M v The Queen

[2004] WASCA 236

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   "M" -v- THE QUEEN [2004] WASCA 236

CORAM:   STEYTLER J

LE MIERE J
JENKINS J

HEARD:   19 JULY 2004

DELIVERED          :   21 OCTOBER 2004

FILE NO/S:   CCA 206 of 2003

BETWEEN:   "M"

Applicant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   [SUPPRESSED]

File No:   [SUPPRESSED]

Catchwords:

Criminal law - Sentence - Application for extension of time within which to appeal - Application to adduce evidence on appeal in existence at time of sentence but not adduced at sentence - Application to adduce evidence on appeal of events occurring after sentence - Evidence inadmissible

Legislation:

Criminal Code (QLD), s 668E(3)

Criminal Code (WA), s 689(3), s 697

Sentencing Act 1995 (WA), s 8, s 137, s 138, s 139, s 140, s 141, s 142

Result:

Application for extension of time within which to lodge application for leave to appeal against sentence dismissed

Category:    A

Representation:

Counsel:

Applicant:     Mr S B Watters

Respondent:     Mr J Mactaggart & Mr T B L Scutt

Solicitors:

Applicant:     Gary Huggins & Associates

Respondent:     State Director of Public Prosecutions

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

Anderson v The Queen (1996) 18 WAR 244

Cameron v The Queen [2004] WASCA 16

Gallagher v The Queen (1986) 160 CLR 392

Gavin v The Queen (1992) 6 WAR 195

Hook v Ralphs (1987) 45 SASR 529

In re Van Beelen (1974) 9 SASR 163

McMaster v The Queen [2004] WASCA 52

Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985

Plumstead v R (1997) 7 Tas R 206

R v Amuso (1987) 32 A Crim R 308

R v Birks (1990) 19 NSWLR 677

R v C (2004) 89 SASR 270

R v Cartwright (1989) 17 NSWLR 243

R v Fordham (1997) 98 A Crim R 359

R v Golding & Golding (1980) 24 SASR 161

R v Goodwin (1990) 51 A Crim R 328

R v Hughes [2004] 1 Qd R 541

R v Knights (1993) 70 A Crim R 105

R v Lanham [1970] 2 NSWR 217

R v Maniadis [1997] 1 Qd R 593

R v Many (1990) 51 A Crim R 54

R v McIntee (1985) 38 SASR 432

R v MJM [2004] NSWCCA 66

R v Rostom [1996] 2 VR 97

R v Smith (1987) 44 SASR 587

Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Jogia v The Queen [2000] WASCA 331

Palata Investments Ltd v Burt and Sinfield Ltd [1985] 2 All ER 517

R v Azaddin (1999) 109 A Crim R 474

R v Barany (2000) 114 A Crim R 426

R v Munday [1981] 2 NSWLR 177

R v Ngo [1999] 3 VR 265

R v Willard (2001) 120 A Crim R 450

Salihos v The Queen (1987) 78 ALR 509

1. STEYTLER J:  I have had the advantage of reading, in draft, the judgment of Jenkins J.  I agree with her that no extension of time should be granted for the filing of an application for leave to appeal against sentence.

2. As Jenkins J has pointed out, the merits of the proposed appeal will ordinarily need to be considered, amongst other factors, in deciding whether or not to grant an extension of time:  Gavin v The Queen (1992) 6 WAR 195 at 198, 202 ‑ 203, 219. Here, the applicant's notice of appeal reveals that his appeal turns upon the question whether or not he is able to adduce admissible evidence which, had it been adduced before the sentencing Judge, would have resulted in the imposition of a lesser total sentence of imprisonment in respect of the drug‑related offences of which he was convicted than that which he in fact received.

3. Jenkins J has said that the evidence relied upon by the applicant falls into two categories.  The first (referred to by Jenkins J as the "category one information") comprises evidence of a complaint of police corruption made by the applicant to the police internal investigation branch in September 1995.  That complaint was later withdrawn by the applicant because of his fear of retaliation and also because of his disillusionment as regards the integrity of the internal investigation.  However, he repeated it to officers of the Anti‑Corruption Commission in 1997 and 1998 when those officers approached him.  The second category (referred to by Jenkins J as the "category two information") comprises evidence of co‑operation by the applicant in giving evidence of corruption (unrelated to that the subject of the category one information) on the part of another police officer to a Royal Commission which had been set up to inquire into the question whether there had been corrupt or criminal conduct by any Western Australian police officer ("the Police Royal Commission").  That evidence resulted in the Royal Commission making an adverse finding against the officer.  However, the evidence was given, and the offer to give it was made, after the applicant had been sentenced in the proceedings giving rise to this application.

4. Self‑evidently, the category one information was known to the applicant at the time of sentencing (he was sentenced [publication of the precise date has been suppressed pursuant to the terms of a suppression order made by the Court on 12 November 2004] [in] 2001).  However, for reasons which have not been explained by the applicant, it was never disclosed to the sentencing Judge.  This was so notwithstanding that his counsel told the sentencing Judge that the applicant had supplied police with other information which had led to the arrest and successful prosecution of four offenders on serious drug charges.  As will be apparent from the judgment of Jenkins J, the fact of this last‑mentioned assistance provided by the applicant, taken together with other mitigating factors applicable to him, resulted in the sentences of imprisonment imposed upon him being substantially reduced from those which would otherwise have been imposed.

