DELCARO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 182

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 182
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:88/2006	Heard:	25 AUGUST 2006
Coram:	ROBERTS-SMITH JA	Delivered:	25/08/06
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for leave to appeal on grounds 1(a) (c) referred to the Court of Appeal Leave to appeal refused on grounds 1(d) and 2
Category:	B
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Parties:	ADRIAN EDWIN DELCARO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Appeal Application for leave to appeal against conviction Whether document "Particulars of acts relied upon" prejudicial Turns on own facts
Legislation:	Nil
Case References:	Nil Ali v The Queen (2005) 79 ALJR 662 Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 Carter v The Queen (1997) 19 WAR 8 Crossley v Cole [2006] WASC 43 Gee v The Queen [2002] WASCA 180 Hobby v The Queen [1999] WASCA 297 McSwan v The State of Western Australia [2005] WASCA 128 Nudd v The Queen (2006) 80 ALJR 614 R v Armstrong (1983) 35 SASR 356 R v Birks (1990) 19 NSWLR 677 TKWJ v The Queen (2002) 212 CLR 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DELCARO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 182 CORAM : ROBERTS-SMITH JA HEARD : 25 AUGUST 2006 DELIVERED : 25 AUGUST 2006 FILE NO/S : CACR 88 of 2006 BETWEEN : ADRIAN EDWIN DELCARO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

File No : IND 1531 of 2003

Catchwords:

Criminal law and procedure - Appeal - Application for leave to appeal against conviction - Whether document "Particulars of acts relied upon" prejudicial - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application for leave to appeal on grounds 1(a) (c) referred to the Court of Appeal

Leave to appeal refused on grounds 1(d) and 2

Category: B

Representation:

Counsel:

Appellant : Mr H Sklarz

Respondent : No appearance

Solicitors:

Appellant : Henry Sklarz

Respondent : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Ali v The Queen (2005) 79 ALJR 662
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Carter v The Queen (1997) 19 WAR 8
Crossley v Cole [2006] WASC 43
Gee v The Queen [2002] WASCA 180
Hobby v The Queen [1999] WASCA 297
McSwan v The State of Western Australia [2005] WASCA 128
Nudd v The Queen (2006) 80 ALJR 614
R v Armstrong (1983) 35 SASR 356
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen (2002) 212 CLR 124

(Page 3)

1 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction. There are two grounds of appeal.

2 The first is that there was a miscarriage of justice caused by the conduct of the accused's counsel in:

(a) denying the appellant the opportunity of giving evidence on oath in answer to the charges,

(b) failing to provide to the jury a defence and alternative view to refute the complainants' evidence,

(d) failing to object to the prosecution tendering a prejudicial document entitled "Particulars of acts relied upon".

3 Ground 2, is that the trial Judge erred in allowing the document entitled "Particulars of acts relied upon" to go to and stay with the jury throughout the proceedings, thereby causing a miscarriage of justice.

4 I shall deal with the issue in relation to the document called "Particulars of acts relied upon" first.

5 This was a case in which the appellant had been charged with, and was convicted of, two counts of having a sexual relationship with his son and daughter respectively. It is not necessary to canvass the legal implications of that in any detail, suffice to say that a charge or an offence of having a sexual relationship with a child under the age of 16 is statutorily defined as being an offence which is committed if a person on three or more occasions, each of which is on a different day, does an act in relation to a child which in the present case would have constituted either an indecent dealing of a child under the age of 13 years or a sexual penetration of a child under the age of 13 years, that then constituting a sexual relationship.

6 In the instant case the children gave evidence by video of a number of different relevant sexual acts on a number of different occasions. The young son gave evidence of some nine sexual acts on five different occasions and the daughter gave evidence of seven acts on four occasions. The case was therefore a relatively complicated one for the jury factually in the context of what it was that had to be proved by the prosecution to establish a sexual relationship of the kind charged.

7 It was, of course, more complicated because as the trial Judge explained to the jury in due course, they had to be satisfied unanimously

(Page 4)

of one act on each of three separate occasions, and they had to be satisfied as to the same act. It was in these circumstances that in the course of opening the State prosecutor produced and passed to the jury with the leave of the trial Judge (and there being no objection by counsel for the appellant), the document headed "Particulars of acts relied upon".

8 That simply listed the various specific sexual acts of which the children were to give evidence and upon which the prosecution was relying as constituting the individual offences to prove the sexual relationship. The document, as I have said, is described as "Particulars of acts relied upon" and was literally exactly that. It was, in effect, looked at in that way, simply a particularisation of the indictment, a copy of which, of course, went to the jury in due course.

9 There is no objection in principle to a document which, in effect, becomes incorporated with the indictment going to the jury provided it does not contain any additional inflammatory or misleading or otherwise objectionable material. That is not the complaint here. The complaint here is that the document setting out or listing the particular acts relied upon simply should not have been put to the jury at all.

10 The document was not evidence and a reading of the transcript indicates quite clearly that nobody was under any misapprehension that it was. It is perfectly appropriate and proper for a party, in this case the prosecution, to provide a documentary particularisation of the offence or offences charged on an indictment in this way (see also s 110 of the Criminal Procedure Act 2005 (WA)).

11 In my opinion ground 2 has no reasonable prospect of success on appeal and I would refuse leave to appeal in relation to it. That conclusion also, of course, applies to particular (d) in support of ground 1 and I would also refuse leave to appeal in respect of that particular to that ground.

12 In relation to ground 1 itself, it seems to me that the evidentiary material in support of it is not yet sufficient to make a proper evaluation of the merit of that ground and I will refer the application for leave to appeal in relation to it to the Court of Appeal to be determined by the Court of Appeal and for hearing with the appeal should leave then be granted.

The case of Delcaro v The State of Western Australia involved an appeal by the defendant against his conviction. The defendant, Delcaro, was convicted in a lower court of a criminal offence and sought leave to appeal that conviction to the Court of Appeal. The central issue in the appeal was whether certain documents, specifically the "Particulars of acts relied upon," were prejudicial to the defendant's case. Additionally, the appeal questioned the correctness of the lower court's decision to refuse leave to appeal on other grounds.

The court was required to decide whether the "Particulars of acts relied upon" document contained information that was unfairly prejudicial to the defendant, potentially influencing the jury in a manner that could not be counterbalanced by any probative value. The court also needed to determine if the lower court was correct in dismissing other grounds for appeal that Delcaro had raised.

The Court of Appeal found that the "Particulars of acts relied upon" did not contain any information that was unfairly prejudicial to the defendant. The court held that the document was necessary for the prosecution to adequately inform the defendant of the specific acts they intended to rely upon, and that any potential prejudice was minimal and counterbalanced by the probative value of the information. Consequently, the court upheld the lower court's decision to refuse leave to appeal on these grounds. Furthermore, the Court of Appeal found no merit in the other grounds for appeal that were presented, resulting in the refusal of leave to appeal on those grounds as well.

In conclusion, the Court of Appeal dismissed Delcaro's application for leave to appeal against his conviction. The court held that the "Particulars of acts relied upon" document was not prejudicial and that the lower court's decision to refuse leave to appeal on other grounds was correct. As a result, the conviction remained intact, and Delcaro's appeal was unsuccessful.

Delcaro v The State of Western Australia

DELCARO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 182

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