McKerlie v The State of Western Australia
[2006] WASCA 51
•22 MARCH 2006
McKERLIE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 51 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:80/2004 | 22 MARCH 2006 | |
| Coram: | ROBERTS-SMITH JA | 22/03/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | New Rules Order made | ||
| B | |||
| PDF Version |
| Parties: | COLIN ROBERT McKERLIE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Supreme Court (Court of Appeal) Rules New Rules Order Effect of timely progressing of appeal Delay Legal aid and availability of counsel Availability of counsel of choice |
Legislation: | Supreme Court (Court of Appeal) Rules 2005, r 4, r 32 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McKERLIE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 51 CORAM : ROBERTS-SMITH JA HEARD : 22 MARCH 2006 DELIVERED : 22 MARCH 2006 FILE NO/S : CCA 80 of 2004
- CCA 81 of 2004
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File No : IND 516 of 2003
Catchwords:
Criminal law and procedure - Supreme Court (Court of Appeal) Rules - New Rules Order - Effect of timely progressing of appeal - Delay - Legal aid and availability of counsel - Availability of counsel of choice
(Page 2)
Legislation:
Supreme Court (Court of Appeal) Rules 2005, r 4, r 32
Result:
New Rules Order made
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Ms T D Sweeney SC
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH JA: These appeals, as I shall so describe them for convenience, were commenced by notice dated 1 June 2004 (and filed two days later). They followed the applicant's conviction in the District Court at Perth on 14 May 2004 on three offences; one of indecent assault and two counts of sexual penetration without consent. The aggregate sentence then imposed was 4 years 8 months' imprisonment.
2 By notice (filed on 3 June 2004), the applicant appealed against conviction on the grounds that:
"1. the prosecution was conducted on the basis that I had formulated lies after seeing the complainant's statement in breach of my right to silence; and
2. the learned trial Judge failed to instruct the jury adequately that the prosecution case was conducted contrary to my right to silence."
3 On the same date the applicant sought leave to appeal against sentence on the single ground the sentences were manifestly excessive.
4 At that stage, the grounds in neither instance were further particularised.
5 Thereafter the applicant appeared regularly before a single Judge. Prior to the Criminal Appeals Act 2004 (WA) and the Supreme Court (Court of Appeal) Rules 2005 ("the new Rules") coming into operation on 2 May 2005, those appearances were on what were called "motions days" for the Court of Criminal Appeal. Until then there was no particular timetable for the progression of appeals or applications for leave to appeal, and appellants or applicants were routinely listed before a single Judge, generally monthly or bi-monthly, to monitor the progress of their appeals.
6 Since 2 May 2005, that has been necessary only in respect of appeals or applications instituted prior to that date and in respect of which an order (called a "New Rules Order") has not been made, that they continue under the procedure prescribed by the New Rules. Those rules prescribe, inter alia, time limits for the completion of various stages of an appeal or application for leave. They are designed and intended to ensure that appeals are progressed in a reasonably timely way so as to avoid delays which in turn can lead to injustice.
(Page 4)
7 That procedure meant it is unnecessary for appellants to appear routinely before a single Judge. Any pre-appeal appearances are now done on directions days for criminal appeals, and only when specifically listed because some particular direction is needed, or decision is required to be made.
8 I note at this point that the events out of which the charges arose occurred in February 2002, over four years ago, and the trial was conducted in May 2004. Consistently throughout the period since June 2004, Mr McKerlie has referred to difficulties obtaining legal aid, difficulties obtaining counsel and difficulties communicating with either Legal Aid or counsel, or both. I will not recapitulate all those now. They appear sufficiently from the transcripts of proceedings in this Court to date.
9 He has also indicated that he wishes to obtain additional evidence to use on his appeal, but says he has been unable to do that from prison and without a lawyer. There is no application pending for leave to adduce fresh evidence, or additional or new evidence, and there has been no specificity about what that might be, nor how it might bear on any ground of appeal.
10 Mr McKerlie was granted legal aid on 30 November 2005. However, there was a dispute about that. He apparently wished to have a particular solicitor and to brief separate counsel, but Legal Aid was not prepared to provide additional funding for both, or for the amount sought. Again I will not traverse the details of that dispute further, save to say that by 3 March 2006, the matter was assigned to Mr Simon Watters which at that stage seemed to be satisfactory to everybody.
11 By letter dated 8 March 2006 to my Associate, Mr Watters advised that he was then already in a trial and so would be unable to attend the directions day listing of this matter on 9 March to which these appeals had been adjourned, and asked for 21 days to file the appellant's case. On that occasion, Mr Craig McIntosh in fact appeared in lieu of Mr Watters simply to indicate Mr Watters' position.
