Krishnan v The State of Western Australia [No 2]
[2021] WASCA 174
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KRISHNAN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2021] WASCA 174
CORAM: BUSS P
MITCHELL JA
BEECH JA
HEARD: 27 AUGUST 2021
DELIVERED : 30 SEPTEMBER 2021
FILE NO/S: CACR 75 of 2019
BETWEEN: PRAVEEN KRISHNAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2141 of 2017
Catchwords:
Criminal law - Practice and procedure - Appeals - Competence of application to reopen an appeal against conviction which has been determined - Where appeal was allowed on the basis of a single ground which challenged the appellant's conviction of one count on a multi-count indictment - Where appellant abandoned a draft ground of appeal challenging his conviction of other counts on the indictment - Whether court has the power to reopen the appeal to allow the appellant to pursue proposed new grounds of appeal challenging his conviction of other counts - Whether proposed new grounds have any merit
Legislation:
Criminal Code (WA), s 204B, s 321, s 338A
Result:
Application dismissed as incompetent
Category: B
Representation:
Counsel:
| Appellant | : | S B Watters and J J Cox |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Robertson Hayles Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Huggins v The State of Western Australia [2018] WASCA 61
Morgan v The Queen [No 2] [2013] NSWCCA 80; (2013) 228 A Crim R 483
Morgan v The State of Western Australia [2019] WASCA 185
Nguyen v The State of Western Australia [No 2] [2019] WASCA 5
NPK v The State of Western Australia [2020] WASCA 50
NPK v The State of Western Australia [2021] WASCA 113
Ponnambalam v The State of Western Australia [2015] WASCA 185
RLB v The State of Western Australia [2021] WASCA 73
The State of Western Australia v Wallam [2008] WASCA 117 (S)
YNT v The State of Western Australia [2020] WASCA 80
Contents
Summary
Prosecution case and evidence at trial
Count 1: communication with child persona
Prosecution case
Prosecution evidence
Appellant's evidence
Count 2: communication with GB
Prosecution case
Prosecution evidence
Appellant's evidence
Counts 3 - 5: offending against AS in April 2017
Prosecution case
Prosecution evidence
Appellant's evidence
Count 6: offending against AS on 12 May 2017
Prosecution case
Prosecution evidence
Appellant's evidence
Proceedings in the appeal up to issuing of Certificate of Conclusion
Application to adduce additional evidence
Factual findings
Appellant's submissions on the Application
Disposition of Application
Merit of the proposed new grounds
Proof of the appellant's guilt
Count 5: sexual penetration offence
Count 6: threats on 12 May 2017
Counts 1 and 2: using electronic communication to procure child under 16
Merits of the original draft appeal ground
Proposed new grounds 1 - 4
Proposed new ground 5: late retirement of jury
Proposed ground 6: evidence that the appellant was on remand
Conclusion as to merit of proposed new grounds
Orders
JUDGMENT OF THE COURT:
Summary
The appellant was convicted, after trial by jury, of seven counts on the same indictment. Counts 1 - 6 charged the appellant with offences related to the appellant's:
(1)use of electronic communication, including social media sites, with the intention of procuring girls under 16 years of age to engage in sexual activity with him; and
(2)threats to, and sexual penetration of, one of those girls, AS.
Count 7 charged the appellant with dangerous driving causing grievous bodily harm, contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA). Count 7 related to the appellant driving in a manner which caused bodily harm to a person who was not one of the young girls the subject of counts 1 - 6 on the indictment.
On 3 May 2019, the appellant was convicted of all counts on the indictment. On 7 May 2019, he was sentenced to a total effective sentence of 9 years 6 months' imprisonment, backdated to 13 May 2017, with eligibility for parole. The total effective sentence included a cumulative sentence of 3 years' imprisonment imposed for count 7.
On 28 May 2019, the appellant filed the appeal notice in this appeal, in which he appealed against his conviction of all counts on the indictment. The only draft ground of appeal in the appeal notice was that the 'conviction was unreasonable and not supported by the evidence'.
On 10 September 2019, the appellant filed his appellant's case in this appeal. The sole ground of appeal was that the appellant's conviction of count 7 on the indictment constituted a miscarriage of justice as the trial judge misdirected the jury with respect to the defence of emergency pursuant to s 25 of the Criminal Code (WA) (Code). By filing his appellant's case, the appellant exercised the right conferred by r 28(5) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) by omitting the draft ground of appeal in his appeal notice and including an additional ground of appeal. The additional ground of appeal sought only to impugn the appellant's conviction of count 7.
On 9 April 2020, this court granted leave to appeal on the sole ground of appeal, allowed the appeal, set aside the conviction on count 7 on the indictment and ordered a retrial on that count.[1] There was no variation to any of the sentences imposed in respect of the other counts on the indictment. As a result, the appellant's new total effective sentence was 6 years 6 months' imprisonment, backdated to 13 May 2017.
[1] See NPK v The State of Western Australia [2020] WASCA 50.
On 15 April 2020, the acting Court of Appeal registrar issued a certificate of conclusion of criminal appeal in this appeal, perfecting the orders at [5] above (Certificate).
On 23 October 2020, the appellant filed a second appeal notice, purportedly against his convictions of counts 1 - 6 on the indictment. On 30 June 2021, this court dismissed the second appeal as incompetent.[2]
[2] NPK v The State of Western Australia [2021] WASCA 113.
By application in an appeal dated 16 July 2021 (Application), the appellant seeks orders that the 'implied abandonment of counts 1 to 6 be withdrawn', and that the Certificate 'be declared to be incorrect'. The appellant also seeks orders that the Certificate be 'varied and reissued' to reflect an order providing for the withdrawal of the abandonment of the appeal against the appellant's convictions of counts 1 - 6. He seeks consequential orders for the filing of an amended appellant's case and an amended respondent's answer concerning counts 1 - 6.
For the following reasons, the Application must be dismissed as incompetent. Having determined the appeal by orders which have been perfected by the issue of the Certificate, this court has no power to reopen the appeal in the circumstances of the present case. In any event, we would not exercise any discretionary power to reopen the appeal even if the power existed. Because there is no merit in any of the appellant's proposed new grounds which challenge his convictions of counts 1 - 6 on the indictment, it would be futile to reopen the appeal even if the power to do so existed.
Prosecution case and evidence at trial
Much of the evidence adduced by the prosecution at trial in relation to counts 1 - 6 on the indictment comprised messages sent by the appellant via Facebook, Snapchat or text message. There was no issue at trial that the appellant had sent the messages recovered from various electronic devices that were attributed to him.
Count 1: communication with child persona
Count 1 alleged that, on 25 September 2016, the appellant, being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity; contrary to s 204B(2)(b) of the Code.
Prosecution case
Count 1 concerned a conversation using Facebook messages between the appellant and a police officer, Clayton Hill, conducted on the internet in September 2016. Constable Hill was posing as a 14-year-old girl (child persona). The appellant told the child persona that he wanted to spoil her with gifts. The appellant said that the child persona could come to his place and, if she wanted money, they could have sex and he would teach her how to do it.[3]
Prosecution evidence
[3] Trial ts 186.
Constable Hill gave evidence of the various messages exchanged between him, as the child persona, and the appellant.[4]
[4] Trial ts 194 - 231.
