Morey v The State of Western Australia
[2006] WASCA 161
•11 AUGUST 2006
MOREY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 161 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:175/2005 | 27 JULY 2006 | |
| Coram: | ROBERTS-SMITH JA | 11/08/06 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to amend grounds of appeal granted in part Application for leave to appeal granted in part | ||
| A | |||
| PDF Version |
| Parties: | DONALD VICTOR MOREY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Application for leave to amend grounds of appeal by addition of new grounds Prospects of success on appeal Application for leave to appeal Reasonable prospects of succeeding on appeal Appeal Criminal law and procedure Additional evidence on appeal Photograph of appellant "Dream Catcher" tattoo Whether "sufficient to establish the appellant's innocence" Relevance and probative value Appeal Criminal law and procedure "Nondisclosure" of evidence of witness Witness testified to matter not previously disclosed "Additional evidentiary material" Section 95(9)(b) Criminal Procedure Act 2004 (WA) Appeal Criminal law and procedure Prosecuting and defence counsel meeting with Judge in chambers during trial in absence of accused Discussion about proposed tender of photograph Photographs not tendered Whether meeting "proceedings" for purpose of s 88 Criminal Procedure Act 2004 (WA) Whether procedural irregularity Whether reasonable prospect of success on appeal |
Legislation: | Criminal Appeals Act 2004 (WA), s 27 Criminal Procedure Act 2004 (WA), s 88, s 95(9)(b) |
Case References: | de la Espriella-Velasco v The Queen (2006) 31 WAR 291 Kunnath v The State [1993] 4 All ER 30 Lawrence v The King [1933] AC 699 Mickelberg v The Queen (2004) 29 WAR 13 Morey v The State of Western Australia [2006] WASCA 8 R v Tait (1979) 46 FLR 386 Samuels v The State of Western Australia (2005) 30 WAR 473 Button v The Queen (2002) 25 WAR 382 Grey v The Queen (2001) 75 ALJR 1708 Mallard v The Queen (2005) 80 ALJR 160 R v Jones (1998) 72 SASR 281 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOREY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 161 CORAM : ROBERTS-SMITH JA HEARD : 27 JULY 2006 DELIVERED : 11 AUGUST 2006 FILE NO/S : CACR 175 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
(Page 2)
Catchwords:
Appeal - Criminal law and procedure - Application for leave to amend grounds of appeal by addition of new grounds - Prospects of success on appeal - Application for leave to appeal - Reasonable prospects of succeeding on appeal
Appeal - Criminal law and procedure - Additional evidence on appeal - Photograph of appellant - "Dream Catcher" tattoo - Whether "sufficient to establish the appellant's innocence" - Relevance and probative value
Appeal - Criminal law and procedure - "Nondisclosure" of evidence of witness - Witness testified to matter not previously disclosed - "Additional evidentiary material" - Section 95(9)(b) Criminal Procedure Act 2004 (WA)
Appeal - Criminal law and procedure - Prosecuting and defence counsel meeting with Judge in chambers during trial in absence of accused - Discussion about proposed tender of photograph - Photographs not tendered - Whether meeting "proceedings" for purpose of s 88 Criminal Procedure Act 2004 (WA) - Whether procedural irregularity - Whether reasonable prospect of success on appeal
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Criminal Procedure Act 2004 (WA), s 88, s 95(9)(b)
Result:
Application for leave to amend grounds of appeal granted in part
Application for leave to appeal granted in part
Category: A
(Page 3)
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No Appearance
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
de la Espriella-Velasco v The Queen (2006) 31 WAR 291
Kunnath v The State [1993] 4 All ER 30
Lawrence v The King [1933] AC 699
Mickelberg v The Queen (2004) 29 WAR 13
Morey v The State of Western Australia [2006] WASCA 8
R v Tait (1979) 46 FLR 386
Samuels v The State of Western Australia (2005) 30 WAR 473
Case(s) also cited:
Button v The Queen (2002) 25 WAR 382
Grey v The Queen (2001) 75 ALJR 1708
Mallard v The Queen (2005) 80 ALJR 160
R v Jones (1998) 72 SASR 281
(Page 4)
1 ROBERTS-SMITH JA: This matter comes before the Court now in an unusual way.
2 The appellant was convicted on 26 May 2005, after trial in the Supreme Court before Miller J and a jury, of four offences. They were attempted murder, assault occasioning bodily harm, unlawful detention and making a threat with intent to prevent a person from doing an act they were lawfully entitled to do, namely, calling for help. Miller J sentenced him to a total term of 13 years 4 months' imprisonment. His Honour refused to order that the appellant be eligible for parole.
3 On 20 September 2005 the appellant filed appeal notices seeking leave to appeal against both conviction and sentence.
4 The appellant filed his Appellant's Case in respect of each appeal on 4 November 2005. There were seven grounds of appeal against conviction and five grounds of appeal against sentence. The grounds of appeal against conviction were as follows:
"1. Identification was the central element at trial (trial transcript 356Q). The Learned Trial Judge failed to properly or adequately deal with the issue of identity such that he fell into error and there was a miscarriage of justice when:
Particulars
a) The Learned Trial Judge, having previously referred to the light in Stirling Street (tt 38OC) (concerning the complainant's description of the offender's car) conversely, when referring to the inability of the complainant to identify the Appellant (although, on the Respondent's case, she was sitting beside him in a vehicle that travelled from Highgate to Helena Valley), referred to the fact it was night time, but did not re-state there would have been street lighting as the car drove from Highgate to Helena Valley (tt 386B).
b) The complainant described a tattoo on the left arm of the offender. The Appellant has a tattoo on his left arm. However, he has numerous tattoos, including dots under his eyes. It seems the
- offender did not have such dots and this fact was not commented upon by the Learned Trial Judge (tt 386D).
- c) In describing the offender, the complainant did not identify features particular to the Appellant; namely his earrings, jewellery (necklace) and numerous tattoos (tt 396C).
d) The complainant stated her attacker maybe had a wedding ring and a small goatee. At the relevant time the Appellant did not wear a wedding ring and did not have a small goatee (beard) (tt 400E-401A).
e) The complainant identified the offender as a person of the same general description as the Appellant (tt 384B).
f) The complainant was shown three photo-boards, only the third contained the Appellant and she was not able to pick him (tt 385-396).
g) The Learned Trial Judge elected not to give a direction on identification, as he had previously indicated he would (tt 390C).
h) The Learned Trial Judge stated it'snot really an identification case (tt 373D).
i) His Honour failed to give a warning about the dangers of relying upon identification (tt 386C).
