Morgan v The State of Western Australia [No 2]
[2019] WASCA 185
•21 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MORGAN -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2019] WASCA 185
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 2 & 3 SEPTEMBER 2019
DELIVERED : 21 NOVEMBER 2019
FILE NO/S: CACR 20 of 2019
CACR 24 of 2019
BETWEEN: NICHOLAS HUGH MORGAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: DERRICK J
File Number : INS 36 of 2018
Catchwords:
Criminal law - Appeal against conviction - Whether jury irregularity when person known to appellant seen talking to members of the jury panel prior to commencement of the trial - Whether failure to call witnesses gave rise to a miscarriage of justice - Whether showing appellant in handcuffs in a search video gave rise to a miscarriage of justice - Whether conflict by former legal representative or incompetence of trial counsel gave rise to miscarriage of justice - Whether undiagnosed health condition left appellant unfit to stand trial - Whether miscarriage of justice arose from written jury aid being overly long and complex - Whether verdicts of the jury were unreasonable and not supported by the evidence - Turns on own facts
Criminal law - Appeal against sentence - Whether infringement of the parity principle - Whether individual sentences were manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle - Whether trial judge failed to take account of impact of convictions on appellant's employment prospects in sentencing - Whether trial judge erred in backdating a partly suspended sentence - Whether a different sentence should have been imposed
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 31(4)
Criminal Code (WA), s 317(1), s 393(c), s 397(2)
Criminal Procedure Act 2004 (WA), s 110, s 111
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barnden v The State of Western Australia [2014] WASCA 161
Barry v The State of Western Australia [2012] WASCA 175
Browne v Dunn (1893) 6 R 67
Bull v The State of Western Australia [2019] WASCA 24
Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Evans v The State of Western Australia [2019] WASCA 73
Gibbs v The State of Western Australia [2018] WASCA 68
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Huggins v The State of Western Australia [2018] WASCA 61
Jeffery v The State of Western Australia [2018] WASCA 219
Jones v Dunkel (1959) 101 CLR 298
Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233
MJS v The State of Western Australia [2011] WASCA 112
Mogridge v The State of Western Australia [2016] WASCA 205
Morgan v The State of Western Australia [2019] WASCA 87
Narkle v Hamilton [2008] WASCA 31
Neal v The Queen (1982) 149 CLR 305
O'Brien v The State of Western Australia [2016] WASCA 23; (2016) 306 FLR 372
Peake v The State of Western Australia [2015] WASCA 239
R v Apostilides (1984) 154 CLR 563
R v Lindsay [2014] SASCFC 56; (2014) 119 SASR 320
Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96
SBJ v The State of Western Australia [2019] WASCA 32
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Smith v The State of Western Australia [No 2] [2016] WASCA 136; (2016) 263 A Crim R 449
The State of Western Australia v Karolides [2017] WASCA 111
Wells v The State of Western Australia [2017] WASCA 27
Whitby v The State of Western Australia [2019] WASCA 11
Contents
Summary
State case at trial
Complainant's evidence-in-chief
Background
Events of Monday 20 February 2017
Events of Tuesday 21 February 2017
Events of Wednesday 22 February 2017
Events of Thursday 23 February 2017
Events of Friday 24 February 2017
Photographs
Mr Watters' cross-examination of the complainant
Mr Camp's cross-examination of the complainant
Evidence of the complainant's mother
Statement of DS Mulhall
Evidence of DC Leahy
Evidence of Constable Wold
Appellant's case at trial
Appellant's evidence-in-chief
Events of Monday 20 February 2017
Events of Tuesday 21 February 2017
Events of Thursday 23 February 2017
Mr Camp's cross-examination of the appellant
Prosecutor's cross-examination of the appellant
Chau's evidence
Grounds of appeal against conviction
Applications in an appeal
Grounds 1 and 8(c): alleged jury irregularity
Additional evidence
Relevant facts
Disposition
Grounds 2, 3 and 8(d): failure to call witnesses
Background
Disposition
Grounds 4 and 8(a): search video
Grounds 6 and 8(b): appellant's legal representation
Additional evidence
Relevant facts
Incompetence of counsel: general principles
