CGF v The State of Western Australia
[2019] WASCA 206
•23 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CGF -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 206
CORAM: BUSS P
MURPHY JA
MAZZA JA
HEARD: 18 DECEMBER 2019
DELIVERED : 18 DECEMBER 2019
PUBLISHED : 23 DECEMBER 2019
FILE NO/S: CACR 186 of 2019
BETWEEN: CGF
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAVRIANOU DCJ
File Number : GER IND 119 of 2018
Catchwords:
Criminal law ‑ Criminal procedure ‑ Preliminary appeal ‑ Competency
Legislation:
Criminal Appeals Act 2004 (WA), s 3, s 26, s 30
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allbury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
DKA v The State of Western Australia [2017] WASCA 44
WCM v The State of Western Australia [2015] WASCA 55
REASONS OF THE COURT:
On 18 December 2019, at the conclusion of the hearing, we dismissed the appellant's appeal on the basis that the appeal was incompetent. We said that reasons for decision would be published later. These are our reasons.
Background
The appellant was originally charged on two indictments in the District Court, each dated 24 April 2019, with numerous counts of sexual offending against three complainants.[1]
[1] By an application of the State dated 10 June 2019, indictment GER 119 of 2018 dated 24 April 2019 was replaced by a new indictment GER 119 of 2018 dated 7 June 2019, which incorporated various minor amendments and corrections.
Indictment GER 119 of 2018 contained 19 counts of sexual offending against two complainants, MF and ED. The alleged offending occurred between 20 December 1983 and 21 December 2002. Counts 1 to 15 on that indictment relate to MF, who is the appellant's biological daughter, and counts 16 to 19 relate to ED, who is a daughter of a family friend. MF was aged between 5 and 13 years when the conduct the subject of counts 1 to 10 is alleged to have occurred, and was aged between 16 years and her early 20s when the remaining counts against her are alleged to have occurred. ED was aged between 10 and 12 years when the offending against her is alleged to have occurred. The alleged offending against these two complainants included various counts of unlawful and indecent dealing and of sexual penetration without consent.
Indictment GER 127 of 2018 contained four counts of alleged sexual offending against one complainant, EF, and one count of possession of child exploitation material. The counts of alleged sexual offending against EF occurred in June 2017 and on 1 February 2018, and included sexual penetration of a child under the age of 16 years, and procurement or encouragement of a child under the age of 16 years to do an indecent act. EF is the appellant's granddaughter.
The trial is listed to commence on 2 November 2020.[2]
[2] ts 244.
The various applications in the District Court
The State made various applications in the District Court, as follows:
1.Application dated 24 April 2019 for, amongst other orders, the evidence of EF to be recorded at a special hearing;
2.Application dated 1 July 2019 to lead evidence of conduct relating to a prior conviction (GER 7 of 2002);
3.Application dated 3 July 2019 to merge indictments GER 119 of 2018 and GER 127 of 2018;
4.Application dated 10 September 2019 for, amongst other orders, MF to be declared a special witness;
5.Application dated 10 September 2019 for, amongst other orders, ED to be declared a special witness;
6.Application dated 10 September 2019 for, amongst other orders, the evidence of MF to be recorded at a special hearing; and
7.Application dated 10 September 2019 for, amongst other orders, the evidence of ED to be recorded at a special hearing.
By an application dated 31 May 2019, the appellant applied in the District Court for an order, in effect, severing the charges in respect of each complainant and the charge of possession of child exploitation, resulting in four separate trials. This application was supported by an affidavit sworn 24 June 2019.
Each application was opposed by the other party.[3]
[3] ts 186.
Relevant orders made by Stavrianou DCJ
On 14 October 2019, Stavrianou DCJ heard submissions from both parties in relation to the applications outlined at [6]‑[7] above. Both parties filed written submissions prior to the hearing.
On 24 October 2019, his Honour delivered judgment with reasons on those applications and, relevantly, made orders as follows:
1.Orders in terms of the State’s application for a merger of the two indictments, so that there is one indictment (GER 119 of 2018, dated 3 July 2019),[4] containing the 24 counts alleged in the two previous indictments and one further count (an ex officio charge alleging sexual penetration of MF, which became count 13 on the new indictment);[5]
2.MF be declared a special witness;[6]
3.ED be declared a special witness;[7]
4.The evidence of EF, MF and ED be recorded at a special hearing.[8]
5.The appellant’s application, dated 31 May 2019, for severance and separate trials be dismissed.[9]
[4] Indictment GER 119 of 2018 has since been amended again, and a new indictment GER 119 of 2018 dated 6 November 2019 has been tendered by the State and accepted by the District Court.