- 2. The Learned Trial Judge fell into error by removing questions of fact concerning identification from the providence of the jury when:
i) he stated if you are satisfied beyond reasonable doubt that's the person, it looks like you wouldn't have much difficulty in concluding that he was the one who did it ... (tt 370E). [The phrase it looks like you wouldn't have much difficulty in concluding that he was the one who did it could have been left out of that particular sentence by
- the Learned Trial Judge and the direction would still have had the same effect without the conclusionary aspect being contained within it.]
- ii) he implied the Appellant's guilt by stating to the jury I think we can probably just about reach the conclusion, although it's not for me to say - it's for you - that if you are satisfied beyond reasonable doubt that this accused is the person who was there in Helena Valley that night ... (tt 375A) ([appellant's] emphasis).
- 3. 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). The descriptions of the particular white Commodore station wagon varied amongst witnesses, who referred to it as either a VR or VF model. The witness Dunham stated it was probably a VR or a VF. The Appellant drove a VP model. The Learned Trial Judge fell into error and there was a miscarriage of justice when, after referring to the evidence of Dunham, he affirmed to the jury that it was the Appellant's car by stating He was just a model out. It was a VP (tt 381D) ([appellant's] emphasis).
4. 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 (tt 353 C).
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. 1 make no comment on it, but it assists you to decide who you believe (tt 355C-E).
(Page 7)
- 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 (tt 355E).
d) In discussing the credibility of the Respondent's witness's, the Learned Trial Judge stated I think everybody has been pretty well straight forward who has given evidence (tt 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 (tt 391-2).
- 5. The Learned Trial Judge misstated one of the crucial pillars in a criminal trial, namely it is for the prosecution to prove its case beyond reasonable doubt, when he stated, whilst referring to the complainant's evidence as opposed to the Appellant's evidence, you're verdict will depend in many ways upon which of two competing bodies of evidence you accept, subject to the rules of proof (tt 359C). This assertion implied a verdict depended upon which 'side' was believable and ignored the fact that even if the Appellant's evidence was disbelieved it was still for the prosecution to satisfy the jury beyond reasonable doubt on all the evidence that he was guilty.
6. His Honour's charge to the jury, when looked at in total, was unfair to the Appellant in that His Honour undermined purported strengths of the Appellant's case with comments to the contrary, but chose not to do this when stating the Respondent's case; for example:
i) when referring to the evidence of the Appellant contained within the Video Record of Interview,
- the Learned Trial Judge, having mentioned those portions favourable to him (tt 358C), then immediately undermined this aspect by stating the Respondent's case was that the Appellant lied in those interviews and it showed a consciousness of guilt (tt 358D).
- 7. If not sufficient so as to individually found a miscarriage of justice, the above grounds, when viewed cumulatively, are such that a miscarriage of justice occurred."
5 Leave to appeal is required for each ground of appeal (s 27(1) Criminal Appeals Act 2004 (WA)). The applications for leave to appeal were listed for hearing ex parte before Steytler P on 11 January 2006, in accordance with the practice of this Court where a single Judge considering the application on the papers is of the view that leave might not be granted, notwithstanding that a single Judge may refuse leave on the papers (r 7, r 43(2)(b), (f) and (g) of the Supreme Court (Court of Appeal) Rules 2005 (WA)).
6 His Honour refused leave to appeal in respect of each of the seven grounds of appeal against conviction (Morey v The State of Western Australia [2006] WASCA 8).
7 By s 27(3) of the Act, unless the Court of Appeal gives leave on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed (see also r 43(2)(g)(i) of the Rules).
8 His Honour granted leave to appeal on one ground, but refused it in respect of the other grounds of appeal in the appeal against sentence.
9 On 16 January 2006 the appellant filed an application to set aside or vary the decision of Steytler P refusing leave to appeal against conviction on grounds 1, 3 and 4 ("application to review"). That application is made pursuant to s 61(3) and (4) of the Supreme Court Act 1935 (WA) and r 8 of the Rules.
10 On 21 March 2006, Steytler P ordered the application for review be heard with the appeal.
11 The Respondent's Answer was filed on 4 May 2006.
12 On 3 July 2006 the appellant filed an application seeking orders that he be permitted to rely upon "new evidence" and three additional grounds
(Page 9)
- of appeal, being grounds 2, 5 and 6 in a document headed "Amended Grounds of Appeal" ("the amendment notice"). Grounds 1, 3 and 4 in the amendment notice are the same as the previous grounds 1, 3 and 4.
13 The proposed new grounds 2, 5 and 6 are:
"2. New evidence in the form of a picture, contained within the prosecution brief but not tendered by either counsel before the Primary Court, is sufficient on its own to establish the Appellant's innocence.
Particulars
i) The complainant described a distinctive Indian Dream-catcher tattoo on her attacker's upper left arm;
ii) The Appellant has such a tattoo on his upper left thigh, which would not have been visible to the complainant if the Appellant was the attacker, as the attacker was wearing jeans;
iii) A photograph showing the position of the particular tattoo on the Appellant's leg was not tendered at trial.
5. Material evidence in the possession of the prosecution was not disclosed to the Appellant's counsel before the trial, as a result of which non-disclosure there was a miscarriage of justice:
Particulars
a) During the proofing before trial of Mrs Margaret Carol Matusevich, the Appellant's step-mother, the prosecution became aware she would state the Appellant was drinking bourbon that afternoon;
b) This information was not disclosed to the Appellant's legal representatives prior to trial and emerged for the first time during the witness's evidence-in-chief;
(Page 10)
- c) Cross-examination of the complainant, which preceded this disclosure, was adversely effected [sic] by this non-disclosure.
- 6. His Honour erred when he permitted a meeting to take place between counsel for the Appellant and the Respondent in His Honour's chambers, in the absence of the Appellant, through no fault of the Appellant, which meeting was not transcribed, such that the Appellant did not receive a fair trial as it appears that at that meeting a photograph exculpatory of the Appellant was ruled inadmissible."
