D v The State of Western Australia
[2007] WASCA 272
•14 DECEMBER 2007
'D' -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 272 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:157/2006 | 1 AUGUST 2007 | |
| Coram: | BUSS JA MILLER JA LE MIERE AJA | 13/12/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Documents admitted into evidence | ||
| B | |||
| PDF Version |
| Parties: | 'D' THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Whether failure to serve victim impact statement on defence counsel prior to retrial was a breach of duty of disclosure Miscarriage of justice Turns on own facts |
Legislation: | Director of Public Prosecutions Act 1991 (WA), s 24 |
Case References: | Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 Mallard v The Queen [2003] WASCA 296; 28 WAR 1 Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 R v CPK (Unreported, NSWCCA, 21 June 1995) R v K (1991) 161 LSJS 135 R v Lewis-Hamilton [1998] 1 VR 630 R v TSR [2002] VSCA 87; (2002) 5 VR 627 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : 'D' -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 272 CORAM : BUSS JA
- MILLER JA
LE MIERE AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
File No : IND 152 of 2004
Catchwords:
Criminal law - Appeal against conviction - Whether failure to serve victim impact statement on defence counsel prior to retrial was a breach of duty of disclosure - Miscarriage of justice - Turns on own facts
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Legislation:
Director of Public Prosecutions Act 1991 (WA), s 24
Result:
Appeal dismissed
Documents admitted into evidence
Category: B
Representation:
Counsel:
Appellant : Mr P J Urquhart
Respondent : Mr D Dempster
Solicitors:
Appellant : D G Price & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51
Mallard v The Queen [2003] WASCA 296; 28 WAR 1
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
R v CPK (Unreported, NSWCCA, 21 June 1995)
R v K (1991) 161 LSJS 135
R v Lewis-Hamilton [1998] 1 VR 630
R v TSR [2002] VSCA 87; (2002) 5 VR 627
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1 BUSS JA: The background facts and the grounds of appeal are set out in the reasons of Le Miere AJA.
2 I agree with Le Miere AJA, for the reasons he gives, that the application to adduce affidavits and other evidentiary material in the appeal should be determined in the manner specified by his Honour.
3 I also agree with Le Miere AJA that the appeal should be dismissed. My reasons for dismissing the appeal are as follows.
The prosecution's common law duty of disclosure
4 At common law, the prosecution must disclose to an accused all relevant evidence in its possession or available to it. Evidence should be disclosed if it is relevant to:
(a) a fact in issue;
(b) a fact relevant to a fact in issue; or
(c) the credit or reliability of a prosecution witness.
The prosecution's duty of disclosure is an incident of an accused's right to a fair trial. If the prosecution breaches its duty, and the accused is convicted and appeals, it will be necessary to consider whether the breach has occasioned a miscarriage of justice. If a miscarriage of justice has occurred, the conviction should be set aside unless the State demonstrates that there has been no substantial miscarriage of justice and the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should therefore be applied. See R v K (1991) 161 LSJS 135, 140 (King CJ); Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [25] - [27] (Gleeson CJ, Gummow & Callinan JJ); Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [194] - [203] (Steytler J, as his Honour then was (with whom Roberts-Smith J relevantly agreed)); Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [17] (Gummow, Hayne, Callinan & Heydon JJ), [63] - [67], [81] - [84] (Kirby J); Koushappis v Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [153], [156] (Roberts-Smith JA (with whom McLure JA and I agreed)).
5 In Grey, the prosecution failed to disclose that a significant prosecution witness had been given a 'letter of comfort' by the police officer investigating the charges against the accused, despite 'widespread and deep involvement' in crimes of the type with which the accused was charged. Gleeson CJ, Gummow and Callinan JJ held, at [23], that there was no reason why the defence in a criminal trial should be obliged to
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- 'fossick' for information of the kind in question and to which it was entitled in the proper conduct of the prosecution.
6 The discharge of the prosecution's duty to disclose evidence in its possession or available to it depends upon the relevance of that evidence and, therefore, what must be disclosed in a particular case will depend upon the relationship between the evidence in question, on the one hand, and the facts in issue (including facts relevant to the facts in issue) or the credit or reliability of the prosecution witnesses, on the other. See R v TSR [2002] VSCA 87; (2002) 5 VR 627 [73] (Chernov JA (with whom Phillips CJ and Phillips JA agreed)).
