Lunam v The State of Western Australia
[2007] WASCA 73
•22 MARCH 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LUNAM -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 73
CORAM: ROBERTS-SMITH JA
HEARD: 22 MARCH 2007
DELIVERED : 22 MARCH 2007
FILE NO/S: CACR 245 of 2005
BETWEEN: JEANETTE CRAWFORD LUNAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Bail pending appeal - Drug offences - Aggregate sentence of 5 years' imprisonment - Appeal against conviction - New evidence - Witnesses not called at trial - Leave to appeal granted - Prospects of success on appeal - Personal and familial circumstances of hardship - Whether "exceptional reasons" appellant should not be kept in custody pending appeal
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M J Aulfrey
Respondent: Mr D Dempster
Solicitors:
Appellant: Ian Hope
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Forkin v The State of Western Australia [2006] WASCA 10
N v The State of Western Australia [2006] WASCA 276
Stalker v The Queen [2002] WASCA 364
ROBERTS-SMITH JA: This is an application for bail pending appeal. The appellant was convicted on the 25 August 2005 in the District Court sitting at Kalgoorlie before his Honour Judge Fenbury and a jury of three counts. The first was manufacturing a prohibited drug, the second was possessing amphetamine with intent to sell or supply and the third was also manufacturing a prohibited drug. She was sentenced to an aggregate term of 5 years' imprisonment with an order that she be eligible for parole.
The appellant filed her appeal notice on 21 December 2005. That contained three grounds. Ground 1 is that the trial of the appellant was subject to a miscarriage of justice in that her counsel at trial failed to call as a witness, Terrence Harvey, being a witness that she wished to have called and who she said would have provided exculpatory material for the consideration of the jury.
Ground 2 says that the trial of the appellant was subject to a miscarriage of justice in that her counsel at trial did not attempt to challenge the admissibility of the video record of interview tendered by the state, which was unfair and should not have been admissible against the appellant.
Ground 3 was that the appellant's trial was the subject of a miscarriage of justice in that she was unable to call as witnesses, Juliana Harvey and Tammy Palfrey, who she says would have provided exculpatory evidence for the consideration of the jury.
The appeal notice, as I have said, was filed on 21 December, but the last date for the filing of that was 28 September, and so an extension of time was needed. The appellant's case was filed on 11 August 2006. That had a single ground of appeal which was, "A miscarriage of justice in that the appellant was unable to call significant exculpatory material in the course of her trial." There were significant deficiencies with that and with the proposed conduct of the appeal.
These were pointed out at a hearing before me on 25 August 2006. Subsequently, on 12 October 2006 the appellant filed a number of affidavits in support of her application for leave to appeal. At a further hearing on 26 October I ordered that the hearing on that date be adjourned for further directions to 22 November, that leave be granted to file an amended Appellant's Case and any other affidavits or applications necessary for furtherance of the appellant's appeal and that all documents filed by the appellant be served on the respondent. On 16 November 2006, the appellant filed an application for extension of time to appeal and a further affidavit in support of the application for extension of time.
The application for extension of time was not necessary as if an appeal notice shows that it is out of time and that an extension is needed that is taken as the application: r 28(1) and r 28(2) of the Supreme Court (Court of Appeal) Rules 2005. An affidavit in support is required but that must be filed with the appeal notice, r 28(2).
Finally, and also on 16 November 2006; the appellant filed an application to adduce further evidence on the appeal from Terrence Harvey, Julianna Harvey, Robert Lunam and herself. That was supported by an affidavit from Mr Aulfrey which was filed on 21 November 2006 together with an Appellant's Amended Case.
At a directions hearing on 22 November 2006 I ordered that the application for extension of time to file the notice of appeal be granted and the time be extended to 21 December 2006, the application to rely on the Amended Appellant's Case filed 21 November 2006 be granted and that leave to appeal be granted on the sole ground contained in the Amended Appellant's Case. I further ordered that the application to adduce additional evidence be referred to the Court of Appeal to be dealt with on the hearing of the appeal.
The respondent's answer was filed on 19 December 2006. On 16 February 2007 the parties were given notice that the appeal would be heard by the Court of Appeal on 5 April 2007 and that is where the matter presently stands.
