Houghton v The State of Western Australia - [2021] WASCA 183

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HOUGHTON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 183
CORAM:   BUSS P
MAZZA JA

HEARD:   ON THE PAPERS
DELIVERED          :   12 OCTOBER 2021
FILE NO/S:   CACR 52 of 2019
CACR 168 of 2020

BETWEEN: DANIEL HOUGHTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   IND 1551 of 2017

Catchwords:

Criminal law - Appeals against conviction and sentence - Application for leave to issue witness summonses

Legislation:

Criminal Appeals Act 2004 (WA), s 39, s 40

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions (WA)

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

Tsang v Francis [2021] WASCA 131

REASONS OF THE COURT:

The appellant has appealed against conviction and sentence.
The last date for appealing against conviction and sentence was 19 April 2019. The appellant did not file his appeal notice in the conviction appeal until 23 April 2019. He did not file his appeal notice in the sentence appeal until 27 October 2020.
The appellant requires extensions of time within which to appeal and leave to appeal.
On 13 April 2021, the appellant filed an application in the appeals for orders that the appeals not be listed for hearing before November 2021 and preferably in December 2021 or January 2022. On 16 April 2021, we dismissed the application.
On 2 July 2021, the parties were informed that the appeals had been listed for hearing on 22 October 2021.
On 24 September 2021, the appellant filed an application in the appeals for orders that the hearing date for the appeals be vacated. On 4 October 2021, we dismissed the application.
The appellant was represented by defence counsel at his trial and at his sentencing hearing. He is self‑represented in his appeals.

The witness summonses requested to be issued

On 4 October 2021, the appellant filed an application in the appeals requesting the court to issue:
(a)witness summonses to appear and give oral evidence at the hearing of the appeals on 22 October 2021; and
(b)witness summonses to produce a record or thing at the hearing of the appeals on that date.
The witness summonses to appear and give oral evidence were addressed to:
(a)Dr Ghazala Nasim, Olympic Medical Centre;
(b)Ryan Brown, WA Police;
(c)Natasha Haynes, WA Police; and
(d)Wendy Hughes, Children's Court WA.
The witness summonses to produce a record or thing were addressed to:
(a)The Proper Officer, Western Australian Police;
(b)The Proper Officer, District Court of Western Australia;
(c)The Proper Officer, Department of Health WA;
(d)The Proper Officer, Legal Aid WA;
(e)The Proper Officer, Director of Public Prosecutions;
(f)Lilli-Ann Rose; and
(g)Wendy Hughes, Children's Court WA.

The document described as an affidavit filed in support of the application requesting the court to issue the witness summonses

The application was supported by a document described as an affidavit. The document appears to have been signed by the appellant, but has not been properly witnessed. In the document, the appellant states that he is 'of no fixed address in the United States'. The document also states:
·I require further information from the DPP WA, WA Police, the District Court of WA, Health Department of WA, Legal Aid WA, Lilli-Ann Rose and Wendy Hughes to support various elements of my appeal.
·The rationale should be self-evident from assessing the items in the respective Form 10s.
·I require Dr Ghazala Nasim, WA Police’s Ryan Brown, WA Police’s Natasha Haynes and Wendy Hughes to appear in court for the final hearing to support various elements of my appeal.
·The doctor will be questioned about the medical grounds.
·The police will be questioned to gain an understanding of when and where events took place with particular focus on where Lilli[‑]Ann Rose (and her phone) were at key points and what she or her mother could’ve actually possibly seen or heard.
·Wendy Hughes will be questioned regarding sentencing matters.

