Colbung v The State of Western Australia
[2010] WASCA 217
•5 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 217
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 22 SEPTEMBER 2010
DELIVERED : 5 NOVEMBER 2010
FILE NO/S: CACR 82 of 2010
BETWEEN: ERIC DANIEL COLBUNG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND 1165 of 2009
Catchwords:
Criminal law - Leave to appeal against conviction - Alleged error in failing to make a declaration under s 189(3) of the Young Offenders Act 1994 (WA) - No application made on behalf of appellant - Appeal has no reasonable prospect of success
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Evidence Act 1906 (WA), s 31A
Young Offenders Act 1994 (WA), s 6(d)(iii), s 6(e), s 189(2), s 189(3), s 190(1), s 190(2)
Result:
Application for an extension of time within which to appeal is granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Harris v The State of Western Australia [2005] WASCA 147
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McLURE P: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: The appellant was charged on indictment with two counts of sexually penetrating DJD without his consent and one count of assaulting DJD and causing him bodily harm. These offences were alleged to have been committed on 13 December 2008. On arraignment, in the presence of the jury panel, he pleaded guilty to the charge of assault occasioning bodily harm. On 17 December 2009, after a four day trial in the District Court before Goetze DCJ and a jury, the appellant was acquitted of one charge of sexual penetration without consent but was convicted of the other. The appellant now seeks an extension of time within which to appeal and, if the extension is granted, leave to appeal against that conviction.
The appeal was filed some two months out of time and is explained by a delay in obtaining legal aid. I would grant an extension of time.
The appellant relies on one ground of appeal which, omitting particulars, is:
The presiding Judges' discretion miscarried when they failed to declare, pursuant to section 189(3) of the Young Offenders Act 1994 ('the Act'), that section 189(2) applied to the Appellant's previous convictions, such that inadmissible evidence was placed before the jury and the Appellant did not receive a fair trial.
This court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 27(1) and s 27(2). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Background
The appellant was born on 19 June 1990.
On 16 November 2007, the appellant pleaded guilty and was sentenced to 2 years' detention in the Children's Court for one count of assault occasioning bodily harm and one count of aggravated sexual penetration without consent. These offences were committed on 18 August 2007 (the 2007 offences).
The circumstances in which those offences occurred are as follows.
The appellant was at the Burswood Casino. He saw the victim, a male, sitting near the entry of the casino. The man was in an intoxicated state. The appellant offered to give the man a lift home, telling him untruthfully that his car was some distance away near a park. The appellant took the man to the park and assaulted him by punching him and kicking him numerous times. He forcefully removed the man's pants and underwear and pushed him onto his stomach. The appellant penetrated the man's anus with his penis. He then demanded that the man suck his penis. Before this occurred, the victim struck the appellant. He then managed to get away and return to the casino.
On 12 September 2008, the appellant was released from detention subject to a supervised release order. The sentence imposed on the appellant did not expire until 15 November 2009.
Prior to the discharge of the sentence for the 2007 offences, the appellant committed the offences for which he was convicted in the District Court (the 2008 offences), and which are the subject of these proceedings.
The facts relating to these offences are as follows.
The appellant and DJD had been socialising at a house in Quinns Rocks. Both men ended up in a park near the house. The appellant forcibly took DJD by his hair and ordered him to suck his penis. In fear, DJD complied.
DJD ran away from the appellant. Somehow the appellant had lost his glasses. The appellant went back to the residence where he had been socialising and, with others, returned to the park to search for his glasses. During that search, the appellant located DJD and twice punched him in the head. DJD fell to the ground following which the appellant kicked and punched him further. DJD suffered facial injuries which amounted to bodily harm.
The appellant was apprehended and charged not long after the commission of the offences.
Prior to the appellant's trial, the state advised the appellant's lawyer, Mr Sutherland, that it intended to adduce at his trial evidence of the circumstances of the 2007 offences.
At a trial listing hearing before Kennedy CJDC on 11 September 2009, the following exchange took place:
NEWTON-PALMER, MR: The second application is for a directions hearing to be listed. The State intends to lead evidence of two Children's Court convictions dated 16 November 2007. They're his only convictions.
