Aroub v The Queen
[2018] ACTCA 13
•8 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Aroub v The Queen |
Citation: | [2018] ACTCA 13 |
Hearing Dates: | 5 April 2018 and 23 April 2018 |
DecisionDate: | 8 May 2018 |
Before: | Burns J |
Decision: | See [26] |
Catchwords: | APPEAL - Application for leave to appeal out of time – convicted by a jury – sentenced to period of imprisonment – draft notice of appeal – amended draft notice of appeal – appeal against conviction and sentence – consideration of merits of proposed appeal – ground relating to failure to call witness – ground relating to failure to disclose material – grounds relating to whether potential for prejudice regarding explanations of DNA evidence – whether unfairness to accused in representing himself at trial – identity not in issue |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 5402, 5506 Evidence Act 2011 (ACT) ss 135, 137 |
Cases Cited: | SV v The Queen [2017] ACTCA 41 |
Parties: | Mr Ozogow Aroub (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr D Adut (Applicant) Ms K McCann (Respondent) |
| Solicitors AC Law Group (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 48 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 14 July 2017 Case Title: R v Aroub Citation: [2017] ACTSC 187 |
BURNS J:
The applicant, Ozogow Aroub, was convicted by a jury on 15 March 2017 of one count of sexual intercourse without consent and one count of committing an act of indecency without consent. These offences occurred on 19 April 2015. On 14 July 2017 the applicant was sentenced by the Chief Justice to an effective term of imprisonment of two years, to be served by way of full-time imprisonment for a period of six months, with the balance suspended with a Good Behaviour Order for a period of 18 months. The effect of these orders was that the applicant would have been entitled to be released from custody on 12 January 2018. The applicant was not represented by a legal practitioner in the course of his trial, although he had been so represented until shortly before the trial commenced.
On the 29 September 2017 the applicant lodged an application pursuant to r 5506 of the Court Procedures Rules 2006 (ACT)(the CPRs) applying to the Registrar of the Court for leave to appeal out of time against these convictions and sentences. The application was accompanied by a document which purported to be a notice of appeal pursuant to r 5402 of the CPRs, rather than a draft notice of appeal as required by r 5506. I will nevertheless refer to this as the draft notice of appeal. The application was supported by an undated affidavit of the applicant. All of these documents were prepared by the applicant personally. The proposed grounds of the appeal, as set out in the draft notice of appeal, were expressed as “errors in introduction of evidence, interviewed by police while under the influence”. Annexed to the affidavit in support of the application was a letter apparently written by the applicant, stating:
I am writing this letter in relation to any court case appeal on 14/7/17. The reasons I want to appeal my case is I believe I was unjustly judged on the matter. So I would like to appeal the sentence as I believe I was innocent of the charges, also because my permanent visa has been revoked because of the charges. The reason for not applying sooner my lawyer was informed to [sic] late in the matter. My emotions were running very high I lost hope of the situation because of the sentence.
By letter dated 4 December 2017, addressed to the applicant at the Alexander Maconochie Centre, the Registrar advised the applicant that she had refused his application for leave to appeal out of time. The Registrar stated that she was not persuaded to grant leave in the absence of any acceptable reason as to why the time within which the appeal may be brought should be extended, or any material to sufficiently establish the merits of the proposed appeal. The letter went on to advise the applicant that he had a right to apply for his application for leave to appeal out of time to be heard by the Court of Appeal, and that if he wished to follow that course he needed to file the application together with any affidavits upon which he intended to rely not later than 14 days after he received the letter.
By an application lodged 10 January 2018, the applicant sought that the Court of Appeal grant him leave to appeal out of time from the convictions and sentences. This application was supported by an affidavit affirmed by the applicant on 10 January 2018. These documents were, once again, completed by the applicant personally. In the affidavit supporting this application the applicant gave the following reasons for failing to lodge an appeal within time:
1) Prior to and post my trial I had no competent legal advice. 2) I have only just had legal advice as to my position. 3) This conviction if it stands will result in my deportation. 4) My prior legal advice was incompetent. 5) I was denied legal aid for the trial and my rights under s 22 of the Human Rights Act 2004 (ACT).
