Mansell v The State of Western Australia
[2012] WASCA 223
•2 NOVEMBER 2012
MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 223 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:190/2011 | 22 OCTOBER 2012 | |
| Coram: | MAZZA JA | 2/11/12 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAMERON JAMES MANSELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Applications pursuant to s 40 of the Criminal Appeals Act 2004 (WA) Murder Application to file statement, list of authorities and a chronology of relevant events Application for persons to be called for examination in the appeal Application for the appointment of a special commissioner Application for the table of contents of the prosecution brief Application to file certain documents Application for an apology Application to adduce documents relevant to the question of disclosure Application for a true audio copy of the trial Application to admit into evidence witness statements Application to admit into evidence various items of correspondence and various witness statements Application for documents to be accepted for filing Application to adduce letters sent by the appellant to his instructing solicitor |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(a), s 39(1), s 40, s 40(1)(b), s 40(1)(e), s 40(1)(f), s 41(1)(e), s 42, s 45(3) Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(3), r 32(6), r 32(8), r 38(4), r 52 |
Case References: | HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Stavrianakos v The State of Western Australia [2011] WASCA 130 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 223 CORAM : MAZZA JA HEARD : 22 OCTOBER 2012 DELIVERED : 2 NOVEMBER 2012 FILE NO/S : CACR 190 of 2011 BETWEEN : CAMERON JAMES MANSELL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 177 of 2010
Catchwords:
Criminal law - Applications pursuant to s 40 of the Criminal Appeals Act 2004 (WA) - Murder - Application to file statement, list of authorities and a chronology of relevant events - Application for persons to be called for examination in the appeal - Application for the appointment of a special commissioner - Application for the table of contents of the prosecution brief - Application to file certain documents - Application for an apology - Application
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to adduce documents relevant to the question of disclosure - Application for a true audio copy of the trial - Application to admit into evidence witness statements - Application to admit into evidence various items of correspondence and various witness statements - Application for documents to be accepted for filing - Application to adduce letters sent by the appellant to his instructing solicitor
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 39(1), s 40, s 40(1)(b), s 40(1)(e), s 40(1)(f), s 41(1)(e), s 42, s 45(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(3), r 32(6), r 32(8), r 38(4), r 52
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L M Fox
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Stavrianakos v The State of Western Australia [2011] WASCA 130
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
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1 MAZZA JA: On 7 November 2011, Cameron James Mansell, the appellant, was convicted after trial of the murder of Craig Puddy.
The factual background
2 A very broad statement of the factual background to the case is as follows.
3 The appellant and Mr Puddy had, prior to Mr Puddy's disappearance, a social and business relationship and were well known to each other. Their main business interest concerned a bar at the Broadway Fair Shopping Centre, Nedlands called The Basement on Broadway. The appellant had a role in the day to day operations of the bar. The State's case was that the bar was losing money and that Mr Puddy was unhappy with the appellant's performance. Mr Puddy, it was said, believed that the appellant was stealing money from the business.
4 The State's case was that on or about 3 May 2010 the appellant went to Mr Puddy's house in Bateman Road, Mount Pleasant where a violent confrontation occurred that led to the appellant killing Mr Puddy by striking a number of blows to his head. It was alleged that the appellant then disposed of Mr Puddy's body at an unknown location. Mr Puddy's body has never been found. Members of his family, with whom he was close, testified at trial that they had not seen or heard from him since 3 May 2010. No withdrawals had been made from his bank accounts after that date.
5 On 4 May 2010 Mr Puddy was reported missing and a homicide investigation commenced. The appellant was arrested on 7 May 2010 and released without charge after spending about 15 hours in custody. Some days later the appellant left Western Australia and ultimately travelled to Townsville, Queensland where he stayed with relatives. He left those relatives and went camping in nearby bush. On 25 May 2010 the appellant was arrested, charged with Mr Puddy's murder and extradited to Western Australia.
6 The State led evidence from a number of people who spoke with the appellant after Mr Puddy's disappearance. In general terms, he told these people that he was present at Mr Puddy's house when several persons, unknown to him, entered the premises and assaulted him and Mr Puddy. The appellant said that the assailants allowed him to leave but he did not know what became of Mr Puddy. A suggestion raised on behalf of the appellant at trial was that Mr Puddy was a user of illicit drugs and that his assailants may have had something to do with this.
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7 The appellant elected not to give evidence. The appellant's case was that Mr Puddy is not dead. Alternatively, if Mr Puddy is dead the appellant was not involved in the death.
8 The case against the appellant was circumstantial and relied on a combination of evidence of motive, opportunity, forensic evidence, lies the appellant is said to have told to those with whom he discussed the circumstances surrounding Mr Puddy's disappearance and his alleged flight from Western Australia.
The appeal against conviction
9 The appellant has appealed against his conviction. Originally, the sole ground of appeal was that the verdict was unreasonable and could not be supported on the evidence: s 30(3)(a) of the Criminal Appeals Act 2004 (WA). However, the appellant has been given leave to add a further six grounds of appeal.
10 The grounds of appeal as they presently stand are contained in a document entitled 'Minute to [sic] Grounds of Appeal' filed 14 September 2012. They are as follows:
First Ground
The verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be lawfully supported.
Particulars
1. The States theory that the Appellant had a motive to kill Craig Puddy ('Puddy') is untrustworthy, unreliable, illogical, flawed and without adequate factual foundation.
2. The State's theory that the explanation for the murder was the animosity felt by Puddy towards the Appellant which in turn triggered a violent confrontation with the Appellant, is untrustworthy, unreliable, illogical, flawed and without adequate factual foundation.
3. The evidence of post-offence conduct is more consistent with innocence, fear and confusion on the part of the Appellant.
4. The statements made by the Appellant to the four persons concerning the events 3 May 2010 were consistent, exculpatory and capable of belief.
