Garvey v The Queen
[2003] WASCA 100
•9 MAY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: GARVEY -v- THE QUEEN [2003] WASCA 100
CORAM: ANDERSON J
HEARD: 22 APRIL & 5 MAY 2003
DELIVERED : 9 MAY 2003
FILE NO/S: CCA 172 of 2002
BETWEEN: MARK ERIC GARVEY
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Principles
Legislation:
Bail Act 1982 (WA), Sch 1 Pt B, cl 2 and cl 4
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr M Mischin & Ms ZMM Windsor
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v Rogerson (1992) 174 CLR 268
Case(s) also cited:
Blight v The Queen [2001] WASCA 122
Caratti v The Queen [1999] WASCA 91
Hugo & Anor v The Queen [2000] WASCA 199
Leary v The Queen [1975] WAR 133
M v The Queen (1994) 181 CLR 487
Meissner v The Queen (1995) 184 CLR 132
Morris v The Queen (1987) 163 CLR 454
Mraz v The Queen (1955) 93 CLR 493
Quang Tung Tran v The Queen [1999] WASCA 1018
R v Ayres (1984) 2 WLR 257
R v Gilmour (1979) A Crim R 416
R v Ireland (1970) 126 CLR 321
R v McVitie (1960) 44 Cr App Rep 201
R v Walser (1994) 73 A Crim R 154
Tanner v The Queen [2001] WASCA 60
Wilde v The Queen (1988) 164 CLR 365
ANDERSON J: The applicant is a sentenced prisoner who is applying for bail pending appeal. It is his fourth application, three previous applications to Judges of this Court having been dismissed. The applicant appears to be under the impression that he can make successive applications for bail notwithstanding the dismissal of earlier applications as long as he can keep coming up with new grounds of appeal. This is not so. The relevant provisions of the Bail Act are to be found in Sch 1 part B cl 2 and cl 4 as follows:
"2Except where cl 4 applies, the power to grant bail for an appearance by a defendant ceases to be vested in any judicial officer (including a Judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is coextensive with his, has granted or refused bail for that appearance.
3…
4Notwithstanding cl 2, where a defendant has been refused bail for an appearance or has been granted bail therefore on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is coextensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefore if the defendant makes application and satisfies him that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance; or
(b)he failed to adequately present his case for bail on the previous occasion when it was considered; or
(c)where bail was granted subject to a home detention condition he has, since the previous occasion when his case for bail was considered, complied with the home detention condition for a period of 1 month or more."
Because the applicant has been refused bail by Judges of this Court on previous occasions cl 4 applies. Subclause (c) is not relevant and the applicant must therefore bring himself within subcl (a) or subcl (b). He has plainly failed to bring himself within subcl (a). He sought to argue that "new circumstances have arisen" within the meaning of subcl (a) because other grounds of appeal have occurred to him since he made his previous application. The formulation of additional grounds of appeal is not a new circumstance within the meaning of the subclause. Nothing else has been put forward which would come within the scope of subcl (a).
As to subcl (b) I have studied the transcript of the bail application before Roberts-Smith J, which is the most recent of the applicant's unsuccessful bail applications. In my judgment, the applicant did not fail to adequately present his case for bail on that occasion insofar as that case was based upon the grounds of appeal which had then been formulated. What the applicant says about this is that new and stronger grounds of appeal have now occurred to him and that these grounds of appeal should have occurred to him and would have occurred to reasonably experienced counsel had he been represented by counsel on that occasion but were not put forward.
In my opinion a case for bail pending appeal on the grounds of exceptional circumstances is not properly presented if through oversight no reference is made to the appellant's strongest grounds of appeal.
I think that is what has happened in this case. I am prepared to accept that I have jurisdiction under cl 4(b) to determine this application on its merits.
Although I think the new grounds of appeal are better in the sense they are more arguable than any thus far the question remains whether the appellant has brought forward grounds of appeal which are likely to succeed so that in combination with other circumstances including the difficulties which confront him in attempting to prepare his appeal in prison and the fact that a substantial part of the non-parole portion of his term will have been served before his appeal comes on for hearing, there are exceptional circumstances sufficient to sustain the bail application.
