Morey v The State of Western Australia - [2007] WASCA 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MOREY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 103

CORAM: WHEELER JA
McLURE JA
BUSS JA

HEARD: 5 FEBRUARY 2007

DELIVERED : 18 MAY 2007

FILE NO/S: CACR 175 of 2005
CACR 176 of 2005

BETWEEN: DONALD VICTOR MOREY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MILLER J
File No  :INS 176 of 2004

Catchwords:

Criminal law - Leave to appeal refused - Application to review - Nature of review application - Appeal against conviction - Prospect of success - Turns on own facts

Appeal against sentence - Whether miscarriage of justice - Unrepresented accused - Time to consider relevant material

Legislation:

Criminal Appeals Act 2004 (WA), s 23, s 27(3), s 28, Pt 3
Supreme Court (Court of Appeal) Rules 2005 (WA), r 8
Supreme Court Act 1935 (WA), s 57, s 61

Result:

Applications for review dismissed
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Thames Legal
Respondent: State Director of Public Prosecutions

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

Barry v The State of Western Australia [2007] WASCA 12
Keating v The State of Western Australia [2007] WASCA 98
Morey v The State of Western Australia [2006] WASCA 8

WHEELER JA:

The appeals and applications for review

The appellant in this case appeals against his sentence. Leave was granted in relation to one ground of a proposed appeal against sentence, and that is the only ground upon which he seeks to rely. The position in relation to the appeal against conviction is more complex. On 11 January 2006, Steytler P refused the appellant leave to appeal against conviction in relation to all of his proposed grounds of appeal against conviction. By reason of s 27(3) of the Criminal Appeals Act 2004 (WA), since leave was not given in relation to at least one ground of appeal against conviction, that appeal was taken to have been dismissed. The appellant then sought to review that decision, in relation to grounds 1, 3, and 4 of the proposed grounds, pursuant to r 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA). He did not seek to have the decision in respect of ground 2 reviewed. Steytler P ordered that the application for review be heard together with the appeal.
Subsequently, however, the appellant filed an application seeking orders that he be permitted to rely upon "new evidence" and upon three additional grounds of appeal, being proposed grounds 2, 5 and 6. Roberts‑Smith JA granted leave to amend the appellant's case by adding proposed grounds 5 and 6, but refused leave to amend by the inclusion of proposed ground 2. His Honour referred the application for leave to appeal in relation to ground 5 to the Court of Appeal hearing of the application to review the earlier decision of Steytler P.
Roberts‑Smith JA granted leave, or purported to grant leave, in relation to ground 6. It may be that, although he correctly described what had occurred to that date at the commencement of his reasons, Roberts‑Smith JA at some stage mistakenly thought that leave had been granted in relation to one of the grounds of appeal against conviction, and that is why the orders were made in the way that they were. However, it is accepted on both sides that the correct position is that, the appeal having been taken to have been dismissed by Steytler P, any application to add additional grounds would be incompetent unless, on a review of Steytler P's decision, leave came to be granted in relation to at least one of the original grounds: see Barry v The State of Western Australia [2007] WASCA 12 at [24] per Steytler P, McLure and Pullin JJA agreeing.
So far as conviction is concerned, then, it is only if the appellant is successful in relation to at least one of the grounds the subject of his application to review the decision of Steytler P, that it will be necessary to consider the matters sought to be raised before Roberts‑Smith JA.

Nature of "review" proceeding

The appellant raised the question of the nature of the task which is undertaken by the Court of Appeal, where a single Judge refuses an application for leave to appeal. That question was recently considered by this Court in Keating v The State of Western Australia [2007] WASCA 98. It is not necessary therefore to consider the submissions made by the parties on this point, save to observe that they did not contain any material different from or additional to the materials considered by the Court in Keating.
In the present case, the appellant advanced no reason why the decision of Steytler P was in error. Following Keating, that fact would, in my view, be sufficient reason to dismiss the applications to review. However, because they were fully argued, I deal with them in more detail.