[5] ts 209, 215.
[6] ts 216.
[7] ts 216.
[8] ts 214.
[9] ts 212.
The primary judge also granted the State's application in relation to leading evidence of a prior conviction (GER 7 of 2002) only in relation to counts 17 and 18.[10] The appellant does not by his appeal notice directly challenge this ruling. However, the appellant in his written submissions does express 'concerns about the admissibility and cross-admissibility of evidence as some of these relate to only two of the 25 counts', and the appellant submits that the propensity evidence does not have significant probative value.[11] It is unclear whether the appellant refers here to the admissibility of the prior conviction, or the cross-admissibility of evidence in relation to separate counts on the merged indictment (which his Honour also made rulings about on 24 October 2019), or both.
[10] ts 213.
[11] Appellant's written submissions, page 2.
The appeal
On 11 November 2019, the appellant attempted to file with the Court of Appeal Office an appeal notice accompanied by a letter dated 9 November 2019. The Court of Appeal Office wrote to the appellant informing him that the appeal notice had not been accepted for filing as it was incomplete.
On 26 November 2019, the appellant filed an appeal notice indicating he required an extension of time within which to appeal. In his appeal notice, the appellant seeks leave to appeal against the following orders of the primary judge made on 24 October 2019:
1.Pre recording [sic] of 3 complainants.
2.Special witness status for 2 complaints [sic].
3.Merging/joiner [sic] of 2 indictments.
On 26 November 2019, the appellant filed an affidavit sworn 18 November 2019 in support of his application for an extension of time to appeal. The appellant seeks an extension of time on the basis that:
I am self represented residing at Casuarina Prison. I was unaware my appeal fell under s 26(5) and needed to be lodged within 7 days instead of the usual 21. The orders I'm contesting were handed down 24/10/19, I received the transcript 30/10/19. I immediately sought the paper work to appeal. That arrived 8/11/19 and I lodged it 9/11/19 alas 9 days outside the allotted time limit.
On 3 December 2019, a registrar's notice to attend informed the parties that the appeal had been listed for hearing on 18 December 2019 to consider whether the appeal was competent.
On 6 December 2019, the appellant filed written submissions in support of the competency of the appeal. The appellant, in effect, submitted that:
1. The appeal is sought to 'head off any chance of a miscarriage of justice' that may arise through admitting evidence which could result in potential prejudice because the indictment contains three separate complainants with multiple serious sexual offences and one charge of possessing child exploitation material.[12]
2.The appellant was under the impression, from the District Court hearing, that there were only two separate incidents and that directions to the jury would neutralise any prejudice hence avoiding an unfair trial.[13]
3. The propensity and/or similar fact evidence is not of significant probative value and if admitted may result in a miscarriage of justice.[14]
4. If the indictment remains joined, the appellant is likely to suffer prejudice resulting from the evidence of each complainant in respect of the charges which are all of a sexual nature. No directions would be sufficient to cure the highly prejudicial nature of such evidence.[15]
[12] Appellant's written submissions, page 1.
[13] Appellant's written submissions, page 1 - 2.
[14] Appellant's written submissions, page 2; citing DKA v The State of Western Australia [2017] WASCA 44 [50] ‑ [51].
[15] Appellant's written submissions, page 2.
The appeal is incompetent
We are satisfied that the appeal is incompetent.
An appeal is a creature of statute. Unless there is a relevant statutory power, this court has no power to hear or determine an appeal. See Allbury v The Corruption and Crime Commission.[16]
[16] Allbury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2], [80].
Save for the common law offence of criminal contempt, criminal appeals in this State are governed by the Criminal Appeals Act 2004 (WA). That statute is to be read with the Criminal Procedure Act 2004 (WA). See s 3 of the Criminal Appeals Act.
There is no statutory right of appeal against the primary judge’s orders in relation to pre‑recorded evidence and declarations of special witnesses.
Although the appellant had a right of appeal under s 26 of the Criminal Appeals Act against the primary judge's dismissal of his application for severance and separate trials, the appellant did not commence his appeal under s 26 within the time prescribed by s 26(5). This court does not have power to grant an extension of time for the appellant to appeal under s 26. See WCM v The State of Western Australia.[17]
[17] WCM v The State of Western Australia [2015] WASCA 55 [23] - [33].
Save for s 26, the Criminal Appeals Act 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. See WCM [22]. However, orders of that kind are not beyond appellate review. If convicted, an offender may appeal against conviction under s 30 of the Criminal Appeals Act on the basis of a wrong decision on a question of law or on the basis that a miscarriage of justice has occurred.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss23 DECEMBER 2019
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