Constable Hill said he responded to an ad posted by the appellant in the personal services section of a website called 'Locanto'. The advertisement read:
I'm guy in my mid 20s with more than enough cah to spoil a girl the way the want. Heaps of cash up to G. Gifts and more. I like something casual or regular. If any young girls keen hit me up. $1,000.
The child persona and the appellant exchanged messages on Locanto, in which she referred to being at school and said she was 14 years old. The appellant asked the child persona for contact details and pictures. The appellant was identified as 'sammy2011'.
The appellant and the child persona then exchanged a series of Facebook messages, in which the appellant was identified as 'Krish Pprr'. The appellant repeatedly requested to have a video chat or phone call with the child persona, or a picture of her. One of the exchanges was as follows:
Appellant:Ok I don't think ur real have god day
Bye
Child persona: ok bye
i was just looking for work over schoo holidays
Ohh well
Appellant:If u send me pic of u from now and I believe u
With piece sign
Child persona: i dnt even know wat u look like, u said ur on friends account
Appellant:And u looking at the wrong websire
It's adult website
Child persona: wat do u mean wrong website
Appellant:Not a place for wokr
Child persona: ohhhhh really?
Appellant:More like sugar babe
Child persona: wats a sugar babe?
Appellant:Ur really going to do that
Like casual sex Haag out and they pay u lot of money
And u need to stay away from the website
Child persona: ohhhhhhh
Appellant:It's not for kids
Child persona: i was looking for teen stuff
and saw ur ad for rewards lol
i didnt know it was sex stuff
Appellant:Now u know
So stay away from it
It's not for kids
U can block me now
Child persona: y wuld i block u, you have been nice to me
Appellant:Ok
Show me a pic of u
Pls
The appellant asked the child persona if she wanted to meet, and told her he was 21 years old. At one point in the Facebook message chain the following discussion occurs after a message from the complainant that she had no credit and so could not go on Facebook:
Appellant:Get credit
Ok meet up with me I'll buy u credit
Child persona: its easy for u! im only 14 rmember
i can try to meet up today but it depends on mum.
i dnt really no u
Appellant:ok ask her now
Child persona: what if ur a mjurderer haha
Appellant:U will be fine I promise
Child persona: how long will we be out for?
Appellant:Upto u
2 hrs
Child persona: wat sort of things would we do? iv never really hung out with boys
i just dont want u to be mad if i cant meet u today
Appellant:Ok just go to mine chill
May be of u wnat $$$ we can even sec
Child persona: u have ur own place? thats so cool.
Appellant:Sex
Child persona: ive never done that befopr
Appellant:U could try
Child persona: wouldnt it hurt?
Appellant:Nope
It feels good
Child persona: really?
Appellant:Yes
Child persona: i wouldnt no wat to do
Appellant:I ll teach u
Child persona: wat if i dont lik it?
Appellant:Then we stop
Child persona: oh ok
iv neva even tried anything lik that befor
Appellant:It all good
The appellant and the child persona discuss whether the child persona can trick her mum into letting her go out that day or the next. The child persona then says she has to go to lunch. This conversation took place on 25 September 2016.[5]
[5] Trial ts 220.
Later that day there is a further discussion during which the child persona deflects requests for contact which would reveal she is a police officer, and the appellant accuses her of being 'fake'. At 1.22 pm the appellant indicates that he is blocking the child persona.[6]
[6] Trial ts 225.
At 1.27 pm on 25 September 2016,[7] the appellant sent another Locanto message which read:
Good bye ur fake and I know who ur.
I would have paid u like $1000 weekly but ur fake and lying teen underage
What's ur phone no?
5000
[7] Trial ts 225.
There is a break in conversation for a couple of days. The conversation resumes, and over three days the appellant again asks for the complainant's phone number and for pictures. The conversation moves to text messages, in which the appellant, identified as 'sammy2011', asks for pictures of the child persona and accuses her of being 'fake' when he does not get them. At one point in this discussion, on 7 October 2016 at 7.34 pm, the appellant texts:
If u take pic now and show me ur real I'll pay u whatever u ask for
In cross-examination, Constable Hill said that he had produced all of the communications between the child persona and the appellant.[8]
Appellant's evidence
[8] Trial ts 231 - 232.
In his evidence, the appellant admitted sending the above messages, but said that he never believed that the person he was communicating with was under 16 years of age. He rather thought that he was communicating with an adult who was setting a trap for him, and he continued with the conversation to get 'to the bottom of it'. He denied intending to have sex with someone under the age of 16 years.[9]
Count 2: communication with GB
[9] See, in particular, trial ts 443 - 444.
Count 2 alleged that, on 30 October 2016, the appellant, being an adult, used electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity; contrary to s 204B(2)(b) of the Code.
Prosecution case
Count 2 concerned Facebook messages exchanged between a girl, GB, and the appellant, who was using the name 'Wills Sam'. GB told the appellant that she was 14 years old. The appellant told GB that he was 21 years old. The appellant offered GB $6,000 to meet him and have sex with him and pretended to transfer the money to her bank account.[10]
Prosecution evidence
[10] Trial ts 186 - 187.
Detective Senior Constable Robert Miley gave evidence of downloading the conversation which GB had with the appellant over Facebook. In accordance with the wishes of her family, GB was never interviewed by police.[11]
[11] Trial ts 235 - 236.
The beginning of the conversation on Facebook on 30 October 2016 between the appellant, who is identified as 'Wills Sam', is reproduced below:
GB:Hey
Appellant:How old r u
GB:How old are you
Appellant:21
U?
GB:14
Why
Appellant:Wow
I don't know
I want to spoil u for aw with $1000 but ur young
GB:Catch ya fam
Appellant:$5000
GB:No
$6000
Appellant:Ok
Deal
The Facebook message discussion continued with the appellant purporting to transfer $6,000 to GB's bank account, the appellant demanding to see a 'selfie' photo of GB and alleging that she was 'fake' when she refused to do so. Eventually GB gave the appellant an address at which he could pick her up, and they arranged to meet there in 15 minutes. The following exchange then occurred:
Appellant:Where u wanna do it?
[...]
GB:Do it?
Appellant: Like sex
GB:Ohh
I'm 14 is that alright?
Appellant: It's not
But we may
See how we go
First
GB:Are you sure you don't mind
The messages then discuss moving the conversation to Snapchat, and come to an end.
Appellant's evidence
The appellant's evidence was that GB had contacted him in response to his advertisement on Locanto on 29 October 2016. She said that she was 19 years old, and sent the appellant her Facebook name. They continued the conversation on Facebook the next day.[12]
[12] Trial ts 444 - 445.
The appellant said that, during the discussion on Facebook, he came to believe that GB was a scammer and not real.[13] He created a fake bank transfer to the account details provided by GB.[14] After a videocall on Snapchat, the appellant said that he realised GB was actually a 14‑year‑old girl, and hung up and blocked her after saying that he would go to police with the messages if he saw her again on Locanto.[15]
Counts 3 - 5: offending against AS in April 2017
[13] Trial ts 446 - 448.
[14] Trial ts 451.
[15] Trial ts 464.