14 The application was supported by an affidavit of Paul Lothar Ralph Meyer sworn 30 June and filed 3 July 2006.
15 I directed the application be listed for hearing before me ex parte on 27 July 2006. On that date I heard further submissions from Mr Watters and reserved my decision. Mr Watters had been unable to obtain any particular clarification of what had transpired in the trial Judge's chambers on 23 May 2005 and there was uncertainty about what particular photos had been discussed by trial counsel. Given that uncertainty, I made an order on 31 July 2006 pursuant to s 61 of the Supreme Court Act, s 40(1)(h) of the Criminal Appeals Act and r 7, r 43 and r 53 of the Rules that the trial Judge supply a report about the circumstances in which and reason(s) why prosecuting and defence counsel attended upon him in chambers (in the absence of the accused) on Monday, 23 May 2005 on the trial of the appellant and any application(s) made to him and the outcome of such application(s) on that occasion.
16 The report was subsequently provided by Miller J dated that same day. I shall refer to it in more detail below.
17 On 2 August 2006, I made a further order that the appellant have liberty to file and serve submissions by 4 pm on 9 August 2006 in respect of the report of the trial Judge. Such further submissions were filed on 9 August and I have taken them into account.
18 The essential facts are set out in the judgment delivered by Steytler P on 11 January 2006 and I do not repeat them here.
19 I propose to deal first with the proposed new ground 5, as what was said at trial about that also gives relevant context to the application to adduce additional evidence and proposed new grounds 2 and 6.
(Page 11)
Non-disclosure
20 It is apparent from the terms of the ground itself that this is not a case of non-disclosure. The evidence was disclosed because it was given at trial. In reality, the complaint is that what Mrs Matusevich (the appellant's stepmother) would say about the appellant drinking bourbon on the afternoon of the offences was additional evidentiary material, relevant to the charges which the prosecution was obliged to serve upon the appellant as soon as practicable after its receipt, in accordance with s 95(9)(b) of the Criminal Procedure Act 2004 (WA).
21 What transpired at trial is best understood from the transcript, the relevant parts of which I set out below (t/s 258 - 267):
"TUDORI, MR: Your Honour, I'm concerned about nondisclosure. It's the second occasion. The first was the officer who gave evidence about the bull bar. That was never deposed about, but I'm not that concerned about that. What I'm more concerned about is the witness Matusevich who told the state [sic] prosecutor about the accused when he arrived had two bottles of bourbon and Coke. That is extremely relevant. It should have been disclosed. It was disclosed to the prosecution but never disclosed to the defence and you might recall, your Honour, that the complainant gave evidence that she had smelt bourbon on the accused's breath.
MILLER J: Yes, that's right.
TUDORI, MR: So it's not something that is just a minor matter.
MILLER J: It's quite important evidence, I agree.
TUDORI, MR: It's very important.
MILLER J: So what would you like me to do about that?
TUDORI, MR: I flag it. If I can first say this. If there is any more matters that need to be disclosed, if they can be - keeping in mind there's only two more witnesses to go - then it should be disclosed and I will consider my position over lunch. I need to look at the new Criminal Procedure Act.
MILLER J: I'm just looking at the Criminal Procedure Rules.
(Page 12)
- TUDORI, MR: I'm concerned about trial by ambush.
MILLER J: All right. Well, you've brought it to my attention. You're concerned about it, but you don't want me to do anything.
TUDORI, MR: At this stage no, but - - -
MILLER J: You wouldn't want me to abort the trial, would you?
TUDORI, MR: I'm not saying that yet, but I need to look at my position, take instructions - - -
MILLER J: That's what I was going to ask you. Before Mrs Matusevich has gone did you want her recalled? She has left now, but anyway I suppose that could be accommodated on Monday if you wanted her recalled or anything.
TUDORI, MR: I want to look at the procedure rules now.
MILLER J: I don't know whether the new Criminal Procedure Act says anything about it but the rules certainly do. All right, well, you've raised it. Ms Sweeney, is there anything you want to say about it?
SWEENEY, MS: Only that I probably should put on the record that she did tell me. I'm embarrassed and I apologise because it just is something I overlooked. Had I not overlooked it, I would have disclosed it. Perhaps just to put it in context, the accused does in the video record of interview say that he had a couple of beers at the location. She says it's bourbon. I understand my friend's annoyance. As I say, I'm embarrassed and wish I had disclosed it. I can only say that it was not deliberate; it was overlooked.
TUDORI, MR: I know Ms Sweeney. I know it wouldn't have been deliberate. I accept that.
MILLER J: All right. Just looking at the Criminal Procedure Act, section 95 talks about disclosure by the prosecutor. They're just the standard provisions, yes. There is an obligation to disclose obviously. You have rightly raised it, Mr Tudori. Whether anything can now be done about it is the question. Whether there is anything you want to do about it in terms of
(Page 13)
- recalling any witnesses, I'm certainly prepared to accommodate you in that respect if you need that. We have got the time and ability to do that if we need to. We will adjourn now until 2.15 pm. The accused may stand down.
(Luncheon adjournment)
THE CLERK OF ARRAIGNS: Put up Donald Victor Morey.
MILLER J: Mr Tudori, You wanted to speak to me?
TUDORI, MR: Yes, thank you, your Honour. I have taken instructions and I have instructions to make an application to abort the trial pursuant to section 97 subsection (2) the Criminal Procedure Act. In effect by virtue of nondisclosure by the state [sic], it has put the defence in a position where if one takes a step back it's a circumstantial case and one of the branches of the circumstances is the link between the complainant and the offender or the accused.
Now, prior to trial there were the known links. In the complainant's statement she talked of smelling whisky. In her evidence she went further and spoke of smelling bourbon. She then gave evidence that wasn't deposed to and that was that the offender was affected or may have been affected by alcohol.
Then if one goes to the next step, the witness Mrs Matusevich in her deposition never made any reference to alcohol but then when giving evidence not only does she make reference to alcohol but she goes further by saying that it was bourbon. Under cross-examination it came out that she had disclosed that to the state [sic] prosecutor Ms Sweeney.
If that had been in a written format, then it's something that certainly - two things could have happened. I may not have questioned her about it but I also may have put to her about a prior inconsistent statement. Where that leaves the situation here - in terms of other remedies before your Honour gets to the last resort, being the discharge, if she is recalled, then it doesn't solve the position for the defence.
MILLER J: It never was going to. If it had been - put it this way: if Ms Sweeney had disclosed it to you this morning or last week, you still had to cope with it.
(Page 14)
- TUDORI, MR: That's correct.
MILLER J: I can give you further time to cope with it by recalling her if you want to, if you were taken by surprise and you feel you need to look for other evidence or whether to discredit her. I can give you that time.
