Fray v The State of Western Australia
[2007] WASCA 92
•4 MAY 2007
FRAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 92
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 92 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:31/2007 | 27 APRIL 2007 | |
| Coram: | ROBERTS-SMITH JA | 4/05/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed Application for order for production of new evidence dismissed Application for leave to rely on additional evidence dismissed | ||
| B | |||
| PDF Version |
| Parties: | MARK DAVID FRAY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Leave to appeal against conviction One count of assault occasioning bodily harm One count of causing grievous bodily harm Two accused jointly tried Statement made to police by coaccused Trial Judge not telling jury when adduced that it was not evidence against appellant Proper direction given in summing up Coaccused giving same evidence at trial Whether direction should have been given when evidence adduced Whether miscarriage of justice Appeal Criminal law and procedure Evidence "New" evidence on appeal Videotape recording from security cameras Whether shows miscarriage of justice Evidence given by coaccused at trial Whether accomplice warning should have been given |
Legislation: | Nil |
Case References: | de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Lambley v The Queen [2001] WASCA 38 R v Wood [2000] WASC 64 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Sherwood v The State of Western Australia [2007] WASCA 81 White v The Queen [2006] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 92 CORAM : ROBERTS-SMITH JA HEARD : 27 APRIL 2007 DELIVERED : 4 MAY 2007 FILE NO/S : CACR 31 of 2007 BETWEEN : MARK DAVID FRAY
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
File No : IND 114 of 2005
(Page 2)
Catchwords:
Appeal - Criminal law and procedure - Leave to appeal against conviction - One count of assault occasioning bodily harm - One count of causing grievous bodily harm - Two accused jointly tried - Statement made to police by coaccused - Trial Judge not telling jury when adduced that it was not evidence against appellant - Proper direction given in summing up - Coaccused giving same evidence at trial - Whether direction should have been given when evidence adduced - Whether miscarriage of justice
Appeal - Criminal law and procedure - Evidence - "New" evidence on appeal - Videotape recording from security cameras - Whether shows miscarriage of justice - Evidence given by coaccused at trial - Whether accomplice warning should have been given
Legislation:
Nil
Result:
Application for extension of time dismissed
Application for order for production of new evidence dismissed
Application for leave to rely on additional evidence dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr A L Troy
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Lambley v The Queen [2001] WASCA 38
R v Wood [2000] WASC 64
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sherwood v The State of Western Australia [2007] WASCA 81
White v The Queen [2006] WASCA 62
(Page 4)
1 ROBERTS-SMITH JA: On 29 May 2006 the appellant was convicted of one count of assault occasioning bodily harm and one count of causing grievous bodily harm. He was convicted following trial, before Williams DCJ and a jury in the District Court at Perth. He was then sentenced on 30 June 2006.
2 He was jointly charged on each count with Robert Thomas Luke.
3 When arraigned before a jury at the commencement of the trial, the appellant and Luke both pleaded not guilty to both counts. In respect of count 2, Luke pleaded guilty to assault occasioning bodily harm, but that plea was not accepted.
4 Following the prosecution case, Luke gave evidence in his own defence; however, shortly before counsel's addresses to the jury and, in accordance with a request by his counsel, he was re-arraigned and pleaded guilty to count 1.
5 The appellant's appeal notice was filed on 27 March 2007.
6 The time within which the appellant was required to file his appeal notice was 21 days from the latest of the date of conviction or sentence (s 28(3) and (4) of the Criminal Appeals Act 2004 (WA)). As the appellant was sentenced on 30 June 2006, the last date for filing an appeal notice was 21 July 2006. He is accordingly more than eight months out of time. This is a substantial delay. The authorities make it clear that in such a case, particularly in the absence of a satisfactory explanation, exceptional circumstances must be shown before an extension of time will be granted, unless it be demonstrated that there would be a miscarriage of justice if it were not. I referred to a number of these authorities in Sherwood v The State of Western Australia [2007] WASCA 81 at [4].
