Smart v Director of Public Prosecutions for Western Australia - [2023] WASCA 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMART -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASCA 192
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   29 JUNE 2023
DELIVERED          :   5 JULY 2023
PUBLISHED           :   27 JUNE 2024
FILE NO/S:   CACR 30 of 2023
BETWEEN:   ANDREW JACOB SMART
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   CURTHOYS J
File Number            :   SJA 1043 of 2020

Catchwords:

Criminal law - Appeal against decision of primary appeal judge to allow prosecution appeal against sentence - Whether primary appeal judge erred in finding that sentencing judge made errors of fact and law by backdating sentences of imprisonment - Where time served had already been taken into account in sentencing for other offences - Whether miscarriage of justice arose by hearing primary appeal proceedings in appellant's absence - Whether appellant was entitled to notice of primary appeal hearing date - Whether appellant was served with appeal documents

Legislation:

Criminal Code (WA), s 317(1)(b)
Criminal Procedure Rules 2005 (WA), r 65, r 67
Road Traffic Act 1974 (WA), s 61(1)
Sentencing Act 1995 (WA), s 87(1)(a), s 87(1)(d), s 87(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Smart v Director of Public Prosecutions (WA) [No 2] [2023] WASCA 193
Toop v Smart [2022] WASC 237

REASONS OF THE COURT:

Introduction

The appellant, Andrew Jacob Smart, was charged with two offences in the Magistrates Court. By prosecution notice AR 379 of 2016, it was alleged that on 9 January 2016, he unlawfully assaulted Kenneth Unsworth and thereby did him bodily harm, contrary to s 317(1)(b) of the Criminal Code (WA) (AOBH offence). By prosecution notice AR 380 of 2016, it was alleged that on 10 January 2016, the appellant drove a motor vehicle on a road in Thornlie, in a manner that was, having regard to all the circumstances of the case, dangerous to the public or to any person, contrary to s 61(1) of the Road Traffic Act 1974 (WA) (dangerous driving offence).
After a trial spread over seven sitting days before her Honour Magistrate O'Donnell,[1] the appellant was convicted of both charges.
[1] 18 - 19 November 2019 and 11 - 15 May 2020.
On 15 May 2020, the appellant was sentenced to 12 months' immediate imprisonment on the AOBH offence, and 4 months' immediate imprisonment on the dangerous driving offence. Magistrate O'Donnell ordered that the sentences be served cumulatively. Accordingly, the appellant received a total effective sentence of 16 months' immediate imprisonment. Pursuant to s 87(1)(d) of the Sentencing Act 1995 (WA), Magistrate O'Donnell ordered that the term of imprisonment she imposed was to be taken to have commenced on 14 June 2018 (backdating order). Pursuant to s 89(4) of the Sentencing Act, her Honour declined to make an order for parole eligibility.[2] The effect of the orders made by her Honour was that as at 15 May 2020, the appellant had served the entirety of the total effective sentence and he was immediately released from custody.
[2] Her Honour also disqualified the appellant from holding or obtaining a motor vehicle driver's licence for 12 months. In addition, her Honour made violence restraining orders for a period of two years in relation to Mr Unsworth and other witnesses who gave evidence in the trial.
On 12 June 2020, the present respondent appealed to a single judge of the General Division of the Supreme Court of Western Australia against the sentence[3] imposed by Magistrate O'Donnell and, in particular, the backdating order, on two grounds:
1.The learned sentencing magistrate erred in fact or law or both by ordering that the terms of imprisonment imposed be taken to have begun on 14 June 2018, contrary to s 87(2) Sentencing Act 1995 (WA); a substantial proportion of the period between 14 June 2018 and the sentencing date having already been taken into account in sentencing for other offences.
2.Alternatively, the making of the above order gave rise to a miscarriage of justice.
[3] During the proceedings before this court, the appellant has asserted that he also appealed against his convictions in addition to this appeal against sentence. As counsel for the respondent, Mr Scutt, has acknowledged, the appellant has not appealed against the convictions to a single judge of the General Division of the Supreme Court, let alone the Court of Appeal. It remains open to the appellant to do so, although he will require an extension of time.
Section 87 of the Sentencing Act states:
(1)If when an offender is being sentenced to imprisonment for an offence -
(a)the offender has previously spent time -
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
On 1 June 2021, the respondent's appeal was heard by Curthoys J. The appellant did not take part in the appeal. Curthoys J was satisfied that the appellant had been personally served with the appeal documents on 26 November 2020, and that he had chosen not to participate in the appeal.
On 26 July 2022, Curthoys J allowed the respondent's appeal: Toop v Smart.[4]
[4] Toop v Smart [2022] WASC 237 (primary decision).
We have set out, at [41] ‑ [49] below, a more detailed description of Curthoys J's reasons, but, at this point, it is enough to note the following.
Curthoys J found that the appellant had inadvertently given Magistrate O'Donnell inaccurate information about the time he had spent in custody on remand for the two offences. As a result, Magistrate O'Donnell erroneously backdated the sentence to 14 June 2018, when, in fact, her Honour could not, under s 87(1) of the Sentencing Act, have backdated the sentence to any date earlier than 11 October 2019. Curthoys J found that Magistrate O'Donnell had not made any error herself in making the backdating order because she had, as she was entitled to, relied upon information provided to her, which the prosecutor did not challenge. Accordingly, ground 1 was not made out. However, Curthoys J upheld ground 2. He found that the provision of the incorrect information had occasioned a miscarriage of justice.[5]
[5] See, in particular, primary decision [60] - [65].
Curthoys J made the following orders:[6]
(1)Leave to appeal is refused on ground 1.
(2)Leave to appeal is granted on ground 2.
(3)The appeal is allowed.
(4)The sentences imposed on 15 May 2020 be set aside.
(5)The matters be remitted to the Magistrates Court of Western Australia for resentencing before O'Donnell SM according to law.
[6] Primary decision [68].
Pursuant to order 5, the appellant was resentenced by Magistrate O'Donnell on 5 January 2023. Her Honour again sentenced the appellant to 12 months' immediate imprisonment for the AOBH offence and 4 months' immediate imprisonment for the dangerous driving offence. Again, her Honour ordered that the sentences be served cumulatively, with the effect that the appellant received a total effective sentence of 16 months' immediate imprisonment. Magistrate O'Donnell ordered that the sentence be taken to have commenced on 1 June 2022. Her Honour declined to make a parole eligibility order.
On 27 March 2023, the appellant appealed to this court against the decision of Curthoys J (CACR 30 of 2023).
Subsequently, the appellant also appealed to a single judge of the General Division of the Supreme Court of Western Australia against the sentences imposed on 5 January 2023 by Magistrate O'Donnell. On 12 May 2023, Vandongen J referred that appeal to this court, pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA) (CACR 60 of 2023). Both appeals were heard in this court on 29 June 2023.
On 5 July 2023, in relation to the appeal against the decision of Curthoys J (CACR 30 of 2023), this court unanimously ordered:
1.Leave to appeal refused.
2.Appeal dismissed.
Also on 5 July 2023, in relation to the appeal against the sentences imposed by Magistrate O'Donnell on 5 January 2023 (CACR 60 of 2023), this court unanimously ordered:
1.Leave to appeal granted on ground A.
2.Leave to appeal refused on the other grounds.
3.Appeal allowed.
4.The sentences imposed and the orders made by Magistrate O'Donnell on 5 January 2023 in respect of charges AR 379 of 2016 and AR 380 of 2016 are set aside.
5.The appellant is resentenced as follows:
(a)charge AR 379 of 2016: 12 months' immediate imprisonment; and
(b)charge AR 380 of 2016: 2 months' immediate imprisonment.
6.The new sentence for charge AR 380 of 2016 is to be served cumulatively upon the new sentence for AR 379 of 2016.
7.The new total effective sentence is therefore 14 months' immediate imprisonment.
8.The new total effective sentence is to be taken to have taken effect on 1 June 2022.
9.The appellant is not eligible to be released on parole.
At the time the orders set out above were pronounced, the court advised that it would publish its reasons for making the orders at a later date.
What follows are our reasons for making the orders in CACR 30 of 2023. Our reasons for making the orders in CACR 60 of 2023 are set out in separate reasons to be published at the same time as these reasons.[7]
[7] Smart v Director of Public Prosecutions (WA) [No 2] [2023] WASCA 193.

