Solly v The State of Western Australia

[2008] WASC 251

SOLLY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 251

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 251
Case No:	SJA:1078/2008	Heard:	10 OCTOBER 2008
Coram:	McKECHNIE J	Delivered:	10/10/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
PDF Version

Parties:	STEVEN CRAIG SOLLY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Courts and Judges Leave to appeal after eight years Real issue not addressed Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SOLLY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 251 CORAM : McKECHNIE J HEARD : 10 OCTOBER 2008 DELIVERED : 10 OCTOBER 2008 FILE NO/S : SJA 1078 of 2008 BETWEEN : STEVEN CRAIG SOLLY

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Courts and Judges - Leave to appeal after eight years - Real issue not addressed - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : No appearance

Solicitors:

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

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

Nil

(Page 3)

1 McKECHNIE J: On 12 September this year the applicant lodged a notice of appeal against what appear to be a number of assault convictions. The applicant has not lodged a certified copy of the complaints but it appears from some investigation by court staff that the charges are of assault occasioning bodily harm, numbers 94665, 94664 and 94548 of 1999 in the then Court of Petty Sessions.

2 There was a trial apparently in May 2000. The applicant says that it was in respect of the alleged assault of a nurse and of four Aborigines at Kewdale. He says he received a good behaviour bond. Owing to the length of time and the fact that there are no certified copies of the complaints, I simply do not know if this is so.

3 Although the application was lodged in the Court of Appeal, I have taken the matter over to deal with because at this stage it is in fact a matter falling within the General Division of the Court, not the Court of Appeal. If the appeal was to go forward, the fact that it was lodged in the Court of Appeal can be easily corrected.

4 The applicant lodged a handwritten affidavit in support of the application, which I have read. I have heard the applicant this morning as I had the matter listed so that he could explain to me what it was really about.

5 What seems to be the essential matter which troubles the applicant is his treatment at Graylands Hospital, what he says to be the use of experimental drugs on him with consequent medical complications, and alleged assaults against him by staff at Graylands Hospital. I make absolutely no judgment or comment about the factual validity of those matters but that is what is on the applicant's mind and so really the appeal is the applicant's way to get into court.

6 There are two fundamental difficulties: The first is that these proceedings, even if they were to go ahead, would not in any way address what the applicant sees as the real issue which is his treatment at Graylands Hospital. This application, if it were to go ahead, would focus upon what did or did not occur in relation to the four Aboriginal persons in Kewdale in 1999. That would be the sole issue.

7 The second fundamental objection is that the application is eight years out of time. This has a number of effects. First, from my knowledge and practice over the years, it is very highly unlikely that there now exists any transcript of the proceedings in the Court of Petty Sessions. The tapes would have been wiped long ago. Secondly, the

(Page 4)

application at this stage would present a considerable, perhaps not insuperable, difficulty to the prosecution in relation to witnesses and so forth if that were necessary, and it would be necessary if the tapes were missing. Thirdly, the application does not in terms or at all actually challenge the Magistrate's decision (whoever the Magistrate was).

8 And, finally, a person only has leave to appeal as of right for a certain period. When time expires, leave is required. The courts have long held that the greater the delay, the more justification there must be to allow leave to appeal. Eight months has been described as an excessive delay and here it is eight years.

9 I am prepared to accept that the applicant's mental difficulties, however caused, have been an inhibiting factor to his taking action. On the other hand, he does appear to have taken some action from time to time. He has engaged the services of the Ombudsman and he speaks at one point in his affidavit of coming before this Court before Wheeler J on an application in relation to fingerprints. There really is no explanation as to why the length of delay.

10 It seems to me that for two reasons I should refuse the application, those reasons being that what is really in issue in the applicant's mind is his treatment at Graylands Hospital and what is associated with it, which is not going to be addressed in this appeal. Secondly, that the length of delay, eight years, is very, very great and is likely to lead to prejudice because the tapes have most probably gone and the delay is still effectively, for the most part, unexplained. Therefore, leave to appeal is refused.