JDF v The State of Western Australia

[2018] WASCA 168

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JDF -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 168

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   21 MARCH 2018 AND WRITTEN SUBMISSIONS COMPLETED ON 27 AUGUST 2018

DELIVERED          :   27 SEPTEMBER 2018

FILE NO/S:   CACR 231 of 2015

BETWEEN:   JDF

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GOETZE DCJ

File Number            :   IND 148 OF 2015

Catchwords:

Criminal law - Appeal against conviction - Appellant failed to file appellant's case - Springing order - Extension of time for compliance - Whether further extension of time should be granted - Turns on own facts

Legislation:

Criminal Code (WA), s 320(2), s 321(2), s 321(7)(b)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr J A Scholz

Solicitors:

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

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

Huggins v The State of Western Australia [2018] WASCA 61

JDF v The State of Western Australia [2016] WASCA 221

Wharton v The Queen [No 2] [2015] WASCA 176

JUDGMENT OF THE COURT:

1. Before the court is the appellant's application filed on 2 November 2017 to extend the time to comply with a springing order made by Mazza JA on 24 August 2016. 

Background

1. The appellant was tried in the District Court before Goetze DCJ and a jury on 10 counts in an indictment which alleged sexual offending against a girl, C.  C was born in June 1997.[1]  The appellant was convicted on counts 1, 2, 3, 4 and 6.  He was acquitted on counts 5, 7, 8, 9 and 10.  The counts on which he was convicted are as follows. 

   [1] Exhibit 8.

2. Count 1 alleged that, on an unknown date between 10 March 2010 and 19 June 2010 at a Perth suburb, the appellant sexually penetrated C, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Criminal Code (WA) (the Code).

3. Count 2 alleged that, on the same date and at the same place as in count 1, the appellant sexually penetrated C, a child under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 320(2) of the Code.

4. Count 3 alleged that, on a different unknown date between 10 March 2010 and 19 June 2010 at a Perth suburb, the appellant sexually penetrated C, a child under the age of 13 years, by penetrating her vagina with his penis, contrary to s 320(2) of the Code.

5. Count 4 alleged that, on an unknown date between 20 June 2010 and 20 May 2012 at a Perth suburb, the appellant sexually penetrated C, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, and that C was then under his care, supervision or authority, contrary to s 321(2), read with s 321(7)(b) of the Code.

6. Count 6 alleged that, on a different unknown date between 20 June 2010 and 12 May 2012 at a Perth suburb, the appellant sexually penetrated C, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, and that C was then under his care, supervision or authority, contrary to s 321(2), read with s 321(7)(b) of the Code.

7. Of the counts which were the subject of acquittals, counts 5, 7 and 8 alleged that he had indecently recorded C, a child of or over the age of 13 years and under the age of 16 years, by taking an indecent photograph of her, and counts 9 and 10 alleged that the appellant had indecently dealt with C, a child of or over the age of 13 years and under the age of 16 years, by sucking her neck.

8. On 10 December 2015, the appellant was sentenced to a total effective sentence of 8 years 6 months' imprisonment with eligibility for parole. 

9. The appellant appealed against conviction and sentence.  On 14 December 2016, the appeal against sentence was dismissed.  See JDF v The State of Western Australia.[2]

   [2] JDF v The State of Western Australia [2016] WASCA 221.

The procedural history

1. On 30 December 2015, the appellant filed, in person, notices of appeal against conviction (CACR 231 of 2015) and sentence (CACR 232 of 2015). 

2. The appellant's case in each appeal was due to be filed and served on 10 March 2016.  The appellant did not file this document in either appeal by the due date.  Consequently, in accordance with this court's usual procedure, the appeals were listed for directions before a single judge. 

3. At a directions hearing on 20 April 2016, the appellant said that he had received a grant of legal aid for a barrister, Ms Lonsdale, to provide him with an opinion as to the merits of his appeals.[3]  However, that opinion had not, at that time, been provided to him.  The proceedings were adjourned to a further directions hearing on 24 May 2016, to enable the appellant to contact Ms Lonsdale.  A direction was made to the coordinator of the Court of Appeal office to provide her with a transcript of the day's proceedings.[4]

   [3] Directions hearing, 20 April 2016, ts 3.

