Hough v The State of Western Australia
[2017] WADC 111
•23 AUGUST 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2017] WADC 111
CORAM: GOETZE DCJ
HEARD: 20 JULY 2017
DELIVERED : 23 AUGUST 2017
FILE NO/S: IND 1917 of 2015
BETWEEN: SHANE LEWIS HOUGH
AND
THE STATE OF WESTERN AUSTRALIA
Catchwords:
Application to change plea - Section 99(5)(a) Criminal Procedure Act 2004 - Turns on own facts
Legislation:
Criminal Procedure Act 2004
Young Offenders' Act 1994
Result:
Application dismissed
Representation:
Counsel:
Applicant (Accused) : Ms S J Oliver
Respondent
(The State of Western Australia) : Mr B F Stanwix
Solicitors:
Applicant (Accused) : Ms S J Oliver Barrister
Respondent
(The State of Western Australia) : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [No 2] 2015 WASCA 91
Birch v The State of Western Australia [2017] WASCA 19
GOETZE DCJ:
Introduction
The applicant, Shane Lewis Hough, stands charged by indictment dated 8 January 2016 with two offences alleging that on 31 December 2014 at Perth, he:
1.sexually penetrated CLG without her consent, by penetrating her vagina with his finger; and
2,stole a mobile telephone, the property of CLG.
On 11 December 2015 in the Magistrates Court, Mr Hough pleaded guilty to both charges and was committed to the District Court for sentence.
By application dated 27 April 2016, Mr Hough applied for an order that he be permitted to change his pleas from guilty to not guilty.
The parties agree that Mr Hough's application proceeded on the basis of the common law as set out in Anderson v The State of Western Australia [No 2] 2015 WASCA 91 which provides as follows:
14The principles with respect to the setting aside of a conviction based on a plea of guilty are well established.
15A conviction based on a plea of guilty cannot be set aside unless the appellant satisfies the court that a miscarriage of justice has occurred. Although the categories of miscarriage of justice are not closed, there are three well-recognised grounds for allowing such an appeal:
1.where the appellant did not understand the charge or did not intend to plead guilty; or
2.where on the admitted facts, the appellant could not, in law, be guilty of the offence; or
3.where the plea of guilty has been obtained by inducement, fraud or intimidation or the like.
See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); Borsa v The Queen [2003] WASCA 254 and Snook v The State of Western Australia [No 2] [2015] WASCA 29.
16It is no easy feat to persuade a court to set aside a plea of guilty on the basis of a miscarriage of justice. This is particularly so where, as in this case, the appellant was represented by counsel at the time he entered his pleas. There must be a strong case for the court to set aside a conviction based on a guilty plea: Windie v The State of Western Australia [2012] WASCA 61 [31].
On 22 June 2016, his Honour Judge O'Neal delivered extempore reasons following Anderson and dismissed the application.
This application
Subsequently, Mr Hough's counsel orally applied for him to change his pleas from guilty to not guilty, pursuant to s 99(5)(a) of the Criminal Procedure Act 2004 (CPA). It is agreed between the parties that the provisions of s 99(5)(a) were not dealt with in the proceedings before his Honour Judge O'Neal, such that this court is now not functus officio in respect of this application.
Mr Hough accepted that he would not seek to set aside his guilty plea to the charge of stealing the complainant's mobile telephone.
Accordingly, the oral application proceeded on, and was limited to, the allegation of sexual penetration.
Further, this application is limited to the circumstance that Mr Hough 'may not have committed the offence charged'; not that he 'could not have committed the offence charged', as provided in s 99(5)(a) CPA.
Relevant provisions of the CPA
The relevant provisions of the CPA are as follows:
s 41(1)This section applies if -
(a)the charge must be tried on indictment; or
…
(2)The court must -
(a)tell the accused that he or she is not required to plead to the charge; and
(b)give the accused the opportunity to plead to the charge.
(3)If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge, and comply with section 47(1).