5. Jenkins J has mentioned that, in McMaster v The Queen [2004] WASCA 52 at [43], this Court has recently confirmed (per McKechnie J, with whom Malcolm CJ and Wheeler J were in agreement) that there is a discretion to admit fresh evidence so as to bring before the Court facts which were in existence at the time of the imposition of a sentence but which were not known by the sentencing Judge. "Fresh" evidence is, of course, evidence which could not, with reasonable diligence, have been produced by the parties seeking to rely upon it at the time of sentencing: Gallagher v The Queen (1986) 160 CLR 392 at 395, per Gibbs CJ. Before admitting it, the Court would have to be satisfied of its relevance, credibility (in the sense that it is capable of belief) and cogency (in the sense that, if the evidence is received, the sentence imposed might be found to be unjust): Hook v Ralphs (1987) 45 SASR 529 at 535, per von Doussa J).

6. In this case the category one information is not fresh evidence.  I have said that it was known to the applicant at the time of sentencing.  However, as Jenkins J has explained, there are cases in which it has been held that this, on its own, is not necessarily fatal to the admission of the evidence.  These include R v Goodwin (1990) 51 A Crim R 328 and R v Maniadis [1997] 1 Qd R 593. That said, these and other cases (see, for example, R v Lanham [1970] 2 NSWR 217 at 218, per Mason and Manning JJA and Isaacs J; R v Hughes [2004] 1 Qd R 541 at [4], per McPherson JA and [17], per McMurdo J (as her Honour then was) and McMaster at [43]) also establish that it will be a rare case in which new (as opposed to fresh) evidence is admitted and, indeed, that even fresh evidence is rarely admitted in sentencing appeals. In Lanham, at 218, Mason and Manning JJA and Isaacs J said (their Honours' comments are apposite, also, in this jurisdiction):

   "It would seem from the argument presented to the Court in support of the submission that the fresh evidence should be received that a belief is entertained in some quarters that it is the customary practice of the Court to receive fresh evidence on matters relevant to penalty.  It is necessary that we should state clearly and unequivocally that it is not the customary practice of the Court to receive fresh evidence and that in every case proper grounds must be established as a foundation for the exercise of the Court's discretion to admit fresh evidence.  Indeed, if the Court were to take any other view, it would be lending its encouragement to a situation in which evidence relevant to the issue of penalty might be withheld from a lower Court to be used on appeal in the event that the penalty imposed was thought to be too severe."

7. The guiding principle, as I understand it, is simply that the Court has a discretion to admit new evidence so as to avoid a miscarriage of justice:  Maniadis, at 597; Hughes, at [15]. For myself, I would be reluctant to say anything which might be taken to limit that broad principle. However, I think that it can safely be said that, where the further evidence was known to the applicant at the time of sentencing, it will only be in an exceptional case that the Court will be persuaded that the failure to disclose it has resulted in a miscarriage. Even criminal defendants will ordinarily be made to bear the consequences of their own decisions and there are sound policy reasons for emphasising the need to ensure that all relevant evidence is adduced before the primary tribunal (cf Hughes at [15]) and for discouraging the possibility of withholding evidence for tactical reasons (cf In re Van Beelen (1974) 9 SASR 163 at 185; R v McIntee (1985) 38 SASR 432 at 434 ‑ 435; and Lanham, at 218).

8. There is no basis in this case for concluding that there will have been a miscarriage of justice if the new evidence of the category one information is not to be adduced.  I have stressed that the applicant knew of its existence at the time of sentencing.  Moreover, he must have appreciated its possible relevance to the sentences imposed.  While his counsel has invited us to infer that the applicant was reluctant to provide the category one information to the Court for fear of police retaliation (I have said that the applicant has not himself offered any explanation for the non‑disclosure), I agree with Jenkins J that that inference looks to be rather doubtful.  The applicant had, by then, already made the information available to the police (albeit he later withdrew his complaint) and to officers of the Anti‑Corruption Commission.  More probable, perhaps, is a competing inference that the applicant did not then regard that information as being likely to add, in any significant way, to the evidence of much greater co‑operation which was already before the Court.  All that the undisclosed category one information amounted to was information about the applicant's complaint (subsequently withdrawn and then later repeated in the circumstances which I have described) of corruption on the part of the officers who had investigated him in respect of a drug offence and who had then, as he contends, falsely charged him with possession of a prohibited drug.  For myself, I would not have thought that this information would have made any significant difference to any of the sentences imposed upon the applicant or to the total sentence imposed upon him, given its limited value and the existence of the other evidence of co‑operation to which I have already referred.

9. That brings me to the evidence comprising the category two information.

10. I have said that that information relates to events which occurred only after the applicant had been sentenced.  Moreover, it sheds no light on the circumstances which existed at the time of sentencing.  As Jenkins J has said (and I would gratefully adopt all that she has said in this respect), there is no connection between anything said or done in the course of the original sentencing process and the later assistance given by the applicant to the Police Royal Commission (following upon what seems plainly to have been a change of heart on his part in that respect).  This Court has held, in McMaster (at [43]), that, in a case of that kind, the evidence is receivable only when the Court must resentence in circumstances in which the original sentencing discretion has miscarried.