Of course it is not possible for a Judge hearing a bail application to make any detailed determination regarding the merits of the appeal, but some assessment of the prospects of success must be made.
The applicant said that he did not abandon any of the grounds of appeal which had been formulated at the time of his unsuccessful application to Robert‑Smith J. Robert‑Smith J has explained why in his opinion the grounds of appeal on which the applicant said he was then relying are unlikely to succeed. I will confine my attention to the new grounds of appeal, but I will keep in mind that the strength of the overall case on appeal is to be judged by reference to all grounds put forward, not just the new grounds.
There was another potentially complicating factor in that between the date when this application came on for hearing (22 April 2003) and the date of the resumed hearing (5 May 2003) the applicant had prepared and served a document containing what appear to be yet another set of appeal grounds. However, the applicant informed the Court that it was not his intention to change the basis of his bail application by the service of this document. He served the document only to signify that in due course he would seek to express his grounds of appeal somewhat differently than at present. He said that in substance his complaints about the trial, the weaknesses in the Crown case, the indictment and the Judge's summing up remained the same. He was content, he said, that his bail application should proceed as formulated on 22 April 2003. That is the basis on which I now deal with it.
Ground 1
The first of the new grounds which I will call ground 1 is a plea that:
"The indictment did not disclose a course of justice, the making of a complaint to the ACC not being a course of justice."
The indictment charged that:
"Between 21 April 1999 and 9 September 2000 at Perth Mark Eric Garvey attempted to pervert the course of justice by providing false information to the Anti-Corruption Commission alleging corruption by Western Australian police officers in relation to two speeding charges brought against Mark Eric Garvey."
The applicant's principal submission is that inquisitorial proceedings in the Anti‑Corruption Commission are not included within the term "course of justice" and do not form part of the course of justice and the indictment does not disclose an offence known to law. It may be supposed that he will therefore say that the indictment should be quashed and his conviction set aside.
I think that this is based upon too narrow a view of what is meant by the course of justice in this branch of the law and too narrow a view of what may constitute a perversion of it or an attempt to pervert it. It is true that the proceedings in the Anti‑Corruption Commission are not curial proceedings, but that is not the test. At whatever stage or level it may be done it is well settled that an act which has a tendency to deflect law enforcement agencies from prosecuting a criminal offence and which is done with intent to achieve that result can amount to an attempt to pervert the course of justice. As it was put by Mason CJ in R v Rogerson (1992) 174 CLR 268 at 277.
"In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted…"
The judgments in the same case reveal that it is also settled that fabricating evidence with the intention that an individual should be wrongly charged and convicted in a court can amount to an attempt to pervert the course of justice because it is conduct which impairs "the capacity of a court or competent judicial authority to do justice": R v Rogerson (supra) per Brennan and Toohey JJ at 280.
Without going into the facts of this case to any great extent, the applicant made a report to the Anti-Corruption Commission naming four police officers and alleging conduct which was improper. The applicant tried to say that he did not make a "complaint" to the Anti‑Corruption Commission but that is what his initiatives amounted to. It is silly to think that he was doing anything other than complaining about corruption and abuse of office by these police officers. The Commission is the body which has the power to investigate such allegations and make recommendations concerning the criminal prosecution of the officers and to gather evidence for submission to prosecution authorities: Anti‑Corruption Commission Act 1988 s 12. The Crown case at trial was that the applicant's purpose in making his complaint to the Anti‑Corruption Commission was twofold - to stop the police from prosecuting him in respect to a 1998 speeding offence and to have the officers concerned prosecuted for their misconduct in fabricating a case against him.
Insofar as the first ground of appeal depends upon the proposition that the providing of false information to the Anti-Corruption Commission for the purposes mentioned cannot amount to attempting to pervert the course of justice I am not persuaded that it is likely to succeed. Once it was accepted by the jury that the applicant had provided false information to the Anti‑Corruption Commission alleging conduct on the part of police officers which constituted corrupt conduct and which could lead to the police officers being charged and convicted of conspiracy or official corruption, it was open to infer that he did so intending to bring about that result.
