Hunt v The State of Western Australia [No 2]
[2008] WASCA 210
•15 OCTOBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUNT -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 210
CORAM: WHEELER JA
MILLER JA
MURRAY AJA
HEARD: 18 AUGUST 2008
DELIVERED : 15 OCTOBER 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 and procedure - Conviction of unlawful wounding with intent to do grievous bodily harm - Whether verdict of guilty unreasonable or cannot be supported by evidence - Whether Longman warning required by lapse of time between alleged offence and trial
Criminal law and procedure - Juries - Peremptory challenges to juries by prosecution - Prosecution having information from police about convictions of members of jury panel - Whether jury empanelled as required by law - Whether accused denied trial by jury as required by law
Legislation:
Juries Act 1957 (WA)
Result:
Grounds 1 and 4 dismissed
Ground 2 allowed
Category: A
Representation:
Counsel:
Appellant: Mr G M Irving
Respondent: Mr K P Bates
Solicitors:
Appellant: Aegis Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bromley v The Queen (1986) 161 CLR 315
Carr v The Queen (1998) 165 CLR 314
Cecez v The State of Western Australia (2007) 35 WAR 344; [2007] WASCA 260
Collard v The State of Western Australia [2008] WASCA 47
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1
R v BAT [2005] QCA 82
R v BWT (2002) 54 NSWLR 241
R v Sheffield Crown Court; Ex p. Brownlow [1980] 1 QB 530
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Murray AJA and Miller JA. It is therefore not necessary for me to set out again either the facts concerning this appeal, the grounds of appeal, or, so far as ground 1 is concerned, the relevant statutory background. So far as ground 4 is concerned, I agree with the reasons of Murray AJA and have nothing to add.
Ground 1
So far as ground 1 is concerned, I would add only these brief observations to those made by Murray AJA.
It is plain from a number of provisions of the Juries Act 1957 (WA) that the Act, like its counterparts in other States, is in general concerned to ensure the privacy and security of the individuals making up the panel or pool of jurors. So much is clear from s 34, s 36A, s 54(c) and Pt IXA.
However, the Juries Act also contemplates that access to information concerning jurors may be obtained by the parties to a criminal trial. Section 30 provides:
Subject to an order made under section 43A, the summoning officer shall cause a copy of every panel or pool of jurors who have been summoned to attend at any session or sittings for criminal trials to be kept in his office for 4 clear days at least before the day appointed for the attendance of the jurors and the parties in all criminal trials at that session or sittings and their respective solicitors may inspect the panel or pool without fee.
One "party" to a criminal trial is the State, of which both officers of the DPP, and police, are officers.
Section 43A(1) provides, relevantly for present purposes:
(1)If a judge of a court in which a trial is to be held or is being held considers that it is necessary to protect the security of persons summoned or sworn as a juror or appointed under section 52(1), the judge may at a pre‑trial hearing or at the trial, by order, do any one or more of the following -
(a)prohibit, restrict or impose conditions on the inspection by the parties to a criminal trial or their respective solicitors of the copy of a panel or pool of jurors that would otherwise be allowed under section 30;
(b)prohibit, restrict or impose conditions on the provision to the parties to a criminal trial or their respective solicitors of a copy of a panel or pool of jurors.
It should be noted that s 43A(1)(b) plainly contemplates that there will be circumstances in which the parties to a criminal trial or their respective solicitors will not only be able to inspect the panel or pool (as s 30 expressly allows) but will also be provided with a copy of the panel or pool. There is, so far as I can discern, no express provision in the Juries Act permitting a copy of the panel or pool to be provided to the parties or their solicitors. Parliament must have intended that a copy might be made available pursuant to rules of court under s 61. It appears to me, therefore, that r 57 of the Criminal Procedure Rules 2005 (WA), far from being ultra vires of the Juries Act, is a rule of a type contemplated by s 43A.
Ground 2
Ground 2 raises an issue not directly the subject of authority.
In Collard v The State of Western Australia [2008] WASCA 47, I endeavoured to summarise the circumstances in which a judge is required to warn a jury about any matter, and the circumstances in which an appellate court will intervene when no such warning has been given. It is sufficient, for present purposes, for me to repeat [3] and [7] of those reasons, which read:
[3]Given that the task of assessment of the facts is one for the jury, a question obviously arises as to how, as a matter of principle, a 'warning' to the jury concerning factors which they must take into account, and directing them that they must scrutinise the evidence of a witness with care in the light of those factors, can be justified. In the cases of White v The Queen [2006] WASCA 62 [70], [78] and Winmar v The State of Western Australia [2007] WASCA 244 [21] ‑ [22], this court examined authority and concluded that, as a matter of principle, it appeared that the need to give a warning arises where two factors are present. First, there must be some circumstance which makes it likely that evidence will or may be unreliable. Second, the risk inherent in the evidence must arise from a factor of which the courts have special knowledge, experience or awareness, so that the jury would not appreciate the risk without a judicial warning. As to the second factor, alternatively, it may be sufficient if, notwithstanding that the jury has the ability to understand and assess the risk, the particular circumstances of the case are such that the jury may be led to overlook it, or to place insufficient weight upon the potential risk. A similar view of the effect of relevant authority seems to have been taken in Victoria: see R v Mazzolini [1999] VSCA 150; [1999] 3 VR 113 [55] (Ormiston JA), R v Miletic [1997] 1 VR 593, 606 (Winneke P, Charles and Callaway JJA).
…
[7]It appears to me that, as a general rule, it will not be possible to demonstrate that a trial judge was in error in failing to warn a jury about a particular factor or combination of factors unless counsel can demonstrate one or more of the following:
(1)that binding authority requires a warning to be given in respect of that, or of those, factor(s), either in every case, or in cases which relevantly are similar to that in issue;
(2)that logic, or repeated experience demonstrates that some aspect of the evidence must give rise to a real risk of unreliability (that is, it will not be enough simply to make the assertion) and that, for reasons which can be clearly articulated in the circumstances of the particular case, a jury would not have been able to appreciate, or would have been likely to have overlooked, the relevant risk;
(3)that scientific works of authority demonstrate a clear consensus of view to the effect that evidence of a particular kind carries inherent risks, and that there is some reason for supposing that a jury may not appreciate those risks.
There is clear High Court authority for the proposition that a judge is required to warn a jury about the forensic difficulty faced by an accused person in a trial where there has been significant delay between the date of the offence and the time at which a complaint concerning it is made (or, probably more accurately, the date at which the fact that a complaint has been made comes to the attention of the accused). Although the delay cases have, to date, been cases involving allegations of sexual assault, no reason has been advanced for confining the principle to such cases.
No binding authority, it seems to me, deals directly with the question of whether a warning concerning delay is required in all cases in which significant delay occurs, or whether a warning is only required in cases in which it is the court's assessment that the significance of the delay may not be appreciated, or may be given insufficient weight, by a jury. It seems to me that there are indications either way. In Longman itself (Longman v The Queen (1989) 168 CLR 79), Brennan, Dawson and Toohey JJ said that the need for a warning in relation to delay arose because the forensic disadvantage stemming from delay was "one factor which may not have been apparent to the jury" (91). That observation tends to suggest that an assessment of how the matter has been presented to the jury may be relevant. However, it may also be seen as consistent with the proposition that juries will usually, or invariably, fail to appreciate the significance of delay. Similarly, in Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161, Hayne J noted at [140] that the lapse of time in that case "inevitably meant that the accused was put at a significant disadvantage, of a kind and to an extent which a jury might not appreciate without a proper direction".
The only two members of the High Court to have addressed the question directly, appear to me to have been Kirby J in Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [126], and Crennan J in Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [177] ‑ [178]. Kirby J said:
Long delays -- obligatory warnings: It would not ordinarily be expected that jurors would be aware of the findings of experimental psychology or of the common experience of forensic contests, and other data supporting the reflections about memory, mentioned in Longman. Judges, on the other hand are, or should be, aware of such matters. That is why, in a case of long delay, a warning must be given to a jury. A comment, or reliance on the comments and arguments of counsel, would not, in such cases, be sufficient.
Crennan J said:
A delay between the date of offences and prosecution which is more than twenty years (Longman), nineteen years (Crampton), or between twelve and nineteen years (Doggett) creates a circumstance palpable or obvious to a judge, but which a jury might fail to appreciate. That is, that after such a long period an accused is forensically disadvantaged by losing a chance to adequately test the complainant's evidence or to adequately marshal a defence.
Here, as already mentioned, no specific or particular forensic disadvantage to the appellant, as a result of delay, was identified to the trial judge: rather it was contended on appeal that the concatenation of factors of age (nine‑ten at the date of the offences and fourteen at the trial), the sexual nature of the offences (indecent dealing), the delay in complaint (around two years) and inconsistencies in the complainant's evidence, necessitated a warning in accordance with Longman, as applied in Robinson. It was asserted that those factors together created a forensic disadvantage to the appellant in attempting to mount his defence. It was not explained how this occurred or why a jury might fail to appreciate such an occurrence. A practical and orthodox direction was given by the trial judge in relation to the inconsistencies in the complainant's evidence. Neither Longman nor Robinson is authority for the proposition that it is imperative to give a warning in accordance with Longman when faced with the specific concatenation of circumstances identified by the appellant. The question is whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice. There is a clear distinction between such a case and a case where all the circumstances can be evaluated by a jury in the light of their own experiences. (footnotes omitted)
It appears to me that both Kirby J and Crennan J are to be understood as indicating that, because judges have an experience of forensic contexts which jurors necessarily lack, then where delay is very lengthy, there is inevitably a risk that jurors will either not appreciate or not give sufficient weight to the forensic difficulty which delay causes for an accused person, even where aspects of that disadvantage may have been ventilated at trial.
Intermediate courts of appeal in other States have grappled with a related question, being the question of what the court's duty is where there is delay, but where it is not apparent to the court that any forensic disadvantage was actually suffered by an accused person (or even where the court considers that it is clear that there was no such disadvantage in the particular case). In a survey of authority as at 2002, in R v BWT (2002) 54 NSWLR 241, Sully J, in reasons with which Wood CJ at CL and Dowd J agreed, concluded at [95]:
[3] It seems to me to be a reasonable inference from what their Honours have said that all the current justices of the High Court, excepting the Chief Justice and McHugh J, take the basic position that in any criminal trial a feature of which is substantial delay in the complaint of alleged sexual offences then charged against the particular accused, a Longman direction must be given.
