JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GLOSSOP -v- BECK [2012] WASC 298 CORAM : HALL J HEARD : 6 AUGUST 2012 DELIVERED : 24 AUGUST 2012 FILE NO/S : SJA 1010 of 2012 BETWEEN : ASHLEY JAMES GLOSSOP Appellant
AND
COLIN STUART BECK
Respondents
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE J MUSK
File No : NO 2479 of 2009, NO 2480 of 2009, NO 2481 of 2009, NO 2482 of 2009, NO 2483 of 2009
Catchwords:
Criminal law - Appeal against conviction - Extension of time to appeal - Whether miscarriage of justice due to alleged errors of counsel - Whether evidence incapable of supporting convictions - Error not established - Turns on own facts
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Legislation:
Nil
Result:
Extension of time to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondents : Ms C A Fletcher
Solicitors:
Appellant : In person
Respondents : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):McLeod v The State of Western Australia [2009] WASCA 233TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
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Introduction and extension of time 1 On 18 August 2010 the appellant was convicted of two counts of indecent assault, contrary to s 323 of the Criminal Code (WA), one count of common assault, contrary to s 313(1)(a) of the Criminal Code and one count of unlawful damage, contrary to s 445 of the Criminal Code. Those convictions followed a hearing in the Magistrates Court in Northam. The appellant now seeks leave to appeal against the convictions.
2 Whilst the appellant had legal representation at his trial, he has represented himself on the appeal. He filed an appeal notice on 25 January 2012. That was more than 18 months out of time. He applied for an extension of time and filed an affidavit in support of that application. That affidavit sets out attempts made by the appellant to obtain legal representation. There appears to have been a delay in processing the legal aid application and a limited grant of aid was made on 6 July 2011 for the purposes of obtaining an opinion on the merits of the appeal. Following receipt of the opinion a grant of aid to pursue the appeal was refused. Some time later the appellant instructed lawyers to make a fresh application for legal aid. Those lawyers advised him on 9 December 2011 that his application for legal aid had been refused.
3 Whilst those facts may explain some of the delay they do not adequately justify the full extent of it. Where there is a lengthy delay exceptional circumstances must be demonstrated unless it can be established that a miscarriage of justice will eventuate unless an extension is granted: McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P).
4 In order to determine whether an extension should be granted in this case it will be necessary to give consideration to the merits of the proposed grounds of appeal.
Grounds of appeal
5 The grounds of appeal contained in the notice of appeal are as follows:
1) During my trial on the 18th August 2010 my lawyer Frederick Butafa never let me stand up in court to say my version, as if I did manage to say my version, I would of have had a better chance of being found not guilty.
(Page 4) 2) During my trial, my nephew Jacob Glansville gave evidence saying that I never indecent assaulted his mother Gillian Glansville in laundry, to which Gillian Glansville said I did. 3) Deanna Glossop evidence of the indecent assault in the kitchen of her daughter Gillian Glansville where different to what her daughter Gillian Glansville has said.
4) The aggravated common assault charge on Jacob Glansville had no witness(es) to the assault.
5) I informed my lawyer Frederick Butafa that I want to plea not guilty to one count of criminal damage to property to which he lodge a guilty plea.
6) My lawyer Frederick Butafa informed me it would be irrelevant to have witnesses brought to the court, to say their version of what I was like during the Christmas period (2008) which I would have had a better change of being found not guilty [errors in original].
