De La Espriella­Velasco v The Queen

[2005] WASCA 152

DE LA ESPRIELLA­VELASCO -v- THE QUEEN [2005] WASCA 152

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 152
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:130/2003	Heard:	3 AUGUST 2005
Coram:	ROBERTS-SMITH JA	Delivered:	3/08/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Application granted in part
Category:	B
PDF Version

Parties:	FERNANDO DE LA ESPRIELLA­VELASCO THE QUEEN
Catchwords:	Criminal law and procedure Appeal Fresh evidence Application for evidence to be taken via video­link from overseas Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DE LA ESPRIELLA­VELASCO -v- THE QUEEN [2005] WASCA 152 CORAM : ROBERTS-SMITH JA HEARD : 3 AUGUST 2005 DELIVERED : 3 AUGUST 2005 FILE NO/S : CCA 130 of 2003

CCA 146 of 2003

BETWEEN : FERNANDO DE LA ESPRIELLA­VELASCO

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

File No : INS 131 of 2002

Catchwords:

Criminal law and procedure - Appeal - Fresh evidence - Application for evidence to be taken via video­link from overseas - Turns on own facts

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Legislation:

Nil

Result:

Application granted in part

Category: B

Representation:

Counsel:

Applicant : Ms A N Blackburn
Respondent : Mr D W L Renton

Solicitors:

Applicant : D G Price & Co
Respondent : Commonwealth Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil


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1 ROBERTS-SMITH JA: This matter was listed originally to deal with an application by the applicant, who I will describe as the appellant for present purposes, which was filed on and dated 27 July 2005 seeking orders in terms which must be described as novel, at best.

2 The substantive matter is an application for leave to appeal against sentence and a notice of appeal against conviction filed 26 August 2003 and 12 September 2003 respectively following the appellant's conviction in the Supreme Court at Perth on 22 August 2003 of being knowingly concerned in the importation into Australia of not less than a commercial quantity of cocaine between 1 March and 27 July 2001. The appellant was sentenced to life imprisonment on 25 October 2003. The Court set a non-parole period of 26 years.

3 A notice of amended grounds of appeal against conviction was filed on 30 November 2004. No application for leave to amend the grounds of appeal was made until it was made orally by Ms Blackburn this morning and, there being no objection to the amendment of the grounds by the respondent, I gave leave this morning to amend the grounds in accordance with that document. The amended grounds filed on 30 November 2004 contained what is ground 3 in the following terms:

"The occurrence of events subsequent to the Applicant's conviction confirm the validity of the fears held by him as a result of the threats and warnings given to him at the time of the events in question and said to have constituted the defence of duress.

Particulars

(a) On the 4th day of September 2003 a Renault 21 car with 20 kgs of explosive material exploded outside the Applicant's apartment at Parques de Astorga, Calle 9, 43DD31, Poblado, Medellin, Colombia where the Applicant's parents and sister were residing.

(b) The explosion was proceeded [sic: preceded] by a telephone call to the Applicant's brother, Mauricio De La Espriella Velasco [sic], advising that this was a warning and that the Applicant should drop the appeal if he knew what was right for him.

(c) On the 7th day of October 2003 Mr Jose Ebert Hernandez Sanchez, the superior of Mr Juan Carlos Gomez-Marin in

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the company Cotrancitul, was murdered. He was stabbed at his home just outside Medellin, in circumstances suggesting that it may have been related to the events the subject of these proceedings."

4 The other grounds of appeal against conviction raise issues which include duress; the admission into evidence of a taped conversation between the appellant and Ms Gaisa Baroud at Casuarina Prison on 26 May 2003; what is said to be impermissible splitting of the prosecution case; the use by the jury of an English translation of recorded conversations; errors in the trial Judge's directions as to the appellant being "knowingly concerned" in the importation; the poor quality of the "translation" service provided to the appellant by the court appointed interpreter; and the allowance or facilitation by police officers of the disappearance of a witness whose evidence may have materially assisted the appellant.