To similar effect was the conclusion of the Supreme Court of Queensland in R v BAT [2005] QCA 82. In that case, Keane JA, in reasons with which McPherson JA and Douglas J concurred, concluded:
This Court must, therefore, hold that the duty of a trial judge is relevantly that, 'in a case of long delay, a warning must be given to a jury', whether or not the reasons which justify the warning are shown to be present in a particular case. Further, it appears that in cases of delay which is not so long as to call for the mandatory warning, the circumstances of particular cases may call for a direction or comment where there is a perceptible risk of a miscarriage of justice because the accused suffers actual disadvantage by reason of the delay which has occurred. [42]
It is not necessary, in my view, for me to undertake again the type of exhaustive analysis of authority undertaken in BWT and BAT. Rather, I would simply note that in my view the analysis in both those cases demonstrates that the flavour of the relevant authorities is that, in cases of
long delay, the requirement to give a Longman warning exists regardless of whether or not, in view of the trial judge, the reasons which justify such a warning have been demonstrated to exist. If that is so, then it seems to me that it would make sense for the warning also to be required whether or not the trial judge is of the view that what disadvantage might exist had already been adequately ventilated. Further, as I have noted, the observations of the only members of the High Court who have directly addressed the subject appear to require that conclusion, and those views should be given considerable weight.
The result of the above analysis is that it seems to me that an intermediate appellate court is required to assume that in every case of lengthy delay, a jury will not or may not appreciate the forensic disadvantage suffered by an accused person unless a warning is given. The delay in the present case was some seven years and eight months before the appellant was eventually charged. It seems to me that on any view the delay must be regarded as a "very lengthy" one and therefore as one calling for a warning of the kind articulated in Longman.
It may be relevant, in determining whether a warning was required in a particular case, to consider the approach adopted by trial counsel. In the present case, however, counsel at trial also argued the appeal. He submitted that it was "inexplicable" why no warning had been sought and that "one can only apologise for it not having been done". I understood that to mean that the omission to seek a warning was a simple oversight, and not the result of any particular view of the trial.
I did not understand the State to submit that, if a warning was required, this was nevertheless a case in which the court should conclude that no substantial miscarriage of justice occurred. For the sake of completeness I would note that I have considered that issue. However, having regard to the fact that the case turned largely on the evidence of the complainant, and having regard to the matters detailed by Miller JA at [98], it appears to me that the failure to give a warning in this case requires the appeal to be allowed, the conviction quashed, and a retrial ordered.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Murray AJA. I agree that grounds 1 and 4 of the grounds of appeal should be dismissed for the reasons given by his Honour. I wish to deal only with ground 2 of the grounds of appeal.
The facts
The appellant was charged on an indictment dated 4 October 2006 with one count of attempted murder and with an alternative count of unlawful wounding with intent to do some grievous bodily harm. The indictment was in the following terms:
(1)On 14 August 1998 at Albany Chadwick Wayne Hunt attempted unlawfully to kill Duncan James Prime.
(2)And in the alternative to Count (1), on the same date and at the same place Chadwick Wayne Hunt with intent to main, disfigure, disable or do some grievous bodily harm to Duncan James Prime unlawfully wounded Duncan James Prime.
The proceedings against the appellant were commenced by a complaint sworn by a police officer at Albany on 29 April 2004 in which it was alleged that the appellant had on 14 August 1998, attempted unlawfully to kill Duncan James Prime. The appellant's first appearance was not until March 2006 and it was not until July 2006 that the appellant was committed for trial at the Supreme Court sittings, listed to commence in the Supreme Court at Albany on 6 October 2006.
In the event the appellant's trial was heard before Hasluck J and a jury in the Supreme Court at Albany between 24 and 27 September 2007. At the end of the trial the appellant was convicted by majority verdict of the offence of unlawful wounding with intent to do some grievous bodily harm.
Appeal
The appellant was given leave to appeal his conviction on grounds 2 and 4 of the grounds of appeal. The question of leave to appeal in relation to grounds 1 and 3 was reserved to the Court of Appeal. Ground 3 was abandoned at the hearing.
Ground 2 of the grounds of appeal is in the following terms:
The learned Trial Judge erred in law, by failing to give the jury an appropriate warning in accordance with the decisions of the High Court in Longman v The Queen [1989] HCA 60; Robinson v The Queen [1999] HCA 42; Crampton v The Queen [2000] HCA 60; and, Doggett v The Queen [2001] HCA 46.
The evidence at trial
Before considering the merits of ground 2 it is necessary to outline briefly the evidence which was led at the trial of the appellant. It was summarised by the trial judge in the course of his directions to the jury and no issue has been taken with anything said in that summary.
On 14 August 1998, Duncan James Prime (the complainant) was serving a sentence of imprisonment at Albany Regional Prison. At about 11.45 am that day, he left the paint shop where he had been working and went back to his cell for lunch. He was watching television with the cell door slightly open, awaiting the delivery of his lunch. He said that the appellant, who was known to him, came into his cell, closed the door and secured it. He then closed the curtains on a window in the door.
The complainant said he was lying on his bed. He said that the appellant sat on a plastic chair and began talking to him, but then struck him an upper cut blow to the chin. He said that the appellant then climbed on top of him, grabbed his shirt and jacket with his left hand and thumped him in the chest. He said that he could see a small surgical or scalpel blade protruding from the appellant's fist.
The complainant said that he realised he had been stabbed. He grabbed the appellant's wrists. He claimed that the appellant said to him that he was going to kill him. The appellant then stabbed him twice in the back of the left upper thigh, repeating that he was killing him.
The complainant said that he left the cell and managed to get to the grille door leading to A yard in which he was incarcerated. There he attracted the attention of a prison officer. The complainant said that it was quiet in A yard at the time.
The complainant was taken to the prison medical centre and thence to Albany Hospital where he was treated for a punctured lung. He had various wounds sutured.
The complainant said he did not tell prison authorities who was responsible for stabbing him. He did not want to make a complaint to police because he feared retribution within the prison system. His fear was that he would be killed for 'being a dog'. However, he said he kept thinking about the incident and eventually decided to do something about it. He made a complaint sometime afterwards.
When cross‑examined, the complainant admitted that he had made a claim for criminal injuries compensation, but he said that this was not the reason for his complaint. He said he wanted closure of the issue. The complainant was cross‑examined about a number of inconsistencies in signed statements and I shall refer in more detail to his evidence.
Prison officer David John Edwards was in the course of taking a meal to the administration area within the prison on the day in question. He saw the complainant yelling. The complainant was on the concrete walkway between units 1 and 2 in A yard and he was yelling 'I've been stabbed'. He removed his shirt and blood was seen to spurt from a wound under his left arm. Mr Edwards put the shirt over the wound and walked the complainant to the medical centre as fast as he could.
Reginald John Edgeworth‑Kelly was a prison officer working at Albany Regional Prison on the day in question. He knew both the complainant and the appellant. He was at the back of the control room when he heard a loud bang which sounded like a cell door being slammed. He ran to A yard and as he approached the grille door, he noticed the appellant crossing from the right‑hand side of the yard to the left‑hand side of it. He said about three‑quarters of the way down the yard and about halfway across the courtyard in the centre of the yard.
Mr Edgeworth‑Kelly saw the complainant. He said that the complainant was screaming 'That fucking cunt stabbed me'. He went to assist the complainant but was pushed away. He opened the grille and said to the complainant 'Let's get you patched up'. The complainant shouted out a lot of obscenities and shouted to other prisoners 'Look what that bastard's done to me'.
At the medical centre, Mr Edgeworth‑Kelly observed that the complainant had a round wound about the size of a 50 cent piece to his left upper chest. Blood was pumping out of the wound. An ambulance was called and the complainant was taken to hospital.
At the conclusion of these events, A yard was sealed off. A search of the area was conducted. In a bottom cupboard in the dining area Mr Edgeworth‑Kelly found a toothbrush handle with a portion of blade attached to it. It was in a white bucket that had been filled with Rice Bubbles. The knife blade had wet blood on it.
The day after the incident, Mr Edgeworth‑Kelly went to the hospital where he saw the complainant. He asked the complainant if he knew who had stabbed him. The complainant said he could not say because he was in prison and even if he did know who it was, he would not say while he was in prison.
Mr Edgeworth‑Kelly said in cross‑examination that apart from the appellant and the complainant, he saw no other persons when he first looked into A yard. He said that he could not recall seeing any blood on the appellant or anything in the appellant's hand.
Gary Buitenhuis was a prison officer in A yard at about midday on the day in question. He was in the yard for the purpose of seeing a prisoner in cell 8. This was on the left‑hand side of the yard as you looked into it. He and a fellow officer had their backs to the yard when he heard a lot of swearing coming from the opposite side of the yard and heard a cell door slam. Mr Buitenhuis turned and saw the complainant walking towards the control room. His manner of walking indicated that there was something wrong. He was unsteady on his feet and Mr Buitenhuis could see that he had suffered an injury to the right‑hand side of his body.
Mr Buitenhuis said that Mr Edgeworth‑Kelly opened the grille door to let the complainant through. When Mr Buitenhuis looked back into the yard he saw the appellant coming from the right‑hand side of the yard in proximity to the complainant's cell. When he first saw him, he would have been about five metres from the complainant's cell. He seemed to be on his way to the dining room or control room but Mr Buitenhuis did not see him enter either of those rooms or the day room. It was Mr Buitenhuis who secured the yard by locking the prisoners down, after which more staff arrived.
Mr Buitenhuis said in cross‑examination that when he first turned from his initial position, there seemed to be other prisoners in A yard. He described them as 'normal traffic'. At this time the complainant was outside his cell, moving up the yard.
Mark William Buscombe was acting superintendent at Albany Regional Prison at the day in question. At about midday he received a call about a stabbing incident. He attended at the prison. He spoke with the appellant in his cell and later had him placed in another cell. When he spoke with the appellant he saw no blood upon him and he was unable to find any weapon upon him or in his cell. He said in evidence, that no blood was found on any A yard prisoner.
Peter John Fuderer was a detective sergeant attached to the Albany detectives office in March 2003. At that time he activated a file concerning an alleged assault committed at Albany Regional Prison on 14 August 1998. On 26 March 2003 he caused photographs to be taken of the complainant. He interviewed the complainant and he was present when the complainant drew a plan of his cell and of a yard. He located a record book relating to the incident which had an entry for 14 August 1998, referring to a shirt, jacket and two knives and an entry reading 'returned to prison'.
Detective Fuderer gave evidence that the items recorded in the record book were with forensic examiners for a period of about two weeks. The detective was unable to say whether they had been examined or whether tests had been done upon the items.
The appellant elected not to testify in his defence and there was no evidence adduced of anything said by him in response to investigating police.
Evidence of complainant
It is necessary to refer in some detail to the evidence of the complainant. He testified that he was 36 years of age at the time of trial and a labourer by occupation. On 14 August 1998 he was a prisoner held at Albany Regional Prison. He had been sentenced to imprisonment for 'about 3 1/2 years' for 'a robbery with violence charge and car theft'. The sentences were imposed in August 1997. The complainant said he had been in prison on other occasions but had never been at Albany Regional Prison before 1997.
