Gee v The Queen - [2002] WASCA 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GEE -v- THE QUEEN [2002] WASCA 180

CORAM: WHEELER J

HEARD: 21 JUNE 2002

DELIVERED : 27 JUNE 2002

FILE NO/S: CCA 101 of 2002

BETWEEN: KEITH DOUGLAS GEE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Bail - Pending appeal - Turns on own facts

Legislation:

Bail Act, cl 4 sch 1

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr D P A Moen
Respondent: Ms A L Forrester

Solicitors:

Applicant: D P A Moen
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Birks v The Queen (1990) 48 A Crim R 385
Ignjatic v The Queen (1993) 68 A Crim R 333
Longman v The Queen (1989) 168 CLR 79

Case(s) also cited:

Bent v R (1994) 70 A Crim R 1
Chamberlain (No 1) (1983) 153 CLR 514
Crofts v R (1996) 139 ALR 455
Dibb v R (1991) 52 A Crim R 64
Eastley v The Queen [2001] WASCA 227
Hamilton v R (1993) 68 A Crim R 298
Roddan v The Queen, unreported; SCt of WA; Library No 970062; 20 February 1997
Tran v The Queen, unreported; SCt of WA (Scott J); Library No 990117; 11 March 1999

WHEELER J: Mr Gee applies for bail pending his appeal against conviction on two counts of indecent dealing and one count of sexual penetration. He was convicted after trial by a jury on 16 April 2002. It is common ground, as I understand it, that there is nothing in his personal history and circumstances which indicates that there is a risk of flight pending the appeal if he were released. He has been married for eight years, he and his wife have four children and are resident in Western Australia. It is also, as I understand it, not in dispute that this is not a case in which the greater part of his sentence would be served by the time any appeal could be heard and determined.
In considering whether, pursuant to cl 4 of sch 1 of the Bail Act, there are exceptional reasons why he should not be kept in custody, Mr Gee relies primarily upon what is alleged to be the strength of the grounds of the proposed appeal. Some reliance is placed also upon the personal circumstances of Mrs Gee; she deposes in an affidavit that receives a pension and is finding it very difficult to cope with the children while her husband is in gaol. This is unfortunate, and I recognise that she is in a difficult position, but those personal circumstances are plainly not sufficient to justify a grant of bail appending appeal.
So far as the proposed appeal is concerned, there are two strands. The first is in relation to alleged inadequacies of the learned trial Judge's direction to the jury, particularly in relation to the time which had elapsed between the offence and the complaint in one case, and between the offences and the trial in all cases. The other strand relates to the alleged incompetence of the applicant's counsel.
So far as the first strand is concerned, I note that a warning of the type usually referred to as a "Longman" (Longman v The Queen (1989) 168 CLR 79) warning was given by her Honour; she referred to it as a "warning", directed the jury to scrutinise the evidence carefully, and pointed to certain circumstances which gave rise to the warning. So far as the sexual penetration was concerned, her Honour referred to the delay in complaint, advised the jury that there were many reasons why victims could delay in complaining, but also advised the jury that in her Honour's recollection the complainant had given no particular explanation for the delay and directed them that it was a matter that they should take into account in assessing credit. It is true, as counsel for the applicant points out, that her Honour did not warn the jury that it would be "dangerous" to convict upon the complainant's evidence, but the absence of a particular formula is not fatal; rather, the question is whether the warning which was given adequately conveyed to the jury the need for care and scrutiny in the circumstances. I also note that her Honour did not in terms refer to the forensic disadvantage faced by an accused when a complaint is made many years afterwards, save in recapitulating the argument apparently raised by counsel for the applicant that the applicant was at a disadvantage when he did not know the exact date and the allegations were made years later. This was, however, a case in which the applicant did give some evidence that he remembered the period in question and that it was not one during which he would have had the opportunity to commit the offences alleged, for reasons which related to his marriage and which related to his finishing employment. In all those circumstances, it is not appropriate to attempt to predict the likely outcome of the appeal in relation to those grounds. They do appear to raise arguable questions on their face, but do not appear to me to be highly likely to succeed.
So far as the alleged incompetence of counsel is concerned, it is convenient to mention first the principles to which an appellate court will have regard in considering an appeal based upon this ground. In Birks v The Queen (1990) 48 A Crim R 385, Gleeson CJ summarised the relevant principles. It is not a ground for setting aside a conviction that decisions made by counsel were made without or even contrary to instructions, or involve errors of judgment or even negligence. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of incompetence of counsel or from some other cause, which will be recognised as involving or causing a miscarriage of justice. Such cases will attract appellate intervention. I respectfully adopt those observations. I respectfully adopt also the observations of Hunt CJ at CL in Ignjatic v The Queen (1993) 68 A Crim R 333 that it is, in a case in which incompetence of counsel is raised, necessary for the appellant to establish that a miscarriage of justice occurred and to provide the evidence upon which such a conclusion could fairly be based. It is not sufficient that he may merely have lost the chance to raise various issues which were not raised at trial.
In the present case, the indictment alleged that the offences occurred between September 1993 and September 1994. Her Honour directed the jury that they had to be satisfied beyond reasonable doubt that the events alleged occurred between the dates on the indictment. Her Honour, during the course of the trial, raised the question of the dates with counsel. I do not set out the whole of the discussion. Its effect was that her Honour noted the evidence given by the applicant that from a date prior to the earliest of the dates in the indictment, he had married and he and his wife had moved into their own home and from that time he did not stay overnight at the complainant's home and therefore did not have the opportunity to commit the offences alleged. After some discussion, during the course of which the Crown prosecutor noted that on any view the events alleged must have occurred prior to the complainant's thirteenth birthday, and that it was not a case in which the incident described "could be said to be confused with any other incident or episode", counsel for the Crown advised her Honour that he had considered, but rejected, the possibility of applying to amend the indictment.
