Smart v Clayton
[2007] WASC 294
•7 DECEMBER 2007
SMART -v- CLAYTON [2007] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 294 | |
| Case No: | SJA:1027/2007 | 19 OCTOBER 2007 | |
| Coram: | JENKINS J | 6/12/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JACOB SMART RICHARD MICHAEL CLAYTON |
Catchwords: | Criminal law and procedure Application for leave to appeal Using a carriage service to harass another Magistrate's jurisdiction to hear Commonwealth charge with maximum penalty greater than 6 months' imprisonment Affect of adverse publicity on magistrate Failure of applicant to present evidence to support application for leave to appeal |
Legislation: | Crimes Act 1914 (Cth), s 4H, s 4K(4), s 85ZE(1)(a) Criminal Appeals Act 2004 (WA), s 9 |
Case References: | Samuels v The State of Western Australia (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
RICHARD MICHAEL CLAYTON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE B A LANE
File No : PE 24656 of 2004, PE 24657 of 2004, PE 24658 of 2004, PE 24659 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Application for leave to appeal - Using a carriage service to harass another - Magistrate's jurisdiction to hear Commonwealth charge with maximum penalty greater than 6 months' imprisonment - Affect of adverse publicity on magistrate - Failure of applicant to present evidence to support application for leave to appeal
Legislation:
Crimes Act 1914 (Cth), s 4H, s 4K(4), s 85ZE(1)(a)
Criminal Appeals Act 2004 (WA), s 9
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Samuels v The State of Western Australia (2005) 30 WAR 473
(Page 3)
- JENKINS J:
The decision under appeal
1 This application is for leave to appeal the decision of a magistrate sitting in the Magistrates Court at Perth on 18 November 2005. The appeal notice states that the date of decision was 20 December 2005 but this appears to be incorrect. The application is for leave to appeal the magistrate's decision to convict the applicant of four offences, each count being one charge of intentionally using a carriage service with the result that another person was harassed.
2 The appeal notice was not lodged until 3 April 2007. Thus, an extension of time within which to lodge the appeal notice was required. This was granted by Blaxell J on 25 May 2007.
Grounds of appeal
3 The applicant relies upon the following grounds of appeal against conviction:
1. The magistrate did not have authority to hear Commonwealth charges that carried a maximum penalty of more than 6 months' imprisonment.
2. The magistrate was under too much pressure due to the media being aware of the fact that she gave Jason Wimbridge bail.
3. The magistrate ignored the complainant's confession that she forged the documents she alleges were only sent to the Legal Practitioners Complaints Committee.
4 The appeal notice states that the applicant applies for leave to appeal against the convictions and sentence. However, it is deficient because it contains no grounds of appeal relating to sentence. The applicant advised me that after he obtained legal advice he would be able to add other grounds of appeal. In his written submissions he simply asserts that the sentence he received was excessive.
Details of charges and proceedings
5 The applicant was charged that on 27 September 2003 in Perth, contrary to the then Crimes Act 1914 (Cth) s 85ZE(1)(a), he intentionally used a carriage service supplied by a carrier with the result that another person, namely Charlene Sheila Amsden, was harassed. The remaining three charges were identical except in respect to the date of each offence; these being 28 and 30 September 2003 and 1 October 2003, respectively.
(Page 4)
6 The applicant was self-represented before the magistrate and at the hearing of the application for leave to appeal.
7 The applicant pleaded not guilty to the charges. The trial of the charges took place on 14, 15 and 22 September 2005. On 22 September 2005, the magistrate reserved her decision. On 18 November 2005, the magistrate delivered written reasons for convicting the applicant in respect to each charge. The magistrate sentenced the applicant to a global penalty of 12 months' imprisonment and ordered that the sentence be suspended for 12 months upon the applicant entering into a recognisance in the sum of $2,000 for 12 months.
The law
8 The Criminal Appeals Act 2004 (WA) s 9 provides that leave of the Supreme Court is required for each proposed ground of appeal. Leave to appeal must not be given unless the court is satisfied that a ground has a reasonable prospect of succeeding. In Samuels v The State of Western Australia (2005) 30 WAR 473 [55] - [61] the Court of Appeal said that the ground of appeal must have a real prospect of success, bearing in mind that the purpose of the statutory provision is to weed out unmeritorious appeals.
