Hart v The State of Western Australia - [2011] WASCA 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HART -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 210

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 3 AUGUST 2011

DELIVERED : 30 SEPTEMBER 2011

FILE NO/S: CACR 9 of 2011

BETWEEN: BEVAN JABEZ HART
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
File No  :IND BUN 90 of 2010

Catchwords:

Criminal law - Application for an extension of time - Application for leave to appeal against conviction - Prejudicial material in video record of interview - Failure to give evidence - Incompetence of counsel - Error in summing up - Whether miscarriage of justice - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2), s 30(3)

Result:

Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Applicant: In person
Respondent: Director of Public Prosecutions (WA)

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

BJH v The State of Western Australia [2011] WASCA 4
KLM v The State of Western Australia [2009] WASCA 73 [51]; (2009) 194 A Crim R 503
McMahon v The State of Western Australia [2010] WASCA 143
Nudd v The Queen [2006] HCA 9 [8]; (2006) 162 A Crim R 301
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

McLURE P: I agree with Hall J generally for the reasons he gives that none of the grounds of appeal have a reasonable prospect of succeeding in which event leave to appeal must be refused and the appeal dismissed. Insofar as the appellant complains of the conduct of trial counsel, the appellant failed to establish any irregularity of such a nature or extent as to have any relevant impact on the outcome or deprive him of a fair trial: McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [29]; BJH v The State of Western Australia [2011] WASCA 4.
BUSS JA: I agree with Hall J that an extension of time to appeal should be granted, but that leave to appeal should be refused and the appeal should be dismissed. Subject to the comment made by McLure P, I agree with Hall J's reasons.
HALL J: On 30 November 2010 the appellant was convicted of aggravated burglary after a two-day trial in the District Court in Bunbury. The appellant now seeks an extension of time within which to appeal and, if the extension is granted, leave to appeal against that conviction.
The appeal was filed one month out of time. The delay is explained by the appellant in an affidavit as being caused by difficulties in obtaining legal advice. In the circumstances I would grant an extension of time.
There are four proposed grounds of appeal:
1.The Appellant suffered a miscarriage of justice due to the jury viewing prejudicial material in the Appellant's video record of interview which should have been edited out and the learned trial counsel was in error in not seeking that prejudicial material be edited out in the video record of interview.
2.The learned trial counsel for the Appellant erred in failing to call the Appellant to give evidence.
3.The Appellant suffered a miscarriage of justice by reason of the learned trial counsel failing to cross-examine witnesses on evidence given which was contradictory to the evidence of other witnesses and failing to provide a sufficient closing address which focused on appropriate matters including setting out contradictory evidence from the prosecution witnesses.
4.The learned trial Judge erred in his directions to the jury in summing up the evidence.

Particulars
a.The learned trial Judge in summarising the facts implied that DNA evidence was found on objects when it was not.
b.The learned trial Judge gave a summary of the evidence of a key witness which was not complete and left out a contradictory statement.

Leave is required for each ground of appeal. This court cannot grant leave unless it is satisfied that a ground has a reasonable prospect of succeeding: s 27(2) Criminal Appeals Act 2004 (WA). To have a reasonable prospect of succeeding a ground must have a rational and logical prospect of succeeding or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