5. The evidence relied upon to suggest conscious of guilt was explicable and innocent explanations provided by the Appellant can not be excluded.
6. Puddy has not been seen since the 3 May 2010.
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The verdict of guilty on which the conviction is based should be set aside because, the Judge gave forbiddendirections at law which misled the jury, being: 'Craig Puddy, ('Puddy') is dead,' and that because there was nothing in evidence about any past violence by the accused they should 'not pay any regard to that.'
A plea of not guilty puts all elements in issue, by giving the forbidden directions His Honour removed from the jury's deliberations elements in issue, being: proof to the required standard that Puddy is dead, and the Appellant's history of non-violence is not something which they should not pay any regard to, the jury were also instructed they must follow all the Judge's directions.
Third Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, His Honour made several errors at law in his discretion on the way in which the trial was conducted and on the evidence to be admitted.
1. The Christie's discretion, probative value verses prejudicial effect of the evidence, was not correctly applied by His Honour.
2. Hearsay and opinion evidence was [sic] impermissibly led by the State.
3. Not sufficiently revellent [sic], but prejudicial evidence was led.
4. Non disclosure to the defendant.
5. A stay on proceedings application to avoid an abuse of process was denied by His Honour.
6. Illegally obtained evidence led by the State.
Fourth Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, the Judge made errors at law through out [sic] trial and especially during summing up His Honour gave inadequate directions and warnings to the jury.
1. His Honour was required to give these directions, Azzorpardi direction, OGD Warning, Edwards direction, Lucas direction, Zoneff direction, Richens direction.
2. He was also required, but failed to give a direction on motive due to the prosecution relying on it.
3. Due to the case against the Appellant was entirely circumstantial His Honour was also required to give adequate directions to the jury on the evidence such as, a Peacock direction and a Shepherd direction.
4. Other warnings and directions covering post-offence behaviour by the Appellant and also evidence given by witnesses in custody were required but not adequately given.
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The verdict of guilty on which the conviction is based should be set aside because, the Appellant did not receive a fair trial according to law.
1. Non disclosure to the defendant.
2. A stay on proceedings should have been granted.
3. A Special Commissioner needs to be appointed to investigate some of the issues raised.
Sixth Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, the State did not act appropriately or fairly according to law.
1. Non disclosure to the defendant.
2. Withheld highly relevant evidence from trial.
3. Led prejudicial and inadmissible evidence.
4. Led evidence not sufficiently relevant.
5. Interfered with witnesses.
6. Induced 'off record comments' by the Appellant as admissions against interest.
6.[sic] A Special Commissioner needs to be appointed to investigate some of the issues raised.
Seventh Ground of Appeal
The verdict of guilty on which the conviction is based should be set aside because, the State's case was completely circumstantial and fails at many levels factually to support the verdict under close examination.
1. The State's theory that Puddy held the Appellant responsible for the failings of the business known as The Basement on Broadway ('BOB') is untrustworthy, unreliable, and factually flawed.
2. The State's theory that the Appellant had a motive to kill Puddy is untrustworthy, unreliable and factually flawed.
3. The State's theory on consciousness of guilt due to flight is untrustworthy, unreliable, and factually flawed.
4. The State's theory that the Appellant and Puddy came to violence is untrustworthy, unreliable, and factually flawed.
5. The State's theory that the Appellant was the author of text messages from Puddy's phone is untrustworthy, unreliable, and factually flawed.
6. Some of the evidence led by State witnesses is patently false and requires close examination.
7. The State's theory that Puddy believed the Appellant was responsible for theft from BOB is untrustworthy, unreliable, factually flawed and inadmissible.
8. The State's theory that the Appellant attempted to steal Puddy's boat is untrustworthy, unreliable, and factually flawed.
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- 9. The State's theory that the Appellant could not account to his client's for their investments is untrustworthy, unreliable, and factually flawed.
10. A Special Commissioner needs to be appointed to investigate some of the issues raised.
11 The question of leave to appeal in respect of grounds 1 and 7, which in essence repeat the original ground that the verdict was unreasonable and could not be supported on the evidence, has been referred to the hearing of the appeal. The respondent has filed a Respondent's Answer dealing with this issue. The question of leave to appeal in respect of grounds 2 - 6 will be the subject of a hearing in this court on 20 November 2012. The respondent has not yet been required to file a Respondent's Answer in respect of these grounds.
12 Grounds 3, 5 and 6 overlap to some extent. All three grounds allege 'non disclosure by the prosecution'. Ground 6 alleges, amongst other things, prosecutorial misconduct including withholding relevant evidence, interfering with witnesses and inducing 'off record comments' as admissions against interest. Grounds 5, 6 and 7 assert that a special commissioner pursuant to s 40(1)(f) of the Criminal Appeals Act 'needs to be appointed' to investigate the issue of nondisclosure, the alleged prosecutorial misconduct, and whether the verdict of guilty was correct.
The appellant's applications in the appeal
13 In the course of the appeal so far, the appellant has filed many applications. I have already dealt with some of them. Between 21 September 2012 and 18 October 2012 the appellant filed 12 separate applications. The number and piecemeal nature of these applications is to be deplored. Most of the applications seek to order the attendance of a witness or to admit evidence in the appeal: s 40(1)(b) and s 40(1)(e) of the Criminal Appeals Act.
14 Before dealing with each application I wish to make some general observations. Some of these are trite, but, acknowledging that the appellant is acting in person in this appeal, they are matters he does not appear to appreciate.
15 A criminal trial is an adversarial process. The appellant was represented at trial by experienced counsel. How the trial was conducted was counsel's responsibility. Ordinarily, a party is bound by the way in which his or her counsel has presented their case: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). While in exceptional or rare cases, decisions by trial counsel may cause a
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- miscarriage of justice, no such allegation has been made by the appellant in this case. It may be, with the benefit of hindsight, that decisions made at trial are regretted or a convicted person wishes that his or her trial had been conducted differently. When a person is convicted of a crime, the desire to have another trial conducted differently, while perhaps understandable, is not how the criminal justice process works. An appellant is not entitled to another trial unless an error or a miscarriage of justice is demonstrated: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659.
