Civello v The State of Western Australia
[2008] WASCA 4
•21 JANUARY 2008
CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 4 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:85/2007 | 19 OCTOBER & 17 DECEMBER 2007 | |
| Coram: | WHEELER JA | 20/01/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted in part | ||
| B | |||
| PDF Version |
| Parties: | PAUL CIVELLO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CIVELLO -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 4 CORAM : WHEELER JA HEARD : 19 OCTOBER & 17 DECEMBER 2007 DELIVERED : 21 JANUARY 2008 FILE NO/S : CACR 85 of 2007 BETWEEN : PAUL CIVELLO
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : IND 413 of 2006
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Leave granted in part
Category: B
Representation:
CACR 85 of 2007
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Fiocco's Lawyers
Respondent : Director of Public Prosecutions (WA)
CACR 86 of 2007
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Fiocco's Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 4)
1 WHEELER JA: These are applications for leave to appeal against conviction and against sentence. I would grant leave in relation to the appeal against sentence (CACR 986/2007).
2 So far as conviction is concerned, there were six proposed grounds of appeal. There was also an application for an order requiring one Corey Graham to be required to attend and give evidence for the purpose of determining the appeal. I heard argument about that application on 19 October 2007 and gave leave for the filing of additional materials in respect of it. Having then determined that that application should be refused, with the result that proposed ground 6 cannot succeed, I heard argument on 17 December relating to the other grounds. These reasons deal with the application in respect of Corey, and the proposed appeal generally.
3 The application in relation to Corey Graham arose in the following way. The appellant's conviction arose out of a police "raid" in August of 2005. It was the appellant's evidence at trial that Corey Graham had stayed with him on the night preceding the police raid. He said that when he woke on the morning of the raid he noticed that Corey had already left the unit. He said that shortly thereafter Corey telephoned him and requested that he bring a cooler bag down with him and give it to Corey. The cooler bag was searched by police, as the appellant was taking it to Corey, and to the appellant's surprise was found to contain bags of amphetamine and bulking agent. He said at trial that he had last spoken to Corey some three days after the police raid and had not been able to locate him since.
4 Some time after trial, it appears that the appellant's de facto, one Ms Butko, had obtained a mobile telephone number for Corey. The number was provided to the appellant's solicitors and they contacted him and arranged a conference with the appellant's counsel. An affidavit sworn by a legal secretary at the appellant's lawyers stated that Corey's position in the conference was "equivocal" concerning his involvement with the items in the cooler bag. It was the secretary's opinion that from Corey's "body language" and from what he had said, that he was concerned for his own safety.
5 The material in the affidavit provided by the legal secretary afforded no reason for believing that Corey Graham could give evidence relevant to the appellant's appeal. I therefore gave leave for a fuller affidavit setting out a more detailed account of what Corey had said, to be filed. It appears that about 75% of the conference was recorded on a dictaphone,
(Page 5)
- and it appears from a further affidavit of the same secretary that Corey was aware of the recording. I have read a transcript of it.
6 When first asked about what he knew of the drugs in the appellant's unit, Corey gave an almost unintelligible answer, the theme of which was that it was wrong for someone to put someone else "in this position because of their own stupidity". The discussion is equally open to the interpretation that Corey had put the appellant in some sort of position because of Corey's stupidity or that the appellant had put Corey in some position because of the appellant's stupidity. However, he concluded that rambling answer with the words, "You're asking me to go out on a limb for someone when it's got nothing to do with me." Told directly that the appellant said the drugs were Corey's, the latter responded that that is a "big accusation". There is a point during the discussion at which it appeared that he was interested in learning what his position would be if he were to give evidence to the effect that the drugs were his. His questions again are open to interpretation: they could be the questions of a person whose conscience was bothering him, or they could be the questions of someone who was considering involving himself in what he saw as a dishonest attempt to reverse the appellant's conviction by the giving of perjured evidence. However, that part of the discussion concludes with Corey suggesting that "a lot of people have been watching too many movies". When directly asked whether he was saying that he had not put the drugs in the flat, his response is "No, I fuckin' didn't, mate."
7 There is no reason to believe, based upon the transcript of the appellant's counsel's conference with Corey Graham, that Corey Graham would give evidence in support of the appellant's appeal to the effect contended for by the appellant, that is, that the drugs belonged to Corey and not to the appellant. I would therefore dismiss the application to rely upon any evidence relating to Corey Graham and to require Corey Graham to give evidence in the appeal. Ground 6, which relies upon speculation about what the evidence of Corey Graham might be, cannot succeed in the light of that refusal and leave must therefore be refused in relation to ground 6.