Prosecution case

The prosecution case was that at approximately 2.30 am on the morning of 30 January 2010 the appellant was outside a residence on a street in Collie. One of the occupants of the house, Margie Ugle, was at home watching movies in the lounge room. There were a number of other people with her, including her brother, Conan Ugle. At about this time a brick was thrown from outside through the lounge room window, breaking the glass and landing on the floor. Margie Ugle picked up her child and ran to the bathroom. From there she contacted the police on her mobile telephone.
Conan Ugle remained in the lounge room and then saw a man climbing through the window with his shirt wrapped around his left hand and a knife in his right hand. Conan Ugle recognised this person as the appellant. He said that the appellant came halfway through the window and was saying that he was going to kill all of those in the house. Conan Ugle said he was frightened and picked up the brick and threw it at the appellant. The brick hit the appellant and he then withdrew from the window.
Conan Ugle said that he and some others in the house then ran outside and confronted the appellant who was standing under a street light near the house with no shirt on and holding the knife. He was saying that he was going to stab the others. Conan Ugle said the appellant tried to cut him with the knife. Conan Ugle also said that the appellant then started to cut himself in the abdomen and then threw away the knife as the police arrived.
In cross‑examination it was put to Conan Ugle that there was bad blood between his family and the appellant. Conan Ugle agreed with this and said that it had been going on for some years. It was also suggested that prior to the events described, Conan Ugle and others had confronted the appellant on the street and assaulted him. That suggestion was rejected. It was also suggested that the appellant had not approached the house but rather had been standing under the street light when someone threw a brick at him which he then threw back and broke the window. This proposition was also rejected.
Another of those in the house, Bradley Hart, gave evidence of the brick being thrown through the window. He confirmed that Conan Ugle had thrown the brick at the appellant after warning him to 'go back out through the window'. Bradley Hart remained inside but later saw the appellant standing at the front of the house with no shirt on, threatening to kill those inside. Mr Hart also denied that there had been an earlier altercation or that anyone had thrown a brick at the appellant before the window was broken.
When police arrived they found the appellant standing at the front of the house yelling and screaming. He was seen to walk to the side of the property where a knife was later located. The appellant told police that he had been assaulted and they observed an injury to his eye. The police also observed blood on the lounge room window and took swabs of this and from the knife for the purpose of DNA testing. Those tests identified the DNA found on the window of the lounge room and also the knife located at the side of the property to be that of the appellant.
The appellant was interviewed by police on 22 April 2010 and the video of that interview was led as part of the prosecution case. In that interview the appellant said that he had been assaulted earlier in the night by four people. He said there was bad blood between him and the Ugle family because he had formerly been in a relationship with Margie Ugle's sister and there were allegations of domestic violence in respect of that relationship. He denied throwing the brick, attempting to enter the house or having a knife. He suggested that the prosecution witnesses were making false statements about him in order to get him back into gaol.

Defence evidence

The appellant elected not to give evidence at trial. The only witness called for the defence was the appellant's mother. She said that on the night in question she was at home when she heard the appellant shouting for help outside. She said she looked down the road and saw the appellant running towards her covered in blood. A 'couple of boys' were running behind him. She said that she called the police and an ambulance. The appellant remained with her for about ten minutes before he went back outside and left the area. She identified the boys who had been following the appellant as including Conan Ugle. She said that 'they' threatened to 'get [her] next'.