Counts 3 - 5 charged the appellant with the following offences committed against a 15-year-old girl, AS, in April 2017:
Count 3Between 1 April 2017 and 24 April 2017, the appellant, being an adult, used electronic communication with intent to procure AS, a person under the age of 16 years, to engage in sexual activity; contrary to s 204B(2)(a) of the Code.
Count 4On 24 April 2017, the appellant made a threat with intent to compel AS to do an act she was lawfully entitled to abstain from doing; contrary to s 338A(d) of the Code.
Count 5On 24 April 2017, the appellant sexually penetrated AS, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis; contrary to s 321(2) of the Code.
Prosecution case
The State alleged that the appellant contacted AS on Facebook, using the name 'Tommy Bruce'. At some point, AS sent a photograph of herself wearing just her underpants and bra to the appellant (Photo). The appellant offered to give AS $1,000, and told her that she was beautiful and wanted to be her temporary boyfriend (count 3). The appellant also threatened to post the Photo online if AS did not meet with him (count 4). AS agreed to meet the appellant in person at a railway station. The appellant paid AS $200 in cash, drove her back to his house and sexually penetrated her vagina with his penis (count 5).[16]
Prosecution evidence
[16] Trial ts 182.
The messages between AS and the appellant which were the subject of counts 3 and 4 had been deleted. In respect of those messages, the prosecution case depended on the oral evidence of AS as to the content of the messages.
AS's prerecorded evidence was that she was born in July 2001. Her birth certificate was tendered without objection.[17] She was trying to sell some shoes on Facebook. She received a message from the profile of a 'Tommy Bruce' which read 'Do you want $1,000'.[18] 'Tommy' repeatedly offered her money but did not say what it was for. AS ended up giving 'Tommy' her Snapchat name and mobile phone number as these were her usual methods of communication. She blocked him on Facebook after a few days, eventually blocked him on Snapchat, and a 'long time after' blocked his phone number as well.[19]
[17] Prerecorded evidence of AS, 17 April 2018, 27.
[18] Prerecorded evidence of AS, 27 - 28.
[19] Prerecorded evidence of AS, 29, 31.
The appellant asked AS to send him a photo, saying he would leave her alone if she did so. AS sent him a photo of herself in a 'bikini' bra and underwear with her face 'scribbled out'. The appellant took a screenshot of the photo (which was only visible to him for a few seconds). AS asked the appellant to delete the screenshot and he told her that he had done so. She told him she was 15 years old. He sent her a photograph of his face, and AS thought he looked Indian and about 17 - 18 years old. Over about a day and a half, the appellant kept asking to see AS, threatening that he was going to post the Photo everywhere if she did not do so.[20]
[20] Prerecorded evidence of AS, 32 - 37.
On 24 April 2017, AS met the appellant at a train station. He drove her to his home, stopping at a petrol station on the way to get $200 cash which he gave to AS. The appellant told AS to go into his bedroom, which she did. The appellant unlocked his mobile phone and allowed AS to delete the image of her and the text messages between them. After AS had deleted the image and messages, the appellant began trying to undress her. AS attempted to 'brush' his hands away from her. She told the appellant that she was 15 and 'didn't want to do this'. She asked the appellant, 'Do we have to do this?', and the appellant responded, 'Yes'.[21]
[21] Prerecorded evidence of AS, 37 - 46, 48, 97.
The appellant then undressed AS, undressed himself and pushed AS onto the bed. He penetrated AS's vagina with his penis for about 2 minutes before ejaculating on the bed. He was not wearing a condom. After this, AS got dressed and asked the appellant to drive her to a train station, which he did.[22]
[22] Prerecorded evidence of AS, 46 - 47.
AS told a school friend a few days later, over Snapchat, some of what had happened with the appellant.[23]
Appellant's evidence
[23] Prerecorded evidence of AS, 50.
In his evidence, the appellant admitted communicating with AS after responding to her advertisement for shoes, but denied threatening her if she did not meet with him. He admitted taking a screenshot of the photo of AS. He admitted meeting AS at a train station and driving her to his home. The appellant admitted unlocking his mobile phone so AS could delete the Photo from his phone. The appellant admitted penetrating AS's vagina with his penis. His evidence was that AS told him that she was 17 going on 18 years old. He said that they did not talk about sexual activity before meeting in person, and that they had then arranged to have sex in exchange for $200. The appellant said he paid AS after getting money from a service station on the way to drop AS off at a train station after they had had sex.[24]
[24] Trial ts 465 - 479.
The appellant also said that AS asked to be dropped off at a train station after being with him for about 10 minutes when she received messages from her mother. In effect the appellant said that he was not happy about this as he had agreed to pay for an hour with her. AS told him not to worry about it and she would make it up to him the next time they met.[25]
[25] Trial ts 477.
The appellant's evidence was that he was born in July 1987.[26] He was therefore about 14 years older than AS.
Count 6: offending against AS on 12 May 2017
[26] Trial ts 420.
Count 6 alleged that, on 12 May 2017, the appellant made a threat with intent to compel AS to do an act she was lawfully entitled to abstain from doing; contrary to s 338A(d) of the Code.
Prosecution case
Count 6 related to threats the appellant made to AS on 12 May 2017. The State's case was that, in early May 2017, the appellant contacted AS again, wanting to meet with her again to have sex. He sent text messages to AC in which he threatened to post the Photo and her name on Facebook if she did not meet with him (count 6).[27]
Prosecution evidence
[27] Trial ts 182.
The threats the subject of count 6 were allegedly made by text message which, although deleted by AS, police retrieved from her mobile phone after an initial attempt had failed. The recovered messages were not made available to AS at the time she gave her prerecorded evidence. However, after the prosecutor appreciated the existence of the recovered messages from a successful phone download, AS was recalled to give evidence, at the appellant's trial, where she identified the messages.[28] There was no issue at trial that the appellant had sent the messages attributed to him.
[28] Trial ts 326 - 332, 334 - 336; exhibit 8.