16 A conviction may be set aside because of 'new' or 'fresh' evidence. It is axiomatic that such evidence must be relevant. Evidence is considered to be 'fresh' if it did not exist at the time of the trial or it could not have been discovered with reasonable diligence. Evidence will be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: Stavrianakos v The State of Western Australia [2011] WASCA 130. Where evidence is 'fresh' an appeal will be allowed if it is established that there is a significant possibility, having regard to all of the admissible evidence (including the evidence at trial) that a jury, acting reasonably would have acquitted the accused. The position with respect to 'new' evidence is different and more difficult for an appellant. The appeal will be allowed only if the strength of the new evidence shows that the appellant is innocent or raises such a doubt that the appellate court concludes that the appellant should not have been convicted: Stavrianakos [22] - [23].
17 An appeal must be decided on the evidence and material that was before the lower court: s 39(1) of the Criminal Appeals Act. However, an appellate court has the power to admit evidence which was not before the lower court and the discretion to admit evidence not before the lower court is wide and is designed to serve the demands of justice. Thus, this court may admit 'fresh' or 'new' evidence. However the distinction between original and appellate jurisdictions remains and an appeal is not to be considered as a second trial.
18 In so far as the appellant's applications are aimed at adducing evidence in the appeal, none of it is fresh evidence. At best, it is new evidence.
19 When an application is made under s 40(1)(e) of the Criminal Appeals Act, r 52 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) applies. This rule provides that such an application must be filed with an affidavit stating the evidence to be produced or
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- given and how it is relevant to the grounds of appeal or to an issue in the appeal. The rationale for the rule is obvious. It would be pointless to admit evidence in an appeal if it is irrelevant to the appeal. Although each of the appellant's applications was accompanied by an affidavit, none of the affidavits complied with this rule. On 17 October 2012, the appellant filed an outline of submissions in respect of the applications before me which, to some extent, dealt with the matters required by r 52.
The merits of each application
20 I now turn to the merits of each application. I will number each application and deal with them in the order in which they were filed.
1. Application filed 21 September 2012 to file the statement of Bruce Savage and to file a list of authorities and a chronology of relevant events
21 This application is accompanied by a list of authorities and a chronology of relevant events. The appellant is bound to file a list of authorities and a draft chronology by r 32(3), (6) and (8) of the Rules. I will order that these documents, if they have not already been filed, must be filed and served by no later than 4.00 pm on 6 November 2012.
22 Bruce Savage did not testify at the appellant's trial but his deposition was served on the appellant's lawyers. According to the deposition, on 10 March 2012 (approximately two months prior to Mr Puddy's disappearance) Mr Savage was telephoned by Mr Puddy who told him that he wanted his home alarm system serviced as a result of an attempted break-in. Mr Savage went to Mr Puddy's house the following day and observed that Mr Puddy appeared 'rattled' by whatever had occurred at the house.
23 The appellant submitted that the prosecution was under an obligation to call Mr Savage but failed to do so. This, the appellant submitted, was an example of the State withholding 'highly relevant evidence from trial' as alleged in particular 2 of ground 6.
24 Mr Savage's evidence about what the appellant said to him concerning an attempted break-in is hearsay and inadmissible. Mr Savage's impression that Mr Puddy was 'rattled' on 11 March 2010 is irrelevant and inadmissible. It could not rationally affect, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [5] (Gleeson CJ). The evidence of Mr Savage was inadmissible.
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- The State was under no obligation to adduce it. It follows that it cannot be admitted as evidence in the appeal.
25 This application must be dismissed.
2. Application filed 21 September 2012 for various persons to be called for examination in the appeal
26 The appellant wishes, in effect, to obtain an order requiring the following witnesses to be examined at the hearing of the appeal: Bruce Savage; Detective Geeson; Allan and Narelle Mansell; Timothy Saayman; Dr Paul Skerrett; Mark Trowell QC; Ernest Leone; JR (this witness' identity has been suppressed); Dr Mark Reynolds; Paul Heatley; Detective Craig Stephens; Detective Jason Blaine; and Leon Cooper.
27 For the reasons I have given, Mr Savage's proposed evidence is inadmissible. It would be pointless to call him in this appeal.
28 Detective Geeson is both a clinical psychologist and a police officer. She spoke to the appellant shortly after Mr Puddy's disappearance. She provided a deposition but was not called at trial. It is not clear what relevant evidence she could give. The appellant asserted that she may be able to give an expert opinion as to his state of mind. How this would be relevant to an issue in the trial or the grounds of appeal is not apparent.
29 Allan and Narelle Mansell are the appellant's uncle and aunt. Each of them testified at trial. Their testimony was to the effect that the appellant stayed with them in Townsville, Queensland after Mr Puddy's disappearance arriving there on 17 May 2010 (ts 2913). The appellant denied any wrongdoing in respect of Mr Puddy to his uncle and aunt (ts 2914). After staying with his uncle and aunt for approximately six days, their evidence was to the effect that he left out of a concern that the police were closing in on him (ts 2917).
30 The appellant asserts that these witnesses 'may have mislead the court'. The appellant says that the true reason he left his uncle and aunt's house was because of a family dispute. The appellant asserts that instructions to this effect were given to his lawyers but neither Allan or Narelle Mansell were cross-examined about this subject.
31 The bald assertion that his uncle and aunt 'may have mislead the court' is an insufficient basis to require them to be called at the hearing of the appeal. In any event, the appellant is bound by the way his counsel conducted his case.
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32 Timothy Saayman was the appellant's solicitor at his trial. The appellant submitted that he gave many instructions to Mr Saayman which were not followed. As I have already said, the appellant does not allege a miscarriage of justice as a result of the conduct of the appellant's legal advisors. The instructions he gave Mr Saayman are not relevant to the appeal.