Let me put it this way: If it is discovered that two or more police officers have combined to bring trumped up charges against a person they are likely to be prosecuted. They will have committed at least one if not several offences. So, if an individual makes false allegations about police officers to the effect that this is what they have done and those false allegations are supported by false documents and are made to a governmental body with the duty to investigate corruption by police and to furnish evidence to prosecuting authorities, the inference is open that the individual did so with the intention that the officers who he has named and against whom he has made his false allegations should be investigated and ultimately prosecuted. On the face of it the conduct of the individual would constitute an attempt to pervert the course of justice. It would even be enough if the individual's intention was simply to discourage the police officers from pursuing a charge properly laid in order to avoid trouble.
The evidence led at the applicant's trial left it open to the jury to find that the applicant's conduct had the capacity to result in the wrongful prosecution of the police officers and that it was his intention that this should happen; alternatively, that his conduct had the capacity to result in the speeding charge against him not proceeding; and that this was his intention.
The applicant submitted that the evidence at trial showed that far from discouraging the police he had actually requested the police to prosecute him in court. He said this contradicted the idea that he had an intention either to hinder them from doing so or pressure them not to do so. I would not accept this submission. The applicant's request that the speeding charges against him be dealt with by a court and not administratively is quite consistent with both of the intentions referred to above and does not tend to disprove the offence charged in the indictment.
Ground 2
By the second new ground which I will call ground 2 the applicant pleads that:
"The trial judge erred in failing to direct the jury on the inconsistent hearsay or perjury testimonies of police witnesses Phillips and Ferguson."
This ground depends upon making good the assertion that both police officers gave evidence that each of them had personally received two documents from the applicant when according to the applicant the truth was that the documents were not handed to either of them by the applicant, but were left by him at a reception desk with a receptionist at a time when no police officer was present in the reception area.
The applicant referred to several passages in the trial transcript in an attempt to show that both police officers, Inspector Phillips and Sergeant Ferguson, had each sought to give the impression that he had personally received the particular documentary exhibits (exhibit 1 and exhibit 2) from the applicant. It followed, he said, that their evidence had to be rejected as inconsistent or contradictory and the jury should have been so instructed. Furthermore, he submitted that in so far as the evidence was led to prove that exhibit 1 and exhibit 2 were actually the documents which he, the applicant, had handed in the evidence was inadmissible as hearsay.
I have read the transcript of the evidence of both police officers on this subject. Inspector Phillips did not say that the applicant had handed him the two documents, only that the applicant had "provided" them. When questioned further about the matter he said he thought the exhibits "may have been delivered to the receptionist" but he made it clear that he did not really know. Sergeant Ferguson gave evidence that the applicant had personally handed the documents to him. His evidence at trial transcript (pages 224 - 225) was that following a chase‑up telephone request from him to the applicant, the applicant had attended at the Internal Investigation Unit office at 1.15 pm on 2 September 1999 and "produced these two documents to me". So far as I can see this evidence was not challenged. It was not suggested to him that he was mistaken concerning the manner in which he came to receive exhibit 1 and exhibit 2 neither was it suggested to him that he was not telling the truth about the matter. It was not put to him that exhibit 1 and exhibit 2 were not the documents that had been handed in. The jury were entitled to accept the evidence of Sergeant Ferguson which called for no special direction from the trial Judge.
In these circumstances, I doubt that this ground of appeal can succeed.
Ground 3
The third new ground which I will call ground 3 pleads:
"Defence counsel erred in failing to object to the Crown introducing uncharged offences alleged to have been committed by the applicant and adducing evidence concerning those uncharged acts as complaint evidence of the indicted charge."
I am not persuaded that this ground of appeal has much prospect of success. I cannot see from the transcript where the prosecution sought to lead evidence that the applicant had committed some other offence or offences. Evidence was led as to the applicant's possession and control of a particular computer and there was evidence that this was a Ministry of Justice computer, but it was not submitted that his possession of it was an offence. The applicant disputes the evidence but that is beside the point. The question with respect to this ground of appeal is whether the Crown led evidence that the applicant had committed other offences or that he had a propensity to do so. I do not think any such evidence was led. In any event, if the evidence which was led had this character the evidence was part of the prosecution case directly probative of the offence in that it was led as part of the proof that the documents which had been supplied to the Anti‑Corruption Commission were false and had been created on a computer in the applicant's possession. I think it is unlikely that the applicant will be able to persuade the Court of Criminal Appeal that the trial miscarried because the prejudicial effect of evidence concerning the applicant's possession of the computer in question outweighed its probative value, which is the basis for the rule against allowing evidence to be given of the commission of other offences.
