Cuijpers v Sander [No 2]
[2009] WASCA 84
•12 MAY 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CUIJPERS -v- SANDER [No 2] [2009] WASCA 84
CORAM: PULLIN JA
BUSS JA
HEARD: 5 DECEMBER 2008 & 13 MARCH 2009
DELIVERED : 12 MAY 2009
FILE NO/S: CACR 74 of 2008
BETWEEN: FREDERIK JOHAN CUIJPERS
Appellant
AND
PAUL DOUGLAS SANDER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MILLER JA
Citation :CUIJPERS -v- SANDER [2008] WASCA 159
File No :CACR 74 of 2008
Catchwords:
Appeal - Application to review decision of single judge of appeal - Appellant convicted by magistrate of breaching a restraining order - Whether single judge erred in striking out grounds of appeal on the basis they had no reasonable prospect of success - Whether single judge erred in dismissing applications to adduce additional evidence and some subpoenas - Turns on own facts
Legislation:
Nil
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Appellant: In person (5 December 2008)
:Mr S B Watters (13 March 2009)
Respondent: Mr C S Bydder
Solicitors:
Appellant: In person (5 December 2008)
:D G Price & Co (13 March 2009)
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AD v The State of Western Australia [No 2] [2007] WASCA 207
Barry v The State of Western Australia [2007] WASCA 12
Beamish v The Queen [2005] WASCA 62
Cuijpers v Sander [2008] WASCA 159
Cuijpers v Thompson [2008] WASC 95
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 15
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Heaton v The State of Western Australia [2008] WASCA 32
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Lancaster v The Queen [1989] WAR 83
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Lawless v Turner [2007] WASCA 127
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
PULLIN JA: I agree with Buss JA.
BUSS JA: On 23 April 2008, McKechnie J heard and determined two applications by the appellant for leave to appeal. See Cuijpers v Thompson [2008] WASC 95.
In SJA 1008 of 2008, the appellant sought leave to appeal against the making of a misconduct restraining order in respect of him. The restraining order was made on 15 September 2003 on the application of the appellant's former girlfriend (AB 194). I will refer to his former girlfriend as JCK. On 24 October 2003, the restraining order was served on the appellant personally (AB 279). It took effect on that date (AB 312). Later, after events which occurred on 8 October 2004, an extension of the restraining order was granted by Magistrate Burton (AB 240, 243 ‑ 244, 256, 257).
In late June 2007, JCK died [3], (AB 152).
The application for leave to appeal against the making of the restraining order (that is, SJA 1008 of 2008) was incompetent. The right of appeal was to the District Court. See s 64(2) of the Restraining Orders Act 1997 (WA) read with Pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). McKechnie J therefore dismissed the application.
In SJA 1007 of 2008, the appellant sought leave to appeal against his conviction by Magistrate Lane on three counts of breaching the restraining order. The convictions were entered on 18 August 2005 [1]. The appeal notice was not filed, however, until 6 February 2008 (that is, nearly 2 1/2 years out of time) [1], [4].
McKechnie J dismissed the application for leave to appeal against conviction. His Honour held that there was no reasonable prospect of success on any of the proposed grounds of appeal [27]. Also, the appellant's lengthy delay was largely unexplained [27] ‑ [29].
The appellant then made application for leave to appeal to this court from McKechnie J's dismissal of his application for leave to appeal against conviction (that is, SJA 1007 of 2008).
On 22 July 2008, the application for leave to appeal to this court was called on before Miller JA to consider whether the appellant's draft grounds of appeal should be struck out under r 43(2)(f) of the Supreme Court (Court of Appeal) Rules 2005 (Court of Appeal Rules).
Rule 43(2)(f) confers on a single judge of appeal jurisdiction to strike out any ground of appeal that does not have a reasonable prospect of succeeding.
Also, on 22 July 2008, five applications by the appellant were before Miller JA. Details of these applications are set out in his Honour's reasons (Cuijpers v Sander [2008] WASCA 159):
The first (6 June 2008) is for an order seeking certain information pursuant to the Freedom of Information Act 1992 (WA). The application is in the following terms:
The applicant applies for orders sought from the Office of Freedom of Information for the following disclosure,
Interviews and content of interview by Constable Paul Sander with 2 persons of interest (Kay/Judy) in relation to a complain laid on or abut the 7th May 2004 by J C Keeler and or writing to the persons and seek approval for the disclosure from them to the applicant.
Interview by Constable Paul Sander with F Cuijpers on the 5th August 2004 in relation to breach of mro and a letter from Moncrieff Realty.
Interview by Police with F Cuijpers in relation to a complaint by J C Keeler in August 2004 relating to attending to a gate repair.
The second (10 June 2008) is an application which is in the following terms:
The applicant applies for; A subpoena to compel past and present owners of [the property] to provide the appellant with original documents bearing the signature of S Moncrieff our former corporate body manager for the purpose of conducting further examination of the signature of the said person.
The third (14 July 2008) appears to relate to much the same subject matter as the second. It is in the following terms:
The applicant applies for A subpoena to be issued to Ms Rachael Tiede formally [sic] employed by Moncrieff Realty … to attend The Supreme Court on the 22nd day of July 2008 for proceedings in CACR/74/2008 under criminal procedures act 2004 section 162 and or criminal appeals act 2004 section 40(1)(a)to(e) and (f)(g) if applicable and
Compel witness in oral evidence to section 73A of the evidence act 1906 to answer to
The surveillance devises act 1998 section 28
Answer to recording content section 79f of s5.
The fourth (14 July 2008) relates again to the same subject matter. It is in the following terms:
The applicant applies for, A Subpoena to be issued to Ms Sabina Moncrieff … to attend the Supreme Court on the 22nd day of July 2008 for proceedings of CACR/74/2008 with the company mail book disclosing entries relevant to 16th July 2004 under section 159(1)(a)(i)(ii) of the criminal procedure act 2004 and or Criminal appeals act 2004 section 40(1)(a)(b)(c)(i)(ii) (e)(e) and section (f)(g) if applicable.
The fifth (also dated 14 July 2008) is in the following terms:
The applicant applies for - A subpoena to be issued to Steven Blyth of Lewis Blyth and Hooper for examination of knowledge of a letter addressed to the appellant dated 16th July 2004 he received a copy of from Moncrieff Realty and related matters of hearing PE 1971/04 at the supreme court on Tuesday 22 July 2004
Pursuant to the criminal appeals act 2004 section 40 [31] ‑ [35].
On 29 July 2008, Miller JA held that none of the draft grounds of appeal had a reasonable prospect of succeeding [29]. He ordered that they be struck out. His Honour also held that, in view of his decision in relation to the draft grounds, it was unnecessary to consider any of the five applications. Each of them was dismissed [36].
