Featherston v The State of Western Australia
[2006] WASCA 136
•22 JUNE 2006
FEATHERSTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 136
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 136 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:242/2005 | 22 JUNE 2006 | |
| Coram: | ROBERTS-SMITH JA | 22/06/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1 and 4 Leave refused on grounds 2 and 3 Appeals to be heard together | ||
| B | |||
| PDF Version |
| Parties: | SHANE ROBERT FEATHERSTON THE STATE OF WESTERN AUSTRALIA LLOYD EDWARD ROBINSON |
Catchwords: | Criminal law and procedure Appeal Application for leave to appeal against conviction Credibility of principal prosecution witness Lack of corroboration Failure of subpoenaed witness to attend Whether miscarriage of justice "Fresh evidence" emerging since trial Witness identified No knowledge of what witness would say Whether miscarriage of justice Whether reasonable prospects of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 27 |
Case References: | Samuels v The State of Western Australia (2005) 30 WAR 473 Bushell v Repatriation Commission (1992) 175 CLR 408 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Chidiac v The Queen (1991) 171 CLR 432 Davies and Cody v The King (1937) 52 CLR 170 Doney v The Queen (1990) 171 CLR 207 Jones v Dunkel (1959) 101 CLR 298 M v The Queen (1994) 181 CLR 487 Morris v The Queen (1987) 153 CLR 454 R v Apostilides (1984) 154 CLR 563 R v Ireland (1970) 126 CLR 321 Ratten v The Queen (1974) 131 CLR 510 Whitehorn v The Queen (1983) 152 CLR 657 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FEATHERSTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 136 CORAM : ROBERTS-SMITH JA HEARD : 22 JUNE 2006 DELIVERED : 22 JUNE 2006 FILE NO/S : CACR 242 of 2005 BETWEEN : SHANE ROBERT FEATHERSTON
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 1057 of 2004
Catchwords:
Criminal law and procedure - Appeal - Application for leave to appeal against conviction - Credibility of principal prosecution witness - Lack of corroboration - Failure of subpoenaed witness to attend - Whether miscarriage of justice - "Fresh evidence" emerging since trial - Witness identified - No knowledge of what witness would say - Whether miscarriage of justice - Whether reasonable prospects of success
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Result:
Leave to appeal granted on grounds 1 and 4
Leave refused on grounds 2 and 3
Appeals to be heard together
Category: B
(Page 3)
Representation:
CACR 242 of 2005
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
CACR 247 of 2005
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Samuels v The State of Western Australia (2005) 30 WAR 473
Case(s) also cited:
Bushell v Repatriation Commission (1992) 175 CLR 408
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Chidiac v The Queen (1991) 171 CLR 432
Davies and Cody v The King (1937) 52 CLR 170
Doney v The Queen (1990) 171 CLR 207
Jones v Dunkel (1959) 101 CLR 298
M v The Queen (1994) 181 CLR 487
Morris v The Queen (1987) 153 CLR 454
(Page 4)
R v Apostilides (1984) 154 CLR 563
R v Ireland (1970) 126 CLR 321
Ratten v The Queen (1974) 131 CLR 510
Whitehorn v The Queen (1983) 152 CLR 657
(Page 5)
1 ROBERTS-SMITH JA: These are two applications for leave to appeal against conviction. They are heard together because the appellants were convicted after a joint trial of the same offence and their grounds of appeal are identical.
2 The appellants were charged with three counts by indictment dated 13 May 2004. They were first that on 23 January 2003 at Maddington the appellant Featherston wilfully and unlawfully damaged a motor vehicle. Count 2 is that on the same date and at the same place each of them unlawfully assaulted Tal Parnell Boyd and thereby did him bodily harm; and by count 3, each was charged that on the same date and place each of them stole from Tal Parnell Boyd, with violence, a wallet the property of Boyd, and that at the time each were in company with each other and that they did bodily harm to Boyd.
3 On 28 November 2005, following trial before his Honour Judge Williams and a jury in the District Court the appellant Featherston was found not guilty on count 1 but guilty on count 2, and not guilty on count 3. The appellant Robinson was found guilty on count 2 but not guilty on count 3. The appeal notices were filed on 16 December 2005. The Appellants' Cases, which are again identical, were filed on 30 May 2006.
