Mansell v The State of Western Australia [No 2]
[2013] WASCA 41
MANSELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 41 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:190/2011 | 20 NOVEMBER 2012 | |
| Coram: | McLURE P PULLIN JA BUSS JA | 20/02/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on grounds 2, 3, 4, 5 and 6 refused Application for review dismissed Application to amend submissions dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAMERON JAMES MANSELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against conviction Murder Whether trial judge misdirected jury as to evidence of appellant's good character Adequacy of trial judge's directions and warnings to jury Whether lack of balance in summing up Relevance and admissibility of evidence Failure to adjourn Disclosure Competency of counsel Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(f) Criminal Investigation Act 2006 (WA), s 118 Criminal Procedure Act 2004 (WA), s 35, s 42, s 45(3), s 45(5) Surveillance Devices Act 1998 (WA), s 9(2)(b) Telecommunications (Interception and Access) Act 1979 (Cth), s 7(5) |
Case References: | Mansell v The State of Western Australia [2011] WASC 170 Mansell v The State of Western Australia [2012] WASCA 223 McKey v The Queen [2012] NSWCCA 1 MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Singh v The State of Western Australia [2012] WASCA 262 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 41 CORAM : McLURE P
- PULLIN JA
BUSS JA
- 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 - Application for leave to appeal against conviction - Murder - Whether trial judge misdirected jury as to evidence of appellant's good character - Adequacy of trial judge's directions and warnings to jury - Whether lack of
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balance in summing up - Relevance and admissibility of evidence - Failure to adjourn - Disclosure - Competency of counsel - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(f)
Criminal Investigation Act 2006 (WA), s 118
Criminal Procedure Act 2004 (WA), s 35, s 42, s 45(3), s 45(5)
Surveillance Devices Act 1998 (WA), s 9(2)(b)
Telecommunications (Interception and Access) Act 1979 (Cth), s 7(5)
Result:
Leave to appeal on grounds 2, 3, 4, 5 and 6 refused
Application for review dismissed
Application to amend submissions 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):
Mansell v The State of Western Australia [2011] WASC 170
Mansell v The State of Western Australia [2012] WASCA 223
McKey v The Queen [2012] NSWCCA 1
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Singh v The State of Western Australia [2012] WASCA 262
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1 McLURE P: This is an application for leave to appeal against conviction and an application to review multiple interlocutory decisions of Mazza JA detailed in Mansell v The State of Western Australia [2012] WASCA 223 (Mansell No 1).
2 On 7 November 2011 the appellant was convicted, after an eight-week trial, of the murder of Craig Puddy. The factual background is detailed in Mansell No 1. For convenience, I incorporate much of that factual background.
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 Basement). The appellant had a role in the day-to-day operations of the bar. Mr Puddy was a significant investor in, and co-owner of, the Basement. 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. Mr Puddy's blood was located in the kitchen of his house notwithstanding attempts at cleaning the area. 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. Mr Puddy's blood was found inside a recycling bin that had been taken from his house and hidden in bushland near Yanchep.
5 On 4 May 2010 Mr Puddy was reported missing and a homicide investigation commenced. On 6 May 2010 the appellant deliberately destroyed his Jeep motor vehicle by fire. 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.
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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 violently assaulted 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 his assailants may have had something to do with this.
7 The appellant elected not to give evidence. The appellant's case at trial 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 including a volatile situation existing between the appellant and Mr Puddy as at the date of the murder stemming from and relating to their involvement in the Basement, opportunity, forensic evidence, material inconsistencies in what the appellant told those with whom he discussed the circumstances surrounding Mr Puddy's disappearance and his alleged flight from Western Australia.
9 Originally the appellant was represented in the appeal by senior counsel (Mr D Grace QC) and the sole ground of appeal was that the verdict was unreasonable and could not be supported on the evidence. After the filing of the Appellant's Case, the appellant commenced to act for himself. A further six grounds of appeal were added. Ground 7 is, in substance, to the same effect as ground 1. Mazza JA has referred the question of leave to appeal in respect of grounds 1 and 7 to the hearing of the appeal.