The terms of the witness summonses requested to be issued

Each of the proposed witness summonses to appear and give oral evidence requires the proposed witness to attend personally at the Court of Appeal on 22 October 2021 at 9.30 am to give evidence.
As to the proposed witness summonses to produce a record or thing:
(a)The proposed summons addressed to the Proper Officer, Western Australian Police, requires the proper officer to produce to the court the following:
·All video footage from the night of [the appellant's] arrest on 13/1/17 including from both police vehicles in attendance (inside and out) and video surveillance from the police station for the duration he was locked up (inside and outside the building).
·Property report/s of any items taken from [the appellant's] person on that night of his arrest.
·All documentation and records regarding the search of 8A Fletcher St.
·A copy of everything that was downloaded from [the appellant's] seized phone and all related documentation.
·The identity of the backup police officer/s that attended 8A Fletcher St on the night.
·The identity of everyone in attendance during my time at the police station.
·All documentation regarding my arrest and time in custody that I'm legally entitled to including call sheets, any documentation and records and times of police communications.
·All documentation I'm legally entitled to related to the subsequent investigation of Ryan Brown and communications between he and the DPP.
(b)The proposed summons addressed to the Proper Officer, District Court of Western Australia, requires the proper officer to produce to the court:
·All communications between [the appellant's] lawyers and the District Court that are available for the entire case, especially emails.
·All DPP communications to the court.
·All filings by all parties for the whole case.
·All evidence items exhibits, reports etc tendered in court before, during and post trial.
(c)The proposed summons addressed to the Proper Officer, Department of Health WA, requires the proper officer to produce to the court:
·All records of my attendance, treatment and medication received at Fiona Stanley Hospital on the evening of 13/1/17 through to the morning of 14/1/17.
·All video footage of this attendance.
(d)The proposed summons addressed to the Proper Officer, Legal Aid WA, requires the proper officer to produce to the court:
All available communications between Legal Aid and [the appellant's] lawyers Jeremy Morris and Patti Chong including any reporting made by them and related invoicing.
(e)The proposed summons addressed to the Proper Officer, Director of Public Prosecutions, requires the proper officer to produce to the court:
·Records of all correspondence and emails between [the appellant's] lawyers and the DPP from the beginning of the case.
·Provision or sighting of the criminal record of DPP witness Sandy Perry (she may go under a different name).
(f)The proposed summons addressed to Lilli-Ann Rose states that her address is 'unknown' and requires Ms Rose to produce to the court:
·Copies of all text messages between yourself and [the appellant] from 13/12/16 through to 13/1/17 inclusive.
·The serial number of the IPhone you were using on 13/1/21.
(g)The proposed summons addressed to Wendy Hughes, Children's Court WA, requires Ms Hughes to produce to the court:
Copies of all text messages between yourself and [the appellant].

The disposition of the application requesting the court to issue the witness summonses

On 6 October 2021, we ordered that the appellant's request that the court issue the witness summonses be dismissed. Our reasons are as follows.

The background facts

The appellant was charged on indictment with one count which alleged that on 23 January 2017, at Applecross, the appellant unlawfully detained Lilli-Ann Rose, contrary to s 333 of the Criminal Code (WA) (the Code).
On 20 September 2018, the appellant was convicted, after a trial before Birmingham DCJ and a jury, of the offence.
The appellant was also charged with a number of summary offences. Those offences comprised:
(a)common assault in circumstances of aggravation or racial aggravation, contrary to s 313(1)(a) of the Code;
(b)obstructing public officers, contrary to s 172(2) of the Code;
(c)disorderly behaviour in public, contrary to s 74A(2)(a) of the Code;
(d)breach of protective bail conditions, contrary to s 51(2a) of the Bail Act 1982 (WA); and
(e)another breach of protective bail conditions, contrary to s 51(2a) of the Bail Act.
The appellant pleaded guilty to the summary offences and those offences were dealt with by the trial judge on a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
On 29 March 2019:
(a)his Honour sentenced the appellant to 18 months' imprisonment, suspended for 18 months, in respect of the unlawful detention offence;
(b)his Honour sentenced the appellant to 3 months' imprisonment, suspended for 18 months, in respect of the summary offence of obstructing police officers;
(c)his Honour imposed fines on the appellant for the other summary offences; and
(d)his Honour made a lifetime restraining order for the protection of Lilli-Ann Rose.
The suspended imprisonment orders commenced on 29 March 2019. The suspension period therefore expired on 29 September 2020.

The appellant's appeal against conviction: grounds of appeal

The appellant relies upon eight grounds of appeal in his appeal against conviction.
The grounds allege, in effect:
(a)Ground 1: the alleged offence of unlawful detention was trivial and there was no public interest in prosecuting the appellant for the offence.
(b)Ground 2: the appellant was medically and mentally unfit at the time of the trial.
(c)Ground 3: the appellant's legal representation at the trial was deficient.
(d)Ground 4: the trial judge permitted inadmissible evidence to be adduced at the trial.
(e)Ground 5: the trial judge was prejudiced against the appellant at the trial and consequently the appellant did not receive a fair trial.
(f)Ground 6: the verdict of guilty was unreasonable and not supported having regard to the evidence.
(g)Ground 7: proposed additional new evidence establishes that the appellant is innocent or raises such a doubt that this court should be satisfied that the appellant should not have been convicted.
(h)Ground 8: the merits of grounds 1 - 7 in combination establish that the appellant's trial was unfair and that a miscarriage of justice has occurred.