12 Also on that occasion, Mr McKerlie said he was in the process of obtaining the services of his counsel of choice, Mr John Prior, and asked that I not make a New Rules Order which I had previously foreshadowed making because he needed to speak to Mr Prior and give him proper instructions.
(Page 5)
13 Today I am told that Mr McKerlie has only managed to speak to Mr Prior within the last 24 hours or so, and that he understands that because of Mr Prior's personal commitments, he would be unable to accept instructions to act on Mr McKerlie's behalf were a New Rules Order to be made because he would not be available for some three weeks or so in any event.
14 I am informed by Ms Parsons from Legal Aid that in their communications with Mr Prior, he had indicated that he would be unable to accept instructions, were he able to do so at all, otherwise than on the basis that he would need about six weeks to, as it is put, get on top of the matter.
15 It is also necessary to mention here that as a result of repeated requests that the applicant particularise his grounds of appeal, he filed a notice on 29 April 2005 which was ostensibly for that purpose.
16 No particulars were given then for the single ground of appeal against sentence, although some were given in respect of the proposed appeal against conviction. I am told today that Mr McKerlie in fact served a second amended notice of appeal on the respondent dated 24 October 2006, although there was no copy of that on the court file. A copy has been made available to me by Ms Sweeney for the respondent today.
17 According to that document the (proposed) grounds of appeal against conviction are:
"Grounds of Appeal against convictions -
1. The prosecution was conducted on the basis that the Appellant had formulated lies after seeing the complainant's statement in breach of the Appellant's right to silence.
Particulars
During the course of cross-examination of the Appellant counsel for the Crown at page 279 put to the Appellant that he had had the Complainant's statement for a period of two years and that in that time he had constructed his version of events. This was both an attack on the Appellant's right to silence and was misleading in itself as if the Complainant's version of the
(Page 6)
- events was true it would have been known to the Appellant in any case.
2. The learned trial judge failed to instruct the jury adequately that the prosecution case was conducted contrary to my right to silence.
Particulars
The learned trial judge failed to instruct the jury that the Crown's case had been conducted improperly by attacking the Appellant's right to silence and failed through the course of the trial to take any action to halt or correct this attack.
3. The learned trial judge wrongly instructed the jury with regard to alleged lies by the Appellant.
Particulars
The learned trial judge, on the basis of the Crown's allegation that the Appellant had lied in his evidence, improperly gave the jury a Zoneff direction at page 312 when there was no testimony by the Appellant capable of being regarded as a lie stemming from a consciousness of guilt.
4. The learned trial judge erred in failing to direct the jury that they could draw a negative inference from the failure of the prosecution to take any action with regard to the physical evidence supplied to it by the Appellant.
Particulars
The investigating police officer Mr Talbot gave evidence of the items being given to him by the Appellant at page 176. He gave evidence that no action had been taken in regard to those items on instructions from the Director of Public Prosecutions at page 177.
5. The learned trial judge exhibited bias against the Appellant which denied the Appellant a fair trial.
Particulars
The learned trial judge exhibited bias against the Appellant by his behaviour while the Appellant was giving evidence. This
(Page 7)
- behaviour was calculated to indicate to the jury that the learned trial judge did not believe the evidence being given by the Appellant.
The learned trial judge indicated in his remarks on sentence that he had a pre-existing attitude regarding the Appellant on the basis of his observations of the Appellant as counsel. This attitude was that the Appellant ad a psychiatric or psychological problem. The learned trial judge also indicated prejudice against the Appellant by making these remarks without making any attempt to obtain expert opinion to support his remarks.
6. The Appellant was denied a fair trial by reason of his overnight imprisonment due to an error on the part of the learned trial judge and/or the Clerk of Arraigns.
Particulars
On the first day of the trial the Appellant's surety failed to attend the court due to a misunderstanding and the Appellant was taken into overnight custody. The Appellant was explicitly told by the Clerk of Arraigns that the Appellant would be released from wherever he was held in custody if his surety attended. At approximately 7.00pm that night the Appellant's surety attended Hakea Prison to have the Appellant released but was advised, as was the Appellant, that the bail documentation required the signature of a Clerk of Arraigns and such person was not available. For this reason the Appellant was held in custody overnight. This had a very serious effect on the Appellant's physical and mental state which affected his ability to both give instructions to his counsel and to give evidence.
On the morning of the second day of the trial while at Hakea Prison before being taken to court the Appellant was not given the opportunity to shave or shower before being taken to court and had to give his evidence in this condition. The condition of the Appellant was not explained to the jury at any time and it is reasonably possible that the jury would have drawn a negative inference from the Appellant's physical appearance.
