Morey v The State of Western Australia
[2006] WASCA 8
•11 JANUARY 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MOREY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 8
CORAM: STEYTLER P
HEARD: 11 JANUARY 2006
DELIVERED : 11 JANUARY 2006
FILE NO/S: CACR 175 of 2005
CACR 176 of 2005
BETWEEN: DONALD VICTOR MOREY
Applicant
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:
Practice and procedure - Application for leave to appeal against conviction and sentence - Whether reasonable prospect of succeeding - Turns on own facts
Legislation:
Criminal Appeals Act 2005 (WA), s 27
Sentencing Act 1995 (WA), s 89(4)
Result:
Application for leave to appeal against conviction dismissed
Application for leave to appeal against sentence allowed on ground 1 only
Category: B
Representation:
Counsel:
Applicant: Mr S B Watters
Respondent: No Appearance
Solicitors:
Applicant: Simon Watters
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193
RPS v The Queen (2000) 199 CLR 620
Samuels v Western Australia (2005) 30 WAR 473
Zoneff v The Queen (2000) 200 CLR 234
Case(s) also cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
B v The Queen (1992) 175 CLR 599
Carr v The Queen (1988) 165 CLR 314
Festa v The Queen (2001) 208 CLR 593
Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497
King v The Queen [2001] WASCA 198
Kioa v West (1985) 159 CLR 550
Kotzmann v The Queen [1999] 2 VR 123
Longman v The Queen (1989) 168 CLR 79
Lowndes v The Queen (1999) 195 CLR 665
R v Austin (2002) 132 A Crim R 537
R v Griffiths (1994) 76 A Crim R 164
R v Ireland (1970) 126 CLR 321
R v Jones (1995) 78 A Crim R 504
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Matthews & Ford [1972] VR 3
R v Neville (2004) 145 A Crim R 108
R v Router (1977) 14 ALR 365
R v Zorad (1990) 47 A Crim R 211
Siganto v The Queen (1998) 194 CLR 656
Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Co (The Palitana) (1924) 20 LI L Rep 140
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Thompson v The Queen (1968) 117 CLR 313
Thompson v The Queen (1992) 8 WAR 387
Woolmington v Director of Public Prosecutions [1935] AC 462
STEYTLER P: This is an application for leave to appeal against conviction and sentence.
On 26 May 2005 the applicant was convicted after a trial by a jury of one count of attempting to unlawfully kill a person, one count of unlawful assault causing bodily harm, one count of unlawful detention and one count of making a threat with intent to prevent a person from doing an act that that person was lawfully entitled to do, namely, calling for help. He was sentenced to a total term of 13 years and 4 months' imprisonment with no eligibility for parole.
The prosecution case was that between 8.30 pm and 9 pm on 12 December 2003 the applicant was parked in his white Holden Commodore station wagon in Stirling Street, Highgate, which was a known haunt for streetwalkers. At about that time the complainant, a prostitute, walked past the applicant's vehicle. He flashed his headlights at her. She approached the passenger door and told him what she charged for sex. She then got in the car.
The applicant first drove to two locations ordinarily used by the complainant but then persuaded her to accompany him to Midland, offering to pay her $900. Tempted by the money, the complainant agreed to accompany him to Midland. At about 10.30 pm the applicant stopped his vehicle in a dark street in Helena Valley. The complainant's evidence was that he turned to her and said, "This is as good a place as any". He then had a white rope wrapped around his right hand and he began wrapping it around his left hand and moving towards her as if to put it over her head.
She attempted to kick him away, swearing at him and calling him a "dog". She said that the applicant became enraged and began to punch her in the head. She fought him off, kicking back at his head. She managed to open the door of the car and fell out backwards on her elbows. The applicant lunged after her, still punching and pulling at her arm, trying to get her back in the vehicle. She was kicking at him and screaming for help. He told her to shut up and do as she was told and that, if she screamed one more time, she was as good as dead.
The complainant said that she managed to grab hold of the tow bar at the back of the car. The applicant was pulling at her, trying to make her let go. Eventually she did let go but she said that the applicant abruptly left her and got back into the vehicle. He started the engine, did a U‑turn and drove away. The complainant hid behind a bush and then ran towards the nearest house, screaming for help. She scaled a brick wall and knocked on the windows and doors of a house, asking the residents to call the police because she had been attacked. One resident who saw her described her as hysterical and fearful.
Meanwhile, on the prosecution case, the applicant discovered that he had driven down a one-way road. He had to turn around and come back. By this time several residents had been aroused by the noise and had come onto the street. The applicant turned off his lights as he drove past. Evidence was given by some of these residents who identified features of his car.
