Smart v The Queen

[2019] WASCA 205

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMART -v- THE QUEEN [2019] WASCA 205

CORAM:   BUSS P

MURPHY JA

MAZZA JA

HEARD:   18 DECEMBER 2019

DELIVERED          :   18 DECEMBER 2019

PUBLISHED           :   23 DECEMBER 2019

FILE NO/S:   CACR 184 of 2019

BETWEEN:   ANDREW JACOB SMART

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GOETZE DCJ

File Number             :   IND 893 of 2018

Catchwords:

Criminal law ‑ Criminal procedure ‑ Federal offence ‑ Preliminary appeal ‑ Competency

Legislation:

Criminal Appeals Act 2004 (WA), s 3, s 26, s 30
Criminal Code Act 1995 (Cth), s 474.15(2), s 474.17(1)
Judiciary Act 1903 (Cth), s 68

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

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

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

Allbury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Harvey v The Queen [2017] WASCA 43

WCM v The State of Western Australia [2015] WASCA 55

REASONS OF THE COURT:

1. On 18 December 2019, at the conclusion of the hearing, we dismissed the appellant's appeal on the basis that the appeal was incompetent.  We said reasons for decision would be published later.  These are our reasons.

Background

1. The appellant was charged on indictment 893 of 2018 with four counts of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (Code) (counts 1, 2, 4 and 5) and one count of using a carriage service to make a threat to cause serious harm, contrary to s 474.15(2) of the Code (count 3).

2. On 30 April 2019, after a trial before Lonsdale DCJ and a jury, the appellant was convicted of counts 2 and 3 on the indictment.[1]

   [1] ts 205.

3. On 2 May 2019, after a trial before Lonsdale DCJ and a jury, the appellant was acquitted of count 4 on the indictment.[2]

   [2] ts 303.

4. On 14 June 2019, the Commonwealth Director of Public Prosecutions discontinued count 1 on the indictment.[3]

   [3] ts 349 – 350.

5. On 26 November 2019, a trial before Scott DCJ and a jury commenced for count 5 on the indictment.[4]  On 27 November 2019, Scott DCJ aborted this trial and discharged the jury, because one of the jurors had a conflict that the juror was not aware of when the jury was empanelled.[5] 

   [4] ts 391.

   [5] ts 481.

Primary decision - witness summons to produce documents

Return of witness summons hearing on 1 November 2019

1. On 1 November 2019, Ms Mazzone lodged with the District Court Registry documents in answer to a witness summons to produce.  The summons stated Ms Mazzone was required to produce to court a list of clients who visited her day spa, Cleopatra’s Temple Day Spa, from 24 April 2016 (a year before the date of the alleged offending) to 30 September 2019.  Ms Mazzone was only able to produce a list of client names for the last year, because she had to download the information and delete certain particulars of clients for privacy reasons.[6] 

   [6] ts 354 – 355.

2. At the hearing on 1 November 2019, the Crown sought to have the entirety of the witness summons set aside and to have none of the material provided to the defence.  Counsel for the Crown said there was no legitimate forensic purpose for the summons, and that there was a potential risk to the community by disclosing names of people to the appellant, given his criminal history.[7] 

   [7] ts 355 – 356.

3. Defence counsel submitted the material was relevant to the defence, as the appellant believed that drug dealing was being conducted from the premises.  Counsel submitted that the summons sought the names of the clients for Mr Smart to review, as he may recognise the names of potential drug dealers on the list.  Counsel submitted that such evidence would be relevant to whether it was reasonable in the circumstances for him to have made the initial telephone call relevant to count 5.[8]

Directions hearing on 13 November 2019

[8] ts 356.

1. At a directions hearing on 13 November 2019, defence counsel indicated that the documents Ms Mazzone produced to court on 1 November 2019 were sufficient for the defence and that Ms Mazzone would not be required to produce a client list which included details of clients at Cleopatra’s Temple Day Spa during the previous three years in accordance with the original witness summons.[9]

   [9] ts 365.

2. Defence counsel submitted that the client list produced by Ms Mazzone was necessary for the appellant to identify persons that may be involved in drug dealing at Cleopatra’s Temple Day Spa.[10]

   [10] ts 367.

