Szulc v McNamara [No 3]

[2012] WASCA 107

SZULC -v- McNAMARA [No 3] [2012] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 107
Court:	THE COURT OF APPEAL (WA)	Published:	15/05/2012
Case No:	CACV:152/2011	Heard:	1 MAY 2012
Coram:	MAZZA JA	Delivered:	4/05/12
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	D
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Parties:	MAXWELL JAN SZULC KEIRAN McNAMARA
Catchwords:	Criminal law Application for release from custody pending appeal
Legislation:	Criminal Code (Cth), s 10.5
Case References:	Szulc v McNamara [2012] WASCA 3 Szulc v McNamara [No 2] [2012] WASCA 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SZULC -v- McNAMARA [No 3] [2012] WASCA 107 CORAM : MAZZA JA HEARD : 1 MAY 2012 DELIVERED : 4 MAY 2012 PUBLISHED : 15 MAY 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:

Criminal law - Application for release from custody pending appeal

(Page 2)

Legislation:

Criminal Code (Cth), s 10.5

Result:

Application dismissed

Category: D

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):

Szulc v McNamara [2012] WASCA 3
Szulc v McNamara [No 2] [2012] WASCA 62


(Page 3)

MAZZA JA:

(This judgment was delivered extemporaneously on 4 May 2012 and has been edited from the transcript.)

1 This is Mr Szulc's third application to be released from custody pending the outcome of his appeals. The background of these proceedings has been canvassed in the decisions I made in Szulc v McNamara [2012] WASCA 3 and Szulc v McNamara [No 2] [2012] WASCA 62.

2 In support of the present application, Mr Szulc has filed an affidavit sworn by him on 28 March 2012. I have read this affidavit in the context of the other affidavits sworn in previous proceedings. It is necessary at the outset to repeat what I said in Szulc v McNamara [No 2]. Once an order refusing release pending appeal is made, there must be a material change of circumstances before a further application for release will be considered.

3 In my opinion, the contents of Mr Szulc's latest affidavit, reveal no change in circumstances. In truth, much of it has been raised before by Mr Szulc in the earlier proceedings. However, there are some matters in the affidavit that have not been mentioned before. They are:

(1) Mr Szulc asserts that what he did on his land at its highest was to illegally clear land, a matter dealt with usually in a Magistrates Court and which usually attracts lower penalties than those he received.

(2) He is aware of examples of where the Department of Environment and Conservation (DEC) have allowed native vegetation to be cleared.

(3) He was justified in acting as he did by virtue of s 10.5 of the Criminal Code (Cth) (lawful authority), which he submits overrides any relevant State legislation.

None of these matters appear relevant to the grounds of appeal as they stand and none of them constitute a material change of circumstances.

4 Dealing with each of these new matters briefly in the order I mentioned them:
(Page 4)

(1) Mr Szulc was dealt with for a contempt of an order of this court, not for an offence of illegally clearing land. The offences are thus fundamentally different.

(2) The examples of the clearing of native vegetation relate to instances where a permit from the DEC was granted, in contrast to the situation in the present case. The examples Mr Szulc gives are therefore irrelevant.

(3) The provisions of the Criminal Code (Cth) have no application where a person is being dealt with for a contempt of an order made by this court.

5 In the course of his oral submissions, Mr Szulc referred to his state of health as a relevant matter. With the consent of the respondent, Mr Szulc tendered a document he had written, exhibit 1, which in short terms says that he has a history of skin cancer. He said that in February 2012, he was referred by a doctor to a skin specialist at Royal Perth Hospital, but as yet he has not been seen by a specialist. Mr Szulc told me from the bar table, that his family has a history of cancer and I have no reason to doubt that. As a result, Mr Szulc believes that he should be released so that he can obtain treatment now rather than later.

6 There is no evidence before me which would enable me to conclude that Mr Szulc is suffering from any condition which requires immediate treatment and if that was the case, that any such treatment could not be obtained within the prison system. Plainly, it would be desirable for Mr Szulc to see a specialist as soon as possible, but on the material before me, I am not persuaded that this factor justifies me revisiting the question of Mr Szulc's release pending appeal. As there have been no material changes in circumstances since the last time I dealt with the question of Mr Szulc's release pending his appeals, there is no reason to revisit that issue.

7 For these reasons, Mr Szulc's application must be dismissed and I so order.