Thomas v The Queen
[2002] WASCA 367
•11 JUNE 2002
THOMAS -v- THE QUEEN [2002] WASCA 367
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 367 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:143/1998 | 11 JUNE 2002 | |
| Coram: | MALCOLM CJ STEYTLER J MILLER J | 11/06/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out for want of prosecution granted Appeal dismissed for want of prosecution | ||
| B | |||
| PDF Version |
| Parties: | DAVID ST JOHN MICHAEL THOMAS THE QUEEN |
Catchwords: | Criminal law and procedure Abandonment of application Application by the Crown to strike out for want of prosecution Appeal adjourned upon appellant's request eleven times Appellant failed to appeal three times |
Legislation: | Criminal Code, s 338B, s 697 |
Case References: | Nicholson v The Queen, unreported, CCA SCt WA; Library No 980698; 7 December 1998 R v Mickelberg (1996) 90 ACR 126 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THOMAS -v- THE QUEEN [2002] WASCA 367 CORAM : MALCOLM CJ
- STEYTLER J
MILLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Abandonment of application - Application by the Crown to strike out for want of prosecution - Appeal adjourned upon appellant's request eleven times - Appellant failed to appeal three times
Legislation:
Criminal Code, s 338B, s 697
Result:
Application to strike out for want of prosecution granted
Appeal dismissed for want of prosecution
(Page 2)
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr K P Bates
Solicitors:
Appellant : No appearance
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nicholson v The Queen, unreported, CCA SCt WA; Library No 980698; 7 December 1998
R v Mickelberg (1996) 90 ACR 126
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This is an application by the Crown for an order that the appellant's appeal against conviction be struck out for want of prosecution. On 28 August 1998, the appellant was convicted after trial on three counts of making threats to kill contrary to s 338B of the Criminal Code. On 2 September 1998, he was sentenced to imprisonment for 2 years and an order was made that he be eligible for parole. He abandoned his application for leave to appeal against sentence on 13 January 2000.
2 On 2 September 1998, the appellant was sentenced to imprisonment for 2 years in respect of the offences of which he had been convicted. On 18 September 1998, he filed a notice of application for leave to appeal against sentence. On 18 September 1998, he filed a notice of appeal in respect of conviction recorded against him. On 15 October 1998, a letter was sent from the Court to the appellant at Greenough Regional Prison, informing him that the sentence appeal and conviction appeal were listed for hearing before a single Judge on 2 November 1998.
3 On that date the appellant appeared before Heenan J. The matter was adjourned until 12 January 1999 while the appellant awaited a decision from Legal Aid regarding the funding of his application and appeal. On 12 January 1999, the appellant appeared before Miller J. The matter was adjourned to 8 March 1999 while the appellant still awaited a decision from Legal Aid. On 8 March 1999, the appellant appeared before Steytler J. The matter was adjourned until 10 May 1999 so that the appellant could seek further legal advice. On 10 May 1999, the appellant appeared before Wallwork J and the matter was adjourned until 21 June 1999 so that the appellant's counsel could prepare an opinion regarding the merits of the appeal.
4 On 21 June 1999, the appellant appeared before Parker J and the matter was adjourned to 9 August 1999, as the appellant's counsel was awaiting a copy of the trial transcript so that an opinion on the merits of the appeal could be provided. On 9 August 1999, the appellant failed to appear before Heenan J. The matter was adjourned until 4 October 1999. On 4 October 1999, the appellant's counsel appeared before Steytler J. The matter was adjourned until 29 November 1999 so that the appellant's counsel could discuss the merits of the appeal with the appellant. On 29 November 1999, the appellant's counsel appeared before Miller J. The matter was adjourned until 13 January 2000 so that the appellant's counsel could discuss the merits of the appeal with the appellant.
(Page 4)
5 On 13 January 2000, the appellant again appeared before Miller J. The matter was referred to the Court of Criminal Appeal and the Court was to notify the Unrepresented Criminal Appellants' Scheme that the appellant's appeal looked suitable for the attention of that scheme. On 13 January 2000, the appellant filed a notice of abandonment in respect of the sentence appeal. On 29 February 2000, the Court sent a letter to the appellant at 32 Emperor Avenue, Beldon, advising him that the conviction appeal was listed for hearing on 4 April 2000.
6 On 31 March 2000, an officer of the Supreme Court notified an officer of the Director Of Public Prosecutions that the conviction appeal had been administratively removed from the hearing date of 4 April 2000. On 19 June 2001, a letter was sent from the Court to the appellant at 58 Altair Street, Southern Cross, informing him that the matter was listed before a single Judge on 24 July 2001. On that date the appellant appeared before White AUJ. The matter was adjourned to 15 October 2001 to give the appellant more time to obtain documents from an internal investigation. On 15 October 2001, the appellant appeared before Hasluck J. The matter was adjourned to 5 December 2001, as the appellant was looking to find a lawyer to assist him pro bono and to assist him in filing further grounds of appeal.
7 On 5 December 2001, counsel appeared on behalf of the appellant as a friend of the Court for the appellant before Miller J. The matter was adjourned to 29 January 2002 to give counsel time to prepare an opinion on the merits of the appeal. On 29 January 2002, the appellant failed to appear at the hearing before Miller J. Miller J adjourned the matter to enable the Crown to make an application to have the appeal struck out. The matter was adjourned for hearing before a single Judge on 18 March 2002.
8 In the result, the matter now comes before us on an application to dismiss the appeal for want of prosecution. As I mentioned, the appellant's appeal was first listed for hearing on 2 November 1998. The appeal has been adjourned upon the appellant's request eleven times since, and the appellant has twice failed to appear in respect of the appeal. The appellant has failed to appear again today.
9 In my opinion, the appellant has been given every opportunity to proceed with the appeal, but has taken no steps to do so, nor has he provided any reasons why he is unable to do so. It appears that he has effectively abandoned the appeal. In these circumstances, it would seem to me that, on the face of it, the application should be granted.
(Page 5)
- Section 697 of the Criminal Code is sufficient to bring into play all the powers of the Full Court in civil appeals, including the power to dismiss an appeal for want of prosecution under O 63 r 7 of the Rules of the Supreme Court 1971, see R v Mickelberg(1996) 90 ACR 126 at 129 in my judgment. Also, see Nicholson v The Queen, unreported, CCA SCt WA; Library No 980698; 7 December 1998.
10 For those reasons I am of the opinion that this application should be granted and this appeal dismissed for want of prosecution.
11 STEYTLER J: I agree.
12 MILLER J: I agree, and there is nothing I wish to add.
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