The appellant's appeal against sentence: ground of appeal

The appellant relies upon one ground of appeal in his appeal against sentence.
The ground alleges, in effect, that:
(a)the suspended imprisonment order for the offence of unlawful detention was manifestly excessive;
(b)the fine imposed for the offence of aggravated common assault was manifestly excessive;
(c)the suspended imprisonment order imposed for obstructing public officers was manifestly excessive; and
(d)the lifetime restraining order imposed on the appellant should not have been made.

The merits of the appellant's application requesting the court to issue the witnesses summonses to appear and give oral evidence

Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, by s 39(3), s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence.
In Tsang v Francis,[1] this court referred to the power conferred by s 40(1)(e) of the Criminal Appeals Act and said:
[1] Tsang v Francis [2021] WASCA 131 [79], [81] ‑ [83].
In Clarke v The State of Western Australia ([2018] WASCA 14 [236]), Buss P (Mazza JA agreeing) made these observations about s 40(1)(e) in the context of an appeal to this court under pt 3 of the Criminal Appeals Act:
The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ ([1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ)). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
…
There is, of course, a well-established distinction at common law between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen ([2005] WASCA 62 [9] (Steytler, Wheeler & McLure JJ)).
Traditionally, the courts have treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen ([1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J)).At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen ([1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ)); Mickelberg v The Queen ([1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ)).
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
As to the proposed witness summons to appear and give oral evidence addressed to Dr Nasim, the document filed by the appellant in support of the application merely states that he requires Dr Nasim to appear 'to support various elements of [his] appeal' (apparently his conviction appeal) and that Dr Nasim will be questioned about 'the medical grounds'. Those grounds appear to be ground 2, which alleges in effect that the appellant was medically and mentally unfit at the time of the trial, and ground 8, which replicates ground 2 in alleging in effect that the merits of grounds 1 - 7 in combination establish that the appellant's trial was unfair and that a miscarriage of justice has occurred.
The appellant's trial occurred on 17, 18, 19 and 20 September 2018.
On 14 September 2018, a directions hearing was held in the District Court. The primary purpose of the hearing was to determine whether the appellant's then lawyer, Jeremy Morris, should be granted leave to withdraw. The application to withdraw was granted.
During the directions hearing on 14 September 2018, the appellant produced to the court a medical certificate dated 11 September 2018 from Dr Nasim. The certificate states:
I am seeing [the appellant] for last six weeks. He suffers from mental stress. He showed mixed symptoms of depression and anxiety. He told me that he is going to face court trial next week. I am just [requesting] you to delay this for further four weeks so that we can start him on psychological therapies and medications. Once he feels better he will be fit for trial.
Dr Nasim is a general medical practitioner.
The judge who presided at the directions hearing (Goetze DCJ) said that the medical certificate did no more than convey a request that the trial be delayed.
When the trial commenced on 17 September 2018, defence counsel, Ms Chong, did not apply for an adjournment of the trial on the ground that the appellant was medically or mentally unfit to stand trial. Ms Chong merely raised with the trial judge the appellant's health in relation to his use during the trial of an asthma puffer, eye drops and medicated lip balm.
Dr Nasim did not give evidence at the trial.
At the trial the appellant gave evidence. He was cross-examined. It is not apparent from the transcript of the trial that his evidence was adversely affected by any medical or mental unfitness.
The statements made by Dr Nasim in her certificate dated 14 September 2018 do not establish, by admissible evidence, that at the relevant time the appellant was medically or mentally unfit to stand trial. The material before this court does not indicate that Dr Nasim may be able to give any evidence which materially supplements the statements made in her certificate. If Dr Nasim was able to give relevant and admissible evidence then the appellant should have arranged to obtain a written report from Dr Nasim (who, at relevant times, was his general medical practitioner) and filed and served the report in the conviction appeal.
The appellant has not sought leave to adduce additional evidence in the conviction appeal from a psychiatrist or clinical psychologist to the effect that he was or may have been medically or mentally unfit to stand trial. At his sentencing hearing, the appellant relied upon a report dated 13 December 2018 from a clinical psychologist, Dr Bill Douglas, and a report dated 6 December 2018 from the Information Officer at Relationships Australia. Neither of those reports indicate that the appellant was or may have been medically or mentally unfit to stand trial.
In the circumstances, the application for the issue of the summons to Dr Nasim is speculative. It is an attempt by the appellant to discover whether Dr Nasim might be able to give any evidence which might hopefully support some of his arguments in relation to grounds 2 and 8 of the conviction appeal.