The grounds of appeal to this court

As mentioned, the appellant is a litigant in person. At a directions hearing on 6 April 2023, Buss P and Mazza JA made orders amending the appellant's grounds of appeal to read:
1.The primary appeal judge made errors of law and fact in deciding that the sentencing magistrate's order that the terms of imprisonment imposed by the sentencing magistrate be taken to have begun on 14 June 2018 gave rise to a miscarriage of justice.
2.A miscarriage of justice occurred before the primary appeal judge because his Honour heard and determined the present respondent's appeal in the present appellant's absence and without the present appellant having been given notice of the hearing date.
At the same directions hearing, orders were made granting leave to the parties to put before this court evidence relevant to ground 2 and, in particular, the question of whether the appellant was served with the appeal documents in the primary appeal proceedings decided by Curthoys J. We will refer to this material later in these reasons when dealing with ground 2 as amended.
The appellant was also granted leave to file and serve a document containing particulars of the alleged errors of law and fact relied upon by the appellant in ground 1 as amended. We will refer to this document when we deal with ground 1 as amended.
Before dealing with the amended grounds of appeal, we will briefly set out the cases put by the parties at the trial before Magistrate O'Donnell.

The prosecution case at trial

The prosecution case at trial may be summarised as follows. At all relevant times, the appellant resided at 40 Coops Avenue, Thornlie. Across the road from him, at 27 Coops Avenue, Thornlie, lived a number of people, including Ms O'Grady‑Errington.
At about 5.00 pm on 9 January 2016, a disturbance occurred between the appellant and others who were, at the time, at 27 Coops Avenue. No charges were laid as a result of this altercation. At around 8.00 pm that same evening, a second disturbance took place, during which the AOBH offence allegedly occurred. In support of the prosecution case, Mr Unsworth, Ms O'Grady‑Errington, Ms Della‑Franca, Mr Carwardine, Mr Harding, and Ms Errington were called as witnesses.
The prosecution case was that the appellant, who was in an angry and aggressive mood, hurled abuse at the occupants of 27 Coops Avenue. At around 8.00 pm, he threw bottles onto the driveway of 27 Coops Avenue. On the prosecution case, Mr Unsworth tried to get the appellant to leave them alone. Mr Unsworth proceeded towards 40 Coops Avenue. He did not do so aggressively. In particular, he did not 'shape up', or gesture, to the appellant nor did he threaten him.
The prosecution case was that when Mr Unsworth reached the verge in front of 40 Coops Avenue, the appellant punched him, tripped him, then punched and kicked him multiple times to the face and body, causing injuries which amounted to bodily harm. Further, the blows, or at least some of them, rendered Mr Unsworth unconscious. Mr Unsworth suffered a dislocated jaw, as well as cuts, bruises and swelling.[8] As a result of the assault, Mr Unsworth experienced pain and discomfort. It took about a month for him to recover.
[8] See photographs, exhibit 5.13 - 5.15.
As to the dangerous driving charge, the prosecution case was that Ms O'Grady‑Errington got up at about 5.00 am on 10 January 2016 to check the vehicles at her house and to check for broken glass. At the time, the appellant was in his driveway, putting things into his trailer, which was attached to a vehicle. According to the prosecution, the appellant made some derogatory remarks about Ms O'Grady‑Errington.
The appellant then got into his vehicle, started it, revved the motor, 'put his foot down' and then drove out of the driveway, straight at Ms O'Grady‑Errington. The appellant's vehicle swerved away from her 'at the very last minute'. As a result, Ms O'Grady‑Errington fell about a metre or two back from the kerb at 27 Coops Avenue. Immediately following the swerve, the trailer tipped onto its side.
Apart from Ms O'Grady‑Errington, evidence was also given by Mr Carwardine and a neighbour, Ms Yavus, about the manner of the appellant's driving. Some parts of the lead up to the incident and the incident itself were recorded on Ms Della‑Franca's mobile telephone. The recording was played at the trial and tendered as exhibit 6. According to the prosecution case, the footage confirmed the oral testimonies of the witnesses and contradicted the appellant's version of events.
The prosecution case was that the appellant's manner of driving was dangerous, having regard to the speed at which he drove, that he drove directly at Ms O'Grady‑Errington, and that he swerved 'at the last minute'.

