WCM v The State of Western Australia - [2015] WASCA 55

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WCM -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 55

CORAM: BUSS JA
NEWNES JA
MAZZA JA

HEARD: 28 NOVEMBER 2014

DELIVERED : 28 NOVEMBER 2014

PUBLISHED : 19 MARCH 2015

FILE NO/S: CACR 167 of 2014

BETWEEN: WCM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
File No  :IND GER 38 of 2012

Catchwords:

Preliminary appeal against decision prior to conviction pursuant to s 26 of the Criminal Appeals Act 2004 (WA) - Appeal notice lodged out of time - Whether Court has power to extend time to appeal - Whether preliminary appeal competent - Whether trial should have been adjourned by reason of s 133(7) of the Criminal Procedure Act 2004 (WA)

Legislation:

Criminal Appeals Act 2004 (WA), s 3, s 10(3), s 23(1), s 24, s 25, s 26, s 28, s 30
Criminal Procedure Act 2004 (WA), s 3, s 133(3), s 133(4), s 133(7)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Interpretation Act 1984 (WA), s 61(1)(b)

Result:

Preliminary appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A E Monisse
Respondent: Mr L M Fox

Solicitors:

Appellant: Not applicable
Respondent: Director of Public Prosecutions (WA)

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

Allbeury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Christianos v Young (1993) 3 WAR 303
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Santos v The State of Western Australia [2011] WASCA 216
The State of Western Australia v WCM [2014] WASCA 38

REASONS OF THE COURT: On 28 November 2014, at the conclusion of the hearing, this court unanimously dismissed WCM's appeal against a decision made by Staude DCJ refusing separate trials in respect of an indictment that contained multiple counts. The court said that reasons for the decision would be published later. These are our reasons.

Background

The appellant was originally charged on an indictment in the District Court dated 18 December 2012 with 34 counts of sexual offending against six complainants aged between the ages of 3 and 15 years. The offences were alleged to have occurred between 31 December 1976 and 1 January 1995. Counts 1, 3 and 4 related to VC, counts 2 and 6 related to MK, counts 5, 7 and 8 related to SC, counts 9 to 15 related to AC, counts 16 to 28 related to MS, and counts 29 to 34 related to DC (the first indictment).
On 29 January 2013, Staude DCJ ordered severance of some of the counts, but not others. Both the State and the appellant appealed against these orders pursuant to s 26 of the Criminal Appeals Act 2004 (WA) (CAA). On 12 November 2013, this court allowed the State's appeal and dismissed the appellant's appeal: The State of Western Australia v WCM [2014] WASCA 38. The effect of the orders made by this court was that all of the counts on the first indictment were to be tried together. The trial was eventually set down to begin on 2 September 2014.
On 1 September 2014, the State discontinued the first indictment and, without objection, handed up a new indictment dated 27 August 2014 (the second indictment). The second indictment contained 20 counts. The principal difference between the first and second indictments is that the latter does not include any charges with respect to the complainant, MS.
The appellant's counsel then applied for a severance order in respect of the second indictment. The precise order he sought was that counts 1 to 15 be tried separately from counts 16 to 20. Counts 1 to 15 relate to VC, MK, SC and AC, count 16 is an allegation that the appellant masturbated in public and counts 17 to 20 relate to DC.
On 2 September 2014, the day on which the trial was listed to start, his Honour dismissed the appellant's application for severance. The appellant's counsel advised his Honour that the appellant wished to appeal against the order. The trial was then adjourned. It is clear that both counsel and his Honour considered that once the appellant announced his intention to appeal, the trial had to be adjourned by reason of s 133(7) of the Criminal Procedure Act 2004 (WA) (CPA).

The appeal

We will refer to s 26 of the CAA in more detail shortly, but, in general terms, it gives an accused or a prosecutor a right to bring a preliminary appeal in respect of an order made in connection with separate trials. Such an appeal must be commenced within seven days after the date of the decision and before the day on which the accused's trial is listed to start: s 26(5) of the CAA.
It is conceded that the appellant filed his appeal notice on 10 September 2014: one day out of time. Accordingly, an issue arises as to the competency of the appeal, in particular, whether there is a power to extend the time to appeal. The resolution of this issue depends upon the proper construction of the relevant provisions of the CAA.

Some preliminary observations

Before turning to the text of the CAA, it is necessary to make two preliminary observations.
First, an appeal is entirely a creature of statute: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47; Allbeury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2], [80]. Accordingly, unless there is a relevant statutory power, this court has no power to hear or determine an appeal.
Second, this appeal concerns an order made by a judge in respect of a trial that is still to take place and where there has been no conviction. The criminal law has long regarded such appeals as exceptional because of their capacity to fragment and delay the criminal justice process. See, for example, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 25 ‑ 26, and Christianos v Young (1993) 3 WAR 303, 305.

