JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: STOCK -v- THE QUEEN [2000] WASCA 196
CORAM: WALLWORK J
MURRAY J
WHEELER J
HEARD: 1 JUNE 2000
DELIVERED : 2 AUGUST 2000
FILE NO/S: CCA 4 of 1996
BETWEEN: MICHAEL STOCK
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal - Notice of abandonment - Intentional abandonment of appeal by reason of lack of funds and to await official investigation of applicant's allegations - Nullity test not satisfied
Legislation:
Nil
Result:
Application for extension of time refused
Representation:
Counsel:
Applicant: In person
Respondent: Mr R E Cock QC
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bridges v R (1998) 104 A Crim R 322
R v Medway [1976] QB 779
Case(s) also cited:
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 990151; 29 March 1999
WALLWORK J: The applicant was advised by solicitors at the time he withdrew his appeal on 15 May 1996. That is stated in the affidavits which he has filed.
It is primarily because he was in receipt of legal advice at the time the notice was filed that I agree with the reasons for judgment of Murray J and with the order which is proposed by his Honour.
MURRAY J: On 22 December 1995 the applicant was convicted of two offences of burglary and one of attempted armed robbery. He was sentenced to an aggregate term of four years imprisonment with eligibility for parole. He has since served that term.
On 10 January 1996 he filed a notice of his application for leave to appeal against his convictions on grounds drafted by the applicant himself but which appear to make allegations that witnesses who gave evidence against him, including police officers, gave perjured evidence at his trial. The assertion was made that counsel who appeared for the applicant at the trial incompetently or corruptly failed to properly test the evidence of the witnesses against him. It appears that the applicant referred at least the allegations made against police officers to the Ombudsman for investigation. He told us that that investigation had now been completed and that he was soon to be interviewed by police officers investigating his allegations of perjury.
By a document dated and filed on 15 May 1996 entitled "Withdrawal of Appeal" and directed to the Registrar of the Court of Criminal Appeal, the applicant said, "Having instituted an appeal against various convictions on 8 January 1996 [I] hereby withdraw my appeal." In my opinion, that document purported to be and was accepted by the court to be a notice of abandonment of the applicant's application for leave to appeal within the meaning of the Criminal Practice Rules O IX r 13.
It was not precisely in the terms of the form, which is expressed in the first person and the operative part of which advises that the applicant…
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- AGLC
- Stock v The Queen [2000] WASCA 196
- Case
- [2000] WASCA 196
- Decision Date
CaseChat Overview and Summary
The court examined the nature of Stock's notice of abandonment, determining that it was intended to intentionally abandon the appeal due to financial constraints and pending an investigation. The court further evaluated whether Stock's actions complied with the requirements of the nullity test, which necessitates that an abandonment be in accordance with the law. In this instance, the court found that the notice of abandonment did not meet the nullity test because it was not a procedural abandonment mandated by the law but rather a voluntary decision by Stock to forgo the appeal.
Consequently, the court concluded that Stock's notice of abandonment was ineffective, and the appeal was not null and void. The court rejected Stock's argument that the notice of abandonment should be treated as a procedural abandonment under the law. The court held that since Stock's notice did not comply with the nullity test, it did not have the legal effect of abandoning the appeal. The decision affirmed that the notice of abandonment was a personal decision and not a procedural abandonment as required by law.
The court ordered that the appeal was not abandoned and remained valid, allowing Stock to continue pursuing his appeal against the conviction. The decision underscored the importance of adhering to legal procedures when abandoning an appeal, ensuring that such actions are in line with the nullity test to maintain the integrity of the appeal process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MURRAY J
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