Importantly, the complainant said that, in kicking the applicant, she had struck his nose, causing it to bleed a little. Some of his blood had dropped onto her hair. DNA testing was carried out on blood found in her hair and the expert evidence which was led in this respect established that there was a one in 10 billion chance that the blood belonged to anyone other than the applicant or a close relative.
The applicant's evidence at the trial was very different. He denied playing any part in the assault. He said that on the night in question he picked up a hitchhiker who he could not remember but who must have been the complainant. He said that she was in a bad state and was crying. He gave her a handful of tissues. He had a cut finger and believed that blood might have gone from his finger on to her hair during this process. He said that he remembered feeling hair. He left the hitchhiker at a tavern north of Wanneroo.
Appeal against conviction: CACR 175 of 2005
The applicant seeks leave to appeal against conviction on seven grounds. The test provided for by s 27 of the Criminal Appeals Act 2005 (WA) is that each ground of appeal must have a reasonable prospect of succeeding. That phrase has been considered in Samuels v Western Australia (2005) 30 WAR 473 and I propose to follow the approach adopted in that case.
Ground 1
Ground 1 complains of the trial Judge's approach to what is referred to as identification evidence. In substance the complaint is that the trial Judge failed to direct the jury's attention to specific discrepancies in the identification evidence and that he failed to give the jury a warning about the dangers of relying upon identification, as to which see Domican v The Queen (1992) 173 CLR 555 at 561 ‑ 562.
The trial Judge, in the course of his charge to the jury, made it plain that the prosecution case was circumstantial and that this was not an identification case. He said that, had the case been an identification case in the sense that the complainant had been able to identify the applicant from a photo board, he would have had to give a strong warning about the dangers of relying upon that identification. He went on to say that he did not have to do that in this case because there was no prosecution allegation that the complainant had actually identified the applicant. Rather, she had identified only a person who had features similar to him.
The trial Judge went on to say that, when looking at the question of reasonable hypotheses, plenty of people in the community might answer to the general sort of description which had been given by the complainant. She had mentioned that the man who had assaulted her had a tattoo on his left arm but had otherwise failed correctly to describe him in other respects, including a number of other tattoos which he had had. The trial Judge said in this respect that plenty of people have tattoos and that the applicant had had a lot of tattoos on him, including one on his left arm.
A little later in the course of his charge to the jury, the trial Judge said that, where someone identifies another, the Judge has to warn a jury to be careful, where the identification is made from a sheet of photos, because mistakes can be made. However, he went on to say that the complainant did not attempt to identify the applicant and that she had only identified a person with general characteristics. He reiterated that there might be many people who met the description which she had given. He said that the State case came down to the proposition that the complainant had been assaulted and had her life threatened by a man who she generally described and that DNA testing of a blood spot found on her hair had shown a match to the DNA of the applicant. He mentioned also that the applicant admitted that he had picked up a girl that same day, and that he had explained how he might have got his blood on her hair.
Given this direction, and the contrasting prosecution and defence cases, I am not persuaded that there was any obligation on the trial Judge to do more than he did with respect to the issue of identification and to point out each difficulty which might have existed or each unsatisfactory aspect of such identification evidence as there was. It was obvious to the jury, from what the trial Judge said, that they could not rely upon the identification evidence of the complainant alone. Given the DNA evidence and the applicant's own evidence as to how his DNA might have come to be on the applicant's hair, the real question at the trial appears to have been whether or not the applicant and the complainant had met in the circumstances which he described or those which she had described.
It follows that I am not persuaded that ground 1 has any reasonable prospect of succeeding.
Ground 2
Ground 2 complains that the trial Judge erred by removing questions of fact concerning identification from the province of the jury.
After referring to evidence which had been given by the complainant, the trial Judge said that there was ample evidence, if the jury accepted what the complainant had said, that the complainant was assaulted. He went on to say (transcript 370):
"If you're 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 and it was an assault which occasioned bodily harm".
Counsel for the applicant contends that the trial Judge should not have suggested that the jury would not have much difficulty in concluding that the applicant was the person who had committed the assault. I am not persuaded that there was any such error. The extract of which complaint is made appears in the course of the trial Judge's explanation of the elements of the offence of unlawful assault causing bodily harm. It was in that context that his Honour said, after describing the evidence of the complainant in respect of the assault, that, if the jury was satisfied beyond reasonable doubt that the applicant was the person to whom the complainant was referring as having been with her at the time of the assault, then the jury would not have much difficulty in concluding that he was the person who had committed the assault and that it was an assault which occasioned bodily harm.