11. In my respectful opinion, the Court was right to reach that conclusion. It should be remembered that, in this State, appeals against sentence are provided for by s 689(3) of the Criminal Code. As with other similar provisions (as, for example, s 668E(3) of the Criminal Code in Queensland:  see Hughes, at [2], per McPherson JA), the Court of Criminal Appeal is empowered, "if they think that a different sentence should have been passed", to quash the sentence passed at the trial "and pass such other sentence warranted in law … in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal" (my italics).  The Court is consequently concerned, in an appeal against sentence, only with circumstances which existed at the date of the sentence (cf Hughes, above, at [14], per McMurdo J), although it has a discretion to admit evidence of later facts which shed new light on facts or circumstances which then existed:  R v Smith (1987) 44 SASR 587 at 588; R v Amuso (1987) 32 A Crim R 308 at 312; Anderson v The Queen (1996) 18 WAR 244 at 258 ‑ 259 (referring, inter alia, to the provisions of s 689(3) and s 697 of the Criminal Code); and McMaster, at [43]. Where the evidence does not concern, or shed new light on, those circumstances, there is no discretion to admit it and the person relying upon that evidence is left to depend upon an exercise of the Royal Prerogative of Mercy: see ss 137 to 142 of the Sentencing Act 1995. 

That, in my opinion, is the case with the category two information (although I would not wish to be taken to have suggested that this is a case in which there should be an exercise of the Royal Prerogative).

1. It follows that the proposed appeal against sentence has no merit, in my opinion.  That being so, it would be futile to extend the time within which an application for leave to appeal might be lodged.  I would consequently dismiss the application.

2. LE MIERE J:  I have had the advantage of reading in draft, the judgments of Steytler and Jenkins JJ. 

3. I agree generally with the reasons for judgment of Jenkins J.  I accept that the Court has a discretion to admit new evidence, as distinct from fresh evidence, so as to avoid a miscarriage of justice.  However, the applicant has not demonstrated that a miscarriage of justice will result if evidence of the Category 1 information is not admitted. 

4. So far as the evidence of the Category 2 information is concerned, I agree with Steytler and Jenkins JJ that the evidence is not admissible. 

5. As the proposed appeal has no merit, the application for an extension of time within which to apply for leave to appeal should be refused.

6. JENKINS J:  [Suppressed] [In] 2001 the applicant pleaded guilty in the District Court sitting in Perth to [suppressed] [drugs] charges [suppressed].  [H]e was sentenced to an aggregate term of 10‑1/2 years' imprisonment and was granted a parole eligibility order.

7. On 22 December 2003 the applicant applied for an extension of time within which to appeal against the sentences imposed for the offences.  The principles upon which an extension of time within which to appeal will be granted are well known; Gavin v The Queen (1992) 6 WAR 195; Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108; 2 December 1985; Cameron v The Queen [2004] WASCA 16 per McKechnie J at [28]. A significant delay in instituting an appeal requires a cogent explanation before the Court will be prepared to extend time. The longer the delay, the more exceptional the circumstances must be before an extension will be granted, unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted. The power to extend time should only be exercised upon facts being established which, in the judgment of the court, appear positively to call for its exercise.

1. Thus it is necessary for me to consider the explanation for the delay in bringing the application for an extension of time within which to appeal, as well as whether the sentences imposed on the applicant were excessive.  The applicant relies upon additional evidence that was not before the learned sentencing Judge to show that the sentences were excessive.  Unless that evidence would be admitted at the hearing of an application for leave to appeal the sentences or on a substantive appeal the grant of an extension of time will be of no utility.  As I have decided that the evidence would not be admissible these reasons primarily address the issue of the admissibility of the additional evidence.

Grounds of Appeal

1. If the applicant is granted leave to appeal he would rely upon the following grounds:

   "1.The sentence imposed on the applicant was manifestly excessive having regard to the following factors:

   a.At the time of sentence there was information that was withheld from the court by the offender.

   b.The information withheld was of a nature that it would have significantly assisted law enforcement authorities in the investigation and apprehension of other offenders, including corrupt officers and public officials.

   c.The offender attempted to provide the information to law enforcement authorities prior to sentence, but was prevented from doing so by the actions of corrupt police officers.

   d.Due to the creation of new investigative authorities subsequent to sentence the offender has now provided the information previously withheld.

   e.The information now provided has proved to be of significant assistance to law enforcement agencies in the detection and apprehension of other offenders.

   f.Had the learned sentencing Judge had the above material before him it would have resulted in a greater discount in sentence."

Facts related to the applicant's convictions and sentences

1. The charges against the applicant are set out in two indictments.  The first indictment [suppressed] contains two charges [suppressed].

2. [Suppressed]

3. [Suppressed]

4. [Suppressed]

5. [Suppressed]

6. The second indictment [suppressed] contains one charge [suppressed].

7. [Suppressed]

8. [Suppressed]

9. [Suppressed]

10. [Suppressed]

11. The applicant pleaded guilty to all charges [suppressed] [in] 2001.

12. [Suppressed]

13. [Suppressed]

14. [Suppressed]

15. The prosecutor gave the learned sentencing Judge a letter of recognition which advised the court that, since his arrest on these charges, the applicant had provided the police with information about ongoing criminal conduct and that this information had directly led to the successful prosecution of four civilians on serious drug charges.  I have read that letter and it is clear that the assistance he gave the police is unrelated to the additional evidence that is the subject of this application.