The review
10 Between 21 September 2012 and 18 October 2012 the appellant filed 12 separate applications in the appeal. Mazza JA dismissed most of the applications. On 9 November 2012 the appellant filed an application to review Mazza JA's decisions, which application is supported by an affidavit of the appellant containing his submissions. On 17 December 2012 the appellant filed an application seeking to amend his application to review. The amendments flow from the appellant's application, also filed on 17 December 2012, to amend [87] of his submissions dated 14 September 2012 in support of his application for leave to appeal. I would refuse leave to amend [87] of the submissions for the reasons given below. Accordingly I would also refuse the application to amend the application to review.
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11 It is apparent from the content and extent of the applications that the appellant has no understanding of the nature, purpose and limitations of an appeal and limited understanding of technical legal principles. The primary judge was correct, for the reasons he gave, to dismiss the following applications (as numbered by the primary judge):
(1) Application filed 21 September 2012 to file the statement of Bruce Savage ([21] - [25] of Mansell No 1);
(2) Application filed 21 September 2012 for various persons to be called for examination in the appeal ([26] - [43] of Mansell No 1);
(3) Application filed 21 September 2012 for the appointment of a special commissioner ([44] - [50] of Mansell No 1);
(5) Application filed 21 September 2012 to file certain documents ([56] - [60] of Mansell No 1);
(6) Application filed 21 September 2012 for an apology ([61] of Mansell No 1);
(7) Application filed 21 September 2012 to adduce a range of documents, with the exception of that part of the application relating to letters to the Superintendent of Hakea Prison claiming insufficient access to a computer, which are subject to a grant of leave in respect of ground 5 ([62] - [71] of Mansell No 1);
(9) Application filed 8 October 2012 to admit into evidence the witness statements of Nikola Newton ([77] - [78] of Mansell No 1);
(10) Application filed 8 October 2012 to admit into evidence various items of correspondence and various witness statements, with the exception of that part of the application relating to the admission of letters the appellant sent to his former solicitor, Mr Timothy Saayman, which is subject to a grant of leave in respect of ground 5 ([79] - [90] of Mansell No 1);
(11) Application filed 8 October 2012 for documents to be accepted for filing, with the exception of that part of the application relating to letters dated 14 July 2011 and 22 September 2011 from the Superintendent of Hakea Prison to the appellant which are subject to a grant of leave in respect of ground 5 ([91] - [103] of Mansell No 1);
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- (12) Application filed 18 October 2012 to adduce letters sent by the appellant to Mr Saayman ([104] - [105] of Mansell No 1).
12 Applications numbered 4 and 8 were held over. Application 4, filed on 21 September 2012, was for the table of contents of the prosecution brief. It morphed into an application for a copy of the certificate of disclosure required by s 45(3) and s 45(5) of the Criminal Procedure Act 2004 (WA) (CPA). That application was adjourned until 9 November 2012. By letter dated 9 November 2012 from the Director of Public Prosecutions to the appellant, the Director of Public Prosecutions advised as follows:
The respondent accepts that it is not in a position to prove that a certificate pursuant to s 45(5) of the Criminal Procedure Act was served upon you or any of your former solicitors, despite both the investigating officer and one of your previous solicitors having a vague recollection as to the existence of the document.
In these circumstances, as the respondent is unable to prove service, we are content for the Court of Appeal to proceed on the basis that a certificate was not in fact served.
This is not a concession that there was, in substance, any non-disclosure during the trial proceedings.
13 Application 8 was an application filed on 2 October 2012 for 'a true audio copy of the trial'. Mazza JA ordered that the appellant provide a schedule of alleged inaccuracies in the transcript. Upon receipt of the schedule, Mazza JA proposed to give the appellant liberty to apply for further orders as to how any alleged discrepancies can be checked and resolved. No such schedule of inaccuracies has been provided. Application 8 was not finally resolved by Mazza JA.
14 The fate of the unresolved aspects of applications 7, 10 and 11 depend on the grant of leave to appeal in respect of ground 5. I will deal with the outstanding matters (application 4 and parts of applications 7, 10 and 11) in the course of dealing with the appellant's application for leave to appeal on grounds 2 to 6.