…
s 47(1)If a court of summary jurisdiction commits an accused to a superior court for sentence or trial on an indictable charge, whether or not it has convicted the accused of the charge, the court must record on the prosecution notice -
(a)the accused's plea before the court; and
(b)if the court convicted the accused, the fact that it did so; and
(c)whether the court has ordered a pre-sentence report in respect of the accused; and
(d)the date of the committal.
(2)A copy of a prosecution notice containing the matters recorded under subsection (1) sent to a superior court is, in the absence of evidence to the contrary, evidence of its contents and of any matter recorded on it in under subsection (1).
s 99(1)This section applies if -
(a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c)the accused is subsequently charged with the charge in an indictment.
(2)The accused must be required to plead to the charge in the indictment in the same manner as other accused.
(3)If the accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.
(4)If the accused does not plead guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must order the prosecutor to state aloud the material facts of the charge and -
(a)if it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under section 35 at the time the accused pleaded guilty to the offence charged in the lower court, must enter a plea of guilty on behalf of the accused; or
(b)if it is not so satisfied, must enter a plea of not guilty on behalf of the accused,
and deal with the accused according to law.
(5)Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(a)having considered -
(i)the material served on the accused under section 35 or 95; and
(ii)the facts stated by the prosecutor under section 129,
the court is satisfied that the accused could not have or may not have committed the offence charged; or
(b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
(6)If under this section a superior court enters a plea of not guilty on behalf of an accused, the prosecutor must lodge and serve the material referred to in section 95(6) within such period as the court orders.
(7)A plea entered by a court under this section on behalf of an accused has the same effect as if it had been actually pleaded.
s 35(4)When or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with the following -
(a)a written statement of the material facts of each such charge;
(b)an approved notice of the existence or non‑existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;
(c)an approved notice that the accused does or does not have a criminal record, as the case may be;
(d)any document that is prescribed.
s 35(1)In this section, unless the contrary intention appears ‑
confessional material of an accused charged with an offence, means -
(a)any written statement signed by the accused;
(b)any written record of interview with the accused (signed or unsigned by the accused);
(c)any interview (as that term is defined in the Criminal Investigation Act 2006 section 115) that has been electronically recorded,
that is relevant to the charge and that is in the possession of the organisation that investigated the offence.
s 95(5)Within the prescribed period after an accused is committed for sentence on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a)a statement of the material facts of the charge;
(b)any confessional material of the accused that is relevant to the charge;
(c)a copy of the accused's criminal record;
(d)a copy of the certificate given to the officer under section 45;
(e)any other document that is prescribed.
No documents have been prescribed pursuant to s 95(5)(e).
s 95(6)Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it -
(a)a statement of the material facts of the charge;
(b)any confessional material of the accused that is relevant to the charge;
(c)any evidentiary material that is relevant to the charge;
(d)a copy of the accused's criminal record;
(e)a copy of the certificate given to the officer under section 45;
(f)any other document that is prescribed.
The terms 'confessional material' and 'evidentiary material' are defined in s 95(1) to have the meaning given by s 42.
Section 42(1) … unless the contrary intention appears:
confessional material of an accused charged with an offence, means -
(a)a copy of any material referred to in the definition of confessional material in section 35; and
(b)a copy of any electronic recording, other than a recording that is part of the material referred to in paragraph (a), of a conversation between the accused and a person in authority that is relevant to the charge and that is in the possession of the organisation that investigated the offence; and
(c)if the accused said anything that is relevant to the charge to a person employed in the organisation that investigated the offence and that was not so recorded, a written version of the substance of what was said.
evidentiary material relevant to a charge, means -
(a)a copy of -
(i)every statement that has been made in accordance with Schedule 3 clause 4 by; and
(ii)every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by; and
(iii)every recording that has been made under the Evidence Act 1906 of; and
(iv)every other recorded statement, whether oral or written, by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence; and
(b)if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person; and
(c)a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; and
(d)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e)a copy of every other document or object that may assist the accused's defence,
that is in the possession of the organisation or person who investigated the offence.