The appellant filed her application for bail together with her own affidavit in support on 9 March 2007.
The legal principles which apply to an application of this kind are common ground between the parties. The appellant concedes that Sch 1 Pt C cl 4 of the Bail Act 1982 requires the appellant to demonstrate exceptional reasons for the grant of bail. She further concedes that a reasonable prospect of success sufficient for a grant of leave to appeal itself will not in itself amount to a reason to grant bail. In that respect the appeal must be shown to be most likely to succeed. (Forkin v The State of Western Australia [2006] WASCA 10; Stalker v The Queen [2002] WASCA 364.)
Following her conviction the appellant was sentenced on 7 September 2005 to imprisonment for 5 years as I have observed. That sentence was backdated to 12 August 2005 and an order was made that she be eligible for parole. She will, accordingly, become eligible for release on parole in about 18 months.
The period of time she is likely to serve before the hearing of her appeal is not a factor being advanced as an exceptional reason why she should not be kept in custody until then. The application is put on the basis that the exceptional reasons are a combination of the strong prospect the appellant's appeal will succeed and her conviction will be quashed together with a range of personal factors unique to her.
They are said to be first in relation to her daughter Julianna Harvey who is said to be mentally unfit and medicated for her mental illness and her condition generally, as to which the appellant deposes in her affidavit. Secondly, there are familial difficulties to which she deposes concerning her two grandchildren, both under the age of four. I shall return to these matters later.
Thirdly, the fact that her family has been the subject of a major loss in that her mother passed away on 1 February after a long illness and due to her incarceration the appellant was unable to spend time with her and, fourthly, she deposes that she is medically unwell herself having a heart condition and of course in prison is subjected to considerable stress.
In N v The State of Western Australia [2006] WASCA 276 I made the following observations at [33] and [34]:
"In R v Tieleman (2004) 149 A Crim R 303, Murray J (with whom Templeman J agreed) said that in the context of an argument that the prospects of the appeal succeeding constitute exceptional reasons, bail would be granted ordinarily only if the appellant could demonstrate there were 'strong grounds for concluding the appeal would be allowed' and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal. His Honour said that even then, it may be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to grant bail on the basis it was satisfied that the exceptional reasons justifying that course existed. As I explained in Fermanis (supra) (at [15]), there is no particular distinction between expressions such as "most likely to succeed" and "strong grounds for concluding the appeal would be allowed" in this context. Neither purports to set some specific threshold of potential success. Each case must be determined on the basis of its own facts. Each expression is predicated upon the notion in the context of the particular case that the prospect of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer an injustice by having been kept in custody on an unsound conviction or sentence."
I shall deal first with the prospect of success. There will be a threshold question on this appeal as to whether the further evidence upon which the appellant wishes to rely will be admitted at all on the hearing of the appeal. That will no doubt turn on a number of factors including the court's assessment of the cogency and possible reliability of it, whether it is properly characterised as new or fresh evidence and the prospect of demonstrating that the failure to call it at trial occasioned a miscarriage of justice.
The single ground of appeal is that there was a miscarriage of justice as a consequence of the appellant's trial counsel refusing to comply with her instructions to call these witnesses who she says could have given evidence exculpating her. For the purposes of this application only, I consider I should assume the Court of Appeal would admit the further evidence on the appeal and so I must assess the strength of the appeal on that basis.
The prosecution case at trial was essentially as follows. It was that the appellant aided and enabled another man, Mr David Smith, to manufacture methylamphetamine on two separate occasions. The State case was that it was Smith who had the knowledge and experience and expertise in the manufacture of speed, that is to say, amphetamine and that, as against the appellant, she knew he was making amphetamine and that she aided and enabled him to do so.
Not only that but it was put that her purpose was that she intended to sell or supply that amphetamine to others. The state case was that the amphetamine was being manufactured for one purpose and that was to make money and that the substantial profits that were going to be made out of the making of the amphetamine were then going to be divided between Smith and the appellant.