The defence case at trial

The appellant testified in his own defence at trial. As to the AOBH offence, the appellant alleged that Mr Unsworth made a 'beeline' towards him from 27 Coops Avenue and, in the process, threatened to kill him. The appellant said that Mr Unsworth 'shaped up' to him. In self‑defence or in defence of his property against a home invader, the appellant struck Mr Unsworth, but did not cause him to suffer bodily harm. The appellant's case as to the bodily harm was that Mr Unsworth's injuries were caused by Ms O'Grady‑Errington stepping on his face, as he laid on the ground, whilst she had a piece of glass in her foot.
As to the dangerous driving offence, the defence case was that Ms O'Grady‑Errington had an epileptic seizure, which caused her to either jump or fall onto the road as the appellant drove out of his driveway. As a result, the appellant had to swerve his vehicle suddenly to avoid injuring Ms O'Grady‑Errington. Accordingly, the appellant denied that his driving was, in all of the circumstances, dangerous.

Magistrate O'Donnell's reasons for convicting the appellant

On 15 May 2020, Magistrate O'Donnell delivered oral reasons for judgment.[9]
[9] ts 1 - 27, 15 May 2020.
In essence, Magistrate O'Donnell rejected the appellant's version of events and found that, on both 9 and 10 January 2016, he was in an angry and aggressive mood due to his antipathy towards those who were occupying the premises at 27 Coops Avenue, Thornlie. Magistrate O'Donnell rejected the appellant's exculpatory evidence. On the basis of the evidence led by the prosecution witnesses, she was satisfied beyond reasonable doubt that the appellant assaulted Mr Unsworth and caused him bodily harm. Her Honour was also satisfied beyond reasonable doubt that the appellant had driven dangerously, as alleged, on the morning of 10 January 2016. She was satisfied beyond reasonable doubt that the prosecution had proved that the appellant had not acted in self‑defence, nor in defence of his home, in relation to the AOBH offence. Her Honour also rejected the appellant's contention that Ms O'Grady‑Errington had an epileptic seizure causing her to step out onto the road, which, in effect, necessitated him taking evasive action with his vehicle.

The sentencing proceedings on 15 May 2020

After finding the appellant guilty, Magistrate O'Donnell immediately proceeded to sentence him.
In her Honour's sentencing remarks, she said that the AOBH offence was a serious example of its type. She found that the appellant applied 'significant force' in the assault on Mr Unsworth, which caused 'pain, swelling and bleeding to Mr Unsworth's face'. Moreover, Mr Unsworth was left unconscious for a period of time.[10]
[10] ts 36, 15 May 2020.
As to the dangerous driving offence, Magistrate O'Donnell found that the appellant was, on the morning of 10 January 2016, still angry from the events of the previous evening. Her Honour found that the appellant was verbally abusive towards Ms O'Grady‑Errington and that he drove 'straight at her with far more speed than was safe'.[11] Her Honour also found that the appellant swerved very heavily, with such force that the trailer he was towing tipped over. Her Honour found that the appellant engaged in 'deliberate risk‑taking behaviour' that was 'inherently full of risk'.[12] Her Honour characterised the offending as a serious example of its kind.
[11] ts 36, 15 May 2020.
[12] ts 37, 15 May 2020.
Her Honour said that she could not find 'really any mitigation in this case'.[13] She observed that the appellant had not pleaded guilty and had no insight into his offending behaviour. She found, on the basis of his criminal history, that the appellant was not a person of prior good character and was not youthful.
[13] ts 36, 15 May 2020.
Magistrate O'Donnell concluded that, in all of the circumstances, the only appropriate penalty was a term of immediate imprisonment in respect of each of the offences. She then proceeded to impose the individual sentences referred to at [3] above. Having done so, her Honour asked the prosecutor, 'is there a date for backdating?' The prosecutor responded, 'Just one moment while I just check that'.[14]
[14] ts 37, 15 May 2020.
The appellant said that he had been in custody since 14 June 2018, 'specifically on these charges'.[15] The prosecutor said that he had 'no issue with that date'. It is clear from the sentencing remarks Magistrate O'Donnell accepted that what she had been told by the appellant was correct. Her Honour then directed that the sentence be taken to have commenced on 14 June 2018.
[15] ts 37, 15 May 2020.