5 The application filed on 27 July, which Ms Blackburn informs me this morning is now withdrawn, sought orders that the appeal listed for hearing between 15 and 17 August 2005 deal only with grounds 1 and 2 and 4 to 9 against conviction and that should the appeal against conviction be dismissed, the appellant have leave to seek that ground 3 against conviction of the grounds, against sentence be heard at a date to be determined.

6 That application was supported by an affidavit of Amanda Natalie Blackburn sworn and filed on 27 July 2005. It does have some bearing on the application which is, in the end, before the court today. In that affidavit Ms Blackburn deposes in broad terms as follows. She is a solicitor in the firm of D G Price & Co who are the solicitors for the appellant and has the conduct of this matter on his behalf subject to the supervision of her principal and the advice of senior and junior counsel.

7 On 14 July 2005 the court ordered that the appellant file and serve any application for orders to adduce fresh evidence and take evidence by video-link together with supporting affidavits and an outline of submissions and list of authorities by 25 July 2005. The matter is listed, as I have already observed, before the Court of Appeal between 15 and 17 August 2005.

8 In relation to the fresh evidence Ms Blackburn deposes in that affidavit that the fresh evidence that the appellant seeks to rely on is that:

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(a) on 4 September 2003 the Renault car as described exploded in front of the address in which the appellant's immediate family were residing;

(b) the explosion was preceded by a telephone call to the appellant's brother, Mr Mauricio De La Espriella-Velasco, advising that this was a warning and that the appellant should drop the appeal; and

(c) on 7 October 2003 Mr Jose Sanchez, a superior of Mr Gomez in the company Cotrancitul, was murdered.

9 She then deposes to the appellant's efforts to secure fresh evidence. She says that the appellant is incarcerated in the special handling unit at Casuarina Prison and does not speak English so she communicates with and takes instructions from him by his wife, Ms Baroud, who speaks Spanish and English. Since approximately August 2003 the appellant has retained the services of Mr Irwin Lichter, an American attorney who resides in Miami, Florida. Mr Lichter speaks English and Spanish and has experience dealing with South American clients. The appellant's family also retains the services of a Colombian lawyer, Mr Ramiro Irving Garces Arcila. Mr Garces Arcila speaks only Spanish.

10 Since approximately November 2004 Ms Baroud has been attempting to gather statements from Mr Mauricio De La Espriella-Velasco, Mr Gomez and the police involved in the investigation of the bombing and murder previously referred to. Mr Lichter and Mr Garces Arcila have been assisting with this process. Ms Blackburn deposes that on 15 April 2005 Ms Baroud provided her with an unsigned faxed copy of a police report regarding the bombing and also with a faxed copy of a letter from Mr Gomez which stated that he was unwilling to assist any further with the proceedings as he was afraid it would result in harm to his or his family's personal safety.

11 On 16 May 2005 she met with Mr Percy QC, senior counsel for the appellant, and junior counsel, Mr Davies, together with Ms Baroud. She says that at that meeting senior counsel advised that she needed to obtain affidavits in the proper form from Mr Mauricio De La Espriella-Velasco and the police involved in the investigation of the bombing and the murder; that she should request Mr Lichter and Mr Garces Arcila assist in arranging for these documents to be prepared and sworn; and that she should organise a video-link between Colombia and Perth so that the witnesses would be available for cross-examination if the Crown required.

12 She states that in the weeks following the meeting of 16 May 2005 she prepared draft forms of those affidavits and they were settled by

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Mr Davies. She later emailed the draft affidavits to Mr Lichter and requested that he travel to Colombia to meet with the witnesses, make any necessary amendments to the affidavits and arrange for the witnesses to swear them. On 22 June 2005 she says she spoke to Mr Lichter over the telephone and requested he arrange a video-link between Colombia and Perth for 15 or 16 August 2005 and he advised that he would do so.

13 She also deposes, however, that during the conversation on 22 June Mr Lichter advised that he believed there may be some difficulty with each of the Colombian witnesses giving evidence via video-link; that Mr Garces Arcila had explained that Colombian law prohibits Colombian citizens from giving evidence in cases that are still under investigation; and that Mr Garces Arcila had advised that both the murder and the bombing were still under investigation.