In the same affidavit, the applicant expressed the proposed grounds of his appeal as:
1. The Honourable Court erred in not giving proper instructions to the jury with regards to “non-available witnesses” and with regard to expert evidence that was called. 2. As a self represented litigant I was denied legal assistance under section 22 Human Rights Act to 2004 (ACT). 3. In all circumstances I was denied a fair trial.
The matter came before me for hearing on 5 April 2018. Mr Adut appeared for the applicant, and sought an adjournment of the proceedings to enable the applicant’s case it to be properly prepared and presented. I noted at that time that there were deficiencies in the material that had been filed, and that if the application were to proceed on that day it was unlikely that the merits of the application could be properly addressed. The application was therefore adjourned until 23 April 2018. I directed that by 4 pm on 18 April 2018, the applicant was to file and serve any affidavits upon which he proposed to rely and also to provide a written outline of submissions. I further directed that the Crown was to provide a written outline of submissions by the close of business on 20 April 2018. The Crown had previously filed submissions on 25 January 2018, which it ultimately relied upon at the hearing of the application on the 23 April 2018.
The applicant did not comply with the directions that I gave on 5 April 2018. The applicant’s submissions were received by email on the morning of 23 April 2018. During the hearing of the application, Mr Adut was permitted to file in court a document headed “amended notice of appeal”, which was, in fact, an amended draft notice of appeal. That document was undated. The proposed grounds of appeal, as finally formulated in this document, were:
(a) the failure of the Crown to make adequate enquiries as to availability of Ms Nana Owusu‑Tieka [sic] and all other civilian witnesses
(b) a miscarriage of justice by failure of the Crown to compel Ms Owusu-Tieka [sic] to give evidence.
(c) failure of the Corwn [sic] on first day of trial, to disclose all material that it considers relevant to the proof or to the defence of the charge
(d) the learned trial judge erred in failing to apply s 135 or 137 of the Evidence Act (ACT) to exclude DNA statistical evidence expressed in inclusion percentage terms
(e) in relation to the mixed DNA evidence found on the victim’s back the learned trial judge did not consider the topic of transfer and persistence.
Although the Crown’s written submissions had addressed the earlier proposed grounds of appeal, it was able to adequately address the amended proposed grounds of appeal during the course of the hearing on 23 April 2018.
Drawing upon the sentencing remarks of the Chief Justice, a brief description of the evidence at the applicant’s trial is as follows. The complainant, FB, met the applicant for the first time on 19 April 2015. On the night of 18 April 2015, FB and her friends went out nightclubbing. FB and her friends consumed alcohol at various places, following which they went to the applicant’s house. The applicant, who had not previously met FB, was introduced to her as “Nelson”. FB eventually went into a room in the applicant’s house and went to sleep. She woke up and found the applicant “touching her”. The applicant digitally penetrated the vagina of FB, and kissed her on her back. Once FB realise what was happening, she pushed his hand away. As she did this, the applicant told her to “relax, relax”. FB told the applicant she needed to go to the bathroom. FB left the room and made immediate complaint to her friend, Ms Nana Owusu-Tieku, about what had occurred, although at that time she mistakenly believed that the person who had committed the offence was not the applicant but was another person named “Ding”. FB and her friend telephoned the police and called a taxi. A few hours later, the police spoke to FB. Police obtained a mixed DNA profile from FB’s back that appeared to contain saliva, and DNA consistent with being that of the applicant.
The applicant participated in a recorded interview with police in which he denied FB’s allegations. At trial, the applicant gave evidence. He stated that he went into the room where FB was, observed someone laying on a mattress and decided to go to sleep next to them. He stated that he passed out, and the next thing he remembered was FB saying that she wanted to go to the toilet. The applicant is said that he recalled going back to sleep and then being confronted by FB’s friend about sexually harassing FB. This evidence was consistent with the version of events that he gave to the police in his recorded interview.