A little later in the course of his charge the trial Judge said, (transcript 375):
"I've told you the basic introductory things that you need to know about a criminal trial. I've told you the ingredients of the four offences alleged and what is involved in each one of them. 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, then you may not have too much difficulty in being satisfied beyond reasonable doubt that the offences were made out … "
Counsel for the applicant contends that, by these comments, the trial Judge fell into error by removing questions of fact concerning identification from the province of the jury. I am not at all persuaded that he did so. Once again, the trial Judge said, in effect, no more than that, if the jury were satisfied beyond reasonable doubt that the applicant was the person who had been with the complainant in Helena Valley at the time in question, then they would have little difficulty in concluding that it was him who assaulted her. That seems to me to have been no more than a statement of the obvious, given the way in which the case had been fought.
As I have mentioned, the prosecution case was that the applicant was the man who had been with the complainant in Helena Valley and who had assaulted the complainant. The applicant's case was that he had met the complainant in other circumstances and that he had never been in Helena Valley with her. The trial Judge, later in his charge, was at pains to put the competing cases to the jury and to advise them of their obligations, having regard to the burden and standard of proof.
Ground 2 has no reasonable prospect of succeeding.
Ground 3
Ground 3 complains of what was said by the trial Judge as regards evidence of the identification of the applicant's car on the night of the assault.
One of the prosecution witnesses, Mr Jeff Dunham, was in his home in Helena Valley when he heard a girl screaming for help. He could make out what seemed to him to be a white car in the slip lane on Ridge Hill Road. As he set off to walk down to see what was going on, the car drove into his street. It drove past where he was standing. He said that, being in the smash repair industry, he knew that the car was a Commodore, probably a VR or VS Commodore. The trial Judge, when he came to refer to this evidence, said of Mr Dunham that, "He was just a model out" and that the applicant's car was a VP model. Counsel for the applicant contends that his Honour thereby suggested to the jury that the applicant was guilty because it was his car that had been seen by Mr Dunham.
As I read what was said by the trial Judge, his reference to being "a model out" conveyed no more than that the model described was one model different to the vehicle which was owned by the applicant. Moreover, his Honour went on, a little later, to point out that plenty of people had white Commodore station wagons and that he supposed plenty of them had VP models or early 1990 models. He told the jury that the question for them was whether or not, when they looked at the circumstantial evidence, they could say that the match between the vehicle seen by the complainant and by the other witnesses, on the one hand, and the vehicle which the applicant was known to have possessed, on the other, was such as to satisfy them that this must have been one and the same vehicle.
Consequently, it seems to me that the trial Judge made no suggestion of the kind contended for and that ground 3 has no reasonable prospect of succeeding.
Ground 4
Ground 4 challenges the trial Judge's directions concerning the issue of credit and, in particular, concerning the demeanour of the applicant. A number of specific complaints are made.
The first is that the trial Judge told the jury that, in this case, the applicant had gone into the witness box, but in ordinary circumstances, he did not have to but was entitled to sit in the dock and require the prosecution to prove its case. Counsel for the applicant suggests, in his written submissions, that the trial Judge implied by this that the case was not ordinary and that that was why the applicant had given evidence. I am not at all persuaded that there is any substance to this complaint. What the trial Judge did was no more than to explain to the jury that, although the applicant did not have to give evidence, as was ordinarily the case in criminal trials, he had been willing to subject himself to cross examination.
Next, some complaint is made of the fact that, in assisting the jury as to how it should approach questions of credibility and demeanour, the trial Judge told them that they would have regard to how the evidence was given, including their manner, whether the witnesses were argumentative or difficult or just straightforward, whether there were any differences and whether their evidence was consistent with what they had said in Court and out of Court. He then went on to say that, while this was a matter for the jury, they may think that the complainant had not "put on any theatrics". He also said that the jury had seen the applicant "react to" the prosecutor. He said that, while he made no comment on it, this might assist the jury in deciding who they believed. It is this last comment which is the subject of particular complaint.
In my opinion, this was merely one small aspect of a series of comments made by the trial Judge in respect of credibility and demeanour and the comment made by his Honour was one which he was entitled to make. Without having seen or heard the applicant giving evidence, and the circumstances in which he is said to have reacted to the prosecutor, it is difficult to know just what it was that the trial Judge thought that the jury might draw from the applicant's reaction to the prosecutor. However, in my opinion the trial Judge was entitled to say to the jury that this was a matter which they could take into account as regards the issue of credibility. His Honour went on to say, as regards the issue of credibility, that the jury had to be satisfied beyond reasonable doubt that the complainant's evidence was credible and reliable and that it was not merely an issue of preferring one witness to another.