The evidence before me from the applicant and his wife relates in part to the question of the dates on which the offences are alleged to have occurred. They have sworn affidavits the effect of which is that both the applicant and his wife had advised the solicitor engaged by the applicant that she would be able to give evidence in support of his contention that he had been at their home at all material times, but that they were advised by the solicitor that she was unable to give evidence because she was married to the applicant. If that advice was given, it was plainly wrong.
In addition to the question of the dates, there are a number of other matters which the applicant in his affidavit deposes he wished his solicitor Mr Glenn to raise during the course of the trial, but which were not raised. Many of them do not appear to me to be matters of such significance that it is necessary to canvass them at the moment. However, there are some which are of greater significance.
One potentially significant matter was that another acquaintance of the complainant's family was a former police officer who was, at about the relevant time, working as a security officer at the bingo premises which it was said all parties had attended on the night in question. That person had a moustache. It appears that the applicant also had a moustache at about the relevant time. The relevance of these facts appears to stem from the fact that in her first complaint in relation to the offence of sexual penetration, which was made to her friend Tanya many years after the event, the complainant did not name her alleged assailant but, it appears, said only that he was a friend or boyfriend of the complainant's mother and was "something to do with security". As I understand it, it is submitted that exploration of this matter might have revealed the possibility that there had been some confusion in the complainant's mind between the applicant and that other person. That possibility would obviously be enhanced if there were also evidence that the applicant had not stayed at the complainant's house at the time at which she recalled the offences having taken place.
However, it should also be noted in relation to the potential relevance of the security officer acquaintance, that the applicant's affidavit does no more than assert that the person in question was an acquaintance of the complainant's mother, that he had a moustache, worked as a security officer at bingo, and had been charged with some offences of a sexual nature against his own daughter. This information was said to have been given to the applicant's solicitor, who said that he would "look into it" but did not. At this stage, therefore, it is difficult to assess how relevant that information may have been, particularly as there is nothing which assists in assessing even as a possibility whether the person in question ever stayed with the complainant's family in circumstances which might have given him the opportunity to commit any offence. A further difficulty in assessing the potential relevance of this information at this stage, is that in relation to the first of the indecent dealing counts, it was the complainant's evidence that she had gone to her mother's bedroom and alerted her stepfather and her mother to the fact that the offender had entered her own bedroom. There was evidence also from her stepfather, who seems to have known the applicant well, that he went in response to some information from the complainant, and found the applicant in her bedroom, the applicant explaining his presence there by saying that he had lost his way to the toilet. There was also evidence from the complainant's younger brother that when she had complained to him one night of question of some indecent dealing, she had named the applicant, although it must be recalled that his evidence was that he was very young – perhaps 8 years of age – at the time.
The applicant also deposes that he instructed his solicitor that he wished a number of character witnesses to be called but that this was not done. It is not in issue that the applicant was a person of prior good character, and character evidence would accordingly have been relevant and admissible.
So far as the dates of the alleged offences, and the applicant's opportunity to commit them, are concerned, there were, as is common in trials of this type held a long time after the events in question, some difficulties in ascertaining precisely when the offences might have been committed. The evidence of the complainant and of her brother as to their ages at the time was not entirely consistent either with each other, or with other evidence. It is difficult in the light of that imprecision, to form any view as to how a jury might have regarded the evidence which Mrs Gee wished to give. The information as to the security officer currently appears to be of no relevance as it stands, but one can see that had the question been explored, evidence of relevance may or may not have emerged. Evidence of good character plainly would have been relevant, but there is no information about the content of the proposed character evidence in the applicant's affidavits.
While the allegations as to incompetence of his instructing solicitor, who acted as counsel at trial, give rise to some concern, they are not in their present form of a nature which suggests to me that there is such good prosect of success on the hearing of the appeal that the applicant should be granted bail. Rather, they are in the nature of a loss of opportunity to raise issues of potential significance. I note, in addition to the matters referred to above, that the applicant has not provided – or even sought, it appears – any affidavit material from his former solicitor. The Crown has not so far had the opportunity to ask the former solicitor for such information as he may be able to give without breaching legal professional privilege. There is of course at this stage no report from the trial Judge, and it may be that the applicant would consider it desirable to request this Court to seek such a report.
In the light of the information presently before me, it does not appear that exceptional circumstances exist which would justify the grant of bail to the applicant pending the determination of his appeal.