Turnbull v The Queen

[2003] WASCA 80

TURNBULL -v- THE QUEEN [2003] WASCA 80

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 80
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:33/2001	Heard:	2 APRIL 2003
Coram:	MURRAY J SCOTT J WHEELER J	Delivered:	2/04/03
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DANNY GEORGE TURNBULL THE QUEEN
Catchwords:	Criminal law and procedure Appeal Application to dismiss for want of prosecution - Turns on own facts
Legislation:	Nil
Case References:	Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998 R v Mickelberg (1996) 90 A Crim R 126 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TURNBULL -v- THE QUEEN [2003] WASCA 80 CORAM : MURRAY J

SCOTT J
WHEELER J

HEARD : 2 APRIL 2003 DELIVERED : 2 APRIL 2003 FILE NO/S : CCA 33 of 2001 BETWEEN : DANNY GEORGE TURNBULL

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal - Application to dismiss for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : No appearance
Respondent : Mr K P Bates and Mr A D Hills-Wright

Solicitors:

Applicant : No appearance
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998
R v Mickelberg (1996) 90 A Crim R 126

Case(s) also cited:

Nil

(Page 3)

1 MURRAY J: The matter before the Court is an application by the Crown to dismiss, by way of striking out an application for leave to appeal.

2 In the case of Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998, Kennedy J, with whom White and Scott JJ agreed, referred to the case of R v Mickelberg (1996) 90 A Crim R 126 at 129, where Malcolm CJ expressed the opinion, with which Steytler J agreed, that s 697 of the Criminal Code was sufficient to bring into play all of the powers of the Full Court in civil appeals, including the power to dismiss an appeal for want of prosecution. Reference was also made to the inherent jurisdiction of the Court which supported the rules providing for that course to be taken. The Court in Nicholson expressed its agreement with those propositions and, in my respectful opinion, they are undoubtedly correct.

3 The history of the matter is that the convictions with which the appellate proceedings are concerned were sustained in the District Court on 23 February 2001. They were convictions of assaulting public officers. The two charges on the indictment related to offences allegedly committed on 22 December 1998. The application for leave to appeal against those convictions was filed on 12 March 2001. It was unsupported by properly framed grounds of appeal, but it went in to the process of criminal appeal case management by being listed before a single Judge on 17 April 2001.

4 There were a number of appearances after that date; on 14 May 2001 and on 26 June 2001 when the question of the provision of legal assistance for the applicant was being debated and dealt with. On 26 June 2001 the applicant said that he intended to apply for a review of the denial of legal aid, and upon that basis the matter was adjourned to a sitting of a single Judge of this Court on 20 August 2001. That hearing did not go ahead. There was some activity in relation to the appeal by the applicant because on 25 September 2001 an application for leave to amend the grounds of appeal, putting them into lengthy but much clearer form, was drawn. It was filed on 9 October 2001.

5 In the meantime, the applicant appeared before a single Judge of the Court on 4 October 2001. He mentioned that he had referred matters concerned with his prosecution to the Parliamentary Commissioner for Administrative Investigations, the Ombudsman. He said he was expecting to be released from prison shortly after that sitting and was going to seek legal representation to enable him to continue to pursue the appeal. He was in fact released from prison on 23 October 2001.

(Page 4)

6 The next hearing of a single Judge was on 13 November 2001. The applicant did not appear. Nor did he appear on 26 November 2001, to which date the matter had been adjourned. It was on that date adjourned to 29 January 2002 and in the meantime the Court wrote to the applicant telling him that there was a need for him to appear and failure to do so may result in the appeal being dismissed.

7 There was no appearance on 29 January 2002. On that date Miller J referred the matter to the Court of Criminal Appeal to hear the Crown's application to dismiss the appeal for want of prosecution. That came on on 10 April but was not able to proceed because there had been a failure to advise the applicant of that particular date of hearing. It was adjourned.

8 The matter was relisted for 19 July 2002. There was on that date an appearance before the Court of Criminal Appeal by the applicant who discussed with their Honours who constituted the Court on that occasion what was described as new evidence which was to be put forward. He mentioned further evidence of that kind which he proposed to seek out. No appeal books or other material to enable the matter to be dealt with had been prepared and the appeal was adjourned to be further managed by a single Judge at a hearing fixed for 6 August 2002.

9 On that date the counsel who appeared for the Crown informed the Court that the applicant had contacted her and said that his child was ill and he could not attend. The matter was adjourned to 7 October 2002. On that date there was no appearance. It was adjourned to 16 January 2003. On that date again there was no appearance and the Crown's application was referred to the Court of Criminal Appeal for hearing.

10 It comes on today. As I say, I am satisfied that the applicant has been served with papers appropriate to inform him of the nature of the proceedings and that they would be heard today. It seems to me that he has been given every opportunity to proceed with the appeal. Apart from one action towards the end of September 2001 when he formulated some grounds of appeal, he has taken absolutely no steps to advance the matter since it was first initiated by filing and serving the application for leave to appeal originally. This, to my mind, is a case where the Court ought to take the serious step of dismissing the appeal on the ground of its want of prosecution and I would so order.

11 SCOTT J: I agree.

12 WHEELER J: I too agree.