Ground 1 - The video record of interview

This ground asserts that a miscarriage of justice occurred as a result of the jury viewing prejudicial material in the appellant's video record of interview. The passages, the subject of this ground, are identified in the appellant's written submissions. They fall into three categories. Firstly, passages referring to the appellant being on bail at the time of the offence and previously having been to gaol. Secondly, passages referring to domestic violence. Thirdly, passages referring to the appellant using drugs or participating in rehabilitation.
The first thing that should be noted about these passages is that there was no request on behalf of the appellant for the video to be edited. The transcript of the trial indicates that this was a deliberate decision. At the conclusion of the playing of the interview and in the absence of the jury, counsel for the State noted that the video contained matters that could be considered prejudicial to the appellant. She said that defence counsel had asked that it not be edited and that obviously this was for some forensic purpose. It was noted that the trial judge may need to direct the jury in regard to references to bail, going to gaol and drugs. Defence counsel did not demur from this.
When the passages complained of are seen in the context of the whole interview it is possible to discern a rational forensic purpose for not having them edited out. In the interview, the appellant told the police that there was not only a 'big family feud' but that he was the victim of a vendetta. In that regard, he referred to bail conditions that required him not to make contact with his ex‑partner. He sought to explain why he had been arrested if he was not the aggressor and suggested that the reason for this was that his ex‑partner had arrived at the scene and that had caused him to be in breach of his bail. He also referred to the Ugle family making false allegations against him because they wished for him to be returned to gaol.
It can be seen from this that the appellant's references to bail and gaol were integral to the defence he was seeking to advance, namely that he had been the victim of an assault and false allegations of being the aggressor. Without these passages the feud that the appellant was describing to the police would lose much of its relevant context.
As to the passages dealing with domestic violence, these also explained the context of the feuding. When asked in the interview what the feuding was about the appellant said:
Um, over the fact that, um, me and Mrs (indistinct), we have a domestic violence (ts 12).
A little later he said that every time he and his ex‑partner argued, her family would ring the police just to get rid of him. When he was asked why he would have been assaulted he said:
Because me and [the ex-partner] had a domestic violence. Right? Allegations saying that me and [the ex-partner] had a, um, had a fight (ts 25).
Clearly the appellant was referring to domestic violence, or at least allegations of domestic violence, between him and his ex‑partner, in order to explain why the police should believe that he had been assaulted by his ex-partner's family and made the subject of false allegations. The implication was that the Ugle family had assaulted him in a revenge attack and then sought to make false allegations in order to have him charged and imprisoned.
As to the passages dealing with drugs and rehabilitation, these also had contextual relevance. When asked by the police how he came to be in the vicinity of Margie Ugle's house he said that he liked to smoke dope and had to walk past the house for that purpose. The implication was that he had to pass the house to get to his supplier and was not there for any aggressive purpose. Later he said that whilst he may have used some cannabis or had a drink on the night, he was 'all right' and only used cannabis to 'chill'. These passages arguably supported his version that he was in the area for a purpose other than that alleged against him and that he had not been in an aggressive mood.
As regards rehabilitation, the appellant referred to this in the context of explaining that he and his ex‑partner had gone to Broome for three months and attended rehabilitation and anger management courses. The effect of what he told the police was that he and his ex‑partner had got their lives back on track, but that this had not been accepted by the Ugle family.
When seen in context it is evident that the passages referred to formed part of the account which the appellant had presented to the police and which he sought, through his counsel at trial, that the jury should accept. To say that these passages had only prejudicial content ignores that context. There was no doubt that there may have been some risk that the jury would be prejudiced by these matters, but it may well have been thought that that risk was worth taking in order to ensure that the full content of the appellant's explanation for what had occurred was put before the jury.
It is also relevant to note that the appellant elected not to give evidence. The fact that the appellant was able to ensure that the full details of the story that he gave to the police were before the jury would have no doubt been a relevant consideration in regards to whether he gave evidence. The admission of the whole of the record of interview meant that his story was able to be advanced without the risk of being cross‑examined.
The appellant submits that the admission of these passages was a defect or irregularity in the trial that resulted in a miscarriage of justice. It is said that the passages were highly prejudicial and of no probative value and that counsel who appeared for the appellant should have asked for them to be edited out. However, for the reasons I have given, it is reasonable to infer that a deliberate decision was made not to seek that the passages be edited out and that this decision was explicable in forensic terms.
There may be cases where the forensic advantage is slight in comparison with the importance of the defect or irregularity in question. In such a case, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [28]. In the present case there was no gross disproportion between the forensic advantage gained by consenting to the admission of the unedited video and the possibility of detriment as a result of prejudice.
Decisions made by trial counsel as to what evidence should be admitted or objected to are not ordinarily reviewable by appellate courts: Nudd v The Queen [2006] HCA 9 [8]; (2006) 162 A Crim R 301. It is only in exceptional or extreme cases where the acts or omissions of counsel can be said to have caused a miscarriage of justice by depriving the accused person of a fair trial that an appellate court would be justified in intervening: KLM v The State of Western Australia [2009] WASCA 73 [51]; (2009) 194 A Crim R 503. This is not such a case.
This ground has no reasonable prospect of succeeding and, in my view, leave in respect of it should be refused.