33 Dr Paul Skerrett is a psychiatrist who examined the appellant and his wife in March or April 2011 for the purpose of an application by the appellant to be released on bail. In his oral submissions, the appellant said that Dr Skerrett's son, Andrew Skerrett, had, up until approximately February 2011 been his solicitor. The appellant said he thought that 'it was strange' that Dr Skerrett was involved in his case after Andrew Skerrett's services had been dispensed with. The appellant asserted that all of this was relevant to ground 5. I am unable to see how Dr Skerrett can give any relevant evidence in respect of this ground.
34 Mark Trowell QC was retained by Andrew Skerrett at one stage in the proceedings to be the appellant's trial counsel. Mr Trowell's services were dispensed with at or about the same time as Mr Andrew Skerrett. The appellant submitted that Mr Trowell's evidence would establish that he had been given two lever arch files by the State as the prosecution brief and that Mr Trowell advised the appellant to adduce character evidence. The appellant did not explain how Mr Trowell's advice concerning character evidence is relevant to any of the grounds of appeal. The appellant asserted that the provision by the State of the two lever arch files is relevant to ground 5 and in particular, his allegation that the prosecution failed to comply with its disclosure obligations.
35 I cannot see how the provision by the State of a prosecution brief contained in two lever arch files is indicative of a failure by the State to provide proper disclosure. Generally speaking, the prosecution brief contains the depositions of the witnesses proposed to be called by the State and the exhibits which it intends to tender. In a large and complex investigation such as was involved in this case, the prosecution will gather and be obliged to disclose to the defence a great deal of material. The State may, for good reason, not lead everything it has disclosed. For example the material might be inadmissible, or repetitive or unreliable. The prosecution brief served on Mr Trowell does not demonstrate that the State failed to comply with its disclosure obligations. This is particularly so as Mr Trowell's services were dispensed with months before the appellant's trial began.
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36 Ernest Leone is a bank manager called to give evidence by the State. The appellant told me that he had wanted Mr Leone to be asked whether he had deposited $200,000 into a bank account associated with the business, The Basement on Broadway, but his counsel had not done so. The transcript reveals that at the conclusion of Mr Leone's evidence-in-chief defence counsel took instructions from the appellant and having clarified those instructions declined to cross-examine the witness (ts 2396). The relevance of the appellant putting $200,000 into the bank account has not been explained by the appellant. It is not apparent how the evidence is relevant to the grounds of appeal or to an issue in the appeal.
37 JR testified on behalf of the State. Amongst other things, he testified about Mr Puddy's apparent hostility towards the appellant and that he (JR) supplied illicit drugs to Mr Puddy. JR was cross-examined in some detail by defence counsel. The appellant informed me from the bar table that he wished to cross-examine JR about threats apparently made to Mr Puddy. JR was not questioned about this by defence counsel at trial. Exactly what JR might say about this topic is unknown. The appellant is bound by the way his counsel conducted his defence. There is no basis for JR to give evidence in the appeal.
38 Dr Mark Reynolds undertook a blood stain pattern analysis at Mr Puddy's home and gave evidence at trial. He was cross-examined at some length. The appellant has not explained what evidence Dr Reynolds would give in an appeal in addition to the evidence he gave at trial and how that additional evidence is relevant.
39 Mr Paul Heatley was Mr Puddy's accountant. He testified at the appellant's trial. The appellant said that he wished to ask some questions of Mr Heatley concerning tax issues relating to Mr Puddy. What evidence Mr Heatley would give in respect to these matters was not explained nor did the appellant specify how any such evidence would be relevant to the grounds of appeal save to make an unsubstantiated assertion that it would somehow be relevant to grounds 1 and 7.
40 Detective Craig Stephens gave evidence at trial and swore an affidavit in respect of Mr Mansell's bail application. The appellant explained to me that he wishes to cross-examine Detective Stephens to suggest that there were inconsistencies between his testimony at trial and the contents of his affidavit. How any inconsistencies could be relevant to the grounds of appeal or to an issue in the appeal was unexplained.
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41 Detective Jason Blaine was not called to give evidence. The appellant says that the State should have done so. The appellant explained that prior to the alleged death of Mr Puddy he had been acquitted of serious drug charges and that Detective Blaine was one of the investigating officers in that case. Not long after Mr Puddy disappeared a prosecution witness, Nikola Newton, discovered in a wheelie bin outside her house Mr Puddy's wallet and a set of keys wrapped in a tea towel. She went to the Claremont Police Station where she spoke to Detective Blaine. The appellant said that he finds it very unusual that Ms Newton should have encountered Detective Blaine. The appellant said that he should have been given the opportunity to cross-examine Detective Blaine about his involvement in the investigation of Mr Puddy's disappearance. The appellant submitted that by not calling Detective Blaine the State withheld 'highly relevant evidence'. The nature of this evidence is not known and why the State was obliged to call Detective Blaine is unexplained.
42 Leon Cooper is a fingerprint expert who gave evidence for the State. The appellant says that he wishes to cross-examine Mr Cooper on the subject of the 'sustainability' of fingerprints, that is, how long a fingerprint may last on a surface. The appellant asserts that these matters should have been led by the State and are relevant to ground 6. Mr Cooper testified in both his evidence-in-chief and cross-examination on the issue of 'sustainability'. In his submissions before me, the appellant raised the possibility that the fingerprints had been forged but there appears to be no evidence of this and it was not part of the appellant's case at trial that his fingerprints had somehow been forged.
43 Based on the material before me, there is no basis to order that any of the persons named in the application should give evidence at the appeal. The application must be dismissed.
3. Application filed 21 September 2012 for the appointment of a special commissioner
44 Section 40(1)(f) of the Criminal Appeals Act is as follows:
40. General powers to deal with appeals
(1) For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
...