Leave to appeal
15 Grounds of appeal 2 to 6 with supporting 'particulars' are set out in Mansell No 1 [10]. For the most part they are stated in inappropriately general terms. However, in written submissions filed by the appellant on 14 September 2012, the grounds of appeal are now supported by different and very extensive 'particulars' that are in truth a jumble of submission,
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- argument and assertion in the midst of which it is possible to discern some specific alleged errors. I will consider the merits of those alleged errors.
16 After the hearing on 20 November 2012, yet more applications were filed on 17 December 2012, one of which seeks leave to amend the written submissions filed on 14 September 2012. Another application was filed on 17 January 2013 seeking to adduce further correspondence in support of the proposed amendment to [87] (the January 2013 application). Leave is required to amend written submissions after a hearing: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [55]. To the extent that the appellant refers to additional authorities, I would grant leave. However, leave should be refused in respect of the proposed amendment to [87] which contains broad and unsubstantiated factual assertions, many of which overlap with assertions made in the applications for review and leave to appeal. The material relied on in (and in support of) that paragraph falls well short of raising an arguable error of law or miscarriage of justice. Thus the January 2013 application must be dismissed.
Ground 2
17 The appellant claims in effect that the trial judge erred in his directions to the jury on the subject of Mr Puddy's death and the appellant's claimed lack of a violent disposition.
18 On the subject of Mr Puddy's death the trial judge said:
But one threshold fact and question, I will assume, is established and you would find established, beyond reasonable doubt, from the evidence which has been put together without referring to it again at all, I mention it now because I don't want you to overlook it and of course the question is, and the fact to which I'm referring is that Mr Puddy was killed. That he is not alive and well somewhere unknown to this day (ts 3689).
19 After referring to aspects of the evidence on the subject, the trial judge continued:
And you may well think that that body of circumstantial evidence carries you conclusively to the only rational inference being that Mr Puddy was killed. His body has not been found, his present location is not known. But the relevant question is whether or not you are satisfied, beyond reasonable doubt, that he's been killed. And you see how, by applying your consideration of the circumstantial facts and evidence that relate to that question, you may, you may not, but you may be satisfied, beyond reasonable doubt, you may be prepared to draw the only rational and
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- reasonable inference open that he has met his death and been killed (ts 3689).
20 The trial judge makes further references to the subject (at ts 3721, 3737, 3750) which make it clear to the jury that whether or not Mr Puddy was dead was a question of fact for them.
21 The trial judge had earlier instructed the jury that they were obliged to follow his directions but that his comments about matters of evidence were not binding and that the jury were the sole judges of the facts (ts 3671 - 3672).
22 Having regard to the trial judge's summing up as a whole, the appellant has no reasonable prospect of succeeding in his claim that the trial judge directed the jury as to Mr Puddy's death or otherwise erred in his summing up on the subject.
23 In relation to the appellant's claim of a non-violent disposition, the trial judge referred to what the appellant's trial counsel (Mr AE Eyers) said in his closing address as follows:
Mr Eyers at one stage, yesterday, spoke to you about Mr Mansell's reaction to a particular matter which had been put before him and the point was made, 'You see he didn't react violently, he seems to have been a person who reacted passively'. And he went on to say, 'And there is no evidence that he's a person of a violent disposition or a violent propensity'. They're not precisely the words he used but there it is. You wouldn't pay any regard to that, in my view, and the instruction I would give you because it's not a matter which is touched upon in the evidence at all.
There is nothing in the absence of evidence which would allow you to say, 'Well, yes, if there had been something adverse to him, the prosecution would have put it before the court. Therefore, he should be accepted to be a person without any history of violence' (ts 3679).
24 The trial judge's direction is correct. The absence of evidence as to the appellant's disposition does not permit a positive or negative finding on the subject.