Further and in any event, on 12 March 2020 Mazza JA made an order that the appellant file and serve any application to adduce additional evidence in the conviction appeal by 4.00 pm on 12 May 2020. On 4 June 2020, Mazza JA made an order extending to 4.00 pm on 18 June 2020 the time by which the appellant must file and serve any application to adduce additional evidence in the conviction appeal. On 24 July 2020, Mazza JA made an order that the appellant file and serve any application to adduce additional evidence in the conviction appeal by 4.00 pm on 28 August 2020. The appellant did not file and serve any expert evidence as to his alleged medical or mental unfitness at the time of the trial in accordance with Mazza JA's orders. The appellant has not given any (let alone any adequate) explanation for his failure to comply with those orders in relation to any expert evidence concerning his alleged medical or mental unfitness at the time of the trial or his delay in seeking to adduce expert medical evidence in the conviction appeal by the issue of a witness summons to Dr Nasim.
As to the proposed witness summonses to appear and give oral evidence addressed to police officer Brown and police officer Haynes, the document filed by the appellant in support of the application merely states that the police officers will be questioned 'to gain an understanding of when and where events took place with particular focus on where Lilli-Ann Rose (and her phone) were at key points and what she or her mother [could have] actually possibly seen or heard'. Lilli‑Ann Rose and her mother, Sandra Perry, gave evidence, as State witnesses, at the trial. The appellant may be contending that the evidence of the police officers is relevant to grounds 6 and 7 of his conviction appeal and, consequently, to ground 8.
Police officer Brown and police officer Haynes gave evidence, as State witnesses, at the trial. The material before this court does not indicate that either of the police officers may be able to give relevant and admissible evidence in relation to any of the grounds of appeal in the conviction appeal, apart from or in addition to the evidence they gave at the trial.
In the circumstances, the application for the issue of the summonses to police officer Brown and police officer Haynes is speculative. It is an attempt by the appellant to discover whether the police officers might be able to give any additional evidence which might hopefully support some of his arguments in the conviction appeal.
Further and in any event, the appellant has not given any (let alone any adequate) explanation for his failure to comply with the orders of Mazza JA made on 12 March 2020, 4 June 2020 and 24 July 2020 in relation to any proposed additional evidence from the police officers or his delay in seeking to adduce additional evidence in the appeal by the issue of witness summonses to the police officers.
As to the proposed witness summons to appear and give oral evidence addressed to Ms Hughes, the document filed by the appellant in support of the application merely states that Ms Hughes will be questioned 'regarding sentencing matters'.
The sole ground of appeal in the sentence appeal alleges, in effect, that:
(a)the suspended imprisonment orders were manifestly excessive and the fine imposed for the offence of aggravated common assault was manifestly excessive; and
(b)the lifetime restraining order imposed on the appellant should not have been made.
At the material time Ms Hughes was a lawyer. She appeared for the appellant at his sentencing hearing.
The material before this court does not indicate that Ms Hughes may be able to give relevant and admissible evidence in relation to the sole ground of appeal in the sentence appeal.
In the circumstances, the application for leave to issue the summons to Ms Hughes is speculative. It is an attempt by the appellant to discover whether Ms Hughes might be able to give any evidence which might hopefully support some of his arguments in the sentence appeal.
Further and in any event, the appellant has not given any (let alone any adequate) explanation for his failure to comply with the orders of Mazza JA made on 12 March 2020, 4 June 2020 and 24 July 2020 in relation to the proposed additional evidence from Ms Hughes or his delay in seeking to adduce additional evidence in the appeal by the issue of a witness summons to Ms Hughes.
As to the proposed witness summonses to produce a record or thing:
(a)the material before this court does not indicate how any of the documents, records, communications or things referred to in the summonses are relevant to any of the grounds of appeal; and
(b)the breadth of the category of documents, records, communications and things sought to be produced is oppressive and unreasonable.
In the circumstances, the application for the issue of the summonses to produce a record or thing is speculative. It is an attempt by the appellant to discover whether any of the persons to whom the summonses are addressed might be able to produce any documents, records, communications or things which might hopefully support some of his arguments in relation to his appeals.
Further and in any event, the appellant has not given any (let alone any adequate) explanation for his failure to comply with the orders of Mazza JA made on 12 March 2020, 4 June 2020 and 24 July 2020 in relation to the documents, records, communications or things sought to be produced or his delay in seeking to adduce additional evidence in the appeals by the issue of witness summonses to produce a record or thing.

Conclusion

In the circumstances, the appellant's application for the issue of the witness summonses does not serve a legitimate forensic purpose; further or alternatively, it is oppressive and unreasonable.
For the reasons we have given, on 6 October 2021, we made the order that the appellant's request that the court issue the witness summonses be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
12 OCTOBER 2021