So far as the way in which it was put, that the appellant aided or enabled Smith to make the amphetamine, it was the state case not that she was present but that she did a number of things to assist him. Those acts included giving him money to purchase the necessary equipment; providing him with a car to get about in, in order to make the necessary arrangements for the manufacturing of the amphetamine; by allowing some of her own premises and other places that were known to her to be used for the manufacture or "cooking" of the amphetamine and also to store some of the equipment necessary for doing that; allowing her address to be the place where items necessary for making the amphetamine were to be sent and items which she in fact collected herself from the post office; and by paying for Smith's various personal expenses and by herself purchasing various pieces of equipment Smith required for the manufacture.
In more detail, the state case was that on Wednesday, 7 January 2004, police officers from Kalgoorlie and from the Organised Crime Unit in Perth drove about 60 kilometres north of Kalgoorlie to Ora Banda. They had two government chemists with them. They stopped at a place called Kunanalling and then walked a couple of kilometres into the bush.
There they observed two men standing at the rear of a white utility. That utility belonged to the appellant. At the back of the utility, set up on the tray section, was an active laboratory from which methylamphetamine was being produced. The two men at the back of the utility were David Smith and a man called Francis Anthony. They were both promptly arrested by the police. The manufacturing process which was being engaged in on 7 January was the subject of count 3 on the indictment.
On that day the police dismantled the equipment and it was subsequently taken back to Perth for analysis by a forensic chemist.
The evidence of the forensic chemist in short established that methylamphetamine was in the process of being manufactured on that occasion using pseudoephedrine as the base ingredient.
While police were in the bush on 7 January apprehending the two men, other local police were in Coolgardie near the appellant's residence at The Haven Caravan Park. The appellant and her husband were the proprietors of the caravan park. Just adjacent to the park is the Coolgardie Cemetery.
Police searched the appellant's vehicle and located several items including a set of plastic weighing scales that contained traces of methylamphetamine on them, a used syringe that contained traces of methylamphetamine and a receipt for an Australia Post money order in the sum of $100 made out to David Smith. They also found registration papers in the appellant's vehicle which related to the white utility that had been found in the bush location with the laboratory set up on the back and they found various receipts from stores showing items purchased which the state said were connected to the manufacture of the methylamphetamine and were purchased by the appellant for Mr Smith.
Following the search of her car at the Coolgardie Cemetery police then searched a second property owned by the appellant. There they located numerous items consistent with the manufacture of methylamphetamine. They then returned with the appellant to her house at The Haven Caravan Park and conducted a search there of a red utility belonging to her and of a small donga type building near the main house. They located several items which the state again said were linked to the manufacture of methylamphetamine and to other items that were found at the bush location.
During the search of The Haven Caravan Park the appellant directed police to a plastic water bottle which contained a plastic clipseal bag inside it with pink powder inside that. Analysis of the pink powder revealed it to be methylamphetamine weighing 26.5 grams. That was found under the house. A second plastic water bottle was subsequently found under the house also containing pink powder that on analysis was found to be methylamphetamine weighing 24.7 grams. The methylamphetamine found under the house was the subject of count 2 on the indictment.
After the searches which I have just described police went to search a mining lease owned by the appellant approximately 12 kilometres south‑east of Bullabulling. That was conducted on 8 January 2004. Pseudoephedrine was located in a donga type building on the mining lease. It was detected by the chemists on the kitchen bench and in the microwave and on the inside surfaces of an empty coffee jar.
In the course of the video‑recording made of the search and subsequently, the appellant gave an account to the effect that she thought that Smith was making moonshine, that is 100 per cent alcohol. She maintained that she did not know he was making amphetamine.
There was of course more to the state case but that is probably sufficient for present purposes.
Smith in due course was called as a witness on the prosecution case. Effectively in addition to the evidence of the police officers and chemists, and broadly to the effect I have outlined, Smith gave evidence implicating the appellant in the deliberate arrangement to support and assist his drug-manufacturing operations in the various ways indicated. His evidence was an essential part of the State case.
Briefly, the appellant's defence at trial was that she was a naive individual who had a mistaken belief about Smith's activities and she had a lack of knowledge as to the process of creating methylamphetamine.