The applicant sought to argue that it was never proved that he was in possession of a Ministry of Justice computer at any time after his dismissal from his employment on 23 March 1999 and he also made submissions which challenged the computer evidence or perhaps more accurately the conclusions that were sought to be supported by the computer evidence. This of course does not go to the question whether the trial miscarried because the jury heard evidence of uncharged offences. I will take it however that it is part of the general submission that the verdict was unsafe and unsatisfactory in that important computer evidence was either misunderstood or not credible. I think the answer to this line of argument is that on the face of it all of the matters mentioned by the applicant in argument to this Court appear to have been fully canvassed at trial. The applicant appears to have made to the jury all of the points about the computer evidence that he sought to make in this application. In so far as I was able to understand the themes and combinations in the applicant's submissions concerning the computer evidence they were for the jury to either accept or reject. They were jury questions and the jury did not accept them. I think it is unlikely that the Court of Criminal Appeal can be persuaded that the jury was not entitled to take the view that it obviously did take.
Insofar as the applicant sought to persuade me that the reason why the jury did not accept his explanations was that the jury must have misunderstood his evidence then all I can say is that I am not persuaded that the applicant is likely to be able to persuade the Court of Criminal Appeal that it was not open to the jury to find on the whole of the evidence that it was the applicant who had fabricated the disputed documents. As counsel for the respondent has pointed out the computer evidence did not stand alone. There was other evidence supporting the conclusion that the documents were fabricated including Sergeant Ferguson's evidence that the letter addressed to the applicant purporting to be from the Traffic Camera Section of the Traffic Branch of the Police Department dated "May 10, 1995" had highly suspicious features. The word "Sergeant" was misspelt and the letter was not signed off in the orthodox manner.
Ground 4
The fourth new ground which I will call ground 4 pleads:
"The trial Judge erred in allowing the Crown to introduce uncharged offences alleged to have been committed by the applicant and adduce evidence concerning those uncharged acts as complaint evidence of the indicted charge and/or alternatively the trial Judge erred in his discretion or at law in allowing evidence of "uncharged acts" to be admitted in evidence as they did not or could not reasonably be categorised as "propensity" or "relationship"–type evidence in the circumstances of the case."
This falls to be answered in the same way as the third and fourth grounds. It is unlikely that the applicant will be able to persuade the Court of Criminal Appeal that the evidence in question was evidence of uncharged offences or, if it was, that its prejudicial effect outweighed its probative value.
Ground 5
The fifth new ground which I will call ground 5 really raises the same point in a slightly different way. It claims:
"The trial Judge erred in law in that he failed to adequately direct the jury as to the use which the jury could make of, if at all, any evidence of uncharged offences."
I think it is unlikely that the applicant would be able to persuade the Court of Appeal that there was any occasion for a direction on the use to be made of evidence of uncharged acts.
Ground 8
The last of the newly-drawn grounds (grounds 6 and 7 were abandoned) alleges an unsafe and unsatisfactory verdict. I am not persuaded that it is likely that the applicant will be able to persuade the Court of Criminal Appeal that the verdict of the jury was unsafe or unsatisfactory. The applicant referred to a wide range of factual issues which he says should have been decided in his favour. But this was trial by jury and all of the issues of fact to which the applicant referred appear to me to have been squarely before the jury.
The applicant complained that the Judge was unduly disparaging of his evidence and his credibility. A trial Judge has the responsibility to provide the jury with guidance with regard to the evidence. If he believes the jury should be sceptical of the evidence of a certain witness or even dismissive of it he is entitled if not duty bound to tell them so as long as he makes it clear that in the end it is a matter for them. In this case, I am by no means persuaded that the trial Judge did any more than discharge his duty in making the comments which he did make about the applicant's evidence.
Conclusion
This application must be dismissed and I so order.
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