   [4] Directions hearing, 20 April 2016, ts 4.

4. On 19 May 2016, the court received an undated letter from Ms Lonsdale.  She confirmed that she had been given a grant of legal aid to provide the appellant with an opinion as to his prospects of success in both his appeals.  She said that, on 19 May 2016, she spoke to the appellant and advised him that she was unable to assist him further, but that she would ask the Legal Aid Commission of Western Australia to consider providing him with aid to obtain advice from another lawyer. 

5. A further directions hearing took place on 24 May 2016.  The appellant said that he would be unable to represent himself in the appeals and that he needed help to complete his appellant's cases.[5]  Mazza JA requested Ms  Farley SC, the lawyer in charge of the appeals section at the Legal Aid Commission of Western Australia to, if possible, assist the appellant to prepare his appellant's cases.[6]  The proceedings were adjourned to another directions hearing on 21 June 2016.

   [5] Directions hearing, 24 May 2016, ts 7.

   [6] Directions hearing, 24 May 2016, ts 8 ‑ 9.

6. On 21 June 2016, Ms Farley advised the court that another grant of legal aid had been given to a private lawyer, Mr Ryan.  Ms Farley said that she had spoken to Mr Ryan, who confirmed that he had been given all of the papers necessary to draft an appellant's case.  Ms Farley suggested that appellant's cases could be filed by 2 August 2016.  Orders were made in each appeal, extending the time for the appellant to file and serve his appellant's case to 4.00 pm on 2 August 2016.[7] 

   [7] Directions hearing, 21 June 2016, ts 13.

7. On 3 August 2016, Mr Ryan filed a lawyer's notice of acting and an appellant's case in relation to the appellant's appeal against sentence.  In a letter which accompanied the documents, Mr Ryan advised that his firm was not instructed to act in relation to the appeal against conviction.

8. On 24 August 2016, a directions hearing took place to discuss the appeal against conviction.  The appellant claimed that he had provided Mr Ryan with an appellant's case.  However, Mr Ryan informed the court that he had not received the document.[8]  The appellant sought further time to file his appellant's case.  He confirmed that he had been provided with a self‑represented litigant's kit from the Court of Appeal office which contained the relevant forms.  Mazza JA noted that he had been in default of the requirement to file an appellant's case since 10 March 2016.  Mazza JA proposed giving one further extension of time on the basis that, if he failed to file an appellant's case within time, the appeal would be dismissed.  The appellant said he had no objection to this course.[9]  The appellant confirmed that an extension of six weeks would be sufficient.[10]

   [8] Directions hearing, 24 August 2016, ts 18.

   [9] Directions hearing, 24 August 2016, ts 20.

   [10] Directions hearing, 24 August 2016, ts 20.

9. On 24 August 2016, the court made a springing order in these terms:[11]

   The time for the appellant to file and serve his appellant's case in his appeal against conviction is extended to 4 pm on Wednesday 5 October 2016, failing which, pursuant to rule 43, subrule (2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005, the appeal will be dismissed.

   [11] Directions hearing, 24 August 2016, ts 20.

10. Immediately after the making of the order, the appellant confirmed that he understood the consequence of a failure to file his appellant's case by 4.00 pm on 5 October 2016.[12]  

    [12] Directions hearing, 24 August 2016, ts 21.

11. On 3 October 2016, the appellant filed an affidavit.  The affidavit is brief and could not, either in substance or form, constitute an appellant's case.  The appellant failed to comply with the springing order.  No appellant's case was filed by 4.00 pm on 5 October 2016.  The appellant does not dispute his default.[13]

    [13] Appellant's submissions, filed 15 February 2018, page 6.

12. On 13 October 2016, a certificate of conclusion of criminal appeal was signed by the Acting Court of Appeal Registrar and duly sealed.