KENNEDY CJDC: What date were they?
NEWTON-PALMER, MR: 16 November 2007.
KENNEDY CJDC: Just getting - - -
SUTHERLAND, MR: But they're not caught by section 186 - - -
KENNEDY CJDC: No, I'm just checking that. Yes all right.
SUTHERLAND, MR: What I'd like to do before that is listed for a directions hearing is get from the DPP the precise detail of what it is that they seek to lead, whether it's simply the conviction or whether there's some evidence about the events that led to the conviction. That's not clear at the moment.
KENNEDY CJDC: All right. Well, it's just that if we need to book a date ‑ ‑ ‑
SUTHERLAND, MR: We don't have a lot of time, I agree.
KENNEDY CJDC: Well, you don't appear to have. It's got to be before the 26th. I don't suppose you've got 30 September?
SUTHERLAND, MR: No, I don't get back until the 2nd.
KENNEDY CJDC: Of what?
SUTHERLAND, MR: October.
KENNEDY CJDC: We can give you the 15th?
SUTHERLAND, MR: 15th. Is that a 2.15 appointment or not?
KENNEDY CJDC: No. Well, we can make it 2.15.
SUTHERLAND, MR: And then if it's conceded then I - - -
KENNEDY CJDC: Yes. Let the listings know. So we'll list that at 2.15. So the trial now is 26 October and the directions hearing is at 2.15 on 15 October.
Mr Sutherland, in an affidavit sworn on 24 August 2010, said that his reference to 'section 186' of the Young Offenders Act 1994 (WA) (the Act) was intended to be a reference to s 189 of the Act. I accept this is so.
The directions hearing on 15 October 2009 was held before Martino DCJ. Mr Sutherland told his Honour that the question of the admissibility of the evidence had been resolved. During that hearing, the following exchange took place:
MARTINO DCJ: And this was listed because the parties were going to discuss some relationship or propensity evidence. That's been - - -
WILSON, MR: That's right.
MARTINO DCJ: - - - resolved, has it?
WILSON, MR: My friend, I think, wishes to - - -
MARTINO DCJ: Yes.
WILSON, MR: - - - make some comment to your Honour in that regard.
MARTINO DCJ: Thank you.
SUTHERLAND, MR: The State had indicated it wanted to lead it. I've come to the view that the evidence is admissible in the circumstances of this case. As I said to her Honour, Chief Judge Kennedy I was keen to get the precise detail of what it is. We've pretty much established what's going to be read to the jury.
MARTINO DCJ: Okay.
Mr Sutherland's statement that 'the evidence is admissible in the circumstances of this case' can only be understood as a concession on his part that the evidence of the 2007 offences was admissible pursuant to s 31A of the Evidence Act 1906 (WA). In light of the circumstances of those offences and their similarity to the 2008 offences, that concession was appropriate.
As foreshadowed by Mr Sutherland, at trial the prosecutor read to the jury a statement of facts with respect to the 2007 offences.
The appellant's submissions
Mr Watters submitted that Mr Sutherland had, in substance, before Kennedy CJDC, made an application for a declaration under s 189(3) of the Act when he referred to s 186. Accordingly, he said, the issue of the declaration was 'live' before Martino DCJ and Goetze DCJ. Each judge, it was argued, erred in failing to hear the application and then make the declaration. Implicit in these submissions is the assumption that special circumstances existed to justify the declaration and that, had the declaration been made, s 189(2) had the effect of preventing the state from leading any evidence about the circumstances of the 2007 offences at the appellant's trial.
The statutory framework
Section 189(2) and s 189(3) of the Act are as follows:
(2)If a young person is convicted of an offence and a period of 2 years has expired since -
(a)the discharge of any sentence imposed as a result of the conviction, or every sentence if more than one sentence was imposed; or
(b)the date of conviction, if no sentence that required to be discharged was imposed as a result of the conviction,
the conviction is not to be regarded as a conviction for any purpose, except as provided in this section.