25 Further, a suggestion in the appellant's written submissions that he should have been the subject of a good character direction is wholly devoid of merit having regard to his admitted misconduct. That included him destroying his Jeep motor vehicle by fire shortly after significant violence had been inflicted on Mr Puddy in the kitchen of his home; making a false report to police and his insurance company that his vehicle was stolen; and posting to his wife a signed transfer paper for Mr Puddy's
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- boat, asking her to hide it in a safe place. The fire that destroyed the Jeep was deliberately lit and involved the use of an accelerant.
26 Ground 2 has no reasonable prospect of succeeding. Leave to appeal on that ground should be refused.
Ground 3
27 This ground is in terms that '[t]he 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'. The alleged errors are multiple and have to be identified from what is erroneously described as 'particulars'.
28 The appellant makes the general claim that the evidence concerning the Basement, the appellant's boat and the appellant leaving the State was inadmissible. The claim of inadmissibility is devoid of merit. The evidence relating to each of those matters was an integral part of the State's circumstantial case against the appellant.
29 Mr Puddy was a part-owner of the Basement which was in significant financial difficulty. By March 2010, Mr Puddy wanted to cut his losses and get out of the business. The appellant, who operated his own financial planning business, had contributed his clients' funds to the Basement business. Soon after the appellant became the manager of the Basement in January 2010, Mr Puddy came to believe that money was missing from the safe. The appellant was supposed to be arranging for a syndicate of investors to take over the Basement. By April 2010, non-payment of rent for the Basement premises was a pressing issue with the risk of foreclosure and default on a $700,000 bank loan that Mr Puddy had guaranteed. In broad terms, a part of the State case was that by 3 May 2010 Mr Puddy was very angry with the appellant arising out of his conduct in connection with the Basement and that the appellant was also under financial stress and would suffer financially if the Basement business did not have continuing financial support from Mr Puddy. There is no arguable basis for excluding the evidence concerning the Basement on the ground that it is irrelevant or unfair (because its prejudicial effect outweighed its probative value).
30 Since late 2009, the appellant had been unsuccessful in his task of arranging a syndicate of people to buy Mr Puddy's $750,000 boat. Evidence relating to the boat was relevant for at least two reasons. The prosecution case was that on the night of 3 May 2010 the appellant sent a text message on Mr Puddy's mobile to Paul Veza saying that the appellant
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- had turned up with a cheque for '750K for my boat'. The prosecution also called on the jury to consider whether the appellant sent the boat transfer to his wife because, after Mr Puddy's death, he decided to profit from its sale or whether intended profit from its sale was a motive leading the appellant to kill Mr Puddy (ts 3479 - 3482). It is legitimate for the State to rely upon an accused's post-offence conduct (for example, flight from justice and attempts to influence the evidence of witnesses) in support of its case. See McKey v The Queen [2012] NSWCCA 1 [26] and the cases there cited.
31 The evidence relating to the boat and the circumstances surrounding his departure from the State was clearly relevant and admissible.
32 The appellant also claims the following evidence should not have been admitted either because it was irrelevant or because it should have been excluded in the exercise of the unfairness discretion. First, the evidence of Martyn Rogers, a part-owner of the Basement, that at a meeting he attended with Mr Puddy and the appellant on 23 April 2010, the appellant said he had serious investors on board and that '[h]e was halfway there' (ts 1916). The evidence to which objection is taken is not inadmissible hearsay because it was not tendered as evidence of the truth of its content. Nor is its admission arguably unfair.
33 Secondly, the evidence of Ms KA Murphy, a credit controller for a company that supplied hospitality ware to the Basement, that she had difficulty in getting payment of the debts owed by the Basement. She gave evidence of a demand notice sent to the Basement in March 2009 and a payment plan agreed with the appellant which was not followed. The appellant also refers to 'other irrelevant but prejudicial' evidence from the Basement's creditors (Mr D Gobby and Mr A Laval) and a tax accountant who had dealings with the appellant (Mr W Fulcher). Evidence of the financial position of both the Basement and the appellant was, for the reasons already given, relevant and admissible circumstantial evidence. Its admission was not arguably unfair.
34 Thirdly, the appellant challenges the admission of evidence to show the state of mind of Mr Puddy at the relevant time. The appellant contends the evidence is inadmissible hearsay. It is not. The evidence was not tendered as proof of the truth of the statements. It was centrally relevant to the prosecution case. Its admission was not arguably unfair.