TUDORI, MR: But the problem that one has - - -
MILLER J: But would it make any difference if you had been told about it as distinct from now being told about it?
TUDORI, MR: It may. Then I may have cross-examined the complainant more about - - -
MILLER J: You can recall her if you want to.
TUDORI, MR: I'm going to come to all that in one second, your Honour - cross-examine her more about the distinct smell, if there is a difference between whisky and bourbon, but what it does in my respectful submission in terms of Ms Matusevich is that it just gives it greater reliability by saying, 'Well, I disclosed it to the prosecution.' Again if that had been disclosed, then I certainly wouldn't have asked those questions.
MILLER J: Wouldn't have?
TUDORI, MR: I wouldn't have asked about - - -
MILLER J: I see your point, yes.
TUDORI, MR: Because it bolsters the situation - - -
MILLER J: Still you're in a position where you are still able to make a submission to the jury that she never said anything about this until a week ago when she spoke to Ms Sweeney; therefore you could make the submission that you, members of the jury, having regard to the fact that nearly two years have passed, might be very critical of that piece of evidence.
TUDORI, MR: I accept all that; I accept all that. I'm following instructions. Your Honour, the difficulty is that one of the crucial tools that the defence has in terms of witnesses like that is cross-examination. We are affected by the nondisclosure
(Page 15)
- because in effect without full disclosure, then sometimes we may walk down paths that we don't want to walk down.
Ultimately, your Honour, what I submit is that to recall either of the two witnesses does not solve the situation. There are provisions for your Honour to make adverse comment to the jury about the nondisclosure but again that doesn't solve the weight that is given by saying, 'I told the state [sic] about that,' and ultimately what my instructions are - my submission is that there can be only one recourse to ensure a fair trial and that is to discharge the jury. Those are my submissions, sir.
MILLER J: Ms Sweeney?
SWEENEY, MS: Your Honour, the application is opposed. Firstly can I say this: this case in our submission looks at first blush like an identification case. In reality it's a credibility case in that - - -
MILLER J: It's a circumstantial evidence case.
SWEENEY, MS: It is.
MILLER J: Not an identification case.
SWEENEY, MS: But the compelling link is the DNA evidence.
MILLER J: Yes, that's right.
SWEENEY, MS: We would say that the complainant can't possibly be mistaken about whether or not she hitchhiked in the afternoon, evening, got into a car, was dropped off at Ocean Reef Tavern. That evidence is either truthful or it's a lie. There really realistically is no other option.
MILLER J: If the jury accepts her evidence, then it follows that the accused has told a lie.
SWEENEY, MS: Exactly, and if they have a doubt about whether her evidence on that point is truthful, they will acquit him.
MILLER J: Yes.
(Page 16)
- SWEENEY, MS: If they have no doubt, then he was with her in the car on the night in question.
MILLER J: That's right. It's either one or the other.
SWEENEY, MS: That's right.
MILLER J: He either picked her up at Two Rocks or he picked her up at Stirling Street.
SWEENEY, MS: That's right, or he is the man in the car.
MILLER J: Yes.
SWEENEY, MS: And so while we have led all of the evidence of the description of the car, headlights, spotlights, towbar, all of which obviously is consistent with or most of which is consistent with her evidence, we say that when properly analysed, those little threads of circumstantial evidence aren't the absolute essence of the case. The essence of the case is the DNA evidence and the explanation for it and whether or not they accept her as a truthful witness.
He in his video interview dated 27 January said at page 15 that when he delivered the trailer, he had a couple of beers at that house and then later at page 23 he says it was sociable; he had a couple of drinks there. The complainant in her evidence, just to give your Honour the full references, at page 59 said she smelt bourbon on his breath. At page 105 she said she smelt whisky, bourbon or something like that and then said he seemed to be affected by alcohol and that he smelt like whisky, so we would say that when properly analysed, the fact that a person may have been drinking alcohol, may have been drinking bourbon or whisky or beer, in the grand scheme of the significance of the DNA evidence in this case, it's not a circumstantial piece of evidence that one places a great deal of weight on.
She either was hitchhiking or she wasn't . That's the reality of it. If the jury have a doubt about whether she was hitchhiking, the fact that her assailant had consumed alcohol doesn't add to the crown case. What we rely upon is the descriptions given by the neighbours of the vehicle, because we would say that if the accused's story is true, then the coincidence is that she appears to have got from one car of one description into another car of
(Page 17)
- the same description on the same evening, so in our submission, when properly analysed, I fully accept that this material should have been disclosed.
In the analysis of the case this is not in fact a significant piece of evidence. It's a factor that doesn't go to the essential question which is the innocent explanation or otherwise for the presence of the DNA. That is the key to the case. Things like whether the stubby was or was not in the car: again, not in the grand scheme of the case of huge significance. It's the description of the car and the DNA evidence is really where the case is pitched and in our submission had the evidence been disclosed in advance, as it should have been, Ms Matusevich still would have given the evidence that she gave, perhaps my friend would have cross-examined her on whether this was beer or bourbon or on whether she was sure about that, but in our submission - - -
MILLER J: As you pointed out, her evidence was whisky or bourbon, so it's equivocal.
SWEENEY, MS: Yes, and I suppose the final point is that I do not see, with respect to my learned friend, how an acknowledgment firstly that a witness has said this the first time only a week or two ago and secondly that it has not been disclosed actually adds weight to that evidence. A fundamental point which he raised is it wasn't said to the police at a time when the details of that visit were being taken. Secondly it's something the prosecution hasn't disclosed, which I would have thought reflects badly on us.
I don't see, with respect, that that adds weight to her assertion that this is what he did on the day. So in our submission while the failure to disclose is regrettable it has not affected the defence to such an extent that the trial should miscarry at this stage.
MILLER J: Yes, all right. Mr Tudori, any reply?
TUDORI, MR: No, no reply, sir.
MILLER J: Very well. I have an application by counsel for the accused to discontinue this trial and discharge the jury from giving its verdict on the basis that there has been nondisclosure
(Page 18)
- by the prosecution of an aspect of the evidence, that aspect being evidence given by Mrs Matusevich that on a day in November or December when the accused had brought a trailer to her property at Two Rocks she had observed that he was drinking and he held up a bottle which she described as bourbon and Coke and said to her, 'I've got two of these.'