The application for review - conviction

The facts in relation to the appellant's conviction are set out in reasons published by Steytler P, being Morey v The State of Western Australia [2006] WASCA 8. The proposed grounds of appeal are lengthy; his Honour did not repeat them, and I will refrain from setting out most of them. In what follows, numbers in square brackets are, unless the context indicates the contrary, references to the reasons of Steytler P in Morey (ibid).
Ground 1 of the proposed grounds complains of the trial Judge's approach to what the ground refers to as "identification evidence". Steytler P pointed out, at [12], that the trial Judge had made it plain to the jury that this was not an identification case, the prosecution case being circumstantial. His Honour the trial Judge was right. It was not an identification case. As Steytler P pointed out, at [15], given the DNA evidence and the appellant's own evidence as to how his DNA may have come to have been on the complainant's hair, the real question at trial was whether or not the appellant and the complainant had met in the circumstances which he described, or in the very different circumstances which she had described. It was not, as Steytler P's summary of the State and defence cases made clear, a case posing the question of whether the appellant and the complainant had been together at some stage on the evening in question, but a case concerned with what it was that the appellant had done while he was with the complainant on that evening. No identification warning was called for. To the extent that any misdescription of the appellant by the complainant might have led the jury to question the reliability of her evidence in other respects, the learned trial Judge did draw the jury's attention to the fact that there were some discrepancies between the complainant's description and the appellant's appearance. He was not required to do more than he did, and I agree with Steytler P's assessment that this ground has no reasonable prospect of success.
Proposed ground 3 begins by asserting that one of the critical issues at trial was "whether or not it was the Appellant's car the complainant got into in Stirling Street, Highgate (where she was streetwalking)". This is a half accurate description of the issue at trial. There was, as I have already pointed out, apparently no issue about whether the complainant had been, at some time on the day of the offence, in the appellant's car. The issue at trial seems to have been whether or not she got into it in Stirling Street as she described, or at some other place where she had been hitchhiking as the appellant asserted. In any event, the evidence with which this ground is concerned is not evidence about whether the appellant's car was in Stirling Street, Highgate, but whether it was the car seen by a number of witnesses in a dark street in Helena Valley in which the complainant was undoubtedly seen by a number of people in an hysterical and fearful state.
As the ground was understood by Steytler P, it asserted that the learned trial Judge had, in effect, told the jury that the car seen by the witness Dunham was a VP Commodore station wagon, that being the type of vehicle owned by the appellant. Steytler P concluded, having examined his Honour's direction, that the reference to Mr Dunham being "a model out" conveyed no more than that the model actually described by Mr Dunham was a model only slightly different from the vehicle owned by the appellant. That is, his Honour did not tell the jury that the car Mr Dunham saw was the same type of car as the appellant's, but rather that the car Mr Dunham described was just a little different from that owned by the appellant. This latter proposition was correct.
Before us, it was faintly suggested in relation to proposed ground 3 that his Honour had erred in suggesting to the jury that the difference between the VP Commodore and the other types of Commodore described by Mr Dunham was such that Mr Dunham was "just a model out", because there was no evidence as to the differences between the VP and the other models. However, during cross‑examination, Mr Dunham was reminded that he had described the car he saw as a VR or VS Holden Commodore, and that in his statement he said that it was "possibly a VP" as well (this last being the appellant's model). He was asked what the difference between the three models was and he answered, "Not a hell of a lot. The grille is different in the VR and VS" (t/s 159). His Honour then intervened and asked some further questions about the grille, and the situation was left, as counsel for the appellant put it to Mr Dunham, that "the long and short of all that, it was V series but you are not too sure whether it was a P, R, S" (t/s 159). Mr Dunham agreed with that proposition and asserted again that it was a white Commodore station wagon. There is, in my view, nothing in ground 3 and it has no reasonable prospect of succeeding.
Proposed ground 4 is concerned with the following passage from his Honour's direction to the jury, which it is necessary to set out at some length (t/s 353):
