De Alwis v The State of Western Australia

[2013] WASCA 76

DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 76

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 76
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:274/2012	Heard:	ON THE PAPERS
Coram:	MAZZA JA	Delivered:	18/03/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	VIJITHA GAMINI DE ALWIS THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Application to receive copies of jury notes to judge
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 76 CORAM : MAZZA JA HEARD : ON THE PAPERS DELIVERED : 18 MARCH 2013 FILE NO/S : CACR 274 of 2012 BETWEEN : VIJITHA GAMINI DE ALWIS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

File No : IND 1086 of 2011

Catchwords:

Criminal law and procedure - Application to receive copies of jury notes to judge

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b)

(Page 2)

Result:

Application allowed

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 MAZZA JA: The appellant was convicted after trial of causing bodily harm with intent to harm, contrary to s 304(2) of the Criminal Code (WA). The appellant has appealed against this conviction. As yet, the appellant has not filed an appellant's case, but his amended appeal notice contains 25 proposed grounds of appeal.

2 Insofar as the grounds are comprehensible, they allege that:

(a) the verdict was unreasonable and cannot be supported by the evidence;

(b) his Honour misdirected the jury in a number of respects;

(c) his Honour was actually or ostensibly biased against him; and

(d) various miscarriages of justice arose during the course of the trial which unfairly affected the appellant in the conduct of his defence.

3 The proposed grounds of appeal are argumentative, prolix and repetitive. It is hoped that the grounds of appeal to be included in his appellant's case will comply with the requirements in r 32(4)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA), that the grounds be succinct and any particulars concise.

4 By an application in an appeal filed 25 February 2013, the appellant seeks copies of all the notes sent by the jury to the trial judge. The appellant wishes the application to be dealt with on the papers. By an email dated 12 March 2013, the respondent has indicated that it has no objection to this course and does not wish to make any submissions, save that it would regard it as inappropriate to make available to the appellant any note that revealed the jury's deliberations, in particular the result of any vote taken prior to the delivery of the verdict.

5 The appellant's affidavit in support of his application states that during the trial the jury sent the learned trial judge four notes, two of which were copied and given to him. He does not specify which notes were given to him. The appellant deposes that the learned trial judge told him that he would be given the other notes at the conclusion of the trial. He says that this was not done. As the District Court file has now been sent to this court, he requests this court to provide him with the notes. It is clear, on a perusal of the transcript, that his Honour told the appellant that he would be given the notes at the conclusion of the trial (ts 1047).

(Page 4)

6 I have examined the District Court file. The jury sent to the learned trial judge a total of seven notes during the trial. Three notes were sent prior to the jury retiring to deliberate. They concern the scheduling of the trial and a matter relating to a juror's employment and are irrelevant to the appeal. I assume that the appellant's reference to four notes is in relation to the notes sent by the jury during its deliberations. Two of those notes were sent on 14 August 2012, and the other two notes were sent on the following day, 15 August 2012.

7 I can see no reason why the appellant should not be given copies of the notes. However, in respect of the second note provided to his Honour on 15 August 2012, it will be redacted to delete the result of a vote apparently taken prior to the delivery of the verdict. I do so because, in my view, it is not appropriate, nor is it relevant, to divulge that information.

8 I make the following order:

1. The appellant shall be provided with copies of the notes sent by the jury to the trial judge on 14 and 15 August 2012, subject to the second note on 15 August 2012 being redacted to delete the result of a vote taken by the jury prior to the delivery of its verdict.