Szulc v McNamara
[2012] WASCA 3
•5 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SZULC -v- McNAMARA [2012] WASCA 3
CORAM: MAZZA JA
HEARD: 22 DECEMBER 2011
DELIVERED : 22 DECEMBER 2011
PUBLISHED : 5 JANUARY 2012
FILE NO/S: CACV 152 of 2011
BETWEEN: MAXWELL JAN SZULC
Applicant
AND
KEIRAN McNAMARA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTIN CJ
Citation :CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT AND CONSERVATION -v- SZULC [No 2] [2011] WASC 315
File No :CIV 2722 of 2009
Catchwords:
Application for bail pending appeal - Appeal against findings of contempt of court and sentences - Whether exceptional reasons exist
Legislation:
Bail Act 1982 (WA), Sch 1 Pt C cl 5
Civil Judgments Enforcement Act 2004 (WA)
Criminal Appeals Act 2004 (WA), Pt 2
Environmental Protection Act 1986 (WA), s 51S
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)
Supreme Court Act 1935 (WA), s 58
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr T C Russell
Solicitors:
Applicant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
MAZZA JA: (This judgment was delivered extemporaneously on 22 December 2011 and has been edited from the transcript.)
On 11 November 2011, Martin CJ found the applicant, Mr Szulc, guilty of two counts of contempt of court. In very short terms, the applicant, in breach of an interim clearing injunction granted on 8 October 2009 and varied on 2 November 2009, pursuant to s 51S of the Environmental Protection Act 1986 (WA), ploughed land on his farming property on a date unknown between 24 October 2010 and 30 November 2010, thus killing or destroying native vegetation. This I will describe as the first count. Then, in breach of the same injunction, on a date unknown between 30 November 2010 and 18 May 2011, he either ploughed or burned, or both, land on the same property, again killing or destroying native vegetation. I will describe this as the second count.
The Chief Justice sentenced the applicant to 9 months' imprisonment on the first count and 15 months' imprisonment on the second count. He ordered that these sentences be served concurrently. The total effective sentence was 15 months' imprisonment. As neither the Sentencing Act 1995 (WA) nor the Sentence Administration Act 2003 (WA) apply, the applicant is not entitled to parole.
Mr Szulc, who has at all times acted in person, filed a civil appeal notice on 13 December 2011. It was correct for him to have done so in this form. This is because contempt proceedings, although criminal in nature, are technically characterised as civil proceedings. However, none of the material filed so far in this court by the applicant sets out whether Mr Szulc is challenging the Chief Justice's findings of contempt or the sentences or both. I am told from the bar table by Mr Szulc that it is both and I will proceed for today on that basis.
At the present time, acknowledging that the applicant's grounds of appeal are not set in stone, the applicant's proposed ground for challenging the findings that he was in contempt is that he was not afforded legal representation at the hearing, contrary to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. In respect of sentence, he alleges that the total effective sentence was manifestly excessive. In substance, that is an allegation that the total effective sentence breached the first limb of the totality principle.
What brings the matter before the court today is an application filed by Mr Szulc and dated 19 December 2011 seeking what is described in the application as bail, pursuant to Sch 1 Pt C cl 5 of the Bail Act 1982 (WA). As has become evident in the hearing this afternoon, because contempt proceedings are characterised as civil proceedings, it is by no means clear as to what is the precise source of this court's jurisdiction to release the applicant pending the determination of his appeals.
As the matter has been brought on urgently at short notice and I have not had the benefit of detailed submissions on the point, it would be inappropriate for me to come to a concluded opinion on the matter. What is clear enough is that the provision relied upon by the applicant is not the source of the power upon which an order may be granted. This is because Sch 1 Pt C cl 5 of the Bail Act concerns appeals under Pt 2 of the Criminal Appeals Act 2004 (WA). Part 2 of the Criminal Appeals Act deals with appeals from courts of summary jurisdiction. The applicant's appeal is plainly not an appeal from a court of summary jurisdiction. It is an appeal from this court.
It is possible, however, that other provisions in the Bail Act or in the Civil Judgments Enforcement Act 2004 (WA) may apply to, in effect, stay or suspend the operation of the sentences imposed by the Chief Justice. It is also possible that the court may stay or suspend the sentences incidental to this court's appellate jurisdiction set out in s 58 of the Supreme Court Act 1935 (WA) or as part of the court's inherent jurisdiction. Whatever the position, I am prepared to assume that I have jurisdiction to release the applicant from custody pending the hearing of his appeals.
Questions remain as to the precise nature of the matters that would be relevant to me exercising a discretion to release the applicant pending appeal. What is clear enough is that the applicant bears the onus of demonstrating that the circumstances justify the court releasing him pending his appeal. Both parties recognise that those circumstances need to be exceptional. Mr Szulc, in his oral submissions, relies upon the difficulties that he says that he is encountering whilst in custody in preparing his appeals as an exceptional circumstance. He refers to no other exceptional circumstance.
While this is not a matter that I ignore, exceptional circumstances require that the applicant demonstrate that his appeals have strong chances of success. In the present case, at this very early stage, where there is very little material in front of me relevant to the merits of the appeals, whether in relation to the findings of contempt or the sentences imposed, it is impossible for me to form a view that either appeal has a strong chance of success. In expressing this opinion, I want to emphasise that I am not prejudging the ultimate outcome of the appeals. I am simply judging the position as it is before me now.
The lack of resources in prison is a difficulty which I accept the applicant faces, but others in his position are able to prepare their cases before this court. I do not regard this factor as justifying the applicant's release. It follows from what I have said that I am not satisfied that there are exceptional reasons for Mr Szulc's release pending the determination of his appeal. Accordingly, the application must be refused.
The order that I make is that the application dated 19 December 2011 be dismissed.
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