4 By s 27 of the Criminal Appeals Act 2004 (WA) leave of the Court of Appeal is required for each ground of appeal. Furthermore, by subs (2) of that section, once an appeal is commenced the court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. The proper application of that test was explained by the Court of Appeal in Samuels v The State of Western Australia (2005) 30 WAR 473 at [50] to [59]. That is the approach which I adopt to these applications.
5 Although a single Judge may grant or refuse leave to appeal on the papers without hearing oral submissions from either the applicants or the respondent - see r 7 and r 43(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) - it is the practice of this court that where a single Judge is of the view that leave to appeal may be refused in relation to one or more grounds of appeal, the application will be listed ex parte to afford the applicant opportunity to make oral submissions in support of the application for leave.
6 That is what I did here. Each of the appellants has been afforded an opportunity to make further oral submissions but each has chosen to rely on the written documentation contained in the Appellant's Case. The
(Page 6)
- appellants are self-represented. I observe in passing that the written submissions contained in the Appellant's Case in each instance are comprehensive, comprehensible and well presented.
7 There are four grounds of appeal set out in the Appellant's Case. They are first that the evidence when viewed as a whole is not of sufficient credibility to support a conviction and thus the verdict of the jury in respect of the conviction was unsafe and unsatisfactory. Various particulars are given in relation to ground 1. Ground 2 is that the Crown failed to produce key witnesses to corroborate the complainant's allegations.
8 The particulars given in relation to that are that a key Crown witness, one Samantha Brown, was ordered by way of subpoena to attend the trial and give evidence in relation to the offence. Ms Brown ignored the subpoena, was detained, or otherwise failed to present herself in court. Thus, the particular goes, the Crown failed to establish corroboration of the complainant's allegations and furthermore denied the accused the opportunity to adduce further evidence from Ms Brown that may have been exculpatory to the appellants through cross-examination.
9 Ground 3 is that the verdict of the jury in respect of the conviction was unsafe and unsatisfactory, having regard to fresh evidence that has emerged since the hearing of the trial, which evidence was not known, disclosed or available at the time of the trial. The particulars to ground 3 are that a second person nominated by the complainant to have been witness to the offence could not be identified or located prior to the commencement of trial.
10 That person has, it is asserted, since the trial been identified as one Douglas Sutton, currently a prisoner at the Wooroloo Prison Farm. As a witness to the offence and in the absence of any other corroboration to this matter Mr Sutton should be compelled to attend the Court of Appeal to either corroborate or rebut the complainant's allegations that he witnessed the assault upon the complainant.
11 Ground 4 is that the learned trial Judge erred in failing to direct the jury as to the weight that the jury could give, and adverse inferences the jury could draw, with respect to the highly prejudicial statements made by the complainant in his evidence in chief. Various particulars are given of ground 4.
(Page 7)
12 I should say at once that I propose to grant leave to appeal in respect of grounds 1 and 4 so it is unnecessary for me to say anything further about them.
13 In relation to the other grounds, Mr Boyd the complainant gave evidence at trial. In very brief summary, his evidence was that he knew Robinson as at January 2003 and took to him a quantity of amphetamines from one Dave Fisco to see whether Robinson was interested in buying some in bulk. He said he did that but Robinson described them as "shit" and he took them away and returned them to Fisco.
14 Later on Fisco gave him another batch to take to Robinson, which he did, and Robinson's reaction was the same and again Boyd returned the drugs to Fisco. Eventually Robinson, according to Boyd, told him not to bother bringing any more around. Fisco was apparently annoyed at this and told Boyd to send a message to Robinson that he was standing on some big toes and was going to get squashed.
15 Boyd said he got hold of Featherston by telephone and passed the message on to him and asked him to in turn pass it on to Robinson, which he said he would. Subsequently Boyd said he got a threatening phone call from Robinson about half an hour later, who threatened to smash his face in.