Ground 6: conduct of Mr Camp
Ground 8(b): conduct of Mr Watters
Disposition
Ground 7: undiagnosed health condition
Additional evidence
Disposition
Ground 9: jury aid
Appellant's submissions
Oral directions
The jury aid
General principles
Disposition
Ground 5: unreasonable verdict
General principles
Appellant's submissions
Disposition
Appeal against sentence
Sentences imposed
Circumstances of offending
Engagement of the appellant by Mr Hinchliffe
Plan between the appellant and Mr Hinchliffe for 21 February 2017
Basis of criminal responsibility for count 1 (extortion)
Basis of criminal responsibility for counts 2 and 3 (armed robbery)
Basis of criminal responsibility for count 4 (assault occasioning bodily harm)
Personal circumstances
Appellant
Mr Hinchliffe
Trial judge's approach
Grounds of appeal
Disposition of grounds 1 ‑ 3
Ground 1: parity
Ground 2: implied error
Ground 3: failure to take account of relevant considerations
Conclusion
Disposition of ground 4: backdating a partly suspended sentence
Resentencing
Orders
CACR 20 of 2019 (appeal against conviction)
CACR 24 of 2019 (appeal against sentence)
JUDGMENT OF THE COURT:
Summary
On 23 November 2018, the appellant was convicted after trial of the following offences:
(1)Demanding property by threats, contrary to s 397(2) of the Criminal Code (WA), for which he received a sentence of 2 years 10 months' imprisonment (count 1 on the indictment).
(2)Two counts of armed robbery, contrary to s 392(c) of the Criminal Code, for which he received sentences of 2 years 6 months' imprisonment (count 2) and 18 months' imprisonment (count 3).[1]
(3)One count of assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code, for which he received a sentence of 6 months' imprisonment (count 4).
[1] The trial judge correctly stated these sentences at sentencing ts 51 - 52, but later stated the sentences to be 2 years 2 months' imprisonment for count 2 and 16 months' imprisonment for count 3 at sentencing ts 55. For count 3, the sentence was clarified on the day of sentence to be 18 months' imprisonment at sentencing ts 61. The sentence for count 2 was corrected on 6 February 2019 pursuant to Sentencing Act 1995 (WA), s 37(3). None of these corrections affected the total effective sentence.
The trial judge ordered the sentences for counts 1 and 4 to be served cumulatively upon each other, and the other counts to be served concurrently, resulting in a total effective sentence of 3 years 4 months' imprisonment. The trial judge ordered the sentences to be partly suspended, and for the appellant to be released after serving 14 months' imprisonment. The balance of 2 years 2 months' imprisonment was to be suspended for a period of 18 months.
The sentences noted above were imposed on 1 February 2019. The appellant had been in custody on remand between the date of his conviction and the date of sentence. The trial judge backdated the sentence to commence on 23 November 2018, to take account of time spent in custody.
The appellant now appeals against his convictions and sentences, on a number of grounds. None of the grounds against conviction are established. One ground in the appeal against sentence, namely that the trial judge erred in law in backdating the partly suspended term of imprisonment, is established. The other grounds of appeal against sentence are not established.
The success of that one ground means that a different sentence should have been imposed (ie a sentence that is not a backdated partly suspended sentence). While the appellant must therefore be resentenced, we would not alter the substantive effect of the sentences which the trial judge imposed.
We will deal with the appeal against conviction before turning to the appeal against sentence. Because some of the grounds require a close examination of the proceedings at trial, we will begin by summarising the evidence adduced at trial.
State case at trial
The State's case on count 1 (extortion) was, in summary, that, between 19 and 22 February 2017, the appellant orally demanded first $2,000, and then $5,000, from the complainant with threats of injury or detriment if the demand was not complied with. The demand was for part repayment of a loan of $150,000 by the appellant's co-accused Stephen Campbell Hinchliffe. That demand was made with intent to extort or gain, and was made without reasonable cause as the appellant did not have reasonable cause to compel repayment of the loan with threats and intimidation.[2]
[2] Trial ts 35, 40.