The CPA provides by s 129(1) that 'if an accused pleads guilty in a court', but does not apply 'if the plea is made in a court of summary jurisdiction to a charge that is to be dealt with on indictment'. Section 129 then provides:
(2)Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless -
(a)the accused is represented by a legal practitioner; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
(3)Before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.
(4)If under this Act the accused has been served with one or more written statements of the material facts, the facts stated aloud must be those in the written statement that was last served.
(5)This section does not affect a court's power to decide the material facts of an offence on the basis of such information as it thinks fit.
It can be seen from s 95(5) that, in this application, the relevant documents for the purpose of an application under s 99(5)(a) comprise:
(a)a statement of the material facts of the charge (including any amended statement of material facts);
(b)any confessional material of the accused that is relevant to the charge; and
(c)a copy of the accused's criminal record.
The other documents referred to in s 95(5)(d) and (e) are not required in this matter.
Birch v The State of Western Australia [2017] WASCA 18
In Birch, the Court of Appeal considered the construction of s 99(5)(a) CPA. The learned Justices of Appeal were not unanimous in their findings as to the proper construction of s 99(5)(a).
Materials to be considered
In Birch, Buss P determined that, apart from the material specified in s 99(5)(a), the court 'may not consider or take into account any other information': [101].
Mazza JA considered at [216] that, in respect of an application under s 99(5)(a), it was not open to the parties to adduce any evidence or material other than that listed in s 99(5)(a)(i) and (ii). To that extent, he agreed with Buss P. However, Mazza JA further concluded that the court is entitled to have regard to the procedural steps taken under the CPA, which occurred prior to the accused entering the plea of guilty in the lower court, including the guilty plea itself. He then went on to say at [217]:
This is not to say that the superior court is not entitled to have regard to the procedural steps under the CPA which occurred prior to the accused entering his or her plea of guilty in the lower court. In my opinion, a court, when deciding whether to enter a plea of not guilty pursuant to s 99(5), may have regard to the fact that the plea of guilty made in the court of summary jurisdiction was entered by the accused: (1) after he or she was served with the prosecution notice, the statement of material facts and any confessional material (which may have included exculpatory statements); (2) after he or she had an opportunity to take legal advice; (3) with the benefit of legal representation; and (4) in the knowledge that he or she was under no obligation to do so at that time. Nothing in the statutory language in s 99(5) precludes the superior court from taking into account these matters. To do otherwise would be to consider the question of whether the court should enter a plea of not guilty in a vacuum, without regard to the proper context in which the plea of guilty was made.
Mitchell JA agreed with Buss P that in determining an application under s 99(5)(a),
the court is confined to considering the material referred to in that paragraph. … To hold otherwise would contemplate the court effectively conducting a trial of the issue as a precursor to determining the plea to be entered.
He went on to say at [242]:
This confinement of the material which the court may consider counts against the power in s 99(5)(a) of the CPA being engaged whenever an accused may have an arguable defence. If the existence of an arguable defence were sufficient, there is no obvious reason for the Act to place those who choose to make exculpatory statements to police in a special position.
In the circumstances, following Buss P and Mitchell JA, the only materials and information to which reference will be made for the purpose of determining this application under s 99(5)(a) are the documents referred to above, being the amended statement of material facts and the confessional materials.
In passing, it can be observed that s 99(5)(a) requires the court to reach its determination 'having considered' the specified material, whereas s 99(5)(b) requires the court to reach its determination 'having considered any evidence the court decides to admit', such that there is a distinction between (a) and (b) and if Parliament had wished procedural steps in the lower court to be considered under s 99(5)(a) including the guilty plea, it could easily have so provided as it has under s 99(5)(b).