Ground 2 - Failure of appellant to give evidence

This ground asserts that trial counsel was in error in not calling the appellant. On its face it makes no assertion that would justify this court in allowing an appeal against conviction: s 30(3) Criminal Appeals Act 2004. The only basis upon which a decision made by trial counsel could result in a successful appeal against conviction is if there has been a miscarriage of justice. A miscarriage does not arise because, with hindsight, the appellant regrets not giving evidence or believes that a decision not to do so was wrong.
If an accused person failed to give evidence because counsel wrongly advised that they were not entitled to give evidence there would be a strong basis for an appeal court to intervene: Nudd v The Queen [17]. However, the conduct of a trial by counsel should be assumed to be the result of informed and deliberate decision‑making by the accused unless it is established otherwise.
In the present case, the prosecution case was completed at the end of the first day of the trial, although not formally closed until the next morning. In accordance with the usual practice, the trial judge then asked whether the appellant wished to give or adduce any evidence. His counsel stated that the appellant would not be giving evidence but would be calling his mother to do so. Bearing in mind what I have said earlier about the appellant's interview already being in evidence before the jury, there were obviously very good reasons why the appellant might elect not to give evidence and expose himself to cross‑examination. On the face of it, there is no reason to think that the decision to not give evidence was not that of the appellant and was not made on a properly informed basis.
The appellant has filed an affidavit dated 5 April 2011 which he seeks to rely upon in respect of this ground. In it the appellant says that when his counsel asked him whether he was going to give evidence he said he was. This conversation was said to have occurred during the course of the trial in the custody area of the court. It is clear from this that the appellant was conscious that the decision as to whether he gave evidence was his to make. He says that his counsel told him that he was worried as to how the appellant would be questioned by the prosecutor. The appellant then says:
We discussed the matter further and I did not end up giving evidence.
This does not suggest that the appellant was wrongly advised or that the choice not to give evidence was not his.
The lawyer who appeared as trial counsel for the appellant, has also filed an affidavit. He says that the appellant vacillated between wanting to give evidence and not wanting to do so. He said that he told the appellant the advantages and disadvantages of giving evidence on a number of occasions and that the appellant delayed his decision until the jury returned and it was time for the defence to lead evidence. He says that the appellant told him, at what was effectively the last minute, that he would not be giving evidence and by that time it was too late to ask him to sign a declaration recording his instructions in that regard.
Even putting aside the lawyer's affidavit, the appellant's own affidavit does not establish a basis for asserting that a miscarriage of justice has occurred. This ground has no reasonable prospect of succeeding and leave in respect of it should be refused.

Ground 3 - Incompetence of counsel

This ground asserts that the appellant suffered a miscarriage of justice because his counsel failed to adequately cross‑examine prosecution witnesses and did not make an adequate closing address to the jury.