Magistrate O'Donnell then addressed the question of eligibility for parole, having regard to s 89(4) of the Sentencing Act. Her Honour found that the offences were serious and that the appellant had a significant criminal record. Accordingly, she did not make the appellant eligible for parole.

Curthoys J's reasons

Curthoys J's reasons include the following. His Honour said that two issues arose in the appeal.[16] First, whether Magistrate O'Donnell correctly backdated the sentences she imposed upon the appellant to 14 June 2018, and secondly, if the sentences were incorrectly backdated, then what was the appropriate order?
[16] Primary decision [3].
His Honour noted that the appellant did not take part in the appeal. Curthoys J said that based on the affidavit of Sergeant Sarah Louise Brookes sworn 15 January 2021, he was satisfied that the appellant had been personally served with the appeal documents on 26 November 2020. His Honour said, 'Despite being served with the appeal documents [the appellant] chose not to participate in the appeal'.[17] As will be seen later in these reasons, the appellant challenges the finding that he was served with the appeal documents.
[17] Primary decision [4].
In relation to the question of time spent in custody by the appellant, his Honour accepted as correct a chronology, prepared by the present respondent, setting out a number of events between the occurrence of the offences on 9 and 10 January 2016 up until the appellant's sentencing by Magistrate O'Donnell on 15 May 2020. This chronology appears as Annexure A of his Honour's reasons for decision.
The salient details contained in the chronology are:
(1)On 9 and 10 January 2016, the offences the subject of these proceedings were committed.
(2)On 11 January 2016, the appellant was charged with, and granted bail for, the offences.
(3)On 13 January 2017, while on bail, the appellant was charged with committing two offences under the Criminal Code Act 1995 (Cth) relating to the misuse of a carriage service (Commonwealth offences). After spending about 3 weeks in custody for those offences, the appellant was granted bail.
(4)On 14 June 2018, a magistrate refused to renew the appellant's bail for the AOBH offence and the dangerous driving offence, and he was remanded in custody in relation to them. The appellant's bail for the Commonwealth offences remained undisturbed.
(5)On 18 December 2018, 4 February 2019 and 18 March 2019, the appellant committed three offences of being in contempt of court, whilst he was in custody.
(6)The appellant was convicted of the three contempt offences and sentenced by different magistrates on 11 April 2019 and 8 May 2019 to sentences totalling 6 months' imprisonment. The appellant served these sentences between 11 April 2019 and 10 October 2019.
(7)On 30 April 2019, the appellant was convicted of the Commonwealth offences after a jury trial, presided over by Lonsdale DCJ.
(8)On 2 May 2019, the appellant was acquitted of some other Commonwealth offences, and Lonsdale DCJ cancelled the appellant's bail on the Commonwealth offences of which he was convicted. At this time, the appellant was a serving prisoner in relation to the contempt offences and was a remand prisoner in relation to the AOBH offence and the dangerous driving offence.
(9)On 5 June 2019, the appellant was sentenced by Lonsdale DCJ on the Commonwealth offences to a total of 10 months' imprisonment, backdated to 12 June 2018. This term expired on 11 April 2019.
(10)On 10 October 2019, the contempt sentences expired. From 11 October 2019, the appellant was only in custody on remand for the AOBH offence and the dangerous driving offence.
(11)On 15 May 2020, as already mentioned in these reasons, the appellant was sentenced by Magistrate O'Donnell.
Curthoys J observed that, by the time the appellant was sentenced by Magistrate O'Donnell on 15 May 2020, the time the appellant had spent in custody between 14 June 2018 and 10 April 2019 was in service of the sentences imposed by Lonsdale DCJ, while the period from 11 April 2019 to 10 October 2019 had been taken up by service of the sentences of imprisonment for contempt of court. Thus, pursuant to s 87(1)(a)(i) of the Sentencing Act, read with s 87(2), these periods of time spent in custody could not be used by Magistrate O'Donnell to backdate the sentences she imposed on 15 May 2020, because these periods in custody had already been taken into account in sentencing for other offences, or had been served in respect of offences other than those dealt with her Honour. This meant that the only time available to backdate the sentences she imposed was from 11 October 2019.
As to ground 1, Curthoys J found, in effect, that Magistrate O'Donnell had been misinformed and had backdated the sentences she imposed on the basis of erroneous information given to her by the appellant and agreed to by the prosecution. His Honour held that Magistrate O'Donnell did not err in proceeding on the basis of that unchallenged information. Curthoys J found that courts are entitled to proceed on the basis that the information provided by the prosecutor in relation to sentencing is accurate.[18] He said that to require judicial officers to check every statement as to backdating would impose an unacceptable burden on the time and resources of the courts. As no error had been made by Magistrate O'Donnell, Curthoys J held that ground 1 had no merit and refused leave to appeal.[19]
[18] Primary decision [50].
[19] Primary decision [51].
As to ground 2, his Honour rejected the submission put by the present respondent that the appellant had actively misled the court.[20] Nevertheless, his Honour found that there had been a miscarriage of justice. His Honour identified five factors that he said were relevant to whether there had been a miscarriage of justice, being:[21]
(a)there was a significant error of law in the backdating process leading to a substantially lesser period in custody than might otherwise have been imposed;
(b)the calculation of the date to which the sentence should have been backdated was complex involving multiple offences and sentences;
(c)the prosecutor concurred in [the appellant's] statement as to the appropriate date to which the sentence was backdated;
(d)[the appellant] was unconditionally released at the conclusion of sentencing; and
(e) there was a long period between the offending (9 - 10 January 2016), the sentencing (15 May 2020) and the hearing of the appeal (1 June 2021).
[20] Primary decision [59].
[21] Primary decision [60].
Curthoys J regarded the most significant factor as being that the appellant had 'substantially underserved his sentence by a matter of months not weeks'.[22] While acknowledging that the prosecutor had concurred in the backdating date, his Honour said that 'the reality is that the prosecutor had no clear idea of what the period of backdating should have been'.[23] His Honour stated that, 'A court might overlook an error of weeks but an error of months is far more significant'.[24] His Honour said: [25]
To allow [the appellant] to avoid serving a significant part of the sentence imposed on him for serious offending due to an error in the backdating would be a substantial miscarriage of justice having regard to the factors set out at [60].
[22] Primary decision [61].
[23] Primary decision [62].
[24] Primary decision [63].
[25] Primary decision [65].
Curthoys J ruled that the residual discretion to dismiss the appeal under s 14(2) of the Criminal Appeals Act 2004 (WA) should not be applied. He remitted the charges to Magistrate O'Donnell for the appellant to be resentenced 'according to law'.[26]
[26] Primary decision [68].