There was no dispute as to the relevant principles governing the present application. Those principles were conveniently summarised by Penfold J in SV v The Queen [2017] ACTCA 41, where her Honour said at [7]:
Early in the hearing, I drew to the attention of the parties my decision in Vojneski v The Queen [2015] ACTCA 44, in which I set out at [20] the following matters to be considered on an application for leave to appeal a conviction out of time:
(a) Whether there is an acceptable explanation for the delay in filing a notice of appeal and, where applicable, in filing the application for leave to appeal out of time, and whether the explanation is sufficient to justify by-passing the legislated time-limits, having regard among other things to the applicant’s actions otherwise than in relation to the attempt to file an appeal.
(b) That prejudice to the respondent militates against a grant of leave, that absence of prejudice does not of itself justify a grant of leave.
(c) That prejudice to the respondent Crown might include:
(i) prejudice in conducting the appeal,
(ii) prejudice in conducting any new trial or other proceedings that might be ordered, and
(iii) the negative effects of a grant of leave on individuals, whether victims or others, who will be affected by the re-opening of proceedings after the expiry of the statutory appeal periods without any appeal having been filed.
(d) That the merits of the appeal are relevant to whether leave should be granted and, in particular, that leave should not be refused if the court considers that there is a reasonable probability that refusal might cause a miscarriage of justice.
I will deal initially with the potential merits of the proposed appeal, as revealed by the material before me. I will initially deal with proposed grounds of appeal (a) and (b) concerning the failure of the Crown to call Ms Owusu-Tieku as a witness. It was not disputed that by the time the applicant came to trial, Ms Owusu-Tieku had left Australia and returned to China. Apparently she had been deported after her visa had expired. The Crown placed material before me, without objection, that unsuccessful attempts had been made to arrange for a further visa for the witness to return to Australia to give evidence, or to take her evidence by way of audiovisual link from China. Evidence of correspondence between the Crown and the then lawyers representing the applicant concerning the unavailability of Ms Owusu-Tieku was placed before me on 23 April 2018. That correspondence occurred in September 2016, at which time the applicant was represented by the Legal Aid Office, and experienced trial counsel had been briefed. By an email to the Legal Aid Office dated 1 September 2016, the Crown advised that they did not propose calling Ms Owusu-Tieku to give evidence at the applicant’s trial, and inquired whether the applicant would take issue with that, or perceived some unfairness in her not being called. By an email dated 2 September 2016, the Legal Aid Office replied that they took no issue with the witness not being called so long as there was no expectation that they would consent to the tender of her statement. There was no suggestion in this email that those representing the applicant saw any unfairness in this course. By an email dated 5 September 2016, the Crown confirmed that it did not propose to tender the statement of the witness.
Mr Adut submitted that the applicant was prejudiced by the failure of the Crown to call evidence from Ms Owusu-Tieku because her evidence would have revealed discrepancies in the description of events given by FB, and would have been helpful in discrediting FB. I will assume, for present purposes, that it is possible that the evidence of the witness may have been of some assistance to the applicant in the way in which he now suggests. The simple fact is, however, that an agreement was reached between his then lawyers and the Crown that the witness would not be called, and her statement would not be tendered. The applicant remains bound by that agreement. I am by no means convinced that that agreement was not in the best interests of the applicant. Having read the police statement of the witness, she largely corroborates the testimony of the complainant with respect to the essential facts. The evidence of the witness would have been admissible as complaint evidence, and by agreeing that the witness not be called the applicant’s lawyers removed one of the witnesses against him. Having read the witness’s police statement, to the extent that discrepancies may have been identified between the evidence given by FB and the account given by the witness, they appear to me to be matters of detail which a jury could well consider to be unimportant. Although the applicant appears to have abandoned any ground of appeal alleging incompetence by his legal representatives, it is still appropriate to note that the forensic decision made by his lawyers with respect to the absence of the witness was not illogical or inexplicable. It may well be argued that the absence of the witness weakened the Crown case. In my opinion, the applicant has no prospects of success with regard to the proposed grounds concerning the failure of the Crown to call Ms Owusu-Tieku to give evidence at the trial.
