Dixon v The State of Western Australia
[2013] WASCA 171
•30 JULY 2013
DIXON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 171
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 171 | |
| 30/07/2013 | |||
| Case No: | CACR:123/2013 | 27 JUNE 2013 | |
| Coram: | MAZZA JA | 27/06/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK PETER DIXON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | KWLD v The State of Western Australia [2013] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DIXON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 171 CORAM : MAZZA JA HEARD : 27 JUNE 2013 DELIVERED : 27 JUNE 2013 PUBLISHED : 30 JULY 2013 FILE NO/S : CACR 123 of 2013 BETWEEN : MARK PETER DIXON
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1300 of 2012
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms S Linton
Solicitors:
Appellant : Frederick Butafa Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
KWLD v The State of Western Australia [2013] WASCA 129
1 MAZZA JA: (This is a decision delivered orally and subsequently edited from the transcript.)
2 Before me is an application filed 12 June 2013, for bail pending appeal pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA), or, alternatively, an urgent appeal order.
3 The appellant was convicted in the District Court, after trial, of grievous bodily harm. On 12 June 2013, he was sentenced to 2 years 8 months' imprisonment, with eligibility for parole. On the same day as he was sentenced, the appellant filed his notice appealing against his conviction.
4 The facts of the offence as found by the trial judge in the sentencing proceedings, are as follows.
5 On 22 January 2011, the victim, Mr Herbert, was in an intoxicated state in the Studio 146 nightclub in Albany. Mr Herbert was accosted and assaulted on the dance floor by an off-duty bouncer, a man known as Skinner. The victim sank to the floor and may have been temporarily rendered unconscious. Whatever the precise situation, he was in a vulnerable state. While in this state, the appellant kicked him once to the face, in the area of the right cheekbone. As a result, the victim suffered serious and permanent facial injuries, constituting grievous bodily harm. The issue at trial, it seems, was identification. The appellant did not give evidence at trial, but his defence was conducted in such a way as to give rise to that issue.
6 The draft grounds of appeal are:
1. Material evidence in the possession of the police and, at the least, available to the prosecution, that was consistent with innocence and exculpatory to the Appellant, was not disclosed to the Appellant's counsel at trial, which non-disclosure amounted to a miscarriage of justice.
2. There was a miscarriage of justice when defence counsel failed to cross-examine the doctor as to a material fact:
2.1 Counsel failed to ask the doctor whether the injury attributed to the actions of the applicant could have occurred as a result of another offender, at a time when the applicant was not a party to the incident.
8 The alleged exceptional circumstances in this case are the strength of the draft grounds of appeal, particularly draft ground 1, and the, claimed, relatively short length of the sentence.
9 The argument as to the strength of the grounds of appeal, as I have indicated, focussed on draft ground 1, which alleges a failure to disclose relevant material to the defence prior to trial. This allegation concerns closed circuit television (CCTV) footage of the incident inside the nightclub. It is said that at the trial, the principal investigating officer, Detective Senior Constable Yuswak, testified that, from what he had been told, there was no CCTV footage inside the nightclub. I am not, at this point, persuaded that this was, in fact, the effect of his evidence, but I will assess this application on that basis.
10 Since the trial, the appellant's new lawyers have undertaken further inquiries. It is now alleged that, in fact, there was CCTV footage and that CCTV footage was handed over to Detective Senior Constable Yuswak. This allegation is disputed by the State. The State's position is that no CCTV footage was provided to the police. Accordingly, on the State's case, any disclosure obligation in relation to that material did not arise. The parties have provided me with a good deal of material, being:
(1) the affidavits of the appellant's present solicitor, Frederick Butafa, dated 12 and 18 June 2013;
(2) the affidavit of Malcolm Joseph Pages, one of the proprietors of Studio 146, dated 25 June 2013;
(3) the affidavits of Detective Senior Constable Yuswak. The first is undated but filed 14 June 2013. The other two were both sworn and filed on 26 June 2013;
(4) the affidavit of Sergeant Pheasant, the Property and Exhibits Manager for the Albany Police Station, sworn 24 June 2013; and
(5) the police running sheet for the investigation.