Counts 2 and 3 both alleged an offence of armed robbery committed on 21 February 2017. The State alleged that the appellant stole the complainant's BMW car (count 2) and passport (count 3) with violence (assaulting the complainant by striking him on the right side of his head near the ear) and threats of violence. The State alleged that the appellant was armed with an offensive instrument, namely a hammer, at the time of committing the offences.[3]
[3] Trial ts 40 - 41.
Count 4 alleged that the appellant unlawfully assaulted the complainant on 21 February 2017 by striking the complainant to the side of the head, causing bodily harm (namely bleeding from the ear).[4]
Complainant's evidence-in-chief
Background
[4] Trial ts 41.
The complainant was about 60 years old at the date of the alleged offences. He resided at a house in Noranda, where he had lived since roughly 2001. He lived with his son, who was 10 years old in February 2017. The complainant owned a 2002 BMW sedan.[5]
[5] Trial ts 45 - 47.
The complainant had invented and patented a product called 'Holder I Am', which was designed to be a holder for certain articles such as sunglasses. The complainant arranged for about 27,000 units to be manufactured in Vietnam and shipped to Australia.[6]
[6] Trial ts 49 - 52.
Mr Hinchliffe lent $150,000 to assist with this enterprise.[7] The loan agreement, dated 26 June 2015, was expressed to be between Mr Hinchliffe as trustee of the Hinchliffe trust (the lender) and the complainant as director of 'Holder I Am Pty Ltd' (the borrower). The operative terms of the loan agreement were as follows:[8]
Whereas [Stephen Hinchliffe] agrees to Advance a maximum at any period of One Hundred and Fifty Thousand ($Aud150,000) Australian Dollars at an interest rate of 1.25% capitalized at the end of each month's balance outstanding.
The Borrower will repay the Advance (Loan) from Gross Sales of products of [Holder I Am Pty Ltd], after retaining up to forty percent (40%) for operation of [Holder I Am Pty Ltd], the balance being transferred to a Capital Accrual Account (CAA) with a financial institution. From CAA a proportion of the [Stephen Hinchliffe] Loan is to be repaid, including any further Advances by [Stephen Hinchliffe], prior to the end of the month.
[7] Trial ts 53 - 56.
[8] Exhibit 4.
The enterprise did not go well. Some 27,000 units arrived in January 2016. They were stored in the shed of a friend of Mr Hinchliffe. By February 2017, despite various efforts, fewer than 50 of the 'Holder I Am' units had been sold, at an asking price of $25 each. None of the $150,000 advanced by Mr Hinchliffe had been repaid.[9]
Events of Monday 20 February 2017
[9] Trial ts 56 - 59.
At 4.42 pm on 20 February 2017, the complainant received the following text message from the appellant, whom he did not know, asking him:[10]
[C]an you please return my call asap as I need to meet with you regarding a client who has employed my services regarding a personal matter I wish to discuss with you urgently.
[10] Trial ts 60 - 61; exhibit 13.
The complainant called the appellant about 5 minutes after receiving the text message. The appellant said that he needed to see the complainant urgently. The appellant told the complainant that he had been employed by Mr Hinchliffe over a debt of $150,000 that was lent to the complainant. It was arranged for the appellant to attend the complainant's house later that day.[11]
[11] Trial ts 62 - 63.
The appellant arrived at the complainant's house by himself on the afternoon or evening of 20 February 2017. The complainant's son was watching television in the lounge room. The appellant came into the house with a beer in his hand, which he dropped shortly after entering. While the complainant was cleaning up the mess, the appellant went outside and returned with four more beers, and the two men went to the back patio.[12]
[12] Trial ts 63.
The complainant gave the following account of the conversation that followed:[13]
[The appellant] originally started the conversation to say that he was at my house over the $150,000 loan to [Mr Hinchliffe] and he was here to sort the problem out amicably if we could. So he said to me 'I'm here as a negotiator and I'm here to give you three choices: Choice 1 is that I'm a negotiator and we're going to sort this out and you're going to repay the loan. The second option is that we will go to a legal debt collecting agency and take it through the civil courts but that is not an option because [Mr Hinchliffe] won't get any money and nor will I.'
…
And then option 3 was he said 'You really don't want to know about it, but there will be a couple of motorbikes turn up on - in your driveway.'