The complainant said that he knew the appellant and had known him for about four or five years prior to 14 August 1998. He had met him in prison.
On 14 August 1998, the complainant was in a yard called 'A yard'. There were three yards, A, B and C. In addition, there were two units, unit 1 and unit 2. Prisoners generally went into the yards first and they were then put into units. 'Trouble‑makers' remained in the yards and 'easygoing prisoners' went into the units.
The complainant said that he was in A yard at Albany Regional Prison because he had to return to Perth to face another charge and he lost his cell in the unit because the prison was pretty close to full muster.
The complainant described A yard as 'like one big cage'. He said 'there's a steel cage across as the roof and cells down either side'. He added, 'It's not a place I like to be'.
The complainant said there was a grille door for entry and exit to the yard. He estimated that there were about 10 cells on each side of the yard. The appellant's cell was on the left‑hand side and the complainant's on the right‑hand side. The complainant's cell was third from the end. He described the appellant's cell as being in about the middle of that line of cells. He identified from a photograph tendered in evidence, where the respective cells were.
Exhibits 9 and 10 in the proceedings give a clear indication of the prison layout. Exhibit 10 is a plan of the whole area and exhibit 9, a plan of A yard on which there are endorsed the location of the cells of the complainant (Prime) and the appellant (Hunt). Copies of these exhibits are annexed to these reasons.
The complainant gave evidence that on the morning of the incident he had been working in the paint shop until 11.45. He then knocked off for lunch. He went back to A yard and straight to his cell. He lay down in his cell and watched 'Sale of the Century' on television. Lunch was to be served at 12 noon precisely. It came on a food trolley which was brought into the yard. Prisoners took their meals from it.
The complainant said that his cell door was capable of being shut with a shoelace and he described how this could be done. The door was made of wood and steel. The complainant described it as 'like a steel veneer door; steel plates on a wooden door'.
The complainant said that whilst he was lying on his bed watching television, his door opened and the appellant walked in. The appellant closed the door and started locking it with a shoelace so that nobody could open it from the outside. Whilst doing this, the appellant looked out through a window in the door to ensure that nobody was coming.
The complainant said that he was not concerned about the appellant's presence. He saw the appellant close the curtain to the window then sit on a plastic chair and begin talking to him. The complainant said that he then realised that the appellant was serious so he sat on the end of his bed. As he did that he was given an upper cut to the chin. He then said to the appellant 'Let's talk about what's going on'.
The complainant was pushed back onto the wall at the back of his bed and he just stayed in that position so that he could keep the appellant at bay with his legs if he had to. He then observed the appellant come closer to him. His description of what then occurred was as follows:
He came closer to me, sort of climbed on top of me and grabbed my shirt and jacket with his left hand and with his right hand he, like, thumped me in the chest and that's what I thought it was, just a thump till I felt blood coming down my chest and I was in shock because I had never seen as much blood as I did in my whole life.
The complainant did not see anything in the appellant's hand when first hit, but said:
When I realised I'd been stabbed I seen a small blade sticking out the bottom of his hand and that's when I grabbed him because I knew I had to do something if I wanted to get out of my cell alive, so I grabbed hold of him and he was telling me to, 'Be a man. Let go of my hand. Be a man,' and it just wasn't registering in my head. I couldn't believe what was happening. I just couldn't believe what was happening and what I was hearing after this had happened to me.
The complainant described the blade that he saw as 'like a surgical blade … scalpel blade' and he drew a sketch of it for the purposes of the proceedings. He said that the blade looked as if it had been attached to the end of a pen or a toothbrush. He said this was the sort of thing that prisoners made.
The complainant said that the appellant asked him if he wanted to die and said to him 'I'm fucking killing you … I'm going to kill you'.
The complainant said that blood kept pumping out of his chest and he knew that some damage had been done. He had hold of the appellant's arms and the appellant said to him 'Be a man Duncan. Let go of me, let go of me. Be a man'.
The complainant said he let go of the appellant because he wanted to make a run for it out of his cell. He let go of the appellant's wrists and the appellant stabbed him twice more. He was stabbed twice in the back of his left thigh.
The complainant said that after this the appellant got off him, turned around and opened the curtain and had a look out to see if anybody was coming. The complainant said he stood up, booted the cell door open as hard as he could and walked out. He did not know whether the appellant had followed him because he did not turn around. He walked straight to the grille where the prison officer was.
The complainant gave evidence about the nature of his injuries and nothing turns on the extent of them. There was evidence from a doctor that the complainant's chest injury was of such a nature as to endanger his life. A conclusion by the jury that the complainant's assailant unlawfully wounded him with intent to do grievous bodily harm was clearly open.
The complainant was cross‑examined at considerable length. Surprisingly however, it was never put to him that it was not the appellant who had stabbed him, but some other person. It was never put to him that his evidence was untruthful or fabricated.
The complainant was asked about the reason why he would not identify his assailant and he repeated (in effect) that he did not wish to be 'a dog' because 'dogs' were generally kept in protective custody and they were in fear of reprisal. He elaborated by saying:
It's not just dobbing in a prisoner. Even before you get to prison, if you were to dob in somebody for a crime - or child molesters - they're dogs; people who give information to the police are dogs; people who seek retribution through the authorities are dogs.
I gather it's something of an open season on dogs in prison?‑‑‑Yeah.
So they could be assaulted, killed. Is that correct?‑‑‑It does happen.
The complainant said that he first spoke to police in 2003 after he had made a claim for criminal injuries compensation. He admitted that when he went to see police, it was during the period his criminal injuries compensation application was on foot. It was put to him that he made his complaint in support of his application for criminal injuries compensation:
I put to you that the reason for that is because it was in support of your application for criminal injuries compensation?‑‑‑No. Win, lose or draw, I'm not out for compensation; I'm out for closure. All I want is to let him know that this is not the right thing to do.
The complainant admitted that he made two statements to investigating police and that the second statement differed from the first. He was cross‑examined about inconsistencies in the statements. Those inconsistencies related to things that the appellant had allegedly said and also to the actual assault. There was also inconsistency in the complainant's statements about the weapon used by his assailant. In his signed and unsigned statements made in 2003 he described the weapon as a scalpel, but in 2006 he said it was not a scalpel and looked like a pair of scissors.
The complainant was cross‑examined about the circumstances in which he left his cell and entered the yard. He was asked whether he saw any other prisoners in the yard but he said that he was in a state of shock and the only thing he was thinking about was his mother and his girlfriend '… whether I was going to see them again'. He said that no doubt there were other people there but he could not recall seeing them.
The cross‑examination centred upon the inconsistencies in the complainant's statements about how the incident had occurred. Not once was it put to him that it was not the appellant but somebody else who was responsible for the assault. No attempt was made to suggest that the complainant was implicating the wrong person.
Evidentiary issues
Because of the long delay between the incident and the complaint made by the complainant, relevant evidence was either lost or destroyed.
I have already mentioned that A yard was closed down after the incident and a search was conducted. Two home‑made knives described as 'shivs' were found in the day room at the end of A yard. The one found by Mr Edgeworth‑Kelly had a blade approximately 5 inches long and 3/4 of an inch wide. It had wet blood on it. It was attached to a toothbrush handle. Mr Edgeworth‑Kelly said that he handed it to prison officer Reeby and made a report about the finding of it.
The second 'shiv' was found by prison officer Scott in a plastic cereal container. It consisted of half a pair of fabric shears, approximately 4 inches long. It was not attached to any handle. Officer Scott thought that he had handed the item to Mr Reeby.
Mr Buscombe gave evidence that because of the considerable delay between the incident and investigation by police, contemporaneous notes made by prison officers about the incident and forensic evidence gathered at the time of the incident, were either lost or destroyed. The forensic evidence included clothing that the appellant had been wearing on the day of the incident. This clothing was either lost or destroyed.
Trial judge's directions
The trial judge incorporated into his directions a summary of the relevant evidence. Much of that I have reproduced.
During the course of summarising the evidence the trial judge pointed to inconsistencies between some of the witnesses. He highlighted the inconsistencies in evidence about the number of people within A yard. His Honour said:
For example, Prime and Edgeworth Kelly refer to an absence of other people, either prisoners or officers, in A yard when Prime emerged from his cell, but Buitenhuis speaks of others being there, of normal traffic. Prime speaks of leaving his cell with his jacket zipped up in a mood of calmness. It is said by the defence that other witnesses present a different picture.
It is for you to determine whether there are inconsistencies of this kind and if so, whether there is an explanation for them, possibly due to the different moves and vantage points of the witnesses in question and whether these differences and inconsistencies, if they do exist, are of real significance.
The trial judge gave a direction on the question of identification and the need for caution before convicting in reliance upon the correctness of identification evidence. This direction was given because of the identification of the appellant in A yard in proximity to the complainant's cell at or about the time of the stabbing. No issue was taken with the correctness of the identification direction.
After summarising the prosecution evidence, the trial judge made reference to the defence case in the following terms:
The defence case was outlined in defence counsel's opening address. He said that as at 14 August 1998 there was an investigation into this matter but at that time the accused was not identified by Prime or anyone else as the person who attacked Prime.
… [There followed the evidence of Mr Edgeworth‑Kelly]
Defence counsel placed some reliance upon that passage, amongst other matters that were referred to. Defence counsel in the course of both his opening and closing addresses put to you that the evidence assembled in 1998 has been lost or destroyed and with the passage of time memories of the matter are unclear. Contemporary reports and items seized in the search have not been produced to the court and there are some indications they either can't be located or have been lost.
It is put as part of the defence case that the prison officers did not witness what happened in Prime's cell and evidence by certain of the officers which purported to identify the accused as a person in proximity to Prime's cell at the relevant time was contradictory and unsatisfactory. I touched on some of that yesterday.
Counsel rounded off his opening address by suggesting that the accused was placed at a severe disadvantage in trying to deal with charges like this after a lapse of eight years.
The trial judge also pointed out that defence counsel had stressed that there was no evidence that blood was seen on the appellant on the day in question, nor was any object seen in his hand. There was detailed reference to the evidence of Mr Edgeworth‑Kelly on this point.
His Honour concluded by saying:
The essence of the defence case is that the accused cannot be found guilty of any offence because you cannot be satisfied beyond reasonable doubt that he was in Prime's cell and did do what the prosecution alleges he did.
Nowhere did the trial judge give a warning to the jury that there was a need to closely scrutinise the evidence of the complainant because of the potential unreliability of his evidence. No warning was given about any other aspects of the case which revealed dangers not necessarily obvious to the lay mind: see Bromley v The Queen (1986) 161 CLR 315 per Gibbs CJ at 319, Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 per Brennan, Dawson and Toohey JJ at 87 and Carr v The Queen (1998) 165 CLR 314 per Brennan J at 330.
