Hunt v The State of Western Australia

[2008] WASCA 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HUNT -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 37

CORAM:   WHEELER JA

HEARD:   14 FEBRUARY 2008

DELIVERED          :   27 FEBRUARY 2008

FILE NO/S:   CACR 132 of 2007

BETWEEN:   CHADWICK WAYNE HUNT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :HASLUCK J

File No  :INS 134 of 2006

Catchwords:

Criminal law - Appeal - Conviction - Bail application - Turns on own facts

Legislation:

Bail Act1982 (WA), sch 1 cl 1, cl 3

Result:

Question of leave referred to Court of Appeal
Bail granted

Category:    B

Representation:

Counsel:

Appellant:     Mr G M Irving

Respondent:     No appearance

Solicitors:

Appellant:     Aegis Legal

Respondent:     Director of Public Prosecutions (WA)

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

Cecez v The State of Western Australia [2007] WASCA 260

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Stalker v The Queen [2002] WASCA 364

White v The Queen [2006] WASCA 62

1. WHEELER JA:  This is an application for bail pending appeal.  The principles governing such applications have been discussed on a number of occasions.  For the purposes of this application, it is sufficient for me to refer to Stalker v The Queen [2002] WASCA 364. In that case, Roberts‑Smith J discussed the relevant authorities in some detail, and emphasised the central importance of the prospects of success of an appeal. For the circumstances to be sufficiently "exceptional" to warrant the grant of bail pending an appeal, generally it must be shown not only that it is reasonably arguable that an appeal will succeed, but that it is highly likely that it will do so.

2. I should also note that, in the present case, there is no suggestion that the appellant should not be granted bail by reason of the provisions of cl 1 and cl 3 of sch 1 of the Bail Act1982 (WA). He had answered to his bail on all relevant occasions pending trial, and there is no suggestion that he would fail to do so, or that there is any other relevant reason for refusing bail, should exceptional circumstances be demonstrated.

3. I have already granted leave in respect of grounds 2 and 4 of the proposed grounds of appeal, and referred the question of leave in relation to ground 1 to the Court of Appeal, to be heard together with the appeal.  I am persuaded that I should also refer the question of leave in respect of ground 3 to be heard together with the appeal.  Whatever prospects of success any other ground may have, for the present application it is sufficient, however, to consider ground 2.  For that purpose, I should set out the history of the matter very briefly.

4. In August 1998, the complainant, Mr Prime, then an inmate at Albany Regional Prison, was stabbed.  On 27 September 2007, that is, approximately nine years later, the appellant was convicted of unlawful wounding with intent with respect to that stabbing.  Between those two dates, the following events occurred.

5. Police attended at Albany Regional Prison on 14 August 1998, in response to a complaint.  There was an official police offence report made, but it has, at some stage, been lost.  On 17 August 1998, the case was "written off", on the basis that Mr Prime wished no police action to be taken in respect of the matter.  Mr Prime's explanation, given at trial, was that he was aware of the undesirable consequences within the prison system of being seen as a police informer.  In September 1998, property which had been seized was returned to the Albany Regional Prison. 

6. Police again looked into the matter in December 2002.  It appears that, at that stage, Mr Prime, who had been released from prison some time in 1999, had decided that he wished action to be taken, after all.  Mr Prime was interviewed in March 2003 and a statement was taken.  As a result of that, a number of witnesses were spoken to over the coming months. 

7. Inquiries were made into the whereabouts of the appellant.  It appeared that he was in the Northern Territory.  Those inquiries also revealed that Qantas would not be prepared to fly the appellant back to Perth, because of his record.  The matter was "put to file", which meant that the file was still active, but that nothing was going to happen in relation to it until the appellant was located in Western Australia.  In March 2006, it appears that the appellant was in Western Australia and he was asked to participate in an interview concerning this matter.  He declined to answer any questions. 

8. In summary, it appears that, although the appellant was in Albany Regional Prison in 1998 at the time of the stabbing, it was not until 2006 that he learned that he was suspected of the offence.

9. It appeared at trial that certain forensic evidence had been destroyed, and that notes and/or files had been destroyed.  There were inconsistencies, which may have been of some significance, in the evidence of various witnesses who had observed Mr Prime and had observed the appellant, at about the time of the stabbing. 