(3)On the application of the person concerned the court, if it thinks that special circumstances exist, may declare that subsection (2) applies in relation to a conviction of a young person even though the period of 2 years mentioned in that subsection has not expired.
Consistent with the objectives of rehabilitation and reintegration in the community expressed in s 6(d)(iii) and s 6(e) of the Act, s 189(2) of the Act provides that, subject to certain exceptions, a young person is to be relieved of the consequences of a conviction after a period of two years has expired from the date of discharge of any sentence and, if no sentence was imposed, from the date of conviction. Section 189(3) gives the court the power to declare that s 189(2) applies even though the two year period has not expired, but only if, first, an application is made by the person concerned and, second, special circumstances justifying the declaration are established by that person. By its terms, a declaration under s 189(3) can only be made on the application of the person concerned. There is no power in the court to make an order on its own motion.
Although the appellant was an adult at the time he was being dealt with in the District Court and the offences for which he was charged were committed when he was an adult, the District Court nevertheless had jurisdiction to deal with any application under s 189(3). This is because the word 'court' in s 189(3) refers to the court exercising jurisdiction in respect of the offender at the time of the application: Harris v The State of Western Australia [2005] WASCA 147 [18].
At the time the appellant was tried, it is conceded that a period of two years had not expired since the discharge of the sentences imposed for the 2007 offences. In the absence of a declaration under s 189(3), s 189(2) did not apply to those convictions.
The fundamental difficulty which faces the appellant in this appeal is that there is no reasonable basis upon which it could be concluded that Mr Sutherland made an application for a declaration under s 189(3) when he said to Kennedy CJDC, '[b]ut they're not caught by section 186', even accepting that the reference to s 186 was a reference to s 189. The language he used is inconsistent with the making of any application and does not refer, even obliquely, to any proposed declaration. Section 189 was not raised at all by Mr Sutherland before Martino DCJ or Goetze DCJ. Had Mr Sutherland applied for a declaration under s 189(3) before Kennedy CJDC, it is inconceivable that he would have conceded that the evidence of the circumstances of the 2007 offences was admissible, as he did before Martino DCJ.
In the absence of any application on behalf of the appellant, the jurisdiction of the District Court to make a declaration was not enlivened. Consequently, it cannot be said that either Martino DCJ or Goetze DCJ erred in failing to make the declaration. This alone is sufficient to dispose of the ground of appeal.
However, assuming that an application had been made by the appellant under s 189(3), nothing was put before either judge which would have enabled them to conclude that special circumstances existed which justified the making of the declaration. The 2007 offences were very serious offences. At the time they were committed, the appellant was 17 years old and must have known that what he had done was wrong. No evidence was put before either judge as to any positive steps which the appellant had taken towards his rehabilitation. In my opinion, even if an application for a declaration under s 189(3) had been made, and the court's jurisdiction was enlivened, there was no basis upon which the court could have found that special circumstances existed.
As I observed earlier, the appellant's submissions assume that the effect of a declaration under s 189(3) would be to prevent the State from leading any evidence of the circumstances of the 2007 offences at trial. Whether this assumption is correct is a matter that is unnecessary to decide. In this regard two issues remain open. First, whether the prohibition in s 189(2) of the Act would prevent the prosecution leading evidence of an offender's conduct, if that evidence satisfied the requirements of s 31A of the Evidence Act. Second, whether s 190(1) of the Act would have allowed evidence of the convictions for the 2008 offences to be led. Section 190(1) provides:
If section 189 provides that a conviction of an offence is not to be regarded as a conviction, evidence of that conviction is not admissible in any proceedings, other than proceedings under this Act or on indictment for the offence or for a subsequent offence.
The precise issue is whether the proceedings for the 2008 offences were proceedings 'on indictment ... for a subsequent offence'.
Conclusion
The ground of appeal has no reasonable prospect of succeeding. Leave must be refused and the appeal dismissed.
Orders
1.The application for an extension of time within which to appeal is granted.
2.Leave to appeal is refused.
3.The appeal is dismissed.
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