7 There is an affidavit from Simon Barry Watters in support of the extension of time. It is also in support of two applications. The applications and the affidavit were also all filed on 27 March 2007. The first application seeks an order that the appellant be permitted to rely upon additional material, namely one unedited videotape containing recordings from 26 July 2004, being video footage from three security/surveillance cameras, situate at the block of flats at 3 Sherwood Street, Maylands, where the offences occurred ("the additional evidence application").
8 The second seeks an order that:
(Page 5)
- "The Respondent cause the production to the Supreme Court within 14 days of one unedited videotape containing recordings from 26 July 2004, being video footage from three security/surveillance cameras, situate at the block of flats at 3 Sherwood Street, Maylands." ("The videotape production application").
9 The Appellant's case was filed on 11 April 2007. There are four grounds of appeal. They are:
"Ground 1
Material obtained post-conviction, which amounts to new evidence, establishes a miscarriage of justice occurred:
Particulars
(i) The offences took place at a block of flats where there were three security cameras in operation;
(ii) A video tape machine recorded simultaneously from the three cameras. The video tape, available at trial, shows the complainant, the Appellant and the co-accused variously accessing and egressing from both the entrances and the elevator at the flats.
(iii) A significant part of the evidence against the Appellant concerning both Counts involved the testimony of his co-accused Robert Thomas Luke ('Luke').
(iv) The tape contradicts the evidence of Luke and crucially undermines his credibility.
Ground 2
The learned trial Judge failed to give an accomplice warning regarding the evidence of Robert Thomas Luke ('Luke') concerning Count 1 on the Indictment, such that there was a miscarriage of justice:
Particulars
(i) The Appellant and Luke were jointly charged on Count 1 with assault occasioning bodily harm upon [the complainant].
(Page 6)
- (ii) Count 1, the assault occasioning bodily harm, in effect had two parts, the first commencing in an upstairs flat and the second saw the offence continue at ground level.
(iii) The trial judge told the jury that before they could convict the Appellant on Count 2 (grievous bodily harm), they would have to be satisfied beyond reasonable doubt as to his involvement in the assault in the flat (the first part of Count 1).
(iv) Luke gave evidence that it was the Appellant and not him who assaulted [the complainant] in the flat.
(v) Luke then pleaded guilty to Count 1 on the basis he was only involved in the assault at ground level (the second part of Count 1).
(vi) The trial Judge gave no direction to the jury as to how they could use Luke's evidence against the Appellant.
(vii) The trial Judge gave no warning to the jury as to how they should treat and view Luke's evidence before using it against the Appellant.
Ground 3
The learned trial Judge erred when he failed to direct the jury at the time it was read that an out of court statement of the co-accused, read to the jury and inculpatory of the Appellant, could not be used as evidence against the Appellant such that there was a miscarriage of justice.
Ground 4
The learned trial Judge's discretion miscarried when he failed to warn the jury the complainant's evidence against the Appellant was corroborated only by the testimony of an accomplice, such that there was a miscarriage of justice."
10 Section 27(1) of the Criminal Appeals Act stipulates that leave to appeal is required in respect of each ground.
11 Section 27(2) stipulates that the Court must not grant leave to appeal on a ground unless satisfied that ground has a reasonable prospect of succeeding on the appeal. What that means, and how the test is to be
(Page 7)
- applied, was explained by the Court of Appeal in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [50] - [60]. That is the approach I take here.
12 Before dealing with the grounds, it is necessary to say something briefly about the prosecution case and the evidence at trial.
13 The complainant was acquainted with S, a person who lived in a block of units in Maylands, a Perth suburb. The appellant lived in a different unit in the same block with his girlfriend H. She had a friend, M, who was Luke's de facto partner or girlfriend. Rumours were circulating that M had been having a sexual relationship with the complainant. There were also rumours that H had been having a sexual relationship with someone other than the appellant. These rumours got back to the appellant and Luke. They caused aggravation in their relationships. The appellant and H had an argument about it on Sunday 25 July 2004. A couple of nights earlier, Luke and M had gone to S's flat, where there was a confrontation.