16. The applicant disputed the State's position concerning his role in the commission of the offences.  In relation to the [first] offences [suppressed], his Honour sentenced the applicant on the basis that he agreed to hold the drugs on behalf of another person for reward in the form of money and drugs, knowing that they would ultimately be distributed in the community for profit but not intending to do that himself.  In relation to the [subsequent] offences [suppressed], his Honour concluded that the applicant was the "prime mover" for the offences [suppressed].  He sentenced him on the basis that he was at the upper or higher end of the drug distribution chain.

17. As to mitigating factors the learned Judge took into consideration that the applicant had pleaded guilty, albeit not at the first opportunity.  He also took into account that the applicant had suffered depression in the past and through self rehabilitation he was drug free.  However, he concluded that these personal circumstances were of limited mitigatory force due to the seriousness of the offences.  His Honour expressly gave the applicant credit for the assistance he had given the authorities.  The applicant acknowledges this.

18. [Suppressed]

19. [Suppressed]  The sentences were backdated [suppressed] because of time spent in custody on remand and the applicant was granted a parole eligibility order.  These sentences are the subject of this application.

1. The time for lodging an application for leave to appeal these sentences expired [suppressed] [in] May 2001.  The applicant did not lodge an application. 

2. [Suppressed] [In] June 2001 the applicant pleaded guilty in the District Court to a [further] charge [suppressed].  He was sentenced [suppressed] to 3 years' imprisonment to be served concurrently with the [original] sentences imposed [suppressed].  The sentencing Judge said that the offence "stemm[ed] in part from the one transaction in that the materials used for the manufacture … were all seized during the same raid [suppressed]".  [Suppressed].  In deciding to order a concurrent sentence his Honour expressed the view that a term cumulative upon the existing sentences might offend the totality principle.  This sentence is not the subject of this application.

Facts relating to the application for leave to appeal

1. The applicant submits that the sentences imposed on him [suppressed] [in] 2001 were appropriate given the information in the possession of the sentencing Judge.  However he says that they were excessive if regard is had to:

   1.the information that he could have given to the sentencing court about other assistance he had given to the police concerning police corruption ("category one information"); and

   2. information he was allegedly willing as at the time of sentencing to give to the police about police corruption but had decided not to provide because he was "afraid" to continue with his complaints against police ("category two information").

2. It is necessary to provide some details about the category one and category two information and the reasons why the applicant says he did not mention his assistance to or willingness to assist the police in these respects.  This is in order to determine whether the information would be admissible on appeal.

3. As to category one information, in his affidavit of 19 December 2003 the applicant deposes:

   "9.I originally made a formal complaint on 6 September 1995 about certain police officers who had searched my home [suppressed].  This complaint was made to the internal investigation branch of the police force.  I have attempted to obtain a copy of the complaint and my written statement, but have been refused by the Police Freedom of Information services.

   10.Officers from the internal investigation branch met with me at the office of my then solicitors.  They informed me that they would do covert operations on the 2 police officers that I complained about, as they already had numerous complaints involving them.

   11.The day following this meeting I received a telephone call from one of the police officers that I had complained about.  That officer told me that he was aware that I had lodged a formal complaint.  To the best of my recollection, he said 'everyone is entitled to one mistake – you just made yours'.  When I asked him what he was talking about, he said 'I know you went to Internals.  We will "square up" about what you are doing'.  This conversation was tape‑recorded and the tape given to my then solicitor, but I am informed and verily believe that the tape has now been lost.

   12.Because of this telephone conversation, I became scared for my own safety and disillusioned with the ability of the internal investigation branch to deal with the complaint.  I had a further meeting with officers from the internal investigation branch at the office of my then solicitor, where I asked them how the police officer complained about knew of the complaint.  They denied disclosing it to him, but I no longer trusted the internal investigators and discontinued the complaint.

   13.I was subsequently contacted by officers from the Anti‑corruption Commission in 1997‑98 and again gave them the details of my complaint about the corrupt police officers.  As far as I am aware, this complaint did not go any further."

4. A statement that the applicant made to the police on 11 September 1995 became Ex B at the hearing of this application.  I understand that it contains the facts which constitute the complaint that the applicant made on 6 September 1995 and again in 1997‑8.  It is sufficient to note that the complaint is an allegation that during a search of his premises a named police officer asked the applicant to show him where he kept his money.  The officer allegedly told him that if he did that then he would split the money with the applicant and not advise other police officers that it had been found.  The applicant did not do as requested by the officer.  The officer then charged the applicant with possession of a prohibited drug.  The applicant alleged that this was a false charge as the police did not find any drugs on him or at his premises that day.

5. The applicant has not deposed to the reason or reasons why he did not tell the sentencing Judge that he had made this complaint to the police and that he was still prepared to assist in the investigation of it.

6. As to category two information, the applicant deposes that:

   "16.I have given evidence at the Police Royal Commission which has resulted in action being taken against a corrupt serving police officer.  I am currently applying for formal acknowledgement of my actions through a 'letter of assistance' from the Commission."

7. The detail of the applicant's evidence and related assistance is contained in the statement of the applicant dated 11 September 1995, the Final Report of the Royal Commission into whether there has been Corrupt or Criminal Conduct by any Western Australian Police Officer ("the Royal Commission"), dated 3 March 2004, and in a letter of recognition provided to this court on the hearing of this application.  In summary, in 1995 the applicant alleges that he committed a burglary at the behest of a named, then serving, police officer so that officer could make a false insurance claim.  In September 1995, during the search of his premises the subject of the category one information, the applicant was found in possession of a firearm that he had received from another person whom he had arranged to carry out the burglary.  He lied to the arresting police on that occasion and said that he had bought the firearm but suspected that it was stolen at the time he purchased it.