3. At the directions hearing, Goetze DCJ granted the Crown’s application to cancel the witness summons issued to Ms Mazzone to produce documents.  His Honour said:[11]

   [W]hat I’ve got before me is an application to cancel a witness summons issued to Claudia Mazzone in this matter. That application is made under section 166 of the Criminal Procedure Act [2004].  The summons is dated 17 October 2019.  Ms Mazzone has endeavoured to comply with that summons.  She produced records as requested going back a year but found the task going beyond there too far.

   [Defence counsel] would accept a one year list but the Commonwealth Crown’s application goes further and says that [the appellant should] not be granted leave to inspect or copy the materials or any provided to the court and I’m going to accede to that because there’s no evidentiary basis which would permit the materials received under subpoena to be inspected by [the appellant] or his counsel.

   There’s simply no relevance been established and the second part of [defence counsel’s] application relates to a collateral issue which is not admissible in any event because it’s just going to attack Ms Mazzone’s credit.  And so the application from the Crown succeeds.

   [11] ts 373 – 374.

The appeal

1. On 22 November 2019, the appellant filed an appeal notice.  The appeal notice states, in effect, that the appellant applies to the Court of Appeal for leave to appeal against the primary judge's order, made on 13 November 2019, not to grant leave to the appellant to inspect or copy documents produced by Ms Mazzone in answer to the witness summons.

2. The appeal notice includes draft grounds of appeal in the following terms:

   1. The Learned Judge erred in not allowing the inspection and copying of documents subject to the summons to produce documents dated 17 October 2019 to Ms Mazzone.

   2.The documents if produced have a legitimate forensic purpose for cross examination of Ms Mazzone.

   3. Impossible to mount reasonable defence without such documents.

3. On 25 November 2019, the registrar ordered that the appellant file and serve written submissions by 2 December 2019 in relation to whether the appeal is competent.  The appellant failed to file any written submissions by 2 December 2019 or at all.

4. On 2 December 2019, the registrar issued a notice to attend on 18 December 2019 to consider whether the appeal is competent.

The appeal is incompetent

1. We are satisfied that the appeal is incompetent.

2. An appeal is a creature of statute.  Unless there is a relevant statutory power, this court has no power to hear or determine an appeal.  See Allbury v The Corruption and Crime Commission.[12]

   [12] Allbury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2], [80].

3. The provisions of the Criminal Appeals Act2004 (WA) are applied to proceedings for a Federal offence by s 68(1)(d) of the Judiciary Act 1903 (Cth). By s 68(2) of the Judiciary Act, this court has 'the like jurisdiction' with respect to the hearing and determination of appeals arising out of a trial of a Federal offence as it has for appeals arising out of the trial of a State offence. This court will only have federal jurisdiction under s 68 of the Judiciary Act to hear the appellant's appeal to the extent that an appeal would lie against the primary judge's order, made on 13 November 2019, on an indictment which alleges an offence against State law.  See Harvey v The Queen.[13]

   [13] Harvey v The Queen [2017] WASCA 43 [4] – [11].

4. Save for the common law offence of criminal contempt, criminal appeals in this State are governed by the Criminal Appeals Act.  That statute is to be read with the Criminal Procedure Act 2004 (WA). See s 3 of the Criminal Appeals Act.

5. Save for s 26 of the Criminal Appeals Act, which is not relevant in the present case, the Criminal Appeals Act does not allow for a preliminary appeal by an accused; that is, an appeal against an order made by a judge in criminal proceedings before conviction.  See WCM v The State of Western Australia.[14] In particular, there is no right of appeal before conviction in respect of an order by a judge not to grant leave to inspect or copy documents produced by a third party in answer to a witness summons. A decision of that character is not, of course, beyond the appellate review. If convicted, the appellant may appeal against his conviction pursuant to s 30 of the Criminal Appeals Act on the basis of a wrong decision by the primary judge on a question of law or on the basis that a miscarriage of justice has occurred.  See WCM [22].

   [14] WCM v The State of Western Australia [2015] WASCA 55 [22].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

FN
Research Associate to the Honourable Justice Buss

23 DECEMBER 2019