With regard to proposed ground of appeal (c), Mr Adut identified the material which, the applicant alleges, was not disclosed to him until the first day of his trial as being graphs contained in a PowerPoint presentation shown to the jury during the evidence of an expert witness called by the Crown, Mr Andrew Preston. Mr Preston was a forensic biologist employed by the Australian Federal Police, and gave evidence about the finding of amylase and DNA on a swab taken from the back of FB after the offences. The PowerPoint presentation which accompanied his evidence was confined to providing very general information to the jury about DNA and the methods used by scientists to extract and interpret DNA from a sample of material provided to them. It was conceded by the Crown in the present application that this PowerPoint presentation was not provided to the applicant prior to the first day of his trial. This is, of course, regrettable. An accused person is entitled to know the evidence to be adduced by the Crown well in advance of their trial, to enable them to meet the evidence either through cross‑examination or by calling evidence themselves. This is particularly so where the evidence is of a technical nature, and where the accused is not represented by a legal practitioner. Nevertheless, I am satisfied that there could be no miscarriage of justice by the failure of the Crown to provide this material to the applicant at an appropriate time before his trial. The PowerPoint presentation was general in nature, providing general information as background to the evidence of Mr Preston concerning his examination of the swab taken from FB. There was no suggestion by Mr Adut that the information contained in the presentation was in some way inaccurate. The graphs that were complained of were sample graphs, unconnected with the case against the applicant, demonstrating the type of graph produced in an examination of a sample of DNA. Having read the transcript, there can be no doubt that the nature of this material as general information was made clear to the jury.
With regard to the ground of appeal (d), Mr Preston gave evidence that he examined a swab taken from the skin of FB in the area of her upper back after the offences. He gave evidence that the swab tested positive for saliva. The test which he undertook to test for the presence of saliva was a presumptive test, in the sense that it detected a compound called amylase which is found in human saliva. Mr Preston also made it clear that amylase will also be found in other bodily fluids, so that a positive result to the presumptive test is consistent with the presence of saliva, but is not only consistent with the presence of that substance. Mr Preston also gave evidence of having extracted DNA from the same swab. The profile of the DNA which was extracted was a mixed profile, meaning that the DNA extracted had come from more than one person. The applicant was not able to be excluded as the contributor of the major component of the DNA profile extracted from the swab. Mr Preston gave evidence that the likelihood ratio calculated by a comparison between the DNA profile of the major contributor and that of the applicant was at least 100 billion times more likely if the major component DNA originated from the applicant than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation.
The applicant is of Sudanese origin. The prosecutor at his trial questioned Mr Preston on the effect of the applicant’s origin upon the likelihood ratio. He accepted that it was likely that there would be a downward variation in the likelihood ratio but “we would still have a very, very high number”.
There was no application for the trial judge to exclude the evidence of Mr Preston as to the likelihood ratio based on either s 135 or s 137 of the Evidence Act 2011 (ACT). No reason why it should have been excluded was adequately articulated on the hearing of this application. It was suggested that there was some potential for prejudice to the applicant by use of the descriptor “major component”, because it may have suggested to the jury that the contributor of that component of the DNA profile must have been involved in the offence. In my opinion this suggestion is fanciful. A proper reading of the evidence of Mr Preston raises no concerns that his evidence may have been misinterpreted by the jury in this way.
There was a further submission made that the reception into evidence of the likelihood ratio with regard to the major component of the DNA was unfair, because no evidence was given by Mr Preston of a likelihood ratio with regard to the minor component of the DNA. This submission reveals a misunderstanding about the nature of the evidence given by Mr Preston. Mr Preston was able to exclude the applicant as being the contributor of the minor component and there was insufficient information available from the minor component for the purposes of comparison. He had nothing against which to compare the profile of the minor component so as to calculate a likelihood ratio.
There was also a submission that the Crown had acted unfairly by attempting to tender the report prepared by Mr Preston. It is unnecessary to consider this submission in detail, because the transcript reveals that the Crown did not pursue its application to tender his report. As such, no miscarriage of justice can have occurred.