16 A couple of weeks later he was at an associate's place to pick up a computer. Also there was his girlfriend, who he named as Sam, and another bloke by the name of Doug. Boyd said he did not know Sam's second name nor Doug's, having only met him a couple of times.
17 A little later he was standing outside the front of the house when a car, as he put it, "screamed up" out the front and there was a loud bang. He saw the front gate come open and Featherston came running up the driveway with a big lump of wood in his hand, yelling at him as he went past. According to Boyd, Featherston smashed the back windscreen of his car and then swung at his knees with it.
18 Boyd blocked the blow with his right hand and was hit. Featherston ended up getting him in a headlock and at the same time yelled to Robinson to try and hit him. That was the first occasion he realised Robinson was there. They were trying to kick and hit Boyd. Featherston had him in a headlock trying to hit him with his other free hand and Robinson was trying to hit him with his feet and his hands. They were hitting him around the head, legs and back.
(Page 8)
19 Boyd said he did not really remember a great deal of what happened after that. Featherston hit him with a lump of wood in the head and it all became very vague. By that time Featherston had released him from the headlock. He blacked out and was very dazed. He did remember that when they were running down the driveway Featherston yelled out he was going to get Boyd's missus and Robinson yelled out, "Look who gets squashed now." He said his wallet was taken and then they ran off and he heard a car drive away.
20 As I say, that is a very brief outline of the evidence given by Boyd. Samantha Brown was subpoenaed by the prosecution but did not attend. According to the State prosecutor (at t/s 76), the State was not able to get a statement from her because she had avoided giving one but she had been subpoenaed. What the prosecutor proposed to the Judge in the absence of the jury was that she should be called and required to give evidence in the absence of the jury, as he put it:
"… just to see whether she is here and then I would make her available for the defence, if they wanted her to be called, I would call her and let them cross-examine her. I wouldn't ask her any questions."
21 She was called but was not present.
22 Detective Senior Constable Marshall was one of the investigating officers and he gave details of his attempts to contact Samantha Brown. At t/s 85 he indicated that he attended a previous address which he had for her in Gosnells and left numerous calling cards for her to call him. On one occasion she telephoned him at his office and when he spoke to her she claimed she didn't know the complainant Boyd, nor did she know of the incident which the detective was investigating, and she refused to be interviewed or to attend a police station to provide a statement.
23 He said that at a later date he found a new address for her and went to that house and again left calling cards but she has never made contact with him since. He was aware from an officer of the DPP that a subpoena had been served on her to attend and he had left telephone messages on her home telephone to remind her of her obligation to do so.
24 There was some cross-examination of Detective Marshall about Ms Brown, a deal of it which elicited evidence which was clearly hearsay and inadmissible as proof of the truth of what she told him. The only basis upon which the evidence could conceivably have been admissible was that it was simply what the detective had been told.
(Page 9)
25 At t/s 87 it was put to the detective that Ms Brown had told him she did not know of any assault or wasn't aware of any assault - he said that was correct. It was put to him that he spoke to her and asked her about it specifically occurring at the address nominated by Mr Boyd and she still said that she was not aware of any such assault.
26 The matter was canvassed further in cross-examination (at t/s 90 - 91) when the detective was asked further details about the actual inquiries or attempts he had made to try to locate and contact Ms Brown. He said that he had been trying to make regular contact with her by phone.
27 Still in a general vein as to the conduct of the trial, I note that in the trial Judge's summing up (which began at t/s 230) his Honour made extensive reference to the position of Boyd in the prosecution case.
28 At t/s 241 he gave the jury a direction about prior inconsistent statements and specifically in relation to the evidence of Boyd. His Honour explained it is standard procedure on cross-examination to seek to establish that a witness who has given evidence has, on a prior occasion, said something that differs from what they have said in evidence. He was there expressly referring to a statement that Boyd had made to police officers, that statement apparently having been produced in evidence and dated 3 February 2003.
29 His Honour reminded the jury that counsel for both appellants had sought to establish that what Boyd had said there was different from what he had said in evidence. Examples were given. His Honour said it was up to the jury to decide whether Boyd had previously said something in his statement which was inconsistent with what he said in evidence.