The application to extend time

1. On 2 November 2017, almost 13 months after the time for compliance with the springing order had expired, the appellant filed an application dated 12 October 2017, seeking '[a] re‑opening of the Appeal process'.  In support of the application, he filed an affidavit sworn 26 October 2017 in which he sought to explain his failure to file his appellant's case.  The affidavit is brief and is (omitting formalities) in these terms:

   (a)I decided to cancel my original appeal against conviction on the basis that I did not receive adequate [sic] from my legal representative at the time, therefore I was confused about how I should proceed;

   (b)At the time I was experiencing considerable mental health issues that robbed me of my motivation and confidence;

   (c)My literacy skills are not of an adequate standard and accordingly I felt disempowered and isolated with the skills to put my case as a self‑represented person;

   (d)There are compelling issues in my case that were not addressed in the primary court that would warrant an appeal in this matter;

   (e)I now have the resources and support to enable me to launch an appeal if given that opportunity.

2. On 21 November 2017, a directions hearing was conducted by Mazza JA with respect to the appellant's application which his Honour took to be, in substance, an extension of time to comply with the springing order.[14]  His Honour made the following orders:

   1.The appellant file and serve any affidavit he wishes to rely on and any submissions in support of the application filed on 2 November 2017 by no later than 4.00 pm on Friday, 22 December 2017.

   2.The respondent file and serve any affidavit it wishes to rely on and its submissions in response by no later than 4.00 pm on 22 January 2018.

   3.The appellant file and serve any submissions in reply by no later than 4.00 pm on 21 February 2018. 

   [14] Directions hearing, 21 November 2017, ts 24.

3. On 20 December 2017, the appellant filed an affidavit sworn 14 December 2017 and a document headed, 'Submission'.  In neither document did the appellant explain either the reasons for his failure to file his appellant's case or for the delay in bringing the application to extend time.  The affidavit and 'Submission', when read together, in substance, assert that the appellant suffered a miscarriage of justice by reason of the conduct of his trial counsel.  In broad terms, the appellant alleges that defence counsel failed:

   (a)to take proper instructions from him;

   (b)to call various witnesses who, it was suggested, would have assisted the defence case; and

   (c)to identify certain aspects of the defence case.

4. On 22 January 2018, the respondent filed its submissions in response.  In those submissions, the respondent noted that the appellant did not, in his affidavit sworn on 20 December 2017, address his failure to comply with the springing order.  Further, the respondent submitted that nothing in the affidavit or 'Submission' revealed that the appellant had a reasonably arguable case on the merits.  The respondent submitted that defence counsel represented the appellant competently and that much, if not all, of the evidence that the appellant claims his counsel should have adduced was either irrelevant or inadmissible.

5. In the appellant's submissions in response, filed 15 February 2018, the appellant, in substance, repeated much of what he had set out in his 'Submission'.  He addressed the question of why he had failed to comply with the springing order.  He said that, at the time, he was suffering from significant and long‑running mental health problems, stress and anxiety.  Once incarcerated, he found it difficult to cope with prison life and received no legal assistance in the preparation of his case.  Further, he has literacy problems and is suffering from Crohn's disease and bleeding from the bowel.

6. At the hearing of the appellant's application on 21 March 2018, the appellant made a number of factual assertions, unsupported by the evidence, designed to impugn the jury's guilty verdicts.  The court put him on notice that these assertions from the bar table were not evidence.[15]  The appellant indicated that he wished to put forward 'paperwork' he had received from the police which had not been adduced at his trial.  At the conclusion of the hearing, the court made orders giving the appellant leave to file and serve an affidavit annexing a police report by 10 April 2018, along with any submissions he wished to make in respect of this documentation. 

   [15] Appeal ts 32.

7. On 6 April 2018, the court received an affidavit sworn 4 April 2018 from the appellant annexing documents other than those specified in the court's order made at the hearing of the appeal.  On 10 April 2018, the court received a letter from the appellant enclosing the same documents which were annexed to the affidavit sworn 4 April 2018.