The standard of proof
Buss P said [105]:
The function of the court under s 99(5)(a) involves an evaluation of the specified information, but does not involve any testing of its cogency or probative value. There is no trial of any issues and no cross-examination of any witnesses. Some of the information may be relied on, for different purposes, by the prosecution and the accused. For example, in relation to exculpatory statements by the accused, the prosecution may allege that the statements are lies which constitute an admission against interest by the accused and, further or alternatively, adversely affect the accused's credit, whereas the accused may assert that the statements are true and undermine the prosecution's case. The court's evaluation of the specified information does not involve the resolution of inconsistent facts or allegations. However, in some circumstances, an allegation may be inherently incredible.
Buss P went on to say [108]:
In my opinion, the expression 'may not have', as part of the phrase 'the court is satisfied that the accused … may not have committed the offence charged', in s 99(5)(a), connotes that, upon having considered and taken into account the specified information, the court is satisfied, on the basis of the specified information, that it is reasonably arguable that the accused did not commit the offence charged. Ordinarily, in practice, that standard of satisfaction (namely that it is reasonably arguable that the accused did not commit the offence charged) is likely to relate to matters of fact or mixed law and fact revealed by the specified information; in particular, that the facts alleged by the prosecution do not establish each of the elements of the offence charged or that the accused has a reasonably arguable defence. However, as I have mentioned, the expression 'may not have' is not relevantly qualified or conditioned. It must be construed accordingly. There is no basis in the statutory language or the relevant context for confining the expression 'may not have' by the implication of the words 'in law' or 'in fact'.
Following the reasoning of Buss P, Mr Hough must satisfy the court that, on the basis of the specified information, it is reasonably arguable that he did not commit the alleged sexual penetration.
Mazza JA required a realistic prospect, which is not slim, fanciful or remote, that the accused did not commit the offence charged and said [218]:
The words 'could not have or may not have committed the offence charged' should be given their ordinary meaning. For a court to be satisfied that an accused could not have committed the offence requires the court to arrive at a conclusion that it was not possible for the accused to have committed the offence. The expression 'may not have committed the offence charged' is plainly a lesser standard than 'could not have committed the offence charged'. However, the expression 'may not have committed the offence charged' does not contemplate entering a plea of not guilty on behalf of an accused where the prospect that an accused may not have committed the offence charged is slim, fanciful or remote. In my opinion, the expression requires an accused to demonstrate on the material specified in (i) and (ii) that there is a realistic prospect (that is, a prospect which is not slim, fanciful or remote) that he or she did not commit the offence charged.
Mitchell JA found that s 99(5)(a) requires the court to consider whether there is a deficiency in the prosecution case apparent from the facts contained in the specified materials. The plea of not guilty is only required to be entered by the court where the facts are not unequivocal. The court should consider whether there is a deficiency in the State case apparent from the specified materials. Mitchell JA said:
Having regard to all of the above matters, s 99(5)(a) of the CPA does not require the court to conduct an evaluation of the prospects of facts asserted in the specified material being established at trial. Rather, the section requires the court to consider whether a deficiency in the prosecution case is apparent from the allegations of fact contained in that material. It only requires a court to enter a plea of not guilty on behalf of an accused when it is satisfied that the facts alleged do not unequivocally establish that the appellant has committed the charged offence. [264]
Further, Mitchell JA went on to say at [279] that if the State's case discloses the commission of an offence and the relevant materials do not disclose a deficiency in the State's case then, consideration of the material could not satisfy a court that an applicant may not have committed an offence for the purposes of s 99(5)(a). Exculpatory statements of an alleged offender do not require the court to enter a plea of not guilty. The court is required to enter a plea of guilty if the requirements of s 93(4) are met.
Finally, s 99(5) is not confined to matters of law, but can relate to matters of fact, or matters of mixed law and fact: Buss P [108] above, Mazza JA [220] and Mitchell JA [277].
Materials for consideration under an application pursuant to s 99(5)(a)
In this matter, the State brief comprised a statement of material facts in terms which have been expanded upon in an amended statement of material facts as follows:
1.At the time of the offences, the offender was a 55‑year old male, 190cm tall and of heavy build while the complainant was a 24‑year old female, 160cm tall of medium build.