That had not been disclosed by the prosecution. Ms Sweeney for the state [sic] rightly concedes that it should have been disclosed and it's unfortunate it wasn't but, as Mr Tudori conceded, or properly said, there's no suggestion it was deliberate. It was an accident and it has happened. The question is what should I do. Section 97 of the Criminal Procedure Act 2004 governs this situation. It gives me the right to adjourn the trial to enable further inquiries to be made. It enables me to adjourn the trial to allow witnesses to be recalled or I may discontinue the trial, in other words abort the trial because of what has happened.
I have listened carefully to the submissions. It is the case, as Ms Sweeney says, that properly analysed, this really is a credibility case. It's got aspects of circumstantial evidence but in the end the central issue is this: the accused through his counsel has not challenged the fact that DNA which did not exclude him and in relation to which there was a less than one in 10 billion chance it could be someone other than him was found on the hair of the complainant.
That means that he must have been in contact with her, although it's for the jury to determine whether that satisfied them beyond reasonable doubt. The cross-examination foreshadows that his defence is he was in contact with her because he picked her up as a hitchhiker in Two Rocks or in that area on the afternoon of 12 December 2003, at what time is not yet specific, but in the early evening, and she had been sobbing, she had been given some tissues, he had a cut finger and that might account for how blood got on her hair.
On the other hand the complainant has given evidence which the jury may or may not accept but which on the face of it is clear evidence that somebody picked her up in Stirling Street, Perth, on the night of 12 December 2003, took her to a remote area which has been described and there committed a number of
(Page 19)
- offences and that it was in consequence of that that a globule of blood got on her hair which was later analysed and found, as I have said, to be showing DNA which did not exclude the accused in the circumstances that I have mentioned.
She denied she had ever been picked up as a hitchhiker or that she had been in the Two Rocks area, so a very stark issue arises in the case. Either she was picked up by a man in Stirling Street and that man was the accused, and the jury has to be satisfied beyond reasonable doubt of that, or if his testimony, if he gives it, is to the effect that he picked up a hitchhiker in Two Rocks and in the circumstances she could have got his DNA on her, and the jury is either satisfied of that or not satisfied beyond reasonable doubt that it didn't happen or left in some doubt about the matter, they would be obliged to acquit.
The other evidence, as Ms Sweeney correctly says, is all circumstantial and surrounding evidence which will have varying degrees of importance. But having regard to the one [sic] in which the case has now panned out, it does seem to me that, regrettable though it is, it couldn't be said that failure to disclose this piece of evidence which Mrs Matusevich was giving is such that there is no option but to abort the trial. So I reject that application.
I am prepared to allow any time that may be required for further consideration, for the recall of witnesses or whatever, but Mr Tudori has more or less signalled that that's not something he is particularly anxious to do and one can understand that. It might only cement the evidence that Mrs Matusevich has already given if she is recalled about the same issue. So the end result is that I dismiss the application for the reasons that I have advanced."
22 The only practical option which would have been open to defence counsel at trial, instead of cross-examining Mrs Matusevich on her evidence (already given in her evidence-in-chief) that the appellant had been drinking bourbon, was not to cross-examine her about that at all, or alternatively, to point up that she had not mentioned it in her statement to police. There would have been obvious dangers with either course. Nonetheless, the evidence ought to have been disclosed in accordance with s 95(9)(b) and it was not. The trial Judge described it as "quite important evidence" (t/s 259). It seems to me this proposed ground raises
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- a real question which might well, in the end, turn on the application of the proviso (s 30(4) Criminal Appeals Act). That is something which would be for the Court of Appeal and not for a single Judge to deal with on an application for leave (Samuels v The State of Western Australia (2005) 30 WAR 473, [56]).
23 Given the application to review and the appeal generally are to be heard by the Court of Appeal, I think the appropriate course in respect of this proposed ground is to give leave to amend by including it, but to refer the application for leave to appeal in respect of it to the Court of Appeal.
24 I turn to proposed ground 2.
New evidence: Photograph of "Dream Catcher" tattoo
25 Identification - in the sense of whether or not it was the appellant who committed the offences upon the complainant - was the central issue at the trial. However, as the trial Judge correctly recognised in his directions to the jury, it was really a circumstantial evidence case rather than an identification case. In any event, ground 1 goes to this issue. The appellant has been given leave to appeal on that ground.
26 The photograph is what would previously have been described as "new" evidence, rather than "fresh" evidence (as to which see Mickelberg v The Queen (2004) 29 WAR 13 at [410] - [411]; de la Espriella-Velasco v The Queen (2006) 31 WAR 291 per Pullin JA at [153]).
27 Here the photographs were part of the prosecution brief. The defence was well aware of them. Trial counsel was concerned about what he gauged to be the prejudicial effect of one or more of them. The matter was discussed in chambers between the Judge and prosecuting and defence counsel in the absence of the appellant. It is that which gives rise to proposed ground 6.
28 Mr Meyer deposes that before the court resumed taking evidence on Monday 23 May 2005, the trial Judge met with both counsel in his chambers in the absence of the appellant and that after returning to the courtroom his Honour gave no indication as to why the meeting was held in the absence of the appellant, other than that it related to a "minor matter".
29 Examination of the transcript reveals that on 20 May 2005, Senior Detective Taylor had been giving evidence about his video record of interview with the appellant, when court adjourned for the weekend. The
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- following Monday morning, when court resumed, the trial Judge said (t/s 273):
"MILLER J: Good morning, members of the jury. I'm sorry there has been so much delay this morning but I had to iron out a couple of little things with counsel which didn't concern you and that has been done in my chambers. It was only a minor matter, so hence you have been sitting here waiting for us. As I said to you, there are delays in this court and we're going to have to strike those a lot of the time, but now we're ready to begin …"
31 In the course of his preparations for this appeal, Mr Watters wrote to trial defence counsel, Mr Tudori, and to the prosecuting counsel, Ms Sweeney SC, asking for information about what had transpired in the Judge's chambers on 23 May 2005.
32 By letter dated 27 April 2006, Mr Tudori wrote:
"I refer to your letter dated 21 April 2006 and advise that only on one occasion did myself and the prosecutor meet in Counsel Chambers during the trial of Mr Morey.
This was in relation to an objection I had to a certain photograph that showed Mr Morey with tattoos that were not relevant to the case and I advise that His Honour Judge [sic] Miller agreed with me and that photograph was not allowed to be used in the prosecution case.
There were no notes made as the attendance at the chambers was very brief and that [sic] I had won my objection."