The evidence and the magistrate's findings
9 As only one of the grounds of appeal (ground 3) raises an evidentiary issue, I do not intend to detail the evidence. It is sufficient for me to say that the four charges related to allegations that the applicant used a telecommunications service in such a way that resulted in the complainant being harassed. At the relevant times, the complainant was a senior solicitor employed by the Legal Aid Commission. In July 2003, in the course of her employment, she was assigned to represent the applicant in criminal proceedings. During the course of that assignment, the complainant met the accused and took instructions from him. However, at some point immediately prior to 27 September 2003 the applicant came to the view that she was not representing him in an appropriate manner. He commenced to telephone her home number repeatedly. Phone calls were made on Sunday, 28 September 2003 through to the early morning of Monday, 29 September 2003. Additionally, the applicant made calls to her work telephone number on 27 and 28 September 2003.
10 On 30 September 2003, Ms Amsden checked her voicemail on her work telephone and the system had recorded a series of telephone
(Page 5)
- messages which the prosecution alleged were left from the applicant. Six calls were recorded as having been made on 27 September 2003.
11 Three of the calls that were made on 28 September 2003 to Ms Amsden's work number were also recorded because messages were left on her answering machine.
12 The prosecution alleged that the use of the telephone and the content of the calls made by the applicant had the result of harassing the complainant.
13 It was alleged that on 30 September 2003 the applicant again telephoned Ms Amsden's home and work numbers. These calls constituted the facts of the third charge.
14 A further call was made on 1 October 2003 to Ms Amsden's work number. That call was recorded on the voicemail and constituted the facts in respect to the fourth charge.
15 In her reasons for decision, the magistrate summarised the evidence of Ms Amsden. Ms Amsden said that on 28 July 2003 the applicant attended her office and they discussed the charges on which she was representing him for approximately one hour. She said that she asked another practitioner to appear on the applicant's behalf on a committal mention date of 24 September 2003. She gave that practitioner a copy of the applicant's file and told him to give the committal papers to the applicant. The magistrate said that Ms Amsden gave evidence that on 24 September 2003 she did not appear for Mr Smart, but the other practitioner did. She telephoned the court to find out the result of the committal proceedings and obtained the transcript of what had occurred in court because she received a note from the other practitioner informing her that the applicant wanted to appear for himself on the next date.
16 Ms Amsden testified that she sent a letter to the applicant on 25 September 2003. The letter referred to a previous letter of 15 July 2003, and also to the fact that Ms Amsden had asked the applicant to make an appointment prior to the committal mention date but that no appointment had been made. The letter confirmed that the police had served disclosure papers on Ms Amsden, but because the applicant did not make an appointment, she did not have an opportunity to discuss their contents with the applicant prior to his appearance on 24 September 2003. The letter included other matters such as the fact that Ms Amsden had spoken to a police officer about the charges and that she had received certain information from the police officer in respect to them.
(Page 6)
17 Ms Amsden testified that on Sunday 28 September at about 12.30 am she received a telephone call from the applicant. He abused her and told her that he was not happy with Legal Aid representing him or the letter that she had written to him. She told the applicant that it was not right for him to call her at home and she terminated the telephone call. She agreed that her telephone number was listed in the telephone directory under her name. Ms Amsden testified that after she terminated the telephone call her phone continued to ring and eventually she unplugged it. The content of the telephone calls upset her because her mother was in hospital and terminally ill and she was receiving telephone calls from her family. Secondly, she could not understand why the applicant was ringing her at home, abusing her, using swear words and speaking in an unpleasant manner which was extremely unsettling for her.
18 Ms Amsden testified that she plugged the phone back in at approximately 5.30 - 6 am on Monday 29 September. This was a public holiday. She said that once again in the early hours of the following morning she received a telephone call from the applicant who once again abused her. Once again she terminated the phone call. She stated that the telephone continued to ring. She unplugged the phone and did not answer it.
19 On Tuesday 30 September she received a facsimile from the applicant. The facsimile is dated 28 September 2003 and states:
Looking for Sheila Amsden a Legal Aid lawyer who has ripped me off. As your phone message doesn't have an address it looks like the one.
Andrew Smart would like to discuss legal matters with Sheila urgently. As I am very pissed off.
20 The reference to the phone message not having an address on it was, by inference, a reference to Ms Amsden's entry in the telephone directory which had her name and phone number but no address. The facsimile was stated to be from 'A Smart'.