"The third rule is what we call the presumption of innocence and you have heard about it today and it's true that every accused person is presumed innocent unless the jury convicts him of the charge that he faces so when the accused walks into the court and throughout the trial there is that presumption of innocence. He is presumed not guilty unless and until a jury finds to the contrary and the important consequence of that is that the accused is not called upon to prove his innocence.
He doesn't have to prove anything. In this case he has gone into the witness box but in ordinary circumstances he doesn't have to. He can sit in the dock and many accused do and say, 'You prove it.' In this case he has gone into the witness box. If he does that, he opens himself up to cross‑examination and you heard Ms Sweeney cross‑examine him of course and then you have got a picture of him giving his evidence and then being cross‑examined on his evidence, so you can make an assessment of him generally but bear in mind that he is not obliged to prove his innocence. So they are the three fundamental rules and they govern every criminal trial and if you keep those in mind throughout your deliberations, you can't go wrong."
His Honour then dealt briefly with the ability of the jury to view the video evidence and continued (t/s 355):
"Now, let's talk about witnesses who go into the witness box. How do you evaluate them? Well, I suppose it's a matter of commonsense. You are all obviously people from different walks of life of varying ages, varying maturities and you have got experience of life on your side. You combine the whole lot of you together and you have got a lot of experience of life, so you can assess people. You can judge people and generally speaking you can judge whether people are telling the truth. That's what this is all about, bearing in mind that the accused doesn't have to prove his innocence. I keep saying that, but basically truthfulness of the witnesses is the issue.
You can judge what a witness says in the witness box yourselves and you can believe what a witness says completely, if you wish, or you can disbelieve a witness completely, or you can accept part of what a witness says and reject part of what a witness says. You don't have to accept everything a witness says. Likewise you don't have to reject evidence a witness says. You can accept same and say, 'Well, I think he's right about that but I'm not so sure about this.' It's up to you.
It's belief that is involved with this. People have to be believable. They have to be what we call credible. In making that decision in evaluating the evidence, you have regard to how they gave their evidence: their manner, where [sic] they argumentative, difficult or were they just straightforward giving their testimony. While they were cross‑examined, were they any different? Were they consistent in what they said here and what they have said out of court? They are all matters for you to consider. I don't want to express any views.
You heard the complainant. I will call her the complainant. … You heard her give her evidence. You saw her give her evidence. She didn't put an any theatrics, you might think. That's entirely for you. You saw the accused give evidence. He did react to Ms Sweeney. There are now [sic] ways about that. You saw how he reacted. I make no comment on it, but it assists you to decide who you believe, although I want to stress it's not just a question of weighing up the two, like I said I would do in that civil case, and saying, 'I prefer one to the other.' It's not as simple as that. You have got to be satisfied beyond reasonable doubt that the complainant's evidence is truthful, credible and reliable."
It is accepted on all sides that the word "now" in the final paragraph above is a typographical error, and that it should read "no".
Proposed ground 4, concerning this direction, is extremely difficult to understand. It reads:
"The Learned Trial Judge fell into error and there was a miscarriage of justice when he commented about the issue of credit and, in particular, about the demeanour of the Appellant going to the issue of his credit. Such comment was unfair and was both implied and express:
Particulars
a)The Learned Trial Judge stated this case was not ordinary and implied that is why the Appellant gave evidence (ts 353C).
b)His Honour, having equated an argumentative or difficult witness as being one who may lack credibility, then stated you saw the accused give evidence. He did react to Ms Sweeney. There are no two ways about that. You saw how he reacted. I make no comment on it, but it assists you to decide who you believe (ts 355C‑E).
c)Contrasted to the thrust of (b) above, the Learned Trial Judge immediately then commented that the complainant didn't put on any theatrics, you might think (ts 355E).
d)In discussing the credibility of the Respondent's witness's [sic], the Learned Trial Judge stated I think everybody has been pretty well straight forward who has given evidence (ts 356B).
e)The Learned Trial Judge recounted the evidence of the witnesses as to relevant times on the evening in question as if such times were 'cast in stone', but the witnesses called by the Respondent were not exact and definite on those times and then, having done so, the Learned Trial Judge stated, referring to those times, That's a problem for the accused. I have to be frank about it … it's hard to see how it can be both ways, isn't it (ts 391‑2)" [emphasis in original].