14 She then states that Mr Lichter advised her that in late June and early July he travelled to Colombia. On approximately 14 July 2005 Ms Baroud provided her with affidavits sworn by Mauricio De La Espriella-Velasco regarding the bombing and a police officer, Mr Bryon Ernesto Ordonez Portilla, also regarding the bombing. Ms Baroud advised her that Mr Lichter had not been able to obtain an affidavit from the police officer involved with the investigation of the murder.

15 Ms Blackburn deposes that on 15 July 2005, Ms Baroud provided her with an affidavit sworn by Mr Gomez and advised her that the only person prepared to give evidence via the video-link was Mr Garces Arcila. He could give evidence to the effect that he is aware Mr Mauricio De La Espriella-Velasco and Mr Bryon Portilla signed affidavits regarding the bombing but pursuant to Colombian law they are unable to give evidence regarding those events as the police investigation is ongoing.

16 She then says that on 24 July 2005 she met with senior counsel who advised that they required a witness who could give first hand evidence of either the bombing or the murder to support ground 3 of the amended grounds of appeal against conviction. She states that she is informed by Mr Nicol of D G Price & Co and believes that on 25 July he spoke to Ms Baroud and gave her senior counsel's advice regarding ground 3.

17 Ms Baroud had informed Mr Nicol that the appellant was nonetheless very keen to pursue this ground of appeal. On 24 July 2005 Mr Nicol and Ms Blackburn met again with senior counsel and during that

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meeting telephoned Ms Baroud to further discuss the appeal. During that discussion Ms Baroud advised them that she had requested an affidavit from a further police officer, Mr Luis Anibal Lora Jaramillo, who was involved in the investigation of the bombing. She said that Mr Jaramillo has recently retired and accordingly is no longer prohibited from giving evidence regarding the bombing. She then says at the time of affirming this affidavit, the firm had not received an affidavit from Mr Jaramillo, but had provided a letter to the Colombian consulate in Australia who had agreed to forward the letter to him on an urgent basis.

18 She says given the difficulties the firm has had communicating with the Colombian witness and that the appeal was due to be heard in approximately three weeks, it did not appear that the appellant would be in a position to pursue ground 3 of the amended grounds of appeal on those dates. She says until they received an affidavit or more precise information from Mr Jaramillo, they would also have significant difficulty in drafting submissions regarding this ground.

19 She concludes that she has also been informed by Mr Nicol that on 27 July 2005 Ms Baroud advised him that she was also attempting to arrange for Juan Carlos Gomez and the brother of the murdered man to give evidence if required. As I have observed, the application of 27 July has been overtaken by events yesterday, on 2 August.

20 The appellant faxed a further application seeking orders that leave be granted to adduce fresh evidence from the witnesses Mauricio De La Espriella-Velasco, Juan Carlos Gomez, Nelson Hernandez Sanchez, Luis Anibal Lora Jaramillio and Ms Baroud as to the events contained in their affidavits, and an order that the witnesses Mauricio De La Espriella-Velasco, Juan Gomez, Nelson Sanchez and Luis Jaramillo have leave to give evidence by way of video link between Perth and Colombia commencing at 9 am on 17 August 2005. That is supported by a further affidavit of Ms Blackburn dated 2 August 2005.

21 There, Ms Blackburn deposes inter alia that subsequent to her affidavit of 27 July, Ms Baroud (who, I observe, is the appellant's wife) has advised that she has contacted the Colombian government which has given leave for those witnesses to give evidence by way of video-link and that as the Colombian government has made an exception in permitting that, that is, in permitting the above witnesses to give evidence between 15 and 17 August 2005, it is likely to be very difficult to persuade the government to allow them to give evidence on a later date should the appeal be part-heard. She deposes:

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"the above witnesses are fearful of the consequences to themselves and their families of giving evidence, and Ms Baroud is likely to have difficulty persuading them to give evidence on some later date."