8. After the applicant was sentenced for these offences he agreed to and did provide information and evidence to the Royal Commission about this matter and it resulted in the Royal Commissioner making an adverse finding against the relevant officer in its final report. 

9. In his affidavit the applicant states that due to the attitude of the investigators from the Royal Commission he believed they took his information seriously and he was willing to and did assist them to the best of his ability.  He further says that prior to the approach from the Royal Commission investigators he was "afraid" to continue with his complaints against corrupt officers and he was "prevented from doing so".  However he does not explain why he failed to tell the sentencing Judge about this matter and his willingness to assist the authorities in relation to it.

10. Further, it is clear that in 1995 the applicant was not prepared to make a complaint about the conduct of this officer and it is uncertain whether, by [suppressed] 2001, when he came to be sentenced that his attitude had changed.  This is because when the applicant was arrested for possession of the firearm and asked for an explanation for his possession of it, he lied.  At that point he had no reason to be afraid of the police or reason to believe that the police would not investigate a complaint.  The only inference available is that he then lied to protect himself and, probably, the allegedly corrupt officer.  Less than two weeks later [suppressed] the applicant made a statement about the conduct of the police the day that the firearm was seized.  It is notable that in that statement he maintained, what he now says was a lie, that he had purchased the firearm knowing that it was probably stolen.  Again, he had no reason to lie to the police at that point if he truly desired to make a complaint about the corrupt behaviour of the police officer from whom he had obtained the gun.  In February 1996, the applicant was convicted of possession of the unlicensed firearm.  He does not assert that he made any attempt to advise the court at that time of the true origin of the firearm.  In 1997‑8 he told the officers of the Anti-Corruption Commission about the category one information but not about the category two information.  Consequently it is clear that the applicant's desire to assist the authorities in relation to the category two information did not coincide with his desire to assist them in relation to category one information.  At some point in 2002, the applicant decided to make a complaint in relation to the category two information, but when he had this change of heart, I do not know.

11. The applicant's application for an extension of time within which to seek leave to appeal was filed on 22 December 2003. 

Legal principles relevant to the admission of evidence on appeal

1. McKechnie J, with whom Malcolm CJ and Wheeler J agreed, recently considered the relevant  principles for the admission of evidence by a Court of Criminal Appeal on an offender's application for leave to appeal against sentence when that evidence was not known to the sentencing Judge in McMaster v The Queen [2004] WASCA 52. With respect, I agree with his Honour's summary of the relevant principles which he stated, at [43], as follows:

   "(a)If the fresh evidence relates entirely to events which have occurred since the sentence, it may only be receivable if there has been an error in sentencing discretion by the Judge.

   (b)If there is no error, the evidence is inadmissible, and under Criminal Code s 689(3) the Court 'shall dismiss the appeal'.

   (c)In consequence, if subsequent events have made a sentence, appropriate when passed, manifestly excessive, that is a matter for the Executive and the prerogative of mercy, not the Court of Criminal Appeal.

   (d)Fresh evidence may be admitted in discretion to bring before the Court facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge.

   (e)Fresh evidence may be admitted in discretion to explain facts which were before the sentencing Judge so as to put them in a new light.

   (f)Even when the discretion to admit fresh evidence is enlivened, the discretion will only be exercised in exceptional or unusual cases."

2. The issue in McMaster (supra) was the admissibility of evidence of facts occurring after the offender had been sentenced.  Consequently the Court did not examine in detail the criteria which should guide the exercise of the discretion referred to in (d), that is the discretion to admit evidence of facts which were in existence at the time of the imposition of the sentence but were not known to the sentencing Judge except to the extent that according to principle (f) the cases must be exceptional or unusual.  Neither have I found another Western Australian decision that sets out those criteria.  Thus it is helpful to look at some case law from other Australian jurisdictions to ascertain what criteria should guide the exercise of the discretion.

3. In R v C (2004) 89 SASR 270 the Court of Criminal Appeal of South Australia conducted a like task in relation to the admissibility of evidence of facts occurring after sentence Doyle CJ noted at [8]‑[9] that whilst decisions in other States are relevant to the approach to be taken it had to be borne in mind that at least in Tasmania one of the statutory grounds for an appeal court to set aside a sentence was that to allow the sentence to stand would give rise to a miscarriage of justice: Plumstead v R (1997) 7 Tas R 206 at 209. There is no such express power in South Australia and so his Honour said that cases from Tasmania and other States that had a similar provision to that in Tasmania may have to be considered on the basis that there was power to set aside a sentence that was not generally available.

4. The relevant Western Australian statutory provision is the Criminal Code (WA), s 689(3) which states:

   "(3)On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

5. It is similar to that in South Australia, rather than Tasmania.  Consequently I do not intend to review cases from Tasmania.

6. In R v Goodwin (1990) 51 A Crim R 328 at 330 Hunt J (with whom Grove J agreed), said that in relation to the admissibility of material not falling within the "usual definition of fresh evidence" in relation to a sentencing appeal what must be established, at least in NSW, is:

   "(1)that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

   (2)that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

   (3)that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings."