… [A]s the process went on he said, 'Look, [Mr Hinchliffe] isn't demanding the full $150,000 in return because he already admits he's made a mistake and took a risk in the project the same as you did but at this time I'm not sure what [Mr Hinchliffe] wants, but [Mr Hinchliffe] would be looking probably around about $50,000.'
[13] Trial ts 64.
The appellant said that he was 42 years old and he was 'that good he could kill a 21-year-old'. The appellant said that he was going to return the following day and the complainant was going to sign his car over to the appellant and pay $2,000 in cash. The appellant insinuated that the complainant would be hurt if he did not fulfil the appellant's demands. The appellant left the complainant's house after about an hour.[14]
[14] Trial ts 64 - 66.
The complainant was extremely scared. The complainant was 5' 8" tall and weighed 68 kg. He estimated that the appellant was about 6' 1" or 6' 2" tall and fairly lean, weighing about 85 kg.[15]
Events of Tuesday 21 February 2017
[15] Trial ts 65.
The complainant drove to Mr Hinchliffe's house at about 10 am on 21 February 2017. After being invited in, the complainant had a conversation to the following effect with Mr Hinchliffe:[16]
I spoke very firmly to [Mr Hinchliffe]. I said, 'What - what are you doing sending a hitman around to my house?' and he said, 'He is not a hitman, he's a debt collector.' I said, 'I don't care what way you - what you call him,' but I said, 'He is a thug. He's come around to my house, threatened me and indirectly threatened my family demanding money.' And I said, 'If you have got a problem with the loan why have you not ever discussed it with me personally?'
[16] Trial ts 66.
The complainant said that Mr Hinchliffe was not really interested in responding to this, and gave an account of trying to convince Mr Hinchliffe to call the appellant off. At one point in the discussion, when asked where he could find the appellant, Mr Hinchliffe said that 'Chau' (a friend of the complainant's ex-wife) would know. At this point, the complainant punched the table, hurting his hand.[17]
[17] Trial ts 66 - 68.
At this point we note that 'Chau' is Chau Ngoc Huynh, who is the appellant's partner. She was generally referred to by her first name 'Chau' during the course of the trial. We will adopt the same course, without intending any disrespect.
After leaving Mr Hinchliffe's house, the complainant received a call from the appellant. The complainant gave the following account of the conversation:[18]
[The appellant] rang me and he said, 'I am not very happy with you. You have just been to my friend's house and threatened him. And I told - as I told you yesterday, this has got nothing to do with [Mr Hinchliffe], and (indistinct) with me. I am going to be at your house at 1 o'clock today as per arranged yesterday, and you'd better make sure you're there'.
… I just said, 'Okay', and I hung up.
[18] Trial ts 69.
The complainant went back to his home, where he was alone, and waited for the appellant. The appellant arrived at 1 pm as indicated. The complainant opened the door and the appellant came in. The appellant grabbed the complainant by the shirt collar, and said:[19]
How dare you go to my mate's place and threaten him?
The appellant pushed the complainant backwards, causing him to hit the back wall behind the front door, and punched the complainant in the bottom of his chin. The appellant told the complainant to wait there, and went outside.[20]
[19] Trial ts 69 - 70.
[20] Trial ts 70.
The complainant then looked out of his front door and saw Mr Hinchliffe's Peugeot SUV parked on the front lawn. Mr Hinchliffe and Chau walked to the front door and waited for the appellant. The appellant returned to the front door holding a hammer, some rope and a pair of gloves, which he got from Mr Hinchliffe's car. The group then followed the complainant to a table and chair setting on the back patio. The appellant put the hammer, rope and gloves on a small bar fridge about 2 metres away from the table, and the four people sat down at the table.[21]
[21] Trial ts 70 - 72.
The appellant asked the complainant where the safe was. The appellant and complainant went into the complainant's bedroom where an empty gun safe was opened. The appellant asked the complainant where he had hidden the money. The complainant responded that he did not have any money.[22] The appellant then said:[23]
Listen, … I have copper mates and I will get them around here with the dogs and find money or drugs.
The complainant indicated that he had nothing to do with drugs, and that there was no money.
[22] Trial ts 74 - 75.
[23] Trial ts 75.