The submission sought to be advanced on the appeal is that should the jury have had an evidentiary basis upon which to disbelieve Smith's evidence and prefer that of the appellant, the result necessarily would have been either an inability for the jury to be satisfied beyond reasonable doubt of the appellant's activities as described by Smith, or a verdict of acquittal generally.
The submissions in support of the appellant's case on the appeal are in substance that Terrence and Julianna Harvey, the appellant's son and daughter respectively, were not called to give evidence by the appellant's counsel notwithstanding her instruction they be called and that in addition Robert Lunam, a witness named by the state and whose name was on the back of the indictment, was also not called by the appellant's counsel notwithstanding the appellant's instruction that he be called as witness for the defence. It seems to be common ground, or at least a common understanding, that Robert Lunam was apparently overseas at the time of the trial. No application was made by defence counsel to adjourn the trial because of his absence.
In her affidavit filed 12 October 2006 the appellant deposes that she was represented by Mr John Hawkins, barrister, in relation to the trial. She says she met him two or three times during the course of the proceedings, the first being at his office approximately two weeks before the trial. She deposes that at that meeting they discussed the prosecution brief and he went through some parts of it with her during the meeting.
She told him specifically, she deposes, that she wanted her son Terrence Harvey to be called as a witness. She deposes that she said she did that because he could corroborate her account of events and also explain parts of the prosecution case for which she did not have an eyewitness explanation.
According to her affidavit, when she told Mr Hawkins this his reply was, "I'm not too sure about that. I'll let you know closer to the time." He also indicated it was likely the Director of Public Prosecutions wanted to push the case through for trial on that occasion. She says she did not resile from her instructions and gave her son's contact details to Mr Hawkins who said he would get in touch with Terrence Harvey if he needed to. She assumed from this, she says, that her instructions would be followed. She deposes that she had three other meetings, afternoon meetings, with Mr Hawkins during the course of the trial. At none of those did he say he had called Terrence Harvey or issued a summons for him, notwithstanding that she asked each afternoon whether he had made those arrangements. He said he still was not sure and would let her know.
She says she maintained that she wanted him called to give evidence. She says that he was available as she had spoken briefly to him about it. He was in Kalgoorlie at the time and was awaiting a call from Mr Hawkins. In fact Terrence Harvey was never called as a witness despite her instructions.
She deposes that in relation to her daughter Julianna she asked Mr Hawkins by telephone approximately two days prior to the trial whether she could call her as a witness. She suggested that she should be called as in particular she could verify that money was withdrawn from the appellant's accounts for her to purchase Christmas presents, although that was not the only evidence she could give. She deposes that Mr Hawkins' reply was that he did not think it really mattered. Nonetheless she still wanted Julianna Harvey called and gave an instruction to that effect, but she never was.
In his affidavit filed 12 October 2006 Terrence Harvey deposes as follows: that during the period 1 December 2003 to 30 January 2004 he was abusing drugs on a continual and daily basis. His drugs of choice included amphetamine and methylamphetamine. His mother owned a vehicle which he understands was the subject of a search by police and that is a vehicle he has borrowed on a number of previous occasions. He met David Smith in the company of the appellant in approximately October ‑ November 2003 when she arrived at his house with Smith to introduce Smith to him.
Prior to that introduction he deposes that he had been told by the appellant that she was planning to lend a motor vehicle to Smith and she wanted him to form an opinion of Smith. Smith introduced himself to Terrence Harvey as Mick Johnson and answered questions about where he lived and worked and provided two mobile telephone numbers on which he could be contacted.
The next time he met Smith was after an occasion he had been in Perth visiting his son Kyle in the company of the appellant. He met Smith in the main street of Kalgoorlie on that occasion and asked him when he would be able to pay for the car he had borrowed from the appellant and Smith replied that he would be able to do so shortly.
On 26 December 2003 the appellant came to Harvey's house and indicated she had a major argument with Robert Lunam, her husband. She asked for a shower but due to the lack of hot water in his house she was unable to have one and left.
On the night prior to the appellant's arrest, Terrence Harvey had possession of her vehicle which he had borrowed earlier in the day. He had picked up a friend, obtained drugs and used the drugs within the vehicle. A police vehicle came by so he put the used packet and needle into his mother's writing pack which was in the car. After the police left, he dropped his friend off and returned to the appellant's house, having received several phone calls from her asking for the return of her car.