10. Ground 2, in respect of which I have granted leave to appeal, asserts that his Honour erred in law in failing to give the jury an appropriate warning in accordance with a number of decisions of the High Court, including Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. It is common ground, it appears, that no warning of that kind was given. That is, his Honour did not warn the jury concerning the forensic disadvantage for the appellant resulting from the passage of a significant number of years, and the need as a result to scrutinise the evidence of Mr Prime with great care before convicting the appellant.

11. I should add that, notwithstanding that it appears to be common ground, I have reviewed his Honour's direction to the jury for myself, and I can see no warning of that kind.  On the contrary, there is an observation made by his Honour concerning the various inconsistencies and possible inaccuracies in the evidence of some witnesses, which suggests that the jury may consider that those differences, or some of them, result from the fact that witnesses necessarily view events which are unfolding very quickly and that different witnesses may view them from different perspectives and notice different aspects.  While, no doubt, a comment which may be of assistance in the fact‑finding process, it seems to me that, in a case where there has been a significant passage of time before an accused person becomes aware of a complaint, an observation of that kind would call for some balance by way of a Longman direction even if such a direction were not otherwise required.

12. The State makes essentially two submissions in response to ground 2.  In submissions filed on 4 December 2007, it is submitted that his Honour "comprehensively summarised the relevant evidence given at the trial to the jury", gave an appropriate direction as to identification evidence, and adequately presented the defence case relating to the identity of Mr Prime's assailant.  Those submissions may well be correct, but the point of a Longman direction is that it is a direction given by the trial judge, rather than a summary of submissions or arguments made by the defence, and that it refers particularly to the forensic disadvantage to the accused by reason of the passage of time. 

13. In further submissions dated 18 February 2008, following amendments to the grounds of appeal, the respondent submits that it was not necessary for his Honour to give the jury an appropriate warning in accordance with the decisions of the High Court referred to in ground 2.  Reference is made to decisions of this court, being White v The Queen [2006] WASCA 62 and Cecez v The State of Western Australia [2007] WASCA 260, which are to the effect that those High Court authorities do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of the prosecution witness whose evidence is significant or critical to the prosecution case if the witness is of bad character or has his or her own interest to be served. Again, in my respectful view, this misses the point of the ground. It may be that, in the present case, as was suggested by the defence, Mr Prime had some interest of his own to serve. His application for criminal injuries compensation was, for example, the subject of cross‑examination at trial and, since the stabbing occurred when he was an inmate in a prison, his own character was obviously in question. However, the warning contended for by the ground relates to a different issue entirely.

14. It appears to me that, having regard to the passage of time between the date of the offence and the date on which the appellant first learned that he was a suspect, the plain forensic disadvantage to the appellant occasioned by the loss and destruction of evidence, and the inconsistencies in evidence of the witnesses who appeared at trial, a ground which suggests that it was necessary for the trial judge to give a warning of the kind discussed in Longman has a very high probability of success.  I am fortified in that view by the fact that the State's submissions do not, as I have noted, directly address that point at all. 

15. The only matter which, as I presently understand the facts, may militate against the success of the proposed ground is the fact that counsel for the appellant at trial did not seek such a warning.  However, that appears to me to have been no more than an unfortunate oversight.  Prior to trial, on 23 April 2007, the same counsel had represented the appellant in an application before McKechnie J, seeking a stay of the prosecution because of the disadvantage and alleged unfairness arising from the loss of evidence.  On that occasion, McKechnie J was quite satisfied that there had been unfairness, in the sense that evidence had been lost and there was a forensic disadvantage.  His Honour noted that so much was conceded by the prosecution.  However, his Honour was of the view that the trial could proceed on the basis that the jury would be assisted by appropriate directions, including a probable direction about the fact that the defence had lost the forensic advantage of testing the evidence in the way that might otherwise have been expected.  In circumstances where the forensic disadvantage seems to have been conceded by the prosecution, and where attention had been given to that issue prior to trial, the inexplicable failure of either counsel for the appellant or for the State to raise the issue with the learned trial judge would not, in my view, have any significant impact on the likely success of the proposed appeal.

16. For these reasons, it seems to me that exceptional circumstances have been demonstrated.

17. Finally, so far as the conditions of bail are concerned, no submissions have been made by the State concerning any appropriate bail conditions.  The appellant's bail prior to trial was set at an undertaking of $50,000 with a surety of like amount.  Those are significant sums and I would therefore not be inclined to increase them, even to recognise the fact that the appellant has been convicted.  However, I would propose to impose a condition that the appellant not approach, or attempt to contact, the complainant, Mr Prime; a residential condition; and a reporting condition.  I will hear from counsel concerning the precise terms of the appellant's bail.