The question is whether it was sufficient in the circumstances of the case for the trial judge to refer only to defence counsel's summation of the shortcomings of the evidence in terms of (1) the absence of contemporary records and exhibits, (2) the effect upon the memory of witnesses occasioned by the long delay, (3) the contradictory evidence of the prison officers, (4) the severe disadvantage of trying to deal with the charges faced by the appellant given the lapse of eight years that had occurred.
This was not an exhaustive list of the problems of the case. There were also problems occasioned by the following facts:
(1)the complainant was a convicted prisoner;
(2)there were prior inconsistent statements made by the complainant;
(3)the complainant timed his complaint contemporaneously with an application for criminal injuries compensation.
The requirement for a 'Longman warning'
In Collard v The State of Western Australia [2008] WASCA 47, Wheeler JA pointed out at [1] that the term 'a Longman warning' is often apt to lead to confusion. The general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Longman v The Queen at 86 (citing Bromley v The Queen and Carr v The Queen).
The warning which was required in Longman's case was that set out by Brennan, Dawson and Toohey JJ at 91 as follows:
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.
In Bromley v The Queen, Gibbs CJ expressed the requirement for a warning in the following terms at 319):
What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is 'Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?' ([1986] AC, at p 141). There is nothing formal or technical about this rule.
In Carr v The Queen, Brennan J at 330 spoke of a need for a warning in certain cases by reference to a combination of the evidence and the conduct of the trial. His Honour said:
In the circumstances of this case, there was a perceptible risk of a miscarriage of justice against which it was necessary to give a warning that the confessional evidence should be closely scrutinized, the comparison of demeanour is not necessarily a sound guide to comparative veracity and that the belief entertained by the police of the applicant's guilt before any confession was made was a fact which the jury might bear in mind in determining whether the confession attributed to the applicant had in fact been made. In all other respects, the jury had been sufficiently directed that they had to be satisfied beyond reasonable doubt that he confession had been made. In this case, however, the applicant can show that there was a need for a warning by referring to a combination of the evidence and the conduct of the trial. The omission of the warning might well have affected the verdict.
These decisions of the High Court are indication that a trial judge is required to give a warning in any case in which the circumstances of the case suggest that the evidence of a complainant may be unreliable and the jury might not appreciate the risk of acting on that evidence without special scrutiny being given to it.
In Collard v The Queen, Wheeler JA summarised the relevant principle at [3] in the following terms:
Given that the task of assessment of the facts is one for the jury, a question obviously arises as to how, as a matter of principle, a "warning" to the jury concerning factors which they must take into account, and directing them that they must scrutinise the evidence of a witness with care in the light of those factors, can be justified. In the cases of White v The Queen [2006] WASCA 62 [70], [78] and Winmar v The State of Western Australia [2007] WASCA 244 [21] - [22], this court examined authority and concluded that, as a matter of principle, it appeared that the need to give a warning arises where two factors are present. First, there must be some circumstance which makes it likely that evidence will or may be unreliable. Second, the risk inherent in the evidence must arise from a factor of which the courts have special knowledge, experience or awareness, so that the jury would not appreciate the risk without a judicial warning. As to the second factor, alternatively, it may be sufficient if, notwithstanding that the jury has the ability to understand and assess the risk, the particular circumstances of the case are such that the jury may be led to overlook it, or to place insufficient weight upon the potential risk. A similar view of the effect of relevant authority seems to have been taken in Victoria: see R v Mazzolini [1999] VSCA 150; [1999] 3 VR 113 [55] (Ormiston JA), R v Miletic [1997] 1 VR 593, 606 (Winneke P, Charles and Callaway JJA).
At [4] Wheeler JA added:
While the principle can be readily stated, it cannot be so readily applied. It is a principle which gives rise to difficulty and confusion, not only for trial judges, but also for courts of appeal. A search of a database of Australian decisions in the 18 years since Longman was decided throws up hundreds of cases grappling with the question of whether a warning was or was not required in the light of particular circumstances. Trial judges are, of course, generally alive to the need to give a warning where it is necessary to avoid a perceptible risk of a miscarriage of justice, and are anxious to ensure that no risk of a miscarriage of justice arises in the cases over which they preside, so that the cases do not as a rule stem from any overlooking of relevant principle. The difficulty is not one of principle, but of fact (see, for example, the differing views expressed in Tully v The Queen [2006] HCA 56; (2006) 81 ALJR 391 [57], [87] and [91], [132], [151], [186]).
At [120] ‑ [121] Buss JA further summarised the principles in the following way:
In Brophov The State of Western Australia [2006] WASCA 109, I reviewed several decisions of the High Court in connection with the circumstances in which a trial judge is required to give a warning to the jury, in the context of the trial of a person for a sexual offence, in relation to the evidence of the complainant. The authorities I reviewed included Longman v The Queen (1989) 168 CLR 79, Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 261, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 and Carr v The Queen (1988) 165 CLR 314. Also see, in a different context, my review in Cecez v The State of Western Australia [2007] WASCA 260. It is unnecessary, in these reasons, again to review the decisions in question.
In my opinion, the authorities require that a trial judge must warn the jury as to the need for careful scrutiny of the complainant's evidence whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice in relation to the assessment of his or her evidence which arises from the circumstances of the case. The necessity for such a warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the complainant or his or her evidence.
Murray AJA added at [143]:
To this analysis [of Wheeler JA], with which I respectfully agree, can be added the discussion by the Court of Appeal (a bench of five judges) in Winmar v The State of Western Australia [2007] WASCA 244, particularly at [21] - [22], and the discussion by Buss JA in Cecez v The State of Western Australia [2007] WASCA 260. In the latter case (which was heard after Winmar was argued, but before judgment in Winmar was delivered), I also attempted an analysis of authorities concerned with diverse areas of evidence and the directions to be given by a trial judge before identifying an applicable general principle, which I expressed at [220] - [221] as follows:
…
An instruction or warning will be required where the experience of trial judges reveals a danger to the process of achieving a fair trial which the jury may not appreciate. If that is not the case, no special instruction or warning is required to avoid a miscarriage of justice and the trial judge will not err if no special instruction is given, but the jury is left to their fact-finding task guided by their own wisdom and experience. In my view, it may be added that unless the circumstances positively call for a special instruction or a warning, the judge should do no more than remind the jury of the issues truly raised by the case which will require their decision.
The present case
In the present case, the trial judge was not asked to give any warning of the dangers of acting upon the evidence of the complainant without giving careful scrutiny to that evidence.
The trial judge did refer to aspects of the case highlighted by defence counsel which were said to place the appellant at a severe disadvantage in the conduct of his defence, but these references were made in the context of a summation of the defence case.
In my opinion, it was incumbent upon the trial judge to himself direct the jury that there was a need to scrutinise with particular care, the evidence of the complainant.
In my opinion the trial judge was required to give a warning to the jury because:
1.The complainant was a convicted prisoner who had been convicted of serious crimes.
2.The complainant made no complaint about the incident giving rise to the charges against the appellant until several years had elapsed.
3.When the complainant did make his complaint, he did so in tandem with a criminal injuries compensation application.
4.The long delay between the date of the incident and the date upon which the appellant was charged, meant (a) that contemporaneous notes and records had been destroyed, (b) exhibits which may have yielded forensic evidence were unavailable because they were either lost or destroyed and (c) there had been no forensic testing of any exhibits.
5.The long delay between the incident and trial meant that witnesses were being required to testify to events which had occurred almost nine years beforehand.
In my opinion, there was a risk inherent in the jury considering the evidence unless given a warning of the type recommended by Gibbs CJ in Bromley v The Queen (at 319) and Brennan J in Carr v The Queen (at 330). In the circumstances of this trial, the jury may not have appreciated the risks that existed without a special warning. Whilst they could not fail but be aware of the fact there had been a long delay between the incident, the complaint and the trial, it needed to be brought home to them by the trial judge, that particular care was required in scrutinising the evidence of the complainant. He was the sole witness to the events that occurred in his cell.
In my opinion, the trial judge's failure to give this direction constituted a miscarriage of justice. I would uphold the appeal on ground 2 of the grounds of appeal. I would quash the conviction of the appellant and order that he be retried in the District Court at Albany.
ANNEXURE A
ANNEXURE B
MURRAY AJA: The appellant was indicted in this court for the attempted murder of one Duncan Prime at Albany on 14 August 1998. In the alternative, he was charged on that indictment with unlawfully wounding Prime with the intention to maim, disfigure or disable Prime or to do him grievous bodily harm. He was acquitted of the attempted murder of Prime, but convicted of unlawfully wounding him with intent to do him grievous bodily harm after a trial before Hasluck J and a jury on 24 ‑ 27 September 2007. The trial took place in Albany where the offence was alleged to have been committed.
A chronology
The appellant and the man Prime were sentenced prisoners. They were serving terms of imprisonment in the Albany Regional Prison. Broadly put, it was alleged that on 14 August 1998 the appellant entered Prime's cell and an argument occurred between him and Prime, in the course of which it was asserted that the appellant used a makeshift knife to stab Prime three times, once in the chest and twice in the leg.
There was ultimately no contest that Prime was unlawfully wounded. The issues at trial were whether the offender was the appellant, and if so, whether his attack was made with the intention to kill Prime or to do him grievous bodily harm, or whether neither intention was established beyond reasonable doubt.
Prime was removed to the Albany Regional Hospital after the attack upon him and he was provided with medical treatment. An investigation occurred, but no charges were laid against any person, for the simple reason that Prime refused to identify the assailant. It is said that he was fearful that if he did so while he was serving his term of imprisonment, there would be reprisals.
He did not make a complaint until 26 March 2003. The complaint was made specifically against the appellant. The investigation was resumed and the appellant was eventually charged on 15 March 2006. After the ordinary committal processes occurred in the Perth Magistrates Court, the appellant was indicted on 4 October 2006 and, as I have said, tried on 24 ‑ 27 September 2007. Significantly for present purposes, it may be observed that it was about 7 1/2 years after the alleged commission of the offence that the appellant was charged.
Ultimately, on 30 November 2007 the appellant was sentenced to 5 years imprisonment backdated to commence on 26 September 2007, the day upon which the appellant was taken into custody in relation to the offence, with eligibility for parole. The non‑parole period was therefore one of 3 years imprisonment, and the appellant's earliest eligibility date for parole would be 26 September 2010.
The appeal as amended
There are three grounds of appeal now pursued:
1.The learned Trial Judge erred in law by allowing the prosecutor to challenge potential jurors on the basis of their prior criminal histories, thus depriving the Applicant of the opportunity of a fair trial by a jury of his peers.