35 Fourthly, the appellant claims that a recording of a telephone conversation between Mr Rogers and the appellant (exhibit 142) was
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- illegally obtained. Mr Rogers' evidence relating to the telephone call is as follows. On or about 7 or 8 May 2010, the appellant rang Mr Rogers and left a message. On receipt of the message, Mr Rogers contacted the police officer in charge of the case, Detective Stephen, concerning the contact. Before the police could act, the appellant telephoned Mr Rogers again. Mr Rogers put his telephone on loudspeaker and recorded what was said using an application on his wife's iPhone. The recording was provided to police investigating Mr Puddy's disappearance. The appellant does not identify the basis for the claim that exhibit 142 was illegally obtained. The evidence does not establish any breach of the Surveillance Devices Act 1998 (WA) (see s 9(2)(b)) or the Telecommunications (Interception and Access) Act 1979 (Cth) (see s 7(5)). Its admission was not arguably unfair.
36 A further discrete aspect of ground 3 is a claim that the trial judge erred in refusing an adjournment of the trial due to alleged non-disclosure of evidential material. This overlaps with ground 5 and will be dealt with in that context.
37 Ground of appeal 3 has no reasonable prospect of succeeding. Leave to appeal on that ground should be refused.
Ground 4
38 The appellant contends that the trial judge gave inadequate directions and warnings to the jury in his summing up. The complaint is a general assertion of inadequacy in the trial judge's right to silence direction, lies direction, motive direction, circumstantial evidence direction and intent direction.
39 I have considered the trial judge's directions on the right to silence (ts 3717, 3731), motive (ts 3752, 3726 - 3728), intention (ts 3757 - 3758, 3684) and circumstantial evidence (ts 3687 - 3688). No objection was taken to any of those directions at trial. I am unable to identify any arguable claim that the directions are deficient.
40 I infer that the claim of inadequacy as to the motive direction stems from the appellant's misunderstanding about the purpose of the background circumstances relating to the fact and effect on both Mr Puddy and the appellant of the parlous financial position of the Basement, which, on the State's case, was to provide the backdrop for a violent confrontation between Mr Puddy and the appellant on the night in question (ts 63 - 65).
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41 Moreover, the complaint about the intent direction is in substance an argument that, on the defence case, Mr Puddy survived a violent assault at his house by unknown third parties.
42 The trial judge did not give an Edwards lie direction or a Zoneff direction. As to which, see Singh v The State of Western Australia [2012] WASCA 262 [4] - [7]. On my understanding of the State case, there was no reliance on an Edwards lie. Further, the absence of a Zoneff direction in this case does not give rise to an arguable error by the trial judge. No objection was taken at trial to the omission to give such directions. The trial judge made it clear that any dishonesty involved in the appellant's conduct went to his credibility (ts 3716, 3718). The trial judge also directed the jury that the inconsistencies in the appellant's account of events at Mr Puddy's home on the night of 3 May 2010 to various persons (including Mica De Jager, Martyn Rogers, Allan Mansell and Narelle Mansell) were relied on by the prosecution in support of its case that the appellant's defence should be positively rejected as false (ts 3729).
43 The appellant also asserts that the trial judge's summing up lacked balance. That objection was not made at trial. The assertion flows in large measure from the appellant's erroneous claims of appealable error by the trial judge in his summing up. I have read the summing up in its entirety. The appellant has no reasonable prospect of succeeding in his assertion that it is unbalanced.
44 Finally, the appellant asserts that the trial judge failed to give an adequate warning about the evidence of a witness who had supplied prohibited drugs to Mr Puddy. The trial judge dealt with the evidence in his summing up at ts 3748 - 3749. It is not clear why the appellant now claims a warning was required when none was sought at the time of trial. No arguable error is established.
45 I am not satisfied that any of the matters raised in ground 4 have a reasonable prospect of succeeding. Leave to appeal on that ground should be refused.