The appeal to this court

At [18] above, we have set out the appellant's grounds of appeal as amended by this court. It is convenient to deal with amended ground 2 first.

Amended ground 2

By this ground, the appellant alleges that he has suffered a miscarriage of justice in the proceedings before Curthoys J because his Honour heard and determined the appeal in his absence; the appellant having not been given notice of the hearing date.
The appeal to Curthoys J was governed by pt 14 of the Criminal Procedure Rules 2005 (WA) (the Rules). Relevantly, the Rules provide that an appeal under pt 2 div 2 of the Criminal Appeals Act is commenced by filing an appeal notice, along with various other documents set out in r 65(1). Rule 65(6) states that any document lodged under r 65(1) must be served on the respondent personally. Rule 67(1) states that upon being served, a respondent may lodge a notice of respondent's intention. This notice must be lodged within seven days after the date on which the respondent is served with the appeal notice.[27] Rule 67(4) provides:
If a respondent does not lodge a Form 22 [notice of respondent's intention] within the seven days or any extension of that period ordered by the court, the respondent is not entitled to take part or be heard in the appeal and is not a party to the appeal for the purposes of these Rules.
[27] Criminal Procedure Rules 2005 (WA), r 67(2).
On 15 January 2021, an affidavit of service, affirmed by Sergeant Brookes on that same day, was filed.[28] In the affidavit, Sergeant Brookes stated that on 26 November 2020, at Perth police station, she personally served the appellant with a true copy of:
(a)an appeal notice dated 12 June 2020;
(b)a certified prosecution notice AR 379 of 2016;
(c)a certified prosecution notice AR 380 of 2016;
(d)a transcript of sentencing at Perth Magistrates Court on 15 May 2020;
(e)a court history for A J Smart (that is, the present appellant) dated 12 June 2020;
(f)a transcript of earlier sentencing at Perth Magistrates Court on 8 May 2019; and
(g)a transcript of earlier sentencing at Perth District Court on 5 June 2019.
[28] BGAB 489 - 492.
Sergeant Brookes stated that she personally handed a true copy of each of the abovementioned documents to the appellant, whom she knew because she had been involved in his arrest earlier on 26 November 2020. Sergeant Brookes also confirmed the appellant's identity from police records.
Sergeant Brookes stated that the appellant acknowledged receipt of the abovementioned documents by signing a document she had prepared, entitled 'Unified Physical Material List' (UPML). Sergeant Brookes explained that at the top of the UPML she had inadvertently typed the name 'Andrew Jacob Savage'. While 'Andrew Jacob' are the appellant's given names, the surname 'Savage' was written in error because, at the time, Sergeant Brookes was involved in another brief concerning a person with that surname. Sergeant Brookes noted that the appellant signed the UPML above the handwritten name 'Andrew Smart'. Sergeant Brookes noted that, on the UPML, crosses confirming receipt of service had been entered for items (a) and (b) but not for the other documents listed in the UPML. Sergeant Brookes said that the absence of crosses for the other documents was an unintentional error on her part, and that she had served on the appellant all of the documents described in the UPML.
Sergeant Brookes said that, although the actual service of the documents on the appellant was not recorded on video, she had accessed the custody footage taken at the Perth police station on 26 November 2020. As to this footage, she said:[29]
I can be seen holding a large bundle of documents held together with a bull‑dog clip as I enter the room in which I then served [the appellant]. [The appellant] is then seen leaving the room holding the clipped documents and can be seen to be holding those documents thereafter, including as he was later released down the walkway onto the street. I have taken steps to have that footage preserved in the event it is required.
[29] BGAB 491; affidavit of service, par 9.
It is clear that the appellant disputed this version of events. He says he was not served with the appeal papers by Sergeant Brookes. Whether or not this is so is an issue fundamental to the success of ground 2.
Because the appellant disputed that he had been personally served with the appeal documents, this court granted leave to the parties to file further affidavits in relation to the question of service. This court has received and considered a further affidavit affirmed by Sergeant Brookes on 11 April 2023, and an affidavit sworn by the appellant on 9 May 2023. Both Sergeant Brookes and the appellant were cross‑examined at the hearing of the appeal.
In her affidavit affirmed 11 April 2023, Sergeant Brookes:
(1)Confirmed the contents of her affidavit affirmed 15 January 2021, subject to one qualification. The qualification is that, upon seeing the CCTV footage taken at the Perth police station on 26 November 2020, she now believes that, contrary to what she said in her earlier affidavit, it was Constable Barnes, not her, who held the documents to be served on the appellant in the corridor outside the cell in which the appellant was being held.