The series of messages begins with texts from AS to the appellant indicating that she is busy with school and exams. At about 1 pm on 12 May 2017 the appellant texts:
I wnat meet so u make up ur mind and time pls
And I m not gonna black mail u
But I need something from u so I really have to do whatever it takes lol (emphasis added)
AS responds that she does not want to and indicates that she is not interested, and the appellant texts:
One more time never txt u wagon ever
I promise
AS responds at 1.07 pm as follows:
Please no, I'm only 15 years old I have a busy life at the moment and it's hard
Why would you want to black mail me, there are so many women out there for you
I'm not the one
I'm depressed and you always tell me to be happy so clearly you want a happy person, I'm not that
At 1.09 pm the appellant responds:
Listen one more time
And I'll delete ur number in front of u
Last time
So u call if I don't get a reply yes from u by the end of today the I will do what I say I would have (emphasis added)
I wnat u
The appellant asks for 'one more time' and when AS does not respond the appellant messages her another four times before indicating that if AS meets him he will delete 'everything'. The appellant continued at 1.12 pm:
I'm not gonna take no for an answer and just because u being rude last time I texted u
I m serious about posting and serious about deleting ur number
So trust me
(emphasis added)
There is a further lengthy exchange of messages in which AS pleads with the appellant not to make her do it, indicating that the appellant is ruining her life and that she will kill herself. The appellant demands 5 minutes of AS's time for an 'in the car quickie'. When AS repeats that she is going to kill herself, the appellant texts at 1.44 pm:
Ok then then u gave me no option
The exchange of text messages continues, with AS pleading with the appellant and, at 1.46 pm, asking 'Why do you have to post the photos tho'. At 1.50 pm the appellant indicates that AS has until 4 pm to say 'yes'. The demands continue, and the appellant sends the following messages from 1.53 - 1.55 pm, in response to a text from AS that 'You want to hurt me by posting photos':
You know jay fuck I
U
Posting
It will be on like at 5 I ll tag u on yo u
Ur fairly not mine
AS asks where the appellant is 'posting it', and he indicates that he will 'publicly post' on Facebook and Instagram and that he will 'tag' AS when he does. The appellant indicates that it will not happen again if AS complies. AS indicates that she does not believe the appellant when he says it will be the last time and says that she is going to kill herself and would rather die than be threatened. The appellant's messages from 1.57 - 1.59 pm include the following:
If it matter a lot like taking ur life why can't u just meet 3 min and get it over with
…
Before u do why don't u do me a favour sleep with me for 2 min
Pls
Ok
I'm sorry but u making this too hard and ur call if u don't meet pnit will be on Facebook with u rname screnahots (emphasis added)
At 2 pm, the appellant tells AS that:
I just wnat sex from u one more time that's all
The appellant and AS exchange messages arranging to meet in a carpark at 7 pm that night. The text exchange ends at 2.06 pm with the appellant asking AS how much she wants, and AS telling the appellant that she does not want money.
Appellant's evidence
In his evidence-in-chief, the appellant admitted that the texts were his.[29] He said that he sent the messages because he was angry with AS.[30] He said that the texts were preceded by an exchange which was not recorded,[31] and denied receiving the message where AS said that she was only 15.[32]
[29] Trial ts 480 - 481.
[30] Trial ts 482 - 484.
[31] Trial ts 482.
[32] Trial ts 483.
Proceedings in the appeal up to issuing of Certificate of Conclusion
Application to adduce additional evidence
The appellant applies to adduce two affidavits, sworn by him on 15 July 2021 and 25 August 2021, as additional evidence in the appeal. In those affidavits the appellant deposes as to discussions he had with his original appeal counsel, Ms King, and his understanding as to certain matters. The State applies to adduce the affidavit of Ms King sworn 13 August 2021 as additional evidence in the appeal. The affidavits were received by the court, and both the appellant and Ms King were cross‑examined at the hearing of the appeal.
There was nothing about the manner in which the appellant and Ms King gave evidence which adversely impacted on our assessment of the credibility of their evidence. The appellant appeared articulate, intelligent, forceful in his responses and ready to disagree with a proposition that he did not accept. Ms King was careful and precise in her evidence.
To the extent that there is a difference in the evidence of the appellant and Ms King as to the discussions between them, we prefer the evidence of Ms King. Her evidence better accords with the contemporaneous documents, is generally supported by contemporaneous file notes and reflects the steps and advice which would ordinarily be expected to be taken and provided. In addition, Ms King's account of her conversations with the appellant was not challenged during cross-examination. We make the following findings of fact based on the appellant's and Ms King's affidavits and oral evidence, and the court record.
Factual findings
The appellant was sentenced on 7 May 2019. On 21 May 2019, Ms King, who is a lawyer in the Legal Aid Commission appeals team, received a grant of legal aid to advise on the merit of appealing against the appellant's convictions and sentence.[33]
[33] Ms King's affidavit, par 5.
At about this time, Ms King prepared appeal notices against conviction and sentence and sent them to the appellant so that he could file them within time.[34] The appellant signed and faxed the appeal notices to the Court of Appeal office from prison on 28 May 2019, which was the last day for appealing without an extension of time. The conviction appeal notice indicated that the appellant was appealing against his convictions for counts 1 - 7 inclusive, on the ground that the 'conviction was unreasonable and not supported by the evidence'.
[34] Appeal ts, 27 August 2021, 42 (appeal ts).
After a Skype appointment with the appellant on 2 July 2019, Ms King provided written advice to the appellant on 6 August 2019 with a draft appellant's case in the conviction appeal. The effect of Ms King's advice was that there was merit in an appeal against the appellant's conviction on the ground that the trial judge misdirected the jury in relation to a defence to count 7, but there was otherwise no merit in the appeal. Her advice sought the appellant's instructions before the deadline for filing an appellant's case expired on 13 August 2019.[35]
[35] Appeal ts 42 - 44; Ms King's affidavit, par 7 - 8.
Ms King spoke to the appellant by telephone on 9 August 2019 and discussed her opinions. Ms King's file note of that conversation indicates that, at that time, the appellant told Ms King that he wished to consider appealing against sentence himself. The appellant said that he did not think that he would appeal against his convictions of counts 1 - 6, but would consider this if an extension of time for the filing of an appellant's case could be obtained. The appellant said that he would let Ms King file an appellant's case for his conviction appeal in relation to count 7.[36]
[36] Ms King's affidavit, par 9.
Later on 9 August 2019, Ms King emailed and spoke to counsel in the Office of the Director of Public Prosecutions seeking consent to an extension of time for filing the appellant's cases. On 13 August 2019, Ms King wrote to the Court of Appeal office seeking an extension of time for filing the appellant's cases in the appeals. The stated purpose of the extension was explained in the following terms:
I am assisting [the appellant] in relation to his conviction and sentence appeals. I have recently provided [the appellant] with a draft appellants case in relation to conviction appeal regarding one of his seven counts on the indictment. This took some time as I was unable to obtain the State Brief until recently.
[The appellant] would appreciate some additional time to file both appellants cases in case he decides to prepare his own appellants case for sentence appeal and for him to decide if he wishes to add grounds of appeal to the conviction appellants case that I have provided to him. (emphasis added)
On 14 August 2019, orders were made extending time for the appellant to file his appellant's cases in the conviction and sentence appeals to 10 September 2019.
Ms King spoke to the appellant by telephone on 13, 16 and 23 August 2019. During those calls Ms King confirmed her advice in relation to the merits of an appeal against the appellant's sentence and an appeal against his conviction of counts 1 - 6 on the indictment. She wrote to the appellant on 23 August 2019 confirming her advice, and attaching a discontinuance notice for the sentence appeal.[37]
[37] Ms King's affidavit, par 12 - 17.
In her telephone discussions, Ms King indicated that the appellant had two options in relation to the conviction appeal. The first was to pursue a ground of appeal in relation to count 7 only, in which case Ms King could represent the appellant at the appeal hearing. The second option was for the appellant to add his own grounds of appeal in relation to counts 1 - 6 and represent himself at the appeal hearing. Ms King explained to the appellant that they did not both get to talk at the appeal hearing, and she could not argue his grounds of appeal in relation to counts 1 - 6.[38]
[38] Ms King's affidavit, par 19 - 21; appeal ts 39 - 40, 43 - 45.