7 In R v CPK (Unreported, NSWCCA, 21 June 1995), Gleeson CJ (with whom Clarke and Hulme JJA agreed) held that the prosecution was obliged to disclose to the accused medical reports in its possession which contained information appearing to contradict some of the complainant's evidence and other information appearing to cast doubt on her reliability.
8 In R v Lewis-Hamilton [1998] 1 VR 630, the prosecution did not disclose to the accused until after he had been convicted of two counts of sexual penetration, a victim impact statement which had been prepared, and was in the possession of the prosecution, before the trial. The statement contained relevant evidence which defence counsel could have used in cross-examination of the complainant. Charles JA (with whom Winneke P and Hayne JA agreed) held, at 635, that the statement should have been disclosed before trial and that cross-examination of the complainant, based upon information contained in the statement, might reasonably have been expected to elicit answers materially affecting the complainant's credibility. In the circumstances, the failure to disclose the document occasioned a miscarriage of justice. The convictions were quashed and a new trial was ordered.
In the present case, did the prosecution breach its common law duty?
9 In the present case, I am of the opinion that the prosecution did not breach its common law duty of disclosure at the retrial. The contents of the complainant's first victim impact statement were made known to the appellant and his then counsel at the sentencing hearing following his conviction at the first trial. See the affidavit of Mr Crispe (the appellant's counsel at the first trial and his solicitor at the appeal) in which Mr Crispe deposes, relevantly, that at the sentencing hearing he and the appellant 'read the victim impact statement together'. Also see the affidavit of Ms Blackburn (the appellant's solicitor at the retrial) in which she deposes, relevantly, that after the appellant was sentenced following his
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- conviction at the retrial, the appellant's counsel at the retrial informed her that 'the appellant had advised him that the complainant's first statement contained reference to criminal behaviour by the complainant'. At all material times before the retrial, the original of the first statement was on the District Court file relating to the appellant's indictment. It does not appear that at any material time before the retrial, the prosecution retained a copy of the first statement. However, the prosecution or the appellant could have made application to a judge of the District Court at or before the retrial for access to the first statement. I am satisfied that, in the present case, the prosecution's disclosure of the first statement at the sentencing hearing following the appellant's conviction at the first trial was a sufficient discharge of the prosecution's duty of disclosure for the purposes of the retrial. The prosecution's duty did not extend, in the present case, to ensuring that the appellant's counsel at the retrial had been properly instructed in relation to, or was otherwise aware of, its contents.
In any event, there was no miscarriage of justice
10 In any event, even if, contrary to my opinion, the proper discharge of the prosecution's duty of disclosure required it to ensure that the appellant's counsel at the retrial had been properly instructed in relation to, or was otherwise aware of, the contents of the first victim impact statement, the omission did not occasion a miscarriage of justice.
11 The appellant's case at the retrial was that the alleged sexual penetration of the complainant did not occur. He did not give evidence at the retrial. It was suggested to the complainant in cross-examination (ts 390) that she was seeking wrongly to blame the appellant for her personal difficulties which commenced in 1998. The complainant rejected that proposition. The complainant also gave evidence in cross-examination to the following effect:
(a) She was born in 1983 (ts 385).
(b) In 1998, she was in year 10 at school (ts 388).
(c) During 1998, her life had 'fallen off the rails' and she was asked to leave school (ts 355 - 356, 388).
(d) In 1997, however, she had been a good student and had 'no problems on the home front' (ts 356, 389).
(e) In 1997, she had some arguments with her father, but the arguments escalated in 1998 (ts 389).
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- (f) In 1999, she left home and commenced living with her sister (ts 385).
(g) After the appellant's sexual assault upon her, she was 'an extremely distressed child'. (ts 357)
(h) The appellant's sexual assault upon her was responsible for her grades 'slipping' at school. (ts 357)
(i) The appellant's sexual assault upon her caused her to '[go] off the rails', and her 'mental state [to be] thrown completely' (ts 357, 389).
(j) The appellant's sexual assault upon her 'affected [her] greatly', and it continued to affect her greatly (ts 389).