The appellant and complainant then returned to the back patio and sat with Mr Hinchliffe and Chau. The following exchange then occurred:[24]
[The appellant] said to me that, 'We are now going to organise for me to come back tomorrow to collect $5,000', and I said, 'What do you mean? Last night you discussed $2,000', and he said, 'Yes. Because you're a dickhead and you went to see my mate, it's now changed.'
…
I said, 'There's no way in the world I can get that sort of money', and he said, 'I don't care where you can get it, how you get it, you are going to get it otherwise we will go to option 3.'
[24] Trial ts 75 - 76.
The appellant instructed the complainant to talk to and look at Mr Hinchliffe, who was seated to the complainant's left. The appellant then struck the complainant about six times in his right ear with the appellant's open hand or fist, causing bleeding. The appellant went and got a tea towel for the complainant to use to stop the bleeding.[25]
[25] Trial ts 76 - 77.
After the bleeding stopped, the appellant got out of his chair and went to the bar fridge. The appellant picked up the hammer, rope and gloves and put them on the table directly in front of the complainant's chest. The appellant sat down and said:[26]
I now want a pen and paper because you're going to sign your car over to (inaudible) and that is going to be a down payment.
[26] Trial ts 77.
The complainant went to his bedroom to get a pen and paper, followed by the appellant. When they returned to the table, the appellant made the complainant write the following:[27]
To whom it may concern
I hereby give permission to Nichlos [sic] Morgan to sell this viecal [sic] BMW 318i [registration number] on my behalf and to personaly [sic] collect any funds from the sale of this viecal [sic]
Yours sincerely
The complainant's name and phone number were then written, and the document was witnessed by Mr Hinchliffe.
[27] Trial ts 77 - 80; exhibit 5.
The complainant said that he did not voluntarily write this document, and was afraid that if he did not write the document the appellant would fulfil the threats he had made.[28]
[28] Trial ts 80.
After the document was prepared, the appellant said to the complainant:[29]
Talk to [Mr Hinchliffe] now, and make sure you talk to [Mr Hinchliffe] very nicely.
[29] Trial ts 80.
The appellant and Chau then left the patio area and were gone for about 8 minutes. During this time, Mr Hinchliffe told the complainant about his financial difficulties, to which the complainant did not respond. The appellant and Chau returned and sat down at the table. The appellant said that he would be back the next day to collect the $5,000 and the complainant better have it. The complainant said that he did not think there was any way he could possibly get $5,000 by the next day, and asked if he could have until Thursday. The appellant agreed, and said that he would be at the complainant's house at about 1 pm. At this time the hammer, rope and gloves were still on the table about 30 cm away from the complainant.[30]
[30] Trial ts 81 - 82.
The appellant then asked the complainant if he had any jewellery. The complainant told him that he did not, but that he had a gold nugget. The complainant retrieved the gold nugget and his watch, and showed them to the appellant. The appellant threw them down and said they were 'rubbish'. He then picked the nugget back up and put it in his pocket, after saying:[31]
Oh, just for the hell of it, I might as well keep it.
[31] Trial ts 82.
The appellant then demanded the complainant's passport. The complainant got the passport from his bedroom, with the appellant following. The complainant noticed that items had been taken out of the wardrobe and put on the floor or the complainant's bed. The appellant demanded the complainant's passport, and the complainant gave the passport to the appellant out of fear of being beaten if he did not.[32] The appellant then said:[33]
Don't go and try and get another passport because I know people at Customs and I have got you flagged. I will know if you go to the airport.
[32] Trial ts 82 - 83.
[33] Trial ts 83.
The appellant then demanded and received the keys to the complainant's BMW. The appellant, Mr Hinchliffe and Chau then left. Mr Hinchliffe and Chau drove away in Mr Hinchliffe's Peugeot. The appellant put the hammer, rope and gloves in the boot of the BMW and drove it away.[34]
Events of Wednesday 22 February 2017
[34] Trial ts 83 - 84.
The complainant gave evidence that he managed to borrow $5,000 from his mother on 22 February 2017, and arranged for his son to go to his mother's house on 24 February 2017.[35]
Events of Thursday 23 February 2017
[35] Trial ts 88 - 90.