The appellant has applied for a review of Miller JA's decision.
Some background facts
The appellant and the complainant, JCK, had been in a relationship for about 3 1/2 years (AB 197). They had never lived together, except for a brief period of two weeks in 2002 (AB 226 ‑ 227). On 1 April 2003, the relationship ended and on 2 June 2003, JCK moved to a unit in a block of residential units in Shelley, a suburb of Perth, to 'get away from' the appellant (AB 197 ‑ 198). About two months later, in August 2003, the appellant moved to the unit next door to JCK (AB 196, 198).
The restraining order prohibited the appellant from:
(a)communicating or attempting to communicate with JCK;
(b)entering JCK's unit;
(c)going within five metres of the front entrance to her unit; or
(d)going within five metres of her (AB 195, 312 ‑ 313).
In January 2004, the appellant commenced employment as a casual maintenance worker with the strata company constituted under s 32 of the Strata Titles Act 1985 (WA) in respect of the strata scheme applicable to the block of units where he and JCK lived (AB 201, 210 ‑ 211, 280). By letter dated 16 July 2004 (AB 117), Moncrieff Realty (the manager of the block of units) requested the appellant not to carry out any gardening or maintenance on the common property adjacent to JCK's unit. The appellant asserted at the trial that he did not receive this letter (AB 229, 231, 318 ‑ 319).
The alleged breaches of the restraining order
It was alleged that the appellant had breached the restraining order on three occasions, namely:
(a)on 18 August 2004, by coming within five metres of JCK's front door, while carrying out maintenance work where JCK resided, by mulching her garden;
(b)on 8 October 2004, by coming within five metres of JCK at the Broadwater Hotel at about 9 pm; and
(c)on 8 October 2004, by coming within five metres of JCK, and asking her to dance, at the Broadwater Hotel at about 10 pm (AB 203 ‑ 204, 305 ‑ 306).
Evidence relating to the first breach
JCK said in evidence that she had been away from her home unit on the morning of 18 August 2004 (AB 196). On returning, she found her garden (which was part of the common property) 'buried in mulch' (AB 196). She said all of her garden was covered in mulch (AB 197, 236 ‑ 237, 257). It was up to a foot deep in places (AB 257). The garden ran the length of her lounge room wall, and was within five metres of her front door (AB 196).
According to JCK, she had informed Moncrieff Realty of the restraining order and had been told by Sabina Moncrieff of Moncrieff Realty that, by letter dated 16 July 2004, the appellant had been instructed that the restraining order prevented him from working on JCK's unit and he should not do so (AB 199, 201). Also see JCK's answer in cross‑examination at AB 216, 221.
JCK gave evidence that when she returned home on 18 August 2004, she saw the appellant at a distance (AB 199, 201). She yelled at him that he knew he was not supposed to touch her garden. JCK added:
That was the agreement in the letter from Sabina Moncrieff from Moncrieff Realty who looked after our complex (AB 201).
The prosecutor called Kyoungok Lee as a witness. As at 18 August 2004, Ms Lee was residing at a unit in the block of units in question (AB 258). She gave evidence of a conversation she had with the appellant:
PROSECUTOR: Okay. Now, you've had a conversation with Fred [the appellant]?‑‑‑Yes.
And what was - - explain that conversation to the court?‑‑‑Yes. He said, 'Sorry about earlier on, what happened.'
Yes?‑‑‑And he had a bit of an argument with his neighbour, which is [JCK].
Yes?‑‑‑And the reason is that he touched her garden while she was out.
Okay?‑‑‑And he said that because he want to make a uniformed [sic] garden in that complex. That's the only one reason he touched her garden. And he said he received a letter from strata not to touch her garden, but he just want to make a uniformed [sic] garden, that's why he touched her - - her garden (AB 259 ‑ 260).
The appellant acknowledged in evidence that he was aware his employment by the strata company did not authorise him to breach the terms of the restraining order (AB 214). He admitted mulching the garden on the morning in question (AB 236). However, he said he did so without coming within five metres of JCK's front door. In particular, he shovelled the mulch into the garden bed and then raked the mulch around the plants. He said that in one part of the garden bed he left the mulch in a heap (AB 281, 282, 288). The appellant denied having entered within five metres of JCK's front door (AB 291, 294), and he denied having mulched all of the garden bed (AB 293, 294). According to the appellant, the whole of the garden bed was not within five metres of her front door (AB 294).
The appellant's main focus, in cross‑examining JCK and Ms Lee, was the veracity of statements made in relation to the letter dated 16 July 2004 (AB 216 ‑ 231, 261, 263). On the appellant's application, a mail book of Moncrieff Realty had been subpoenaed. Magistrate Lane refused to accept the mail book as an exhibit (AB 218, 220, 310). She held it was irrelevant to the first alleged breach because the issue was whether the appellant had entered within five metres of JCK's front door, and not whether he had received notice from the manager that he must not do so (AB 313 ‑ 315). The appellant had been served with the restraining order and was aware of the limitations it imposed (AB 312 ‑ 313).
Evidence relating to the second breach
JCK said in evidence that at the material time (that is, on 8 October 2004 at about 9 pm) she was standing in the Broadwater Hotel, next to a post, facing the bar (AB 203 ‑ 204). A friend, Shelley Hanson, was standing on an angle in front of JCK, facing her (AB 203). Ms Hanson said, 'No, Fred', and this caused JCK to turn around. She saw the appellant, who was 'right behind [her]', walk away (AB 203).
Ms Hanson gave evidence to the effect that at the material time she was standing on an angle to JCK, who was facing the bar (AB 264). She saw the appellant approach JCK from behind and gesture as if to grab her (AB 264 ‑ 265). When Ms Hanson spoke to the appellant he stopped and walked away (AB 265).
The appellant put to JCK in cross‑examination that she did not, in fact, see him approach and that she did not remember the incident. JCK replied that she had 'total recall' (AB 242). The appellant appeared to assert that the incident was a recent invention because JCK had not mentioned it at a hearing before Magistrate Burton, on 4 March 2005, in relation to extending the restraining order (AB 243 ‑ 244, 256, 257).
The appellant suggested to Ms Hanson that she had lied at the hearing on 4 March 2005. Ms Hanson rejected the suggestion (AB 273). The appellant also put to Ms Hanson that:
(a)at the material time, he had walked past and seen her, but not JCK, and that Ms Hanson had waved to the appellant and gestured that JCK was next to her;
(b)the appellant had then put his hands up in a 'strangling motion', to which Ms Hanson responded with a smile;
(c)at no time did the appellant speak to Ms Hanson, nor had JCK given evidence of hearing any conversation between himself and Ms Hanson (which is incorrect: see AB 203 ‑204) (AB 273 ‑ 274).