2.In the early hours of the morning on Wednesday 31 December 2014, the complainant had been out drinking with friends and was walking to the Perth train station. She went into an alleyway along Elder Street in West Perth.
3.The offender was conducting traffic management duties on the Hay Street bridge. He left his vehicle for a short period of time and walked into the nearby alleyway where he came across the complainant.
4.The offender spoke to the complainant and asked where she was going. The complainant replied that she was going to the train station.
5.The offender told the complainant that she was not going anywhere. Without warning, he pushed her backwards, causing her to collide with the wall of a nearby building. The offender struggled with the complainant and she kicked and screamed. During the struggle, the offender forcefully digitally penetrated the complainant's vagina (count 1).
6.The offender leant over the complainant and used his weight to hold her down. She continued to kick and fight, and managed to get back on her feet.
7.The complainant ran from the alleyway, leaving her handbag and some items of clothing (including shorts and underwear) behind. The complainant made her way to the Duxton Hotel on St George's Terrace, where she reported what had happened to her. The police were called and attended at the hotel.
8.The offender collected the handbag and clothing before returning to his vehicle. He told his work colleague that he had found the bag in an alleyway near a puddle of what he thought was urine, and that he believed someone had gone to the toilet in the alleyway leaving their underwear and bag behind.
9.The offender looked through the handbag and located the complainant's identification, including her address. He told his colleague that he might drop the bag home to the owner.
10.Later that morning, the offender drove to the complainant's home address. On the way to her address, the offender removed the complainant's blue Samsung Galaxy 5 mobile telephone from the bag, and subsequently removed the battery and memory card from the telephone. He also threw the complainant's shorts and underwear out onto the Warwick Road off‑ramp from the Mitchell Freeway.
11.On arriving at the complainant's address, the offender handed the complainant's bag and its contents (other than the mobile telephone) to the complainant's father.
12.The complainant subsequently went through her bag and discovered that her mobile telephone was missing.
13.As a result of subsequent enquiries with the complainant's father and with the offender's work colleagues, police attended the offender's home address at approximately 3.30pm that afternoon. The offender initially denied having the complainant's phone, but after a discussion with police he directed the police to his parked vehicle where the mobile telephone was located in the centre console, with the battery removed.
14.The offender denied removing the battery from the phone to prevent it being tracked and claimed to have removed the phone from the bag in order to look through it for a number of an address. He denied any involvement in the sexual assault on the complainant, and told police that he found the bag on the ground when he went down the side street. He told police about having thrown the complainant's underwear onto the Warwick Road off‑ramp, in order to avoid embarrassment for the complainant.
15.The mobile telephone was returned to the complainant, who subsequently discovered that the memory card was missing from the phone. The following day, 1 January 2015, police returned to the offender's home to ask him about the missing card. The offender told police that he had removed the memory card from the mobile telephone and thrown it in the bin because he believed it to be a SIM card and did not want police to track it. He told police that, following their departure from his address the previous day, he had taken the memory card to work and thrown it onto the freeway.
16.A subsequent DNA report obtained by police indicated the presence of the offender's DNA profile on swabs taken from each of the complainant's shoulder, as well as from the complainant's shorts and underwear.
17.Police interviewed the offender on video on 31 March 2015 where he declined to make any comment. Off‑camera, having been shown the DNA findings, he told police that he had found a drunk girl in the alleyway on her back and that he had helped her up, in the course of which putting his hand on her shoulder. He had asked her if she was okay, following which she screamed and ran from the alleyway and left her things behind.
18.The offender was charged with the present offences and released to bail.
19.A further, subsequent DNA report indicated the presence of the offender's DNA profile on the outside front and outside back of the complainant's dress.
Further, the prosecution brief contains confessional material, as defined in s 35(1) of the CPA, relating to the accused Mr Hough as follows:
1.the recording and transcript of the search and field interview with Mr Hough on 31 December 2014;
2.the statement of Detective Senior Constable Peter Jones at [56] ‑ [63] inclusive, concerning his discussion with Mr Hough on 1 January 2015, at brief pages 93 and 94;
3.the recording and transcript of the electronic record of interview with Mr Hough on 31 March 2015; and
4.the handwritten notes of Detective Senior Constable Matthew John Daly made after the interview on 31 March 2015, at brief pages 83 – 84.