On 23 February 2017, the appellant and Chau arrived at the complainant's house as arranged. The appellant asked the complainant whether he had the money, and the complainant handed him an envelope. The appellant took the money out and counted it.[36]
[36] Trial ts 90.
The complainant then gave the following account of his conversation with the appellant:[37]
[The appellant] said, 'You've given me a little bit more credibility in yourself, well done'. He said, 'Chau didn't think that you would have it all'.
… And I said, 'I didn't think I had an option'. And he said, 'You're 100 per cent correct, you didn't'.
… Then he said, 'All right. Well, we're done now'. He said, 'I will be back in two weeks' time to collect another $5,000', and I said, 'You're kidding me. I thought we were going to come to an arrangement.' And he said, 'No, you broke the rules … I'll be back in two weeks for another $5,000. Don't care where you get it. You're going to get it, otherwise there will be a couple of motorbikes in the driveway'.
[37] Trial ts 90 - 91.
The appellant and Chau then drove off.[38]
Events of Friday 24 February 2017
[38] Trial ts 91.
The complainant reported the matter to police on Friday 24 February 2017.[39]
Photographs
[39] Trial ts 91.
Through the complainant, the prosecutor tendered a number of photographs of the Noranda house,[40] the complainant's injured ear[41] and the hammer and rope with a beer bottle in the boot of the BMW.[42]
Mr Watters' cross-examination of the complainant
[40] Exhibits 6.1 - 6.11.
[41] Exhibits 7.1 - 7.4.
[42] Exhibit 8.
Mr Simon Watters was the appellant's counsel at trial.
In cross-examination, Mr Watters put the appellant's account of events (summarised later) to the complainant, as he was required to do.[43] In general terms, the complainant denied that is what occurred.
[43] Browne v Dunn (1893) 6 R 67.
Mr Watters made in-roads with his attack on the complainant's credibility, particularly by reference to a police statement signed by the complainant on 25 February 2017 at 2.20 am. In cross‑examination, the complainant accepted that his police statement was a complete account of events, in the following terms:[44]
Yes. You were doing your best to tell them everything that had happened involving [the appellant] and Mr Hinchliffe?---They were asking me for a statement.
Yes. And you were doing your best to tell them what had happened, weren't you?---Yes, I was.
Yes. Tell them all the important things?---No, I told them everything.
You told them everything? All right?---I believe so.
[44] Trial ts 98.
The complainant accepted, by reference to what he had told police, that he received the first text message from the appellant at 12.42 pm, rather than 4.42 pm as indicated in his evidence.[45]
[45] Trial ts 99 - 100.
The complainant said that, on the last day, the appellant said he was coming back in two weeks for another $5,000. The complainant said that he responded by saying that 'you might as well put me in a box now because there's no way I can get it'.[46] The complainant accepted, in effect, that he had not said this in his police statement or to the prosecutor in proofing.[47] The following exchange then occurred:[48]
You've just made that up, haven't you?---No, I have not. No, I have not. As the police told me when I made my statement when I read the statement I said that is not the full facts of what happened and the constable said to me it doesn't matter, this is a very long statement as it is, the rest will come out in court.
Okay. So if we have Officer Wold called later this week she'll say that, will she, the female officer?---Yes, I would say so.
She'll say what, we don't need the full facts because the truth will come out in court? Is that what she said?---She said the whole facts will come out in court, this is only a statement, she said, she said, and this is a very long statement, she said most statements are only two or three pages.
[46] Trial ts 103.
[47] Trial ts 103 - 104.
[48] Trial ts 104.
When it was put to the complainant that he had not mentioned in his police statement the appellant saying that he was 42 and could kill a 21‑year‑old, the complainant responded:[49]
Once again that was another thing that wasn't written in the document but ask the police officer when you question her.
So … is your evidence before the jury that, 'When I sat at Mirrabooka Police Station I told the police officer [the appellant] said, 'I'm a 42-year-old, I could kill a 21-year-old'?---Yes.
But … she didn't include it?---Yes.
So she said, what, 'That's not important'?---No. No, we were - this was early hours of the Saturday morning. In actual fact she overstayed her second shift in which to do this report. And as I say when I read it I wasn't happy. I said that's not all of what happened. And she said, 'There's no need - we cannot - we're not writing a book'. She said, 'All of this will come out in court. This is just a brief explanation of what happened.'