Ms Hanson denied the appellant's version of events (AB 274).
The appellant gave evidence to the effect of the version of events he put to Ms Hanson in cross‑examination (AB 284 ‑ 285). He admitted, however, to being, at one point, within five metres (in fact, about three metres) of JCK as he approached Ms Hanson (AB 296). At the time JCK was hidden by a post. The appellant said that, upon becoming aware that JCK was with Ms Hanson, he moved away (AB 285, 296). He denied that he continued to approach both women after he became aware of JCK's presence (AB 301 ‑ 302).
Evidence relating to the third breach
JCK said in evidence that on 8 October 2004 at about 10 pm, the appellant approached her on the dance floor at the Broadwater Hotel, tapped her on the arm and said, 'come and have a dance' (AB 204). Ms Hanson gave similar evidence (AB 266). The appellant put to JCK in cross‑examination that the incident in question did not occur. Rather, he suggested, it was something that JCK wished had occurred. Also, he put to her that she had requested friends to give evidence about the alleged incident, and they had refused. The appellant also suggested that JCK had not raised this incident at an earlier hearing. JCK denied the appellant's suggestions (AB 247 ‑ 250, 257).
The appellant's evidence was that the alleged third breach had not occurred (AB 285). He asserted that JCK and Ms Hanson were 'in cahoots' and had fabricated the incident 'to get back at [him]' (AB 302).
The magistrate's decision and reasoning
The charges against the appellant were heard before Magistrate Lane on 18 August 2005. After hearing the evidence and submissions, her Honour delivered judgment immediately.
The magistrate noted the appellant's concession that he had been served with the restraining order and, as a result, the only issue, in relation to each charge, was whether he had breached the order (AB 190, 234).
The magistrate made findings, as follows:
Now, the evidence of [JCK], I find that I accept her evidence to be entirely credible and reliable. She impressed me as being a very reliable witness.
The evidence of Ms Lee, I found her evidence to be entirely credible and reliable and I accept her evidence entirely.
The evidence of Ms Hanson, I accept her evidence to be entirely credible and reliable and where there is a dispute between her evidence and the [appellant's] evidence, I believe her evidence.
Where there is a dispute between Ms Lee's evidence and the [appellant's] evidence I believe her evidence.
Where there is a dispute between [JCK's] evidence and the [appellant's] evidence, I believe [JCK's] evidence.
Turning to the [appellant's] evidence, I found him to be an unmitigated liar (AB 318 ‑ 319).
Her Honour concluded:
Therefore, I find the charges proven on the criminal standard, which is beyond reasonable doubt and I enter a conviction against [the appellant] in relation to the three charges before the court (AB 319).
The appellant was fined $200 for the first breach, and $300 for each of the second and third breaches (AB 323).
The appellant's grounds of appeal before McKechnie J
The grounds of appeal before McKechnie J were these:
1.Court records of [defence] documents namely a letter dated 16 July 04 was tendered and recorded by Police as a tendered [defence] document but not listed in court exhibit list.
2.With new and existing evidence prove the 16 July letter is fraudulent that Police witnesses testified to.
3.Magistrate [Lane's] refusal to return my transcript during the lunch interval prevented myself from locating and cross-examining witness on conflicting evidence from the mro hearing ie her evidence of being mailed a copy letter during police hearing and saying during mro she picked it up.
see more grounds with affidavit enclosed
The 'affidavit enclosed', referred to in ground 3, was sworn 22 January 2008 (the SJA Affidavit: AB 124 ‑ 130). It set out some events which had occurred since the hearing before Magistrate Lane. In the affidavit, the appellant emphasised inquiries and investigations he had made in relation to the letter dated 16 July 2004 from Moncrieff Realty. The appellant reiterated that he had never received this letter. Also see the appellant's other affidavit of 22 January 2008 (AB 114 ‑ 116).
McKechnie J's reasoning
McKechnie J held that the letter appeared to have 'very limited relevance' [5]. His Honour also held there was no evidence (as contended by the appellant) that the letter was a forgery [6] ‑ [7]. According to his Honour, the letter went principally to credibility in relation to the first alleged breach, and 'limited credibility at that' [13]. The letter did not have any bearing on the second and third alleged breaches [13]. Grounds 1 and 2 were without merit [27].
As to ground 3, McKechnie J found that during an adjournment in JCK's evidence, JCK was allowed to inspect the transcript of an earlier hearing. The appellant wished to put to JCK certain parts of her evidence at the previous hearing. According to the appellant, JCK was making inconsistent statements, and he required her to find consistent statements in the transcript of the earlier hearing. After the adjournment, JCK asserted that she had not been provided with the whole of the transcript and, as a result, she could not comply with the appellant's request. The matter was not further pursued by the appellant at trial. See McKechnie J's reasons at [14] ‑ [19].
During the adjournment discussed in McKechnie J's reasons, which was a short adjournment in the morning (AB 252), JCK had the transcript of the earlier hearing. The appellant's complaint in ground 3 refers to the luncheon adjournment. It appears, however, from the transcript of the hearing before McKechnie J, that the appellant's complaint related to the adjournment discussed in his Honour's reasons and not to the luncheon adjournment. For example, see the submissions by the respondent's counsel to his Honour at AB 179. I will, however, for completeness, deal with ground 3, as drawn. The transcript of the trial indicates that the appellant did not make a request, before the luncheon adjournment, for the transcript of the earlier hearing to be returned to him (AB 276 ‑ 279). There was some discussion between the appellant and Magistrate Lane shortly before the luncheon adjournment as to whether a complete copy of the transcript of the earlier hearing was available (AB 274 ‑ 276). Magistrate Lane requested the court orderly to return to the appellant the copy of the incomplete transcript of the earlier hearing (AB 276); presumably, the copy which had been inspected by JCK. In any event, when the magistrate adjourned for lunch, the prosecution case had closed. The appellant did not lose any opportunity to cross‑examine anyone by reference to the transcript of the earlier hearing, and he did not seek a further adjournment or to recall any witnesses when the court resumed (AB 276 ‑ 279).
McKechnie J said, in relation to the appellant's delay (of nearly 2 1/2 years) in making application for leave to appeal:
The reasons advanced by the appellant in both of his affidavits are quite unsatisfactory to explain the delay. He complains about his lawyers. He speaks of the various action he took in relation to the police through Freedom of Information and complaints about them. He has detailed to me the difficulties he had in obtaining lawyers to act on his behalf.
None of these matters entirely explains the delay, even making allowances for the fact that the appellant is a litigant pro se. Moreover, the delay has caused irreparable prejudice to the respondent because JCK is now deceased. She was the major witness for the prosecution, being the person for whom the misconduct restraining order operated. Moreover memories fade with time which may affect other witnesses.
