Van Lieshout v Kelly
[2014] WASC 432
•21 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VAN LIESHOUT -v- KELLY [2014] WASC 432
CORAM: LE MIERE J
HEARD: 23 OCTOBER 2014
DELIVERED : 21 NOVEMBER 2014
FILE NO/S: SJA 1059 of 2014
BETWEEN: TERESA VAN LIESHOUT
Appellant
AND
ADAM DAVID KELLY
Respondent
ON APPEAL FROM:
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
Catchwords:
Application for leave to appeal - Application for extension of time to apply for leave to appeal - No appealable decision - Appeal not competent
Legislation:
Bail Act 1982 (WA), s 51(1), s 59B
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Code (WA), s 378, s 444(1)(b)
Criminal Procedural Rules 2005 (WA), r 58, r 68, r 69
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 21A, s 45
Magistrates Court Act 2004 (WA), s 36
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: Ms A C Longden
Solicitors:
Appellant: No appearance
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
McLeod v State of Western Australia [2009] WASCA 233
LE MIERE J: On 31 July 2014 the appellant filed an appeal notice against several decisions of the Magistrates Court of Western Australia. Insofar as the appeals are made under the Criminal Appeals Act 2004 (WA) leave of the court is required for each ground of appeal. The appeal notice was filed more than 28 days after the date of all but one of the decisions appealed against and hence the appellant required an extension of time to apply for leave to appeal. At a directions hearing the respondent submitted that the appeals are incompetent. I directed that the applications for leave to appeal, the applications for an extension of time to appeal and the competence of the appeal be determined on 12 November 2014.
The appellant did not attend the hearing on 12 November 2014. The appellant informed the court by a letter delivered on that day that she was unable to attend the court because of health problems. The appellant requested that the court determine the matters in her absence. The appellant and the respondent have each filed submissions in relation to the appellant's application for leave to appeal, the appellant's application for an extension of time and the competence of the appeal. These are my reasons for determining those matters.
History of proceedings in Magistrates Court
The materials before the court include:
•prosecution notice FR25064/13, FR25065/13, 13 December 2013;
•prosecution notice FR1387/14, 14 February 2014;
•transcripts of proceedings in Magistrates Court 17 December 2013, 14 February 2014 and 8 August 2014;
•appeal notice;
•application for interim orders;
•affidavit of appellant 29 July 2014;
•affidavit of appellant 8 August 2014;
•three sets of written submissions of appellant together with accompanying documents;
•respondent's outline of submissions;
That material discloses the following. On 27 November 2013 the appellant signed a bail undertaking to appear in the Magistrates Court at Fremantle on 17 December 2013 in relation to one count of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) and one count of stealing contrary to s 378 of the Criminal Code . Both charges relate to the removal of a wheel clamp placed on the appellant's vehicle on 26 August 2013 pursuant to an enforcement warrant issued under s 21A and s 45 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA). The appellant failed to appear in the Magistrates Court on 17 December 2013. The magistrate ordered that a bench warrant be issued to bring the appellant before the court.
On 13 February 2014 the appellant was arrested and was charged with having breached her bail undertaking contrary to s 51(1) of the Bail Act 1982 (WA). On 14 February 2014 the appellant appeared in the Fremantle Magistrates Court before the magistrate in relation to the two original charges and the additional charge of breaching bail. The appellant entered pleas of not guilty to each charge. The magistrate adjourned the charges to 8 August 2014 for hearing. The appellant entered into a bail undertaking to appear on that date.
The appellant failed to attend the hearing on 8 August 2014. The magistrate issued a warrant for the appellant's arrest. During the hearing the magistrate noted that the appellant had written to the court and advised that she would not be attending on the basis that she had initiated an appeal in this court. The appellant had filed an appeal notice in the Court on 31 July 2014. It is that appeal notice which has given rise to the applications the subject of these reasons for judgment.
Decisions appealed against
The appeal notice states that the decisions appealed against are as follows:
•unlawful warrant issued for my arrest on 17 December 2013;
•unlawful arrest and deprivation of liberty 13 and 14 February 2014;
•unlawful deprivation of liberty (27 November 2014 and 13/14 February 2014).
The appeal notice also referred to 'ongoing economic costs by Magistrates Court (in my view, extortionary stealing with the State)' and 'ongoing violence against appellant'. That would appear to be what the appellant says is the consequence of the decisions appealed against.
Application for interim orders
On 11 August 2014 the appellant filed an application for interim orders. The interim orders sought are:
1.Urgent appeal order (rule 58(1)(d) and rule 69).
2.Interim Orders for Stay of Executive Order To Set Aside (Cancel) Fremantle Magistrates Court, magistrate Malley decision warrant for my arrest made in my absence, on 8th August 2014 as a gross act of injustice, and malicious action (rule 58(1)(a) and (g), and rule 68).
Grounds of appeal
The grounds of appeal stated in the appeal notice are:
Magistrate erred in law and fact, action in excess of jurisdiction, abuse of process, and miscarriage of justice [Section 8(1) CAA 2004 and Rule 65(2) CPR 2005].