7. By the phrase "usual definition of fresh evidence" he was referring to material which could not with reasonable care have been discovered previously: Ratten v The Queen (1974) 131 CLR 510 at 520.

8. However, the New South Wales Court of Criminal Appeal does not always strictly apply the above three principles.  In R v Fordham (1997) 98 A Crim R 359, Howie J, with whom the other two members of the Court agreed, said, at 387:

   "Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

   However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: McKenna (unreported, Court of Criminal Appeal, NSW, No 60705 of 1991, 16 October 1992). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A crim R 328: compare De Marco (unreported, Court of Criminal Appeal, NSW, No 60024 of 1993, 20 November 1995). There is also a general power in the court to receive fresh or new evidence where the interests of justice require that course: Many (1990) 51 A Crim R 54."

9. In Queensland the leading case on whether an appellate court can consider facts and circumstances existing at the time of sentence but not the subject of evidence then adduced is R v Maniadis [1997] 1 Qd R 593. In the joint judgment of Davies JA and Helman J, with whom Fitzgerald P agreed, their Honours said at 596‑597, (citations omitted) referring to the provisions of the Criminal Code (QLD) which are in similar terms to the Criminal Code (WA), s 689(3):

   "The sole ground in subs (3) that some other sentence is warranted appears to allow at least the same latitude to an appellate court to admit such evidence. That is not to say that the discretion to admit new evidence in an appeal pursuant to subs (3) will be commonly exercised by an appellate court.  But a court of appeal will admit new evidence on such an appeal, notwithstanding that it is not fresh in the above sense, if its admission shows that some other sentence, whether more or less severe, is warranted in law; in this case, that the sentence in fact imposed was unwarranted in the sense that it was manifestly excessive.  Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed. "

10. Their Honours then discussed whether such further evidence would ever be admitted absent a satisfaction of the conditions indicated by the judgment in R v Goodwin (supra).  They declined to follow Goodwin (supra) and held that although further evidence will usually be excluded absent a satisfaction of those conditions, there remained a discretion in an exceptional case to admit further evidence to avoid a miscarriage of justice.  In their view, it was undesirable to state in advance the matters which, in every case, must be proved in order to establish such a miscarriage.

11. In Victoria in R v Knights (1993) 70 A Crim R 105, J (Marks and Hempel JJ agreeing) said, at 110, after referring to Ratten (supra) at 517 - 518:

    "By comparative reasoning when dealing with an appeal against sentence, it is clear, I think, that this Court may resentence if it considers that the failure of the sentencing court to have before it relevant and cogent evidence might well have led to the risk of a miscarriage of justice."

12. In that case the applicant's counsel, had known of the evidence sought to be admitted on appeal concerning the applicant's assistance to the authorities in other matters but, inexplicably, had not put it before the sentencing Judge.  The Court of Criminal Appeal admitted the evidence and re‑sentenced the applicant.

13. In South Australia the issue was considered in R v Smith (1987) 44 SASR 587, where King CJ (Cox and O'Loughlin JJ agreeing) said:

    "… The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light."

14. Smith (supra) was applied by Doyle CJ (White J agreeing) in R v C (supra).  That case involved a consideration of whether evidence of post sentencing assistance given to the authorities should be admitted on an appeal against sentence.  The majority (Perry J dissenting) held, at [35] and [143], that the evidence was inadmissible because the evidence "did not throw any new light on a matter considered by the court when passing sentence, and of significance to the sentence to be imposed". 

15. There have been other cases which have specifically dealt with the issue as to whether an appeal court should admit evidence of assistance given by an offender to the authorities when that information was not before the sentencing Judge.

16. For example, in R v Many (1990) 51 A Crim R 54, the New South Wales Court of Criminal Appeal admitted evidence on appeal of assistance given by the applicant to the authorities before sentencing but not afterwards. The application to appeal the sentence was made out of time but the Court concluded that that the sentencing Judge had erred in not taking into account the assistance given by the applicant. Thus the applicant had to be re‑sentenced by the appeal Court. The fact of assistance had been referred to before the sentencing Judge but the detail of it only became known when the Court of Criminal Appeal admitted the evidence on appeal. The Court decided to admit the evidence in the interests of justice even though it was not strictly speaking fresh evidence. The Court took into account that the offender probably did not realise its significance and that his counsel was probably unaware of it.

1. The principle, applied in many cases including R v C (supra), that post‑sentencing assistance to authorities can not be admitted on appeal was recently applied by the New South Wales Court of Criminal Appeal in R v MJM [2004] NSWCCA 66 at [45]. In that case the offender had been asked by the authorities prior to his sentencing to provide information about another crime but had not been prepared to do so until after he was sentenced.

2. Inhttp://accplus.lawbookco.com.au/servlet/Back2Acc1?citStr=98+A+Crim+R+359&clsStr=4 R v Rostom [1996] 2 VR 97, the offender was convicted of importing heroin. He had co‑operated with prosecuting authorities over a number of years in relation to an unrelated murder and, immediately after being found guilty but before sentence, gave evidence for the prosecution in relation to that matter. Whilst in prison, serving his sentence, the offender was harassed and threatened by other prisoners as a consequence of his evidence in the murder trial and was placed in protective custody. He applied for leave to appeal against sentence and sought to lead fresh evidence concerning his co‑operation with the prosecution in relation to the murder and of the threats and harassment he had suffered in gaol. At 101, Charles JA said:

   "… in relation to events …before the applicant was sentenced, … the admission of that material is itself necessary to explain what has taken place in prison since the applicant was sentenced. Furthermore, the circumstances are exceptional in that the applicant was in fact called as a witness at the last trial of Koureas after the applicant had been found guilty of the instant offence and very shortly before he was sentenced by the County Court judge."

