Van Lieshout v Kelly
[2015] WASC 455
•3 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VAN LIESHOUT -v- KELLY [2015] WASC 455
CORAM: LE MIERE J
HEARD: 12 NOVEMBER 2015
DELIVERED : 3 DECEMBER 2015
FILE NO/S: SJA 1063 of 2015
SJA 1078 of 2015
BETWEEN: TERESA ANGELA VAN LIESHOUT
Appellant
AND
ADAM DAVID KELLY
Respondent
ON APPEAL FROM:
For File No : SJA 1063 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S R MALLEY
File No :FR 25064 of 2013, FR 25065 of 2013, FR 1387 of 2014, GN 1009 of 2015
For File No : SJA 1078 of 2015
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R YOUNG
File No :FR 25064 of 2013, FR 25065 of 2013, FR 1387 of 2014, GN 1009 of 2015
Catchwords:
Appeals against decision of the Magistrates Court of WA - Leave of the Supreme Court required - Decisions sought to be appealed from not appealable decisions - No grounds for review
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Magistrates Court Act 2004 (WA)
The Rules of the Supreme Court 1971 (WA)
Result:
Applications for leave to appeal dismissed
Appeals dismissed
Application for review under Magistrate Court Act s 76 dismissed
Application for interim orders dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms A C Longden
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
MTI v SUL [No 2] [2012] WASCA 87
Van Lieshout v Kelly [2014] WASC 432
LE MIERE J: The appellant has filed two appeal notices against decisions of the Magistrates Court of Western Australia made on 31 July 2015, 3 September 2015 and 8 September 2015. Insofar as the appeals are made under the Criminal Appeals Act 2004 (WA) leave of the court is required for each ground of appeal.
Offences appellant charged with
Each of the decisions of the magistrate complained of relate to charges that the appellant wilfully and unlawfully damaged a wheel clamp, stole the wheel clamp, and on two occasions breached a bail undertaking by failing to appear in Fremantle Magistrates Court.
On 6 March 2015 the appellant appeared via video link before the Magistrates Court of Western Australia at Fremantle. The magistrate remanded the appellant to appear at her trial at the Fremantle Magistrates Court on 3 September 2015.
Magistrates Court hearing 31 July 2015
On 31 July 2015 the appellant appeared before the Magistrates Court at Fremantle. The appellant applied for an adjournment of her trial. The appellant requested that the trial be adjourned to December. The appellant said that her application was made on three grounds: (1) medical grounds; (2) government violence and corruption against the appellant; and (3) legal grounds.
The appellant's medical grounds were that she is suffering from stress. Her application was supported by three medical reports. The first was a report of 28 August 2014 by Dr Katharine Mallory, a general practitioner at the Byford Medical Centre. Dr Mallory said she believed the appellant had symptoms and signs of stress and low mood that appeared to have occurred as a consequence of her ongoing court battle. The second report is dated 28 July 2015 and is a further report by Dr Mallory. Dr Mallory said she believed the appellant had symptoms and signs of stress, anxiety and low mood that appeared to have occurred as a consequence of her ongoing court battle and her recent incarcerations. Dr Mallory said that due to her current level of stress the appellant was finding it difficult to prepare a legal defence and her request that a court hearing be postponed seemed reasonable.
The third report was a report from Fiona Stanley Hospital dated 23 May 2015. The appellant said that the report relates to her being hospitalised as a result of suffering a nine hour asthma attack and the doctor referred to stress related factors having a negative impact on her general health and her asthma.
The second ground of the appellant's application was government violence and corruption against her. In the course of the hearing the appellant made some general allegations of violence and corruption against her and referred to a specific incident on 6 June 2015. The appellant said that she attended a public rally in the Supreme Court Gardens where she used her voice in a public place and was grabbed by the government and subjected again to violence.
The third ground, legal grounds, appears to be based upon the appellant's contention that the magistrate was biased against her because of a statement he made on a previous occasion.
The magistrate refused the application to adjourn the trial. First, the magistrate stated that he was not to conduct the trial and a different magistrate had been appointed to hear the trial and hence there was no concern that the appellant would not get a fair trial because the magistrate was biased against her. Secondly, the magistrate said that the appellant's claims of government corruption against her family and against the public was not part of her application because the only ground in her application was the medical grounds. The appellant then said that she was making an oral application. The magistrate said that the grounds other than medical grounds were rejected. In relation to the medical grounds, the magistrate said that he had looked at the medical grounds and in his view they did not justify the adjournment requested and the application was refused.
Magistrates Court hearing 3 September 2015
The appellant's trial commenced on 3 September 2015. The appellant applied to adjourn the trial on the ground that she had lodged an appeal to this court. The appellant was referring to appeal SJA 1063 of 2015 which she filed on 17 August 2015. The appellant also said that she was applying for an adjournment on medical grounds. The magistrate refused the application for an adjournment. His Honour stated that the fact that an appeal had been lodged is not of itself a sufficient reason that the case must be stayed. His Honour also observed that the appeal was doomed to fail because the decision being appealed from was not a decision within the meaning of s 6 of the Criminal Appeals Act. His Honour observed that insofar as the appeal was against the refusal of the magistrate to dismiss the case, a series of assertions of innocence by an accused person cannot lead a court to dismiss the case without hearing evidence.