8 So far as the remaining grounds are concerned, ground 3 was not pressed. It does not have a reasonable prospect of success, and I would not grant leave in relation to it.
9 Ground 2 suggests that his Honour was in error in saying, at 651 of the transcript, in his direction to the jury:
(Page 6)
- Thirdly, even if you don't believe what the accused has said to you in his evidence, if you don't believe his evidence, then you have to put his evidence to one side and have regard to the other evidence in determining whether or not you are satisfied beyond reasonable doubt, as to whether any or some of these charges have been proved beyond reasonable doubt.
10 The submission was made that his Honour should have told the jury that even if they positively disbelieved the appellant, they could not convict unless satisfied beyond reasonable doubt on "the whole of the evidence"; that is, on all of the evidence including the appellant's evidence. The submission is made that what his Honour said was not an "orthodox" direction. Although the appellant's counsel had some difficulty in articulating precisely what was wrong with it, as I understand it, it is submitted that even if the jury positively disbelieved the appellant's evidence, that evidence might give rise to a reasonable doubt and so his Honour should not have given the jury a direction suggesting that if they positively disbelieved the appellant, they should set his evidence to one side.
11 It seems to me that the structure of what his Honour did say to the jury was, however, logical and consistent with the proper approach to the evidence of an accused person. Before the passage complained of, his Honour said that, of course, if they believed the evidence of the appellant they must acquit him. His Honour went on to say that, secondly, if they found difficulty in accepting his evidence but thought it might be true or that they might think that what he had said was true, then they had to acquit. His Honour then said, "If you have a reasonable doubt you must acquit." His Honour then uttered the sentence complained of.
12 There are only three possible ways in which a jury could approach the evidence of an accused person. They might accept it as true or probably true and then they would, of course, acquit. They might not accept it, but might think, as his Honour put it, that it "might be true" or that they "might think that it might be true". I understand, and it seems to me that the jury would have understood, his Honour as saying that if the jury considered that there was some possibility that what the appellant said might be true, even if they did not actually believe it, then they should acquit. If they did not believe the appellant at all (that is, in context, if there was no possibility that his evidence was true) then they would have to have regard to all of the other evidence in determining whether they have been satisfied beyond reasonable doubt of the appellant's guilt. In that context, in my view, to have gone on and suggested to the jury that if they positively disbelieved the appellant's evidence they should nevertheless consider it as capable of giving rise to a
(Page 7)
- reasonable doubt, makes no sense. Ground 2 has no reasonable prospect of success and I would not grant leave in respect of it.
13 Ground 4 complains of a direction his Honour gave about the drawing of inferences. It is submitted that his Honour should have directed the jury that there was a "reasonable hypothesis" consistent with the appellant's innocence, namely that it was Corey's cooler bag and the appellant was taking it down to him as Corey had requested. This is not, however, an inference issue at all. The appellant gave direct evidence that it was Corey's and that Corey had requested that the appellant take it to him. A direction along these lines would have been apt to confuse the jury about what an inference was and how it could be drawn. This ground has no reasonable prospect of success. I would refuse leave in relation to it. However, it emerged during the course of oral submissions before me that the appellant may wish to raise his Honour's failure to refer to the appellant's evidence about Corey, at a particular point in his Honour's direction, as part of the general lack of balance in his Honour's direction of which ground 1 complains. The refusal of leave in relation to this ground does not, of course, preclude the appellant from raising the direction given at this point, in relation to ground 1.
14 Ground 5 does appear to have a reasonable prospect of success. Whether, if it were ultimately successful, that would have any consequence in terms of setting aside the appellant's conviction, is another question in the light of a view apparently taken by the appellant's own counsel concerning the significance of the allegedly inadequate direction. However, that is not a question to be determined on a leave application, and I would grant leave in relation to ground 5. The submissions made in support of ground 1 do not persuade me that that ground has a reasonable prospect of success. However, the ground raises the issue of an allegedly unbalanced direction. In some cases it is possible to deal with that issue at a leave application. Having regard to the complexity of the evidence in this case, however, it seems to me that the preferable course is to refer it to the Court of Appeal to be heard together with the appeal.
Conclusion and orders
15 In relation to CACR 85/2007, I would therefore:
• grant leave in relation to ground 5;
• refer the question of leave to be heard together with the appeal in relation to ground 1;
(Page 8)
- • direct that this appeal be heard together with the appeal against sentence CACR 86/2007 in respect of which I have granted leave;
• refuse the appellant's application to call Corey Graham as a witness;
• refuse leave in relation to grounds 2, 3, 4 and 6;
• discharge the orders forbidding publication in relation to the applications concerning Corey Graham which were made on 19 October 2007.
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