14 In the afternoon of Monday 26 July 2004, the complainant came to the units to visit his friend, S. His friend was not there at the time. The complainant saw the appellant's four-wheel drive outside the units. He had met the appellant on a couple of occasions previously. He buzzed the appellant's unit to ask if he knew where S was. The appellant invited him up to his unit. The complainant went up. The appellant opened the door and the complainant went inside. As he did so, the appellant closed the door behind him and said words to the effect of "So you want to fuck our women, do you?" The complainant turned around in surprise, saying "Who? What?" He saw a second male who he did not know and had never met, stand up from where he had been sitting, somewhere in the lounge room. That was Luke. Luke immediately began to assault the complainant, punching and kicking him. The complainant tried to get out the door, but the appellant was standing in front of it. The appellant said words to the effect of "You're not going anywhere" and began to hit him. The complainant tried to curl himself up and put his hands on his face trying to protect himself, but he was able to see both the appellant and Luke delivering blows. He saw that the door to the balcony was open, so he bolted to it and jumped over the balcony, grabbing hold of the rail as he did so, trying to get away from the assault. He was hanging from the balcony rail when one of the two struck him across the fingers of the right hand, causing him to lose his grip. He was unable to see which of the two it was. He fell to the concrete below the third floor unit. It was a fall of about six metres.
(Page 8)
15 The complainant suffered injuries from the impact and was in considerable pain. He looked up and saw the appellant leaning over the balcony, "sort of smirking". The appellant said to him "It's not over yet". The appellant then threw the complainant's watch at him, and it smashed on the concrete alongside him. The complainant tried to get up and walk away but was in too much pain and could not walk, so he began to crawl away.
16 The complainant described what then happened (t/s 96 - 97):
"How were you feeling, physically feeling, at that stage?---I couldn't move, but then once I knew that he said it's not over, I tried to get away and I couldn't move, I couldn't walk.
Did you eventually start to move?---Yeah, I crawled. I crawled away. I crawled probably about four or five flats up and then some old lady has seen me and I asked her for a glass of water, and then as she got me a glass of water, the defendants come back out and got me again.
All right. Can we just pause there for a moment? I think you have indicated that you crawled up towards - where were you crawling towards?---I was trying to crawl out of, like - I was trying to get to my car but the front of the flats are all fenced off, so I was locked in. I couldn't get out. Even if I wanted to, I couldn't get out.
So you started crawling up towards your car?---Yeah.
Your car was parked in the carpark?---In the carpark.
And as you're crawling along, how far do you get, roughly?---10, 15 metres I think.
Then I think you said you saw someone?---Some old lady come out of her unit at the bottom unit floor.
You asked her for a glass of water?---Yeah.
I think you said you saw somebody else come out as well?---There was a couple of other people from all out of their units and there was, like, a gardener guy cleaning up the garden down below.
(Page 9)
- Did you see either of the two men from the flat?---Yeah, they come back out. After the old lady come and gave me a glass of water, I didn't even get time to drink it because they'd come back out and got me again.
Did they come out together or separately?---No, they come out together.
Do you remember what happened when they came out?---Yeah. They come out and then the beating started again.
I know it's difficult for you to do but can you indicate to me, when you say the beating started again, what kind of things were being done?---They were kicking me in the head and trying to punch me in the face.
Were you able to see who was doing that?---Yeah.
And who was it that was doing that?---It was the other guy.
So by the other guy you're referring to - - - ?---Robert.
Right; not Mark, not the Mark that you knew?---Mark hit me a couple of times but Robert was kicking me in the face.