On 6 September 2019, the appellant signed the appellant's case which Ms King had prepared, without amendments, and faxed it from the prison to the Court of Appeal office. The appellant's case contained a single ground of appeal alleging that a miscarriage of justice arose from the trial judge's direction in relation to the appellant's conviction of count 7 on the indictment. He also signed and faxed to the Court of Appeal office a discontinuance notice in relation to his appeal against sentence. The appellant telephoned Ms King that day and informed her that he had done this.[39]
[39] Ms King's affidavit, par 18.
We find that, when he signed and faxed his appellant's case in the conviction appeal, the appellant had chosen not to advance grounds of appeal challenging his convictions of counts 1 - 6 on the indictment. That is an inference we draw from the appellant having signed the appellant's case which contained one ground, in light of the choices which Ms King had offered him. We do not accept the appellant's oral evidence to the effect that he wanted to pursue an appeal against his convictions on counts 1 - 6 when he filed the appellant's case.[40] That evidence is inconsistent with the objective circumstances in which the appellant's case was filed.
[40] See appeal ts 31, 33.
We do not accept the appellant's evidence that he had insisted to Ms King that he wanted to appeal all of his convictions and she told him that she could proceed with submissions for count 7 and he could proceed with submissions for the rest of the convictions on his own.[41] It is implausible that Ms King, who is an experienced and competent criminal appellate counsel, would have given that advice. It is also implausible that Ms King would have agreed to represent the appellant if he had told her that he wanted to challenge his convictions of counts 1 - 6 on the indictment, when she was of the opinion that he had no arguable grounds for doing so. The appellant's evidence on this issue also shifted at the hearing on 27 August 2021, where he said that the advice he received in relation to speaking at the appeal hearing was obtained from another prisoner who the appellant understood had undertaken some legal studies, rather than Ms King.[42] That shift in position counts against the credibility of the appellant's evidence on this question.
[41] Appellant's affidavit sworn 15 July 2021, par 4 - 5; appellant's affidavit sworn 25 August 2021, par 9.
[42] Appeal ts 31 - 32, 37.
The appellant's appeal was argued on 13 March 2020. Ms King represented the appellant at the hearing of the appeal, and argued in support of the ground identified in the appellant's case. The appellant appeared by video-link from prison. The court permitted Ms King to make a relatively minor amendment to the ground of appeal, to allege a wrong decision on a question of law by the trial judge.[43] At the conclusion of submissions, the court reserved its decision.
[43] Appeal ts 2 - 3.
On 20 March 2020, the appellant faxed a type-written letter to the Court of Appeal office, addressed to 'The Appeal Judges'.[44] In that letter, the appellant said that he had hoped to get the chance to say a few things during the appeal hearing, but did not get the chance to raise those issues. The letter contained submissions alleging that his trial counsel lacked experience, was incompetent and failed to follow instructions. He asked for the court to take these matters into account before making a decision on his appeal and to make the decision accordingly and revisit his overall sentence.
[44] The letter is incorrectly dated as 29 March 2020.
On 24 March 2020, the acting Court of Appeal registrar wrote to the appellant. The letter explained that the appeal was heard on the basis of the ground of appeal in his appellant's case, and that the appeal would be determined solely on the basis of that ground of appeal. The registrar's letter also explained that, where an appellant has a lawyer on the record, all submissions to the court must be made by the lawyer. The letter indicated that the appellant was not entitled to send further submissions to the court as he had done with his correspondence of 20 March 2020. The letter explained that judgment had been reserved and would be delivered in due course having regard to his ground of appeal and all submissions made on his behalf and on behalf of the State. The letter was copied to Ms King and the Office of the Director of Public Prosecutions.
The court delivered judgment on 9 April 2020. Leave to appeal was granted, the appeal was allowed, the appellant's conviction on count 7 was set aside and the appellant was ordered to be retried on count 7. The Certificate, reflecting those orders, was signed and sealed by the acting Court of Appeal registrar on 15 April 2020.
By letter dated 13 May 2020 and received by the Court of Appeal office on 20 May 2020, the appellant wrote to the Court of Appeal office requesting 'detailed information' about doing an appeal 'on some of the remaining charges.' On 25 May 2020, the acting Court of Appeal registrar replied to the appellant (by a misdated letter) indicating that the court could not provide the appellant with legal advice and he should therefore seek independent legal advice in relation to the matter.
We accept the appellant's evidence that, by the time of the appeal hearing in March 2020, he had hoped to have an opportunity to make submissions in relation to his convictions generally. That is consistent with his letter written to the court shortly after the hearing. It may well be that another prisoner had suggested to the appellant that he may be able to say something to the court during the hearing.
Appellant's submissions on the Application
In written submissions, the appellant recognises that in general the court has no jurisdiction to reopen an appeal which has been heard and finally determined once the orders have been perfected. However, the appellant points to cases which he contends support the view that jurisdiction to reopen a concluded appeal exists where there has been a denial of procedural fairness or not all grounds of appeal have been determined. The appellant submits that the 'grounds of appeal in relation to counts 1 to 6' were neither heard nor determined on their merits, and there was a denial of procedural fairness to the appellant. In these circumstances, the appellant contends that the court has jurisdiction to reopen the appeal to allow those grounds to be heard.[45]
[45] Appellant's submissions, par 10 - 20, 34 - 35; appeal ts 59.
The appellant also seeks to draw an analogy with cases that hold that this court has power to grant leave to withdraw a discontinuance notice which is a nullity, on the basis that the purported abandonment of the appeal in this matter was not the result of a deliberate and informed decision by the appellant. He contends that, in the present case, the court should treat the appellant's 'implied notice of discontinuance' as a nullity on the basis that the appellant never intended to abandon his appeal against his conviction of counts 1 - 6 on the indictment.[46]
[46] Appellant's submissions, par 21 - 22, 27 - 33.
The appellant also contends that s 40(1)(l) of the Criminal Appeals Act 2004 (WA) gives the court a discretionary power to permit an appellant to withdraw an 'implied notice of discontinuance'. Again, he seeks to draw an analogy with cases which have recognised that this provision empowers the court to permit the withdrawal of a notice of discontinuance which is not a nullity.[47] The appellant contends that a miscarriage of justice arose on grounds contained in an appellant's case which was prepared by the appellant in his second appeal (which the court dismissed as incompetent).[48]
[47] Appellant's submissions, par 22 - 25.
[48] Appellant's submissions, par 36 - 47.
Disposition of Application
There is no merit to the appellant's contention that he was denied procedural fairness in the appeal, or that the court did not deal with all of the grounds of appeal.
The appellant was given an extension of time to consider what grounds of appeal he would include in his appellant's case. He filed an appellant's case which contained one ground of appeal. He was given and took the opportunity, through his lawyer, to advance oral and written submissions in relation to that sole ground. The court dealt with the only ground of appeal that was presented for its consideration. It granted the appellant leave to appeal on that ground and allowed the appeal on the basis that the ground of appeal was established. When the appellant sought to file supplementary submissions not related to the ground of appeal he was informed, prior to judgment delivery, that the court would only consider his sole ground of appeal. He did not apply to further amend his appellant's case to add any new grounds.
The grounds on which the appellant now seeks to rely upon were never advanced in the appeal prior to its determination. The draft ground of appeal that the verdicts were unreasonable or unsupported by the evidence was abandoned by the filing of an appellant's case which substituted a different ground of appeal. The grounds of appeal which the appellant now seeks to advance do not include a ground that the guilty verdicts on counts 1 - 6 were unreasonable or not supported by the evidence. This court did not fail to address all of the appellant's grounds of appeal when it did not address grounds that the appellant never sought to advance.