12 In the first victim impact statement, the complainant said, relevantly, that between the date of the alleged offence and August 2002 (when she made a complaint to the police):
(a) her life changed dramatically;
(b) her performance at school deteriorated dramatically;
(c) she received counselling from the school counsellor three times a week;
(d) she became extremely aggressive and depressed;
(e) her attitude began to cause difficulties at home;
(f) she was asked to leave school as a result of her aggressive and disrespectful nature;
(g) she eventually ran away from home and moved in with her sister and her sister's husband;
(h) she became involved heavily with drugs;
(i) she stole products from her place of employment and sold the products on the street to obtain money for drugs;
(j) her excessive use of drugs made her mentally and physically ill;
(k) she became anorexic; and
(l) she had a mental breakdown.
These matters were not referred to in the second victim impact statement, but the second statement dealt solely with the complainant's reaction to being informed that the appellant had been released from prison on bail upon the quashing of his conviction following the first trial, and the ordering of a retrial. The second statement did not deal with the impact of
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- the offence upon the complainant between the date of its alleged commission and August 2002.
13 The material substance of the matters listed in (a), (b) and (d) - (g) of [12] above were referred to by the complainant in the course of cross-examination. However, the matters listed in (c) and (h) - (l) of [12] above were not elicited in cross-examination.
14 It is apparent, from the jury's verdict at the retrial, that they accepted the complainant as a truthful and reliable witness. As I have mentioned, the complainant asserted in cross-examination that she had '[gone] off the rails' and that her 'mental state [had been] thrown completely' as a result of the appellant having sexually penetrated her, and that the appellant's conduct towards her had affected, and continued to affect, her greatly. Counsel for the appellant did not endeavour, in cross-examination, to elicit details of the manner or extent to which:
(a) the complainant had 'gone off the rails';
(b) her mental state had been damaged; or
(c) she had otherwise been adversely affected.
15 In my opinion, the first victim impact statement includes particulars of various general statements which the complainant made in cross-examination. The first statement does not appear to be materially inconsistent with her evidence at the retrial. The absence of particularity in the complainant's evidence does not make her evidence relevantly inconsistent with the first statement.
16 Even if the first statement contains information which would have assisted the appellant's counsel in his attack on the complainant's credit (without the statement itself being able to be put to her), and even if the first statement could have been put to the complainant in cross-examination, it would have been a dangerous strategy to adopt. In the circumstances of the present case, there was not a reasonable possibility that a skilful cross-examination, based on the contents of the first statement, would have materially damaged the complainant's credit. Certainly, it would have illustrated vividly the manner and extent to which the complainant had 'gone off the rails', her mental state had been damaged, and she had otherwise been adversely affected. But on the complainant's account of events, those matters were attributable to the alleged sexual penetration. I am satisfied, on my examination of the record, that it cannot be said that the appellant lost a fair chance of
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- acquittal as a result of his counsel at the retrial being unaware of the contents of the first statement. No miscarriage of justice has occurred.
Conclusion
17 I would dismiss the appeal.
18 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Le Miere AJA. I agree with the orders proposed by Le Miere AJA and with the reasons for those orders.
19 LE MIERE AJA: The appellant appeals against his conviction for sexual penetration of a child aged between 13 and 16 years old on the grounds that the respondent erred in law by failing to serve upon the appellant prior to his retrial a copy of the complainant's victim impact statement dated 25 April 2005.
Background
20 The appellant was tried on 20 - 22 April 2005 in the District Court for one count of sexual penetration of a child aged between 13 and 16 years and one count of indecently dealing with the same child. The offences were alleged to have occurred in December 1997. The jury convicted the appellant of the first count, but acquitted him on the charge of indecent dealing. Sentencing submissions were made on 28 April 2005 and the appellant was sentenced on 26 May 2005 to a term of imprisonment.
21 The appellant appealed this conviction and on 5 April 2006 the Court of Appeal upheld the appellant's appeal against conviction on a ground unrelated to the present appeal. The conviction was quashed and a retrial ordered.