3. The Victorian Court of Criminal Appeal admitted the evidence but I note that its admission was not objected to by the prosecution.

4. After reviewing this body of case law and also Western Australian cases such as McMaster (supra) and Anderson v The Queen (1996) 18 WAR 244, I conclude there is consistency in the application of principles (a) and (e) set out in McMaster (supra).  Although it is clear from the authorities that (e) only applies to evidence of events occurring after sentencing.  The criteria to guide the discretion to admit the type of evidence referred to in (e), were discussed in Anderson (supra).  As McKechnie J noted in McMaster (supra) at [27], the judgments in Anderson "display a difference of approach".  As my view is that the additional evidence does not fall into that category I do not intend to investigate those differences.  However, I note that once an appellate court decides that it is evidence falling into category (e) there is generally a recognition that the evidence should be admitted on appeal.  This in turn appears to be because it relates to a matter that was relevant to and considered in the sentencing process, the nature of the evidence is often concerning the applicant's or a relative's life threatening illness or condition that directly impacts on the severity of sentence and because there can be no suggestion that the applicant or his or her counsel, deliberately withheld the material from the sentencing court.

5. However, as to the application of the principle in (d) whilst all jurisdictions I have looked at accept that that appellate courts have a discretion to admit evidence on appeal that was in existence at the time of sentencing but was not before the sentencing court there is no agreement as to the criteria, if any, which should guide the exercise of that discretion.  The absence of guiding principles does not assist the parties in determining what their approach to the sentencing process itself should be and to any subsequent application for leave to appeal.  Further it is not conducive to consistency in appellate decisions.  In my opinion the principles stated in Goodwin (supra) are appropriate criteria to guide the exercise of the discretion, realising that there is a residual discretion to admit evidence in cases that do not meet those criteria if the absence of the evidence at first instance has led to a miscarriage of justice.

6. Accepting that there is such a residual discretion, only exceptional cases will come within it.  This is because applying what Gleeson CJ said in R v Birks (1990) 19 NSWLR 677 at 685 in respect to defects in the trial process to the sentencing process, what amounts to a miscarriage of justice has to be considered in light of the operation of the criminal justice system which includes that as a general rule an offender is bound by the way in by the way the sentencing process is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for allowing an appeal against sentence "that decisions made by counsel are made without, or contrary to, instructions, or involve errors of judgment or even negligence". Similarly an offender is in general bound by the instructions he gives his counsel even if he or she subsequently decides that tactically he or she should have given different instructions. As has been said many times, there is a need for finality in litigation and it would be contrary to this principle to encourage litigants to believe that the original sentencing process is a dress rehearsal for an inevitable appeal. I agree with what Howie J said in Fordham (supra) including that a "miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing Judge, even if the evidence may possibly have had an impact upon the sentence passed".

Application of the principles to the facts of this case type="1">

Turning first to the category one information, it is evidence that was available to the applicant to produce at the sentencing hearing if he so wished as it substantially involved his attempts to co-operate with the authorities prior to sentencing.  In my opinion it is evidence that falls within (d) in McMaster (supra), not (e).  There were no facts before the sentencing Judge about the category one information because the applicant chose not to tell the sentencing Judge about it.  The sentencing Judge was aware that the applicant had provided assistance to the police about matters totally unrelated to the category one information.  He knew everything he needed to know about that assistance and he properly took it into account in the sentencing process. 

Turning then to the application of the principles in Goodwin (supra), as I have stated above, the applicant has not given any reason, let alone a cogent reason, as to why he did not include the category one information in his plea in mitigation.  The court has been asked to infer that the reason the applicant did not disclose his complaint to the sentencing Judge was because he was afraid of the police and not confident that the information that he gave to the police would be taken seriously and kept confidential.  I am unable to come to these conclusions.  I do not accept that the lack of disclosure was through fear of the police because the evidence discloses that there were no adverse effects for him when he repeated his complaint to the police in 1997 or 1998.  Further I do not accept that the lack of disclosure was because of lack of confidence in the police because such a view would not impact on the relevance of the material in the sentencing process.  Neither do I accept that the applicant was unaware that he was able to put information before the sentencing Judge, in at least a semi‑confidential manner, as he wrote a letter to the Chief Judge of the District Court outlining his personal circumstances for the purpose of mitigation of sentence.  In addition he was aware that a confidential letter of recognition had been provided to the court concerning assistance he had given to the police.  He must have appreciated the relevance of this material to the sentencing process.  The second criterion from Goodwin (supra) has not been met.

Still, the applicant asks this Court to overlook his failure to disclose the material to the sentencing Judge for reasons based in public policy.  These being that offenders should be encouraged to inform on other offenders and corrupt police by receiving credit in the sentencing process for such assistance and that the applicant should not be prejudiced in the sentencing process by the improper or incompetent conduct of the police in failing to act on the applicant's complaints.  The applicant says that if the police had followed up on the category one information it is likely that his assistance would have been included in the letter of recognition and he would have been given a further discount for his cooperation with the authorities.

