ALVAREZ-PIZALLA v The State of Western Australia
[2007] WASCA 224
•19 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALVAREZ-PIZALLA -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 224
CORAM: WHEELER JA
HEARD: ON THE PAPERS
DELIVERED : 19 OCTOBER 2007
FILE NO/S: CACR 70 of 2007
BETWEEN: SANTIAGO ALVAREZ-PIZALLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 534 of 2006
Catchwords:
Application for leave to appeal - Criminal law - Recent complaint - Summary of defence case to jury
Application for leave to appeal - Compliance with Supreme Court (Court of Appeal) Rules 2005 (WA) required for a grant of leave
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Supreme Court (Court of Appeal) Rules 3005 (WA), r 32(5)
Result:
Reasons published
Category: A
Representation:
Counsel:
Appellant: Mr M T Trowell QC
Respondent: No appearance
Solicitors:
Appellant: Frichot & Frichot
Respondent: No appearance
Case(s) referred to in judgment(s):
Breen v The Queen (1976) 180 CLR 233
Daniels v The Queen (1990) 1 WAR 435
R v Freeman [1980] VR 1
R v Manwaring [1983] 2 NSWLR 82
R v Roissetter [1984] 1 Qd R 477
R v Wilbourne (1917) 12 Cr App R 280
R v Wilson (1986) 42 SASR 203
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
WHEELER JA: On 24 August 2007, I heard oral submissions in relation to this application for leave to appeal. I indicated then that I proposed to grant leave in relation to grounds 2, 3 and 6 and to refer the application in respect of ground 4 to be heard together with the appeal. In relation to ground 1, I heard submissions concerning the law. In relation to ground 5, I heard some submissions, and I also made an order granting the appellant liberty to file supplementary submissions in respect of that ground within 14 days. No such submissions were filed. These are my reasons for refusing leave in relation to grounds 1 and 5.
Ground 1 - Recent complaint
Ground 1 asserts that the trial judge was wrong in law in indicating to the jury that a complaint subsequent to the very first complaint made by the complainant could be considered to be recent complaint and could have the capacity of bolstering the evidence of the complainant. It is asserted as a matter of law that it is only the initial complaint that will have the capacity to bolster the evidence of the complainant.
The proposition underlying this ground is wrong in law. The authorities cited for it are authorities contained in Australian Criminal Trial Directions at par 3‑5100‑20. There are three cases there cited, and I summarise them, so far as is relevant, briefly here. R v Manwaring [1983] 2 NSWLR 82 is concerned with the question of whether a complaint which is elicited as a result of questioning or in some other way, or which may be seen as being equivocal, can be considered to be evidence of recent complaint. It is not concerned at all with the question of whether there can be more than one "recent complaint". In particular, although page 90 is referred to in Australian Criminal Trial Directions, there is at page 90 no discussion of this question. R v Freeman [1980] VR 1 refers (at 8) to R v Wilbourne (1917) 12 Cr App R 280 as authority for the view "that evidence of the second complaint made is not inadmissible merely because a prior complaint had been made to another person so long as each of the complaints can fairly be regarded as having been made at the first reasonable opportunity after the offence". That is, it is authority for a proposition contrary to that contended for by the appellant. R v Wilson (1986) 42 SASR 203 does contain (at 226) observations to the effect that evidence of multiple complaints is not admissible and should not be given. However, those observations were obiter, do not seem to have been the subject of any argument in that case, and were the observations of but one judge.
In this State, the settled position is to be found in Daniels v The Queen (1990) 1 WAR 435. In reasons with which Malcolm CJ and Seaman J agreed, Kennedy J, at 443 of that decision, was dealing with a proposed ground 1(a) which raised precisely the point raised by ground 1 in the present case. His Honour said:
The authorities clearly indicate that ground 1(a) cannot be sustained. Whilst there does appear to be something of an anomaly in considering two or more complaints as each having been made at the first reasonable opportunity after the alleged offence, it is well established, in my view, that, provided each of the complaints is made within a brief time of one another they are admissible.
His Honour cited Freeman, to which I have referred, R v Roissetter [1984] 1 Qd R 477 and Breen v The Queen (1976) 180 CLR 233 (there cited as (1976) 50 ALJR 534).