6 As regards ground 5, the transcript of the proceedings in the Magistrates Court shows that a plea of not guilty was entered in respect of the damage count. However, this charge was not seriously contested because it became apparent during the course of the trial that the appellant had made admissions to causing the damage in his interview with the police. The appellant's lawyer conceded that in these circumstances a finding of guilt was inevitable. At the hearing of the appeal the appellant stated that he did not wish to proceed with ground 5. 7 On 9 July 2012 the appellant filed an application to call a witness at the hearing of the appeal. The witness in question was the appellant's brother, Jarrod Reece Glossop. As there was no ground of appeal which referred to fresh or new evidence it was not apparent what the relevance of any evidence from Jarrod Glossop would have in the appeal. The matter was listed for directions on 24 July 2012. On that day the appellant explained that the purpose of seeking to call his brother was to lead evidence from him as to the appellant's state of mind at around the time the offences were said to have occurred. The appellant said that whilst his brother was not present on the day the offences were alleged to have occurred, he could give evidence that the appellant was not generally an aggressive person. He described this, accurately, as character evidence. This evidence was said to be relevant to ground 6. That is, the appellant was asserting that his brother was one of the witnesses that his lawyer had advised should not be called because their evidence was irrelevant. I advised the appellant that if he wished to maintain that his lawyer prevented him from defending himself or failed to follow his instructions
(Page 5) he would have to support such assertions with evidence from himself in the form of an affidavit.
Grounds 1 and 6 8 In essence, these grounds allege that there has been a miscarriage of justice because the appellant's lawyer did not act in accordance with his instructions. The appellant did not file an affidavit in support of his assertions. In these circumstances there is no basis for these grounds.
9 In any event, the respondent filed an affidavit from the lawyer in question, Mr Frederick Butafa. As regards ground 1 and the claim that the appellant was prevented from giving evidence in his defence, Mr Butafa states:
5. I received instructions from Mr Glossop to the effect that he did not wish to give evidence. I acted on those instructions. I gave advice to Mr Glossop that if he did not wish to give evidence in his defence then that was his right. I also gave evidence that in my opinion, it was in his best interests not to give evidence. ...
15. I advised Mr Glossop that it was his right to give evidence in his defence at his trial.
16. I also advised Mr Glossop that if he intended to give evidence in his defence, he opens himself to be cross-examined. I told him of my reluctance to expose him to cross-examination given his state of mind at the relevant period.
17. I advised Mr Glossop that his denials in the video recorded interview are sufficient evidence of his denial of the allegations against him.
18. Mr Glossop understood my advice and instructed me that he was not going to give evidence in his own defence. I agreed with his judgement and did not feel the need to advise him otherwise.
19. On 18 August 2010 when the prosecution closed its case, I enquired with Mr Glossop if he changed his mind about not giving evidence in his defence.
20. Mr Glossop confirmed his instructions of not giving evidence in his defence and to rely on his denials on his video recorded interview - which was adduced as evidence at the trial by the prosecution. I informed the court that Mr Glossop is not giving evidence in his defence and that the defence was electing to remain silent.
(Page 6)
10 It is correct that at the conclusion of the prosecution case defence counsel advised the court that the appellant was not giving evidence and would rely upon his video record of interview (ts 60). There is nothing in the transcript to indicate that the appellant disagreed with this statement.
11 As regards ground 6 and the claim that Mr Butafa failed to call relevant witnesses Mr Butafa states:
22. At the relevant time, the adult witnesses to his character/behaviour were the prosecution witnesses. They are his father, his step-mother and his step-sister (complainant). 23. In months leading up to Christmas period of 2008, Mr Glossop instructed that he was staying between his brother's home in Safety Bay and friend's place in Thornlie. He instructs that he was using drugs heavily as a result of his girlfriend's death.
24. In the lead up to trial, and acting upon the instructions of Mr Glossop I spoke to Mr Glossop's brother and I formed the view he would not have provided any favourable character reference for Mr Glossop.
12 The appellant did not seek to cross-examine Mr Butafa on his affidavit and provided no contrary evidence. That evidence is, therefore, uncontradicted. 13 For a conviction to be set aside on the basis of counsel's conduct it must be shown that there was a material irregularity that had a significant possibility of affecting the outcome: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
14 I note that following the hearing the appellant filed what purported to be an affidavit from his brother. It was, in fact, a letter with an affidavit cover sheet. It was, in substance, a character reference. Good character evidence of this type may well have been admissible at the trial, but the failure to adduce it is not necessarily indicative of a miscarriage of justice. The reasons given by Mr Butafa for not leading the evidence indicate that a tactical decision was made. It is a well established principle that, in the ordinary course, a party is bound by the way in which their counsel has presented their case. A miscarriage of justice does not occur simply because an apparently rational decision taken by counsel may be argued to have worked to the disadvantage of the accused.