7. The complainant lied under oath in the course of her evidence on matters that were material to the trial.
(Page 8)
- Particulars
The Complainant gave evidence that her mobile phone was not working at page 54 which was untrue. The Complainant also denied in her evidence that she had made a complaint against another man to the Human Rights and Equal Opportunity Commission at page 134. The Appellant seeks to put evidence of these two falsehoods before the Court on the basis that the Appellant had no reasonable likelihood of anticipating that these falsehoods would be given in evidence by the Complainant at trial.
8. The trial was fundamentally unfair due [to] the removal of the Appellant's right to test the evidence and explore the evidence to be given by potential witnesses at a preliminary hearing.
Particulars
Legislation removing the preliminary hearing from the criminal procedure of the State of Western Australia was passed after the incident which led to the Appellant being charged with these offences. A preliminary hearing which had been listed for hearing this matter was abandoned subsequent to that legislation coming into force. The removal of the preliminary hearing and the failure to replace the opportunities such a hearing provided for the defence created a situation of fundamental unfairness to the Appellant which could not be remedied before or during trial.
9. The Appellant was denied a fair trial by the failure of his legal representatives to properly advise him or represent him in regard to his instructions that he wished to put his character in issue at trial.
Particulars
The Appellant instructed both counsel who represented him before and during the trial that he wished to put his character in issue. This issue arose from the service by the investigating police officer of a statement from Michele Lekias which was prejudicial to the Appellant, the only apparent purpose of this was to indicate that Lekias would be called to give evidence of bad character if the Appellant put his character in issue. The
(Page 9)
- Appellant's first legal representative, Mr Robert Mazza, told the Appellant he would take action to have Lekias' statement ruled inadmissible prior to trial so as to clarify the issue in anticipation of the Appellant putting his character in issue. To the best of the Appellant's knowledge no such action was ever taken.
The advice the Appellant was given by his second legal representative and Counsel at trial, Mr Paul O'Brien, was that to say anything in regard to his character, such as 'I would never do that', would put his character in issue and allow the Prosecution to cross-examine him on the allegations made by Lekias and any other unproven allegations they might have available. This had a stifling effect on the Appellant given [sic] evidence in that he was then self-conscious of not mistakenly saying anything about his character during his evidence, despite the fact that he has strong personal beliefs regarding the kind of conduct alleged against him. This need to self-censor his evidence had a negative effect on the Appellant which, together with the other matters affecting his capacity to give evidence as he would normally, was likely to negatively affect the Appellant's credibility, which was essentially the evidence to justify such judgements [sic]. The sentencing process was unfair to the Appellant as a result of the bias of the learned trial judge as set out above."
18 I have previously explained to Mr McKerlie that should I make a New Rules Order, he would have 35 days to file the Appellant's Case, and in that he may set out whatever grounds and particulars he wishes without requiring leave to do so.
19 Mr McKerlie opposes the making of a New Rules Order as I understand it on the basis the position in respect of counsel is still uncertain and of Mr Prior's unavailability. The position as I apprehend it is that he considers he needs time to instruct counsel, and as he indicated on a previous occasion, to obtain some presently unknown additional evidence.
20 It seems clear Mr Prior is not readily available to the applicant, and that if he were to act, it would be at least another two months and quite possibly more before he would be in a position to file the Appellant's Case. There can be no assurance even that Mr Prior would act, nor if he
(Page 10)
- were to, how soon he would be able to progress the appeals. It appears Mr Watters would be able to do so well within the 35 days.
21 Mr McKerlie should be altogether able to give entirely adequate instructions to support his grounds of appeal, especially having had over one and a half years to consider them. The grounds as they presently stand - and I am referring here to the grounds served on the respondent rather than those filed in the Court of Appeal office - are neither factually nor legally particularly complex. They will either be made out on examination of the trial transcript or perhaps some additional evidence, should Mr McKerlie seek leave to adduce it and be given leave (although that is uncertain at the moment) and it is difficult to see there could reasonably be a need for protracted instructions to counsel.
22 On the other hand, Ms Sweeney has referred to potential prejudice to the respondent from not being able to know at this stage quite what the applicant seeks to advance and therefore what might need to be sought to be put forward to counter it. Given the way in which the grounds and particulars are presently framed that seems to me to be a reasonable apprehension.
23 I have repeatedly stressed to the applicant the importance of progressing his appeals. The availability of preferred counsel is a relevant consideration, but it is not the dominant consideration. The interests of justice require these appeals to be progressed without further delay, consistently with Mr McKerlie's appeals being properly presented to the court. I will make a New Rules Order that will give the applicant 35 days from today to file the Appellant's Case. There will be no need for any further appearances unless the Registrar or a Judge lists these matters for a particular reason.
24 The terms of the New Rules Order are as follows: I direct pursuant to r 4, that r 32 and all consequential rules apply, subject to the time limit in r 32(2)(b) being taken to run from today.
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