It should be noted that for the purpose of s 129 CPA, the facts stated by the prosecutor in the lower court were those contained in the original statement of material facts, which were not altered, but only added to, in the amended statement of material facts.
On 1 January 2015, the police again attended upon Mr Hough as set out in the statement of Detective Senior Constable Marsh as follows:
56.During questioning, the accused stated that he had removed the memory card from the mobile telephone and that he had thrown the card in the bin. He said he believed that the card was a SIM card and he didn't want police to track it.
57.The accused stated that after police had departed the previous day, he took the memory card to work that evening and threw it over the Hay Street Bridge onto the freeway below.
58.I asked the accused if he would like to accompany myself and detective BENINGTON to the police station to participate in a record of interview.
59.The accused immediately became agitated and stated that he didn't want to and if he was forced to go to the Police Station, he would say he didn't know anything about the memory card.
60.After further questioning, the accused stated that on the morning when he located the handbag, he had removed the battery and the memory card from the Samsung mobile phone. The accused again repeated his concerns that police would be able to track the location of the device.
61.As a result of the Police questioning, the accused agreed to show Detective BENINGTON where he discarded the memory card.
62.Later that evening, I attended at the Hay Street overpass in company with Detective Senior Constable DALY and Detective BENINGTON.
63.At the location, I spoke with the accused who was attempting to locate the missing memory card from the freeway under the Hay Street Bridge.
Mr Hough was again interviewed by police on 31 March 2015. After this recorded interview had concluded, Mr Hough gave an exculpatory explanation for the presence of his DNA on the complainant's shoulder. The notes of Detective Senior Constable Daly at brief pages 83 – 84 as follows:
31 March 2015
Notes of post interview conversation with Shane Lewis HOUGH born 04/03/59.
Conversation took place in same room as EROI was conducted in
Det MARSH and Det DALY present
HOUGH asked if recording equipment was switched off and was advised that it was.
HOUGH aware that Police caution applies at all times when speaking with Police.
HOUGH has been advised that he is charged with sexual penetration with consent.
HOUGH advised that decision made had been influenced by his lack of explanation as to the presence of his DNA on the complainant's body.
HOUGH shown copy of Pathwest report indicating the presence of his DNA.
HOUGH advises Police there is an explanation but he is worried that he may say the wrong thing and get rail roaded.
HOUGH advised by Police that Police are simply seeking the truth in the matter.
HOUGH was again reminded of his right to silence.
HOUGH then explained his version of what occurred.
Went in to alleyway 'to take a leak'.
Drunk girl in alleyway 'on her back'.
Helped her up (indicates body language of pulling her up by her hand).
Put his hand on her shoulder
•Said 'Are you okay love'
•She screamed and ran from the alleyway
•Left her things behind
•Was just trying to help
•Was just trying to do the right thing
should have left her there
didn't touch her sexually
picked her underwear up and put that into her bag
'of course my DNA is on it'
'I don't hurt people, I just help people'
•notes made by DALY Det S/C 11234
•notes made shortly after conversation and not in presence of Pol.
Finally, Mr Hough has a criminal record which mostly relates to matters in the Children's Court. By reason of s 189 of the Young Offenders' Act 1994, those matters are not to be considered in the hearing of this application. Mr Hough's adult criminal record reveals limited experience with the criminal justice system, being a 1983 conviction for assault and another in 1989 for being on premises without lawful excuse, together with a number of traffic offences. In all the circumstances, the prior record can be ignored.
Evidentiary material required to be served on an accused person under s 42 CPA is not to be considered in this application.
How to proceed?