15 It has not been shown that it was clearly an error not to call the brother, nor that if he had been called it might have affected the outcome.
(Page 7) In these circumstances, grounds 1 and 6 have no reasonable prospect of succeeding.
Grounds 2, 3 and 4 16 In these grounds the appellant asserts that the evidence of critical witnesses was inadequate to establish the charges. In order to understand them it is necessary to summarise the prosecution case.
17 In late December 2008 to early January 2009 the appellant was staying with his father and step-mother, Trevor and Deanna Glossop, at their home in Toodyay. He had asked to stay with them so that they could assist him in his efforts to avoid taking illicit drugs. At around the same time Mrs Glossop's daughter from a previous relationship, Gillian Glanville, travelled from Queensland with her 9 and 11-year-old sons to stay at the Toodyay house with the Glossops. During this period the household was not a happy one and, in particular, there was significant tension between the appellant and the other people residing at the house.
18 The prosecution case was that in the week prior to Christmas 2008 an incident had occurred in the kitchen. Mrs Glanville said that she was collecting plates to put them in the dishwasher when the appellant approached her and grabbed the back of the halter top she was wearing and used force to try to undo the knot. She said that:
• he was attempting to rip her top undone and that, after putting the dishes down, she tried to stop him (ts 9 - 10); • the appellant grabbed her hands or wrists and that she tried to kick him but missed;
• she then managed to grab hold of his fingers and to slip a couple of his fingers off and bent them back (ts 9);
• her mother, Deanna Glossop, was in the kitchen at the time and told the appellant to get off (ts 10); and
• this was not an isolated incident and that the appellant had been constantly rubbing up against her, pinching her breasts and making suggestive remarks (ts 6 - 8).
19 This incident related to the first charge of indecent assault. 20 A further incident was alleged to have occurred on 2 January 2009. On this occasion Gillian Glanville and her 9-year-old son, Jacob, were
(Page 8) again clearing away dishes. They were taking the dishes from the kitchen to the dishwasher, which was located in the laundry. Mrs Glanville said that the appellant was grabbing at her and making rude comments (ts 11). She said that she had her hands full of dishes at the time and that the appellant was trying to grab at her breasts (ts 26). This incident related to the second charge of indecent assault.
21 Almost immediately following the incident comprising the second charge, Jacob Glanville kicked the appellant. The appellant then kicked Jacob with what was described by Mrs Glanville to be a full force kick to the backside (ts 11 - 12). This kick relates to the charge of aggravated common assault. 22 Ground 3 relates to the evidence in respect of the first indecent assault charge. The appellant contends that the evidence of Deanna Glossop was different to that of Gillian Glanville. In submissions the appellant said that the difference lay in the fact that Deanna Glossop had referred to the appellant as standing in front of Gillian Glanville when he was attempting to rip off her halter top whereas Gillian Glanville had said that the appellant had come up behind her. Whether there is any inconsistency in this regard may in fact turn on whether the positions of the two people concerned remained the same throughout the incident.
23 Gillian Glanville's evidence as to this incident was as follows:
He walked up beside me and then around behind me and tried to pull my top off (ts 20). [he] walked across in front of me and he grabbed it across - beside me, went behind me and grabbed it to try and untie it ... He walked across the kitchen. I was here. He walked over to the counter. He walked across, went behind me, put his hand on my and tried to undo my top (ts 21).
24 Deanna Glossop's evidence in this regard was as follows: Did you say you were sitting down?---Initially as far as I remember, I was sitting down at the table, yes. Which direction were you facing when you were sitting down?---I was sitting half with my back to them, half away.
Do you remember what Gillian was doing?---No, not really, because I wasn't taking that much notice at that stage. I only started watching what they were doing when Gillian became - when I could hear Gillian was becoming anxious and she started yelling at him.