(2)Annexed a disc containing the CCTV footage. According to Sergeant Brookes, prior to the appellant being served, he can be seen entering the interview room without any documents. At an earlier point, in the corridor outside the interview room, Constable Barnes may be seen holding the documents, which Sergeant Brookes later served. The CCTV footage clearly shows the appellant leaving the interview room carrying a substantial bundle of paperwork, being the paperwork that Sergeant Brookes says she served on him. The CCTV footage shows the appellant entering the 'breath rooms' with the paperwork, where he sat on a chair and placed the documents on the seat next to him. A short time later, Constable Barnes places the appellant's shoes in front of him and gives him a piece of paper. After the appellant puts on his shoes, he can be seen to pick up the paperwork, get up from the chair and follow Constable Barnes down a passageway. As the appellant walks down the passageway, he can be seen holding and straightening the bundle of paperwork. The lighting then indicates the opening and closing of an external door. The CCTV footage records Constable Barnes returning along the same exit passageway alone, with the appellant having exited onto the street.
The appellant, in his affidavit sworn 9 May 2023, stated that:
(1)he was 'definitely not served' with the appeal documents;
(2)the signature on the UPML was not his;
(3)the CCTV footage 'takes the police case nowhere', particularly as there is no accompanying audio recording;
(4)the large bundle of documents that can be seen in the CCTV footage were 'totally unrelated to me' and, instead, concerned a Mr Savage; and
(5)again, the purported signature on the UPML is not the appellant's but a forgery.
The appellant was somewhat evasive under cross‑examination as to whether he had been given a large bundle of documents by Sergeant Brookes.[30] Eventually, he accepted that he was served with a bundle of documents, although he did not accept that it was a 'large' bundle of documents. When shown relevant portions of the CCTV footage, he accepted that he appeared in the footage. He accepted that, at the point when he was given his shoes, there was some paperwork, which he maintained was in relation to 'the unrelated matters that I've talked about'.[31] The appellant elaborated, saying that the papers concerned an alleged breach of a violence restraining order and bail in respect of a damage charge.[32] The appellant said that he walked out of the police station with paperwork belonging to 'a Mr Savage'.[33]
[30] Appeal ts 41 - 43.
[31] Appeal ts 47.
[32] Appeal ts 49 - 50.
[33] Appeal ts 51 - 52.
The appellant reiterated under cross‑examination that he was not served with any papers by Sergeant Brookes.[34]
[34] Appeal ts 52.
Under cross‑examination by the appellant, Sergeant Brookes:
(1)Confirmed that there was no CCTV footage of her serving the appeal documents on him, nor was there any CCTV footage of him signing the UPML.[35]
(2)Denied that she forged the appellant's signature on the UPML.[36]
(3)Refuted any suggestion that she had not served the appellant with the appeal documents.[37]
(4)Explained that she gave Constable Barnes the appeal documents before she went into the interview room, and that she then served the documents on the appellant. She recalled that Constable Barnes was a probationary constable at the time and was not confident in serving that kind of paperwork on the appellant and therefore she did it herself.[38]
(5)Denied lying about serving the documents personally on the appellant.[39]
(6)Confirmed that the documents she had served on the appellant related to the appeal against the sentencing decision of Magistrate O'Donnell.[40]
[35] Appeal ts 59.
[36] Appeal ts 59.
[37] Appeal ts 60.
[38] Appeal ts 63.
[39] Appeal ts 61.
[40] Appeal ts 61.
In addition to the affidavits and the oral testimonies of Sergeant Brookes and the appellant, we have viewed the CCTV footage recorded at the Perth police station on 26 November 2020. The footage is without accompanying sound. Sergeant Brookes' description of it, as corrected in her affidavit of 11 April 2023, is accurate. In our opinion, the footage shows the appellant entering a room at Perth police station, followed a short time later by Sergeant Brookes and Constable Barnes. When the two police officers enter the room, Constable Barnes is carrying a sizeable bundle of documents. Approximately 15 minutes later, the appellant leaves the interview room, followed by Constable Barnes and Sergeant Brookes. The appellant is carrying a bundle of paperwork that corresponds in size with that brought into the room earlier by Constable Barnes. The appellant then enters a room with the paperwork and places it on a chair next to him. After a short time, Constable Barnes brings the appellant a pair of shoes and gives him what appears to be a piece of paper.
After the appellant puts his shoes on, he picks up the bundle of paperwork that had been on the chair next to him and follows Constable Barnes down a passageway. The CCTV footage shows what appears to be an external door opening and closing. After the door closes, Constable Barnes retraces his steps along the corridor, alone. It may be inferred that the appellant left the building via the external door.
It is true that the CCTV footage, which appears to have been taken from fixed cameras at various points within the Perth police station, does not include any footage of what occurred in the interview room and does not show Sergeant Brookes personally serving any documentation upon the appellant. Given the distance of the cameras from the action, it is not possible to see precisely what documents the appellant had in his possession after he left the interview room.