- (f) if a question in the appeal involves a lengthy examination of records, or a scientific or local investigation, that the court considers cannot be done conveniently before the court -
(i) appoint a special commissioner to inquire into and report on the question; and
(ii) act on the report so far as the court thinks fit.
46 It is clear from the text of s 40(1)(f) that the decision whether to appoint a special commissioner is an exercise of discretion. The discretion is not enlivened unless it is established that there is a question in the appeal which involves either a lengthy examination of records, a scientific investigation or a local investigation that the court considers cannot be done conveniently before it.
47 Whether a special commissioner is appointed must be seen in the context of the adversarial nature of criminal proceedings to which I referred to earlier in these reasons. Criminal proceedings are not inquisitorial in nature. A criminal appeal is not conducted as if it were a judicial inquiry or a royal commission. A special commissioner appointed pursuant to s 40(1)(f) is not acting in those capacities.
48 It is evident from the application and the appellant's submissions in support of it that he wishes a special commissioner to be appointed to pursue a large number of issues which in hindsight he believes should have been pursued, or pursued more comprehensively, at his trial. These are not the purposes for appointing a special commissioner.
49 The appellant also wishes a special commissioner to be appointed to investigate the question of whether the State complied with its disclosure obligations. The appellant is unable to identify anything that should have been disclosed to him by the prosecution but was not. The contention that the State did not comply with its disclosure obligations is, based on the material before me, no more than mere suspicion and assertion. There is
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- no factual basis to support the appellant's contention. In these circumstances, it is inappropriate to appoint a special commissioner to investigate this matter. At the moment the appellant's application appears to be a fishing expedition.
50 This application must be dismissed.
4. Application filed 21 September 2012 for the table of contents of the prosecution brief
51 The order sought by the appellant in respect of this application is as follows:
Applicant applies for - A table of contents of the brief of evidence in this case by the State to show it has complied with section 42, of the Criminal Procedure Act 2004, as the Appellant is unable to ascertain what evidence is meant to be in the brief and is concerned the disclosed procedure has been grossly inadequate.
52 This application is misconceived. As I have already pointed out there is no correlation between the contents of the prosecution brief and whether the State has provided disclosure pursuant to s 42 of the Criminal Procedure Act 2004 (WA). In other words, the table of contents of the prosecution brief does not show whether the State has complied with its disclosure obligations.
53 When this was pointed out to the appellant in oral argument, he changed tack and sought a copy of the certificate of disclosure required by s 45(3) and (5) of the Criminal Procedure Act.
54 The respondent was unable to inform me whether such a certificate had been provided to the defence and undertook to make enquiries. On 31 October 2012 a letter from the Office of the Director of Public Prosecutions was sent to the court. The terms of that letter are as follows:
The respondent is unable to furnish a written record confirming that a certificate pursuant to section 45(5) of the Criminal Procedure Act was served upon the appellant or his solicitors.
With respect, for reasons that are not the subject of evidence before the Court, the respondent is not in a position to concede that the certificate was not served upon the appellant or his various legal representatives.
55 The DPP's response is unsatisfactory. Either a s 45 certificate was produced or it was not. I will adjourn the application before me to 9am on 9 November 2012 to hear further from the parties on this issue.
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5. Application filed 21 September 2012 to file certain documents
56 The appellant wishes to admit the following documents as evidence in the appeal:
(a) a document relating to DNA findings presented at the appellant's trial;
(b) four documents relating to the registration of the appellant to act as a licensed manager [of The Basement on Broadway]; and
(c) a document relating to the denial of recordings of interview held by police with the appellant at Hakea Prison.
- It was said that these documents are relevant to ground 6.
57 Mr Laurance Webb, a senior forensic scientist with PathWest, gave evidence at trial with respect to the DNA examination of a number of items. His findings were contained in a report dated 16 November 2010 and an addendum report dated 26 August 2011. Those reports were tendered at trial as exhibits 165 and 166 (ts 2490). In addition, a graphical representation of the DNA profiling in the case was tendered through Mr Webb (exhibit 168; ts 2507). As these documents were part of the evidence before the lower court the appellant does not need an order for these documents to be admitted pursuant to s 41(1)(e) of the Criminal Appeals Act. They may be included in the green appeal book (r 38(4) of the Rules).
58 With respect to the documents relating to the registration of the appellant to act as a licensed manager, the appellant claims that at his trial it was alleged that he was not a duly authorised licensed manager of The Basement on Broadway. I was not referred to the relevant evidence on this point. As far as I have been able to ascertain, the evidence at trial was that the licensed manager of the premises was Sam Rarasea (ts 1926). There was evidence that towards the end of January or February 2010 the appellant applied to be appointed as a manager of the premises (ts 1893). As far as I can see, there was no evidence at the trial one way or the other whether the appellant had been approved by the liquor licensing authority. In any event, the issue of whether the appellant was an approved licensed manager was of no relevance in the case. It was common ground that the appellant worked at the bar. The production of these documents is irrelevant.
59 With respect to the recordings of interviews between police officers and the appellant at Hakea Prison, the appellant told me that after his
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- arrest he was spoken to by police on a number of occasions while on remand at Hakea Prison. As I understand it, these interviews were not recorded by the police. The appellant believes that they would have been recorded by the prison authorities. However, the appellant has received a letter to the effect that the interviews were not recorded. The appellant has failed to demonstrate how this letter or anything he told the police in the interviews could be relevant to the grounds of appeal or to an issue in the appeal.
60 This application must be dismissed.
6. Application filed 21 September 2012 for an apology
61 The appellant seeks an order from this court requiring the State to apologise to the appellant for various matters. This court has no power to order a party to apologise to another. This application must be dismissed.