8. Later, when the court informed the appellant that the documentation had not been accepted for filing because it did not comply with the order made on 21 March 2018, the appellant advised that the police report to which he referred at the hearing on 21 March 2018 was a juvenile caution certificate which had been issued to the appellant by the WA Police on 2 April 2012 in respect of C.  On 8 August 2018, the court made an order allowing the appellant to file and serve an affidavit annexing the juvenile caution certificate, together with written submissions as to its relevance, by 20 August 2018.  The court also gave liberty to the respondent to file and serve written submissions in response by 31 August 2018. 

9. On 20 August 2018, the appellant filed an affidavit annexing the juvenile caution certificate, along with a document headed 'Explanatory Note' which purported to explain the relevance of the juvenile caution certificate.  In essence, the juvenile caution certificate showed that C had assaulted a female student at her school in a fight and that she carried a knife to the school.  Further, the fact that he had been called to Midland police station and attended there with C showed that C was not uncomfortable in his presence or that he had behaved inappropriately toward her.

10. On 27 August 2018, the respondent filed submissions, to the effect that the information provided to the court was insufficient to justify an extension of time to comply with the springing order.

The statutory framework

1. The statutory framework applicable to this application was set out in Wharton v The Queen [No 2].[16]  We adopt what was written on that occasion without repeating it. 

   [16] Wharton v The Queen [No 2] [2015] WASCA 176 [40] ‑ [47].

2. In Wharton v The Queen [No 2], this court explained that this court has the power to extend time for compliance with a springing order, even though the time for compliance has passed.[17]  The court stated the matters to which it will have regard when considering whether to extend the time for compliance.  For the benefit of the appellant we will reproduce in full the court's statement:[18]

   [17] Wharton v The Queen [No 2] [48], [49].

   [18] Wharton v The Queen [No 2] [50] ‑ [52].

   The matters to which a court will have regard when considering whether to extend the time for compliance with a springing order were set out by Master Newnes (as his Honour then was) in MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 at [38] ‑ [41], [46] ‑ [51] and [54] ‑ [57], as follows:

   It is clear, and it was not in dispute, that a court at first instance has the power to extend time under a self-executing order which has 'sprung':  FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.

   It is axiomatic, however, that peremptory orders are made to be obeyed and they are generally only made where (as in this case) the party in default has already failed to comply with the requirements of the rules of court and with an order of the Court.  As Auld LJ noted in Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at 1676, an 'unless order' is by its nature intended to mark the end of the line for a party who has failed to comply with it and any previous orders of the Court.

   It is, moreover, plainly important to the administration of justice that orders of the Court are complied with.  Browne‑Wilkinson VC observed in Re Jokai Tea Holdings Ltd (supra), that obedience to orders of the Court is the foundation on which its authority is founded.  It follows that any approach which tends to encourage the development of a culture of non‑compliance, where orders, even peremptory orders, of the Court are not given the attention and priority they require, must inevitably tend to undermine that foundation.

   Accordingly, the power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored:  Samuels v Linzi Dresses Ltd [1981] QB 115, per Roskill LJ at 126 ‑ 127.

   …

   I do not, however, understand Re Jokai Tea Holdings Ltd (supra) to be laying down a principle that a party who fails to comply with a peremptory order is entitled to an extension of time unless the failure was intentional and contumelious.  The Vice-Chancellor's judgment makes it clear that he considered a party seeking to avoid a springing order must establish both that there was no intention to ignore or flout the order and that the failure to comply with it was due to circumstances outside the party's control.  As Leggatt LJ said in Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 at 37, having set out the passage I have quoted above:

   It is to be noted that the Vice‑Chancellor was specifically expecting that a defaulter would only escape the consequences of judgment given against him if he could demonstrate both that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances.

   In that case Leggatt LJ (with whom Neill LJ agreed), having canvassed a number of authorities, continued (at 39):

   … it is important that breach of [unless] orders should not be incautiously condoned or overlooked.  Otherwise the notion that the Court will readily allow further time will encourage those who have not troubled to comply with its peremptory orders to apply to set aside judgments in default.  Peremptory orders are made to be obeyed.

   Leggatt LJ then referred to the authorities he had earlier canvassed and said:

   Those approaches indicate the need for a defaulter, if he is to escape the consequences of failure to comply with a peremptory order, to show that in the circumstances the relevant breach was excusable if not unavoidable.

