Anderson v The State of Western Australia - [2014] WASCA 230

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 230

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 3 OCTOBER 2014

DELIVERED : 12 DECEMBER 2014

FILE NO/S: CACR 234 of 2013

BETWEEN: JOSEPH BENEDICT ANDERSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 228 of 2013

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of aggravated robbery - Admissibility of videorecorded interview with police - Whether verdict unreasonable or cannot be supported

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 392

Result:

Application for leave to adduce new evidence dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

DPJB v The State of Western Australia [2010] WASCA 12
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Mack v The State of Western Australia [2014] WASCA 207

McLURE P: I agree with Buss JA.
BUSS JA: This is an application for leave to appeal against conviction.
The appellant was convicted, after a trial in the District Court before Schoombee DCJ and a jury on 6, 7 and 8 November 2013, on one count of aggravated robbery.
The count alleged that on 16 September 2012, at Perth, the appellant stole from the victim, with violence, a black leather wallet, $15 in cash and a cigarette lighter, the property of the victim, and that:
(a)the appellant was in company with another; and
(b)the appellant did bodily harm to the victim,
contrary to s 392 of the Criminal Code (WA).
The person with whom the appellant was allegedly in company was Trentyn Alexander Clinch.

Overview of the State's case at trial

An overview of the State's case at trial is as follows.
The victim was a 27‑year‑old male Irish national.
On Sunday 16 September 2012, at about 3.20 am, the appellant was in company with his wife, Ida Anderson, and her cousin, Mr Clinch. They were walking along Palmerston Street, Perth.
As the group reached the residential premises at 46 Palmerston Street, the appellant and Mr Clinch noticed the victim who was standing on the front veranda smoking a cigarette. Mr Clinch opened the front gate to the premises and approached the victim. The appellant followed Mr Clinch. Ms Anderson continued walking along Palmerston Street.
Mr Clinch confronted the victim and asked him for a cigarette. The victim was smoking his last cigarette. He told Mr Clinch he did not have any other cigarettes. The appellant responded, 'you're a lying dog, you've got cigarettes'. The appellant punched the victim in the face with a clenched fist. The victim fell to the ground.
The appellant and Mr Clinch then kicked the victim repeatedly in the face and head. While the victim was on the ground, in a semi-conscious

state, the appellant and Mr Clinch rummaged through the victim's pockets and stole his wallet, which contained $15 in cash, and a cigarette lighter.

A female friend of the victim, who was inside the house, awoke and went to the veranda. She saw the appellant and Mr Clinch walking from the veranda to the front gate. She asked them what they wanted. They said they were looking for a cigarette. The woman told them she did not smoke, and the appellant and Mr Clinch departed without further incident.
The victim's friend then noticed the victim lying on the ground. Initially, she thought he may be asleep. However, when she examined the victim more closely, she saw he had serious facial injuries.
The victim was taken to hospital by ambulance. He was treated for fractures to his left eye socket and cheek bone.
On 20 September 2012, the appellant was arrested. He participated in a video‑recorded interview with police. During the interview he made some admissions.
The prosecutor tendered the interview in evidence at the trial and relied on it as part of the State's case. In particular, the prosecutor alleged that, when he was first questioned during the interview, the appellant told several lies. The prosecutor contended that each of the alleged lies constituted an implied admission against interest. See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

Mr Clinch pleads guilty to aggravated robbery

Prior to the appellant's trial, Mr Clinch pleaded guilty to aggravated robbery and was sentenced to a term of immediate imprisonment.

Overview of the appellant's case at trial

The appellant did not give evidence at the trial, but defence counsel called Mr Clinch as a witness.
The defence case was that although the appellant and his wife were with Mr Clinch on the night in question, it was Mr Clinch (and not the appellant) who assaulted and robbed the victim. The appellant did not aid Mr Clinch in the commission of the offence.
Mr Clinch gave evidence that he struck the victim with a bottle and repeatedly kicked him to the head. Mr Clinch also said he stole a wallet containing money and a mobile telephone from the victim's pockets.
Defence counsel submitted that, when he was interviewed by police, the appellant may have remembered very little of the incident in question and may have been confused as to what had happened. It was argued on the appellant's behalf that if the jury found, contrary to defence counsel's submission, that the appellant had told deliberate lies during the video‑recorded interview, he may have lied, not because he wanted to hide his participation in the aggravated robbery, but because he did not want to be associated with Mr Clinch's violent conduct that night.