21 That morning, Ms Amsden listened to messages on her work voicemail facility and there were a number of recorded calls from the applicant which had been made on 27 and 28 September. In the complainant's presence, her secretary retrieved the messages and recorded them onto a tape in a portable cassette recorder. The tape was in evidence.
(Page 7)
22 As a consequence of the communications from the applicant, Ms Amsden decided that she could no longer represent the applicant. The applicant was assigned to a private practitioner.
23 On 30 September 2003 Ms Amsden made an application on an ex parte basis for a restraining order against the applicant. An interim order was granted. Ms Amsden testified that she received further telephone calls at home from the applicant until he was served with the restraining order.
24 Ms Amsden testified that she was extremely frightened but did not understand why the applicant was ringing her at home or sending her facsimiles.
25 Ms Amsden testified that she knew that it was the applicant who was calling her because when she used the redial mechanism on her telephone some of the telephone numbers of the caller that came up on her system were ones given by the applicant in the legal aid application form. On other occasions the applicant identified himself before he abused her.
26 Ms Amsden testified that she received a facsimile from the applicant on 1 October 2003 at approximately 7.25 pm in her office. This frightened her and made her feel upset. As a consequence of these calls she had her home security upgraded.
27 In cross-examination, the applicant alleged that Ms Amsden had disclosed the names of his witnesses to the police. She denied that she had done so. She testified that the names of those witnesses were on the disclosure notice given to her by the police. Ms Amsden agreed that she did receive a copy of another witness' statement from the applicant but that she did not keep it.
28 Ms Amsden testified that the tape recordings came from her voicemail facility only, and could not be accessed by anybody else at Legal Aid.
29 Ms Amsden stated that she could only remember parts of what was said to her on the telephone at her home by the applicant. One particular thing she remembered was 'fuck off Legal Aid slut'. Ms Amsden testified that she usually hung up when she heard the applicant's voice and he identified himself. The contents of the recorded calls were in evidence. There is no need for me to refer to them.
(Page 8)
30 The magistrate summarised a great many other allegations that were put to Ms Amsden by the applicant but were generally denied by her. Consequently there was no evidence to prove the truth of those allegations.
31 The applicant elected not to give evidence.
32 The applicant made a closing statement to the court. The magistrate noted that from the applicant's lengthy submissions she had perceived that the defence relied on a number of grounds. She summarised these as three grounds. First, the prosecution had not proved its case beyond reasonable doubt, as the prosecution had not proven that the applicant had access to the premises where the telephone calls were made from at the time the calls were made. Secondly, even if the applicant did make the telephone calls and sent the facsimiles, he had a right to because Ms Amsden had disclosed his witness statement to the police after he had terminated her services. Therefore, he had a right to contact her and ask for his file back. Thirdly, the voicemail communications were not a direct threat to Ms Amsden. It was further submitted that he had a right to be angry with her because her behaviour had been unprofessional and had provoked him. He further submitted that there was no proof of intention to harass Ms Amsden and he was only in pursuit of the documents relating to him.
33 After dealing with the contents of the telephone calls, the telecommunications services from which they were made and to which they were made, the details on the applicant's legal aid form and the contents of the calls, the magistrate found the elements of the offences proven.
34 The magistrate found that the evidence of Ms Amsden to be 'totally credible and reliable'. She further found that the defence raised by the applicant, that he was only trying to retrieve his file and that he had a right to be angry with Ms Amsden to be 'not acceptable'. She found that he had made a complaint to the Legal Practitioners Complaints Committee but that was a matter for their determination. She found that Ms Amsden did not give the applicant permission to contact her at home at the times he did so. She acknowledged that the applicant had a right to contact Ms Amsden at the Legal Aid Commission, but not with the purpose of harassing or abusing her. The magistrate found that the applicant did harass and abuse Ms Amsden without lawful excuse.
(Page 9)
Ground 1
35 The Crimes Act s 4H states:
Offences against a law of the Commonwealth, being offences which:
(a) are punishable by imprisonment for a period not exceeding 12 months; or
(b) are not punishable by imprisonment;
are summary offences, unless the contrary intention appears.
36 Thus, the Crimes Act maintains the common law distinction between summary and indictable offences. Summary offences may be dealt with by a magistrate. An offence against s 85ZE carries a maximum penalty of imprisonment for 1 year. There is nothing in s 85ZE to indicate that it is not a summary offence. Consequently, such an offence is a summary offence and can be dealt with by a magistrate.