   In Hytec Information Systems Ltd v Coventry City Council (supra), having considered a number of authorities, including Re Jokai Tea Holdings Ltd (supra) and Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd (supra), Ward LJ (with whom Auld LJ and Lord Woolf MR agreed) concluded (at 1675) that where there has been non‑compliance with a peremptory order 'a sufficient exoneration will almost inevitably require that [the defaulting party] satisfies the court that something beyond his control has caused his failure to comply with the order.'

   Of course, on an application of this nature the exercise of the discretion must in the end depend upon all the circumstances of the case, without being limited by conditions or guidelines articulated in other cases, and there must always remain sufficient flexibility to make reasonable allowance for human error.  And whilst it is important that 'legal business be conducted efficiently':  Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379 at 387, that is not an end in itself. The ultimate objective must be to do justice: State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155.

   But given the nature of a springing order, the starting point must be that it is for the defaulting party to establish why it should be permitted to continue with the litigation despite its non-compliance.  In my view, it will generally not be sufficient simply to show that the non‑compliance was not intentional and contumelious.  The authority of the Court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a springing order can be avoided by showing that non-compliance with the springing order came about by the same sort of inattention or laxity that caused the order to be made in the first place.

   …

   The failure to comply with a springing order is an egregious breach.  A springing order is intended to be the last opportunity offered to the party to put its case in order.  The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity.  That will generally mean that the litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or its solicitor.

   The matters to which I have referred above provide the backdrop, in my view, against which the specific matters to which, in any particular case, the Court is to have regard in the exercise of its discretion are to be considered.  And while no hard and fast rules can be laid down as to the matters to which the Court should have regard, in my view in the exercise of its discretion the Court will normally have regard to at least the following matters:

   (1)the circumstances in which the springing order came to be made;

   (2)the reason for non-compliance with the springing order;

   (3)the prejudice to the defaulting party if the time were not extended; and

   (4)the prejudice to the other party if the time were extended.

   It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits - there being no point in resuscitating a case that is devoid of merit - but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a peremptory order of the Court.

   But as I have said, in the end the matters that are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case.

   See also Kokos International Pty Ltd v Libra Motors Pty Ltd [2009] WASC 90 [18]; Ward v Keet [No 3] [2010] WASC 71 [27]; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd[No 7] [2010] WASC 351 [3] ‑ [6] and CVW Group Holdings Pty Ltd v Addison [2011] WASC 267 [36].

   We see no reason why these general principles should not be applied to criminal appeals.  In doing so, this court will pay due regard to the difficulties that often face self-represented appellants in custody and the serious consequences that potentially flow to an appellant's liberty if the court refuses to grant such applications.  It must also be recognised that there is a strong public interest in the timely disposition of criminal appeals and that, in many cases, there is a human cost to victims and/or their families as a result of undue delay:  see The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [36].

Disposition

1. The springing order was made almost eight months after the appellant filed his notice of appeal against conviction; approximately five and a half months after he was required by the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) to file his appellant's case, and followed upon his default in complying with the order made on 21 June 2016.

2. On 24 August 2016, the appellant was given a further six weeks to file his appellant's case.  It is clear from the transcript of the proceedings on that day that the appellant understood that if he did not comply with the order, his appeal against conviction would be dismissed.  By 5 October 2016, almost 10 months had elapsed since the appeal notice had been filed and nothing of substance had been done to prosecute the appeal.

3. Giving full weight to the difficulties that face self‑represented appellants in custody, and the particular difficulties of this appellant, his failure to comply with the springing order has not been adequately explained.  Furthermore, the delay of more than one year in bringing this application was inordinate and cannot be excused.

4. What is crystal clear is that the appellant failed to take the one last chance that had been given to him to comply with the Rules and orders of the court.  The proper administration of justice would be undermined, if, on the facts and circumstances of this case, an extension of time was granted.  We reiterate that there is a strong public interest in the timely disposition of criminal appeals, recognising the human cost to victims and/or their families if the appeal process is subject to undue delay caused by appellants who fail to comply with the Rules and court orders.