The parties' submissions on ground 2

In his oral submissions in this court, the appellant asserted that he had never been served with the appeal documents. He pointed out that the UPML was in the name of 'Andrew Savage' and not in his name, and claimed that the documents allegedly served on him did not, in effect, concern him.[41] The appellant asserted that there was an inconsistency in the two affidavits sworn by Sergeant Brookes. On his reading of the documents, Sergeant Brookes claimed, in her first affidavit, to have personally served the documents upon him; but in her second affidavit, she stated that Constable Barnes served the documents upon him. Then, in effect, he submitted that Sergeant Brookes changed her evidence again at the hearing of the appeal, when she said that she handed the documents to him.[42]
[41] Appeal ts 64 - 65.
[42] Appeal ts 65.

The appellant observed that, despite the Perth police station being 'one of the most secure police stations in Australia', there was no recording of whatever had occurred in the interview room when he was allegedly served with the appeal documents.[43] The appellant submitted that there were 'so many uncertainties' this court should not be satisfied that he was served with the appeal documents on 26 November 2020.
[43] Appeal ts 65.
On behalf of the respondent, Mr Scutt submitted that, on the evidence before this court, it was incontrovertible that the appellant had been given a bundle of documents at the Perth police station. The real question was: what were the documents? He submitted on behalf of the respondent that Sergeant Brookes did not falsely state that she had served the appeal documents on the appellant and, certainly, there was no reason for her to forge the appellant's signature on the UPML.