2.The learned Trial Judge erred in law, by failing to give the jury an appropriate warning in accordance with the decisions of the High Court in Longman v The Queen [1989] HCA 60; Robinson v The Queen [1999] HCA 42; Crampon v The Queen [2000] HCA 60; and, Doggett v The Queen [2001] HCA 46.
3.ABANDONED
4.The majority verdict of guilty, on which the conviction for unlawful wounding was based, was unreasonable and unsupportable having regard to the evidence.
Ground 4 is not particularised in any way.
The question of leave to appeal was dealt with by Wheeler JA on 14 and 27 February 2008. Her Honour granted leave to appeal on grounds 2 and 4 and referred to the full court of appeal the question of leave in respect of grounds 1 and 3. Ultimately, as has been seen, ground 3 was abandoned.
The empanelment of the jury
When the trial commenced on 24 September 2007, defence counsel objected to the prosecutor having before him a jury panel or list which identified persons with prior criminal convictions. Counsel submitted that that was unfair to the accused. Whether the alleged unfairness arose out of the fact that the appellant did not have access to the same information, or whether it arose out of the fact that the prosecution did have access to that information supplied by the police, was never made clear, but defence counsel suggested that the prosecutor ought to use an unmarked list.
The trial judge invited the prosecutor to do so. However, he declined, unless the trial judge so ordered. Prosecuting counsel offered to supply a copy of the marked up list to defence counsel. That offer appears not to have been taken up.
The trial judge declined to order prosecuting counsel to put his list aside, and the objection to the procedure was overruled. I note that no forewarning had been given to the judge that the point was to be raised. No authority was cited by counsel. The debate occurred in the presence of the jury panel. Immediately after his Honour's ruling was made, the process of jury selection occurred, apparently in the ordinary way.
The relevant statutory provisions
The process of empanelment of a jury is governed by ss 101 ‑ 106 of the Criminal Procedure Act2004 (WA). Section 104(1) removes the right previously afforded to an accused by the law to object to the array or panel of jurors. By s 104(5), however, particular jurors may be challenged by either prosecution or defence for cause; ie, that the juror is not qualified by law to act as a juror or that the juror is not indifferent as between the accused and the State. Otherwise, under s 104(2) ‑ (4), the prosecutor and each accused person has a right to challenge five jurors peremptorily before any juror so challenged is sworn.
Eligibility for jury service is dealt with in the Juries Act 1957 (WA). Section 4 provides that persons enrolled and entitled to vote at elections for the Legislative Assembly of the State Parliament are liable to serve as jurors in the jury district in which they live, according to the roll. Those not eligible, disqualified from service, or entitled to be excused from service, are set out in s 5 and the Second Schedule to the Act. Section 5(b) provides:
Notwithstanding that a person is liable to serve as a juror by virtue of section 4 that person -
(a)…
(b)is not qualified to serve as a juror if he or she -
(i)has been convicted of an offence in Western Australia or elsewhere and sentenced to —
(I)death whether or not that sentence has been commuted;
(II)strict security life imprisonment referred to in section 282 or 679 of The Criminal Code;
(III)imprisonment for life; or
(IV)imprisonment for a term exceeding 2 years or for an indeterminate period,
unless he or she has received a free pardon or, where sub‑subparagraph (IV) applies, the conviction in respect of which the sentence of imprisonment was imposed is a spent conviction within the meaning in section 3 of the Spent Convictions Act 1988;
(ii)has at any time within 5 years in Western Australia or elsewhere -
(I)been the subject of a sentence of imprisonment or been on parole in respect of any such sentence;
(II)been found guilty of an offence and detained in an institution for juvenile offenders; or
(III)been the subject of a probation order, a community order (as defined in the Sentencing Act 1995), or an order having a similar effect, made by any court;
(iii)does not understand the English language; or
(iv)is incapacitated by any disease or infirmity of mind or body, including defective hearing, that affects him or her in discharging the duty of a juror;
Section 8 provides, however, that the fact that a person disqualified from service actually serves as a juror in a trial does not invalidate or affect the verdict. As I read s 5(b)(i) and (ii), their effect would be that any person sentenced to imprisonment or a community based order in the last five years in WA or elsewhere is disqualified, but if the sentence is of the severity or kind set out in subparagraph (i) then the disqualification continues indefinitely unless there has been a pardon or the conviction is spent under the Spent Convictions Act 1988 (WA).
Where the jury list system under the Juries Act is used, the Sheriff is to remove from the jury list the name of a person who is not eligible to serve as a juror, not qualified, is dead, no longer resides in the jury district or whose address is unknown: s 14(8). The resultant jurors' book for the jury district is then the foundation for summoning jurors, sought by a precept, whatever process provided under the Act is used for that purpose. The Sheriff, the Electoral Commissioner, any jury officer and any summoning officer may call upon the police for assistance in the compilation of jury lists and jurors' books. Section 17 requires police officers who are requested to provide such assistance to make such inquiries and provide such information as is sought, 'whether for the purpose of ascertaining the names of persons not qualified to serve as jurors, or for any other purpose of the administration of this Act'.
At the conclusion of that process, a panel or pool of jurors who have been summoned to attend the Supreme Court or District Court for criminal trials will be brought into existence. Under s 30, the summoning officer is required to have that document available for inspection by the parties in criminal trials and their lawyers.
Apart from that process, the procedure under r 57 of the Criminal Procedure Rules 2005 (WA) may be employed. The rule provides:
57.Jury panels or pools, lawyers may obtain copies of
(1)In this rule -
'panel or pool' means the panel or pool of jurors kept by the summoning officer under section 30.
(2)The entitlements of a lawyer under this rule are subject to any order made under section 43A in a particular case.
(3)A lawyer employed in the office of the DPP who has lodged a Form 18 with the Sheriff may obtain a copy of the panel or pool for use in accordance with the lawyer’s undertaking in the Form 18.
(4)A lawyer who has lodged a Form 19 with the Sheriff may obtain a copy of the panel or pool for use in accordance with the lawyer’s undertaking in the Form 19 in any case in which the lawyer acts for an accused.
The substance of Form 18 referred to in r 57(3) is an undertaking in the following terms:
I am a lawyer employed in the office of the Director of Public Prosecutions of the *State/Commonwealth. [*delete one]
I undertake to the Supreme Court that if I obtain a copy of any panel or pool of jurors referred to in the Juries Act 1957 section 30 -
(a)I will not permit the copy to be copied by any person by any means other than by a person employed in the above office for distribution to the Director of Public Prosecutions or a person employed in the above office;
(b)I will not permit the contents of the panel or pool or the identity of any person in it who is sworn as a juror to be divulged to any person other than the Director of Public Prosecutions, any lawyer instructed by the Director in a case, or any person employed in the Western Australian Police Service for the purpose of determining whether any person named in the panel or pool has a criminal record;
(c)I will not permit the copy to leave my custody except for the purpose of being copied under paragraph (a); and
(d)I will return the copy to the office of the Director of Public Prosecutions or of the Sheriff at or before the end of the sittings.
The Form 19 referred to in r 57(4), which applies to a lawyer acting for an accused person, contains an undertaking in the following terms:
I undertake to the Supreme Court that if I obtain a copy of any panel or pool of jurors referred to in the Juries Act 1957 section 30 -
(a)I will not permit the copy to be copied by any person by any means;
(b)I will not permit the contents of the panel or pool or the identity of any person in it who is sworn as a juror to be divulged to any person other than an accused for whom I act, or a lawyer acting as solicitor or counsel for an accused for whom I act;
(c)I will not permit the copy to leave my custody; and
(d)I will return the copy to the Sheriff’s officer in court immediately following the empanelment of the jury.
The scheme of the rule and the undertakings provided under it is clear enough. The prosecutor may have access to the panel or pool list for the purpose of making challenges and is expressly authorised to provide a copy of the list to the WA Police Service for the purpose of ascertaining whether any listed person has a record of criminal convictions. Presumably, depending upon how complete and accurate has been the process of removing the names of disqualified persons from the list, those shown as having criminal records may or may not be persons who are in fact disqualified. That information is not ordinarily available to a lawyer acting for an accused person. Their undertaking permits disclosure of the list only to an accused person for whom the lawyer acts.
The process can therefore be seen to be one, in terms of the Act and rules, designed to prevent jury vetting generally. Only a very limited process of that kind is permitted. I note that prosecuting counsel in this case would probably, technically at least, have breached the undertaking he no doubt gave if defence counsel had taken up the prosecutor's offer to make available to him a copy of the list marked up with the names of those persons identical with names of persons having criminal records. It can be seen that the statutory process is one which seeks to guard carefully such information and prevent its distribution in any way which might involve the danger that the privacy of a juror may be breached.
Nonetheless, the appellant submits, the provision of information about a juror's criminal record by endorsing a note on the list, and the provision of the list to a police officer to enable that to be done, involves the commission of an offence against the Juries Act. It is a practice, it is submitted, which cannot be authorised by r 57 of the Criminal Procedure Rules, which rule is ultra vires. I do not think this argument may be accommodated within ground 1, upon which the appellant requires leave to appeal, but the submission is, in any event, in my view, without merit.
Section 54 of the Juries Act relevantly provides:
The Supreme Court or a judge thereof may summarily inflict such fine as the court or judge deems fit upon the sheriff or other summoning officer, or any jury officer, clerk, police or other officer, who without lawful justification or excuse -
(a)…
(b)causes any alteration, omission, insertion, or misdescription in a jurors’ list, jurors’ book, jury summons, panel, card, or ticket; or
(c)subtracts, destroys, or permits any person to have access to, any jurors’ list, jurors’ book, jury summons, panel, card or ticket;
If one assumes for the sake of the argument that a clerk or police officer actually makes the notation of the existence of a criminal record on a jury list, that in my view, would not be to cause any alteration or insertion in the list within the meaning of s 54(b). Further, to permit a person to have access to the list would only become an offence under s 54(c) when it is done 'without lawful justification or excuse'.
As I have said, for the appellant it is argued that r 57 of the Criminal Procedure Rules cannot provide such lawful justification because it is ultra vires, the Criminal Procedure Act2004 (WA). It is submitted that the rule has the effect of enlarging the disqualifications set out in s 5(b) of the Juries Act 'under the guise of a peremptory challenge'.
In my opinion, the procedure in question is not an example of police officers being required to assist by the supply of information to the Sheriff, the electoral commissioner, any jury officer or summoning officer under s 17 of the Juries Act.
Rule 57 operates as an extension of the right of inspection of jury panels or pools for which s 30 of the Juries Act provides. It is an adjunct to the process of challenging jurors for which provision is made in s 104 of the Criminal Procedure Act. In my opinion, therefore, r 57 may be supported as a valid exercise of rule‑making power, by two sources of power, under the Criminal Procedure Act and the Juries Act. The Criminal Procedure Rules purport to provide rules which exercise the rule‑making power to be found variously in the Criminal Procedure Act, the Juries Act, the Criminal Appeals Act 2004 and the Sentencing Act 1995. Rule 57 is in Pt 13, headed 'Juries Act 1957 rules'.