7. Application filed 21 September 2012 to adduce documents said to be relevant to the question of disclosure, the appellant's computer access and other documents
62 The orders sought are expressed as follows:
Applicant applies for - The items referred to in the affidavit signed by the Appellant on this day to be received into evidence in support of further grounds of appeal to be lodged by the Appellant as soon as practicable, the aforementioned items being; An audit by the Appellant on the brief of evidence supplied to him by Gerald Yin, an audit conducted by LKA Group on the same brief, a DVD from LKA Group in support of the audit. Two letters from the Appellant to Gerald Yin, and a letter from Gerald Yin to the Appellant.
Copies of numerous letters from the Appellant to the Superintendent of Hakea Prison, transcripts of hearing from this matter before Jenkins and McKechnie JJ.
Copies of numerous letters from the Appellant to the Senior Supervisor of Hakea Prison in relation to the trial transcript.
- The appellant alleges that these documents are relevant to ground 6.
63 I will deal with the 'audits' first. The appellant and a company named LKA Group conducted what has been described as an audit of the committal brief and the prosecution brief. The object of this exercise, as I understand it, was to compare the contents of these documents and note any differences. The appellant wishes to adduce the results of these audits to show that the prosecution has not complied with its disclosure
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- obligations. The appellant has not explained how these audits demonstrate this.
64 It is unclear how the unidentified letters from the appellant to Gerald Yin, another former solicitor for the appellant, and a letter from Mr Yin to the appellant are relevant to ground 6.
65 I now turn to the letters sent by the appellant to the superintendent of Hakea Prison concerning the appellant's access to a computer prior to his trial. The appellant submits that this is relevant to the fifth ground of appeal and to the question of whether Murray J erred in the exercise of his discretion not to grant the appellant an adjournment of his trial.
66 The relevant background is as follows. The appellant's trial was originally listed to commence on 16 March 2011. That trial was adjourned on 24 February 2011 as a result of the appellant dismissing his legal representatives. The trial was then rescheduled to commence on 6 September 2011. On that day the appellant applied for a further adjournment. That application was refused.
67 Among the matters raised by the appellant in support of this application for an adjournment was that he had been provided with what he claims were 120 CDs of material relating to his case which he had been unable to examine, in part, due to a lack of time and in part because he had not been provided with sufficient access to a computer. As to the appellant's computer access, the appellant had sent, in the months leading up to the trial before Murray J numerous letters to the superintendent of Hakea Prison claiming that his computer access was insufficient. It is this correspondence that the appellant wishes to admit into evidence in the appeal for the purpose of showing that he had been, for a very considerable period before his trial, attempting to gain sufficient access to a computer but had been unable to do so.
68 It is possible that this material may be relevant, to the court's consideration of ground 5 insofar as it alleges that his Honour should have adjourned the trial because the appellant had not had an opportunity to view the material which had been provided to him for the preparation of his trial. I will make an order that this part of the application be referred to the hearing of the appeal in the event that leave to appeal in respect of ground 5 is granted.
69 With respect to the transcripts of the hearings which occurred prior to trial before McKechnie and Jenkins JJ, these are matters of record and the parties may refer to them should that become necessary in the course
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- of the appeal. There is no need for the transcripts to be admitted into evidence.
70 Finally, in respect of this application, the appellant wishes to put before this court lengthy correspondence between the appellant and the senior supervisor at Hakea Prison with respect to the various difficulties the appellant claims that he has had in relation to accessing the trial transcript. It is unnecessary to set out these difficulties in detail. It is sufficient to say that the difficulties do not have any relevance to the grounds of appeal.
71 I will order that the question of the admission of the appellant's correspondence to the superintendent of Hakea Prison concerning his computer access prior to trial be referred to the hearing of the appeal subject to a grant of leave in respect of ground 5. Otherwise, the application must be dismissed.
8. Application filed 2 October 2012 for 'a true audio copy of the trial'
72 The appellant seeks an order that he be provided with 'a true audio copy of the trial'. I will assume in the appellant's favour that this court has the power to make such an order. No argument to the contrary was put by the respondent.
73 In the appellant's affidavit in support of this application, he acknowledged that on 8 March 2012 he received a hard copy of the transcript printed from a disc provided to him by the respondent. He also says that this court provided him with a hard copy of the transcript which was received at Hakea Prison on 14 February 2012, however, the appellant says he has not been permitted by the prison authorities to view that transcript. Why this would be is unclear.
74 The appellant says that he has read the version of the transcript provided to him by the DPP and he claims that it is not an accurate record of the trial. He says that he took extensive hand written notes at the trial and, in oral submissions before me, stated he believed that the version of the transcript he had seen did not accord with his recollection. The respondent opposes the appellant having a recording of the trial. Mr Fox submitted that the audio record may have picked up privileged conversations between counsel.
75 Ordinarily, where a party disputes the accuracy of a transcript, the relevant portion of the audio record of the trial is identified and compared with the transcript. This process is usually done by the court's transcribers
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- who have the audio record of the trial. It is not the practice of the court to provide litigants with an audio recording of the proceedings as the appellant says he requires.
76 If the trial transcript is inaccurate, the appellant must specify those portions which are said to be inaccurate. This has not yet been done. As he has notes from which he can work, this should be able to be done conveniently and with precision. I will order that the appellant provide a schedule of alleged inaccuracies. I will, upon receipt of the schedule, give the appellant liberty to apply for further orders as to how any alleged discrepancies can be checked and resolved.
9. Application filed 8 October 2012 to admit into evidence the witness statements of Nikola Newton
77 I have already referred to the evidence of Ms Nikola Newton, who testified at trial, and how the appellant harbours a suspicion about the involvement of Detective Blaine in his case. The appellant seeks to admit into evidence Ms Newton's statements to the police. The statements that Ms Newton made to Detective Blaine are of no relevance to any of the grounds of appeal.