22 The appellant was tried for the second time before Sleight DCJ and a jury on 6 - 9 November 2006. The appellant had instructed different counsel for the second trial. A conviction was recorded on 9 November and the appellant was sentenced on that day to a term of imprisonment of 4 years and 4 months with eligibility for parole.
The complainant's victim impact statements
23 Relevantly for the purposes of this appeal, a different victim impact statement (VIS) was provided by the complainant on each of the two occasions sentencing submissions were made. The first VIS, dated 25 April 2005, was tendered by the prosecution on 28 April 2005 and a
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- copy provided to the then defence counsel, Mr Maxwell Crispe. At the conclusion of proceedings on 28 April 2005, Mr Crispe returned the VIS to the prosecutor, in accordance with Appendix 4 of the Statement of Prosecution Policy and Guidelines 2005, which guidelines are issued pursuant to s 24 of the Director of Public Prosecutions Act 1991 (WA).
24 A second VIS, dated 7 May 2006, was prepared by the complainant and tendered by the prosecution at sentencing on 9 November 2006. The prosecutor at the second trial informed the court that 'the State's file doesn't have the original victim impact statement'. (green AB 202)
25 The first VIS contained statements that were not made in the subsequent VIS. Among other things, the first VIS said that between the date of the alleged offence and the complaint to police in August 2002, the complainant:
a) had become involved with drugs;
b) had been sacked from her place of employment after being caught stealing products from work to sell on the street to gain drug money;
c) had become anorexic and had had a mental breakdown due to her excessive use of drugs; and
d) had to receive counselling 3 times a week.
26 The second VIS did not refer to any of this material.
27 It is also relevant to note that following the first appeal and before the retrial, a fresh indictment was substituted. The amended indictment claimed that the offences had occurred 'on or about 26 December 1997, or on or about 26 December 1998' whereas the original indictment charged that the offences had occurred on or about 26 December 1997. The significance of this amendment to the present appeal is that evidence led at trial confirmed that the complainant had problems at school commencing in 1998. In fact, the complainant was asked to leave her school six months prior to December 1998. The complainant's first VIS attributes the problems at school and other problems such as her involvement with drugs to the rape incident. However, the appellant's counsel asserts that the complainant's behaviour provided motive for her to lie about the rape allegation 'to explain her conduct at the times that she fell off the rails'. This argument was put to the complainant during the course of the retrial, but the appellant's counsel contends that the statements in the first VIS would have enabled the defence to better test the complainant's evidence.
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28 The appellant contends that the material contained in the first VIS went to the issue of the complainant's credibility and would probably have been the subject of cross examination had the VIS been disclosed to defence counsel prior to the second trial. The appellant submits that the respondent's failure to disclose the VIS caused the second trial to miscarry.
The common law duty of disclosure
29 The grounds for this appeal initially included a contention that the respondent had breached its duty of disclosure arising from the Criminal Procedure Act 2004 (WA). However, after accepting that a breach of the statutory duty could not be established, the appeal was ultimately put on the basis that the respondent breached its common law duty of disclosure.
30 The duty of disclosure at common law stems from the concept of a fair trial. Fairness requires that the prosecution disclose to the defence any information that is or might become relevant to the issues at trial. (See Steytler J's summary of relevant case law in Easterday v The Queen[2003] WASCA 69 [194].) The prosecution has a general duty to disclose any material 'which can be seen on a sensible appraisal by the prosecution … to be relevant or potentially relevant to an issue in the case': Mallard v The Queen [2003] WASCA 296; 28 WAR 1 [18]. The accused should not have to 'fossick' for information to which they would otherwise be entitled in the course of a proper prosecution against them: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [23].
31 This obligation of disclosure extends to information affecting the credibility of prosecution witnesses. King CJ, in the Court of Criminal Appeal of South Australia summarised the duty as follows:
There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware: R v Paraskeva(1983) 76 Cr App R 162. This obligation must in principle extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. … The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.R v K(1991) 161 LSJS 135 (140).
32 More recently, Kirby J in the High Court said that 'where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and
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- truthfulness of exculpatory evidence by or for the accused' and where that material is in the possession of or available to the prosecution, then such evidence must be provided to the defence: Mallard v The Queen [2005] HCA 68; 224 CLR 125 [81].