Ground 5
46 Ground 5 is to the effect that the appellant did not receive a fair trial according to law. Once again the 'particulars' raise a number of separate and distinct categories of alleged error in the midst of a mixture of submission and argument. The appellant adds further 'particulars' of
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- ground 5 in documents filed on 8 and 9 November 2012. The categories of alleged error are as follows:
1. the appellant did not have an adequate opportunity to see the contents of the 120 CDs given to him prior to trial because Hakea Prison did not provide him with adequate computer access;
2. the absence of a s 45(5) certificate denied the appellant the opportunity of knowing or determining whether full disclosure had been given;
3. the appellant became aware too late of media publicity of the appellant's drug trial and lost the opportunity for a judge alone trial;
4. the trial judge erred in refusing to adjourn the trial;
5. the need for further examination of the appellant's claim that three police officers offered him witness protection;
6. the appellant claims that many of the instructions he gave to his instructing solicitor, Mr Saayman, were ignored 'to the obvious detriment of [his] case', that 'false promises about witnesses being called to give evidence supportive of the appellant's case' never appeared and 'obvious lines of inquiry for cross-examination were also ignored'.
47 There are references throughout the appellant's submissions to a claim of 'non-disclosure'. That claim is in substance that the appellant was unable to view the prosecution brief prior to trial because of a lack of access to computers, or to computers with reliable software.
48 I propose to start with the adjournment application and the non-disclosure claim. The background to the adjournment application 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 (Mr M Trowell QC and Mr Skerritt). The trial was then rescheduled to commence on 6 September 2011.
49 At the commencement of the trial on 6 September 2011 the appellant's counsel, Mr Eyers, informed the court that the appellant had withdrawn instructions from his legal representatives and that the appellant would make an application in person to adjourn the trial (ts 2).
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- In those circumstances, the trial judge heard submissions directly from the appellant.
50 The appellant referred to a statutory declaration sworn by him on 6 September 2011 in which he states that facilities had not been made available to him to view the 120 CDs within the prosecution brief. The appellant informed the trial judge that he had been provided with three different laptops that did not function with the consequence that he had not viewed all the CDs, although he accepted that his counsel had done so (ts 5). The appellant had raised a similar complaint on a number of prior occasions, including at a status conference on 2 June 2011 before Jenkins J, at a bail hearing on 1 July 2011 before McKechnie J (see Mansell v The State of Western Australia [2011] WASC 170 [21] - [28]), in multiple letters between June and September 2011 to the Superintendent of Hakea Prison and in a letter in August 2011 to the Chief Justice of Western Australia.
51 The trial judge said to the appellant that he understood the disclosure obligations under the CPA had been complied with (ts 6). Senior counsel for the respondent, Mr B Fiannaca, confirmed to the court that there had been complete disclosure of all material that was available to the police and to the Director of Public Prosecutions to that date and that as and when additional material came to light it had been forwarded to the appellant (ts 7). Further, Mr Fiannaca informed the court that much of the material on the 120 CDs had been provided to the appellant in hard copy form but that did not include photographs of which there were some 6,000 (ts 8). There were some 17 volumes of statements and documentary exhibits in hard copy form which the appellant had received (ts 9). The appellant did not challenge the correctness of the statements of the trial judge and Mr Fiannaca.
52 The appellant accepted that he had received hard copy material but advised the court that some material on the CDs could not be provided in hard copy such as CCTV footage, police video records of interview, voice recordings and photographic material (ts 9 - 10).
53 The trial judge refused an adjournment but noted:
It would seem to me that if during the course of [the] trial anything should occur which takes you by surprise and is not able to be addressed by giving proper instructions to counsel and matters of that kind, that we can deal with that specific question as it arises. But a generalised observation of this kind, which seems to me to be unsupported by the materials that are
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- available to the court, will not ground the adjournment and in my view the trial should go on (ts 12).