There is no analogy between the present case and one in which an appellant files a notice of discontinuance and subsequently applies for leave to withdraw the notice of discontinuance. Nor is this a case in which the appellant expressly or impliedly abandoned his appeal against his conviction of counts 1 - 6 on the indictment, so as to engage the principles outlined in Ponnambalam v The State of Western Australia;[49] see also YNT v The State of Western Australia.[50] The appellant instituted an appeal against his convictions on counts 1 - 7 by filing an appeal notice which indicated that he sought to appeal against all of those convictions. As was the case in dealing with the second appeal, it is unnecessary to consider whether the appellant could have appealed against his convictions of only some of the counts on the indictment, so as to preserve a capacity (subject to the grant of an extension of time) to subsequently commence a separate appeal against his convictions of other counts in the same indictment.[51]
[49] Ponnambalam v The State of Western Australia [2015] WASCA 185 [17] - [32].
[50] YNT v The State of Western Australia [2020] WASCA 80 [31] ‑ [34].
[51] Cf Morgan v The Queen [No 2] [2013] NSWCCA 80; (2013) 228 A Crim R 483 [38] - [78] and cases there cited.
As the Rules recognise, the current appeal could be concluded by being decided, dismissed or discontinued. The appeal could be discontinued by the appellant filing and serving a discontinuance notice under r 59(1) of the Rules. No such notice was filed. While the appellant may be said to have abandoned the draft ground of appeal in the appeal notice, he never discontinued or abandoned the appeal. The appeal was never dismissed. Rather, the appeal was concluded by being decided - it was determined by the court when it allowed the appeal and set aside the conviction on count 7 only.
The court having determined the appellant's appeal against his convictions of counts 1 - 7 (as instituted by his appeal notice), and the orders determining the appeal having been perfected by the issue of the Certificate, this court has no general power to reopen the appeal or reconsider the orders it has made. As this court recognised in The State of Western Australia v Wallam,[52] in the absence of a statutory provision to the contrary and subject to certain narrow exceptions, a formally recorded order made by this court in a determined appeal cannot be reopened or reconsidered. Wallam concerned the State's application in relation to orders made on a successful State appeal, where the court found that a specific statutory provision (s 37 of the Sentencing Act 1995 (WA)) gave it power to correct a sentence that was not imposed in accordance with the relevant legislation. Wallam was applied in Nguyen v The State of Western Australia [No 2],[53] the court holding that an application to reopen an offender's appeal against sentence which had been dismissed, where orders dismissing the appeal had been perfected, was incompetent.
[52] The State of Western Australia v Wallam [2008] WASCA 117 (S) [6].
[53] Nguyen v The State of Western Australia [No 2] [2019] WASCA 5 [24] - [31].
As discussed above, this is not a case where the appellant was denied procedural fairness or the court failed to deal with all of the grounds of appeal. To any extent that such cases are an exception to the general rule that the court cannot reopen its perfected orders determining an appeal, the exception does not apply in the present case.
The 'nullity' doctrine has no application in the present case. The appeal was concluded by the determination of this court and the perfection of the court's orders by the issue of the Certificate. It was not concluded by any conduct of the appellant which might be regarded as a 'nullity' and therefore lacking the legal effect of concluding the appeal.
In response to the court's request, the appellant struggled to identify the document to which the nullity doctrine was to be applied in this case. He suggested that the certificate of conclusion was a nullity because it incorrectly stated that the appeal had been decided. However, he withdrew this suggestion when some of the obvious flaws in it were raised by the bench. [54]
[54] Appeal ts 65 - 66.
If, contrary to our view, the nullity doctrine had some application in this case, it could only have applied to the filing of the appellant's case. That was the conduct of the appellant which abandoned the draft ground of appeal that sought to impugn the appellant's conviction of all counts on the indictment. However, there is no basis on which the filing of the appellant's case could be regarded as a nullity given our findings at [69] - [70] above to the effect that, when he signed and faxed the appellant's case, the appellant understood the effect of the sole ground it advanced. When he filed the appellant's case, the appellant had decided to pursue only the ground of appeal which sought to impugn his conviction of count 7. He appears to have subsequently changed his mind about that, and may have done so before the hearing of the appeal. However, that subsequent change of heart does not make the filing of the appellant's case a nullity.
For the above reasons, in this case the court has no power to reopen the appellant's appeal or reconsider the perfected orders which the court determined should be made on the appeal. The Application must therefore be dismissed as incompetent.
Merit of the proposed new grounds
Even if we had concluded that this court had some discretionary power to reopen the appeal, we would not have exercised that power in the present case. That is because the appellant's proposed new grounds of appeal challenging his conviction of counts 1 - 6 on the indictment are without merit and have no reasonable prospect of succeeding.
At the hearing of the Application, counsel for the appellant applied for an order that the appellant be permitted to rely on the appellant's case dated 6 November 2020.[55] However, in response to questions from the bench, he informed the court that the appellant's case was prepared by the appellant and that he - appeal counsel - had not considered its merits.
[55] Appeal ts 49.
It was highly unsatisfactory and inappropriate for the appellant's appeal counsel, on the Application, to have simply adopted a document prepared by his client as a basis for inviting the court to exercise the discretion which he asserted it had. At the hearing of the appeal, it was apparent that counsel had not properly considered the contents of the document his client had prepared.[56] In substance, the effect of counsel's approach was to invite the court to exercise its discretion to reopen a completed appeal in order for counsel to investigate what, if any, arguable ground of appeal could be identified. If a discretion existed for that purpose, we would not have exercised it in the appellant's favour.
[56] Appeal ts 49 - 52.
Counsel raised the possibility of being given time to file a further substituted proposed appellant's case.[57] However, the court was not satisfied that it was in the interests of justice to grant a further opportunity, in light of the considerable delay in this case and the more than ample opportunity which the appellant has been given to identify any arguable proposed new ground or grounds of appeal.
[57] Appeal ts 67 - 68.
Ultimately, counsel for the appellant was unable to identify any proposed ground of appeal which, as an officer of the court, he was able to advance as a reasonably arguable basis for impugning any one or more of the convictions of counts 1 - 6 on the indictment.[58]
[58] Appeal ts 70.
It is highly unsatisfactory and inappropriate for counsel for a party to rely on an appellant's case prepared by the client without having satisfied himself or herself that it advances a contention (or contentions) of arguable merit. Nevertheless, we proceed to explain why the proposed grounds of appeal are without merit.
Proof of the appellant's guilt
Given the evidence led at trial, in our view, the only reasonable verdict on counts 5 and 6 was 'guilty'. Below we explain our view that the appellant's conviction on those counts was inevitable, as the jury could not reasonably fail to be satisfied that the State had proved the commission of those offences. We also deal with the strength of the prosecution case in relation to the other counts on the indictment.
Count 5: sexual penetration offence
The inevitability of conviction is most apparent in the case of the sexual penetration offence. Count 5 charged the appellant with an offence against s 321(2) of the Code in relation to AS. The elements of that offence were that:
(1)the appellant sexually penetrated AS; and
(2)at the time the appellant sexually penetrated AS, she was a child of or over the age of 13 years and under the age of 16 years.
