KWLD v The State of Western Australia
[2012] WASCA 253
•4 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KWLD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 253
CORAM: MAZZA JA
HEARD: ON THE PAPERS
DELIVERED : 4 DECEMBER 2012
FILE NO/S: CACR 229 of 2012
BETWEEN: KWLD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :GN 372 - 374 of 2011, GN 434 - 439 of 2011, CC 5382 of 2011, CC 5383 of 2011, CC 5384 of 2011, CC 5385 of 2011
Catchwords:
Criminal law - Order requiring sentencing judge to provide a report
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Application granted
Category: D
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Holgate Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fleay v The State of Western Australia [2012] WASCA 219
Morey v The State of Western Australia [2006] WASCA 161
MAZZA JA: The appellant has filed an appeal against sentence. The appeal is at an early stage. No appellant's case has yet been filed.
Before the court is an application by the appellant dated 13 November 2012, for an order requiring a sentencing judge to provide a report. The application is consented to by the respondent.
In very general terms, the background is as follows. The appellant pleaded guilty to a number of offences of a sexual nature in the Children's Court involving four complainants. A trial of the issues took place over a period of four days. The issues for his Honour to determine were, as I understand it, whether the complainants consented to engaging in sexual activity with the appellant, or alternatively, whether the appellant held a belief that the complainants consented. His Honour reserved his decision.
On 24 August 2012 his Honour orally delivered his reasons for decision, and it is thought that his Honour read from a prepared document.
The transcript of proceedings is incomplete because:
(1)the commencement of proceedings is not recorded (ts 2); and
(2)there were a number of audio drop‑outs in the recording between:
(i) 9:49:00 ‑ 9:53:51 (ts 6);
(ii)9:54:26 ‑ 10:00:09 (ts 6);
(iii)10:04:01 ‑ 10:13:58 (ts 8); and
(iv)10:19:48 ‑ 10:20:38 (ts 10).
I am satisfied that on the basis of the affidavit evidence before me, that all efforts have been made both at the Children's Court and by the court's official transcribers to remedy these deficiencies. Unfortunately, these efforts have been unsuccessful.
The part or parts of his Honour's reasons that are of particular relevance to the appellant, concern his Honour's rejection of the proposition that the appellant mistakenly believed that one or more of the complainants consented to sexual contact with him. The appellant believes that his Honour may have erred in this regard. According to the appellant's solicitor, his Honour's reasons for rejecting the appellant's arguments on this point are among those parts of the proceedings that were not transcribed.
Each counsel who appeared before his Honour, made notes of his Honour's findings. However, it would be plainly advantageous to the parties and to this court, for his Honour to provide his prepared reasons for decision which he apparently read from on 24 August 2012. This, it is hoped, will assist in remedying the deficiencies in the written record.
This court is empowered to 'require' a report from the primary court on any aspect of the decision the subject of the appeal: s 40(1)(h) of the Criminal Appeals Act 2004 (WA); Fleay v The State of Western Australia [2012] WASCA 219; and Morey v The State of Western Australia [2006] WASCA 161.
In the circumstances, it is proper for this court to respectfully seek the assistance of the learned sentencing judge. Pursuant to s 40(1)(h) of the Criminal Appeals Act I make the following orders:
1.Birmingham DCJ is required to provide this court, as soon as practicable, with a report of the reasons for decision he delivered on 24 August 2012 to comprise any prepared notes made by him from which he read or which formed the basis of his reasons for decision. In the event that no such notes exist, his Honour is required to provide a report to that effect.
2.The parties shall have leave to inspect and copy his Honour's report.
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