78 This application must be dismissed.
10. Application filed 8 October 2012 to admit into evidence various items of correspondence and various witness statements
79 The appellant seeks to admit into evidence various letters that he has sent to his lawyers, Mr Timothy Saayman and Mr Andrew Skerrett as well as letters he sent to Dr Paul Skerrett and the superintendent of Hakea Prison. He also seeks to admit a number of witness statements.
80 I have read the letters sent by the appellant to Mr Saayman dated 3 February 2011, 11 April 2011, 18 April 2011, 19 April 2011 and 30 August 2011. These letters contain various instructions given to Mr Saayman and amongst other things, complained about the lack of accessibility to the brief of evidence and the lack of facilities to view it. Insofar as they may be relevant to the issue of the appellant's preparedness for trial, I will refer the question of the admissibility of this correspondence to the hearing of the appeal, subject to a grant of leave in respect of ground 5.
81 The correspondence to Andrew Skerrett dated 17 January 2011, 4 February 2011, 8 February 2011 and 14 February 2011 is completely irrelevant to any ground of appeal or issue in the appeal and will not be
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- admitted. The letter of Dr Paul Skeritt is a psychiatric assessment of the appellant's wife and is of no relevance.
82 The correspondence between the appellant and the superintendent of Hakea Prison concerns the provision of a computer to assist the appellant in the preparation of this appeal. None of this correspondence is relevant to the grounds of appeal or any issue in the appeal.
83 Finally, in relation to this application, the appellant wishes to adduce into evidence the witness statements of Kathryn Cosgrove, Alexander Radonjic, George Pomersbach, a Crime Stoppers' report, and a report prepared for the Major Crime Squad by Detective Surman dated 5 August 2010.
84 Kathryn Cosgrove gave brief evidence at the trial under her former surname of Stephenson. She testified, consistently with her statement, that she saw the appellant at the Broadway Shopping Centre near The Basement on Broadway between 2.10 pm and 2.20 pm on 3 May 2010. She was not cross-examined (ts 2458 - 2461). Her statement has no relevance to the grounds of appeal or any issue in the appeal.
85 Alexander Radonjic was not called to give evidence at trial but provided a deposition in which he stated that he recalled a conversation he had with Mr Puddy on 4 April 2010. In that conversation, Mr Puddy apparently told him about issues that he had with the sale of a business called Merlot to some persons of Italian descent. He deposed that Mr Puddy told him that there was a rumour that these persons were connected to the mafia. The appellant alleged that Mr Radonjic should have been called by the State to give this evidence. The proposed evidence was plainly hearsay. The State was under no obligation to lead it.
86 George Pomersbach was interviewed by police. The notes of that interview were provided to the defence. Mr Pomersbach was employed by Mr Puddy's father in 1995. He made a number of irrelevant observations to the police about both Mr Puddy and his father. Mr Pomersbach told the police that he had not seen Mr Puddy since approximately 1997 although he may have spoken to him in approximately 2002 on the telephone. Nothing Mr Pomersbach said to police was relevant.
87 The Crime Stoppers' report was given to police by Amy O'Brien. Ms O'Brien gave evidence at the trial. She testified that she was in a short relationship with Mr Puddy after which they remained friends. She
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- testified as to Mr Puddy's illicit drug use. In cross-examination she confirmed that she contacted Crime Stoppers. The notes that the appellant now seeks to adduce in evidence show that on 11 May 2010 Ms O'Brien contacted Crime Stoppers and gave the police information which was, in general terms, consistent with her testimony. The notes are irrelevant to the grounds of appeal or to any issues in the appeal.
88 Detective Surman, as part of the investigation into Mr Puddy's disappearance conducted enquiries into a company called Our Loungeroom Pty Ltd in which the deceased had a 30% shareholding. Detective Surman also made enquiries into the planned purchase of The Basement on Broadway by the appellant and a company called Neddy's Pty Ltd. Amongst the conclusions reached by Detective Surman was that the death of Mr Puddy did not increase the prospect of the appellant or Neddy's Pty Ltd purchasing The Basement on Broadway. The appellant submits that the State was under an obligation to call Detective Surman to give this evidence.
89 I am not satisfied that the State was under such an obligation. Any evidence that Detective Surman could give was in the nature of an opinion. As Detective Surman pointed out in the preamble to his report, he does not have a background in forensic accounting or in the investigation of complicated fraud matters. Detective Surman was not properly qualified to give expert opinion evidence, thus, any opinion he could give was inadmissible.
90 Apart from referring the question of the admission of the letters the appellant sent to Mr Saayman to the hearing of the appeal, subject to a grant of leave in respect of ground 5, this application must be dismissed.
11. Application filed 8 October 2012 for documents to be accepted for filing
91 In this application the appellant seeks to admit as evidence in the appeal:
(a) 17 photographs from the trial brief;
(b) an extract from Dr Reynolds' report;
(c) the witness statements of Daniel Gavin, Thomas Batros, Christopher Garland, Fred Hort, Jeannie Hort, Andrew Korn, Amy O'Brien, and Brian Mansell;
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- (d) letters sent by the appellant to Gerald Yin, Alan Troy and Principal Registrar Chapman;
(e) letters sent to and received from the Honourable the Chief Justice and Bruno Fiannaca SC;
(f) letters sent to the appellant from the superintendent of Hakea Prison, the Department of Corrective Services and the Professional Standards Section known as ACCESS; and
(g) an internal review form, a receipt for a CD of the trial transcript from the DPP, statutory declarations by the appellant, a test letter from LKA Group, a note from major crime and documents relating to Narelle Mansell's work place.
92 With respect to the photographs, their relevance to the grounds of appeal or any issue in the appeal is not explained.
93 Dr Reynolds' report was tendered as exhibit 73 (ts 1167). No order pursuant to s 40(1)(e) is required.
94 Daniel Gavin gave evidence at the appellant's trial. Mr Gavin testified that he maintained a boat owned by Mr Puddy called the 'Hoo Haa'. His evidence was uncontroversial and he was not cross-examined (ts 2474). Mr Gavin gave evidence which, as far as I can see, was consistent with his statement. The statement is irrelevant and cannot be admitted as evidence in the appeal.