The point of the ground appears to be that his Honour's comment was, in some sense, unfair. The submissions in relation to it, both written and oral, raised (without, it seems to me, finally selecting any of them) these possible complaints about the direction:
1.Having regard to the potential unreliability of demeanour as a guide, his Honour erred in unduly emphasising the role of demeanour.
2.The comment relating to the appellant's reaction to cross‑examination was unfair because it was a "strong comment".
3.In relation to the appellant's reaction to cross‑examination, his Honour should have balanced his comment with a comment that someone who was accused of a serious crime might, in cross‑examination, react in particular ways. That is, that the problem was not what his Honour said, but what he did not say.
4.His Honour erred in saying to the jury that the appellant's reaction would, rather than could, assist them to decide who they believed.
As Steytler P noted in his reasons, without having seen or heard the appellant give evidence, and the circumstances in which he is said to have reacted, it is difficult to know just what it was that the trial Judge thought that the jury might draw from his reaction to the prosecutor (at [31]). The submissions on behalf of the appellant did not touch on this question. As I understood them, it was not suggested that the appellant's reaction, whatever it was, was something which the jury could not have taken into account.
In relation to the first three potential complaints outlined above, it seems to me that the following observations are sufficient to dispose of them. As is clear from the passages quoted, his Honour was at pains to ensure that the assessment of demeanour was the sole province of the jury. Further, his direction in relation to demeanour and the assessment of the demeanour of witnesses was but one part of a detailed and comprehensive direction, as one would expect. It immediately followed a direction clearly explaining the onus and standard of proof. In context, it did not suggest that the jury could or should make an assessment based solely on demeanour. Immediately following the passages quoted, his Honour went on to explain that the jury should have regard to the powers of observation and emotional states of those persons who had given evidence. His Honour warned the jury against conjecture and speculation. He explained to them the relevance of previous inconsistent statements and the use that could be made of the appellant's videotaped record of interview, and he commented in some detail on the DNA evidence which his Honour understood, in my view correctly, to be "an absolute key" to the case (t/s 361). Then, towards the conclusion of his Honour's direction, having explained the relevant law, he briefly summarised the competing submissions of the counsel for the appellant and of the State.
In my view, there is no substance in the first three of the points outlined above.
The fourth of the possible complaints outlined above requires closer consideration. It is particularly concerned with the sentence in his Honour's directions in which, having noted the appellant's reaction to cross‑examination, his Honour said (t/s 355):
"I make no comment on it, but it assists you to decide who you believe, although I want to stress it's not just a question of weighing up the two ... "
It is submitted that Steytler P at [30] of his reasons misstated this direction, by saying that his Honour had said that, " ... this might assist the jury in deciding who they believed".
It is correct, in my view, to assert that if his Honour was to be understood as saying that some particular reaction, either by the appellant or by any other witness, must be considered by the jury as something which would assist them in determining questions of credibility, such direction would be in error. It is for the jury alone to decide whether any aspect of a witness's demeanour is relevant to credibility and, if it is relevant, how to assess it.
As a matter of strict linguistic analysis, it may be that his Honour's direction is better understood as asserting that the appellant's reaction would, rather than could, assist the jury to decide who to believe. However, it seems to me that there is no reasonable prospect that the jury would have understood it in that way. The reference to the appellant's reaction, like the reference to the demeanour of the complainant, must be seen in its context. It was in the context of a direction which was concerned with making two points. The first point was that the jury could use demeanour in order to assess credibility. The second point was that it was entirely for the jury to assess demeanour and to determine questions of credibility. In that context, it seems to me that the reference to the appellant's reaction would have been understood by the jury merely as one more example of what his Honour meant by demeanour, the assessment of which was the jury's sole province. Although there is, therefore, an issue raised by the fourth of the points summarised above, in relation to proposed ground 4, which is on its face arguable, it is my view that a fair reading of the direction complained of reveals that this ground, too, has no reasonable prospect of success.

