Sentencing Act, there will now be a consideration of the issues that he raises by the Attorney General. The determination of his application under s 140, therefore, will involve some consideration of the issues which McLure P referred to in her decision.
21 For these reasons, I dismiss the application made by Mr Santos.
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