He deposes that the boot of the vehicle contained a set of scales belonging to him and of which the appellant had no knowledge. He never told the appellant about the existence of the scales which he had left in the car earlier, they being part of his drug use equipment. When he arrived at the appellant's house, he had a serious verbal argument with her due to the late return of the vehicle and he walked off in an angry state of mind, not removing the needle, used packet or scales.
In her affidavit also filed 12 October 2006 Julianna Harvey deposes as follows. The appellant has a power of attorney with respect to her affairs and held that in the period December 2003 to January 2004; that during the period December 2003 to January 2004 she borrowed a number of cash sums from the appellant; that she had possession and use of the appellant's bank access card and access to the appellant's bank account; and that she would often draw funds from the appellant's bank account as such. Those amounts would be drawn from the account by her from time to time as she required, and on 11 December 2003 or shortly thereafter the appellant gave her $600 for Christmas shopping.
Finally, in his affidavit of 12 October 2006, Robert Lunam deposes that he is the husband of the appellant and at the time of her trial he was overseas. He deposes that he received a letter from a police officer saying he may be required to give evidence but never received a summons. He was never contacted either by the prosecution or by Mr Hawkins to give evidence or to provide information beyond what was in his written statement made to the police. A copy of his statement is attached to the affidavit. He confirms that the contents of that are true.
He deposes that he is aware that during the course of the appellant's trial an allegation was made by Smith that when he - that is, Robert Lunam - confronted the appellant and Smith at the mining lease, he said they were making speed or words to that effect. Lunam says this is untrue and that at no stage did he ever identify the process involved as the making of speed and that he has no knowledge about how amphetamine or speed is made.
I do not propose to recite here the content of Robert Lunam's statement which appears to be a police statement and part of the prosecution brief. It is dated 9 January 2004. I have of course read it and take it into account.
In the Appellant's Amended Case it is submitted that the significance of Terrence Harvey's evidence is that he had access to and utilised illicit substances and equipment consistent with the use of illicit substances at the time of the investigation and the appellant's arrest. It is said that his evidence would tend to confirm that some, if not many, of the items located by police in the appellant's vehicle in fact belonged to him and had been left there by him and, secondly, to reinforce the implied assertion that the appellant would lend her motor vehicle to other individuals.
It is said that the significance of Terrence Harvey's evidence about meeting Smith in approximately October‑November 2003 goes to Smith's evidence that he met the appellant in company with a drug dealing associate in late November or early December and it was the first time he had met her.
The submission is that evidence of this first meeting from Terrence Harvey would contradict Smith's evidence and buttress the appellant's assertion as to the date of first contact and the nature of that meeting as an innocent association rather than one to arrange a methylamphetamine transaction. The statement by Terrence Harvey that he had been told by the appellant that she was planning to lend a motor vehicle to Smith and wanted Harvey to form an opinion of him is said to be significant as going to buttress the appellant's evidence as to her initial meeting and dealings with Smith and so to rebut the implied assertion that the appellant's trust in Smith was implausible.
As to Julianna Harvey, the significance of her evidence is said to be that it would tend to rebut a main plank of the state case being that the appellant was withdrawing sums of money from her account for Smith's benefit and would provide an explanation for the withdrawal of a number of sums of money from the appellant's bank accounts, providing contradictory material to Smith's evidence.
It is submitted that Robert Lunam's evidence in terms of his statement would be general evidence supporting the appellant's credibility but in particular contradicting Smith in respect of his assertion that Lunam was aware the appellant and Smith were making methylamphetamine and confronted them about that.
The respondent on the other hand submits the prosecution case against the appellant at trial was overwhelming. The respondent, of course, relies upon Smith's evidence which directly implicated the appellant but says that there was considerable independent evidence which supported him and implicated her in the manufacture of methylamphetamine. I do not propose to canvass all of the matters adumbrated by the respondent, sufficient to say that there are numerous matters of evidence which do tend to support that given by Smith.