The magistrate then considered the application for adjournment on medical grounds. His Honour observed that the appellant appeared to be in good health and showing no signs of being intimidated or overwrought by the process. His Honour said that to say the case should not proceed because of stress is not sufficient. The court is stressful to many people. There was no guarantee that the appellant would be any less stressed at any future date. His Honour considered that the letter from the doctor was not sufficient to adjourn the trial. His Honour said that an application to adjourn a trial involves a balancing exercise in which he must balance the public interest and ensuring that the accused gets a fair trial. His Honour considered that the public interest was in favour of the case proceeding. The magistrate refused the application for adjournment. The magistrate then commenced the trial of the charges against the appellant.
The prosecution called witnesses who gave their evidence‑in‑chief and were cross‑examined by the appellant. After the luncheon adjournment the appellant did not reappear. The magistrate adjourned the matter until 8 September 2015.
When the trial resumed on 8 September 2015 the magistrate made some observations for the transcript. His Honour said that when the appellant had failed to appear at the resumption of the trial after lunch on 3 September 2015 he caused a phone call to be made to the appellant on a mobile number that she had provided on some submissions previously filed with the court. The magistrate was informed that the appellant said that she was refusing to return to court because she was unhappy with the way proceedings had been conducted. The magistrate stated that he had issued an arrest warrant to lie until 8 September. The magistrate also stated that the appellant was notified by email that the trial was to resume on 8 September and that an arrest warrant had been issued to lie and that if she failed to appear on 8 September the warrant would issue.
Hearing on 8 September 2015
The appellant's trial resumed on 8 September 2015. The appellant did not appear. The magistrate stated that the appellant had not appeared and he concluded that she had deliberately refused to attend. The magistrate then ordered the arrest warrant to issue.
The accusal application
The appellant said that I should not hear these appeals because I dismissed an earlier appeal by the appellant and did so without taking into account, or properly taking into account, her legal argument. I dismissed an application for leave to appeal and an application for extension of time to apply for leave to appeal by the appellant on the grounds that the appellant's appeal notice did not disclose any appealable decision: Van Lieshout v Kelly [2014] WASC 432. That is no reason for me to disqualify myself, or abstain from, hearing these appeals. The mere fact that a judge has previously decided cases adverse to a party does not provide a basis for a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to bear on the case at hand: MTI v SUL [No 2] [2012] WASCA 87 [14] (Newnes & Murphy JJA). I dismissed the previous application by the appellant on legal grounds that did not involve any findings of fact or credibility. There is no basis for a reasonable apprehension that I might not bring an impartial or unprejudiced mind to bear on the appeals at hand.
Appeal against decisions made on 31 July 2015
In her notice of appeal, SJA 1063 of 2015, the appellant says that the decisions made by the magistrate on 31 July 2015 she is appealing against are a decision to refuse to adjourn the hearing listed for 3 September 2015 and a decision to refuse to dismiss the case. The notice of appeal says that the appellant seeks leave to appeal and appeal orders against those decisions and to set aside those decisions under the following provisions: Criminal Appeals Act 2004 s 6 ‑ 12, 14 and 15; Magistrates Court Act 2004(WA) s 36(1), (3), (4), (5) and (6); Criminal Procedure Act 2004 (WA) s 73, s 74, s 75 and s 76; Criminal Procedure Rules 2005 (WA), r 64 ‑ 73.
The respondent submits that the appeal under s 7 of the Criminal Appeals Act 2004 (WA) is incompetent. The respondent submits that no formal application for a review order under s 36 of the Magistrates Court Act 2004 has been made and if such an application were made it would have no prospect of success. I will consider each of the statutory sources of appeal or review relied upon by the appellant.
Criminal Appeals Act 2004
Criminal Appeals Act 2004 s 7(1) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. Section 6 defines the decision of a court of summary jurisdiction. Neither a decision to refuse to adjourn the hearing of a charge or a refusal to dismiss a charge prior to trial are decisions as defined by s 6 of the Criminal Appeals Act 2004.
Criminal Procedures Act 2004
Part 3, div 7 of the Criminal Procedure Act 2004, which includes s 70 to s 74 deals with setting aside decisions made in the absence of a party. Section 70 defines 'decision' to mean a determination of a charge, or a dismissal of a charge for want of prosecution. On 31 July 2015 the magistrate did not make a decision as defined by s 70 of the Criminal Procedure Act 2004. Furthermore, the decision made by the magistrate that day was made in the presence of the appellant. Accordingly, s 70 to s 74 do not empower the court to set aside the decision of the magistrate. Section 75, which gives the court a general power to adjourn a charge, and s 76, which gives the court power to stay a prosecution permanently, do not confer or provide for any right of appeal to this court.