It seems that, following Birch:
1.the only documents to be considered are those specified in s 99(5)(a) as identified by Buss P and Mitchell JA. No other information should be considered. The relevant documents are set out above at [29] – [33] inclusive; and
2.Mr Hough must prove on the balance of probabilities that it is reasonably arguable that he did not sexually penetrate the complainant or that there is a realistic prospect that he did not do so. The plea of not guilty should not be entered just because there is a 'slim, fanciful or remote' prospect that he may not have committed the offence.
Buss P at [105] in Birch, determined that the function of the court is to evaluate the specified information, but not to test its cogency or probative value. The evaluation does not involve the resolution of inconsistent facts or allegations, but in some circumstances, an allegation may be inherently incredible.
Although not so stated by Mazza JA, he required some evaluation of the evidence and he did so by reference to the relevant facts and the contradiction between the accused's plea of guilty in the Magistrates Court and his denial of the offending in the District Court.
It does seem therefore, following Buss P and Mazza JA, that an evaluation of the facts is necessary, but the evidence on an application under s 99(5)(a) is not to be tested in the usual way, as it would be under an application pursuant to s 99(5)(b) or at common law. This evaluation should be carried out in the manner identified by Buss P at [125] – [137], where he referred to matters relevant to the alleged offending in that application, such that the alleged offender's exculpatory statement was not to be simply considered at face value. There must be some critical analysis so as to evaluate an exculpatory statement against all of the specified materials without testing its cogency or probative value, in order to determine whether the statement is inherently incredible.
Mitchell JA determined that s 99(5)(a) requires an assessment of the facts alleged by the prosecution and that if the facts do not unequivocally establish guilt then, a plea of not guilty should be entered [262]. However, an assessment of the statement of material facts and the confessional material may not reveal any deficiency in the State's case, such that consideration of that material could not satisfy the court that an applicant may not have committed the offence for the purposes of s 99(5)(a) – [279].
Elements of the offence
The State is required to prove that:
1.the offender was Mr Hough and not some other person;
2.Mr Hough sexually penetrated the complainant; and
3.the penetration was without the complainant's consent.
Evaluation of the facts
This application depends upon the credibility of Mr Hough's exculpatory statements. The State argued that Mr Hough is wholly lacking in any credibility given the manner in which his self‑serving denials have evolved.
It is important to note that:
1.At first, Mr Hough informed his work colleague that he had found a handbag in an alleyway near a puddle of what he thought was urine. He said he believed that the person responsible had left the bag and their underwear behind. This was a positive statement of belief necessarily excluding the presence of the complainant or any person.
2.Later that morning, Mr Hough delivered the complainant's handbag and its contents, save for the mobile phone, to the complainant's father. It is not known from the relevant documents what Mr Hough said to the father.
3.Mr Hough removed the battery and SIM card from the mobile phone. He threw away the underwear at a freeway off‑ramp.
4.On 31 December 2014, Mr Hough told police he found the bag on the ground, together with the underwear. This is consistent with what he told his work colleague. The only reasonable inference is that nobody was present when he found these articles. Mr Hough denied the sexual assault and said that he threw away the underwear to avoid embarrassment to their owner.
5.Mr Hough initially denied to police that he had the phone, but he later directed them to it, with the battery removed, in his car. Further, on that occasion, Mr Hough denied removing the battery to prevent the phone being tracked.
6.Then, on 1 January 2015, Mr Hough told police he had removed the memory card, which he believed to be a SIM card, and thrown it in a bin because he did not want police to track it. Mr Hough also said that following the departure of the police from his address the previous day, he had taken the memory card to work and thrown it onto the freeway. Further, he was then asked to participate in a recorded interview, but he declined, saying that if forced to go to the police station, he would say he did not know anything about the memory card.
7.After the police left Mr Hough on 1 January 2015, he threw the memory card onto the Mitchell Freeway. Later that day, police officers found him searching for it.
8.Mr Hough declined to make any comment in his video recorded interview on 31 March 2015, when advised that his DNA had been found on the complainant's shoulder and underwear.