Do you have any recollection or are you able to say roughly how long that would have gone on?---Only a couple of minutes because by that stage there was people everywhere. Everyone was coming out of the flats but no one would help me"
17 That lady was a Ms J. She came outside and saw the appellant speaking to the complainant. She was scared. She went back inside and locked her door. The complainant continued to crawl towards her unit. She came outside again and then saw two men, one of them kicking the complainant while he was on the ground. That was not the same man she had seen talking to him. The prosecution case was that the second man who she saw kicking the complainant was Luke.
18 That stopped after a few minutes and the appellant and Luke left. Police arrived shortly thereafter, probably within five to 10 minutes, having been called by someone else in the units.
19 The complainant was taken to hospital by ambulance.
(Page 10)
20 On medical examination the complainant was found to have suffered very serious injuries, including to his chest, pelvis and both ankles. There were fractures of the ankle joint and the ankle bone was broken in several places. His pelvic joint was fractured. The orthopaedic surgeon described the injuries as very serious. Even with treatment he will still have permanent injuries, in particular arthritis to the ankle and pain and discomfort in the pelvis. He was supine for six weeks and was discharged from hospital on 17 September 2004.
21 The State case was that count 1, the assault occasioning bodily harm, consisted of the joint assault by the appellant and Luke in the unit and continuing on the ground outside. Count 2, causing grievous bodily harm, was the causing of the complainant to fall from the balcony and the injuries suffered as a consequence of that. Count 2 was put on the basis of an offence committed in the prosecution of an unlawful purpose, namely the assault. The appropriateness of the charges being presented in that way was fully ventilated before his Honour and no point is now sought to be taken about that.
22 The appellant did not give, nor call, evidence at trial. However, in a video record of interview given to the police, (exhibit 7), he admitted he was in the unit at the time but denied being involved in any assault upon the complainant, saying it was Luke who assaulted him. The appellant did say that he went downstairs, went out to the front of the units and spoke to the complainant and that he was there when Luke further assaulted him whilst the complainant was on the ground. However, he said he had nothing to do with that.
Ground 1 - New evidence
23 The evidence against the appellant regarding that part of the assault occasioning bodily harm committed in the unit, came from both the complainant and the oral testimony of the co-accused, Luke.
24 Luke's belated plea of guilty to count 1 was put on the basis he was admitting only to kicking the complainant on the ground outside the units - he maintained his denial of any involvement in the initial assault in the unit.
25 The State conceded neither the appellant nor Luke could be found guilty of count 2 unless the jury found that particular accused guilty of that part of the assault occasioning bodily harm alleged to have occurred inside the appellant's unit, which led to the complainant running outside and going over the balcony. The Judge directed the jury in that way.
(Page 11)
26 The new evidence is said to consist of videotaped security recordings. They came from one camera at the front entrance to the units, showing the letter boxes; a second showing the security gate area leading out into the car park; and a third which showed a portion of the area in front of the elevated door.
27 The recording is in black and white and the screen, when viewed, is split into four segments. One quadrant is blank. The other three quadrants simultaneously show recordings from each of the three cameras. There is a running time record.
28 In support of his submission, counsel for the appellant puts it that the complainant said in evidence that Luke and the appellant appeared at ground level together and were both involved in the assault at ground level. He says that Luke testified that after the assault in the flat, he and the appellant travelled down in the elevator together. However, counsel submits that a viewing of the videotape contradicts this evidence. In his submissions, he summarises what may be seen on the tape in the following way:
"• 1315.07 Fray/Luke arrive (carrying wine) and go into the elevator.
• 1418.33 [The complainant] arrives through the security gate (car-park) and goes into elevator.
• 1424.01 [The complainant] gets out of elevator and leaves via security gate.
• 1435.18 [The complainant] arrives back and enters through the security gate (car-park) and goes into elevator.
• 1442.09 Fray gets out of elevator and goes out security gate into car-park.
• 1443.48 Fray returns through the security gate and goes to the area outside elevator (but doesn't get in elevator).