Should there be a retrial, the general prejudice suffered by a respondent when there has been a gross delay for reasons not properly explained are amplified in this case by the death of a major witness.
In the end, this was a straightforward case. The magistrate correctly directed herself to the burden and standard of proof. She accepted the prosecution witnesses as being entirely credible and reliable and found that the appellant's evidence was not. In fact she found him to be an unmitigated liar, a fact which the appellant obviously takes great issue with.
Those were matters which were for the magistrate. While there are some oddities in relation to some of her views of the evidence during the course of the hearing (not reflected in the grounds of appeal), I have nevertheless considered them in relation to whether the interests of justice require an extension of time.
I have listened to the appellant advance the arguments he wished to advance on both the grounds of appeal as specified in the notice and any other matters that he wished to raise. There is nothing which gives rise to any sense that there has been an injustice requiring an extension of time.
For example, the appellant produces photographs showing distances in relation to the garden. I am not sure that the photographs actually particularly support the appellant's case but even so they were obviously material freely available and could have been led at the trial.
The grounds do not satisfy me that there are reasonable prospects of success in respect of any of them. The lengthy delay in seeking leave to appeal is largely unexplained, at least satisfactorily unexplained.
Although there appears to be much activity by the appellant in the period, even making all allowances for a litigant pro se, the delay in lodging an appeal for so long is nevertheless inexplicable having regard, as I say amongst other things, to the fact that the expert's report (which the appellant does not like) was in his possession for nearly a year before the application was made. Moreover, in this case there is real prejudice to the prosecution in granting an extension of time within which to appeal.
Therefore on the basis that the delay is unsatisfactorily explained, that there is real prejudice to the prosecution, and that there is in any event no injustice because there are no reasonable prospects of success, the application for an extension of time in SJA 1007/08 is refused [20] ‑ [29].
The appellant's grounds of appeal before Miller JA
On 19 May 2008, the appellant filed a notice of appeal against McKechnie J's decision. The draft 'grounds of appeal' read:
Hajinoor v Dench supra at 26
Harling v Hall 1997 94 a Crim R 437
Mickelberg v The Queen 2004 29 WAR 13 at 413Button v The queen 2002 25 WAR 382 per Malcolm-CJ at 391
Expand further at a later date.
As Miller JA rightly noted, these 'grounds of appeal' are nonsense.
In an affidavit sworn 15 July 2008, the appellant indicated that the appeal he intended to pursue would also include:
Sufficiency of Magistrates Reasoning
Issues of credibility
Discretion by Magistrate to not raise previous inconsistent statement of witness
Forgery and uttering a forgery (test of evidence to apply)
Conspiracy to defeat justice
None disclosure by prosecution
Miscarriage of justice
Fresh/New EvidenceThe affidavit then said:
The whole case to be considered as a petition
1)The cases for subpoena of Ms Sabina Moncrieff and Ms Rachael Tiede are interwoven as are the appellants appeal books SJA1007/008 of 2008.
The appellant alleges Ms Tiede acted and conspired with others to fabricate a letter dated the 16th July 2004 to maliciously harm the appellant for proceedings in PE1971-04
The appellant alleges Ms Tiede knowing the appellant was to face charges on the 18th August 2004 PE 22143-5 falsely represented to the appellant lodging of the company mail book would suffice to dispel charges relating to the breach of M>R>O
2)Ms Sabina Moncrieff can provide evidence for the appellant that no letter dated 16th July 04 was sent due to the appellants attendance at the company office, where we discussed our options to mulching the garden and that the remaining progress would wait until the expiry of the M<R<O order. Other conversational matters significant to why no letter was sent to the appellant.
3)Mr Steven Blyth from Lewis BIyth and Hooper represented the appellant in PE 1971-04 and his appearance is required for his knowledge of the letter, that includes answering the insurmountable correspondence between us that the document is questionable and proberly [sic] a forgery prior to the march hearing of PE 1971-04 And confirm the personal handwritten notes of PE 1971-04 with the notation attached to the cover page of exhibits stating MFI 8 16/7/04 letter to Fred - Didn't Get And ask why with all the correspondence as per SJA 1008/2008 the suspect letter was allowed to form part of the applicants case. Pages 18-20 and 20 respondent to proceedings.
Furthermore and importantly the attendance records of constable Paul Sander attending the appellants residence and that of the complainant on or about the 4th August 2004 as per complainants statements page 21 of PE 1971-04 (subject to orders wanted in previous application notice)
That the appellant was asked by Constable Sander about receiving a letter from the corporate body Managers (Moncrieff Realty) that the appellant or complainant could not furnish and subsequently he Constable Sander left the appellants residence on the 4th August 2004 satisfied the appellant had no case to answer.
Cases references to include,
Harling V Hall
Hajinoor V Dench
Mickelburg V The Queen
Mallard V The Queen
Button V The Queen
Carter V R
Talbot V Lane SM
Dalton V Dalton
Bolitho V The State of Western Australia
Easterday V The Queen
Roddan V The queen
Smith V Foley
Brott V The Queen (High Court)Several documents were annexed to the affidavit. They comprised various handwritten notes, and two typewritten transcripts of alleged conversations with Ms Rachael Tiede of Moncrieff Realty (AB 44 ‑ 70).
Miller JA referred, in his reasons, to the manner in which the appellant had sought to develop his case in the course of and after the hearing before his Honour:
The appellant also handed up a set of written submissions, included in which are many authorities dealing with matters that include the nature of a conspiracy, the issue of non-disclosure, abuse of process, examination of forged documents, fraud, expert evidence and jurisdictional error. These submissions seek to re-argue some of the matters that were the subject of the hearing before McKechnie J, but also new matters that are not contained within the grounds of appeal.
The appellant also sought, after the hearing, to refer to the transcript of a recording of a telephone conversation relating to the letter alleged to be a forgery. No leave was given to file this material, but, in any event, McKechnie J dealt with the issue at the hearing of the leave application.
It appears from this material that the appellant is seeking to pursue a number of avenues of appeal, including the presentation of fresh evidence and/or new evidence.
So far as fresh/new evidence is concerned, there is no application before the court to adduce such evidence and no affidavits to show what fresh or new evidence there may be.
The other areas which the appellant says he intends to pursue do not raise grounds of appeal, but raise a number of topics.
The court is not in a position to receive a 'petition' and the material to which reference is made under the heading of 'A petition' relates primarily to the question of the letter of 16 July 2004 which McKechnie J concluded had limited relevance and was not shown to be a forgery. The matter has already been the subject of ventilation before McKechnie J without success [23] ‑ [28].