As to the first submission, there is no doubt that a sentencing discount is given if an offender has supplied information to the police about other offences or offenders because it is in the public interest to encourage offenders to provide such information; R v Cartwright (1989) 17 NSWLR 243; R v Golding & Golding (1980) 24 SASR 161 per Wells J at 172‑173. The Sentencing Act 1995 (WA), s 8, impliedly recognizes this in that it says that if because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court. However I do not accept that it is in the public interest to admit the category one information so that three years after the applicant chose not to mention the category one information when he was sentenced for these offences he can seek to obtain that reduction. The public interest in the encouragement of informants must be balanced against the public interest in the finality of litigation, being in this case his prosecution leading to his conviction and sentence.

As to the second submission the most immediate cause of the omission of the category one information from the sentencing process was the conduct of the applicant in not adducing it before the sentencing Judge.  The police did not prevent him from adducing it.

I now turn to whether the evidence would be admissible on appeal so as to prevent a miscarriage of justice.

It is relevant to note that the category one information remains an allegation only.  Despite the Royal Commission and the applicant's restating of the complaint in 2002 there is no evidence before this Court that any person has been charged in relation to the matter or that the complaint is of substance.  The letter of comfort provided to this Court does not refer expressly to it and the respondent does not concede that it is of substance.

Further the respondent submits, and I accept, that the motivation for making the complaint in 1995 has to be evaluated in light of the admitted fact that it was made against the police officers who had found the unlicensed firearm in the applicant's possession.  As the Royal Commission found, the applicant had an interest in ensuring that he was not implicated in the burglary from which that firearm had been obtained.  Clearly, he pursued this interest by giving the police false information about the origins of the firearm. The applicant's complaint against the police who found the firearm may have been motivated by a desire to see justice done but it is equally consistent with a desire to distract the police from an investigation into the firearm and burglary.

I conclude that if the sentencing Judge had been told that the offender had made a written complaint against a police officer and in the same complaint had provided misleading information about his own involvement with an  unlicensed firearm he had been found in possession of, which misleading information was given to ensure that his involvement, and perhaps that of a police officer, in serious offences of burglary and fraud was not discovered it would have been unlikely to result in a further reduction in the sentences imposed on the applicant.  This is because it would not be appropriate for a sentencing Judge to reward an offender for making a complaint about allegedly corrupt police officers but at the same time giving misleading information about his own involvement in the commission of another offence.

If the applicant had also revealed his involvement in the burglary and fraud offences and expressed a willingness to assist in the investigation of those matters he may well have been entitled to a greater discount.   The difficulty for the applicant is that, for the reasons given earlier, I am not satisfied that in [suppressed] 2001 he was prepared to tell the sentencing Judge about those matters.  Further for the reasons given below the evidence with respect to his later assistance to the authorities in respect to the burglary and fraud offences would not be admissible in any appeal proceedings.  Consequently I am not satisfied that any miscarriage of justice has occurred in respect to the absence of the category one information.

As for the category two information I have already stated that I am not satisfied that the applicant was willing to provide it to the authorities as at [suppressed] 2001.  Whilst the allegedly corrupt behaviour the subject of the category two information occurred before the applicant was sentenced for these offences, his assistance to the Royal Commissioner in relation to it occurred after sentencing.  Therefore the facts have some similarities to those in R v MJM (supra) because it is evidence of events, that is assistance and a willingness to assist, that occurred after the sentencing process concluded.  Consequently it falls into (a) in McMaster (supra).  As it discloses no error in the exercise of the sentencing Judge's discretion the evidence would be inadmissible on any appeal from those sentences.

I acknowledge that it is arguable that the category two information is evidence about subsequent events that throw light on the information that was before the sentencing court about the Applicant’s then assistance to the authorities.  As Doyle CJ said in R v C (supra) at [19] the distinction between these various classes of evidence is "not always easy to draw".  However, my considered view is that that is not the proper classification of the category two information.  The reasons for this conclusion are first, it was approximately 12 months after the date the applicant was sentenced that he assisted the Royal Commission investigators.  There is simply no connection between the sentencing process and the assistance he gave to the Royal Commission.  The second is that it would be contrary to the goal of attaining finality in litigation to permit the applicant, after having had his sentence mitigated by assistance on one matter, to appeal at a much later date on the basis that he has provided assistance to a different body in relation to a totally different matter.  Thirdly, the assistance given by the applicant to the Royal Commission does not throw any light on the assistance he gave to the police in respect to the matter that was the subject of the letter of recognition provided to the learned sentencing Judge.  I acknowledge that the applicant's remorse and character as shown by his assistance given to the police in respect to the drug offences of the four civilians was a factor relevant to the sentencing process.  However, his probably subsequent decision to assist the Royal Commission does not throw any positive light on his remorse and character as at the time of sentencing, which was the relevant issue for the learned sentencing Judge.  Finally, there is potentially an alternative remedy available to the applicant and that is through a petition for the exercise of the prerogative of mercy.

Conclusion

1. As I have determined that on the hearing of an application for leave to appeal or a substantive appeal the additional evidence relied upon by the applicant would not be admitted, the applicant's appeal could never succeed.  Thus there is no utility in granting leave to extend time within which to file an application for leave to appeal the subject sentences.