Disposition - ground 2

In our opinion, ground 2 as amended has not been made out. Our reasons for this conclusion are as follows.
We will deal first with the question of whether the appellant was served with the appeal documents. We accept that if he was not served, then he has suffered a miscarriage of justice as alleged in amended ground 2. However, it is clear on the evidence before this court, which we accept, that the appellant was served with the appeal documents.
We agree with the submission made on behalf of the respondent that it is incontrovertible that the appellant was served with a bundle of documents at the Perth police station on 26 November 2020. It is clear from the CCTV footage that the appellant entered the interview room at the Perth police station carrying nothing. The CCTV footage shows Sergeant Brookes and Constable Barnes entering the interview room a short time later, with Constable Barnes carrying a bundle of papers. Approximately 15 minutes after the police officers enter the room, the appellant exits the room carrying a bundle of papers. The only reasonable inference that can be drawn is that the bundle of papers carried into the room by Constable Barnes were provided to the appellant in the interview room, and that the appellant left the room with the bundle in his possession. It is also apparent that the appellant kept the bundle in his possession while he put on his shoes and when he walked towards the exit of the police station with Constable Barnes.
There is no evidence as to what happened in the interview room other than the evidence of Sergeant Brookes, on the one hand, and that of the appellant, on the other. However, we accept the evidence of Sergeant Brookes that she served the appellant with the appeal documents. We do so for three reasons.
First, the documents that were given to the appellant could only have been given to him by either Sergeant Brookes or Constable Barnes. To our minds, it makes greater sense that the documents would be served on the appellant by Sergeant Brookes, who was the more senior police officer as between her and Constable Barnes.
Secondly, it is inconceivable that Sergeant Brookes would lie about serving the documents, if they were, in fact, served by Constable Barnes. Equally, it is inconceivable that Sergeant Brookes would forge the appellant's signature on the UPML and would later affirm a false affidavit of service. There is absolutely no motive for her to do any of these things.
Thirdly, contrary to the submissions of the appellant, Sergeant Brookes has been entirely consistent, in both her affidavits and in her oral testimony before this court, that she personally served the appellant with the appeal papers on 26 November 2020 at the Perth police station. We note in her affidavit affirmed 11 April 2023, she corrected her statement, made in her affidavit of service, that she had brought the appeal documents into the interview room, when, in fact, it was Constable Barnes who had brought the documents into the room. Rather than tarnish her credibility, to our minds, it enhanced her credibility because it showed a willingness to acknowledge error and to ensure the court was not misled.
As to the nature of the documents served, we accept Sergeant Brookes' evidence that she served on the appellant all of the documents set out in the UPML. Each of those documents has been provided to this court and are contained in the appeal books. Put together, these documents would constitute a substantial bundle of the kind brought into the interview room by Constable Barnes and taken out of that room by the appellant. We note that, as at 26 November 2020, the appeal had been initiated and the appeal papers required by the Rules would have been substantial, and would certainly be more extensive than, for example, bail paperwork. There are no other documents that the police would have had in their possession to give to the appellant other than the appeal documents.
We do not accept that the appellant's version of events is supported by the name 'Andrew Savage' appearing on the UPML. We accept Sergeant Brookes' evidence that she inadvertently entered the name 'Savage', rather than 'Smart', because she had been working on a case involving someone with the surname 'Savage'. In this regard, it is significant that the given names of 'Mr Savage' were the same as the appellant's given names. It is also significant that the fifth document described in the UPML referred to 'A J Smart' and that above the signature of the person who acknowledged receipt of the documents described in the UPML were the words 'Andrew Smart'.
Moreover, the appeal notice referred to in the UPML was dated 12 June 2020, being the date on which the appeal notice in the appeal before Curthoys J was filed. The prosecution notices AR 379 of 2016 and AR 380 of 2016 concerned charges that had been brought against the appellant. Additionally, the transcripts referred to in the UPML concerned proceedings on 8 May 2019 and 5 June 2019, being dates on which the appellant had appeared in the Perth Magistrates Court and the Perth District Court, respectively.
Having regard to these factors, it is fanciful to suggest that the bundle of documents provided to the appellant concerned a different person altogether by the name of Andrew Jacob Savage.
Having seen and heard the appellant under cross‑examination, we have formed an unfavourable view of his credibility. His demeanour and answers were, generally speaking, evasive and unduly defensive. His testimony, to the effect that he was not served with the appeal documents and that Sergeant Brookes had engaged in forgery and sworn two false affidavits, was highly improbable. The relevant features of the appellant's affidavit sworn 9 May 2023 and his oral testimony in this court were contrived and far‑fetched. Where the evidence of Sergeant Brookes and that of the appellant conflict, we prefer the evidence of Sergeant Brookes. We find that she was an honest and reliable witness. We reject the evidence of the appellant where it conflicts with that of Sergeant Brookes.
On the evidence presented to this court, we find that the appellant was served with the appeal documents by Sergeant Brookes at the Perth police station on 26 November 2020. There is no dispute that the appellant failed to file, in accordance with the Rules, a notice of intention. As a consequence of this failure, pursuant to r 67(4), the appellant was not entitled to take part or be heard in the appeal and he was not a party to the appeal for the purposes of the Rules. Contrary to suggestions made by the appellant, the court was under no obligation to contact him to advise him of the appeal, nor to notify him of any hearing date. Curthoys J was entitled to proceed to hear and determine the appeal, as he did, in the appellant's absence.
For these reasons, ground 2 is without merit and leave to appeal in respect of it was refused.

Amended ground 1

By this ground, the appellant alleged, in very general terms, that Curthoys J had made errors of law and fact in deciding that Magistrate O'Donnell's order, backdating the terms of imprisonment she imposed to commence on 14 June 2018, gave rise to a miscarriage of justice.
Pursuant to the order referred to in [20] above, the appellant filed a document containing particulars of the alleged errors of law and fact he relied upon to establish ground 1 as amended. This document, filed on 10 May 2023, sets out 13 alleged errors of law and fact. It is unnecessary to detail them.
Alleged errors 1, 2, 3, 4 and 5, in effect, challenge the convictions recorded by Magistrate O'Donnell. The appellant has not appealed against the convictions. The proceedings before Curthoys J only concerned the sentences that were imposed on the appellant. Accordingly, the current proceedings are not an occasion to review the convictions that were recorded against the appellant.
Alleged error 13 is set out over five handwritten pages.[44] It contains a series of unsubstantiated allegations against a number of people associated with the events of 9 and 10 January 2016 and other events in which the appellant was apparently involved. None of this has any relevance whatsoever to the issues that Curthoys J was required to decide, or to this appeal.
[44] See WAB 40 - 44.
The remaining alleged errors of law or fact, being numbered 6, 7, 8, 9, 10, 11 and 12, do not require adjudication by this court. Looking at them in a way most favourable to the appellant, they allege that the sentences imposed upon him by Magistrate O'Donnell on 15 May 2020 were manifestly excessive, or took into account irrelevant considerations, and that Magistrate O'Donnell erred by not ordering that the appellant be made eligible for parole. The sentences imposed by her Honour on 15 May 2020 were set aside by Curthoys J. The charges were remitted to her Honour for the appellant to be resentenced according to law. Magistrate O'Donnell resentenced the appellant on 5 January 2023.
As will be seen, because CACR 60 of 2023 succeeds, it was necessary for this court to set aside the sentences imposed on 5 January 2023 and resentence the appellant afresh. Accordingly, it would be pointless to decide the complaints referred to, and we would not do so.
For these reasons, ground 1 is without merit and leave to appeal in respect of it was refused.

Conclusion

For all of the abovementioned reasons, the two grounds of appeal as amended have not been made out. Leave to appeal in CACR 30 of 2023 was refused and the appeal was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
27 JUNE 2024