Criminal Procedure Rules 2005
Part 14, div 3 of the Criminal Procedure Rules 2005 deal with the procedure for appeals, or applications for leave to appeal, under the Criminal Appeals Act 2004 pt 2, div 2, that is an appeal from a decision of a court of summary jurisdiction to the Supreme Court. Rules 64 to 71 deal with the procedure for commencing and prosecuting an appeal. Rule 72 deals with discontinuing an appeal and r 73 deals with settling an appeal. Rules 64 to 73 do not confer any right of appeal.
Magistrates Court Act 2004
The Magistrates Court Act 2004 s 36(1) confers on the Supreme Court a degree of supervision over the Magistrates Court. An aggrieved person may apply to the Supreme Court for a review order where a magistrate has failed to do an act or make any order or direction he is under a duty to do or on any ground that might have justified an order of mandamus. An aggrieved person may also apply for a review order where a magistrate proposes to do an act or make any order or direction, or has done an act or made any order or direction, on the ground that it would be or was made without jurisdiction or was an abuse of process or might have justified orders of prohibition or certiorari.
Section 36(2) provides that the procedure for making an application for a review order is to be prescribed by rules of court of the Supreme Court. The Rules of the Supreme Court 1971 (WA) O 56A r 2 provide for the making of an application for review order. The appellant has not complied with that procedure. There is no application for review before the court.
In any event, the Magistrates Court Act s 36(1) specifies the grounds on which a review order may be applied for, as I have set out above. The appellant's appeal notice does not disclose that she is aggrieved by any act, order or direction of the magistrate, or the failure of the magistrate to do any act or make any order for direction, on any of the grounds set out in Magistrates Court Act s 36(1). Insofar as the appellant complains of the magistrate's refusal to dismiss the charges against her, the magistrate was under no duty to dismiss the charges before the trial without hearing evidence and merely on the appellant's assertions that she was innocent of the charges against her or that they were without foundation. The magistrate was under no duty to allow the adjournment. It was a matter within his discretion. The magistrate had jurisdiction to refuse the application for an adjournment and there were no grounds that might have justified an order of prohibition or certiorari. In short, the appellant's notice is not an application for a review order under the Magistrates Court Act s 36 and in any event does not disclose any ground on which a review order might be made.
Appeal against decisions made 3 September 2015
In her appeal notice in SJA 1078 of 2015 the appellant appeals against the decision made by the magistrate on 3 September 2015 refusing to adjourn the hearing of the charges against her. The appellant states in her notice of appeal that she requests leave to appeal, appeal orders against those decisions and to set those decisions under Criminal Appeals Act 2004 s 6 ‑ 12, 14 and 15; Magistrates Court Act 2004 s 36(1), (3), (4), (5), (6); Criminal Procedures Act 2004 s 73, s 74, s 75 and s 76 and Criminal Procedure Rules 2005 r 64 ‑ 73. The appeals and applications are incompetent for the same reasons that the appeals and applications in relation to the decisions made on 31 July 2015 are incompetent.
Failure to provide notice of hearing
The appellant also appeals against the failure to provide notice of the hearing for 8 September 2015. The appeal and application for review in relation to that decision is incompetent for the same reasons as the other appeals and applications for review I have referred to are incompetent. Furthermore, the appellant was given notice of the hearing in the manner designated by her, that is to the email address which she nominated as the means for notifying her.
Warrant for appellant's arrest
The appellant appeals and seeks an order for review, under the same statutory provisions as her other appeals and applications for review, against the decision of the magistrate to issue a warrant for her arrest on 8 September 2015. The appeal under Criminal Appeals Act 2004 is incompetent. The decision to issue an arrest warrant is not a decision as defined by s 6 of the Criminal Appeals Act 2004. The notice of appeal does not disclose any ground for making a review order under Magistrates Court Act s 36. The appeal does not disclose that the magistrate failed to do any act or make any decision he was under a duty to make or that there are grounds for the issue of an order for mandamus. The grounds of appeal do not disclose that the magistrate made any jurisdictional error or that there are grounds for the issue of a writ of prohibition or certiorari. The appeal and application for an order for review in relation to the issue of the warrant for the appellant's arrest is incompetent.
Application for interim orders
The appellant seeks interim orders. As best I can discern the appellant seeks three interim orders. First, an order for urgent appeal under Criminal Procedure Rules 2005 r 58(1)(d) and r 69. Secondly, an order to stay the decision of the magistrate to refuse an adjournment on 3 September 2015 and refusal to dismiss the case. Thirdly, a stay of execution on the warrant for arrest issued by the magistrate on 8 September 2015. I will deal with each in turn.
The appeal has been heard. The application for an order that the appeal be heard urgently falls away.
There are no grounds for an interim order to stay or set aside the decision of the magistrate to refuse an adjournment on 3 September 2015. In any event, the appeal has been dealt with and I have found that the appeal is incompetent.
There are no grounds for staying the execution of the warrant for arrest. The warrant has been executed. I have found that the appeal against the decision to issue the warrant is incompetent.
Conclusion
The appellant's applications for leave to appeal must be dismissed. The appeals must be dismissed. The applicant's application for review under Magistrates Court Act s 76 must be dismissed. The appellant's applications for interim orders must be dismissed.
0
2
5