11 The effect of Detective Senior Constable Yuswak's affidavits is that on 1 March 2011, he spoke to Mr Pages and requested any CCTV footage of the incident on 22 January 2011. He said that after that conversation, he emailed Mr Pages seeking a copy of the nightclub's occurrence report of the incident. The running sheet indicates that Detective Senior Constable Yuswak spoke to Mr Pages on 1 February 2011. Detective Senior Constable Yuswak says that this is an error because, first, the data entry note on the running sheet reads '05/03/11'; second, the email that I’ve referred to is dated 1 March 2011; and third, the victim did not report the incident to Detective Senior Constable Yuswak until 8 February 2011.
12 Mr Pages, in his affidavit, says that having seen the running sheet he accepts that on 1 February 2011 he spoke to Detective Senior Constable Yuswak. Mr Pages says that he met with Detective Senior Constable Yuswak within 24 hours of that call and, if he had been requested, he would have handed over the CCTV footage. He does not say that he was asked to hand over the footage. Further, he does not say that he actually handed over the footage. Mr Pages goes on to say that he recalled that after the meeting on 1 February 2011, Detective Senior Constable Yuswak went on leave for three or four weeks. Mr Pages accepts that around 1 March 2011 he spoke to Detective Senior Constable Yuswak by telephone, but by then, he said, any CCTV footage of the inside of the nightclub would have been recorded over.
13 The effect of Sergeant Pheasant's affidavit is that there is no record of any CCTV footage of the incident being handed to the Albany Police by Mr Pages or anyone else.
14 There is clearly a factual dispute about whether there was a conversation between Mr Pages and Detective Senior Constable Yuswak on 1 February 2011 and a subsequent meeting. I note that Mr Pages does not unequivocally state he handed Detective Senior Constable Yuswak any CCTV footage of the incident. Issues of the credibility of Detective Senior Constable Yuswak and Mr Pages arise which cannot be resolved on the affidavits, and I have not been asked by the parties to hear oral evidence on the question.
15 In these circumstances, it is not possible at this time to be satisfied that there has been a breach of a prosecutor's disclosure obligations. But even if there was, it is not clear how the CCTV footage would have affected the trial, and in particular, the conduct of the defence.
16 The evidence before me is to the effect that the CCTV cameras do not record what occurs on the dance floor. Mr Watters, counsel for the appellant, submitted that the vision could have been used to discredit the eyewitnesses to the incident, or to record the appellant leaving the nightclub before the incident is said to have occurred. These propositions, at the moment, are no more than assertions and cannot be sustained.
17 For these reasons, at the present time, I am not persuaded that draft ground 1 has strong prospects of success.
18 The second draft ground was not, in any way, developed before me. It is, in substance, an allegation of miscarriage of justice as a result of the incompetence of the appellant's trial counsel. There is no material to enable me to assess the strength of this ground.
19 The other aspect of the appellant's submission concerning exceptional circumstances is the alleged relatively short length of the sentence that has been imposed upon the appellant. The appellant's earliest date for release on parole is October 2014. If the appeal is proceeded with expeditiously, it will most likely be heard by the end of the year. The argument put on behalf of the appellant is that if that occurs, he will have served a substantial portion of the custodial part of his sentence, in which case, his appeal, if successful, will be rendered largely nugatory. I do not accept this submission. By December 2013, or thereabouts, the appellant will have served not yet half of his non-parole period. If his appeal succeeds, I do not think it can be said to have been largely or substantially nugatory.
20 To conclude then, I am not satisfied, at this stage, that exceptional circumstances exist that would justify a grant of bail, nor am I, in the circumstances, prepared to make an urgent appeal order. The order that I make is that the appellant's application for bail pending appeal, or, alternatively, an urgent appeal order dated 14 June 2013, is dismissed.
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