Miller JA concluded that none of the grounds of appeal formulated by the appellant in his notice of appeal filed 19 May 2008 had a reasonable prospect of success [29]. Further, the notice of appeal, as supplemented by the affidavit of 15 July 2008, did not reveal any ground of appeal which could be said to have a reasonable prospect of success [29]. His Honour concluded:
A litigant in person must be afforded a degree of accommodation in relation to the formulation of grounds of appeal, but in this case the grounds fail to meet the criteria that they reveal grounds reasonably arguable. There are no satisfactory grounds at all. A single judge of the Court of Appeal has the power to strike out any ground of appeal that does not have a reasonable prospect of succeeding (Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(f)) and, in my opinion, the draft grounds of appeal which are contained within the appellant's notice in this case should be struck out pursuant to that rule [30].
The appellant's application to review Miller JA's decision
On 12 August 2008, the appellant filed an application for a review of Miller JA's decision. See s 61(3) of the Supreme Court Act 1935 (WA); r 8(1) of the Court of Appeal Rules. The 'grounds of review' read:
Insufficient evidence to charge (1) to convict.
Inconsistent statements of [JCK] to charges (2)(3) sufficient reasonable doubt to dismiss charges.
Magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision. A finding of guilt was not to be reached simply by rejecting the case put forward by the defendant. There could not be a guilty verdict unless the court accepted, ie actually and positively believed to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. Harling above.
The question on appeal will often be not whether the court would have formed a different view, but whether the Magistrate[']s approach and view of the evidence was defensible. Chamberlain above.
Hon Justice Miller was wrong to conclude at 12 of coram 'all that could be proven was that the letter was posted to the appellant' contradictory to all evidence in chief before the court.
New evidence will reveal a miscarriage of justice only if it shows that the appellant is innocent or raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand. Mickelberg above.
The central issue is having regard to all the material on which the appellant now relies, there was a miscarriage of justice at the trial. Button above.
Relevance of application notices pursuit [sic] to s40 enclosed in summary to Hon Justice Miller.
By s40 an appeal court may admit any other evidence.
The appellant's application to review Miller JA's decision is not a hearing de novo. It is an appeal by way of rehearing, and the appellant must satisfy this court that his Honour made an error in refusing leave to appeal. If this court assesses the grounds of appeal differently from Miller JA and finds that one or more of the grounds has a reasonable prospect of success, implied error may be found, and this court may set aside or vary his decision. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21], [23]; Lawless v Turner [2007] WASCA 127 [4].
On an application to review, the appellant is confined to the grounds of appeal before the single judge of appeal. An application to add a further ground or grounds of appeal is incompetent unless the reviewing court grants leave to appeal on at least one or more of the original grounds. See s 27(3) of the Criminal Appeals Act 2004 (WA); Barry v The State of Western Australia [2007] WASCA 12 [24].
The merits of the application to review Miller JA's decision
The draft grounds of appeal in the appellant's notice of appeal filed 19 May 2008 are unintelligible. It is apparent, however, from the appellant's repeated references to new evidence and his five applications, that the draft grounds relate to additional evidence. But the draft grounds do not identify the nature or substance of the evidence, and they do not identify any errors in the decision or reasoning of McKechnie J. None of the draft grounds of appeal, as drawn, has a reasonable prospect of success and, in the circumstances, Miller JA did not err in ordering that they be struck out.
The fifth paragraph of the 'grounds of review' contains the only express reference to Miller JA's decision. It is there alleged that his Honour was wrong to conclude that 'all that could be proven was that the letter [dated 16 July 2004] was posted to the appellant' [12]. This conclusion is alleged to be 'contradictory to all evidence‑in‑chief before the court'. However, that paragraph of his Honour's reasons related to the proceedings before Magistrate Lane and did not concern the issue of whether the appellant's draft grounds of appeal to this court should be struck out.
The 'grounds of review' do not attack Miller JA's conclusion that the draft grounds of appeal should be struck out, and do not specifically address his Honour's conclusion in relation to the five applications. Nevertheless, I will examine Miller JA's decision and reasoning in the context of the submissions made by the appellant to his Honour and this court.
In my opinion, the evidence before Magistrate Lane did not establish whether the letter dated 16 July 2004 had been posted to the appellant, or had been hand‑delivered or received by him in a particular manner. Miller JA was, therefore, in error, with respect, in concluding that 'all that could be proven was that the letter [dated 16 July 2004] was posted to the appellant' [12]. That error is not, however, material, and does not vitiate his ultimate conclusion that the appellant's draft grounds of appeal should be struck out. There was evidence before Magistrate Lane, which she accepted, to the effect that the appellant had, by some means, received the letter. First, there was JCK's evidence that she was 'furious' because she had spoken to the 'strata manager' and a letter had been sent to the appellant indicating that 'he should not come within the boundaries specified in the restraining order' (AB 199). Also see [18] ‑ [19] above. Secondly, there was Ms Lee's evidence of the appellant's admission to her that he had received a letter from 'strata' not to touch JCK's garden, however, because he wanted to make a uniform garden, he touched the garden anyway (AB 259 ‑ 260). Also see [20] above. Thirdly, JCK said in cross‑examination that she received from Moncrieff Realty a copy of the letter dated 16 July 2004. She could not, however, recall the exact date on which she received it (AB 227). She denied having received a copy of the letter from her legal representative, and denied not having received it until March 2005 (AB 228 ‑ 229). This cross‑examination did not impact materially on JCK's credit.
Miller JA decided that unless at least one of the appellant's grounds of appeal had a reasonable prospect of success, the five applications must be dismissed.
At common law, there is, of course, a well-established distinction between new evidence, on the one hand, and fresh evidence, on the other. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Fresh evidence is evidence which either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen [2005] WASCA 62 [9].
In Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, Mason J said, in relation to new evidence:
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand (675 - 676).
In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ expressed the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:
It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen ((1986) 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 399) expressed his substantial agreement with the statement, although his Honour emphasised that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements (273).
The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 - 519 (Barwick CJ), and the examination of the relevant issues by Steytler J in Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] - [211].
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler and Pullin JJA agreeing) reviewed the authorities concerning the admissibility at common law of new and fresh evidence on appeal, and said [81] ‑ [82]:
It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as this Court has noted in Easterday v The Queen (2003) 143 A Crim R 154 at [204] and in Beamish at [13], the distinction is one which is soundly based in principle and which continues to be recognised, even though there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials: see Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg (High Court) at 301; De La Espriella-Velasco v The Queen (2006) 31 WAR 291 at [150] - [153].
Where the evidence is fresh, the test appears to be whether there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the accused: see Gallagher, at 399, 402 and 421; Mickelberg, at 273, 275 and 302; Beamish at [14].