Ground 5 - Summary of the defence case
This ground asserts that his Honour erred in law in failing to give the jury an adequate summary of the defence case and the arguments raised by defence counsel. As framed, the ground and the submissions appear to suggest that his Honour did not put the defence case at all. However, the ground and the submissions also, somewhat confusingly, assert that the learned trial judge "simply put to the jury … the differing versions of the critical events". It is not entirely clear to me what distinction is there being drawn, between putting the "defence case" and putting the defence version of "critical events".
Looking to the portion of the learned trial judge's direction concerned with the respective cases of the prosecution and the defence, it can be seen that his Honour dealt with both cases very briefly. At 213, having directed in relation to the definition of consent, his Honour went on to remind the jury briefly about the evidence of the complainant regarding her lack of consent during certain events. That summary occupies approximately one page overall. His Honour then on the following page, having completed his summary of the complainant's evidence, reminded the jury that on the other hand, the appellant denied the allegations and had said that there had been a course of dealing between the complainant and the appellant on the day in question which put the relevant events in context, that the complainant had initiated sexual activity, and that consensual sex in certain positions had taken place, after which the complainant had a shower, he took her a cup of tea and they then slept. That completed his Honour's summary of the relevant events. His Honour also dealt at a later stage with two particular matters arising from the addresses of counsel, which his Honour did by referring to a particular passage of the evidence and by reminding the jury of particular questions and answers in the videotaped record of interview respectively.
The trial itself was not a long one. The evidence occupied approximately three days. One would not expect a lengthy direction concerning the respective cases, since the critical evidence would be relatively fresh in the minds of the jurors. However, the point of critical significance to this ground is that the adequacy of the summary of the defence case is to be judged against what the defence case actually was. Regardless of its brevity, a direction will be adequate if it mentions the most important factors or issues in the defence case, and will be inadequate if it omits matters of real significance even if it is a lengthy direction.
The submissions in the present case, entirely disregarding the requirement in the Supreme Court (Court of Appeal) Rules 2005 (WA) that the submissions must include references to each page number of the transcript upon which relevant material appears (r 32(5)), fail to refer to any page or passage of transcript upon which there appeared material to which his Honour should have referred, but did not. Rather, the submissions assert blandly that "a proper summary would have included some comprehensive reference to matters such as the ongoing social relationship between the parties, the previous requests for 'goodbye sex', the omissions from her police statement, the cup of tea, the sleep, and so on". The submissions also acknowledge, in the immediately following paragraph, that some of those issues were mentioned by the learned trial judge "in passing"; but it is asserted that they needed to be put to the jury "in the context of the argument put on behalf of the accused through his counsel, as well as the inferences that the defence asked to be drawn as a result". The appellant's case does not condescend to identify or articulate the argument put on behalf of the accused through his counsel, or the inferences that the defence asked to be drawn. Counsel who appeared before me, who was not responsible for the drafting of the submissions, acknowledged that there was some deficiency in respect of this ground.
It was because of the complete inadequacy in the appellant's case, which did not identify any matter which his Honour should have included in his summary of the defence case, that I gave the appellant leave to file supplementary submissions in respect of this ground, referring to matters of fact or to arguments raised by the appellant during the course of the trial which it was submitted that his Honour the trial judge ought to have put to the jury, but failed to put. No submissions having been received as a consequence of that order, I assume that there is no such material. I am therefore unable to be satisfied that this ground has any prospect of succeeding, let alone a reasonable prospect.
Before I leave this ground, I would note that compliance with r 32(5) of the Supreme Court (Court of Appeal) Rules is of vital importance to an appellant seeking leave to appeal. This is the document upon which the court must primarily rely in determining whether any of the grounds appears to have a reasonable prospect of success, so that leave can be granted. If the appellant's case is properly prepared, the court will be able to be satisfied on the papers that leave should be granted. The expense of an appearance will be avoided. Where, however, the appellant fails to take advantage of the opportunities afforded to demonstrate that a ground has a reasonable prospect of success, the court cannot grant leave (s 27 Criminal Appeals Act 2004 (WA)).
On some occasions, where it is not clear at the leave stage whether a ground may have a reasonable prospect of success or not, it may be appropriate to refer that question to the Court of Appeal to be heard together with the hearing of the appeal. This course may be taken, for example, where the trial involved complex factual issues. However, as this court pointed out in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [37], the legislative purpose underlying s 27 of the Criminal Appeals Act is an important one, and it should not be assumed that, where an appellant has failed to demonstrate reasonable prospects of success, a question of leave will simply be referred to the Court of Appeal hearing the appeal, even where leave may be granted on other grounds. It will be more likely, in such a case, that leave will be refused.
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