Leyshon v The State of Western Australia
[2006] WASCA 132 (S)
•30 JUNE 2006
LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 132 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 132 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:52/2005 | 2 JUNE 2006 | |
| Coram: | MARTIN CJ STEYTLER P WHEELER JA | 30/06/06 | |
| 29/08/06 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed Retrial ordered The reasons delivered on 30 June 2006 be published together with, and read subject to, the correction made in these reasons for judgment | ||
| B | |||
| PDF Version |
| Parties: | JONATHAN LEWIS LEYSHON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Substantive reasons for decision already delivered Whether transcription of the direction given by the trial Judge to the jury erroneous Whether the Court of Appeal's decision was based upon an erroneous foundation Further argument before certificate recording the final conclusion of the Court's decision issued pursuant to r 62 of the Supreme Court (Court of Appeal) Rules 2005 Correction of error Whether ultimate disposition of the appeal should be altered |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4) Supreme Court (Court of Appeal) Rules 2005 (WA), r 62 |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Palmer v The Queen (1998) 193 CLR 1 Weiss v The Queen (2005) 80 ALJR 444 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEYSHON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 132 (S) CORAM : MARTIN CJ
- STEYTLER P
WHEELER JA
DECISION : 29 AUGUST 2006 FILE NO/S : CACR 52 of 2005
- CACR 53 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 125 of 2004
(Page 2)
Catchwords:
Appeal - Criminal law - Substantive reasons for decision already delivered - Whether transcription of the direction given by the trial Judge to the jury erroneous - Whether the Court of Appeal's decision was based upon an erroneous foundation - Further argument before certificate recording the final conclusion of the Court's decision issued pursuant to r 62 of the Supreme Court (Court of Appeal) Rules 2005 - Correction of error - Whether ultimate disposition of the appeal should be altered
Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 62
Result:
Appeal allowed
Conviction quashed
Retrial ordered
The reasons delivered on 30 June 2006 be published together with, and read subject to, the correction made in these reasons for judgment
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr D Dempster
Solicitors:
Appellant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
(Page 3)
Palmer v The Queen (1998) 193 CLR 1
Weiss v The Queen (2005) 80 ALJR 444
Case(s) also cited:
Nil
(Page 4)
1 MARTIN CJ: This matter was first heard by this Court on 2 June 2006. On 30 June 2006, we delivered reasons for our decision that the appeal should be upheld, the appellant's conviction quashed, and a retrial ordered.
2 One of the grounds upon which the Court arrived at that conclusion derived from a passage in the directions given by the trial Judge to the jury which was recorded at page 273 of the transcript provided to this Court for the purposes of the appeal in the following terms:
"One knows, you may think, that they were in close proximity to the door during at least the final stages of this struggle. You have had the accused's description as to how he got hold of the tie. The bathrobe appears clearly not to have come away. It would have required two hands. Could he do it with one hand while he was holding her while she was struggling? If it required two hands was it something that could be done while he was kneeling? If she was struggling could he do it without causing the bathrobe to fall?"
3 The apparent tension between the assertion that "it would have required two hands" and the questions which the trial Judge immediately thereafter posed to the jury and which presumed that the question of whether or not two hands were required was an open question was identified during the course of argument in this Court.
4 After referring to that tension, I posed this question to counsel for the State:
"We're confident that transcription is correct, are we, because there does seem to be a bit of a tension between those two portions of the paragraph."
5 Thereafter the following interchange occurred:
"DEMPSTER, MR: I'm actually wondering whether it was because it is out of sync with the way his Honour expressed himself not only later, soon after, but in the way his Honour expressed himself generally. There certainly was an issue as to how it happened. The aspects I have mentioned were important: the position of the robe on the back of the door, the question of the deceased woman's legs obstructing the door and so on.
(Page 5)
- MARTIN CJ: In that paragraph, his Honour seems to be putting to the jury essentially the same proposition that the police were putting to the accused; that is, if it was still on the door, it can't have been taken off with one hand because if you tugged on the robe, you would have pulled the robe off the door.
DEMPSTER, MR: Yes. That's as I understood the way it was left, I have to say."
6 This response from counsel for the State is no doubt why Wheeler JA observed, in [40] of her reasons for decision that:
"There is some apparent inconsistency in what his Honour said at that point, which makes one wonder about the way in which it was said to the jury, and the aspects which his Honour emphasised. In particular, there seems to be an inconsistency between the apparent statement 'it would have required two hands', and the following question, 'Could he do it with one hand … ?' There is no suggestion, however, that the transcript is inaccurate."
7 However, subsequent to the delivery of our reasons for decision, it has been drawn to the Court's attention that in fact the transcription of the direction given by the trial Judge to the jury, and upon which our decision on that aspect of the appeal was based, is erroneous. The Court has itself heard the tape recording of the direction given by the trial Judge to the jury and has made that tape recording available to counsel for the parties. It is clear that his Honour did not in fact say, "It would have required two hands". Rather, his Honour posed a question to the jury in terms of, "Would it require two hands?"
8 This transcription error completely alters the sense of his Honour's direction to the jury and acceptance of that transcription error removes any basis whatever for any suggestion that his Honour erred in respect of any matter of fact.
9 The matter has come back before this Court before any certificate recording the final conclusion of the Court has been issued pursuant to r 62 of the Supreme Court (Court of Appeal) Rules 2005 (WA). Accordingly, in my view, it is both necessary and appropriate for this Court, in the interests of justice, to correct the error which was induced by the provision of an erroneous transcription of the direction to the jury.