The appellant's proposed grounds of appeal

The appellant's proposed 'grounds of appeal' read:
1)Video Statement:
The day/night I made the video statement I had received a knock to the head which lead [sic] to me being admitted to Royal Perth Hospital overnight. I was assaulted about a week before I was arrested and questioned over the offence of Aggravated Robbery. I believe that I was not in the right state of mind to be questioned and videoed for these offences.
And I can prove this by getting these medical Statements from R.P.H. Royal Perth Hospital and Derbal Yerrigan (Aboriginal Medical Centre) Perth.
2)Evidence:
There is no evidence of mine to convict me. There was no D.N.A. No Finger Print. The desciption [sic] given from the Victom [sic] was Mr Clinch not me.
3)The decision of the Jury:
The Jury found me guilty not of the Aggravated [Robbery] but found me guilty of the Video Statement that I gave to the Police. The Jury said that I lied in my Video Statement but I know that I did not lie in the Video Statement nor did I lie to the Courts and the courts said that Mr Clinch lied in court to get me off.

The appellant's application in the appeal

On 20 August 2014, the appellant filed an application in the appeal.
In the application the appellant applies in substance for leave to adduce 'new evidence (medical reports)' in the appeal.
The medical reports in question are annexed to an affidavit sworn by the appellant and filed on 20 August 2014.