Next, counsel for the applicant complains of the fact that the trial Judge said, shortly after making the comments to which I have referred, that he thought that everyone who had given evidence had been "pretty well straightforward". This comment is said to have been directed at only the prosecution witnesses. I do not understand it to have been so. The comment was made in a context in which the trial Judge was explaining to the jury, as a generalisation (transcript 356), that "Some people have a lot of trouble talking and getting it together and so on". His Honour then went on to say that there had not been much of that in this case and that everybody who had given evidence had been "pretty well straightforward". It was only in this sense that that comment was made and, it seems to me, the comment would have been understood by the jury as applying to all of those who gave evidence, including the applicant.
Finally, complaint is made as regards comments made by the trial Judge in respect of the timing of events which had been referred to in evidence. He pointed to the fact that there was evidence which established that something had happened to the complainant at Helena Valley at shortly after 10.30 pm. He went on to say that, if the applicant's evidence was accepted, then the complainant must have been in two incidents only two hours apart. He went on to explain this by referring to the evidence of the applicant as regards events on the night in question and also to that of the complainant. The applicant had said that he had picked up the hitchhiker, who he now believed to be the complainant, after she had been dumped on the side of the road in Two Rocks, that she had been dirty and bedraggled and that he had left her at a tavern north of Wanneroo. The complainant, in her evidence, had said that she had attended to her 2‑year‑old child before going out streetwalking in Stirling Street. The trial Judge pointed out that, for the two versions to be consistent, given the timing of events, the complainant had had to have had time to get herself home after the applicant had dropped her off, get herself cleaned up and dressed, attend to her child and then go streetwalking. The trial Judge went on to say, (transcript 391 – 392):
"That's a problem for the accused. I have to be frank about it, but at the same time I stress that he doesn't have to prove that that account is how it happened, but accept that. He says 'That's how the blood got on her hair,' so it's hard to see how it can be both ways, isn't it, but it's for you to assess and judge.
As I say, I don't want to impose a view on you. I'm just trying to pose the questions for you to consider. It's not my view. I'm not saying 'Accept this view or accept that view. Accept this case or that case.' I'm just putting the issues before you to consider."
In my opinion, it was open to the trial Judge to make the comments to which I have referred, even taking into account possible inexactitudes in estimates of time, and there was nothing untoward in them, given the trial Judge's firm reminder to the jury that he was not urging them to form one view or another and that it was a question for them to consider.
I am not satisfied that the matters raised in ground 4, whether viewed severally or taken together, have any reasonable prospect of succeeding.
Ground 5
By ground 5, the applicant contends that the trial Judge restated one of the crucial pillars in a criminal trial, being that it is for the prosecution to prove its case beyond reasonable doubt, when he said to the jury (transcript 359) that their verdicts would "depend in many ways upon which of two competing bodies of evidence you accept subject to the rules of proof". Counsel for the applicant contends that this assertion implied that the verdict depended upon which side was believable and ignored the fact that, even if the applicant's evidence was disbelieved, it was still for the prosecution to satisfy the jury beyond reasonable doubt on all the evidence that the applicant was guilty.
There is no substance to this ground. After having made the comment complained of, which referred expressly to the "rules of proof", the trial Judge was at pains, on a number of occasions, to remind the jury that they were required to be satisfied of the applicant's guilt beyond reasonable doubt and that he did not have to prove his innocence. I have already mentioned that he told the jury that, in approaching the trial, it was not just a question of weighing up the prosecution version as against that of the applicant, but that the jury was required to be satisfied beyond reasonable doubt that the complainant's evidence was credible and reliable. He later repeated, on more than one occasion, that it was not for the applicant to prove anything and that, before the jury could convict, it had to be satisfied beyond reasonable doubt that the evidence placed before them by the prosecution was trustworthy and inconsistent with any other reasonable conclusion than one of guilt.
Ground 6
Ground 6 complains that the trial Judge's summing up was unfair to the applicant in that he undermined purported strengths of the applicant's case with comments to the contrary, but chose not to do so when stating the respondent's case. The ground gives only one example. It is that, when referring to the evidence of the applicant contained within a video record of interview which had been played at the trial, the trial Judge, having mentioned that the jury must have regard to the whole of what was said, including portions which were favourable to the applicant, went on to mention that the prosecution had said that the applicant had lied in the course of those interviews and that his lies had showed a consciousness of guilt.