The complainant said that he thought he might have mentioned the appellant's statement to the prosecutor in proofing. Mr Watters put the proofing notes to the complainant in which there was no mention of the appellant saying he could kill a 21-year-old.[50]
[49] Trial ts 106 - 107.
[50] Trial ts 107 - 108.
Mr Watters also put to the complainant that there was no mention in his police statement of the appellant threatening, on 21 February 2017, that there would be motorbikes in the driveway. The complainant again said, in effect, that he had told this to Officer Wold, who had decided not to include it in the statement.[51] The complainant later said:[52]
That's the way it's written, sir. But when this statement was taken down by the constable at the police station I was stressed to the max, I was very, very concerned for what was happening and the police officer wrote this statement. The order in which it was written, as I explained to her at the time, wasn't quite correct, including certain things that weren't fully mentioned in there. But as she said, 'I am not writing a book. This will all come out in the court.' Certain orders may not be exactly correct, but the statements are.
[51] Trial ts 118 - 119.
[52] Trial ts 147.
The complainant also accepted, in effect, that:
(1)The appellant may have arrived on 20 February 2017 with a six pack of beer, may have stayed for about 2 hours and may have mentioned his background as a car salesman.[53]
(2)On 20 February 2017, the appellant asked to talk out of earshot of the complainant's young son.[54]
(3)On 20 February 2017, the appellant said 'let's get you up and out there selling the product' and that it was possible that the appellant had told him that his son needed a role model.[55]
(4)On 21 February 2017, before he was struck in the ear, an elderly neighbour had leaned over the fence and asked if the complainant's power was out, and two friends had arrived at the front door after he was struck. The complainant said that he had said nothing to these people because he did not want to get them involved.[56]
(5)On 22 February 2017, the complainant's mother had actually given him $7,000, of which he 'pocketed' $2,000.[57]
[53] Trial ts 101 - 102.
[54] Trial ts 102.
[55] Trial ts 105.
[56] Trial ts 122 - 123.
[57] Trial ts 153 - 154.
Mr Watters put to the complainant, and the complainant denied, that the complainant was making up the allegations in the hope of extinguishing the $150,000 debt which he still had not repaid.[58]
Mr Camp's cross-examination of the complainant
[58] Trial ts 154.
Mr Alan Camp was Mr Hinchliffe's counsel at trial.
It is unnecessary to detail Mr Camp's cross-examination of the complainant. The matters put to the complainant by Mr Camp were consistent with the case being advanced by the appellant.
Mr Camp also put to the complainant, and the complainant accepted, that he had been known as Lance Owen Gillan and once said that Gillan's date of birth was different from his. The complainant said that this was 'one of the mistakes I made in the past'.[59]
[59] Trial ts 161 - 162.
Mr Camp also cross-examined the complainant about his criminal record. The complainant accepted that, on 9 March 2010, he was found guilty of importing protected species and imprisoned for 9 months. The complainant also accepted that, on 18 September 2000, he was convicted of one count of forgery, two counts of attempted fraud, 14 counts of fraud, one count of stealing by finding and one count of uttering. The complainant accepted that he was sentenced to 8 months' imprisonment in respect of these offences.[60]
Evidence of the complainant's mother
[60] Trial ts 162.
The complainant's mother gave evidence that, on 22 February 2017, the complainant came to her house in an upset state and borrowed $7,000 from her. Arrangements were also made for the complainant's son to stay with her.[61]
Statement of DS Mulhall
[61] Trial ts 170 - 173.
The statement of Detective Sergeant Mulhall was read into evidence by consent.[62]
[62] Trial ts 175.
DS Mulhall described attending the complainant's Noranda house on 24 February 2017 and seizing a tea towel with blood stains on it, a beer bottle and cigarette butts.[63] He also described seeing the appellant and Chau with the complainant's BMW on 25 February 2017. The complainant's passport, vehicle ownership papers, the handwritten document concerning the transfer of the vehicle, a gardening glove, a length of rope and a claw hammer were found in the BMW.[64]
Evidence of DC Leahy
[63] Trial ts 176 - 177.
