Fitzgerald v The State of Western Australia
[2024] WASCA 125
•3 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FITZGERALD -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 125
CORAM: BUSS P
MITCHELL JA
HEARD: 3 OCTOBER 2024
DELIVERED : 3 OCTOBER 2024
FILE NO/S: CACR 132 of 2023
BETWEEN: MARCUS-SCOTT GERARD FITZGERALD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 865 of 2022
Catchwords:
Criminal law - Appeal against conviction - Application for leave to issue witness summonses - Leave refused - Turns on own facts
Legislation:
Nil
Result:
Applications for the issue of witness summonses dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | N R Sinton |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Nil
REASONS OF THE COURT:
On 23 March 2023, the appellant was convicted after a trial before Prior DCJ and a jury of four counts. All of the charged offences were committed on 5 October 2021 at Coolbellup.
Count 1 charged an aggravated home burglary contrary to s 401(2)(a) of the Criminal Code (WA) (the Code). Count 2 charged an offence of criminal damage contrary to s 444(1)(b) of the Code. Each of counts 3 and 4 charged an offence of aggravated threats with intent to rob contrary to s 393(c) and (d) of the Code.
The appellant has appealed against conviction. On 16 May 2024, the appellant filed and served the appellant's case. The sole ground of appeal alleges that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence (including fresh or new evidence that did not exist, was not disclosed, and was not available at the time of the trial) the verdicts are unreasonable and cannot be supported.
On 25 September 2024, the appellant filed and served 14 applications for witness summonses. The applications were heard on 3 October 2024.
Four of the applications for witness summonses are for witnesses to attend at the hearing of the appeal and give oral evidence. The proposed witnesses and the evidence sought to be adduced from them are as follows:
(a)Clarisa Drage, who would give evidence that the appellant had money to buy lunch shortly after committing the charged offences. The appellant contends that this evidence would show that he had no motive to commit the charged offences.
(b)Whane Smitt, who would give evidence that the appellant returned a laptop computer to him some weeks before the charged offences were allegedly committed. The appellant contends that this evidence would show that he was not 'the kind of person to keep, or permanently deprive anyone of their belongings'.
(c)Jesse Donaldson, who would give evidence that the appellant asked for Mr Donaldson's mobile telephone to call police shortly before the incident the subject of the charged offending, when the appellant was holding a sword, but the appellant then said 'don't worry about it' and walked away. The appellant contends that this evidence would show that 'all [the appellant] wanted to do was borrow a phone'.
(d)Rochelle Marrie Capewell, who would give evidence that the appellant borrowed her mobile telephone twice to call police after an earlier incident, unrelated to the charged offending, when the appellant was assaulted. The appellant contends that he needs to ask Ms Capewell 'what she experienced at the time'.
One of the applications for witness summonses seeks the production of records from the Director of Public Prosecutions (WA). The appellant seeks, in essence, 'full disclosure' in relation to previous offences he committed on 23 September 2021. The appellant was convicted of the previous offences in the Magistrates Court. The appellant contends that 'full disclosure' in relation to the previous offences, including 'body worn camera footage', will show how he was defending himself from unprovoked attacks by armed men.
Four of the applications for witness summonses seek the production of records by the Western Australian Police. The appellant seeks, in essence, the production of:
(a)Body worn camera footage of the previous offences he committed on 23 September 2021. This application overlaps with the application for a witness summons directed to the Director of Public Prosecutions (WA). The appellant contends, once again, that the footage will show how he was defending himself from unprovoked attacks by armed men.
(b)Body worn camera footage in relation to a police report of an incident that occurred on 13 September 2021. The appellant contends that the footage will show damage caused to his property on that date.
(c)Body worn camera footage in relation to a police report of an incident that occurred on 12 September 2021. The appellant contends that the footage will show injuries he suffered at the scene of an assault on that date.
(d)Records in relation to three telephone calls made to police on 31 August 2021. The appellant contends that these records will show that there was a home invasion at his property on 31 August 2021.
Four of the applications for witness summonses seek the production of information from the Western Australian Police. The appellant seeks, in essence:
(a)The name of the person who resides at 15 Ronaldo Crescent, Coolbellup. The appellant contends that he requires this information for a future application for a witness summons, similar to the summons addressed to Mr Donaldson.
(b)The name and address of 'Brent', a person who has a specified mobile telephone number. The appellant contends that he requires this information for a future application for a witness summons, similar to the summons addressed to Ms Capewell.
(c)The name and address of 'Darren', a person who has a specified mobile telephone number. The appellant contends that he requires this information for a future application for a witness summons, similar to the summons addressed to Ms Capewell.
(d)The name of a person who called an ambulance during the incident that occurred on 12 September 2021. The appellant contends that he requires this information for a future application for a witness summons, as the person who made the call was 'a witness to certain things'. In oral submissions, the appellant suggested that some people ran away from the scene of the assault upon him.
One of the applications for witness summonses seeks the production by Kate Annear of 'a blueprint of the boundary of my property' at the time of the charged offending. The appellant contends that this blueprint will show that some of the offences charged in counts 3 and 4 occurred on the appellant's property and not in a public place. However, each of count 3 and count 4 merely alleged that the charged offending occurred at Coolbellup. It was not an element of the offence charged in each of count 3 and count 4 that the aggravated threats with intent to rob occurred in a public place.
We would dismiss each of the appellant's 14 applications for the issue of witness summonses. None of the witness summonses should be issued. We are satisfied that the documents, information and evidence sought to be obtained pursuant to the witness summonses are not relevant to the sole ground of appeal. The issue of the witness summonses is unnecessary for the just determination of the merits of the sole ground. No legitimate forensic purpose would be served by issuing the witness summonses.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
3 OCTOBER 2024
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