The merits of proposed ground 1

Ground 1 alleges in substance that the appellant's video‑recorded interview with police should not have been admitted in evidence at the trial because his admissions during the interview were involuntary or it was unfair for the State to rely on them.
The appellant's video‑recorded interview with police on 20 September 2012 commenced at 7.25 pm.
The video and the transcript reveal the following:
(a)During the interview the appellant's sister, Philomena Jean Anderson, was present as his 'support' person (VROI 2 ‑ 3).
(b)The appellant was born on 1 September 1975. He attended school until year 12 and he can read and write English (VROI 2 ‑ 3).
(c)At the commencement of the interview the appellant said he was not affected by alcohol, drugs or medication (VROI 3 ‑ 4).
(d)Prior to the interview the appellant had been medically examined at Royal Perth Hospital and he had been given 'the all clear' (VROI 4).
(e)The police officers conducting the interview informed the appellant, at the commencement of the interview, that he had the right to contact a friend or family member, the right to contact a lawyer, the right to medical attention and the right to be protected from the mass media. The appellant said he understood that he had those rights, but he 'just [wanted] to ... get on with this' because he had 'never done nothing' (VROI 5).
(f)The appellant confirmed, at the commencement of the interview, that he had spoken to a solicitor at the Aboriginal Legal Service who had given him some advice (VROI 6).
(g)At the commencement of the interview the police officers conducting the interview administered the standard caution (VROI 6 ‑ 7).
(h)The police officers told the appellant that they wanted to talk to him about an aggravated robbery that happened at 46 Palmerston Street, Perth on Sunday, 16 September 2012, at about 3.20 am (VROI 7 ‑ 9).
(i)The appellant responded that he knew nothing about the particular incident because on the night of 15/16 September 2012 he was with his sister, Philomena Anderson. He was with his sister all night. At about 3.00 am on 16 September 2012 he was 'sitting drinking with [his] sister', Francis Mongoo, Clinton Harris and Jasmine Barnes in William Street, Northbridge near the Brass Monkey hotel (VROI 7 ‑ 14, 22 ‑ 23).
(j)The appellant said that on the night of 15/16 September 2012 he was wearing a black hooded shirt (VROI 11).
(k)The appellant said that he was not with his wife or Mr Clinch on the night of 15/16 September 2012 and he had not seen them on that weekend. The last time he had seen his wife and Mr Clinch before that night was the previous Friday (VROI 21).
(l)Later in the interview, the appellant resiled from his version of events and admitted that on the night of 15/16 September 2012 he was with his wife and Mr Clinch (VROI 24 ‑ 25).
(m)The appellant then said Mr Clinch had assaulted the victim by hitting him with a bottle and jumping or stomping on his head (VROI 28 ‑ 32).
(n)However, the appellant maintained that he did not assault the victim and he did not steal any of his property (VROI 30 ‑ 31, 34, 37, 41).
(o)According to the appellant, he merely attempted to separate Mr Clinch and the victim and to break up a fight between them (VROI 31, 33, 36).
(p)The appellant claimed that, before 'anything started', the victim threw a punch at Mr Clinch prior to Mr Clinch throwing a punch at the victim (VROI 33).
(q)The police showed the appellant CCTV images taken in Northbridge on the night of 15/16 September 2012. The appellant identified two of the people in the images as his wife and Mr Clinch. He also identified himself and accepted that in the images he was wearing a white shirt. However, the appellant said he did not believe the images were taken on the night of 15/16 September 2012. Later, he prevaricated as to whether he was the person wearing the white shirt (VROI 16 ‑ 19, 22, 31, 34).
At the trial, the prosecutor asserted that the appellant had told Edwards lies as follows. First, he lied when he told the police that he had spent the night of 15/16 September 2012 drinking with his sister and others near the Brass Monkey hotel. Secondly, he lied when he told the police that on the night in question he was wearing a black hooded shirt. Thirdly, he lied when he told the police that he had last seen his wife and Mr Clinch on the previous Friday and he had not seen them on the weekend.
The appellant was represented at the trial by an experienced criminal defence lawyer.
On 5 November 2013 (being the day immediately before the commencement of the trial), the trial judge heard and determined an objection by defence counsel to the admissibility of the video‑recorded interview. Her Honour recounted the grounds for defence counsel's objection in the reasons she gave for ruling against the objection:
The defence says that these matters should not be relied upon by the State as being Edwards lies, because there is no conclusive evidence that [the appellant] deliberately told the lies about his whereabouts on the Saturday night and early morning on Sunday ... , and that he was wearing black clothing. The defence says that [the appellant] may just have been confused as to what had occurred on the Saturday night and got mixed up with what he had done on the Friday night and on the Saturday night.
The defence points out that [the appellant] told the police during the videoed interview that he had been drinking heavily on Saturday and, at some stage, got whacked over the head. Counsel for the defence also pointed out that [the appellant] said to the police when shown the still image of himself that he did [not] believe that this was taken on the Saturday. I presume that there will be evidence by the State that this image from the CCTV was taken on the Saturday night (ts 44).
Defence counsel did not object to the admissibility of the video‑recorded interview on the basis that the appellant's admissions during the interview were involuntary or it was unfair for the State to rely on them.
The trial judge's reasons for ruling that the video‑recorded interview was admissible were as follows:
At this stage, I have to decide whether, if the State's evidence is taken at its highest, it is capable of indicating to the jury that the lies were deliberate and of course that the other requirements set out in the Edwards case are also met. In my view, the evidence presented by the State is sufficient to be placed before the jury and it is open for the jury to find, on the basis of the recorded interview, that [the appellant] was lying when he initially tried to distance himself from the location where the robbery had taken place and when he said that he had spent the whole day and night with his sister in William Street, and had not been wearing a white shirt (ts 45).
I have examined the appellant's affidavit filed in the appeal on 20 August 2014 and the annexed documents. The documents include a letter dated 20 September 2012 signed by Terry Jongen, a nurse practitioner at Royal Perth Hospital. The letter notes that the appellant 'sustained multiple injuries over the weekend' (that is, the weekend of 15/16 September 2012) and that he 'presented to the Emergency Department' at Royal Perth Hospital on 20 September 2012 at 3.58 pm. The letter also notes that the appellant had been arrested by the police and they needed a 'medical clearance'. Nurse practitioner Jongen's letter reads, relevantly:
Managing by self at home, until today, arrested by police wanted medical check up.
On examination GCS 15 ambulant Cranial nerve exam unremarkable. C‑spine no midline tenderness. No bleeding ears or nose, Tender along right mandible OPG and PA Mandible NAD.
Occiput small soft swelling scab wound.
Abdo small scab wound superficial.
Can go to lock up. Can have food and fluids, simple anaglesia [sic] and head injury advice.
The evidence sought to be relied on by the appellant in the appeal is 'new' as distinct from 'fresh'.
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
I am satisfied, after watching the video record of interview, reading the transcript of the interview and reviewing the appellant's affidavit and the annexed documents, that ground 1 does not have a reasonable prospect of success.
It is not reasonably arguable that the new evidence (either of itself or in combination with any other evidence) establishes the appellant is innocent or raises such a doubt that this court should be satisfied the appellant should not have been convicted.
Further, and in any event, it is not reasonably arguable that the video‑recorded interview should not have been admitted in evidence at the trial on the ground that the appellant's admissions during the interview were involuntary or it was unfair for the State to rely on them. In particular:
(a)the appellant gave lucid and responsive answers to the questions;
(b)he chose to give detailed answers to some questions and a simple 'yes' or 'no' to others;
(c)he denied that he was affected by alcohol, drugs or medication;
(d)he did not appear to be affected by alcohol, drugs or medication;
(e)his sister was present throughout the interview as his 'support' person;
(f)the police officers conducting the interview informed the appellant, at the commencement of the interview, of his rights;
(g)the appellant confirmed, at the commencement of the interview, that he had spoken to a solicitor at the Aboriginal Legal Service who had given him some advice;
(h)at the commencement of the interview the police officers conducting the interview administered the standard caution;
(i)the police officers conducting the interview treated the appellant appropriately and with respect;
(j)the appellant was not subject to oppressive questioning or harassment;
(k)the questions asked of him were not unfair;
(l)he appeared to understand the standard caution and the questions asked of him;
(m)he attended school until year 12 and he can read and write English;
(n)the appellant appeared to make a deliberate and considered decision in the course of the interview to change his version of events; for example, he told the police officers, 'Well, I'll be honest, chief. What's this about. A bloke was assaulted ... from that house?' (VROI 24);
(o)nurse practitioner Jongen's letter does not indicate that he was unfit to be detained or questioned; and
(p)at the conclusion of the interview he did not, when invited, make any complaints about the manner in which the police had treated him.
No doubt, the experienced criminal defence lawyer who represented the appellant at the trial formed the view that there was no reasonable basis for objecting to the tender of the video‑recorded interview on the grounds now relied on by the appellant.