30 He went on to direct them that first the content of the statement which is put to a witness and which he has admitted is his is not in any way part of the evidence unless the truth of it is adopted by the witness in the witness box. That, however, was not Boyd's evidence at trial because the evidence he gave in that respect apparently was that he did not recall it.
31 Secondly, his Honour pointed out that if the jury were satisfied that the witness had said what was in his statement, it was a matter which they could take into account in considering his credibility and his reliability as a witness.
32 His Honour then turned to the content of the evidence given by Boyd and part of the attack which had clearly been made upon it by counsel for
(Page 10)
- the appellants. That was in particular the assertion or the suggestion that Boyd had done a deal with police officers. His Honour specifically repeated the evidence given by Boyd in response to questions to the effect that he was told that if he assisted the police in terms of the investigation of what happened to him, he would not be charged with any criminal offence in relation to his involvement with amphetamines. He agreed with that. There was more evidence to that effect set out by his Honour, the point being that the material was clearly before the jury.
33 At t/s 244 his Honour, still dealing with the evidence given by Boyd, reminded the jury there was no independent evidence to confirm or support what Boyd said as to the circumstances of the assault and who assaulted him. He reminded them that his was the only evidence in relation to that. Although there was supporting evidence of the fact that he was assaulted, that was not evidence which went to the identification of who had done that nor the circumstances in which it occurred.
34 He reiterated that the suggestion was Boyd had a motive to come up with a story to satisfy the police because he had done a deal with them. Then his Honour stressed the need to give a direction about the way in which the jury had to approach Boyd's evidence. His direction was (t/s 244).
"That it would be dangerous to convict the accused on Mr Boyd's evidence in the absence of supporting or confirming evidence - and there isn't any - and that you should only do so if after careful scrutiny of Mr Boyd's evidence, you are satisfied beyond reasonable doubt of its truth in its material particulars. So you are entitled to act upon Mr Boyd's evidence, in the absence of any supporting or confirming evidence for it, but you should scrutinise it with great care and be satisfied as to its truth and accuracy before doing so."
35 That of course was an accurate statement of the law. He subsequently reiterated that although the case was a pretty straightforward one, it relied entirely on Boyd's evidence and that before they could convict the accused they had to be satisfied beyond reasonable doubt that Boyd's evidence was true. His Honour then went through the evidence and the arguments which had been presented to the jury by counsel.
36 I return now specifically to the particular grounds of appeal. In respect of ground 2, as I have already indicated, what Samantha Brown may have said to the police as recounted by them in evidence was hearsay
(Page 11)
- and could not have been evidence of the fact. We do not know what Samantha Brown might have said had she actually been called and given evidence nor, of course, what the jury would have made of it.
37 On the material before me the denial of the opportunity of the appellants to cross-examine Ms Brown cannot be shown to have resulted in a miscarriage of justice. Furthermore, no error of law is suggested in relation to that evidence. Although the ground raises and relies upon lack of corroboration, corroboration of Boyd's evidence was not required as a matter of law.
38 The trial Judge gave a very clear warning that it was dangerous to convict on Boyd's uncorroborated evidence but said to them correctly that they could do so if they were satisfied beyond reasonable doubt it was true. The lack of corroboration in those circumstances cannot be shown to have resulted in any miscarriage of justice. This ground accordingly has no reasonable prospect of succeeding on appeal.
39 In relation to ground 3, there is no affidavit nor statement from Douglas Sutton. Once again, therefore, there can be no idea of what he might say. There is no "fresh evidence", nor indeed any new evidence, nor any evidence of any kind of what he would say, so there is nothing of that nature to show the verdict was unsafe or unsatisfactory, as it is put. In any event, the absence of the person Sutton from the trial is a particular to ground 1 in respect of which I propose to grant leave. Again in respect of ground 3, no error of law is asserted. There is on this material, no reasonable prospect that this ground would succeed either.
40 Having reached those conclusions the orders I would make are as follows: (1) leave to appeal will be granted on grounds 1 and 4; (2) leave to appeal will be refused on grounds 2 and 3; and (3) the appeals will be heard together.
0
18
1