Eastough v The State of Western Australia [No 2]
[2010] WASCA 88
•11 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EASTOUGH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASCA 88
CORAM: McLURE P
PULLIN JA
MAZZA J
HEARD: 11 MAY 2010
DELIVERED : 11 MAY 2010
FILE NO/S: CACR 148 of 2009
BETWEEN: SHANE DOUGLAS EASTOUGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND GER 60 of 2001
Catchwords:
Criminal law - Appeal against conviction for assault occasioning bodily harm - Direction that interest in outcome of trial relevant factor to assess accused's credibility - Coaccused of successful appellant in Etherton v The State of Western Australia - Appeal out of time - Gross delay
Legislation:
Criminal Appeals Act 2004 (WA), s 10(3)
Result:
Extension of time granted
Appeal allowed
Conviction set aside
Category: B
Representation:
Counsel:
Appellant: Mr I L K Marshall
Respondent: Mr D Dempster
Solicitors:
Appellant: Altorfer & Stow
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bardsley v The Queen (2004) 29 WAR 338
Etherton v The State of Western Australia (2005) 30 WAR 65
Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985)
Noto v The State of Western Australia (2006) 168 A Crim R 457
REASONS OF THE COURT: Before the court are applications for an extension of time within which to appeal and for leave to appeal against conviction. The applications are conceded by the State. Those concessions do not bind this court, although they must be accorded due weight. It is this court's duty to independently assess the merits of each application. It is only if the court itself forms the view that the applications have merit will they be granted: Noto v The State of Western Australia (2006) 168 A Crim R 457.
The appellant, Anthony James Higgins, and Helen Leanne Etherton were charged with assaulting Jason Austin Whitehead and doing him bodily harm. They were tried together before Groves DCJ and a jury in Geraldton. On 26 February 2004 the appellant and Ms Etherton were convicted. Each of them was fined $750. Mr Higgins was acquitted.
In very brief terms, Mr Whitehead testified that the appellant and later Mr Higgins struck him to the mouth while he was seated with them in the rear of a vehicle being driven by Ms Etherton. The State alleged that the appellant and Mr Higgins were principal offenders and Ms Etherton aided them.
The appellant and Ms Etherton each gave evidence at the trial. The appellant denied striking Mr Whitehead to the mouth. Ms Etherton said she was unaware of the alleged assault. The credibility of each of Mr Whitehead, Ms Etherton and the appellant were crucial issues for the jury to decide.
In his summing up, the learned trial judge gave the jury general directions about the task of judging a witness' credibility. At one point he said (ts 385):
In weighing the testimony of a witness you can take into account his or her relationship to the complainant Mr Whitehead, his or her interest insofar as the outcome of the trial is concerned, their manner of testifying, the opportunity which each witness had to acquire knowledge concerning the facts about which that witness has given evidence, and you might have regard also to the extent to which a witness has either been supported by or contradicted by other credible evidence.
Ms Etherton, as the appellant does now, appealed on the basis that this was a misdirection. The Court of Appeal unanimously held that it was, set aside her conviction and ordered a new trial: Etherton v The State of Western Australia (2005) 30 WAR 65. In due course, the State discontinued the prosecution.
Essentially, this Court held that while the direction was expressed to apply to all witnesses, its effect was to invite the jury to discount, to some degree at least, the weight of an accused's evidence for the impermissible reason that he or she had the greatest interest in the outcome of the trial: Etherton v The State of Western Australia [36], [101], [160].
His Honour's direction applied to all of the accused. The reasoning of the court in Etherton v The State of Western Australia applies with equal force to the appellant. Subject to the issue of an extension of time, the appeal must succeed.
The appeal is grossly out of time. It was filed five years and seven months late.
The affidavits of the appellant and the appellant's solicitor show that the appellant wanted to appeal against his conviction from the outset. The delay is not his fault but his solicitor's. The solicitor's explanation for the delay is 'pressure at work'.
This explanation is totally inadequate for such a long delay. If, because of pressure of work, the solicitor was unable to promptly attend to the appeal, the appellant should have been advised to obtain other legal representation.
The time limit of 28 days specified in s 10(3) of the Criminal Appeals Act 2004 (WA), to adopt the words of Burt CJ in Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985), must be taken seriously and every effort must be made to comply with it. The question of an extension of time must not be taken for granted.
The discretion under s 10(3) of the Criminal Appeals Act is wide with the broad question in each case being whether 'it is in the interests of justice to grant the extension' Bardsley v The Queen (2004) 29 WAR 338 [108].
There may well be cases where an extension of time is not granted even where one or more grounds have merit because the delay is very lengthy, unexplained and would result in prejudice if a retrial was ordered: Bardsley v The Queen [109] ‑ [113].
Despite the gross delay in this case, in our opinion, the extension of time should be granted in the interests of justice. The delay was not the appellant's fault. He will suffer a miscarriage of justice if his conviction is not set aside. The State does not seek a retrial and consents to the application.
For these reasons, the following orders should be made:
1.the time for the appellant to commence his appeal is extended to 22 October 2009;
2.leave to appeal is granted;
3.the appeal be allowed and the conviction set aside; and
4.there be no retrial.
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