In particular, it is said that counsel should have cross‑examined Margie Ugle as to a statement that she saw the appellant holding a knife after the police arrived given that the police witness did not see this. In fact, on examination of the evidence, it is not apparent that there is necessarily an inconsistency or whether the fact that Margie Ugle said the appellant was holding a knife and the police said they only saw him walking across to the side of the property is accounted for by what each of the witnesses was able to see. In any event, it might well have been better to leave what was a possible inconsistency and avoid the risk that cross‑examination on the issue may result in any inconsistency being corrected. It is said that there was no cross‑examination of Margie Ugle's description of the knife, but again it is not apparent that there was anything necessarily to be gained by doing so.
It is said that trial counsel also failed to make a point in closing in regard to whether or not the appellant was holding a knife when the police arrived. But this was a peripheral issue at trial, or at least defence counsel might reasonably have taken that view. The real issue was whether the appellant had thrown the brick through the window and attempted to climb into the house whilst making threats to the occupants.
It is said that trial counsel failed to tender any medical reports or photographs to show that the appellant did not have any injuries to his stomach. It is suggested that evidence in this regard would have been inconsistent with the evidence of Conan Ugle. The police witness had said that the appellant was examined and there were no photos and no injuries to the appellant's stomach area (ts 59). Accordingly, there was evidence of an inconsistency that was before the jury and this was relied upon by trial counsel in his closing address. It is difficult to see what more could have been gained by tendering medical reports or photographs (even supposing they existed).
It is said that trial counsel did not sufficiently cross‑examine the witnesses as to the clothing they say the appellant was wearing. Bradley Hart said in evidence that the appellant was wearing trousers or jeans whereas other witnesses said he was wearing shorts. Since that inconsistency was apparent in the evidence it is difficult to see what more could be gained from further cross‑examination. The difference was relied upon by trial counsel in his closing address.
It is said that trial counsel did not sufficiently cross‑examine the police witness as to where the different exhibits were located. In particular, it is said that there was no evidence as to where a pipe was found by the police. The appellant contends that the pipe was not collected at the scene of the incident. The pipe was said by the appellant to have been the instrument used to attack him earlier in the night. Whether or not it was the instrument depended upon whether the jury was willing to accept what the appellant said in his interview with the police. If they were not, the location of the pipe could hardly assist the appellant. In any event, it is not apparent that a failure to 'sufficiently' cross‑examine on this issue could lead to any miscarriage of justice.
It is said that trial counsel did not put to the jury that there was inconsistency with claims made by Conan Ugle and the prosecutor in closing that the bricks in the garden had the appellant's blood on them when those bricks were not tested for DNA. There was no suggestion that the bricks were ever tested for DNA. Conan Ugle's evidence as to the blood on the bricks was based upon his own observation. It would have been inappropriate to invite the jury to speculate on what DNA testing may or may not have proved.
It is said that trial counsel failed to cross‑examine Bradley Hart as to the fact that Conan Ugle, in his evidence, had said that Bradley Hart had gone outside with him whereas Bradley Hart had said that he had stayed inside the house. It is not apparent why, or how properly, the evidence of one witness could be put to another. In any event, no purpose would be served by cross‑examining in the way suggested. Bradley Hart said he did not go outside. No better evidence for the appellant could result from cross‑examination. In any event, Conan Ugle said he only thought that Bradley Hart went outside with him and that clearly admits of the possibility of error.
There is no basis for concluding that any of the failures referred to were the result of incompetence rather than being legitimate forensic decisions made in the course of a trial. Even if it is possible to imagine other approaches, it is not the function of this court to second‑guess trial counsel. The matters complained of fall very far short of being the extreme case where the conduct of counsel has resulted in the appellant being deprived of a fair trial: Nudd [86]. This ground of appeal has no reasonable prospect of succeeding and leave in respect of it should be refused.

Ground 4 - Trial judge's directions

This ground asserts that the trial judge erred in his directions to the jury in summing up the evidence. In particular, that his Honour made an error by implying that DNA evidence was found on the brick when it was not and that he failed to properly summarise the evidence of a key witness.
In regard to the DNA findings, his Honour said:
[T]here is the evidence of Conan Ugle and Bradley Hart of the brick or bricks coming through the window and of a chair coming through the window and the state would say to you that on that evidence and given as well the DNA findings you can accept that it was the accused who threw the bricks through the window and threw the chair through the window. I just wanted to clarify those matters from the outset (ts 90).
The appellant says there was no evidence that the appellant's DNA profile was found on the brick, bricks or chair. His Honour did not say it was. The DNA evidence was found on the window and the knife. The DNA on the window was circumstantial evidence that could link the appellant to the throwing of the brick. It could hardly have been lost on the jury that the DNA evidence was found on the window and that fact was specifically referred to by the trial judge later in his charge. There is no merit in this complaint.
It is also asserted that the trial judge said that Conan Ugle's evidence was that he went outside with another person after he hit the appellant with a brick. It is submitted that the trial judge failed to mention that Conan Ugle had also said that Bradley Hart had gone outside with him. In fact, Ugle said:
[A]nd I think it was my cousin Bradley Hart too (ts 33).
In any event, the failure to mention this evidence could not possibly have resulted in a miscarriage of justice. This ground has no reasonable prospect of success and leave in respect of it should be refused.

Conclusion

Whilst I would grant an extension of time to appeal, none of the grounds has any reasonable prospect of succeeding. I would therefore refuse leave in respect of them and dismiss the appeal.