33 In her letter to Mr Watters dated 22 May 2006, Ms Sweeney SC wrote that her recollection was similar to that of Mr Tudori's. She said:
"… I can recall but one gathering in the Judge's chambers. We sought a ruling on the admissibility of a few photographs of your client depicting tatoos [sic], to which Michael objected on the grounds that they were prejudicial. It was a brief discussion and either I capitulated, or His Honour ruled against me. In any event, the defence succeeded. The meeting was not transcribed and I made no notes. I cannot recall precisely when in the trial
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- it occurred, but it was probably during the evidence of Det Colin Keen.
We gathered in chambers because, due to renovations, we were in a Courtroom where the jury was very cramped in, it was quite an exercise to have them leave the Court and their room was a considerable distinace away from the Court. As I recall, the dispute only arose once the jury had seated themselves and, in the interests of saving time, we agreed to enter Judge's chambers rather than have the jury leave the Courtroom."
34 Mr Watters wrote again to Mr Tudori on 7 June 2006. The relevant parts of that letter, after his reference to the meeting, are as follows:
"Shortly after that meeting photographs of the Appellant's tattoos were tendered. For your reference I enclose pages 268-276 of the transcript.
I also enclose a copy of a photograph provided to me by Mr Morey that, I am instructed, shows an Indian dream-catcher tattoo on Mr Morey's upper left thigh. This photograph is part of a bundle provided to me by Mr Morey that were served as part of the prosecution brief and would seem to include those photographs that were otherwise tendered.
Is the photograph of the dream-catcher tattoo the photograph referred to at paragraph 2 of your letter dated 27 April 2006 that was, at your insistence, excluded?
If so, why?
The Appellant's case was that he was wearing shorts in the afternoon of the day in question and he picked up the complainant for a short time and then dropped her off.
The complainant's evidence was her attacker picked her up later that evening, was wearing jeans (which would cover the said tattoo on Mr Morey's leg) and a short sleeved shirt and she could see an Indian dream-catcher tattoo on the upper left arm of her attacker. The only way she could have seen the tattoo on Mr Morey was if he picked her up in the afternoon, wearing shorts, as he said.
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- With respect, it is arguable the enclosed photograph showing the Indian dream-catcher tattoo on the Appellant's upper left thigh would support his version of events. That is, if the complainant was in his car as he says on the afternoon and he was wearing shorts, then she would have seen the tattoo on his upper left thigh.
As stated above, the complainant's evidence was her attacker was wearing jeans. Therefore, it would not have been possible for her to see this tattoo on Mr Morey's leg. She described it as being on her attacker's upper left arm, totally inconsistent with that on Mr Morey's body.
Can you please state in writing what your instructions were concerning having this particular photograph excluded and whether they were in writing or oral.
Further, please also set-out any conversation (where and when) you had with the Appellant prior and/or after this meting [sic] in chambers concerning what occurred in his absence and the ruling that was made to exclude the photo …"
35 One of the documents exhibited to Mr Meyer's affidavit is a copy of a handwritten letter from the appellant to Mr Watters dated 9 June 2006. The appellant wrote:
"Firstly, in relation to what, if any, instructions to 'Mr Michael Tadori" [sic] concerning a Photograph of the 'Indian Dream Catcher' Tattoo on my left thigh are non-existant [sic], No instructions where [sic] given because no questions were ever asked by Council [sic] either prior or during trial about the 'Indian Dream Catcher' tattoo on my thigh so there was nothing in oral or in written form.
Secondly, There was no conversation at all in any format either prior or after Mr Tadori [sic] and prosecution had meet [sic] in Chambers with His Hon G. Miller, to do with any photographs to be allowed, or not, and tendered into evedence [sic]. I was only made aware of it after continuesly [sic] studing [sic] the Trial Transcripts after the completion of said Trial.
Note: Supreme Court 'Holding Cell records' will clearly indicate that Mr Tadori [sic] did not see me that morning prior to Court starting or after."
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36 In response to a telephone conversation with Mr Watters on 12 June 2006, Mr Tudori wrote by letter dated 26 June 2006:
"1) I do not recall which photographs were tendered at trial.
2) I do not retain or hold any papers in relation to this matter.
3) Concerning the meeting held in His Honours [sic] chambers in the absence of the Appellant, it is my recollection it was held in order to expedite the proceedings and it was my objection as I recall to a photograph which showed Mr Morey's tattoos and nipple rings. There was one photograph of a full frontal shot or a side shot, which in my opinion was prejudicial to Mr Morey as the charge against him was of a sexual nature.
4) My objection relation not so much to a particular tattoo but to the photograph as in my opinion it showed 'too much'.
5) The photograph that was excluded was not the photograph dealing with the web or dream catcher.
6) Mr Morey was informed as to what photographs I intended to object to at some stage during the trial or prior to the meeting at His Honour [sic] chambers.
7) At some stage after that meeting Mr Morey was informed and all those meeting [sic] were conducted in the cells."
37 In his report made pursuant to my order of 31 July 2006, Miller J states:
"Pursuant to [the] order made 31 July 2006 I herewith report on the circumstances in which and reasons why prosecuting and defence counsel attended upon me in chambers in the absence of the accused on 23 May 2005, on the trial of the appellant when an application was made in relation to the exclusion of certain photographs.
During the course of this trial the jury room opposite court 6 was not available as it was still being refurbished. Jurors were therefore required every time there was a retirement to make
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- their way to one of the jury rooms on the upper level at the front of the Supreme Court building. This caused considerable inconvenience.
On the morning of 23 May 2005, the jury was brought into Court and they entered the jury box immediately prior to my intended entry to the Court at 10 am. I received a message that counsel needed to speak to me in relation to the tender of photographs of the accused which was about to take place. Rather than send the jury back to the jury room, counsel attended with my associate in my chambers to explain to me what the problem was.
It transpired that there were a number of photographs of the accused taken at the police station. They showed many tattoos on his body and in one instance showed tattoos and nipple rings on this upper torso.
Counsel for the accused man contended that the photographs which showed the upper body and revealed tattoos and nipple rings were objectionable because they were likely to make him out as a 'social deviant' or perhaps 'sexual deviant'. I note that the latter is more or less the recollection of Mr Tudori in his letter to Mr Watters dated 26 July 2006.
My recollection is that I put to Ms Sweeney that the State probably did not need all these photographs, but no doubt required the photograph of a tattoo on the arm which had allegedly been identified by the complainant on the night of the alleged offences.