37 There is no merit in this ground of appeal and, thus, I am not prepared to grant leave in respect to it.
Ground 2
38 There is no evidence before me to prove the factual basis of this ground of appeal. On the basis of the applicant's submissions, I understand that his position is that around about the time of the hearing of these charges, the magistrate had been the subject of some adverse media comment for having granted bail to a person named Jason Wimbridge. This, the applicant argues put the magistrate under pressure and resulted in him being convicted.
39 On a daily basis, the decisions of judicial officers are subject to quite proper scrutiny by the parties, their lawyers, the public and the media. Judicial officers are used to such scrutiny and public comment on their decisions. It is a requirement of their position that they do justice between the parties in an impartial manner, regardless of such scrutiny.
40 In the absence of clear evidence to the contrary, it is inarguable that such scrutiny placed a judicial officer under pressure that led to an error. Rather, such scrutiny is regarded as enhancing open justice.
41 This ground of appeal has no reasonable prospects of success for three reasons. First, there is no evidence before me to substantiate the
(Page 10)
- claim that at the relevant time the media had 'got hold' of the fact that the magistrate gave Jason Wimbridge bail.
42 Secondly, there is no evidence before me that even if this occurred it placed the magistrate under 'to [sic] much pressure'.
43 Thirdly, even if the magistrate felt under such pressure, there is no evidence before me that this led her to make any appellable error. The magistrate took time to consider her decision. She delivered full, careful and measured reasons for her decision. There was sufficient evidence for her to convict the applicant of these charges.
44 For these reasons this ground of appeal has no reasonable prospects of success and I do not grant leave in respect to it.
Ground 3
45 I have been unable to find any material in the transcript of the hearing to substantiate the allegation that Ms Amsden admitted to forging any document. This fundamental defect means that this ground of appeal has no reasonable prospects of succeeding.
46 For this reason I would not give leave to appeal in respect to this ground.
Other submissions
47 In his affidavit of 3 April 2007 and in written submissions, the applicant raised a number of other issues which are not dealt with in his proposed grounds of appeal. For the sake of completeness I will deal with them.
48 The first is that the convictions are unsafe because the police officer bringing the charges has been dismissed from the police force for dishonesty. The transcript reveals that the magistrate was aware of this allegation. However, it was not relevant to the proof of the charges as the officer did not give evidence and his credibility was never an issue in the trial.
49 Secondly, the applicant alleged that there was some collusion between the magistrate and the complainant. There is no evidence before me that they had a friendship or any relationship that would lead a fair minded lay observer to reasonably apprehend that the magistrate may have been biased against the applicant.
(Page 11)
50 Thirdly, the applicant submitted that the sentence was excessive because it was the maximum that could be imposed for the offence. However, the Crimes Act s 4K(4) allowed a global penalty to be imposed for these four offences. The maximum penalty that could have been imposed was the sum of the maximum penalties that could have been imposed if a separate penalty were imposed in respect to each offence; that is, 4 years' imprisonment. Thus, a global sentence of 12 months' imprisonment was not excessive simply because it also happened to be the maximum penalty which could be imposed for one offence.
51 As I have said, the appeal notice does not state a ground for appeal against sentence. In the affidavit of 24 March, the applicant simply says that the sentence was excessive. He then, cryptically, adds 'especially given the circumstances/evidence by Sheila Amsden'. The Criminal Appeals Act says that it is insufficient to simply allege that a sentence is manifestly excessive. There is nothing before me to establish any error which the magistrate has committed which would warrant me concluding that a 12 month sentence, suspended for 12 months was excessive.
52 This is particularly so as the applicant has not produced a transcript of the magistrate's sentencing remarks from 2005. There is no reasonable excuse for him failing to produce the transcript. Without the transcript the applicant is unable to persuade me that the magistrate made an error in sentencing him as she did.
53 For these reasons the applicant should not get leave to appeal against sentence. A question arose during the course of the hearing as to whether the applicant should be given further time to obtain the sentencing transcript and legal advice. In my opinion, he should not. Even allowing for the fact that he has been self-represented and has been in custody for some of the time since his convictions, the applicant has had ample time to obtain the transcript and legal advice. It is not now in the interests of justice that he be given further time.
Conclusion
54 For the foregoing reasons, I dismiss the applicant's application for leave to appeal the decision of the magistrate.
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