Both AS and the appellant gave evidence that the appellant penetrated AS's vagina with his penis on 24 April 2017. AS gave uncontested evidence that she was 15 years old at the time. As the appellant was much more than 3 years older than AS, his evidence that he believed AS to be over the age of 16 years provided no defence to the charge.[59] There is no room for any reasonable doubt that the appellant committed the sexual penetration offence.
Count 6: threats on 12 May 2017
[59] Section 321(9) of the Code.
We turn to consider count 6, which charged the appellant with an offence against s 338A(d) of the Code. The elements of that offence were that:
(1)the appellant made a threat to AS; and
(2)when he made the threat, the appellant intended to compel AS to do an act that she was lawfully entitled to abstain from doing.
The term 'threat' is defined in s 338 of the Code. It relevantly includes a statement that expressly constitutes, or may reasonably be regarded as constituting, a threat to:
(d)cause a detriment of any kind to any person, whether a particular person or not; or
(e)distribute an intimate image (within the meaning given to those terms in section 221BA) of any person other than the distributor.
An 'intimate image' is relevantly defined in s 221BA of the Code to include a still image that shows, in circumstances in which the person would reasonably be expected to be afforded privacy:
(1)the person's genital area (whether bare or covered by underwear); or
(2)in the case of a female person, the breasts of that person (whether bare or covered by underwear).
The State alleged that the threat was to post the screenshot of AS's Snapchat Photo online with her name. The State alleged that the appellant made that threat with the intention of compelling AS to meet him in his car for the purposes of them having sex, which she was lawfully entitled to abstain from doing.[60] The case was left to the jury on the basis that the threat was to post the image online and publish it to the world unless AS was prepared to meet with the appellant on one last occasion.[61]
[60] Trial ts 184 - 185.
[61] Trial ts 624.
In his evidence-in-chief, the appellant admitted sending the text messages referred to at [46] - [55] above. The meaning and effect of those texts is unmistakable. The appellant was demanding that a teenage girl meet with him to have sex in his car and threatening to post a screenshot on Facebook and Instagram, and 'tag' her identifying details, unless she did so. He relentlessly persisted in the face of AS's pleas with his demands and threats. The threat was to cause a detriment to AS and to publish an intimate image of her. The inference that the appellant intended to coerce AS to meet with him for sex was compelling, and was the only inference reasonably capable of being drawn from the text messages.
The appellant's evidence provided no reasonable basis for doubting that he committed the offence. It was no defence that the appellant might have engaged in this reprehensible conduct because he was angry or believed AS to be older than 16 years. Even if the jury had believed the appellant's evidence about those matters, or thought that there was a reasonable possibility that it might be true, the appropriate verdict would still have been 'guilty' of count 6 on the indictment.
Counts 1 and 2: using electronic communication to procure child under 16
Counts 1 and 2 on the indictment charged the appellant with offences against s 204B(2)(b) of the Code. The elements of these offences were relevantly that:
(1)The appellant was an adult;
(2)The appellant used electronic communication;
(3)When the appellant used the electronic communication, the appellant intended to procure a person to engage in sexual activity; and
(4)The appellant believed the person was under the age of 16 years.
It was not necessary for the State to prove that the person was actually under 16 years of age at the time of the electronic communication. It did not matter that, as in the case of the child persona, the person was a fictitious person represented to the appellant as a real person.[62]
[62] Section 204B(8) of the Code.
The appellant accepted that he engaged in the electronic communications referred to at [16] - [21] and [27] - [29] above. The content of those messages expressly indicates an intention to procure two 14-year-old girls to engage in sexual activity with the appellant in exchange for money. The appellant's evidence that he did not actually believe the persons to be under the age of 16 or intend to procure the 14‑year‑old girls to engage in sexual activity was highly implausible and clearly rejected by the jury. The evidence at trial plainly proved, beyond reasonable doubt, that the appellant committed the offences charged in counts 1 and 2 of the indictment.
Merits of the original draft appeal ground
For the above reasons, the appellant's conviction of counts 5 and 6 was, on the evidence adduced at trial, inevitable. The evidence at trial plainly proved that the appellant committed the offences charged in counts 1 and 2 of the indictment. Proof of counts 1, 2, 5 and 6 did not depend on the acceptance of the credibility of any prosecution witness. The appellant's guilt of those offences was established by electronic records of the appellant's written messages and the appellant's own evidence. Absent some fundamental defect in the trial process, it is difficult to imagine how the court could conclude that the appellant's conviction of those offences constituted any substantial miscarriage of justice.
Counts 3 and 4 were the only counts which turned on the jury accepting the evidence of a prosecution witness as credible and reliable. The prosecution case on those counts depended on the oral evidence of AS as to the content of written messages which had been deleted and not recovered. To be satisfied that the appellant committed those offences, the jury needed to accept AS's evidence about critical aspects of the communications as credible and reliable. It was plainly open to the jury to accept AS's oral evidence, and reject the appellant's oral evidence to the contrary, as to the critical matters and be satisfied, beyond reasonable doubt, that the State had proven each element of these offences.
It follows, in our view, that there was no merit in the appellant's original draft ground of the appeal that the verdicts of guilty were unreasonable and unsupported by the evidence. Further, the grounds which the appellant now seeks to advance must be assessed in light of the strength of the prosecution case, particularly on counts 1, 2, 5 and 6 on the indictment.
Proposed new grounds 1 - 4
Proposed new grounds 1 - 4, and the submissions advanced in support of those grounds, were drafted by the appellant and are difficult to follow. They are characterised by both the appellant's and the State's written submissions on the Application as relating to the conduct of the appellant's legal representatives at trial.[63]
[63] Appellant's submissions, par 36 - 40; respondent's submissions, par 29.
As the respondent's written submissions point out, the appellant's allegations about the conduct of his counsel lack any evidentiary foundation. Further, it may be noted that the appellant's submissions concerning the alleged failure by counsel to follow his instructions proceed on a misunderstanding of the role of defence counsel in a criminal trial. As this court noted in Morgan v The State of Western Australia:[64]
Counsel is not the mere mouthpiece of his or her client, who must follow 'instructions' as to the questions to be asked of witnesses or the details of the evidence to be adduced from those witnesses. Counsel is required to make an independent judgement about those matters, in a manner which is consistent with counsel's professional obligations both to the client and the court. The 'instructions' taken by counsel are not as to matters of that kind, but as to the relevant circumstances understood by the client and matters such as whether the client wishes to give or adduce evidence. The fact that [trial counsel] did not comply with requests to ask particular questions of particular witnesses, or produce particular photographs, does not establish a miscarriage of justice.
[64] Morgan v The State of Western Australia [2019] WASCA 185 [217].
To the extent that the proposed grounds in this matter seek to establish a miscarriage of justice arising from trial counsel's conduct of the trial, the grounds and submissions fail to come to grips with what is required to establish such a miscarriage. As the court noted in Huggins v The State of Western Australia:[65]
An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)
[65] Huggins v The State of Western Australia [2018] WASCA 61 [376].