54 There is no suggestion that the matter was raised again on behalf of the appellant during the balance of the trial. After a short adjournment following the dismissal of the appellant's adjournment application on 6 September 2011, Mr Eyers advised the court that he and Mr Saayman again had instructions to act for the appellant and would be conducting the trial. Mr Eyers informed the court that the appellant had been provided by authorities with three separate laptops with operating software that was insufficient and frequently crashed. A request was made for a laptop that had Windows operating software (ts 13). The trial judge was asked to make an observation which could be conveyed to the Department of Corrective Services that that should occur. The trial judge supported the appellant being provided with the necessary equipment (ts 14). The first several days of the trial were taken up with objections to admissibility of evidence and other preliminary matters, conducted in the absence of the jury. The prosecutor's opening address commenced on 12 September 2011. On 9 September 2011 the trial judge made the following observation:
There's one final matter that I just need to refer to generally. Over the last few days, I've been conducting an investigation to make sure that with either or both of a combination of computer assistance and access to the hard copy materials, which I have to tell Mr Mansell is my preferred source, I must say, that there is a capacity for him to have access to the disclosed material substantially; there are exceptions to that, and that the earlier difficulties in relation to that have now been corrected (ts 331).
55 That statement was not challenged by or on behalf of the appellant. There is nothing in the material in the appeal capable of supporting an inference that:
(i) by the commencement of the prosecution opening on 12 September 2011 the appellant personally did not have access to all disclosable material in the prosecution brief, which he conceded had previously been provided to his legal representatives;
(ii) the appellant was prejudiced in any way in the conduct of his trial because of his difficulties in accessing part of the prosecution brief;
(iii) there was any arguable miscarriage of justice (substantial or otherwise) by reason of 'non-disclosure'.
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56 Moreover, there is no arguable claim that the trial judge erred in the exercise of his discretion to refuse yet another application to adjourn the trial. It was an application that the appellant's legal counsel properly declined to make.
57 The appellant's claim that he would have sought a trial by judge alone if aware of the publicity given to a prior drug trial also does not withstand scrutiny. On 2 February 2011, the appellant, by his former solicitors, filed an application for a trial by judge alone. The application was supported by affidavits sworn on 1 and 7 February 2011. The affidavits refer to media publicity in relation to his trials for drug related offences. On 10 March 2011, after the appointment of Mr Eyers to act for the appellant, the appellant's application for trial by judge alone was withdrawn.
58 A s 45(5) certificate under the CPA does not contain a list of the confessional and evidential material that has been disclosed to an accused. There is no foundation for a claim that the absence of a s 45(5) certificate in this case occasioned any relevant prejudice to the appellant. The appellant does not identify any material which was in existence but which was not provided to him as required by s 35 and s 42 of the CPA. Application 4 should now be dismissed.
59 The appellant does not accept the police response to a subpoena to the effect that police interviews of him at Hakea Prison were not covertly recorded. There is no evidentiary foundation in the appeal for the appellant's belief that his interviews with police in Hakea Prison were covertly recorded and there is no basis for the appointment of a special commissioner under s 40(1)(f) of the Criminal Appeals Act 2004 (WA) for the reasons given in Mansell No 1 [49]. In any event, Detective Stephen confirmed in evidence that the appellant had been offered 'protection if he felt he needed it, due to what we were told' (ts 3378).
60 The final category (6 above) can only be a claim of incompetence of the appellant's legal team. It concerns that part of application 10 relating to letters from the appellant to his instructing solicitor, Mr Saayman. There are five letters (dated 3/2/2011, 11/4/2011, 18/4/2011, 19/4/2011 and 30/8/2011), none of which are capable of supporting the particularised claim or an arguable claim of miscarriage of justice. The same is the case in relation to the letters to Mr Saayman the subject of application 12 in the review (and the letters the subject of the January 2013 application).
(Page 17)
61 Ground 5 has no reasonable prospect of succeeding. Leave to appeal should be refused. That part of applications 7, 10 and 11 made conditional on leave to appeal being granted on ground 5 should also be dismissed.
Ground 6
62 The 'particulars' to this ground also allege multiple errors which have no connection with each other. The alleged errors are as follows. First, the appellant claims that Mr Puddy's bad language should have been tempered. I understand this to be a complaint that witnesses gave evidence of the bad language used by Mr Puddy. This is entirely proper and does not constitute an error.