I agree, with respect, with his Honour's observations.
Section 39(1) of the Criminal Appeals Act2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence;
…
In Rinaldi, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
To the extent discernible from the five applications, the evidence sought to be adduced by the appellant is new, as distinct from fresh, evidence. It existed at the time of the trial, namely on 18 August 2005, and could, with the exercise of reasonable diligence, have been discovered. As a result, the new evidence must demonstrate that the appellant is innocent, or raise such a doubt that it must be concluded he should not have been convicted.
At the hearing before Magistrate Lane, it was necessary for the prosecution to prove beyond reasonable doubt, in respect of each of the three charges, that the appellant was bound by the restraining order and breached it by being within five metres of the front door of JCK's unit (in the case of the first charge) or by approaching within five metres of JCK (in the case of the second and third charges).
The appellant admitted, in relation to each charge, that he had been served with the restraining order on 24 October 2003, and that he knew he was bound by it (AB 279). In addition, JCK gave evidence about the order and a copy of the order was tendered (exhibit P1). The first element of each charge was therefore proved beyond reasonable doubt.
As to the first charge, the appellant gave evidence that he had mulched JCK's garden, and was aware that he could not come within five metres of her front door. He said he had managed to mulch her garden without coming within the proscribed area. He also told the magistrate, in the course of cross‑examining JCK, that his defence was that he had not come within five metres of her front door. See AB 234, 281 ‑ 282, 288, 293 ‑ 294.
JCK and the appellant gave conflicting evidence as to the distance between the front door of JCK's unit and the outer edge of the garden bed, and as to whether the entire front garden was within five metres of the front door. They also gave conflicting evidence, to some extent, about the appearance of the mulch after it had been placed on the garden bed. See AB 196, 235 ‑ 238, 281, 289, 291, 293. Ms Lee gave evidence that the appellant had told her that he had received a letter 'from strata' requesting him not to touch JCK's garden, and that he had only touched her garden because he wanted uniform gardens in the block of units. The appellant denied that he had made this statement to Ms Lee. See AB 260 ‑ 261, 263, 282, 295.
As to the second and third charges, JCK's evidence was corroborated by the evidence of Ms Hanson. The appellant disputed their evidence. See AB 202 ‑ 205, 242 ‑ 243, 264 ‑ 268, 270 ‑ 274, 283 ‑ 285, 295 ‑ 304.
The magistrate resolved the disputes on crucial issues of fact by making findings of credibility. Her Honour found JCK, Ms Lee and Ms Hanson to be credible and reliable. She accepted and preferred their evidence. By contrast, she found the appellant to be 'an unmitigated liar'. See AB 318 ‑ 319.
The appellant, in an affidavit sworn 6 June 2008 in support of the first application (referred to by Miller JA at [31] of his reasons) deposes that the documents he seeks in the application are relevant 'for issues of credibility of witnesses in relation to evidence given by those witnesses during proceedings' (AB 30). As to the 'request' for police interviews with 'Kay' and 'Judy', in the SJA Affidavit the appellant refers to 'Kay' and 'Judy', relevantly, as follows:
14)Upon receiving disclosure of charges and police witness statements I became alarmed of Constable Sander[']s intension [sic] I conclude of framing me with false evidence put forward in the mro, IE his knowledge during interview with myself at unit 7/49 Mosaic St Shelley that no 16th July 04 letter was in circulation and that of his own interview with Kay and Judy (surnames unknown) in other allegation.
15)Ms Kay had informed myself of Constable Sander[']s interview with her and Judy and their response to him; Quote That didn't happen, We did not see that, Fred is no threat to her, in relation to the charge Hanson was to give evidence on.
…
21)I did not approach [JCK] as per her and Hanson's evidence of touching and requesting a dance. Constable Sander had previously interviewed Kay and Judy in relation to this complaint that [JCK] claimed happened and Kay confirmed to myself of their interview and response to Constable Sander. Also [JCK] either attended the Pagoda Ballroom with the company of Kay and Judy or Hanson, but not with both parties simultaneously (AB 125 ‑ 126).
This appears to suggest that Kay and Judy may have been able to give evidence contradicting JCK and Ms Hanson in relation to the second and third charges. However, neither of them gave evidence before the magistrate, even though they were referred to during the hearing (AB 247 ‑ 248, 307), and even though the appellant's affidavit suggests he had spoken to them and could have called them. Further, even if their evidence was to the effect asserted by the appellant, it would not be evidence of sufficient strength to demonstrate that the appellant is innocent or raise such a doubt that this court must conclude he should not have been convicted.
As to the records of interview conducted with the appellant, the appellant gave sworn evidence at the trial before the magistrate, and the respondent did not give evidence. In the circumstances, the records of interview do not advance the appellant's case in the appeal.
It follows, in my opinion, that Miller JA was correct to dismiss the application referred to at [31] of his reasons.
The second application (referred to by Miller JA at [32] of his reasons) relates to the letter dated 16 July 2004 which the appellant claims he never received (AB 229, 231, 318 ‑ 319) and which he contends is a forgery.
The letter was not tendered in evidence at the trial before the magistrate. It was, however, referred to by JCK in her examination‑in‑chief and put to JCK in the course of the appellant's cross‑examination of her (AB 199, 201, 215 ‑ 218, 221, 227 ‑ 229). The letter was also referred to in Ms Lee's examination‑in‑chief, and the appellant asked her questions about the letter in cross‑examination (AB 260 ‑ 261, 263). Further, the appellant referred briefly to the letter in his closing submissions (AB 310).
The appellant attempted, unsuccessfully, at the hearing before the magistrate to tender the mail book from Moncrieff Realty which did not have a record of a letter being posted to the appellant on 16 July 2004. The appellant questioned JCK and attempted to question Ms Lee about the mail book (AB 218 ‑ 220, 226, 261).
The appellant, in his affidavit sworn 10 June 2008, deposes that he seeks production from past and present strata owners of documents bearing the signature of Ms Moncrieff for the purpose of comparing them with Ms Moncrieff's signature on the letter dated 16 July 2004.
The appellant, at pars 38 ‑ 41 of the SJA Affidavit (AB 128 ‑ 129), refers to examinations by Messrs Stratch and Holland and an unnamed bank employee of the signature on the letter. The SJA Affidavit suggests that the written reports the appellant has received do not make out that Ms Moncrieff's signature on the letter was forged.
In my opinion, McKechnie J was correct in characterising the letter dated 16 July 2004 as having limited relevance and describing the limited relevance of the letter as involving 'a matter of credibility, and limited credibility at that' [13]. Even if the appellant did not receive the letter dated 16 July 2004, his non‑receipt of the letter would not (either of itself or in combination with any other evidence or proposed new evidence) demonstrate that the appellant is innocent or raise such a doubt that it must be concluded he should not have been convicted.