9.Subsequently, after the video camera had been turned off, Mr Hough gave the police an innocent explanation for the presence of his DNA on the complainant. He said he touched her on the shoulder and pulled her up by hand. This was his first admission of any encounter with the complainant.
10.There is now additional DNA evidence linking Mr Hough to the outside front and back of the complainant's dress.
The only evidence which suggests Mr Hough may not have committed the alleged sexual penetration is his repeated denial thereof. These denials to his work colleague and, on 31 December 2014 to the police, of simply finding the complainant's handbag and underwear in the absence of any person are to be viewed against his off‑camera explanation on 31 March 2015.
This 31 March 2015 explanation of an innocent encounter with the complainant, so as to explain his DNA on her shoulder, was only forthcoming once Mr Hough was provided with evidence of his DNA on the complainant's shoulder, which demanded an answer. This explanation is inconsistent with earlier explanations to Mr Hough's work colleague and the police.
Further, Mr Hough's exculpatory statements are to be viewed against his removal of the mobile phone battery and memory/SIM card to prevent it being tracked, which at first he denied on 31 December 2014, but then, he changed his position on 1 January 2015 and admitted his removal of materials from the phone to prevent tracking. Further, he first said he threw the memory card in the bin. Later, he said he threw it onto the freeway. Later still, he was found searching for the missing card on the freeway.
It is then appropriate to consider the evolution of Mr Hough's differing versions of facts. They should not be viewed in isolation. In Mr Hough's first explanation, there was a complete absence of any encounter with anyone, including the complainant. Given his later explanation for the presence of his DNA on the complainant's shoulder, his initial explanation as to having only found the handbag and underwear was a lie. It was a repeated lie. It may well be, that, as the State submitted, the only rational basis for Mr Hough to lie about not having encountered the complainant was that he knew that the truth would implicate him in the offending. However, it is not appropriate to now determine whether Mr Hough's initial version was a deliberate lie about a material matter told out of a consciousness of guilt.
Had Mr Hough's later off‑camera claim made on 31 March 2015 been true, then there is no rational basis for him to not have related an encounter with someone to his work colleague, the complainant's father and the police, on both 31 December 2014 and 1 January 2015 and on-camera on 31 March 2015.
While no inference can be drawn from Mr Hough exercising his right to silence in a formal video recorded interview on 31 March 2015, it is significant that his final exculpatory statement only came after that video interview had concluded.
Mr Hough's later claim of an innocent encounter with the complainant only came after he was informed of DNA evidence linking him to the complainant's shoulder. However, given the latest DNA evidence linking Mr Hough to the complainant's dress, he has, at best, been economical with the truth on 31 March 2015 about only touching the complainant on the shoulder and pulling her up by hand.
Further, Mr Hough at first lied about his removal of the memory/SIM card.
Mr Hough's exculpatory statements comprise lies and inconsistencies and are inherently implausible when the relevant materials are evaluated as a whole without seeking to test the cogency or probative value of all the facts. Mr Hough's evidence lacks any credibility whatsoever.
Given the lack of credibility it cannot be said from Mr Hough's various exculpatory statements that it is reasonably arguable that he did not commit the alleged sexual penetration. There is no realistic prospect which is anything other than slim, fanciful or remote that he did not commit the offence charged.
Further, the relevant materials disclose the commission of the offence of sexual penetration. By inferential reasoning, the identity of the offender is Mr Hough. The relevant materials do not disclose a deficiency in the State's case. Mr Hough's exculpatory statements do not require the entry of a plea of not guilty.
Counsel for Mr Hough also made reference to the fact that there was no identifiable DNA found on the complainant's vagina. That however, is not proof that Mr Hough may not have committed the charged offence. It is no great leap to state that DNA is not always deposited.
Conclusion
In the circumstances, it is not reasonably arguable that the accused may not have committed this offence of sexual penetration. There is no realistic prospect that he may not have committed the offence.
There is no deficiency in the State materials such that it cannot be said that the alleged facts do not unequivocally establish that the accused may not have committed the charged offence.
This application is dismissed.
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