Hodder v The State of Western Australia

[2005] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HODDER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 218

CORAM:   WHEELER JA

HEARD:   27 OCTOBER 2005

DELIVERED          :   16 NOVEMBER 2005

FILE NO/S:   CACR 149 of 2005

CACR 150 of 2005

BETWEEN:   JAMES LESLIE HODDER

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 866 of 2004

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Leave to appeal against conviction refused
Leave to appeal against sentence granted

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr D Dempster

Solicitors:

Applicant:     In person

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

1. WHEELER JA:  This is an application for leave to appeal in relation to conviction and sentence.  I recently dealt with Mr Hodder's application for bail, and expressed to him then my preliminary view that his grounds of appeal in relation to conviction had no reasonable prospect of success.  He addressed oral argument to me about those grounds.  I then dismissed the application for bail, but did not deal with the question of leave.  It seemed to me that I should not deal with the question of leave until I had had the opportunity of reviewing the transcript in the light of the oral argument that Mr Hodder made to me.  I have now had that opportunity and deal with the applications on the papers, but in the light of the oral argument, I would refuse leave on all of the proposed grounds.

2. The applicant was convicted after trial of one count of indecently dealing with a child under the age of 13 years by committing an indecent act in her presence.  The act is alleged to have occurred in Midland in November 2003, and the complainant was an 11‑year‑old girl, sitting at a bus terminal.  The State alleged that the applicant attracted the girl's attention by waving to her and then took out of his wallet either a $50 or $100 note.  He then pointed his finger at the girl, pointed to his mouth and pointed his finger at his penis.  She walked away and sat at another seat, ignoring him.  He, however, followed her, approached her and said to her, "Your pussy looks nice".  The principal issue in the trial was the identity of the accused. 

3. The complainant did not know the applicant, but had seen him on a number of occasions in Midland prior to the incident and knew him as "the bungee man".  The prosecution alleged that he was not difficult to recognise, since he had an unusual physical appearance and also an unusual gait, in that he walked with his back slightly hunched over. 

4. Immediately after the incident, the complainant spoke to the co‑ordinator at the Midland train station and bus terminal, who told her that she should tell one of the Westrail security guards.  She did that and the police were contacted.  By then, however, the applicant had left.  The following day, police met with the complainant at the train station for the purpose of a video re‑enactment of what had taken place the afternoon before.  By coincidence, it was at about the same time of day as the incident on the day before.  The applicant himself walked out from the train station in front of the police and the complainant.  She immediately became distressed, but was able to point out to police that the applicant was the man in question. 

5. The applicant was arrested and spoken to in an interview which was recorded on video.  He maintained that he was not in Midland the previous afternoon and was nowhere near the train station.  He said that he had not arrived in Midland by train until about 6 pm the previous day.  He said that he had been at a TAB in Girrawheen, catching the 4.30 bus into Perth, and the train to Midland from Perth at about 5.30. 

6. However, the videotape of the surveillance camera at the Perth train station and the surveillance tape from a carriage from the train that left the Perth station for Midland shortly after 4 pm that day showed the applicant on the train.  The video surveillance tape from the Girrawheen TAB showed the applicant at the TAB approximately an hour earlier than the time he had claimed.  Further, a bus ticket in his possession when he was arrested suggested that he caught the bus from Girrawheen a little over an hour earlier than the time which he had given to police. 

7. Finally, by way of background, it should be mentioned that although there is no reference to the meaning during the course of the trial, "bungee man" is apparently an expression which is sometimes used in some circles to describe a white man who approaches Aboriginal women for sexual purposes.  His Honour the learned trial Judge apparently knew what the expression meant.  Prosecuting counsel did not, until he made inquiries during the course of preparing for the trial.  Defence counsel apparently knew of the expression, although it is not clear when he became aware of the meaning.  I have gleaned those matters from a discussion which took place between counsel and his Honour about whether it was desirable to give any warning to the jury about the use of that expression by some of the witnesses in identifying the applicant.  The conclusion effectively was that it was undesirable to draw attention to the expression by any specific mention of it.  I personally did not know what the expression meant, until I encountered the grounds of appeal, and made appropriate inquiries.