63 Secondly, the appellant makes vague and general assertions that inadmissible opinion and hearsay evidence was adduced at trial. The assertions are too broad to respond to. More specific but still general particulars on this subject are added in a further document dated 27 October 2012. They are in substance a repetition of similar allegations in earlier grounds.
64 Thirdly, the appellant complains that witness statements were 'reworked' several times over. As appears from the transcript (ts 50), witness statements were updated from time to time and disclosed to the appellant as and when amendments were made. The statement at ts 2099 is an example. Moreover, on some occasions consolidated statements were prepared for the convenience of the parties. This is a development that has flowed from the statutory disclosure obligations. It gives rise to no arguable error.
65 Fourthly, the appellant claims the State led from witnesses evidence improperly induced by false promises and threats of serious charges. To the extent that the allegations go beyond matters put or established at trial, they are bald assertions unsupported by evidence. Error is not arguable.
66 Fifthly, the appellant complains that the handwriting expert was not asked by the prosecution to identify the author of the handwriting on the boat transfer papers and the State failed to produce, until prompted by the defence, a chart of unidentified footprints. No arguable error is raised. In any event, the handwriting expert, Mr McGinn, did give evidence-in-chief about the person or persons who signed the boat transfer papers. The fact that he firmed up in cross-examination as to who signed for Mr Puddy's father does not justify the appellant's claim.
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67 Sixthly, the appellant complains that key material witnesses were not called, nominating Mr Savage and Sergeant Geeson. These witnesses were the subject of application 1 and application 2 respectively before Mazza JA which were correctly dismissed, for the reasons he gave.
68 Seventhly, the appellant claims that evidence given by Detective Stephen of an oral admission made by the appellant to the effect that the appellant had burnt the clothes he was wearing on the night in question was inadmissible for failure to comply with s 118 of the Criminal Investigation Act2006 (WA) (CIA). The background is as follows. The appellant was arrested on 7 May 2010 on suspicion of assaulting Mr Puddy. The appellant refused to participate in an interview if it was recorded. After participating in an unrecorded interview with police at Curtin House, the appellant was released unconditionally. The admission in issue was made on 10 May 2010 at the appellant's residence in Nedlands. Detective Stephen's evidence was as follows:
We went to see Mr Mansell and see if he was willing to provide either a record of interview or a statement and asked him if he'd be prepared to give those summaries and he declined. Detective Sergeant Coulson asked him where his clothes were that he was wearing on the night as it may assist the investigation to ascertain if anyone else was involved and Mr Mansell advised us that he had previously destroyed his clothing. And when asked to elaborate he declined to elaborate where they were and how he destroyed them.
All right. And just to be somewhat more complete, when - you - you say that he declined to provide a statement at that point in time. Did he say why?---He was still fearful of retribution from the group involved (ts 3383).
69 There was no objection to the evidence at trial. On the assumption that the appellant was a suspect at the material time, there can be no doubt that if objection had been taken to the evidence, an order would and should have been made under s 155 of the CIA. There is no arguable miscarriage of justice.
70 Eighthly, the appellant complains that exhibit 142, being the recording of the appellant's conversation with Mr Rogers, did not cover the entire phone call. There was no objection to the tender of the recording at trial or any suggestion that it was incomplete ( ts 1946). There is no evidence in the appeal to support the appellant's assertion that it was incomplete or that what was omitted was material or arguably gave rise to any miscarriage of justice.
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71 The balance of the matters raised in ground 6 are either repetitive (raised in other grounds), too vague and general to justify separate consideration or involve assertions of fact for which there is no evidentiary foundation.
72 I am not persuaded that ground 6 has reasonable prospects of succeeding. Leave to appeal should be refused.
Conclusion
73 I would refuse leave to appeal on each of grounds 2, 3, 4, 5 and 6. I would dismiss the appellant's application for review of the decision of Mazza JA in Mansell No 1 and the outstanding aspects of applications numbered 4, 7, 10 and 11. I would also dismiss the application to amend [87] of the appellant's submissions and the January 2013 application.
74 PULLIN JA: I agree with McLure P.
75 BUSS JA: I agree with McLure P.
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