With regard to proposed ground of appeal (e), it is fair to say that the trial judge did not address the jury on the possibility that the applicant’s DNA may have been found on the skin of FB due to transference of the DNA from the bed or bedding, or from some other source within the applicant’s house. It was submitted that it was to be expected that the applicant’s DNA would be found within his house, and there was a possibility that the DNA found on the swab taken from FB may have been transferred onto FB innocently. There was no cross examination of Mr Preston about the possibility of this occurring, or its likelihood. It may well be expected that had Mr Preston being cross-examined by a legal practitioner, questions may have been directed to him with a view to establishing that the applicant’s DNA could have been innocently transferred onto the body of FB, but this was not done. The failure of the applicant to raise this issue in the course of the trial does not mean that the trial was unfair.
It is appropriate at this juncture to consider what may arise from the fact that the applicant was not represented by a legal practitioner at his trial, although there is no longer a ground of appeal alleging that the applicant did not receive a fair trial because of this circumstance. As I have previously noted, the applicant was represented by the Legal Aid Office and experienced counsel until the commencement of his trial. On 3 March 2017, the applicant’s trial was due to commence before Mossop J. Prior to opening remarks to the jury, the applicant’s legal representative sought a short adjournment. Shortly after, his counsel and instructing solicitor sought leave to withdraw from acting for the applicant on the basis that the applicant had withdrawn his instructions. The applicant then applied for, and was granted, and adjournment to obtain new legal representation. The proceedings were adjourned to 6 March 2017. On 6 March 2017 the proceedings came before the Chief Justice. The applicant had not obtained legal representation. The Chief Justice determined that the trial was to commence on 8 March 2017. No affidavit evidence from the applicant has addressed the reason for him choosing to withdraw his instructions from his legal representatives on 3 March 2017. No affidavits from the applicant’s previous legal representatives were filed. The applicant was entitled to represent himself at his trial if he chose to do so: s 22 of the Human Rights Act 2004 (ACT). The fact that the applicant may have placed himself at a disadvantage in conducting his trial by withdrawing his instructions from his legal representatives does not mean that his trial was unfair. A fair reading of the transcript of the trial demonstrates that the Chief Justice provided appropriate assistance to the applicant during the course of the trial, and it is relevant to observe that none of the proposed grounds of appeal raise any issue about failure to provide appropriate assistance to the applicant.
Much of the hearing of the application was taken up by Mr Adut addressing the Court about perceived discrepancies between the evidence given by FB at trial, and prior statements made by her to police, medical witnesses and others. The presence of any such discrepancies is of limited relevance where the proposed grounds of appeal do not allege that the verdicts were unsafe or unsatisfactory. I will nevertheless record my conclusion that the applicant has little or no prospect of succeeding with regard to such grounds, were they to be pleaded.
Mr Adut spent some time addressing the Court on the issue of identification of the applicant as the offender. This was not an issue which was ventilated in the course of the applicant’s trial. The applicant gave evidence at trial that he entered the bedroom where FB was sleeping, and got into bed beside her. There was no one else in the room. He gave evidence that she later got up from the bed and went outside, following which Ms Owusu-Tieku entered the room and accused him of sexually harassing FB. At all relevant times, only the applicant and FB were in the bedroom. The case at trial was conducted on the basis that the events described by FB simply did not occur. The evidence given by the applicant established that he was the only person who had the opportunity to commit the offence, if the offence did in fact occur.
In my opinion, the applicant has no reasonable prospect of success if leave to appeal was granted.
In addition, the reasons given by the applicant for his failure to lodge an appeal within the time allowed were not compelling. There is no evidence that the applicant was denied legal aid for the conduct of his trial. There is no evidence that any legal advice given to him was incompetent. The fact that the applicant may face deportation as a consequence of the convictions and sentences is not an explanation for his failure to lodge an appeal within the prescribed period.
For these reasons, the applicant’s application for leave to appeal out of time should be dismissed.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: 8 May 2018 |
0