The merits of proposed grounds 2 and 3

It is convenient to deal with grounds 2 and 3 together.
Grounds 2 and 3 allege in substance that the verdict on which the conviction is based was unreasonable and cannot be supported having regard to the evidence. See s 30(3)(a) of the Criminal Appeals Act 2004 (WA). Recently, in Mack v The State of Western Australia [2014] WASCA 207, I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported [141] ‑ [147]. It is unnecessary to repeat the relevant principles.
The State ran its case at the trial on the basis that the appellant and Mr Clinch were joint principal offenders, alternatively on the basis that Mr Clinch was the principal offender and the appellant aided him in the commission of the offence.
During the video‑recorded interview the appellant eventually admitted that he was at the residential premises at 46 Palmerston Street when Mr Clinch used actual violence against the victim.

The critical issue at the trial was what actions (if any) were done by the appellant in relation to the victim. In particular, did the appellant use actual violence or assist Mr Clinch in using actual violence against the victim, and did the appellant steal or aid Mr Clinch in stealing any items of property from the victim?
The State's case against the appellant was not confined to the admissions made by the appellant during the video record of interview and the Edwards lies he allegedly told during the interview. The State also relied on the following evidence:
(a)The victim gave evidence that he was confronted by two men. The shorter man asked for cigarettes. When the victim said he did not have any cigarettes, the shorter man put his hands on the outside of the victim's pockets, patted them and said, 'you have something'. The taller man said 'liar, dog' after the victim told the men he did not have any cigarettes. The victim pushed away the hands of the shorter man. The shorter man then pushed the victim in the chest. Next, the victim pushed the shorter man towards the wall. At that stage, the taller man punched the victim with his right fist. The victim fell backwards. As the victim attempted to regain his posture, he felt another punch. The victim fell to the ground and was kicked to the head from both the left and the right sides. He felt hands enter both of his pockets. The victim maintained in cross‑examination that the taller man had punched him first.
(b)The victim's female friend gave evidence that the taller man was wearing a light‑coloured long‑sleeved top and had a bag slung across his upper chest.
(c)The female friend's evidence was supported by CCTV footage taken on the night in question which showed the taller man wearing a light‑coloured top. The CCTV footage also showed the taller of the two men had a bag slung across his chest.
(d)Mr Clinch admitted in evidence that the appellant was significantly taller than him.
(e)A police officer gave evidence that all of the CCTV footage had been taken in the early hours of 16 September 2012.
I am satisfied, after examining the trial record and weighing the evidence (including the appellant's exculpatory statements in his video‑recorded interview and Mr Clinch's evidence that was exculpatory of the appellant), that it was reasonably open to the jury to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on the charge of aggravated robbery.
A jury, acting reasonably:
(a)was not precluded by the state of the evidence at trial from convicting the appellant of aggravated robbery;
(b)was entitled to reject the appellant's exculpatory statements and Mr Clinch's exculpatory evidence; and
(c)was entitled to be satisfied beyond reasonable doubt, upon the combined force of the evidence on which the State relied, that the appellant had committed the offence of aggravated robbery.
The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty of aggravated robbery was not unreasonable. It was supported by evidence the jury was entitled to accept and by inferences the jury was entitled to draw. After paying full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on the charge of aggravated robbery or as to the correctness of his conviction on that count.
Neither ground 2 nor ground 3 has a reasonable prospect of success.

Conclusion

The new evidence sought to be relied on by the appellant does not materially advance his case. The application for leave to adduce that evidence should therefore be dismissed.

Each of the grounds of appeal is without merit. Leave to appeal should be refused and the appeal dismissed.
MAZZA JA: I agree with Buss JA.