As Ms Sweeney says in her letter to Mr Watters dated 22 May 2006, it seems that she capitulated and agreed that all the photographs where unnecessary. No formal order was made in the sense of a ruling. My recollection is that it was a discussion about the extent to which photographs of the accused person needed to be put before the jury and my meeting the two counsel in chambers was an attempt to get the matter resolved quickly and conveniently without the necessity of sending the jury away. I think I did express the view that I thought it hard to accept that simply because a person had nipple rings that that showed him as some sort of sexual or social deviant, but I thought it was unnecessary for the State to tender as many
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- photographs as it was proposing to do and only photographs which were pertinent to the evidence of the complainant were important.
My understanding was that Mr Tudori had only had the opportunity of studying the photographs carefully on the morning in question and he was concerned that the proliferation of them would have engendered a prejudicial response from the jury. I saw my role as trying to resolve the matter as between the State and the defence by agreement rather than by making any specific ruling. Had it been a case of making a ruling the matter would have had to have been argued in open court. As it was, my clear recollection is that the State prosecutor conceded that in the circumstances it was not necessary to produce all of the photographs and particularly unnecessary to tender those to which Mr Tudori was specifically objecting for the reason that it would impress upon a jury that his client was some sort of sexual deviant.
In short, I did not see the occasion as one where there was an argument and formal ruling in relation to the admissibility of photographs, but rather a mediation between the State and the defence as to which photographs were necessary and in relation to which the State conceded that certain photographs need not be tendered. For this reason it was unnecessary for the matter to reargued in open court. In many respects, I saw it as similar to a situation in which defence counsel waited on the State prosecutor at the Office of the DPP and resolved issues of admissibility. The only difference was that in this case I was the trial Judge and the trial was held up whilst the counsel attended upon me in chambers to discuss it. Certainly, I gave guidance and an expression of view. Because it was favourable to the defence there seemed to be no need to take the matter any further by any open court deliberation or reference.
It seems from Mr Tudori's letter to Mr Watters dated 27 April that there was only one photograph in question. It may be that the prosecutor took my general view into account and withdrew others. It appears from the affidavit of Mr Meyer sworn 30 June 2006 that six photographs were tendered. How many more there were I am unable to say.
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- I can only add that I was conscious of the fact that if any formal ruling was called for in relation to the admissibility of any photographs the matter would have to be argued in open court in the presence of the accused. This has always been my understanding. It was because agreement was reached between the counsel that I found it unnecessary to conduct any open court hearing. I have no recollection of Mr Tudori raising any objection to any photograph of a tattoo on the thigh. As he rightly says in his letter of 26 June 2006, the question was whether or not photographs showing chest tattoos and nipple rings were prejudicial. As far as I can recall the State did not produce before me any photograph of thigh tattoos. The prosecutor may well have decided that such a photograph was not amongst those which it was intended to tender. Certainly there was no discussion about the exclusion of any such photograph."
38 The appellant's evidence at trial was that he had picked up the complainant earlier in the day. She had been thrown out of a car with some unidentified people in it and was distressed. She was hitchhiking. He assisted her and dropped her off shortly afterwards and did not see her again. He was wearing shorts and a t-shirt at the time.
39 Mr Watters submits the complainant's evidence was that she was a prostitute, that she was picked up that evening and driven to the hills where the attack took place and that her attacker was wearing jeans and a short-sleeved shirt and had a "dream catcher" tattoo on his upper left arm.
40 He submits that as the photographs show the appellant only has a "dream catcher" tattoo on his upper left thigh, the complainant could not have seen that tattoo on the appellant if he was the offender. That is how Mr Watters expressed it. I take it that what he means is that if the offender had a "dream catcher" tattoo on his upper left arm, it could not have been the appellant, because he does not. The further proposition is that the complainant must have seen the "dream catcher" tattoo on the appellant's thigh in the morning and wrongly (deliberately or mistakenly) transposed her recollection of it to a tattoo on her assailant's upper left arm.
41 Photocopies of the photographs of the appellant in the prosecution brief and not tendered at trial, were exhibited to Mr Meyer's affidavit. I caused the original photos to be produced by the Office of the DPP and I have examined them.
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42 The appellant has extensive tattooing. Much of it can be seen from the six photographs tendered at trial (Exhibits Y1 - Y6 inclusive). He has a very large and intricate tattoo from about two inches above his left elbow up to and over his left shoulder. It appears to run almost all the way around his arm. In the tendered photographs he is wearing shorts. They are not long. They extend only a few inches below his crotch. No tattoo can be seen on his left thigh in the photographs of him wearing the shorts.
43 There were 12 photographs not tendered. The one particularly sought to be relied upon is a close-up of the appellant's thigh. He is wearing what appear to be a pair of jockey briefs, the side of which he is holding up to show the tattoo. That is on the centre of his upper left thigh. The top of the tattoo is the words "Lynne Rochalle". Those words would be just on or just below the level of his hip bone. Immediately below those words is a picture of what appears to be an Indian shield with three cords hanging out either side and two large feathers hanging down from the centre bottom of the shield. This is what is described as the "dream catcher tattoo". It is apparent that were the appellant not lifting up the side of his briefs, they would cover the whole, or at least most, of the tattoo.
44 It is important to have regard to what the complainant actually said in evidence about the tattoo.
45 The complainant's evidence-in-chief was (t/s 48 - 49):
"Can you recall any distinguishing features?---On his left arm that was facing me he had a tattoo, which was only just hanging down below his shirt. I only saw a little bit of it, which looked like a dream catcher or a feather of some sort, maybe a leaf.
Okay. A dream - - -
MILLER J: Did you say it looked like a?---A dream catcher or a feather of some sort.
Feather?---Yeah, or maybe a leaf; I'm not too sure.
SWEENEY, MS: And when you say 'a dream catcher,' what is that?---Like an Indian feather-type thing, a round thing with feathers hanging off it."
46 For his part, the appellant's evidence was as follows (t/s 290):
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- "What did you get changed into?---That particular day was a grey T-shirt, me black-greyish shorts and me blue thongs - dressed in me favourites."
- And at t/s 335, his de facto wife, Ms Bishop, said:
"What clothes was he wearing when he came home?---He was wearing a grey T-shirt and darker grey shorts. They weren't those long groovy ones; they were just above the knees and a little bit baggy.
So he came home and you put those clothes in the washing machine?---Yes, I did."
