Stock v The Queen - [2000] WASCA 196

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stock v The Queen

Details

AGLC: Stock v The Queen [2000] WASCA 196
Case: [2000] WASCA 196
Decision Date: 2 AUGUST 2000

CaseChat Overview and Summary

Stock v The Queen involved an appeal by the applicant against a decision made by the Supreme Court of Queensland, which dismissed his application for leave to appeal. The applicant, Stock, had been convicted of a serious criminal offence and sought to appeal his conviction on the grounds of alleged errors in the trial proceedings. The primary legal issue before the court was whether Stock's notice of abandonment, which he submitted due to a lack of funds and pending an official investigation into his allegations, satisfied the nullity test. The nullity test requires that an appeal must be abandoned in accordance with the law, and if not, the appeal is considered null and void.

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