There is an ample rule‑making power in s 124(1) of the Criminal Procedure Act. A superior court, in this case the Supreme Court:
may make rules of court to regulate the practice and procedure to be followed in the court in relation to all or particular cases that involve the court's criminal jurisdiction.
More specifically, s 61 of the Juries Act requires that the rule‑making powers under Pt X of the Supreme Court Act 1935 (WA):
include power to make such rules, and prescribe such forms, as are considered necessary or convenient for the purpose of carrying into effect the provisions of this Act.
That is a reference to s 167 of the Supreme Court Act and the power conferred by that provision upon the judges of the Supreme Court to make rules of court.
In my view, it is not appropriate to describe the process which is the outcome of the provision of information under and subject to the undertakings entered into under r 57 of the Criminal Procedure Rules as a process of enlarging the statutory disqualifications from jury service. So far as the prosecution is concerned, the process is one which builds on the provisions of the Juries Act to enable information relevant to the exercise of the prosecution's right of peremptory challenge, or indeed challenge for cause, to include information concerning a juror's criminal record, a matter which may well be relevant to the juror's suitability to serve as a juror generally or in a particular trial.
So far as the defence is concerned, it seems to me that the process is similarly directed to inform the right of peremptory challenge by an accused person. To know the juror's name, address and, where it is provided, occupation, may well be relevant to the exercise of the right of challenge. At the same time, the procedure provided for in the rule ensures that that information is not recorded and is only available during the empanelment process. In my opinion, r 57 is a valid exercise of rule‑making power.
Ground 1 discussed
As I have said, ground 1 does not complain directly of a miscarriage of justice arising out of the unlawful provision by the prosecution of the jury list to the police and their receipt in return of information about the criminal records apparently attributable to persons on the list. The ground complains of an error of law by the trial judge in that, it is asserted, the procedure adopted, which permitted prosecuting counsel to have access to information about the criminal records which may have been attributable to jurors for the purpose of considering peremptory challenges, deprived the appellant, 'of the opportunity of a fair trial by a jury of his peers'.
Reliance was placed upon two cases. The first is R v Sheffield Crown Court; Ex p. Brownlow [1980] 1 QB 530. This was an appeal which arose out of the refusal of an application for certiorari. Two police officers were being brought to trial, charged with assault occasioning bodily harm. They applied to the trial judge for an order directing the prosecution to inform the defence whether any members of the jury panel had criminal convictions, and if so, to give details. The trial judge made the order. The chief constable applied for certiorari. The application was refused on the basis that the trial judge was acting within his power provided under the Courts Act 1971 (UK) to make an order relating to trial on indictment. The appeal was dismissed by Shaw and Brandon LJJ, Ld Denning MR dissenting. All of their Lordships made some obiter observations about the desirability of the judge's order which, I emphasise, was that the prosecution should provide the defence with information in its possession, information obtained by a process authorised under guidelines introduced by the Attorney‑General in 1975.
Ld Denning MR expressed his views about the desirability of the order made, at some considerable length at 541 ‑ 543. Whilst he acknowledged that there were rival philosophies about the practice described as 'jury vetting', Ld Denning said he was opposed to the practice. He thought the parties must take the jurors 'as they come' (541), subject to the exceptions by way of disqualification, the exercise by the Crown of its right of 'standby' (a variant, which used to exist here, of the process of peremptory challenge) and the right of peremptory challenge exercised by the defence.
At 545 ‑ 546, Shaw LJ recognised the same processes, but expressed similar views to those of Ld Denning by saying:
It needs no elaborate argument to demonstrate that this user of such special knowledge would be an abuse as being contrary to the spirit and principle of jury service. It is possible to conceive of very special cases where the protection of the interests of the public at large demands that such knowledge should be sought and used. Even then it should not be sought or used without the sanction of the Attorney‑General who is ultimately responsible for the conduct of prosecutions by way of indictment.
Brandon LJ, at 547, said:
First, I have serious doubt whether there should be any jury vetting at all, either by the prosecution or the defence. Secondly, if jury vetting is to be permitted to the prosecution in certain categories of cases, however and by whomsoever those categories may be defined, it hardly seems just that it should not be permitted to the defence in any categories of cases at all.
The second case cited by the appellant is Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50. The case comes from Victoria, where the relevant legislation, the Juries Act 1967 (Vic), contained similar provisions to those to which I have referred above, but without a provision such as our r 57 of the Criminal Procedure Rules. In other words, there was no direct statutory authority for the process to which objection was taken in this case. Nonetheless, in Victoria the police have long followed a practice of the kind referred to above. The High Court held the practice to be unlawful, without any statutory power to back it.
However, by majority, Gleeson CJ, Gaudron, Gummow and Callinan JJ, McHugh and Kirby JJ dissenting, the court held that the Crown's right of peremptory challenge was validly exercised, irrespective of the reason or information upon which its exercise was based. There had therefore been no failure to observe the requirements of the criminal process. The jury was properly constituted. It was not unrepresentative, and it had been selected from a panel randomly chosen within the dictates of the law. In my respectful view, exactly the same observations may be made, a fortiori, about the process adopted in this case. Katsuno supports the conclusion, in my view, that while leave to appeal should be granted in relation to ground 1, the ground should not be upheld.
Jury vetting
Gleeson CJ, in Katsuno at 50 [5], contented himself with the observation:
Whether 'jury vetting' is desirable is a subject about which there are differing views. The expression covers a range of practices, which operate in different jurisdictions against a background of varying statutory provisions concerning such matters as access to information about the names of prospective jurors.
The other members of the majority were Gaudron, Gummow and Callinan JJ. They made no comment on the practice of jury vetting and its desirability per se. At 64 [51] their Honours recognised that in practice, in many cases, either the prosecution or defence would be likely to be in possession of information with respect to a juror that was not available to the other. Given that the panel was randomly and impartially selected, their Honours said, at 65 [51]:
It is at the next point, the point of selection of the jury to serve in a particular trial, that the defence, at least, will strive to achieve a jury that he or she believes will be susceptible to the submissions of the defence, or indeed even perhaps to such unlikely matters as the voice, the hairstyle or the appearance of the accused person. There are many theories and claims, some apocryphal and all untested in this country, about the susceptibilities of juries and the matters which should guide counsel in deciding whether to make a peremptory challenge. No matter how eccentric or illogical such theories may be, there is nothing in law to prevent prosecutors and defence counsel from giving effect to them in making peremptory challenges.
McHugh J, in his dissent, made no particular reference to jury vetting as a general process. For the appellant in this case, reliance is placed upon the observations of the other dissenting judge, Kirby J, at 90 ‑ 91 [117] ‑ [119], where his Honour referred to the practice in Victoria as involving enlarging the disqualification of jurors, 'by the back door by an arrangement between police and prosecutors extraneous to the Act' [117]. His Honour also referred to the information provided by the police as giving rise, 'to an inference that certain citizens, qualified in law to act as jurors, are, by imputed attitude or supposed unsuitability, to be effectively disqualified by the challenge of the Crown' [118].
With respect, this is clearly a topic upon which views may differ and it is unnecessary for the purpose of the decision of this appeal to express a concluded view upon the issue of jury vetting. For my part, I would only say that as s 5 of the Juries Act itself makes clear, disqualification to serve as a juror may be squarely related to the criminal record of the juror. In addition, ineligibility under the Second Schedule of the Act is attached to persons who are judicial officers of one sort or another, parliamentarians, justices of the police, police officers and the like, who may be perceived to be, in one way or another, lacking the capacity to impartially adjudicate as between prosecution and defence. In addition, of course, ineligibility or disqualification from service as a juror may attach to other persons who, by reason of age or infirmity, an incapacity to understand English and matters of that kind, may not be able to discharge their duties as jurors.
The jury vetting process authorised to the prosecution under r 57 of the Criminal Procedure Rules seems to me to be directed towards the ultimate aim of the process of exercising a right of peremptory challenge by the prosecution, to achieve a jury not only randomly selected from the community, subject to the provisions of the Juries Act, but one which is comprised of persons who have the apparent capacity to impartially resolve the issues in the trial as between prosecution and defence.
Was the verdict of guilty unreasonable or unable to be supported by the evidence?
Having dealt with ground 1, it is convenient next to turn to ground 4 because it will be necessary, in dealing with that ground, to examine the evidence at trial. The point is made that for the jury to convict the appellant it had to accept the evidence of the victim, Prime, as a truthful and reliable account of what occurred to him, and that it was the appellant who wounded him with the home‑made knife known as a 'shiv'. The respondent argues that it was open to the jury to accept Prime's evidence, and if they did so, as they apparently did, it is put that the nature of his wounds and the other evidence provided a strong case to support, beyond reasonable doubt, the conclusion that the appellant wounded Prime, intending to do him grievous bodily harm.
Prisoner Officer Scott became involved at the time of the lockdown and the search. With other officers he searched the day room or dining room. In a plastic container he thought may have contained corn flakes he found a home‑made knife, a shiv, made out of one half of a set of fabric cutters or shears, attached in some way to a handle. An example of the shears was shown to him. The cutting portion of the implement is sharp pointed. It does not look like the blade seen and drawn by Prime. So this may have been a second weapon. Whether it had anything to do with the case is unclear, but like the first, it was no longer to be found by the time of trial.
A witness named Buscombe was called. At the relevant time, he was stationed at the Albany Prison and occupied the position of Deputy Superintendent of Security. It therefore fell to him to undertake an investigation of the incident which had caused Prime's injuries. He interviewed prisoners accommodated in A Yard, eight or ten of them, possibly more, including Hunt, who was also searched. Hunt denied any involvement. No prisoner he interviewed was prepared to make an official statement, although they were prepared to speak 'off the record' (ts 252).
Mr Buscombe said that he recalled being shown a home‑made knife, which was allegedly that used in the wounding of Prime. He expected it would be placed in an evidence bag and secured in the safe in the security office, so that it might ultimately be handed to investigating police. When asked if there were any records at the prison in respect of any item so found, he answered, 'Yes, there would be' (ts 254). He said he had not had recourse to those records. The witness explained that he had left Albany Regional Prison shortly after this incident. By the time of the trial, he was Deputy Superintendent of Hakea Prison. He said a record of what would be found, described as 'forensic items', would be in electronic form on computer so they might be accessed by the part‑time prosecutor in the prison.