It follows that I would not set aside or vary the decision of Steytler P refusing leave to appeal against conviction in relation to all grounds, and dismissing the appeal against conviction. As noted earlier, the appeal against conviction having been dismissed, any application to amend it or to add additional grounds was, and remains, incompetent. It is, therefore, not necessary to consider the issues raised by the other proposed grounds, including the proposed amended ground 6 in respect of which leave was purportedly granted by Roberts‑Smith JA on 11 August 2006.

Appeal against sentence

The sole ground for which leave was granted in relation to the appeal against sentence is as follows:
"1.The Learned Trial Judge fell into error and there was a miscarriage of justice when he did not afford the Appellant time to properly avail himself of material relevant to sentence and, further, to be legally represented:
Particulars
a)On the date of being sentenced the Appellant was provided with a copy of the report of Ms Cinzia Zuin, psychologist. Despite initially affording the Appellant an opportunity to read the report, His Honour seemingly then ignored the fact that, prior to the hearing continuing, the Appellant had not had the opportunity to properly digest the report (tt 42C ‑ 44D).
b)Requests by the Appellant to be legally represented at his sentencing hearing were dismissed (tt 459B‑E; 454B‑D; 458B). The Learned Sentencing Judge commented it is unfortunate, Mr Morey, that you are not represented by Counsel (tt 486A)" [emphasis in original].
This ground is fatally flawed because it materially misrepresents what occurred during the sentencing process. A fuller, and more accurate, account of what occurred is as follows.
The appellant had been convicted on 26 May 2005. The matter was then adjourned to 2 September 2005 for sentence. The Court ordered a pre‑sentence report and, at the respondent's request, a psychiatric report, to address those matters set out in s 98 of the Sentencing Act1995 (WA). It was plain that the appellant was to be sentenced for a very serious offence, and he was on notice that there was a possibility that the State would seek an order for indefinite imprisonment.
There was a psychiatric report prepared by Dr Pullela, consultant forensic psychiatrist. Counsel were provided with a copy of that report. The State wrote to Dr Pullela on 18 August 2005, seeking clarification of certain matters and confirming that the State intended to seek an order for indefinite imprisonment. That letter was copied to the appellant's counsel. The State's submissions, which are not disputed by the appellant, assert that by letter dated 22 August 2005, the appellant advised the respondent that he had dismissed his counsel, acknowledged receipt of Dr Pullela's report, and requested that Dr Pullela be present in Court on 2 September 2005. By letter dated 25 August 2005, the State informed the Court of further evidence that Dr Pullela would give, and also indicated that in Dr Pullela's opinion, the Court should order a report from a clinical psychologist. The State suggested that the sentencing begin on 2 September as listed, with the filing of written submissions and the taking of evidence from Dr Pullela, and that the matter be further adjourned to obtain the additional report.
By letter dated 30 August 2005 and sent to the appellant in person, the State enclosed its submissions on sentence, copies of all authorities referred to, and copies of relevant extracts from the Sentencing Act.
At the commencement of the sentencing proceedings on 2 September, the appellant was asked whether he was intending to represent himself and whether he was happy to do so, and he agreed that he was. Counsel for the State suggested that the Court commission a further report from a psychologist. The purpose of doing so appears, from the transcript, to have been to assist with consideration of the question of indefinite imprisonment. The learned sentencing Judge indicated (t/s 426 ‑ 427) that his prima facie view was that it was unlikely that he could be persuaded that indefinite imprisonment was appropriate and that, therefore, there might be no point in commissioning a further report, unless Dr Pullela, in his evidence, said anything which displaced that preliminary view.
Dr Pullela then gave evidence‑in‑chief. At the completion of Dr Pullela's evidence‑in‑chief, the appellant for the first time suggested that he might not adequately understand what Dr Pullela was talking about and, somewhat obliquely, suggested that he wanted to be legally represented (t/s 454). His Honour then elicited from the appellant various concerns which he had with Dr Pullela's evidence, and responses which he wanted to make to it, and ensured that those matters were put to Dr Pullela.