8. There are four grounds of appeal.  I deal with them in turn.

9. The first ground is that her Honour the Chief Judge of the District Court made an error in refusing an application on the part of the applicant, made the day prior to the trial, to adjourn the trial.  The application was made on the basis that the applicant had wished Mr Bayly to be trial counsel and that Mr Bayly had recently become unavailable.  The applicant was represented by Mr O'Brien.  Her Honour refused the application, because she noted that in the transcript of a status conference held in February, over four months prior to the adjournment application, the Judge on that day had advised the applicant that Mr O'Brien would be his trial counsel, since Mr Bayly was unavailable.  Her Honour the Chief Judge asked Mr O'Brien whether from his point of view he would have any difficulty in conducting the trial.  He replied, quite properly, that he was not able to say to her Honour that he would have any difficulty in presenting the case.  Her Honour observed, in my view correctly, that it was in any event a fairly straightforward trial.

10. In submissions before me, the applicant said that he, however, had not wanted Mr O'Brien, but had always wanted Mr Bayly.  The relevant question, however, was not whether Mr Hodder would have preferred alternative counsel, but whether he had been deprived of a fair trial by the refusal to adjourn.  Plainly, he had not.  He was represented in a relatively straightforward trial by experienced counsel who regarded himself as adequately prepared.  If he had wished to make alternative arrangements, he had had since February to make them.  The applicant also mentioned before me the substitution of a different indictment, on the day of the trial, for that which had originally been presented against him.  However, the changes were formal only and did not in any way affect the way in which the State case was run, or the issues which the applicant had to deal with.

11. Ground 2 complains of "prejudicial comments" in relation to the identification of the applicant.  It is clear from the written submissions, and from what the applicant said to me, that this complaint is directed to the use of the expression "bungee man".  However, there are two observations to be made about this.  The first is that there is nothing put forward by the applicant to demonstrate how widely used that expression may be, or to suggest in any way that any member or members of the jury would have understood it.  Even if they had, it was an essential part of the State case that the complainant had recognised the person who approached her as being a person who had a particular nickname, and that the applicant had that nickname.  As I have mentioned, identification was the central issue in the trial.  The evidence was therefore plainly admissible, and of such critical relevance that I am unable to see how his Honour could have excluded it, even if an application had been made.  Further, as I have noted, experienced trial counsel was alive to the issue and did not seek either any editing of the evidence or any direction from the trial Judge.

12. The third ground of appeal is that the verdict was "unsafe and unsatisfactory".  It appears from the applicant's submissions that his view is that the relevant video surveillance on the train, although it showed him on the train, "could have been anywhere" and that there was no evidence of him actually being on the Midland train station (which, as I understand it, is in close proximity to the bus station where the complainant was).  That may be so.  However, there was evidence to the effect that the applicant was the person shown on the video footage from the train.  There was evidence that that video footage was taken on the Perth to Midland train, which left Perth at a particular time.  The applicant himself in his interview with police had appeared to accept that he had travelled from Perth to Midland on the preceding day, the dispute being about the time of that travel.  There was plainly ample evidence from which a jury could have inferred that the applicant had arrived at the Midland train station in time to commit the offence alleged.

13. Ground 4 is to the effect that there were defence witnesses who were not called, contrary to the instructions of the applicant.  There are no particulars in relation to that ground.  Although I advised the applicant that the problem with that ground was that I did know who those witnesses were and what they would say, he did not tell me who they were and what they would say.  Rather, he only advised me during the course of his oral submissions that he had specifically raised the question of those witnesses with his counsel, who had determined that he would not call them.  The failure to call the witnesses was then plainly a decision made by counsel, after consultation with the applicant.  There is nothing therefore to suggest that this ground has any prospect of success.

14. For those reasons, I am of the view that none of the grounds put forward by the applicant has any reasonable prospect of success, and I would refuse leave to appeal in respect of all of them.

15. So far as the appeal in relation to sentence is concerned, I have read the applicant's case, and am satisfied that leave should be given on the ground that the sentence was manifestly excessive, as particularised in par 19(a) and (b) of the applicant's submissions.