The grounds then set out in 17 paragraphs a multitude of claims and allegations which include references to extortion and stealing by the State, human rights abuses under international laws, the Defamation Act 2005 (WA), Commonwealth and international law, the Human Rights and Equal Opportunity Commission Act, the Commonwealth Constitution, the appellant's candidature as a Federal political candidate, the Oaths Affidavits and Statutory Declarations Act 2005 (WA), the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) which the appellant says is a very violent and destructive law created by corrupt politicians and violently enforced by Magistrates Courts, Sheriff's Office and police resulting in extortion and stealing from the public, cruelly and unjustly resulting in deprivation of liberty and death which must be challenged as it has resulted in massive human rights abuses in Western Australia. The appellant concludes:
I'm no longer SAFE, living in this State, the State where I was born, on account of my political and economic views; this cruel, violent, harassing, and threatening treatment by the respondent and the State, is an experience to me synonymous with Nazism; the respondent and State are using violence to extort and steal, along with the Sheriff's Office, and are obsessed with targeting victims cars and assets, depriving victims of their liberty without rights and legal representation in the lower courts (Magistrates courts), resulting in massive human rights abuses to myself and thousands of poor people, over the years (over 18,000 jailed between 2008 and 2013), including creating homelessness, driving their victims to suicide, drugging victims with dangerous and poisonous psychiatric treatments in custody, and deaths in custody.
It is difficult to relate these grounds to the decisions sought to be appealed against.
Is the appeal competent?
Criminal Appeals Act 2004 (WA) 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 of the Criminal Appeals Act defines the decision of a court of summary jurisdiction to mean any of the following:
(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 section 151.
The magistrate has not made any judgment, determination, order or decision that falls within any of those classes of decision.
In her written submissions dated 30 October 2014 the appellant says that the refusal by the magistrate to dismiss the prosecutions against her and refusal to adjourn the proceedings on 8 August 2014 pending the outcome of her appeal to the Supreme Court is a decision within the meaning of s 6(g) of the Criminal Appeals Act, that is 'a refusal to make an order that might be made as a result of a conviction or acquittal'. The appellant was not convicted or acquitted of any charge on 8 August 2014. The appellant does not contend that she was convicted or acquitted of any charge on 8 August 2014. Therefore, the magistrate did not make any decision which could properly be described as a refusal to make an order that might be made as a result of a conviction or acquittal. The magistrate did not make any decision, including refusing or failing to make an order, as a result of a conviction or acquittal.
Criminal Appeals Act s 7(4) provides that except as provided by that section, no appeal lies against a decision of a court of summary jurisdiction. The decisions which the appellant seeks leave to appeal against are not decisions within the meaning of Criminal Appeals Act s 7. Therefore, the appeal is incompetent.
Magistrate Court review
The appellant's appeal notice states that she requests leave to appeal and appeal orders against the specified decisions under the Magistrates Court Act 2004 (WA) s 36(1) and s 36(3) ‑ (6) as well as under the Criminal Appeals Act 2004 (WA), Criminal Procedures Act 2004 (WA) and Criminal Procedural Rules 2005 (WA). The Magistrates Court Act s 36(1) provides that if a person is or would be aggrieved by any of the acts, orders or directions of a court or the failure of a court to do any act or make any order or direction the person may apply to the Supreme Court for a review order. 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. Rules of the Supreme Court 1971 (WA) O 56A r 2 provides 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. Furthermore, Magistrates Court Act s 36(1) specifies the grounds on which a review order may be applied for. The appellant's appeal notice does not disclose that the appellant 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 or direction, on any of the grounds set out in Magistrates Court Act s 36(1).
In short, the appellant's appeal notice is not an application for a review order under Magistrates Court Act s 36 and does not disclose any ground on which a review order might be made.
Interim orders
Criminal Procedure Rules 2005 (WA) r 68 provides that at any time after an appeal is commenced and before it is concluded a party may apply for an interim order. Rule 58 provides that an interim order means, amongst other things, an order staying the proceedings in the primary court or the execution of the primary court's decision. The order sought by the appellant in her application for interim orders is a stay of the magistrate's decision on 8 August 2014 to issue a warrant for her arrest. The issue of a bench warrant for the arrest of the appellant is not a decision as defined in the Criminal Appeals Act s 6 and hence is not an appealable decision of a primary court and cannot be the subject of an appeal. It follows that it cannot be the subject of an interim order in an appeal. In any event the magistrate issued the arrest warrant after the appellant failed to appear in accordance with her signed bail undertaking. The magistrate had the power to issue the warrant under Bail Act 1982 (WA) s 59B. The appellant has not made out any, or any sufficient, reason why the warrant should be stayed.
The appellant also applies for an urgent appeal order. The Criminal Procedure Rules r 69 provides that an urgent appeal order in relation to an appeal is an order that the appeal is an urgent appeal that must be heard as quickly as practicable consistent with the proper administration of justice. There is no decision that can properly be the subject of an appeal. Therefore, there is no reason why the appeal must be heard as quickly as practicable consistent with the proper administration of justice.
Extension of time
The appellant's appeal notice seeks leave to appeal against decisions of the magistrate made on 17 December 2013 and 14 February 2014. The appeal notice was filed on 31 July 2014 and thus was more than six months and four months out of time in respect of decisions made on 17 December 2013 and 14 February 2014 respectively. A person applying for an extension of time must provide a satisfactory explanation for the delay. If there has been a lengthy delay, exceptional circumstances must be demonstrated unless it can be established that a miscarriage of justice will eventuate unless an extension of time is granted. To demonstrate that a miscarriage of justice is likely it may be necessary to do more than simply point to a ground of appeal that would have succeeded in a regularly instituted appeal: McLeod v State of Western Australia [2009] WASCA 233 [79] (McLure P). In this case the appeal notice does not disclose any decision that is appealable. The appellant has not established that a miscarriage of justice will eventuate unless an extension is granted.
Conclusion
The appellant's appeal notice does not disclose any appealable decision. The appellant's application for leave to appeal will be refused. The appellant's application for an extension of time to apply for leave to appeal in respect of decisions made on 17 December 2013 and 14 February 2014 will be dismissed. The appellant's appeal must be dismissed.
2