22 Accordingly the appellant has instructed his solicitors to pursue the fresh evidence argument at the hearing of the appeal on 15 to 17 August. Attached to Ms Blackburn's affidavit is an affidavit in English sworn by Mr Jaramillo which I do not propose to read but suffice to say it outlines the basic events surrounding his observations and/or findings of the explosion on 4 September 2003.

23 Ms Blackburn deposes that Ms Baroud has told her that she is expecting to receive an affidavit sworn by Mr Sanchez by 5 August and she understands, based on Ms Baroud's advice, that Mr Sanchez would be able to give evidence to the effect that in approximately September 2003 he was with his brother Ebert Sanchez on an occasion when two unknown men appeared and threatened his brother. The threats were to the effect that if Ebert Sanchez could not account for the whereabouts of one Carlos Gomez, the men would hold him - that is, Ebert Sanchez - responsible.

24 She deposes that a short time later Ebert Sanchez was discovered murdered and that Nelson Sanchez attended the morgue with Ms Baroud and identified his brother's body. She says that although she was aware of the court's order of 14 July, that if the appellant wished to adduce fresh evidence he must apply for leave to do so, supported by an affidavit and submissions by 25 July 2005, that was not done due to senior counsel's instructions on 24 July, to which she has earlier referred.

25 The matter has already had a long and unsatisfactory history.

26 As I have indicated, the application for leave to appeal against sentence was filed on 26 August and the notice of appeal against conviction was filed on 12 September 2003. The appellant's solicitors who acted for him at trial ceased to act on 24 March 2004 and his present solicitors came on the record on 19 May that year. On 26 August there was a request by a letter that the listing of the appeal be deferred because the appellant was seeking a report from "an expert" in the Colombian language, as it was put.

27 On 25 November 2004 the appellant's solicitors advised the Court that the matter was ready to be listed and on 30 November the notice of amended grounds of appeal against conviction was filed. In January 2004 the appeal was listed for hearing from 14 to 16 March that year but on

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15 February there was an application to vacate the hearing dates. Apparently the expert report on the translation of the transcript was not available until 23 February, which was insufficient time for the respondent to consider it.

28 On 21 February 2005 Steytler P ordered that the hearing dates be vacated and the matter was re-listed for 15 to 17 August 2005. There was subsequent correspondence between the solicitors and the Court of Appeal office. In response to an inquiry from the Registrar on 24 May 2005, the appellant's solicitors replied by letter dated 26 May that preparation of the appeal was proceeding satisfactorily for the appellant.

29 The Registrar made certain orders on 10 June as to the filing of appeal books and submissions. On 17 June the respondent advised that it appeared that preparation for the appeals was progressing in a satisfactory manner, but in letters received by the Court dated 5 and 8 July 2005 the appellant's solicitors wrote requesting arrangements be made for a video-link for witnesses in Colombia. They said that they were in the process of obtaining affidavits from these witnesses and said they were aware that the respondent may wish these witnesses to be available for cross examination.

30 There was no application made for leave to adduce fresh evidence nor any other application of any kind made at the time.

31 On 13 July 2005, the Registrar spoke to the appellant's solicitors, advising that interim applications were needed to adduce fresh evidence and to approve the video-link proposal.

32 On 14 July the Registrar made certain orders that the appellant file and serve any application for interim orders for fresh evidence and/or video-link together with submissions in support by 25 July and the respondent file and serve affidavits and submissions within four days of service.

33 It is apposite to observe at this point that the use of video-link evidence is covered by s 121 of the Evidence Act 1906 (WA), which allows a court in this State, on its own initiative or on the application of a party to a proceeding, to direct that evidence be taken by video-link, whether from within or outside the State. Section 121(2) provides:

"The court shall not make such a direction unless the court is satisfied that -

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(a) a video link or audio link is available or can reasonably be made available; and

(b) the direction is in the interests of justice."

34 Of course that section is concerned only with the manner in which the evidence may be received. It says nothing about the admissibility of evidence nor about whether evidence which is described as fresh evidence will be received by the Court. Those matters are of course subject to consideration and determination according to the ordinary principles, and an application is required to enable that determination to be made.