• 1444.01 As Fray walks past the elevator, Luke gets out of the elevator and they then walk together out of the front door (near the letterboxes).
(Page 12)
- • 1666.12 Fray alone walks back in the front door (but doesn't go to lift).
• 1446.28 Fray then walks alone back out the front door.
• 1447.25 Fray comes back alone and goes into elevator."
29 It is submitted that the image at 1442.09 is the last time the complainant is seen to get out of the elevator after the initial assault on the complainant, and that he is seen to get out alone and not with Luke, in contrast to Luke's evidence.
30 Counsel concedes that the videotape is "new" evidence which was available at trial. It had in fact been disclosed by the prosecution to the defence prior to trial and the appellant's trial counsel had viewed it. He had made a decision not to use it. According to a letter from him annexed to an affidavit of Paul Lothar Ralf Meyer (itself an annexure to Mr Watters' affidavit), trial counsel said he saw "nothing of significance" in the tape.
31 Where, on an appeal, it is sought to rely upon "new" evidence, it is not enough to show an increased chance of acquittal. The "new" evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the court concludes that he should not have been convicted (see de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 per Pullin JA at [158] and the authorities there cited).
32 The nub of the submissions advanced by Mr Watters here is that the video-recording shows the appellant and Luke did not travel down in the lift together, whereas in his evidence, Luke said they did. This inconsistency, it is said, "contradicts" Luke's evidence and "crucially undermines" his credibility, to such an extent as to show there was a miscarriage of justice. I cannot accept there is any reasonable prospect the Court of Appeal would see it that way.
33 In his evidence-in-chief, Luke said he was sitting in a chair in the appellant's unit when the complainant came in and a fight broke out between the appellant and the complainant. Luke said he tried to break it up. He denied he punished the complainant in the unit. He said the complainant somehow broke away from the appellant, pushed his way past Luke and went over the balcony. He denied striking the complainant's hands while he was holding onto the balcony railing. He said he did not see the appellant do so. His evidence-in-chief then went as follows (t/s 338 - 339):
(Page 13)
- "Did you go down to where he was?---Yes.
How did you do that?---The elevator.
Did you go down in the elevator or did you go down the stairs?---Elevator.
How long did that take?---It wasn't long, a minute, under a minute.
When you got down were you able to go to the area where [the complainant] was?---Originally I went to the area of where he was, yeah, which was directly below Mark's flat.
When you got to where he was what condition was he in?
WILLIAMS DCJ: The witness has said he went to the area where he was, I think. Sorry - - -
AMSDEN, MS: Yes.
When you went to the area where he was, which was below Mark's flat, is that right?---Yep.
WILLIAMS DCJ: Okay.
AMSDEN, MS: What condition was [the complainant] in?---He was not there.
Did you look for him?---I think Mark got my attention because he had crawled to the other side of the units and Mark was there, talking to him.
How far away was he from the area directly beneath Mark's balcony?---At least four or five flats away.
Now, did you go up to [the complainant]?---Yes, I did.
Did you say anything to him?---Yes, I did.
Did you do anything to him?---Yes, I did.
What did you do?---Originally I just lifted his head up with my foot and asked him whether he was having sex with my missus.
(Page 14)
- Well, what did you say exactly? Can you remember?---'Have you been fucking my missus?'
Did you get an answer?---No.
What happened next?---I kicked him.
Where did you kick him?---In the head.
What happened next?---I asked him again, and I don't think he said anything at that stage so I kicked him again and then he - and then I asked him the same question, 'Did you fuck my' 'Have you fucked my missus?' Then he spun around and he said, 'Who?' I said, '[M].' He said, 'No.' Then I left.
When you kicked him was he sitting, standing, face up, face down, what - - -?---He was facing me but he was sort of like on his side, almost laying completely down.
Did you see a Chinese woman?---Yes.
Did you say anything to her?---She was telling me to go away and yes, I did. I just said, 'Look, I'm trying to find out whether he fucked my missus.'