It may be that the appellant seeks to raise other matters by grounds 1 - 4. However, none of the matters raised appear to us to give rise to a miscarriage of justice, much less any substantial miscarriage of justice. For example, the appellant contends that there was evidence that he referred to himself as 'Sammy' rather than 'Tommy' in his communications with AS. Even if that were to be established, it seems to us to be an immaterial detail. The appellant refers to the fact that AS's evidence was not given by way of a recorded child witness interview with police shortly after the matter came to the attention of police. While that is an available means of presenting the evidence of a child complainant in a case such as the present,[66] there is no requirement for the prosecution to do so. The appellant also refers to the late discovery and disclosure of the text messages retrieved from AS's phone, and the failure of trial counsel to seek an adjournment of the trial. However, no miscarriage of justice arises in circumstances where the appellant accepts that he sent the messages and their content is not disputed.
[66] Evidence Act 1906 (WA) s 106HB.
We are not satisfied that the proposed new grounds 1 - 4 have any reasonable prospect of succeeding.
Proposed new ground 5: late retirement of jury
The appellant's proposed new ground 5 is, whilst intelligible, without merit. It in effect asserts that a miscarriage of justice arose from the jury being sent out late in the day to consider their verdicts, and not being sent home earlier.
The jury retired to consider their verdicts at 4.37 pm on Friday 3 May 2019. The trial judge had previously indicated that it was a matter for the jury as to how long they sat on Friday to consider their verdicts, and that they could come back on Monday if they wished.[67]
[67] Trial ts 393, 634.
Immediately before the jury retired, the trial judge told the jury the following:[68]
Madam Foreperson, members of the jury, I have indicated to you yesterday, I think, that you could sit for as long as you wish to this evening. That still remains. It's entirely a matter for you. I don't know what your intention is. You don't need to [do] anything further today. What I'll do is ask you to retire in a moment and determine how you would like to proceed.
If you would like to start at 9.30 again on Monday you can of course do so otherwise we will start at 10 o'clock in which case I will say good morning and then ask you to retire to continue your deliberations. But if everybody is comfortable and you wish to stay back tonight to make a start or to sit longer and complete, that of course is entirely a matter for you but it must be convenient for everybody and if anybody has had enough then you must draw stumps, we will reconvene and I will say something to you for the weekend.
[68] Trial ts 644.
Shortly after the jury retired, the sheriff's officer indicated that the jury were going to 'stay a little while'. The judge adjourned pending the verdicts of the jury or an indication that they wished to cease deliberating and resume on Monday.[69] The jury returned to deliver their verdicts at 7.17 pm.
[69] Trial ts 646.
There is no basis for the appellant's assertion that the jury were placed under pressure to make a hasty decision. The choice as to whether to sit on or to reconvene on Monday was left to the jury, and they chose to sit on. They were in a position to deliver verdicts relatively early in the evening.
Proposed ground 6: evidence that the appellant was on remand
Ground 6 in effect contends that a miscarriage of justice arose from the admission at trial that the appellant was being held in custody on remand.
After lunch on the third day of trial, a police officer, DSC Robinson, was asked by the prosecutor whether the appellant was remanded in custody after he was interviewed by police on 13 May 2017. The officer responded that the appellant was 'remanded in custody for breaching his bail conditions'.[70] Evidence had previously been given by another police officer that the appellant had been granted bail after being interviewed on 27 December 2016 in relation to the offending the subject of counts 1 and 2 in the indictment.[71]
[70] Trial ts 381.
[71] Trial ts 247, 249.
The evidence was the subject of the following exchange between the trial judge, the prosecutor, Mr Dungey, and defence counsel, Mr O'Sullivan:[72]
[72] Trial ts 390 - 391.
STEVENSON DCJ: Counsel, two matters arising out of the evidence of Detective Senior Constable Robinson. There was a reference by both of you to Mr Krishnan being in custody as a result of another matter, breach of bail as I understood it.
DUNGEY, MR: Yes. I discussed the matter with my learned friend beforehand. He told me he didn't have any objection to me mentioning that the attendance was on the accused in prison, on the second occasion.
As I understand it - I wasn't expecting the officer to refer to breach of bail. But as I understand it they are bail conditions that were imposed following his arrest in relation to the charges, the subject of counts 1 and 2. And they related to his use of social media, but that's only my understanding.
He's been in custody the whole time our office has had conduct of these cases.
STEVENSON DCJ: Thank you. So I - - -
O'SULLIVAN, MR: That's correct, your Honour.
STEVENSON DCJ: Yes. Thank you, Mr O'Sullivan.
So obviously I'm raising it because we don't usually hear that sort of evidence. In the circumstances I'm assuming both counsel don't want me to say anything and we can anticipate the jury will interpret it as being a reference to counts 1 and 2.
O'SULLIVAN, MR: Yes. That's the way it is.
In accordance with counsel's wishes, the trial judge did not say anything about the evidence as to the appellant being on remand for breach of his bail conditions in his Honour's direction to the jury.
In his evidence-in-chief, the appellant gave evidence about being held on remand until the trial was resolved.[73] He also gave unchallenged evidence that he had no criminal record in Australia or elsewhere.[74]
[73] Trial ts 420.
[74] Trial ts 422 - 423.
Having regard to well-established principles,[75] it is not reasonably arguable that any miscarriage of justice arose from the inadvertent reception of inadmissible evidence prejudicial to an accused. There was, in the circumstances of the present case, no real and perceptible, as distinct from remote or fanciful, risk that the impugned evidence might lead the jury to reason impermissibly or otherwise result in an unfair trial. The comment that the appellant was on remand for breaching bail conditions was made in passing, and not repeated. Nothing further was said about it. Counsel and the trial judge, absorbed in the atmosphere of the trial, did not consider that it gave rise to any prejudice and did not seek or give any special direction. The jury were not told what the breach of bail conditions involved, and if the jury were to assume anything about this on the information they had been given it would be that the charged conduct on 12 May 2017 was what led to the revocation of bail. The appellant gave unchallenged evidence that he had no criminal record. There is no reason to apprehend that the jury might have inferred from the evidence that the appellant was being kept on remand because of prior offending. Nor was there any reason for the jury to think that the fact the appellant was on remand made it more likely that he had committed the charged offences.
Conclusion as to merit of proposed new grounds
[75] See RLB v The State of Western Australia [2021] WASCA 73 [149] - [150].
For the above reasons, in our view none of the appellant's proposed new grounds of appeal have any reasonable prospect of succeeding. Even if (contrary to our view) this court had the power to allow the appellant to reopen the appeal, it would be futile to exercise that power. That is because, if the appeal were reopened, leave to appeal would properly be refused on all of the proposed new grounds.
Orders
We note that previous decisions involving the appellant have identified him as 'NPK' to avoid prejudicing the appellant's retrial on count 7. However, the State has since discontinued the charge on that count. There is therefore no reason to continue the anonymisation of the appellant in these reasons.
For the above reasons, the Application should be dismissed as incompetent. While we would receive the affidavits of the appellant and Ms King for the purposes of resolving the Application, it is not appropriate to order that those affidavits be admitted as additional evidence in an appeal which has been concluded. The only order that is necessary is that the appellant's application in an appeal dated 16 July 2021 is dismissed as incompetent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
30 SEPTEMBER 2021
1
7
0