35 On 25 July 2005 the appeal books were filed, and I should note that they contained affidavit material or other material from at least some of the witnesses to whom I have already referred, even though no application had at that stage been made in relation to it. Also on 25 July, the Court made an inquiry of the appellant's solicitors, pointing out that no application had been filed, as required by the order of the Registrar. The solicitors advised that they would not be making an application at that stage, counsel having advised that ground 3 should be abandoned.

36 On 27 July the Court officer telephoned the solicitors again requesting written confirmation that the application was not proceeding and was informed that the solicitors intended to seek to split the hearing of the grounds. On that date, the first interim application and supporting affidavit were filed, as I have noted.

37 The application of 27 July is now effectively redundant, it having been withdrawn, but it is appropriate nonetheless to deal with it briefly because some aspects of it also bear on the application which is still extant.

38 What the appellant sought was for the Court to proceed with the hearing and determination of his appeal against conviction on all grounds except ground 3, and that when the appeal to that extent was determined by the Court and its decision was handed down, if the appeal were dismissed on those grounds, he then be allowed to further continue his appeal against conviction on ground 3.

39 Quite apart from other obvious difficulties with that proposal, it confronts a fundamental obstacle, which is that were the Court to proceed to determination of the appeal as asked and dismiss it on those grounds, the appellant's right to appeal or to seek leave to appeal under s 688 of the Criminal Code (WA), or now under s 23 and s 27 of the Criminal Appeals

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Act 2004 (WA), would be exhausted. A further appeal would only be possible by way of a reference to the Court of Appeal from the Attorney General upon petition under s 140 of the Sentencing Act 1995 (WA).

40 The alternative is that the Court hear the appeal on all grounds except ground 3 and then deliver reasons without dismissing the appeal (should that otherwise be the effect of the reasons) and remain effectively part heard, so that in that event the appellant could later return and argue ground 3. This proposal is untenable and would have to have been rejected in any event. It would contemplate the Court being part heard, so that the same coram would have to be available to hear the balance of the appeal. Ground 3 is currently unsupported by any evidentiary or factual material. It pre-supposes a number of imponderables. The first is that leave to adduce fresh evidence of the kind described would be given. The ground as formulated does not immediately suggest such leave would be likely, even if evidence relevant and cogent to the point asserted were to be available.

41 It is difficult to see at first blush how events subsequent to the appellant's conviction could bear relevantly upon a defence of duress arising out of events and his state of mind leading up to and at the time of the offence. Be that as it may, the particulars are vague - for example, particular (c), which asserts that a murder in Colombia was committed in circumstances "suggesting" that it "may have been" related to the events the subject of these proceedings. It is apparent from Ms Blackburn's affidavits that what the witnesses might say is still, to some extent, speculative and whether what they say would ultimately have any relevance is proble matical. It may be anticipated that the respondent would want an opportunity to have investigations conducted through the Colombian authorities and that cross examination of the deponents would be required. Indeed, Mr Renton has foreshadowed that will be so. It is quite possible the respondent may seek to lead evidence of its own. The time frame in which those things might have occurred cannot possibly be predicted. It is significant though that the appellant's lawyers are making this application, for the reasons given now, so close to the hearing dates, even though ground 3 has been in the grounds of appeal since November 2004.

42 To that extent and to the extent affidavits of some of these witnesses were included in the appeal books on what was apparently an entirely speculative basis, the respondent has had some notice of the sort of evidence which it is anticipated would be given.

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43 In any event, it is clear that were the matter to have proceeded in the way envisaged by the first application, it could well have been years rather than months before the proposed further appeal on ground 3 might proceed. Indeed, there would have been no degree of assurance that it would actually have eventuated at all, even after that time. That is in a context in which, as I have noted, this appeal has already been on foot for some two years.

44 The events out of which the convictions arose occurred some four years ago. Should the appeal succeed and a new trial be ordered, that would be unlikely to be heard for at least another 12 months and quite probably longer. Witnesses would be required to give evidence about matters which occurred six or seven years earlier. Such a lapse of time would also potentially affect the availability of witnesses.