The relevant provisions of the CAA

Save for the common law offence of criminal contempt, criminal appeals in this State are governed by the CAA: Allbeury v The Corruption and Crime Commission [16], [89] and [282]. This statute is to be read with the CPA: s 3 of the CAA.
Part 3 of the CAA is entitled, 'Appeals from superior courts'. Part 3 div 2 of the CAA, which comprises s 23 to s 26, sets out the rights of appeal that are available to an offender, an accused and a prosecutor.
In respect of an offence on indictment, s 23(1) of the CAA provides that an offender convicted of an offence may appeal against any or all of the following decisions:
(a)the conviction;
(b)the sentence imposed or any order made as a result of the conviction;
(c)a refusal to make an order that might be made as a result of the conviction.
Section 24 of the CAA sets out the various rights of appeal of a prosecutor in relation to a charge of an indictable offence. It is unnecessary to list those matters capable of appeal by a prosecutor.
Section 25 of the CAA provides both an accused and a prosecutor with certain rights of appeal in respect of an acquittal of a charge in an indictment on account of unsoundness of mind and any order under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) on account of the acquittal.
The focus of the appeal in the present case is upon s 26 of the CAA, which is in these terms:
26. Separate trial decision, preliminary appeal against
(1)If an accused is charged in one indictment with 2 or more offences -
(a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the charges; and
(b)the accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the charges.
(2)If an accused is tried at one trial with 2 or more offences charged in one indictment and is convicted of any of those offences, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the charges in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (1)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.
(3)If 2 or more accused are charged on indictment with an offence -
(a)the prosecutor may appeal to the Court of Appeal against any order made by a judge of a superior court that there be a separate trial of any of the accused; and
(b)any accused may appeal to the Court of Appeal against a refusal by a judge of a superior court to order that there be a separate trial of any of the accused.
(4)If an accused is tried with one or more other accused in one trial and is convicted of any offence, an appeal by the accused under this Part against that conviction on any ground that relates to the joinder of the accused in the indictment cannot be allowed on that ground if the accused has already appealed under subsection (3)(b), except on the basis of any relevant matter that emerged at any time after the decision that was the subject of that appeal.
(5)An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the day on which the accused’s trial is listed to start.
(6)If an appeal under this section is commenced on or after the day on which the accused’s trial is listed to start, the appeal must be dismissed.
(7)On an appeal under this section against an order or a refusal to make an order, the Court of Appeal may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial. (emphasis added)
There are a number of features of s 26 of the CAA to be noted:
1.The right of preliminary appeal may be exercised by both the prosecutor and the accused person.
2.The right is limited to orders made by a judge of a superior court in respect of:
(a)whether to order a separate trial of any of the charges in an indictment which contains two or more charges; or
(b)whether to order a separate trial of any of the accused in an indictment which charges two or more persons.
3.Where a preliminary appeal is taken by the accused and dismissed, an appeal against conviction cannot be allowed on any ground that relates to the joinder of the charges or the accused, unless a relevant matter has emerged after the decision that was the subject of the preliminary appeal.
4.A preliminary appeal may not be commenced unless the two preconditions in s 26(5) of the CAA are satisfied. One of the preconditions is that the appeal must be commenced within seven days after the date of the decision.
5.There is no express power for the court to extend the seven‑day time limit.
6.If a preliminary appeal is commenced on or after the day on which the accused's trial is listed to start, the appeal must be dismissed. See Santos v The State of Western Australia [2011] WASCA 216 [93] ‑ [110].
7.The Court of Appeal may confirm the order or refusal, or set it aside and make any order that could have been made on the application for a separate trial.
Part 3 div 3 of the CAA is headed, 'Commencing and deciding appeals' and includes s 28 and s 30.
Section 28 of the CAA deals with the commencement of an appeal under pt 3. It relevantly provides:
28. Commencing an appeal
(1)An appeal under this Part must be commenced and conducted in accordance with this Part and rules of court.
(2)An appeal under this Part must be commenced by lodging with the Court of Appeal an application for leave to appeal.
(3)An appeal under this Part against a decision or judgment cannot be commenced later than 21 days after the date of the decision or judgment unless the Court of Appeal orders otherwise.
(4)If the date on which a person is sentenced for an offence is not the date on which the person is convicted of the offence, the time in subsection (3) for an appeal against either the conviction or the sentence or both runs from the date of sentencing. (emphasis added)
Section 30 of the CAA concerns an appeal against a conviction by an offender. By s 30(3), the offender may appeal against a conviction on the basis that:
(a)the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)there was a wrong decision on a question of law by the judge; or
(c)there has been a miscarriage of justice.
Save for s 26, the CAA does not allow for a preliminary appeal by an accused; that is, an appeal against an order made by a judge in criminal proceedings before conviction. Thus, for example, there is no right of appeal prior to conviction in respect of an interlocutory decision made by a judge as to the admission of evidence. Of course, this does not mean that such decisions are beyond appellate review. If convicted, an offender may appeal against that conviction pursuant to s 30 of the CAA on the basis of a wrong decision on a question of law or a miscarriage of justice.