(Page 6)
10 The most practical way in which this could be achieved is to direct that those reasons only be published in future together with the reasons now given by this Court and prefaced by a statement to the effect that the reasons published on 30 June 2006 are to be read subject to the corrections which we are now making to those reasons.
11 This error is extremely unfortunate. This Court must be able to proceed upon the assumption that the transcription of proceedings from the Court below is accurate, unless counsel makes any submission to the contrary. This Court simply does not have the time or the resources to itself undertake any process of checking the accuracy of transcript. It is consequently essential that the assumption of accuracy be soundly based. I have therefore given an administrative direction that an inquiry be undertaken to ascertain whether procedures applicable to the checking of transcripts can be improved so as to minimise, and hopefully eliminate, the risk of any recurrence of this regrettable episode.
12 The episode is all the more regrettable because the publication of our reasons for decision provided the basis for an attack upon the trial Judge in a national newspaper. It is now clear that the criticism made of his Honour rested upon an erroneous foundation. However, the newspaper was, of course, relying upon the published reasons of this Court.
13 The question which must now be addressed is whether, in the light of the recognition that one of the grounds upon which the Court determined to uphold the appeal is without foundation, the ultimate disposition of the appeal should be altered.
14 This directs attention to the second ground upon which the appeal was unanimously allowed.
15 This ground was addressed in [48] - [54] inclusive of the reasons published by Wheeler JA on 30 June 2006. It derives from the observation made by the trial Judge, in his direction to the jury, that there was very considerable conflict between the evidence given by the appellant and that given by the witness Sinclair as to the tying of the dressing gown cord around the deceased's neck and between the evidence of the appellant and the deceased's mother as to the telephone call made to her. After referring to those conflicts, his Honour observed to the jury that they were:
"… incapable of living together so perhaps one or other of them is mistaken or giving evidence which is deliberately untrue
(Page 7)
- about that. If that was your view, you might ask yourselves why that was happening."
16 As Wheeler JA observed, it seems inevitable that the jury would have taken this question as directing their attention to the prospect that one or other witness or the appellant was giving evidence which was deliberately untrue.
17 As Wheeler JA pointed out, the difficulty with presenting a question of that kind to the jury is that it contravenes the principle enunciated by the High Court in Palmer v The Queen (1998) 193 CLR 1 by suggesting that the jury should accept the evidence of the witnesses other than the appellant unless satisfied by the appellant that there was some positive reason for those witnesses to lie.
18 In the context of this case, there is the further difficulty that if the posing of this question caused the jury to ask why the accused would lie, they might then conclude that such a course was dictated by his consciousness of guilt, and they were unassisted by any direction of the kind identified in Edwards v The Queen (1993) 178 CLR 193.
19 As I observed in [10] of my reasons published on 30 June 2006:
"No submission was put to us by the State to the effect that we should apply the proviso and uphold the conviction on the ground that there had been no substantial miscarriage of justice …"
20 However, the State now submits that the proviso contained in s 30(4) of the Criminal Appeals Act 2004 should be applied and the conviction upheld notwithstanding the misdirection we previously identified, relying upon the decision of the High Court in Weiss v The Queen (2005) 80 ALJR 444.
21 The submission which is put is to the effect that when the direction as a whole is considered, we should conclude that no substantial miscarriage of justice has occurred.
22 I am unable to accept this submission. As I observed in my reasons previously published, the substantive question for the determination of the jury was whether the appellant had the intention of killing the deceased at the time he applied the cord to her neck. In that context, the question of which of the appellant or Sinclair, or which of the appellant and the mother of the deceased should be believed, were each critical questions to
(Page 8)
- the determination of the factual substratum from which the jury would be required to infer the intent of the deceased. The problem with the direction is that it does seem to me to invite the jury to accept the evidence of each of Sinclair and the mother of the deceased, unless and until some reason for them giving false evidence was established by the accused, thus misconceiving the onus of proof, contrary to the decision in Palmer (supra).
23 Further, because the critical question was that of the intent of the accused, if the jury had concluded, by reason of the question posed to them by his Honour, that the accused was conscious of his guilt, in the sense of consciousness of his intention to kill the deceased, it was essential that they be guided by a direction of the kind identified in Edwards (supra). The State submits that it did not press consciousness of guilt as an issue in the course of the trial, but when this Court is required to assess whether or not there has been a substantial miscarriage of justice, it seems to me that the critical question that we must address is the possible effect of that direction upon the jury. We will, of course, never know what effect the direction had in fact, but in my opinion, and consistent with the views expressed by the High Court in Weiss (supra), the entitlement of the accused to a trial according to law in this case requires that there be a retrial in which the jury is either not invited to speculate in this manner, or, if a submission of consciousness of guilt is to be put, are appropriately guided in their evaluation of that submission.
24 For these reasons, notwithstanding the most regrettable transcription error which has occurred in this case, I remain of the view that the appeal should be upheld, the conviction of the accused quashed, and a retrial ordered and I would propose the following additional order:
1. That the reasons published on 30 June 2006 be published together with these reasons for judgment and are to be read subject to the correction now made in these reasons.
25 STEYTLER P: I agree with the Chief Justice.
26 WHEELER JA: I also agree.
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