45 The appeal was already listed for hearing on one earlier occasion which had to be vacated. Three days have been set aside for this Court to hear it, from 15 August, those dates having been set as long ago as February this year. The appeal as a whole and as to both conviction and sentence should proceed to completion on the dates listed. The interests of justice require it. For those reasons, the initial application, had it been pursued, would necessarily have been refused.

46 Nonetheless, as I have said, that background does also bear upon the present application for leave to adduce fresh evidence and for that evidence to be led, at least in part, by way of video-link to Colombia.

47 I have come to the conclusion, not without some hesitation, that it is in the interests of justice that the evidence be available to the Court on the hearing of the appeal so that the Court is able to make an informed and considered determination in respect of the admissibility of each item of it. As I understand it, the respondent does not oppose the evidence being received in this way for that initially limited purpose, although maintaining its objections to the admissibility of the evidence, especially in respect of ground 3.

48 The next consideration under s 121 is, of course, whether or not the video-link is available or is reasonably likely to be. Evidence on this is limited in the extreme. It really amounts to no more than Ms Blackburn asserting that Mr Lichter, the lawyer who operates out of Miami in the United States, has had some experience in arranging video-links from Colombia of this kind and is able and prepared to do so.

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49 From the Bar table she told me this morning that the video-link would be made available from a government building. That, I think, was about all she could add. There is a very real concern about this. As Mr Renton points out, there is no confirmation before me from the Colombian government, nor, I might add, any government, public or commercial organisation. No details are given of the arrangements proposed other than that they should commence at 9 am Perth time on 17 August. Nothing is said as to the location and whether the facilities will be compatible with the court system or the time for which they will be available and, importantly, under whose control or authority the location is, and so on.

50 Given that the link is proposed for some location in Bogota, which is the capital city of Colombia, it is reasonable to assume there would be internationally compatible video-link facilities available in that city. Ms Blackburn says the link will be available and able to proceed. Although the material provided in support of this aspect of the application is quite inadequate and unsatisfactory, I have nonetheless, having heard from Ms Blackburn today, come to a just sufficient degree of satisfaction that the video-link can be made available. I will accordingly make the order sought.

51 There is also an oral application for leave to adduce fresh evidence from the appellant's wife, formerly Ms Baroud, now Gaisa Lisa De La Espriella, and Ms Vezna Amidzic who was the appellant's solicitor at trial.

52 Ms Baroud would be saying, as I understand it, that she married the appellant after trial and she would describe her role prior to trial as interpreter and meeting with the appellant in prison. That, of course, goes to the ground which concerns the covert taping of conversations between her and the appellant. She would also, it is said, give evidence as to her viewing of the body of Jose Sanchez, her efforts to locate Mr Gomez and a meeting with him somewhere outside of Medellin, Colombia, which was videotaped and of which she has a transcript.

53 The evidence of Ms Amidzic would be again in support of the ground going to Ms Baroud's role as an intermediary between the appellant and Ms Amidzic as his legal representative. I make no observations nor comments about the nature or quality of the evidence other than to recognise that at least to some extent it, on the face of it, does go to a ground which it is proposed to argue.

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54 It seems to me under the circumstances again that leave to adduce that evidence should be granted on the same basis I have indicated earlier.

55 I make it plain that I am making here no ruling whatsoever about the admissibility of any of this evidence; that is, of the appellant's wife, of Ms Amidzic or that of the video-link witnesses. The question of the admissibility of the evidence is reserved for the Court of Appeal on the hearing of the appeal. The same applies to the question of leave to appeal in respect of the grounds contained on the amended notice dated 30 November 2004. The respondent's position is that ground 3 is not a proper ground and leave to appeal should not be granted in respect of it. That will be a matter for determination by the Court of Appeal.

56 It is self-evident that if the Court were to refuse leave on that ground, most of the evidence the subject of the present applications would fall away. However, it is, in my view, in the interests of justice that the evidence be available to the Court, both to enable that initial determination to be made on an as informed basis as possible and to avoid the necessity of an adjournment and further hearing should the Court decide to give leave to appeal on ground 3 and admit all or part of that evidence on the appeal.