It follows, in my opinion, that Miller JA was correct to refuse the second application.
The third, fourth and fifth applications (referred by Miller JA at [33] ‑ [35] of his reasons) are concerned with the letter dated 16 July 2004. My reasons at [71] ‑ [76] above apply to the third, fourth and fifth applications.
Further and in any event, the basis for the third, fourth and fifth applications, as explained by the appellant in his affidavit sworn 15 July 2008, is insufficient to justify granting them. As to the third application, the appellant makes numerous allegations against Ms Tiede. However, the only evidence which might be adduced from Ms Tiede is that she 'falsely represented to the appellant lodging of the company mail book would suffice to dispel charges relating to the breach of [the restraining order]' (AB 42). Evidence to this effect is not relevant to any issue relating to the first charge. In particular, the evidence would not demonstrate that the appellant did not receive the letter. As to the fourth application, the appellant seeks to compel the attendance of Mr Blyth (his counsel at the hearing at which the restraining order was made or extended) to give evidence as to his knowledge of the letter (AB 41). Any knowledge which Mr Blyth may have of the letter would be based on the appellant's instructions and would not be admissible for any relevant purpose. The appellant also wishes to adduce evidence from Mr Blyth as to 'why with all the correspondence as per SJA 1008/2008 the suspect letter was allowed to form part of the applicant's case' (AB 43). However, as McKechnie J held, the Supreme Court does not have jurisdiction to hear an appeal from Magistrate Burton's decision to grant the restraining order, and the appellant has not challenged that decision in his notice of appeal [2] ‑ [3].
Further, the appellant could have called Ms Tiede, Ms Moncrieff and Mr Blyth (or any of them) at the hearing before Magistrate Lane. He chose not to do so.
It follows that, in the circumstances, Miller JA was correct to refuse the third, fourth and firth applications.
Some other points raised by the appellant
The appellant raises some other points in his 'grounds of review' and in his affidavit sworn 15 July 2008 (referred to by Miller JA at [21] of his reasons). He has not, however, made application to amend his draft grounds of appeal. Nevertheless, I will deal with these points.
First, the appellant appears to complain about the sufficiency of the evidence to sustain the first charge. In my opinion, Magistrate Lane, by preferring JCK's evidence about the distances involved and the state of the mulch in the garden bed, and by preferring Ms Lee's evidence about what the appellant had said to her, was entitled to conclude that the only reasonable and rational inference was that the appellant had come within five metres of JCK's front door. See Heaton v The State of Western Australia [2008] WASCA 32 [53]. The other element of the charge was admitted by the appellant. In the circumstances, there was sufficient evidence to sustain the appellant's conviction on the first charge.
Secondly, the appellant appears to complain that JCK made inconsistent statements in relation to the second and third charges. At the trial before Magistrate Lane, the appellant attempted to demonstrate that JCK had made no mention of the incidents of 8 October 2004, which formed the basis of the second and third charges, at the hearing before Magistrate Burton (AB 241). However, JCK did, in fact, make reference to those incidents at the hearing before Magistrate Burton. See page 23 of the transcript of proceedings before his Honour (AB 326). Accordingly, the appellant's contention is flawed.
Thirdly, the appellant appears to complain about the sufficiency of Magistrate Lane's reasons generally, and in relation to credibility.
As I have mentioned, Magistrate Lane resolved the crucial issues of fact by making findings of credibility. Her Honour's reasons set out the conflicting evidence (AB 312 ‑ 318). There was no complexity in relation to the issues of fact. They were simple. As I noted in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [65] ‑ [68]:
The reasoning of a tribunal which is based on a credibility determination must be distinguished from the reasoning of a tribunal which is based on inferences drawn from facts that were undisputed or found by the tribunal. See Fox v Percy (2003) 214 CLR 118 at 146 [88]. As Kirby J observed in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 466 [21] ‑ [22]:
Even in the case of expressed credibility findings, the statutory duty to conduct a real 'rehearing' remains. It may sometimes justify reversal of a decision by a primary judge who has 'failed to use or has palpably misused his advantage' or where 'incontrovertible facts or uncontested testimony' demonstrates the findings to be erroneous; or where they are 'glaringly improbable' and 'contrary to compelling inferences'.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It 'will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it'.
Also see Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 at 477 ‑ 478 [65] ‑ [67].
Normally, therefore, a tribunal's credibility-based conclusions will not be reversed on appeal unless it is demonstrated that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony. In other words, usually it must be established that the tribunal's decision was erroneous, notwithstanding that it appears to be, or is stated to be, based on credibility findings.
Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman (1908) 7 CLR 549 at 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (at 561); Fox v Percy (at 125 ‑ 126 [23]). In Dearman, Isaacs J said (at 561):
The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal.
In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said (at 126 [23]), in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:
These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share [Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637, per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [SRA (1999) 73 ALJR 306 at 330 [89] - [91]; 160 ALR 588 at 619 - 620, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209 - 210; Jones v The Queen (1997) 191 CLR 439 at 466 ‑ 467].
In my opinion, there is no basis for disturbing Magistrate Lane's findings as to credibility or the consequences which attend or follow from them.
Magistrate Lane's reasons reveal adequately to the appellant and this court why her decision to convict the appellant on each of the three charges was made. See Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [31] ‑ [32], [73] ‑ [74].
No attack on McKechnie J's findings in relation to delay
Neither the draft grounds of appeal nor the draft grounds of review refer to McKechnie J's conclusion that the appellant's delay of nearly 2 1/2 years in applying for leave to appeal against his conviction on the three charges had not been satisfactorily explained, and that the delay had occasioned 'real prejudice' to the prosecution [29]. See [39], [40] ‑ [42] and [45] above.
The appellant's notice of appeal was filed out of time
It appears the appellant commenced his appeal against the decision of McKechnie J out of time. McKechnie J delivered his decision on 23 April 2008 (AB 26). The notice of appeal was filed on 19 May 2008 (AB 26). Unless this court otherwise orders, the appeal was required to have been commenced not later than 21 days after the date of the decision. See s 17(3) of the Criminal Appeals Act.
The appellant has not made an application for an extension of time. For the reasons I have given, his draft grounds of appeal (and the submissions he has made in support of them) are without merit. It would therefore be inappropriate to grant an extension, if sought.
Events after the application for review was argued
On 5 December 2008, the application for review was argued before this court. At the conclusion of the argument, the court reserved its decision. It granted the appellant leave, however, to file and serve further written submissions by 4 pm on 12 January 2009, but only if those further submissions were settled and signed by a legal practitioner (appeal ts 43 ‑ 44).