How long were you actually there with [the complainant]?---That happened within 30 seconds."
34 The point was covered in cross-examination (t/s 349):
"Do you accept that Mark got to the area where Ms [J's] courtyard was before you?---Yes.
Because indeed I think [the complainant] says that and Mark Fray told the police that he did and indeed the Chinese lady also saw him there before she saw you, so you accept all that?---Yes.
You got there later, didn't you, because you went to [S's] unit before you went downstairs. Isn't that right?---On the sixth floor? No.
Because you were going to confront him because of what he had said the night before about that fact that there wasn't anything between [the complainant] and [M]. Isn't that right?---No.
(Page 15)
- And they weren't home and so what you did was you damaged their door?---No.
You'll recall Amanda's evidence about that, how they left that day and they came home when they found out about what had happened to [the complainant], and when they went to their unit their door was damaged. Do you remember that evidence?---Yeah.
That was you, wasn't it?---No.
Please tell me then how it was that you took longer to get downstairs to where Ms [J's] unit was than Mark Fray?---How did it - sorry?
Why did it take you longer to get downstairs?---It didn't take me longer because I got down with Mark in the elevator and he used his security key to get us through the secured gate.
So you would've been with him?---Yes.
Well, then, how come that when you got out there to that area where [the complainant] had fallen Mark Fray was already up near where he was four or five units away?---Because we both walked out together, Mark went one way and I went to the other way.
Mark went one way, you went the other. Why was that?---Because I went to the last spot where I seen him."
35 The video-recording shows the appellant coming down in the elevator at 1442 hrs. He got out of the elevator and went through the security gate into the car park. About two minutes later, Luke is seen to come down in the elevator. He gets out just as the appellant walks back past it out of the car park. They are then seen to walk out the front door together.
36 Whether the two of them came out of the elevator together or not, does not reflect on what happened in the unit. Nor is it a significant discrepancy in Luke's evidence. What is common ground is that they walked outside the units together. Luke went to the area directly under the appellant's balcony because that was where he had last seen the complainant, or where he knew he had fallen. The appellant on the other hand, had seen the complainant crawl away and went in that direction. He
(Page 16)
- therefore got to the complainant first. Then Luke got there very shortly afterwards. The important facts are, that they both exited the building together, and they on their own accounts, were both together with the complainant when he was on the ground.
37 Luke might well have had a faulty recollection of whether he or the appellant came down in the elevator together - or he may have deliberately lied about that. He might have thought he had a reason to do so if he had indeed gone to S's unit and damaged the door there. But that is not likely to have affected his credibility with respect to what he said he or the appellant did to the complainant. In any event, Luke's evidence was not critical to the State case. He was not called as a prosecution witness. The discrepancy which might have been established by the video-recording is unlikely to have impacted on the outcome of the trial. I see no reasonable prospect that this "new" evidence could lead the Court of Appeal to conclude it shows the appellant was innocent, or that it raises such a doubt that he should not have been convicted. The ground has no reasonable prospect of succeeding on appeal. Leave to appeal must be refused.
Ground 2 - "Accomplice warning"
38 At the hearing Mr Watters indicated this ground would not be pressed. I accordingly indicated that leave to appeal would be refused in relation to it.
Ground 3 - Out of court statement of co-accused
39 Following his arrest, Luke had refused to take part in a record of interview with police, but had given them a written statement dated 30 July 2004. That was given in evidence before the jury as part of the prosecution case. It was tendered as exhibit 8 and read to the jury.
40 In that statement, and concerning events in the flat, Luke said that the appellant punched the complainant in the head; that Luke tried to break up an altercation between the appellant and the complainant; that while the appellant was hitting the complainant, Luke was pushed aside and did not get involved; and that once the complainant broke free from the appellant, he ran out onto the balcony and jumped off. In the statement, Luke said that following that, he, and he was sure, the appellant, went downstairs. He said that at ground level he spoke to the complainant but did not kick him.