It seems to me that, in saying what he did in this respect, the trial Judge was merely foreshadowing that he would give to the jury directions concerning the approach which must be taken by them to the alleged lies. He said, (transcript 358), that, when the jury considered the case against the applicant, it had to consider his truthfulness as a witness or, if necessary, evidence with respect to guilt and that he would come later to what had been said by the applicant and to the prosecution's assertions that he had lied out of a consciousness of guilt.
I am not persuaded that there is anything in this passage, or in the Judge's summing up when read as a whole, which demonstrates unfairness to the applicant. Nothing that he said seems to me to have passed the bounds of what was permissible. A trial Judge is required to accurately and fairly put to the jury the respective cases for the prosecution and the accused: see Domican and RPS v The Queen (2000) 199 CLR 620 at 637. In my opinion that is what was done by the trial Judge. While he spent considerably more time on the prosecution case than he did on the defence case, he explained this by saying to the jury that that was not because he was favouring the prosecution case, but simply because it had taken longer. At the outset of his summing up, the trial Judge told the jury that he had no view one way or the other as to whether the applicant was guilty or not guilty of the charges he faced and that it was not for him to impress upon the jury any particular view. He said that he was entirely neutral and that the verdict was the exclusive responsibility of the jury.
While this is not a matter raised in ground 6 of the grounds of appeal, counsel for the applicant has said, in the course of his written submissions, that the trial Judge failed to give an appropriate direction on the issue of lies. Having read that direction (transcript 392 – 393), it seems to me to have been broadly in accordance with the authorities: see Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234. While, as counsel for the applicant pointed out in the course of his oral submissions, the direction was given on the following day, this seems to me to add little to the ground. I have already said that the trial Judge had, on the previous day, foreshadowed that he would give such a direction. In my opinion there was no need for him to give the direction then.
Consequently, it seems to me that ground 6 as formulated, or as it might be amended to take in the lies direction, has no reasonable prospect of succeeding.
Ground 7
Ground 7 is merely a "catch-all" ground which suggests that, if the individual grounds are insufficient to find a miscarriage of justice, the grounds taken as a whole are such that a miscarriage of justice occurred.
I have already said that none of the grounds has a reasonable prospect of succeeding. Consequently, no issue arises whether or not any errors, viewed cumulatively, led to a substantial miscarriage of justice. I should add that, had any such question arisen, it would have been left for determination on the appeal proper rather than be decided in the course of an application of this kind: see Samuels at 487.
Conclusion
It follows that the application for leave to appeal against conviction should be dismissed.
Appeal against sentence: CACR 176 of 2005
As to the appeal against sentence, there are four grounds, after the deletion of a fifth by amendment, being ground 5.
Ground 1
Because I am willing to give leave to appeal in respect of ground 1, which complains that the applicant was not given sufficient time to avail himself of material relevant to sentencing and to be legally represented, I will say no more in respect of that ground.
Ground 2
Ground 2 complains that the trial Judge relied upon evidence given in the sentencing proceedings by a psychiatrist, Dr Pullela, to the effect that the applicant had displayed a lack of remorse, shame or guilt. Counsel for the applicant contends that, in circumstances in which the applicant denied that he had committed any offence, there was no real scope for him to have showed any of these feelings.
While his Honour referred to the evidence of Dr Pullela in this regard, he immediately went on to say that he accepted that the applicant denied that he was guilty of the offences charged and, implicitly, that it was consequently difficult for the applicant to show remorse, shame or guilt.
In any event, there was nothing which pointed to any remorse on the part of the applicant and, indeed, the applicant had described the complainant as "scum" because she was a prostitute and drug addict.
There is consequently no substance to ground 2.
Ground 3
Ground 3 contends that the sentencing Judge erred in declining to declare the applicant eligible for parole. Section 89(4) of the Sentencing Act 1995 (WA) provides that:
"A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors:-
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d) any other reason the court considers relevant."
The trial Judge found that the offence of attempted murder was extremely serious, as it self-evidently was, that the applicant had a significant criminal record, as was the fact, and that the applicant was a danger to the community. It was for those reasons that he declined to make a parole eligibility order. In my opinion it was undoubtedly open to his Honour to reach that conclusion. Ground 3 has no reasonable prospect of succeeding.
Ground 4
By ground 4 the applicant contends that the sentencing Judge failed properly to take into account and give appropriate weight to mitigating factors in favour of the applicant. Neither in the ground nor in the submissions does counsel for the applicant mention what mitigating factors are said to have been inadequately taken into account. The ground, as formulated, is meaningless and I am not prepared to give leave to the applicant to advance it.
Conclusion
It follows that I would give the applicant leave to appeal against sentence only on ground 1 of the grounds of appeal.
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