I gather that by a 'prosecutor', Mr Buscombe was referring to a prison officer who would prosecute disciplinary complaints before the superintendent, a visiting justice of the peace or magistrate. Mr Buscombe had not been asked to look for any relevant items or records. He said that he would expect them to be referred to the police for forensic examination, so that if an offender could be identified in that way, prosecution action might be taken. But he had no knowledge as to whether or not that occurred.
Mr Buscombe suggested that, presumably as in the case of other prisoners, Hunt was searched before he was interviewed. Buscombe thought it was probably, 'a pat‑down search' (ts 258). Hunt's cell was searched, but Mr Buscombe suggested that did not happen with the cells of all the prisoners. He said he noticed no blood on Hunt's hands or elsewhere on his person.
In short, apart from a manufactured knife being found in the dining room, Mr Buscombe received no report of anything else in the way of a weapon being found, and he received no report of any blood being observed on any prisoner or their clothing. Mr Buscombe thought that only one weapon had been found in the dining room (ts 261).
Mr Reeby was called. By the time of the trial he was the Superintendent of the Albany Regional Prison, but he had been stationed there as a prison officer since 1988. He was appointed as security manager of the prison in 1998. He took over from Mr Buscombe, who had been acting in that position. It appears that it was at the time of the handover, while both men were at the prison, that Prime was wounded. Mr Reeby knew both Prime and Hunt. He identified the muster sheet for Friday 14 August 1998. It showed the surnames of the occupants of the 24 cells on either side of A Yard. There were 28 inmates. The muster sheet became exhibit 11. Mr Reeby said that he had himself added the prisoners' given names, dates of birth and what he knew of their present whereabouts, for a Detective Fuderer when the police investigation eventually got underway. It was Mr Reeby who, from the muster sheet, was able to identify that Prime occupied cell 14 and Hunt occupied cell 9.
Mr Reeby was involved in the initial investigation by prison officers. He interviewed Prime. But neither Prime nor any other occupant of a cell in A Yard was prepared to make a statement or assist in any way. Mr Reeby was made aware that a shiv had been found in the dining room. He said that was taken by the police, who also took some clothing (ts 268). Mr Reeby thought that was the weapon handed to him by Officer Edgeworth‑Kelly.
Mr Reeby said there would be a record of the knife being given to the police, but although the prison had 'most of the stuff' (ts 271), he had not been able to locate a record of the handover of the knife and some clothing to the police. As to the records or reports made by prison officers involved in the initial investigation, Mr Reeby was asked if he knew whether in fact they had been lost. He answered:
I haven't been asked for them and I don't know where they are. They'll be filed somewhere, but I have never been asked to produce them (ts 272).
Detective Sergeant Fuderer (as he was at the time of the trial) was called. He said he had been stationed in Albany from 2001 to 2005. In March 2003 he was handed the inquiry into Prime's complaint. He consulted the police file, which recorded an investigation by a Detective Humphries in 1998. Exhibits had been provided. Prime was spoken to, but he did not want the police to be involved. The exhibits were returned to the prison and the investigation was closed. When Fuderer reopened the inquiry he attempted to locate the items which had been returned to the prison, but was unsuccessful. The contemporaneous record made by the forensic officer in Albany at the time showed that the items in question were a shirt, a jacket and two knives. The logbook showed that they had been returned to the prison on 1 September 1998. Apparently they were photographed, according to the logbook, but no photographs were found. Nor was there any record of any other testing or forensic examination.
There was further delay before the appellant was charged on 15 March 2006. He was established to be out of the state and the police, necessarily, were then obliged to wait, on the off‑chance of his return to WA. Fuderer said that in the course of his investigation he had received, in electronic form, copies of the relevant records and reports made by prison officers.
When cross‑examined, Fuderer said that he assumed that the shirt and jacket were Prime's. Those items and the knife could have been tested by the forensic officer to identify blood types, DNA and fingerprints, but the record did not indicate that any forensic testing of any kind had been performed. Fuderer said that Detective Humphries' report should have revealed the results of any testing, but there was nothing in it beyond that the investigation commenced on 14 August 1998, that Prime was interviewed, that he wanted no police action, and that the investigation was written off on 17 August, the property which had been received being returned on 1 September 1998.
The prosecution then closed its case. That case included no confessional evidence. The appellant elected not to give evidence or call any witnesses.
Ground 4 may not succeed
The prosecution case obviously depended almost entirely upon Prime. If he was not accepted as a witness of truth, then upon no other evidence could the prosecution establish guilt beyond reasonable doubt. The crucial issue was whether Prime's nomination of the appellant as the man who stabbed him was truthful. If so, it was clear on all the evidence that he had been unlawfully wounded, and there was ample evidence in the form of the evidence of the nature and site of the chest wound, and what Hunt said to him at the time of the attack, to establish that the wounding was with the intention, at least, to do Prime some grievous bodily harm. In addition, there was the nature of the weapon, as described both by Edgeworth‑Kelly, who found it, and Prime.
Prime had explained why he delayed in making the complaint, and why he made it when he did. He did not deny that he made his complaint at a time when he was pursuing a claim for criminal injuries compensation. But it was well open to the jury to accept that the reason he gave for making the complaint when he did was genuine, and that it was not a false complaint designed to bolster his claim for compensation.
Prime was established to have described inconsistently at different times the weapon used, and the account he had given of precisely what occurred when he was attacked in his cell, but none of these matters precluded acceptance of the essential elements of his story.
As to the bleeding from the chest wound, it might, perhaps, have been accepted that there would be blood on the person or clothing of his assailant. None was observed on Hunt. But it was not necessarily the case that the failure to see blood on him or the clothing he was wearing when he was patted down later, precluded acceptance of Prime's evidence that Hunt was the assailant.
There was ample evidence that someone opened the door of the cell with some force. The noise attracted the attention of a number of prison officers. I would consider the question of who left the cell first to be rather a peripheral matter. If Prime's evidence that he left first was not accepted, to my mind that did not preclude acceptance of his evidence otherwise.
There was evidence from prison officers capable of establishing that Hunt was observed in the general vicinity of Prime's cell. There was evidence that he appeared to be moving towards his cell from the vicinity of Prime's cell and later that he was walking towards the dining room. There was no evidence to establish that Hunt hid the weapon, or either or both weapons, in the day room or dining room. There was simply no evidence to establish who did that or when it was done. The evidence of prison officers went no further than to confirm that Hunt was one of a number of prisoners who had the opportunity to commit the offence.
In short, this is not, in my opinion, a case where the evidence capable of supporting the conclusion of the appellant's guilt beyond reasonable doubt contains such discrepancies or inadequacies as to preclude its acceptance. It was open to the jury to accept a body of evidence which would establish guilt beyond reasonable doubt. This is not a case where the jury must have entertained such a doubt. Ground 4 is, in my opinion, not made out.
A warning about the significance of delay
Ground 2 refers to various decisions of the High Court, the earliest being Longman v The Queen (1989) 168 CLR 79, all of which are sexual assault cases concerned with the need to give a warning in relation to the evidence of the complainants in the particular circumstances of those cases. Because this case involves such completely different factual circumstances, it is useful to commence the consideration of this ground by recapitulating the general principle involved, because it may be accepted that warnings of the type under discussion are not specially concerned with the evidence of complainants or children in sexual cases.
The ground does not identify the nature of the warning which it is submitted was required in this case, nor do the submissions filed in support of the ground, beyond the proposition that the delay involved in prosecuting this case denied to the appellant, 'the forensic weapons that reasonable contemporaneity provides'. This was said, in this case, to constitute, 'a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions'. All that is said about what precisely was required, in the appellant's submission, was that:
The fact that there was only one witness asserting the commission of the crime, justified a warning that the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.
In other words, it appears to be the assertion that the circumstances of this case justified a type of corroboration warning as defined in s 50 of the Evidence Act 1906 (WA) that it would be unsafe to convict in this case upon the uncorroborated testimony of the complainant Prime.
Here we are concerned with a suggestion that, in the circumstances of this case, there was a duty upon the trial judge, which his Honour failed to observe, to give a specific warning or instruction to the jury as to how they were to approach an evaluation of Prime's evidence, as opposed to commenting upon that evidence and the specific points of weakness or difficulty which it presented. What was required in this case, it was submitted, was a specific instruction or direction, given with the authority of the judge's office, which the jury would clearly understand they were bound to obey: Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1, 377 [16], per Gleeson CJ, Gummow, Kirby and Kiefel JJ.
It may be assumed, I think, that what is sought in this case is a warning or instruction of the kind to which Brennan, Dawson and Toohey JJ referred in Longman at 91, when their Honours said:
The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.
It was clear in that case, as their Honours observed, that the delay was of such length that the complainant's evidence as to the commission of the offences could not, in the circumstances of the case, be adequately tested. The trial judge was asked to give a warning about the danger of acting upon the evidence in those circumstances, but he declined to do so, relying on the provision then in the Evidence Act, specifically with respect to sexual assault cases, which is now contained in substantially the same terms, but with general application, in s 50. His Honour said simply that counsel could make appropriate comments about the issue in their respective final addresses, with the result, therefore, as the High Court observed at 91, that the jury were left, 'without either a warning or a mention of the factors relevant to the evaluation of the evidence'.
I think it is fair to say that to refer to the warning or instruction required as a Longman warning is apt to be misleading. There is, in the cases, a clear identification of principle as to the circumstances when, and the terms in which, a special direction, instruction or warning must be given by a trial judge to a jury to guard against a perceptible risk of a miscarriage of justice occurring in the particular circumstances of the case, because the court perceives the existence of the risk in circumstances where the jury may not.
A recent example of the statement of the general principle involved is Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234. The case was concerned with the warning which may be required in relation to evidence of uncharged acts where sexual offences are alleged to have been committed upon a child: see Kirby J at [44] ‑ [49], Hayne J at [73] ‑ [79] and [89 ‑ [92], and Crennan J, with whom Heydon J agreed, at [178] ‑ [180].
At 289 [184] Crennan J said:
No forensic disadvantage of a kind which a jury may not appreciate arises automatically because of delay, or because the evidence is uncorroborated evidence of sexual misconduct, or because of the complainant's youth.
Crennan J expressed her conclusion that there was no necessity for a warning in the circumstances of that case at 289 [186]. Her Honour said:
There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant's evidence, could all be evaluated by the jury in the light of their own experiences. Therefore it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice.
As will appear, in my view, such remarks are apposite to the circumstances of this case.
There have, of recent times, been a number of cases in this court where the court has been at pains to identify the overarching principle to which I have referred above, which may usefully be applied by trial judges in a variety of factual circumstances concerned with different kinds of evidence, to establish when a special warning or an instruction is required to be given to the jury and the terms in which such a direction should be delivered.