Does this court have the power to extend the time limit in s 26(5) of the CAA?

As we have said, the appellant's counsel conceded that the appeal was filed out of time. This concession was correctly made. The relevant 'date of the decision' for the purposes of s 26(5) of the CAA was 2 September 2014, being the date upon which Staude DCJ refused the appellant's application to sever the indictment.
Section 61(1)(b) of the Interpretation Act 1984 (WA) relevantly provides:
61.Time, Computation of
(1)In computing time for the purposes of a written law -
…
(b)where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period.
In the present case, the 'specified day' for the purposes of the Interpretation Act is the 'date of the decision' in s 26(5) of the CAA. As s 26(5) provides that the appeal must be filed 'within seven days after the date of the decision', the date of the decision itself, being 2 September 2014, is excluded from the reckoning of the seven days. Excluding the date of the decision, the period of time of 'within seven days' means the period beginning with and including 3 September 2014 and ending on and including 9 September 2014. Thus the appeal in this case, filed as it was on 10 September 2014, was not commenced within the seven‑day period specified in s 26(5).
Unless the appellant is able to point to an express or implied statutory power to extend time, this appeal must fall at the first hurdle.
The text of s 26(5) of the CAA does not assist the appellant. The subsection is mandatory ('an appeal under this section … must be commenced with 7 days …') and there is, as we have said, no express power to extend the seven‑day time limit. Had Parliament wished to give this court such a power, it could have done so as it has with the time limit in s 28(3) and s 10(3) of the CAA.
The brevity of the time within which to bring a preliminary hearing, and the absence of a power to extend the time limit in s 26(5) of the CAA, is consistent with the policy of preventing or minimising fragmentation and delay in the criminal justice process.
The appellant's counsel, recognising that there was no express source of power to extend time in s 26 of the CAA, submitted that the power was to be found in s 28(3) of the CAA. He submitted that s 28 of the CAA applied generally to all appeals under pt 3 of the CAA and thus applied to an appeal under s 26 of the CAA.
This submission cannot be accepted. While s 28(1) and s 28(2) apply generally to all appeals under pt 3 of the CAA, including a preliminary appeal, the same cannot be said of s 28(3) of the CAA.
A preliminary appeal is a species of appeal under pt 3 of the CAA, which is subject to its own time limit. In this respect, it stands apart from all other pt 3 appeals which, pursuant to s 28(3) of the CAA, are to be commenced within 21 days after the date of the decision or judgment unless this court orders otherwise.
As the plain language of s 28(3) of the CAA makes clear, the power of this court to extend time is linked to those appeals under pt 3 which are subject to the 21‑day time limit (for example, an appeal against conviction or sentence). Obviously a preliminary appeal under s 26 of the CAA is not an appeal subject to the 21‑day time limit. It follows that the power to extend time in s 28(3) does not apply to a preliminary appeal under s 26.
It also follows from what we have said that this appeal is incompetent. It was filed out of time and this court does not have the power to extend time. The appellant is not without remedy in the event of his conviction. If the decision by Staude DCJ on joinder was erroneous (as to which we express no opinion) or gives rise to a miscarriage of justice, he may appeal against any conviction on that ground.

Was Staude DCJ bound to adjourn the trial pursuant to s 133(7) of the CPA?

Section 133(7) of the CPA reads as follows:
133.Separate trials, court may order
…
(7)If a superior court makes or refuses to make an order under subsection (3) or (4) before the day on which the accused’s trial is listed to start, the court must not start the trial unless the court is satisfied -
(a)that no party who could commence an appeal against the order or refusal under the Criminal Appeals Act 2004 section 26 intends to do so; or
(b)that -
(i)the time for commencing such an appeal has expired; and
(ii)any such appeal commenced before the time expired has been concluded.
Subsections 133(3) and (4) of the CPA empower a court to order separate trials, if it is satisfied that an accused is likely to be prejudiced in the trial by a prosecution notice or indictment containing two or more charges (s 133(3)(a)) or by the joinder of one or more other accused (s 133(4)(a)).
Section 133(7) of the CPA did not apply in the present case. This is because the day on which Staude DCJ made his order refusing to sever the indictment (namely 2 September 2014) was the day on which the appellant's trial was listed to start and not before it. See Santos [93] ‑ [110].