33 These principles have been explicitly applied in a case where the relevant material was contained in a VIS. The court in R v Lewis-Hamilton[1998] 1 VR 630 determined that failure by the prosecution to disclose a VIS in its possession could give rise to a miscarriage of justice because the defence is denied the opportunity to cross examine on matters disclosed in the statement. In that case, the accused was convicted after trial of two counts of sexual penetration and three counts of rape. The trial closed on 11 December 1996, after six days of hearing. Sentencing took place on 13 December 1996, at which time a VIS was put before the court. That VIS was dated 9 October 1996 and contained a complaint from the victim of bleeding after each rape. At trial, however, the complainant had given evidence of bleeding only after the third rape.
34 In R v Lewis-Hamilton, the credit of the complainant was critical. The appellant contended that the VIS should have been disclosed to the defence prior to trial, giving the defendant the opportunity to cross-examine the complainant in relation to the matters contained in her statement. The respondent on appeal conceded this point, leaving the Court of Appeal to decide only (in relation to that ground) whether the failure to disclose the VIS led the trial to miscarry or deprived the appellant of a reasonable chance of acquittal. Charles JA held (635):
the contents of the victim impact statement are, as the Crown fairly concedes, relevant to the issues in the trial. Defence counsel appearing at the trial, if that material had been available to him, would, as also was the case in CPK, have been confronted with difficult tactical choices to make and would have had to deal very carefully, in cross-examining with that material. … it seems to me that cross examination of the complainant … might reasonably have been expected to elicit answers materially affecting the complainant's credibility.
35 Further to the prosecution's common law duty of disclosure, the Statement of Prosecution Policy and Guidelines (the Statement) contains some direction about a prosecutor's duty of disclosure. For example, cl 110 of the Statement directs that 'where a witness called by the prosecution gives evidence on a material issue and the prosecutor has an earlier statement that may be inconsistent with the present testimony, the prosecutor should inform the defence of that fact and make available the
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- statement'. Clauses 113 to 118 further detail the prosecution's continuing obligation to disclose material referred to in s 95 of the Criminal Procedure Act 2004 (WA). Interestingly, the equivalent guidelines in both South Australia and Queensland comment specifically on the need for disclosure of victim impact statements prior to sentencing, if those statements contain inconsistencies with the evidence at trial. (See: Director of Public Prosecutions (SA) Prosecution Policy and Guidelines, Guideline 13(d) and Director of Public Prosecutions (Qld) Director's Guidelines, Guideline 26(iv))
36 I pause to note that pursuant to s 24(3) of the Director of Public Prosecutions Act 1991, an act or omission of a person acting on behalf of the Director of Public Prosecutions 'shall not be called into question or held to be invalid on the grounds of a failure to comply with any statement issued under this section'. It seems, however, the Statement at least acts as a guide to the intended usual practices of prosecutors in the discharge of their duties of disclosure.
Was there a breach of the duty of disclosure?
37 I accept the appellant's argument that the VIS the subject of this appeal was relevant to the credibility of the complainant on the appellant's retrial, in a case where the credibility of witnesses was significant. It is apparent from the authorities that as a general rule, a VIS is a document that the prosecution bears a positive obligation to disclose, where that VIS contains relevant material and where it is in the hands of the prosecution prior to or during trial.
38 The next question, then, is whether in the circumstances of this case the failure by the prosecution to disclose the contents of the first VIS to counsel for the defendant prior to the retrial, amounted to a breach of the prosecution's general duty of disclosure.
39 While the appellant personally knew of the contents of the VIS, the appellant's counsel at the retrial did not. Counsel for the appellant contends that the provision of a VIS to sentencing counsel for a short duration of time, with it then being shown to the client and then handed back to the prosecution is not sufficient to meet the prosecution's obligation of disclosure. The appellant's effective position is that because new instructing solicitors and new counsel were briefed for the retrial, the prosecution should have checked that the new counsel was aware of the contents of the VIS.