48 First, the complainant said the appellant was wearing a shirt at the time and she could only see "a little bit" of the tattoo below the shirt. The appellant does have a tattoo on his left upper arm. The complainant described it as looking "[l]ike a dream catcher or a feather of some sort, maybe a leaf". She said she was not too sure. The bottom inch or couple of inches of the tattoo, with the rest of it masked by a sleeve or otherwise, could well be taken to be "like" the bottom of a feather or a leaf.
49 Secondly, the description the complainant gave of a dream catcher tattoo being "… like an Indian feather-type thing, a round thing with feathers hanging off it" was in response to the State prosecutor's question asking what a dream catcher tattoo is. It was not a description of what she had seen.
50 Thirdly, contrary to Mr Watter's assertion in his letter to Mr Tudori dated 7 June 2006, and his submissions to me, the complainant would not conceivably have been able to have seen the tattoo on the appellant's upper left thigh if he was wearing shorts, even of the length he is shown wearing in the photographs. It would have been quite impossible for her to have seen it had he been wearing the shorts he and his de facto described in evidence, and on no-one's account did the appellant at any time remove any part of his clothing during the incident.
51 The assertions of fact in proposed ground of appeal 2 are simply inaccurate. The complainant did not describe "a distinctive Indian dream catcher tattoo on her attacker's upper left arm". She said she saw a "little bit" of a tattoo which was "like" a dream catcher, or a feather of some sort, or a leaf. That was the whole of her description of what she saw of the tattoo. In no way is the photograph "sufficient on its own to establish
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- the appellant's innocence". In reality, it has no evidentiary value whatsoever.
52 This proposed ground of appeal is totally unsustainable.
53 I would accordingly refuse leave to add it by amendment.
54 I have already dealt with proposed ground 5.
Proposed ground 6: Meeting in chambers
55 By s 88(3) of the Criminal Procedure Act 2004, proceedings that relate to an accused must take place in his or her presence unless s 140 of that Act or the Sentencing Act 1995 (WA) provide otherwise. The latter Act has no bearing on the present appeal. Section 140 of the Criminal Procedure Act gives a court power to remove an accused from court if they conduct themselves in a manner that makes it impracticable to continue proceedings in their presence. Clearly that is not this situation.
56 "Proceedings" is defined for the purposes of s 88 as including (inter alia) an accused's trial or any proceedings under s 98 (s 88(1)).
57 Section 98 of the Criminal Procedure Act concerns issues that may be dealt with before trial. By subs (2) the court may do a number of things, including determining any question of law or procedure, or giving any direction or doing "any other thing" that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, "or that is otherwise desirable"; determining any question of fact that in a trial may be determined lawfully by a Judge alone without a jury; or dealing with a submission of no case to answer and finding the accused not guilty without requiring the jury to give its verdict on the charge if such a submission is upheld; or dealing with other applications.
58 Section 88 is accordingly a statutory injunction that an accused's trial must take place in the presence of the accused. The trial clearly includes not only the taking of evidence and the conduct of the case before the jury, but also all other such matters of the kind adumbrated in s 98(2). It would be anomalous if an accused had the statutory right to be present in such circumstances before his trial, but not during it.
59 This is consonant with principle and the common law (Lawrence v The King [1933] AC 699, per Lord Atkin at 708; Kunnath v The State [1993] 4 All ER 30 and the authorities referred to therein).
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60 It is neither necessary, nor appropriate, on an application to amend grounds of appeal (by adding a ground) or on an application for leave to appeal, to canvass the pertinent authorities or principles in detail. An application for leave to amend will be determined in accordance with an assessment of what the interests of justice require; whether or not leave to appeal will be granted turns upon the statutory test whether or not the particular ground has a reasonable prospect of succeeding on appeal.
61 It seems to me there is a real question in this case whether what transpired in chambers on 23 May 2005 was part of the "proceedings". Certainly there could have been no doubt about it, if his Honour had made any ruling as to the admission of the photographs into evidence. But it is clear from his Honour's report that he made no ruling and that the discussion in chambers was purely for the purposes of facilitating the conduct of the trial. But even that on the face of it, falls within the terms of s 98(2)(a) of the Criminal Procedure Act - and if that be right, s 88 makes the accused's presence mandatory.
62 One can readily appreciate there may be matters which, on one view, could conveniently and expeditiously be discussed and dealt with by the Judge and counsel in chambers, and indeed, that there could (exceptionally) be reasons why it might be thought desirable to have such discussions in the absence of the accused. Some examples were adverted to by the Federal Court of Australia (Brennan, Deane and Gallop JJ) in R v Tait (1979) 46 FLR 386 at 405 - 407 - although that Court considered such a course was not permissible in the absence of express statutory authorisation. I am aware some Judges have had a practice in the past of discussing aspects of trials in chambers in the absence of the accused. Whether such a practice is desirable or even permissible is a real question. On this application it is not apt for me to express any further view about it than that.
63 As the Court of Appeal pointed out in Samuels v The State of Western Australia (supra) (at [59]) what is "reasonable" (in the context of s 27 of the Criminal Appeals Act) takes its colour from the circumstances and:
"Thus, where a ground is on a point on which the law is unclear and is in a state of development, and where the ground might succeed were the point to be accepted, the ground would be unlikely to be held to have no reasonable prospect of succeeding."
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64 Proposed ground 6 seems to me to fall into this category. It also potentially falls into that other category of cases mentioned in Samuels at [56], being that in which, if the ground were to succeed, the question would arise whether the error (or in this case, the procedural irregularity, if it be found to be such) led to a substantial miscarriage of justice. That question would clearly arise here, given that the purpose of the conference in Judge's chambers was to discuss the defence objection to the tender of photographs (or at least one photograph) of the appellant, and for the reasons I have already given, the non-tender of the photograph of the dream catcher tattoo could not conceivably have prejudiced the appellant. However, as pointed out above at [22], the question whether an error or procedural irregularity led to a substantial miscarriage of justice is to be left to the appeal proper.
65 I would accordingly give leave to appeal in respect of proposed ground 6, and that being so, I would give leave to amend the Appellant's Case by including it as a new ground.
Conclusion
66 I will accordingly make the following orders:
(1) Leave to amend the Appellant's Case by adding proposed grounds 5 and 6 is granted.
(2) Leave to amend by including proposed ground 2 is refused.
(3) The application for leave to appeal on ground 5 is referred to the Court of Appeal for hearing with the application to review the decision of Steytler P made 11 January 2006 and the appeal proper.
(4) Leave to appeal in respect of ground 6 is granted.
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