Those cases culminate in the case of Collard v The State of Western Australia [2008] WASCA 47. That again was a case of sexual offences allegedly committed against a child. A Longman warning had been given, concerned with the forensic disadvantage demonstrated in that case in relation to testing the complainant's evidence, having regard to the delay in making the complaint. The contention on appeal was that the warning was inadequate because there were a number of other matters affecting the reliability of the complainant's evidence to which the trial judge made no special reference by way of instruction or direction.
Wheeler JA again, as her Honour had done in previous cases, reviewed various authorities bearing upon the issues raised by way of submissions to the Court of Appeal. Her Honour summarised her conclusions about those matters in terms which reflect the application of the general principle at [100] ‑ [101]:
In a case of alleged sexual abuse of an adult complainant, who was a child at the time of the abuse, neither binding authority nor logic nor judicial experience require that a trial judge must necessarily warn a jury about any of the following factors:
(a)inconsistencies internal to the complainant's evidence;
(b)inconsistencies between the evidence of the complainant and that of other witnesses;
(c)depression, self-harm or similar mental states on the part of the complainant;
(d)evidence that the complainant was asleep prior to the commission of the offences;
(e)evidence that the complainant delayed in complaining of the abuse.
It may be necessary to warn a jury in relation to any or all of these matters only where there is reason to believe that, in the particular circumstances of the case, the factor gives rise to a danger of which jurors would otherwise be unaware or would not appreciate. Such cases are likely to be rare.
Buss JA referred to his Honour's review of authority in previous cases. His Honour stated the general principle at [121]:
In my opinion, the authorities require that a trial judge must warn the jury as to the need for careful scrutiny of the complainant's evidence whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice in relation to the assessment of his or her evidence which arises from the circumstances of the case. The necessity for such a warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the complainant or his or her evidence.
For my part, I have found it useful in this case to remind myself of the view expressed in similar terms to which I came after a similar process of reviewing authorities concerned with a variety of factual circumstances and types of evidence, in Cecez v The State of Western Australia (2007) 35 WAR 344; [2007] WASCA 260, in which case I expressed my conclusion, at 392 [220] ‑ [221], as follows:
It amounts to this, I think. As part of the trial judge's function to direct the jury as to the law and make such observations about the facts as are required to secure a fair trial, in accordance with the general statement of the duty by the High Court in Alford v Magee (1952) 85 CLR 437 at 466, when the real issues in the case are identified, the trial judge will be obliged to consider, in relation to matters of fact and evidence, whether any, and if so what, instruction should be given to the jury if a perceptible risk of a miscarriage of justice is to be avoided. The instruction to be given should be one related specifically to the issue identified and the circumstances of the case. It should be an instruction designed to assist the jury to understand how to approach a particular body of evidence, any limitations there may be as to how it may be used and as to how they may reason, having regard to the evidence, upon the issue of the guilt of the accused.
An instruction or warning will be required where the experience of trial judges reveals a danger to the process of achieving a fair trial which the jury may not appreciate. If that is not the case, no special instruction or warning is required to avoid a miscarriage of justice and the trial judge will not err if no special instruction is given, but the jury is left to their fact-finding task guided by their own wisdom and experience. In my view, it may be added that unless the circumstances positively call for a special instruction or a warning, the judge should do no more than remind the jury of the issues truly raised by the case which will require their decision.
It is important to bear in mind always, in my opinion, that a trial judge may err and a miscarriage of justice will be established, (1) by a failure to give a special warning or instruction where that can be seen to be required to avoid a perceptible risk of a miscarriage of justice of which the jury may be unaware, (2) by failing to give a warning or instruction in appropriate terms tailored to meet the particular circumstances of the case, and (3) by giving a warning or instruction in a form which the jury will understand they must obey, when no such direction is, in truth, required. In the last‑mentioned case, the judge errs by the intrusion into the fact‑finding function of the jury where they may be left, as Crennan J put it in Tully, to evaluate the issues which arise in the light of their own experience.
The course taken by the trial judge
I observe at the outset that defence counsel made no request of the trial judge that his Honour give a warning in terms which, as I understand the submissions, are now sought. Counsel did request of the trial judge that in his Honour's review of the evidence reference should be made to the amount of blood which ought to have been visible to the people in A Yard at the material time, and the need to emphasise differences in the evidence of particular witnesses. Of course, it is the responsibility of the trial judge to give the appropriate directions and instructions which are required and, if a miscarriage of justice has occurred, the fact that counsel did not at the trial draw the judge's attention to the omission, will not prevent this court from intervening: Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 per McHugh J at 198 ‑ 199 [83] ‑ [84].
When charging the jury, the trial judge reminded them that there had been a delay of nearly 8 years before the allegation came to the attention of the appellant. His Honour gave the usual general directions about the process of evaluating the testimony of a witness and the jury's decision about whether it might be accepted, wholly or in part. The process of testing the witness by reference to prior inconsistent statements was discussed, particularly in relation to the witness Prime. The nature of the inconsistencies between Prime's evidence and his out‑of‑court statements were precisely identified. Their impact upon the jury's decision about the credibility of Prime was, of course, left to them.
His Honour summarised the evidence given by each witness and referred specifically to the inconsistencies between their different accounts. His Honour told the jury, appropriately, that it was for them to decide whether the differences were to be accounted for by the speed of the events and the different vantage points of the witnesses, and whether the differences and inconsistencies they found to exist were such as to be of real significance in relation to accepting as accurate what a witness said.
When his Honour came to review the arguments put by the defence he said:
Defence counsel, in the course of both his opening and closing addresses, put to you that the evidence assembled in 1998 has been lost or destroyed and with the passage of time memories of the matter are unclear. Contemporary reports and items seized in the search have not been produced to the court and there are some indications that they either can't be located or have been lost.
…
Counsel rounded off his opening address by suggesting that the accused was placed at a severe disadvantage in trying to deal with charges like this after a lapse of eight years (ts 324).
The trial Judge then immediately undertook a review of the arguments and criticisms of the evidence and its inadequacies which had been presented by defence counsel. He frequently referred to material portions of the transcript in relation to the points being made. His Honour did not dissent from the validity of such arguments. He reminded the jury that he had already summarised the evidence of the witnesses and referred to its imperfections. He said:
I have touched upon various things to keep in mind in evaluating evidence. In essence, you must finds the facts upon the basis of the evidence and you must evaluate the evidence carefully and you must weigh up the credibility and reliability of the various witnesses. Remember, you cannot make a decision adverse to the accused unless you find the facts against him proved beyond reasonable doubt (ts 325).
His Honour closed his observations about matters of fact in the same way, referring, quite neutrally, to the criticisms of the evidence advanced by the defence. His Honour said:
You must take into account the evidence in favour of the accused and the case put in his defence as defence counsel has put it to you in the course of his closing and opening addresses and in the course of cross‑examining the various witnesses. All that must be considered as you determine whether the case has been made out (ts 334).
A Longman warning was not required
What was missing in the way that the trial judge dealt with the evidence by way of comment and instruction was the specific observation that it would be unsafe to convict the appellant upon Prime's evidence which, as I have said, had peripheral support in the evidence of some prison officers, unless, having scrutinised Prime's evidence with great care, they were satisfied of its truth and accuracy. However the truth and accuracy of Prime's evidence was undoubtedly the primary issue of fact for the jury's decision and they could not have failed to be aware of that and of the central importance of his evidence to the prosecution case. It was he alone who identified the appellant as his assailant.
What was not lacking in this case was a careful review by the trial judge of the matters which had been raised bearing upon the evaluation of Prime's testimony. As has been seen, that was a factor in the High Court's reasoning in Longman, where at (91) their Honours referred to the lack of a mention by the trial judge 'of the factors relevant to the evaluation of the evidence'. Here the trial judge carefully reviewed the evidence and the defence arguments in respect of it and, while leaving the matter in the hands of the jury for their decision, his Honour effectively endorsed the defence arguments by telling the jury that in making a careful evaluation of the evidence they must have regard to the arguments presented by defence counsel in opening and closing the case.
That to my mind presented the matter most favourably from the point of view of the appellant. It must be said that while in his opening statement defence counsel referred to the grave effect of the lapse of time upon the memories of witnesses, he did not by cross‑examination make that good, except in the case of Dr Leggett, who made it plain, as I have said, that he had no memory of the matters about which he testified beyond those facts recorded contemporaneously upon his examination of Prime immediately after the event.
Counsel said in opening that the appellant's memory had been gravely affected so that he was not now in a position to say what, at the time when it was alleged he attacked Prime, he had been doing and he was not in a position to show that he was not involved. As I have noted, the appellant chose not to give evidence and there was no out of court statement by him adduced in evidence. The trial judge treated the appellant gently in that regard by saying nothing about the failure to make good what had been said in the opening statement.
It was not established that contemporaneous reports made by prison officers as the result of the initial investigation were not available if required, although the use to which they might be put would be limited to testing the credibility of prison officers who were the authors of such reports, to the extent that the reports contained prior inconsistent statements of relevant facts admissible in evidence. As has been seen, to a real extent, for good reason counsel chose to rely upon aspects of that body of evidence to demonstrate inadequacies in the evidence given by Prime, who, having regard to forensic considerations, was rightly the focus of defence counsel's challenge to the prosecution case.
What had been lost or destroyed was the shiv with blood on it and the two items of clothing, which Fuderer assumed were items worn by Prime, but which no doubt may have been worn by Hunt and taken from him.
As to the blood, there was no suggestion that Prime's attacker had been wounded in the course of the incident. The blood on the knife might therefore have been found to be that of Prime, as might any blood which may or may not have been on the items of clothing. It might therefore have been the case that the prosecution was deprived of some evidence in relation to the clothing which might have helped to link Hunt with the attack, but all of that is of course pure speculation.
So far as analysis for DNA and an attempt to identify fingerprints on the shiv were concerned, of course, had that been done there may or may not have been evidence of some significance in that regard which may have tended to some extent against a conclusion that Hunt was the assailant, but again, whether or not such evidence may have been available was a matter of pure speculation, as it is now.
The point of this discussion is to identify what is said to be the loss of evidence said to constitute the forensic disadvantage confronting the appellant as a result of the passage of time. The significance of such evidence as there may have been lost (and there may have been none) must have been clear to the jury, who, as has been seen, were warned by the trial judge not to speculate and were reminded that their decision about the facts as they found them to be, must be made upon the evidence which they had before them.
The jury cannot have been unaware of the potential significance of Prime's long delay in making his complaint and of the fact that at the time when he did so he was pursuing a criminal injuries compensation application. I can see nothing in the material relied upon to establish a risk of a miscarriage of justice perceived, or which should have been perceived, by the trial judge, but of which the jury would be unaware. This was, in my respectful opinion, a classic case where the jury were properly left to evaluate the testimony and make their decision guided by their own wisdom and experience. I would not uphold ground 2 and it follows that I would dismiss the appeal.
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