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40 I do not, in the circumstances of this case, accept the appellant's argument. I refer firstly to the sentencing submissions and judge's remarks following the first trial. Although the references to the first VIS in the transcript from these hearings is mostly of a general nature, there are more specific comments that refer to the complainant going 'off the rails' and requiring treatment. The most revealing comments came from prosecution counsel during sentencing submissions:
The victim has tendered a victim impact statement. It's not surprising that she has been significantly affected. Happily she seems to have eventually been able to deal with this. She obviously had some very significant trauma initially. She went completely off the rails but she has strengthened herself and she has got the benefit of treatment now and she is able to get back on track. (green AB 9)
41 The learned sentencing judge also commented: '[e]ventually it appears she has benefited from treatment and seems to have got her life back in order'. Statements such as these ought to have alerted defence counsel for the retrial as to the contents of the first VIS.
42 Secondly, there is the issue of the appellant's knowledge. The appellant's counsel further argued that the personal knowledge of the defendant about the contents of the VIS is not enough to obviate the need for disclosure by the prosecution. I agree with counsel for the appellant that the contents of the VIS may not be of the same significance to the defendant as to his counsel, especially in circumstances where the defendant saw the VIS only briefly and many months prior to the retrial. However, it remains a fact that the appellant was aware of the contents of the VIS and therefore follows that the prosecution had no further duty to disclose it to counsel.
43 According to the appellant's instructing solicitor, Ms Blackburn, the appellant advised his counsel following the second sentencing that 'the complainant's first [VIS] contained reference to criminal behaviour by the complainant'. The defendant had seen the first VIS and knew that it contained information regarding the complainant's drug taking and stealing from her workplace. That the defendant failed to instruct counsel to that effect when counsel was cross-examining the complainant about matters of credit cannot be seen as the fault of the prosecution. There is no question of the defence needing to fossick for information, because the information had already been provided to the defendant.
44 Finally, there is evidence that the prosecution did not in fact have the first VIS in its possession at the time of the retrial. Counsel for the
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- appellant submits that the prosecution 'would have been in receipt of the first victim impact statement at some time between 25 April 2005 and 28 April 2005'.
45 Mr Crispe, counsel for the defendant at the first trial, swears that:
[o]n 28 April 2005 I was handed a copy of the victim impact statement signed by the complainant … After the conclusion of court proceedings on 28 April 2005 in accordance with normal procedure I handed the copy of the victim impact statement of the complainant back to the prosecutor.
46 However, by the time of the second sentencing, the prosecution did not have the first VIS. In fact, the original copy of the first VIS was present on the District Court file when the file came to this court. During sentencing submissions at the retrial, counsel for the appellant stated:
[N]ow, I don't have, and I'm told that the state's file doesn't have, the original victim impact statement. I don't know if it's on this far on the court file but his Honour Judge Williams made reference to it that it's certainly had an effect on her but treatment seems to have helped. … [I present] the latest victim impact statement. (green AB 202).
47 It would appear from the context of that discussion that the 'original' VIS means the VIS from the first sentencing- not the original version of the first VIS, from which copies might have been taken. In my opinion, it is not possible on the basis of the evidence before the court to conclude that the prosecution had a copy of the first VIS in their possession. The authorities on the question of disclosure refer to documents that are in the possession of or available to the prosecution (see for example, Kirby J in Mallard v The Queen [2005] HCA 68; 224 CLR 125[81]). I find that the VIS was not actually a document the prosecution was in a position to disclose, given that it was no longer in the possession of the prosecution prior to or during the appellant's retrial.
Miscarriage of justice
48 The Court of Appeal may only overturn the decision of the trial judge if satisfied that a failure to disclose relevant information resulted in a miscarriage of justice. For the reasons given above, I find that there was no breach of the duty of disclosure and as such, am not obliged to consider whether the trial miscarried. However, I have some brief comments to make about whether, irrespective of whether the duty of disclosure was breached, there has been any miscarriage of justice in this case. In my opinion, there has not.
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49 In the first place, several points I have previously raised in discussing whether or not there was a breach of duty also tend against a finding of miscarriage of justice. The appellant himself was aware of the contents of the first VIS, in addition to which transcript from the first sentencing, which was available to the appellant's counsel on retrial, at the very least hinted at the subject matter of the VIS. It cannot be the case in these circumstances that as a result of the document not being provided to the defence counsel, the second trial miscarried.