5. Our conclusion that the appellant's application should be refused is reinforced by our view that the appeal appears devoid of merit.

6. The State's case, in respect of counts 1 ‑ 4 and 6, relied upon the evidence of C.  The State also relied upon text messages sent to C by the appellant[19] which were capable of showing that the appellant was jealous of C's relationships with boys or young men closer to her age.  In some of the text messages, the appellant expressed his love for C.  The State submitted that the appellant's text messages showed that the appellant had an unnatural interest in C.  The State adduced evidence that C attended her primary school with 'hickey marks'[20] on her neck.  The State also relied upon a number of digital images police found during a search of the appellant's house on 1 July 2014.[21]  The digital images included naked pictures of C, as well as close‑ups of what was said to be C's genitalia.  The State alleged that the appellant took the digital images and caused the 'hickey marks'.  Of course, the appellant was acquitted of counts 5 and 7 ‑ 10 which related to these matters.

   [19] Exhibit 6.

   [20] ts 142.

   [21] Exhibits 3 and 4.

7. The appellant was interviewed on video by Detective Gina Horch and Detective Nat Wyne on 1 July 2014.  The appellant made no admissions against interest.  The interview was not adduced as part of the State's case. 

8. The appellant elected to give evidence.  He denied the offending.  Specifically, he denied sexually penetrating C, taking indecent photographs of her, or causing the 'hickey marks' on her neck.

9. There is no merit in the allegation that the appellant suffered a miscarriage of justice as a result of the conduct of defence counsel.  The heavy burden for an appellant who seeks to demonstrate that their counsel caused a miscarriage of justice is not easily discharged.[22]  The appellant's counsel effectively cross‑examined C and, where it was thought necessary to do so, other State witnesses.

   [22] Huggins v The State of Western Australia [2018] WASCA 61 [376].

10. The examination‑in‑chief of the appellant, while relatively short, was sufficient to adequately convey his defence.  In his closing address to the jury defence counsel made substantially the points the appellant now claims should have been made.  There is nothing in defence counsel's conduct of the appellant's case which would sustain the allegation that he did not take proper instructions from the appellant. 

11. The appellant's contention that he suffered a miscarriage of justice by reason of counsel's failure to call a number of persons as defence witnesses cannot be sustained, given that this court has not been provided with any statement or affidavit by any prospective witness.[23]

    [23] Huggins v The State of Western Australia [399].

12. There is no merit in the criticism that the appellant's counsel did not tender his video record of interview.  The interview was not admissible because he made no statements against interest in it.  Even if it had contained admissions, that would have enabled the prosecution to tender it, but not defence counsel.

13. The appellant seeks to make much of C's failure to promptly complain about the alleged sexual offending to her youth worker or teacher.  This matter was fully litigated at trial.  C testified that the delay in complaining was due to her parlous personal circumstances and that she formed the opinion that the appellant, who was well regarded for agreeing to be her foster carer, would be believed.  The question of delay was undoubtedly relevant and was left to the jury for their consideration.

14. The appellant alleges that the compromising photographs of C, tendered at trial, which the State said the appellant took, were not taken by him but were taken by C and sent to another individual.  This issue was also fully litigated at trial and, ultimately, was resolved in the appellant's favour, having regard to the acquittals on the counts concerning the alleged indecent recording of C.

15. The issuing and service of the juvenile caution certificate upon the appellant on 2 April 2012 was of no relevance to issues to be decided by the jury.  In any event, the incident was drawn to the jury's attention.  Evidence was adduced from C at trial to the effect that she had been suspended from school for assaulting another student.

16. In substance, defence counsel raised the matters of defence the appellant claims were not put on his behalf.  There is no merit to the appellant's criticisms in this regard.

Conclusion and orders

1. Having regard to all of the relevant circumstances, this court should not exercise its discretion to extend the time for the appellant to file an appellant's case.  The appellant's application must be dismissed.

2. The order we would make is:

   1.The appellant's application filed 2 November 2017 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA

27 SEPTEMBER 2018