Whether or not in the end a significant amount of that evidence would be detracted from by the evidence of the witnesses the appellant now seeks to give on hearing of the appeal is a matter which it is presently not possible to resolve.
It is not for a single judge on an application for bail pending appeal to make or express any definite conclusion about whether or not an appeal will or will not succeed. What is required is an assessment of the strength of the prospect of success without having heard full argument and in this case without having heard the witnesses whose evidence is sought to be adduced on the appeal. It is clear the case against the appellant turned almost entirely on the evidence of Smith but as I have observed that was supported in many aspects by objective evidence. On the other hand, much of what the appellant now seeks to lead would go to at least some of that objective supporting material. There is a reasonable prospect of the appeal succeeding. However, I am not presently persuaded it is one that could properly be described as strong, nor that the appeal is most likely to succeed.
I turn therefore to the other features upon which the appellant relies as exceptional reasons. In her affidavit filed 9 March 2007 she deposes as to what she describes as several serious upheavals in her life and those of her family which require her presence on bail. She deposes:
"Firstly, my daughter Julianna Harvey is mentally unfit and is medicated for her mental illness. I hold a Power of Attorney in relation to her affairs, and have done so for the past 8 years. Amongst her conditions has been self-harm. She has done so on several occasions, most recently in early January and very recently in mid-February. On the latter occasion my daughter overdosed on sleeping tablets and has had to be hospitalised. I am informed damage has been suffered to Julianna's kidneys and heart. My daughter requires my guidance and assistance to help her cope with her general day to day needs and keep her safe, particularly at this time. The death of another family member (see below) has in my view caused this serious deterioration of her wellbeing.
Secondly, I have two grandchildren both under the age of four. They are the children of my son James Campbell Lowin. The children are presently in the care of my son's ex-partner. I am informed and verily believe that she is a drug addict who has been neglecting the children for some time. I am advised that the Department of Community Development has been involved with her as they believe the children are at risk. Immediately prior to my incarceration I cared for the eldest grandson (then aged 18 months) for a period of 12 months, as the mother had fallen pregnant with my youngest grandson and advised she was unable to cope with the pregnancy and the child. On my incarceration the child was required to be handed back to the mother. If released I would be in a position to care for my grandchildren and the intervention of the Department (and placement in foster care) would not be required.
Thirdly, my family has been the subject of a major loss in that my mother passed away on 1 February 2007 after a long illness. Due to my incarceration I was unable to spend any time with her. I would need to be released to be able to put her estate in order.
Fourthly, I am medically unwell, having a heart condition. The combination of the abovementioned factors is causing tremendous stress which is not assisted by my presence in a custodial environment. I seek release to receive proper treatment unhampered by stress."
She then goes on to depose that substantial conditions of bail are available to her and that she would comply with any conditions.
An immediate observation which might be made is that what the appellant says about her daughter Julianna's mental condition might well bear upon the extent to which the Court of Appeal might be able to regard her daughter's evidence as credible or reliable in due course. Be that as it may, there is no information before me as to the living or other circumstances of the daughter, nor about what if any familial or other supports or resources are available to her. I note from her own affidavit that she gives her address as a unit in a caravan park in Coolgardie.
The family situation described by the appellant is tragic but the information provided lacks particularity and is unsupported by any medical, professional, departmental, institutional or other independent source. How the immediate release of the appellant would overcome the sad circumstances she describes is not explained. Furthermore, in this respect also the likelihood or otherwise of the appeal succeeding is an important consideration. That is because if the appellant was properly convicted, then to the extent her own and her family's hardships are caused or made greater by her imprisonment, they are the consequence of her own offending for which only the appellant is responsible. The fact she and her family may be experiencing hardships and difficulties or even tragic circumstances is, of course, not itself any basis for setting her conviction aside.
The appellant's appeal will be heard two weeks from today. In all the circumstances I am not persuaded that the personal and familial situation upon which the appellant relies, either alone or in combination with the extent to which her appeal has a prospect of success, constitutes exceptional reasons why she should not be kept in custody pending the hearing of that appeal. That being so, the discretion to consider a grant of bail pending appeal does not arise. The application must be dismissed.
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