95 Thomas Batros and Christopher Garland were employees at The Basement on Broadway. Each gave evidence at trial. Each was cross-examined. The appellant has not demonstrated how their witness statements are relevant to the grounds of appeal or any issue in the appeal.
96 Fred and Jeannie Hort are a married couple. Jeannie Hort testified at trial that on 6 May 2010 they had been in Yanchep and were travelling home to Swan View. On their way, Ms Hort testified that she noticed a plume of smoke coming from some bush. They turned down a sandy track to investigate it. As they did so she saw a man. She was not cross-examined, and as a consequence the State announced that it was unnecessary to call Fred Hort (ts 1661). Their statements are irrelevant to any ground of appeal or any issue in the appeal.
97 Andrew Korn testified at trial that on 4 April 2010 Mr Puddy told him about a meeting he had with the appellant. Mr Puddy told Mr Korn
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- that the meeting had been heated and that he (Mr Puddy) was surprised that the appellant 'didn't smack [him] in the mouth' (ts 2938). Mr Korn's evidence in respect of this meeting was consistent with his statement. The statement is irrelevant to the appellant's appeal or any issue in the appeal.
98 I have already referred to the evidence of Amy O'Brien. She was cross-examined at some length (ts 1798 - 1812). She was cross-examined about her statement and whether she had mentioned in it anything about Mr Puddy talking about the appellant (ts 1811). Ms O'Brien conceded that there was nothing in her statement to that effect. Ms O'Brien's statement is not relevant to any ground of appeal or any issue in the appeal.
99 Brian Mansell is the appellant's cousin. Although he gave a deposition he was not called to give evidence. In his oral submissions, the appellant said that the statement was 'a small part of the jigsaw'. Exactly how the statement was relevant was not explained. The appellant asserts that the State was under an obligation to call him to give evidence. I can see no basis upon which that assertion can be sustained.
100 The letter to Mr Yin dated 1 November 2010 is irrelevant. Letters to Alan Troy, a barrister, dated 6 December 2011 and 30 January 2012 post-date the trial and are of no relevance. Letters to the Principal Registrar of this court dated 12 April 2012 and 29 May 2012 concern the provision of the audio record of the trial. I have dealt with this in application No 8. There is no need to admit these letters into evidence. The correspondence with the Honourable the Chief Justice concerns various issues both before and after the appellant's trial. None of it is relevant to the appeal. The correspondence with Mr Fiannaca SC post-dates the trial and concerns access to the trial transcript. The correspondence is of no relevance to the grounds of appeal or the issues in the appeal.
101 I will refer the question of the admissibility of the superintendent of Hakea Prison's letters to the appellant dated 14 July 2011 and 22 September 2011 to the hearing of the appeal, subject to leave being granted in respect of ground 5. They concern the appellant's access to a computer in respect of his trial. The correspondence with ACCESS is irrelevant.
102 With respect to the internal interview form, the receipt, the statutory declaration, the test letter, the note from the Major Crime Squad and documents relating to Narelle Mansell's work place, I have perused each
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- of them and I am unable to see how they are relevant to the grounds of appeal or to any issue in the appeal.
103 Apart from referring the part of this application concerning letters sent by the superintendent of Hakea Prison to the appellant dated 14 July 2011 and 22 September 2011 to the hearing of the appeal subject to a grant of leave in respect of ground 5, this application must be dismissed.
12. Application filed 18 October 2012 to adduce letters sent by the appellant to his instructing solicitor Mr Timothy Saayman
104 The appellant seeks to adduce a series of letters written by him to Mr Saayman between 3 February 2011 and 18 October 2011. Insofar as these letters provide instructions to Mr Saayman in relation to the conduct of the appellant's defence, they are not relevant to a ground of appeal or any issue in the appeal. Some of the letters raise the apparent difficulty the appellant was having in the preparation of the case without being provided with a computer adequate to his needs. The order that I have made referring other material of a similar nature to the hearing of the appeal pending a grant of leave to appeal is sufficient and it is unnecessary for the court to have before it the appellant's correspondence with his solicitor on the issue.
105 This application must be dismissed.
Conclusion and orders
106 For the abovementioned reasons I make the following orders:
Application 1: 1. If the appellant has not already done so the list of authorities and draft chronology are to be filed and served not later than 4.00 pm on 6 November 2012.
2. The application is otherwise dismissed.
Application 2: The application is dismissed.
Application 3: The application is dismissed.
Application 4: The application is adjourned to 9.00 am on 9 November 2012.
Application 5: The application is dismissed.
Application 6: The application is dismissed.
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- Application 7: 1. The question of the admission of the appellant's correspondence to the superintendent of Hakea Prison concerning his computer access prior to trial, is referred to the hearing of the appeal, subject to a grant of leave in respect of ground 5.
2. The application is otherwise dismissed.
Application 8: 1. The appellant shall file and serve upon the respondent, no later than 4.00 pm on 9 November 2012 a schedule of alleged inaccuracies of the trial transcript.
2. Upon receipt of the schedule the appellant shall have liberty to apply on 48 hours notice to the respondent for further orders in respect of the alleged inaccuracies.
Application 9: The application is dismissed.
Application 10: 1. The question of the admission of letters sent by the appellant to Mr Saayman concerning his computer access prior to trial is referred to the hearing of the appeal, subject to a grant of leave in respect of ground 5.
2. The application is otherwise dismissed.
Application 11: 1. The question of the admission of letters sent to the appellant by the superintendent of Hakea Prison dated 14 July 2011 and 22 September 2011, is referred to the hearing of the appeal subject to a grant of leave in respect of ground 5.
2. The application is otherwise dismissed.
Application 12: The application is dismissed.
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