(Page 17)
41 Counsel's submission is that at no stage during the course of the trial, and in particular shortly before or after the statement was read into evidence, did the trial Judge inform the jury that an out-of-court statement could be evidence only against the maker and not the appellant.
42 The statement was read to the jury on the morning of Friday 26 May and the Judge did give a direction about the use of this evidence in the course of his summing up on Monday 29 May 2006. No exception is taken to the direction then given. Mr Watters concedes that direction was proper and appropriate and correctly explained to the jury the proper use that they could make of the statement made out of court by Luke and, specifically, that it was not evidence against the appellant.
43 The complaint is that this direction came three days after the statement was read to the jury and two days after Luke had given evidence before the jury. It followed the addresses of all three counsel. It is submitted that in the circumstances, his Honour should have directed the jury at the time the statement was read that it could not be used as evidence against the appellant. It is further submitted that the need for this direction was heightened because, shortly after the statement was read, Luke gave evidence to the same effect before the jury.
44 The appellant relies on R v Wood [2000] WASC 64. That was an application to a single Judge for an order for separate trials. The appellant and another had been jointly charged with murder. It was in that context that Malcolm CJ made the observation at [9], upon which Mr Watters relies. His Honour there said:
"In a joint trial of two or more accused, when evidence is admissible against one but not another, it is necessary for the trial Judge to point this out to the jury when the evidence is given or during the summing [sic up] or preferably on both occasions: R v Short [1928] St R Qd 246. In R v Tool [1955] 2 WN (NSW) 338 at 340 it was suggested that it is desirable that it be done both when the evidence is given and in the summing up. The evidence against each should be dealt with separately and considered separately."
45 There can be no question but that those remarks are an accurate statement of the law. It would be an error of law for a trial Judge to fail to give such a direction at all. But the trial Judge here did give such a direction. No complaint is made about the direction actually given by his Honour in the course of his summing up. Indeed, it is conceded to be
(Page 18)
- correct and appropriate. The sole point of this ground is that as a matter of law his Honour was required to give a direction in those terms also, either immediately before or immediately after the evidence was given. That is not the law. Mr Watters has cited no authority which says it is. It is indeed preferable or desirable that the direction be given when the evidence is received and again in the summing up, but it is not an error of law to fail to give it on the earlier occasion - and as an admittedly proper and appropriate direction was given in the summing up, there could not be said to have been any miscarriage of justice. That is particularly so when the co-accused gave evidence on oath before the jury to the same effect as what he had said in his statement to the police. This ground has no reasonable prospect of success on appeal and leave to appeal must accordingly be refused with respect to it.
Ground 4 - Accomplice warning
46 Notwithstanding that he abandoned ground 2 (which I would have thought was the same point), Mr Watters wished to maintain ground 4.
47 This ground is completely misconceived and I have had some considerable difficulty in following the submissions advanced in support of it.
48 It is said that the evidence against the appellant regarding the first half (as he described it) of count 1 (the assault occasioning bodily harm committed in the flat) came from both the complainant and the oral testimony of Luke. It is submitted there was a risk that without a clear direction from his Honour, the jury would see Luke's evidence, given in court, as corroborative of the complainant's testimony, without the benefit of a warning that it was the evidence of an accomplice. He said that he could not press ground 2 because, inter alia, he had to concede the jury could see that Luke was trying to serve his own purposes in his evidence. Nonetheless, he submitted that whilst the jury would have appreciated Luke was "feathering his own nest" they would not have appreciated the complainant's evidence was only supported by the evidence of an accomplice.
49 Section 50(2) of the Evidence Act 1906 provides that:
"On the trial of a person on indictment for an offence -
(a) the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any
- offence of which the person is liable to be convicted on the indictment; and
- (b) the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances."
