Mansell v The State of Western Australia [No 3]
[2013] WASCA 62
MANSELL -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2013] WASCA 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 62 | |
| THE COURT OF APPEAL (WA) | 06/03/2013 | ||
| Case No: | CACR:190/2011 | ON THE PAPERS | |
| Coram: | PULLIN JA | 6/03/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Applications dated 13 August 2012, 4 February 2013 and 17 February 2013 dismissed Applications dated 7 January 2013 and 9 January 2013 partly dismissed Applications dated 7 January 2013 and 9 January 2013 partly adjourned to the hearing of the appeal Application dated 15 January 2013 adjourned to the hearing of the appeal | ||
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| PDF Version |
| Parties: | CAMERON JAMES MANSELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Application to adduce additional evidence |
Legislation: | Criminal Appeals Act 2004 (WA), s 39, s 40(1)(e) Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d) |
Case References: | De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 R v Fuller (1997) 69 SASR 251 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANSELL -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2013] WASCA 62 CORAM : PULLIN JA HEARD : ON THE PAPERS DELIVERED : 6 MARCH 2013 PUBLISHED : 6 MARCH 2013 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:
Appeal - Criminal law and procedure - Application to adduce additional evidence
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 39, s 40(1)(e)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)
Result:
Applications dated 13 August 2012, 4 February 2013 and 17 February 2013 dismissed
Applications dated 7 January 2013 and 9 January 2013 partly dismissed
Applications dated 7 January 2013 and 9 January 2013 partly adjourned to the hearing of the appeal
Application dated 15 January 2013 adjourned to the hearing of the appeal
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):
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
R v Fuller (1997) 69 SASR 251
(Page 3)
1 PULLIN JA: The appellant has filed nine interlocutory applications in his appeal. They are being dealt with on the papers pursuant to r 7(1)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
2 Apart from the application of 4 February 2013, they are applications, in effect, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) and r 47(3)(d) of the Rules to adduce additional evidence at the hearing of the appeal. A party is not free to adduce any additional evidence that it wants on the hearing of an appeal. Section 39(1) of the Criminal Appeals Act 2004 states that the Court of Appeal must decide an appeal on the evidence and material that was before the lower court. However, that does not affect the power of the Court of Appeal to admit additional evidence under s 40(1)(e) or r 47(3)(d). The principles governing an application to adduce 'other evidence' are referred to in De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [148] - [154].
The application dated 13 August 2012
3 This application to adduce additional evidence, in the form of two blue folders of prosecution brief, was adjourned pending the determination of the application for leave in relation to ground 5 of the appeal. The documents are said to relate to ground 5. The application for leave to appeal on ground 5 was dismissed. As a result, this application is dismissed.
The application dated 4 February 2013
4 The appellant seeks an order directing the Department of Corrective Services to provide an in-cell computer and legal books. An earlier application for an order that a computer be supplied was dismissed by Mazza JA on 24 September 2012 and no application was made to review that order. The appellant referred to an authority, namely, R v Fuller (1997) 69 SASR 251, in support of his application. That case is irrelevant. This court has no authority to make the order sought. The application is dismissed.
The application dated 7 January 2013
5 This is an application to adduce additional evidence attached to an affidavit and relating to grounds 5 and 7 of the appeal. The diary notes the appellant seeks to adduce as additional evidence relate only to ground 5. Because leave has been refused in relation to ground 5, that part of the application is dismissed.
(Page 4)
6 The application also refers to two statements and a letter of Katherine Young, police running sheets and a police exhibits log, which the appellant says he wants to adduce in relation to ground 7, which remains on foot. It is impossible to know precisely why the appellant wants to adduce this evidence and how it might be relevant. The solution to this is to make an order that the appellant be given leave to include the two statements in a supplementary application book, which I will refer to as the 'yellow application book'. The yellow application book will contain documents that the appellant seeks to adduce under s 40(1)(e) and r 47(3)(d). The application to adduce the evidence can be renewed at the commencement of the hearing of the appeal. Usually in such circumstances, the court will defer a decision on the application until the court understands why the document is relevant and why it should be admitted. The order is that the application be adjourned to the hearing of the appeal.
The application dated 15 January 2013
7 The appellant seeks to adduce additional evidence in the form of an affidavit of Craig Stephen relating to grounds 1 and 7 of the appeal. The appellant asked for a copy of the affidavit from the court and when he did not receive it, he then filed an affidavit annexing the affidavit.
8 The appellant has leave to include the Craig Stephen affidavit in the yellow application book. The application to adduce the evidence at the hearing of the appeal is otherwise adjourned to the hearing of the appeal.
The application dated 9 January 2013
9 This is a further application to adduce additional evidence relating to ground 7 of the appeal. One of the documents the appellant seeks to adduce is a record of a 'unit interview'. The appellant says that this document relates to grounds 3 and 6. Leave to appeal on those grounds has been refused. That part of the application is dismissed. The appellant has leave to include the other documents attached to his affidavit and referred to in the application, in the yellow application book. The application is otherwise adjourned to the hearing of the appeal.
The application dated 17 February 2013
10 The application seeks leave to adduce additional evidence, namely, three photographs, a diary note and a running sheet. It is said to relate to ground 7 of the appeal. The documents were not attached to the affidavit.
(Page 5)
- The appellant will not be granted leave to include undisclosed documents in the yellow application book. The application is therefore dismissed.
The second application dated 17 February 2013
11 This is an application to adduce additional evidence, namely, a Major Crime Division log. It is said to relate to ground 7 of the appeal. The appellant has not attached a copy of the document to his affidavit. The application is dismissed.
The third application dated 17 February 2013
12 The documents referred to are said to relate to ground 7 of the appeal. They are described as a statement of John Resic, MTA records of Swan Taxis and phone recordings on the Starnet system. The appellant has not attached a copy of the documents to his affidavit. The application is dismissed.
The fourth application dated 17 February 2013
13 The appellant seeks leave to adduce evidence in the form of media articles and reports and an unsigned statement of Bradley Raumati. They are not attached to his affidavit. As a result, the application is dismissed.
Contents of the yellow application book
14 So there is no misunderstanding, the appellant is not free to include in the yellow application book any documents he chooses. The yellow application book is only to include documents where the appellant has produced a copy of the document and an order has been made granting leave to include the document.
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