It was during the course of Dr Pullela's evidence, that it became apparent that neither counsel for the State nor the appellant had the report of Ms Zuin, a psychologist, dated 19 August 2005. The appellant was aware that there would be such a report, since he had been interviewed by the psychologist. Copies were made for both the appellant and the State and they were given the opportunity to read it during the mid‑morning adjournment (about 15 minutes in length), during the course of Dr Pullela's evidence. The State then withdrew its request for the Court to seek a psychological report, and was content to rely upon the written report.
At the conclusion of Dr Pullela's evidence, his Honour advised the appellant that he would accept the psychological report from Ms Zuin in evidence, and advised him that if he wanted to, it would be possible for Ms Zuin to be called so that he could cross‑examine her. He was asked if he wished to do so, and observed that it would be impossible to do that "right at this very moment" (t/s 469). The learned sentencing Judge asked whether he wished to do so at some other time, and asked if the appellant thought there was anything that he would wish to put to her.
His Honour asked whether the appellant wanted time to consider what to do. It was then apparently fairly close to 1 pm and he suggested that he might adjourn until 2.15 pm. The learned sentencing Judge advised the appellant of what would occur after lunch if the appellant did not seek to cross‑examine Ms Zuin, and also indicated what his thinking was at that time in relation to an appropriate disposition. That is, he explained that what would happen in the absence of the calling of Ms Zuin would be that counsel for the State would address him, and that the appellant would be given the opportunity to respond. His Honour noted that the maximum sentence able to be imposed on the appellant was a life sentence and that that was a maximum, not an automatic sentence. He summarised that the State's case in relation to indeterminate imprisonment, in broad terms, and pointed to the matters which, in his Honour's view, might suggest that such a sentence was not appropriate. He stressed that the High Court had made it clear that indeterminate sentences were appropriate only in exceptional cases. His Honour then said (t/s 471):
"What I think we will do is adjourn until 2.15 pm. You can consider your position. It will give you time to consider any further reports and decide what you want to do."
The appellant, however, declined to take time to consider his position. He said (t/s 471):
"No - just get it over and done with. Just do what you've got to do, your Honour."
His Honour then adjourned until 2.15 pm, advising the appellant in the meantime to make a few notes about what he would like to say.
As foreshadowed, his Honour did not impose a sentence of indefinite imprisonment. He imposed a sentence of 13 years 4 months' imprisonment with no parole eligibility.
In summary, knowing that he was facing sentencing for a very serious offence, and knowing that the State intended to seek an order for indefinite imprisonment, the appellant chose to dismiss his counsel fairly close to the listed sentencing date. He explained to his Honour that he had done so because of difficulties in contacting his counsel. However, it does not appear that he took any steps to seek alternative counsel. Rather, at the commencement of the sentencing hearing, he proposed to represent himself.
It was not until he had heard the whole of Dr Pullela's evidence that the appellant suggested, somewhat obliquely, that it might be preferable for him to have legal representation. There was, in my view, no reason why his Honour should have at that point adjourned the sentencing hearing, so that the appellant could obtain legal representation for the purpose of cross‑examining Dr Pullela.
When it became apparent that neither party had been provided with a copy of the report of Ms Zuin, there was a brief adjournment during

which the appellant would have had an opportunity to look at that report very quickly. Then, a little later, the appellant was offered an adjournment of a little over an hour in which he would have had the opportunity to consider his position in relation to Ms Zuin's report. He declined that opportunity. Instead, he firmly indicated that he wanted to get the matter over with.

The appellant then had a period of a little over an hour and a quarter, during the luncheon adjournment in which to read Ms Zuin's report. He was able to read that report in the light of observations which his Honour had made about what his Honour at that time considered to be the principal sentencing issues.
In my view, there is no room for any suggestion that the appellant was not afforded procedural fairness and did not have an adequate opportunity either to be represented or personally to make any submissions he wished, or to apply for an adjournment. I would therefore dismiss the appeal against sentence.
McLURE JA: I agree with the reasons of Wheeler JA.
BUSS JA: I agree with Wheeler JA.