50 As Wheeler JA observed in White v The Queen [2006] WASCA 62 at [57] - [78] (McLure and Pullin JJA agreeing), a ground expressed as it is here is not a proper ground. Her Honour there said the question is not whether a direction conforms to what has, at common law, been regarded as an appropriate direction in such a case; nor is it whether, tested against those common law requirements, the direction is "good enough", even if not entirely conventional. Rather, the question is, having regard to s 50, whether there are particular identified circumstances which not only justify, but require, a warning of a particular identified character.
51 Her Honour went on to say, at [59]:
"I have analysed his Honour's direction in common law terms, because of the way in which this appeal was conducted. However, I would not be prepared to grant leave in a future case in respect of a ground which alleges that a warning in terms required by the common law should have been given merely because a witness fell into a category in respect of which such a warning was, at common law, required to be given. Instead, if a Judge is alleged to have dealt inadequately with evidence of a 'suspect' character, it will be necessary for the ground to identify what danger there was in acting upon the evidence which jurors, bringing their collective experience of human nature to bear, and assisted by cross-examination of the witness (where relevant) and the submissions of counsel, would not have understood, or may have overlooked, without the assistance of the Judge. If, where a comment was made, a warning is said to have been required, it will be necessary to identify, having regard to the primary fact finding function of the jury, what circumstance would require a direction, rather than simply assistance by way of comment, with that function."
52 Wheeler JA continued, to explain why that was so, at [60] - [78]. At [77] her Honour referred to Lambley v The Queen [2001] WASCA 38 at [17] in which she said the Court appears to have suggested that a warning will be both justified and required whenever the circumstances show some
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- intrinsic lack of reliability in the witness. Her Honour observed, however, that in the particular circumstances of that case, it may well have been common ground that the witness was in a category similar to that of a prison informer, so that a jury would not, unassisted, appreciate what the danger of the witness's evidence might be. Her Honour then continued:
"77 … A case which is often cited in this Court is Foo v The Queen [2001] WASCA 406 at [30] of which Parker J, with whom Steytler J and Olsson AUJ agreed, said:
'Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial Judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters.' (Emphasis supplied)
78 I quoted that passage myself in Hoy v The Queen [2002] WASCA 275 at [18], and at [19] expressed the view that such a warning may also be appropriate even where the dangers are apparently obvious. However, having regard to the authority which I have discussed, it now seems to me that only if the words which I have emphasised in Foo, relating to 'hidden' dangers, are given their full effect, should that passage be regarded as accurate. The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the 'superior experience' of the Courts in relation to particular types of evidence which are apparently safe to act upon (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 604 per Brennan J),
- it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given."
53 As Luke was charged as the appellant's co-offender in this trial, and having regard to the course of evidence and of the proceedings, the jury could hardly have failed to have been fully alive to his position and the obvious pressures to which he was likely to be subject. Mr Watters has been unable to point to any "hidden" danger arising out of the fact that he was an accomplice, and of which the jury would have been unaware. Nor is there anything in his situation or the evidence which the "superior experience" of the courts would recognise as justifying a warning about acting on his testimony. Luke's evidence was not "critical" to the prosecution case - indeed, this was not a situation in which Luke had previously pleaded guilty and been called by the prosecution. The evidence he did give in the trial was given in the course of his own defence, following the close of the prosecution case. This was not a situation in which the jury was being asked to convict on the uncorroborated evidence of an accomplice - the State was reliant principally upon the evidence of the complainant which was supported (as the proceedings eventuated) by the evidence given by Luke.
54 This ground has no reasonable prospect of success. Leave to appeal on this ground must therefore be refused.
Extension of time
55 It is not necessary to rehearse the reasons given for the appellant's delay in filing his appeal notice. The reasons are not entirely satisfactory, but more to the point, given the conclusion I have reached with respect to the grounds of appeal, as the appeal has no reasonable prospect of success, the application for extension of time should be refused.
Additional evidence application and videotape production application
56 Given my reasons and conclusion in respect of ground 1, the purpose for these applications falls away; there is now no point to them and they must be dismissed.
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