50 Furthermore, consideration should also be given to the potential weight that might have been given to the statements in the first VIS, had they been available for use by the defence in the retrial. The probative value of those statements is in my view limited. Counsel for the appellant submitted that the contents of the first VIS would have formed the basis of further questioning during cross-examination of the complainant. Specifically, the appellant wished to raise at trial the possibility that the complainant had motive to lie about the offences, suggesting that the complainant fabricated the sexual assault in order to explain transgressions in her teenage years. The appellant says that had the jury been presented with the material from the first VIS at trial, they would have had reason to doubt the complainant's testimony and thus may not have found against the accused. The defence wanted only to raise the possibility of a motive to lie and I accept that it was not necessary to prove the motive.
51 However, the nondisclosure of material in the first VIS that was not already available to the defence on this point would have been of little or no assistance to the defence and its nondisclosure did not lead the trial to miscarry. The appellant's counsel, at the retrial, cross-examined the complainant about her family problems and poor performance at school and questioned the complainant about whether the offence occurred in 1997 or 1998. What the defence wanted to say was that the drug problems and shoplifting disclosed by the first VIS gave the complainant more incentive to lie than the other issues raised above. In circumstances where the offence (and the periods of drug use by the complainant in particular) was a long time ago and where the additional material would be used, if at all, to strengthen an existing line of cross-examination, (rather than to raise a fresh doubt for the jury) I consider that no miscarriage of justice has taken place.
52 For these reasons, I would dismiss the appeal.
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Affidavits and other evidentiary material
53 Prior to the appeal hearing in this matter, on 21 May 2007, the appellant sought leave to file and admit into evidence the two victim impact statements referred to above, as well as the affidavits of Maxwell Ian Crispe dated 9 January 2007, Amanda Natalie Blackburn dated 8 January 2007 and Scott McGavin Mills dated 19 January 2007. At a hearing before Miller JA on 28 June 2007 leave was given to file those documents with the question of whether they were to be admitted into evidence reserved for the Court of Appeal. At hearing, the appeal court reserved its decision on whether these affidavits should be admitted into evidence and also reserved for consideration the question of how the two VISs should be treated.
54 The VISs were before the court at the hearing of this appeal and were referred to by counsel for each party in submissions. The court has read and had regard to the contents of each statement. In my opinion, the statements are necessary materials for the disposition of this appeal and ought to be formally admitted into evidence. Given the limited purpose for which VISs are provided to the court, it is appropriate that the VISs the subject of this appeal be admitted as evidence in this appeal on the proviso that they are not to be made available to any person except with the leave of a judge of the court.
55 Counsel for the respondent objected to the affidavits being admitted into evidence on the grounds of relevance. Mr Crispe's affidavit confirms that the first VIS was returned by him to the prosecution on 28 April 2005. Ms Blackburn is the appellant's current instructing solicitor, and was the appellant's solicitor throughout the retrial. Ms Blackburn swears that prior to 9 November 2006, neither Mr Crispe nor anyone else had advised her of the contents of the complainant's first VIS. More particularly, Ms Blackburn's affidavit confirms that the defendant knew of the contents of the first VIS. I find that both of these affidavits are relevant to points in issue in the appeal and ought to be taken into consideration by the Court of Appeal. I would admit them into evidence.
56 The final affidavit is an affidavit of Scott McGavin Mills, who was the investigating officer responsible for investigating the complaint of sexual misconduct against the defendant. Mr Mills swears that on the morning of the first day of the re-trial, counsel for the defendant asked Mr Mills to obtain details of any criminal convictions against prosecution witnesses, including the complainant. Mr Mills concluded that the complainant did not have a criminal record in Western Australia and
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- conveyed that information to counsel on the same day. Counsel for the appellant submits that this affidavit verifies that the defence were interested in obtaining material that could discredit the complainant. In my opinion, this is not relevant to any matter in issue in the appeal and the affidavit ought not to become evidence before the appeal bench.
Orders
57 For the reasons stated above, I would order that:
1. The appeal be dismissed.
2. The affidavits of Maxwell Crispe and Amanda Blackburn be admitted into evidence.
3. The VIS dated 25 April 2005 and the VIS dated 7 May 2006 be admitted into evidence on the basis that they are not to be made available to any person except by leave of a judge.
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