On 6 January 2009, the appellant sought to file further written submissions. These submissions were signed by the appellant. They had not been settled or signed by a legal practitioner. The appellant applied for leave to rely on these further written submissions. I would refuse leave.
Also, on 30 December 2008, the appellant applied for leave to adduce new evidence. The so‑called new evidence is contained in an affidavit of the appellant sworn 24 November 2008, an affidavit of the appellant sworn 30 December 2008 and an affidavit of Sandra Jenkins sworn 24 November 2008. I would dismiss the appellant's application for leave. He has not explained satisfactorily his failure to apply to adduce the new evidence at the hearing on 5 December 2008. Further, I have perused the affidavits and they do not, in my opinion, advance materially the appellant's case on the application for review.
Eventually, on 27 February 2009, the appellant, by his solicitors, sought to file further written submissions (the appellant's February 2009 submissions). The application for review was relisted for a further hearing before the court on 13 March 2009. On that date, the appellant appeared by counsel who moved for an extension of time in which to file the appellant's February 2009 submissions and for leave to rely on them. Counsel for the respondent did not object to this relief and the court made orders in the terms sought. The court then heard from the appellant's counsel and the respondent's counsel on the further arguments raised by the appellant in the February 2009 submissions.
In my opinion, the appellant's February 2009 submissions do not advance materially the appellant's case on the application for review.
The appellant's February 2009 submissions
The appellant submits, at [38] ‑ [39] of his February 2009 submissions, that:
(a)the issue in the appeal is the use that was made of the letter dated 16 July 2004 by Magistrate Lane in seeking to impugn the appellant's credibility; and
(b)the issue in the application for review is whether Miller JA erred in determining that the ground of appeal concerning 'issues of credibility' had no reasonable prospects of success.
As to this submission, the respondent contends:
(a)no ground of appeal of this kind was raised before McKechnie J;
(b)the reference to 'issues of credibility' does not appear as a ground of appeal in the appeal notice to this court; and
(c)Miller JA noted at [27] that the additional matters upon which the appellant intended to rely (such as 'issues of credibility') did not raise grounds of appeal but instead raised a number of topics.
In my opinion, there was no ground of appeal before Miller JA relating to 'issues of credibility' as to which an assessment of the prospects of success could have been made.
In any event, a ground of appeal based on 'issues of credibility', as developed in the appellant's February 2009 submissions, has no reasonable prospect of success. In particular:
(a)Magistrate Lane found that the letter dated 16 July 2004 was irrelevant, except as to credibility (AB 261, 314 ‑ 315).
(b)It was reasonably open to Magistrate Lane to accept the evidence of JCK and Ms Lee. See [17] ‑ [21], [63], [64] and [66] above. Having done so:
(i)it was open to her Honour to conclude that the appellant had received the letter, by some means, and to reject the appellant's account of his conversation with Ms Moncrieff (although her Honour did not expressly do so but did so implicitly in her adverse finding as to the appellant's credit generally);
(ii)it was open to her Honour to convict the appellant on the first charge (see [17] ‑ [22], [61] ‑ [64] and [66] above); and
(iii)her Honour did not have to determine how the appellant received the letter in order to draw these conclusions or to convict him of the first charge.
(c)McKechnie J was correct in holding at [13] that the letter dated 16 July 2004 could have no bearing on the second or third charges.
(d)The relevance of the appellant's evidence as to his conversation with Ms Moncrieff (AB 281) in this context is not readily apparent, especially in view of the direct evidence from the appellant and JCK as to whether the appellant came within 5 metres of JCK's front door and the appellant's admission that he was aware of and understood the terms of the restraining order (AB 190, 279, 288).
(e)Ms Lee's evidence was not 'scant', as asserted by the appellant. It was expressed with reasonable clarity in examination‑in‑chief (AB 260) and in cross‑examination (AB 261 ‑ 263). Magistrate Lane was entitled to rely upon it.
(f)McKechnie J held at [7];
Contrary to the appellant's repeated submissions this morning, there is no evidence that the letter was a forgery. There is, at most, some material which raises some question about it but the evidence is far short of establishing that the letter is a forgery.
McKechnie J was, with respect, entitled to make that finding on the material before him. The extracts from the transcript of the evidence and the extracts from the reasons of Magistrate Lane which are referred to by the appellant (at [28] of his written submissions) do not establish any error by McKechnie J.
In my opinion, Magistrate Lane's reasons do not indicate that her Honour's findings as to credibility were based or relied solely or even primarily on whether the appellant in fact received the letter dated 16 July 2004. In particular:
(a)her Honour recounted material passages from the evidence of the prosecution witnesses and the appellant, noted the differences between them, and observed, correctly, that the differences raised questions of credibility (AB 315, 317, 318);
(b)her Honour noted her impressions of the witnesses and stated that she found the prosecution witnesses to be entirely credible and reliable and the appellant to be an unmitigated liar, and that she preferred the evidence of the prosecution witnesses where it conflicted with the appellant's evidence (AB 318 ‑ 319); and
(c)her Honour rejected several assertions made by the appellant during the hearing (AB 319): only one of these assertions related to the letter, namely, the appellant's assertion that the letter was concocted by the prosecution witnesses.
I have not dealt specifically with each of the appellant's February 2009 submissions on 'issues of credibility' to the extent that the substance of those submissions has been dealt with earlier in these reasons.
I am satisfied that a ground of appeal based on 'issues of credibility' as developed in the appellant's February 2009 submissions has no reasonable prospect of success and that none of the grounds struck out by Miller JA has any reasonable prospect of success.
As I have mentioned previously, unless at least one of the struck out grounds has a reasonable prospect of success, the appellant's other applications must fall away because they are not relevant to an existing ground of appeal. See [47] above; Barry [24].
The appellant complains that the issue of delay was not properly dealt with by McKechnie J or Miller JA and that any prejudice to the respondent if the appeal were to be allowed is irrelevant.
In my opinion, neither the grounds which have been struck out nor the grounds of review address the approach taken by their Honours to the issue of delay.
In any event, it is well‑settled that where there has been a lengthy delay, the court requires exceptional circumstances to be shown before granting an extension of time for leave to appeal, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. See Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); AD v The State of Western Australia [No 2] [2007] WASCA 207 [15] (Buss JA, Pullin JA & Miller AJA agreeing). None of the struck out grounds, none of the review grounds and none of the arguments advanced in the appellant's submissions to this court has a reasonable prospect of success and, in those circumstances, there will not be a miscarriage of justice if an extension of time is not granted.
Conclusion
I am satisfied that Miller JA did not make any material error of law or fact. The application for review should be dismissed.
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