(Page 9) You said she was talking to you in the kitchen?---Well, I think she was, yes. She'd come into the kitchen to speak to me, as far as I remember. What you're saying is you only noticed that - - -?---Because I had my back - - -
What exactly did you notice Ashley was doing when you turned around?---Well, the first time I saw it - I turned around, he actually had - he had his hand on this part of her thing, and he was trying to pull it off, and he wasn't - he was really pulling. It wasn't just a half-hearted effort.
What was Gillian doing when as you say Ashley was pulling on the - - -?---She was trying to push him off, and he was actually - as far as I remember, he was either holding onto one of her hands or something or other - I can't remember - and she was trying to get away from him.
Sorry, who was holding onto the hand?---Ashley was hanging on to one of her hands, as far as I remember.
Where was Ashley?---He was standing - my daughter was - I was sitting here, my daughter was standing there and he was standing in front of her.
Sorry, I didn't catch that. Was Ashley standing in front?---Of my daughter, face on like that, and he had his hand on her top and he was trying to pull it off.
Is that what you noticed?---Yes.
Are you sure about that?---Yes, I am. I'm sure about that.
When you turned around you looked and you saw Ashley standing in front of Gillian and pulling at her - - -?---Yes, he had hold of her top. Yes.
Which part of her top was he holding onto?---This part up here. As far as I remember it was up here.
So you saw Ashley standing in front and holding towards the back of - - -?---Yes, he was holding this part of her halter top.
I put it to you that that did not happen?---Why.
That incident did not happen at all?---Well, I saw that happen, so I don't understand why you would think that it didn't happen, because I was there and I saw it happen.
Your daughter, on video, this morning, said that Ashley was behind her?---Well, I thought he was in front of her. Otherwise I wouldn't have said that.
You thought he was in front of her?---Yes.
(Page 10) It happened over one and a half years ago, so if I can't remember the exact details, I'm very sorry, but to the best of my knowledge, I have told the truth. Maybe he grabbed her from behind, first off, and then she turned around, and maybe by the time I saw them he was in front. You were just right there in the kitchen?---But I was only facing - I was only halfway facing, so I couldn't see the full thing. I only turned around once I realised there was a problem, because this had been going on for quite a while, with things happening and things not happening, so I was a bit blasé because it was a constant problem (ts 46 - 47).
25 It is clear from this that the assumption made by the appellant that Mrs Glossop was watching the incident from the beginning is incorrect. As Mrs Glossop pointed out, it is possible that the appellant came up behind Gillian Glanville as she had said but then in the ensuing struggle their positions changed. In these circumstances it is not possible to reach a conclusion that the evidence of Mrs Glossop is inconsistent with that of Gillian Glanville on this point. 26 In any event, even if there was an inconsistency, it does not necessarily follow that an inconsistency will lead to a conclusion that the evidence in respect of this incident was such that the conviction is unsafe or unsatisfactory. In regard to what might be thought to be the more important features of the evidence, that is whether the appellant had hold of the halter knot and whether he was seeking to forcibly remove Gillian Glanville's top, the prosecution witnesses were in agreement.
27 It is also relevant to note that with respect to the first incident there was evidence that the appellant had made admissions to his father. Trevor Glossop gave evidence to the following effect:
I was informed of Ashley trying to lift up Gillian's top, so I then went to him privately and I said, sort of, you know, 'Don't do this,' sort of. 'Don't do it any more, so leave her alone,' sort of, you know, 'Stop trying to rip off her top,' and he told me sort of that basically he was like mucking around, or playing or joking sort of thing. He didn't really take it seriously, but by his reply I took it that he sort of was admitting that sort of he did so that, yes (ts 53).
28 Ground 2 relates to the evidence in respect of the second indecent assault charge. The appellant contends that Jacob Glanville did not give evidence that an indecent assault of Gillian Glanville occurred in a laundry. Jacob Glanville's evidence-in-chief consisted of a recorded police interview. In that interview Jacob said that the appellant had been in the way when his mother had gone to the laundry. He said that he did not see the appellant touch his mother but he had wanted to defend her