[64] Trial ts 177 - 178.
Detective Constable Leahy was the investigating officer for this matter.[65]
[65] Trial ts 179.
DC Leahy gave evidence of a blood stained tea towel being found at the complainant's house on 24 February 2017.[66]
[66] Trial ts 179 - 180; exhibits 10.1 - 10.2.
DC Leahy also gave evidence of the appellant and Chau arriving in the complainant's BMW during the execution of a search warrant at the appellant's Burswood unit.[67] A video of the search of the unit and vehicle was played to the jury,[68] and became exhibit 11. The video does not have sound. At the beginning of the video, the appellant is shown sitting on a low concrete wall talking to DC Leahy. The appellant is wearing sunglasses, a blue singlet and blue jeans. Tattoos on his arms are visible. The appellant is handcuffed and is being shown a copy of the search warrant. The appellant appears to be co-operating with the process. The video then shows DC Leahy talking to Chau and showing her the search warrant. She is not handcuffed.
[67] Trial ts 181 - 182.
[68] Trial ts 183 - 187.
After a pan of the complainant's BMW and another vehicle, the video shows a rope and hammer being seized from the boot of the BMW. An empty beer bottle is lying by the rope. The complainant's passport, the note referred to at [30] above and a single glove are seized from a compartment in the front passenger door of the BMW. The video shows the appellant at various points. The appellant's sunglasses are now hanging on the front of his singlet, but he is otherwise in the same state of dress (including the handcuffs). The appellant again appears to be calm and co‑operative and is talking to DC Leahy. At one point the appellant is smoking.
At a later point in time, after dark, the appellant is shown sitting in the lounge of a residence, which contains about half a dozen of the 'Holder I Am' products on top of a television unit. The products are seized by police. The appellant's sunglasses are gone, but he is otherwise in the same state of dress (including the handcuffs). Chau is again shown, not in handcuffs.
Photographs of the complainant's passport, vehicle ownership papers, handwritten note, as well as a gardening glove, length of rope and claw hammer, found in the BMW, were also tendered.[69] DC Leahy also produced a download of the text messages between the appellant and complainant, indicating that the times shown were Western Australian time.[70]
[69] Trial ts 187 - 189; exhibits 12.1 - 12.25.
[70] Trial ts 193 - 194; exhibit 13.
A recorded interview by police with Mr Hinchliffe was also played to the jury.[71] At the time the video was played, the trial judge directed the jury that this video was not admissible against the appellant.[72] This warning was later repeated in the trial judge's charge to the jury.[73]
[71] Trial ts 189 - 190, 194 - 195, 208 - 209.
[72] Trial ts 197.
[73] Trial ts 402 - 403.
In cross-examination by Mr Watters, DC Leahy agreed that Chau had not been charged with anything in relation to the matter.[74] He accepted that the complainant had told police the names of his two friends who had come to the Noranda house on 21 February 2017, but DC Leahy had decided not to interview them.[75] DC Leahy could not recall the complainant making police aware of a neighbour leaning over the fence on that day.[76]
[74] Trial ts 209.
[75] Trial ts 210 - 211.
[76] Trial ts 211.
The following exchange occurred in Mr Watters' cross-examination of DC Leahy in relation to the search video:[77]
[77] Trial ts 211 - 212.
On the search video we saw [the appellant] in handcuffs. That's standard procedure, isn't it?---It's a risk assessment made by every officer who has a person in their custody.
And it's a standard procedure, isn't it?---Not everyone is handcuffed, no.
Officer, you and I spoke outside court yesterday, didn't we?---We did.
And I asked you is that standard procedure. Do you remember me asking you that? Do you remember me asking you is that - - -?---You did ask me whether - - -
Yes, and was your - - -?--- - - - handcuffing someone is standard procedure.
And your reply to me was yes, wasn't it?---It's not always the case.
No, that's not my question. My question is did you say to me yesterday outside court, 'Yes, it's standard procedure'?---There is a standard procedure for handcuffing.
Did you say to me yesterday - - -?---Yes.- - -
'Yes, it's' - - -?---Yes, I did say that.
Mr Watters also cross-examined DC Leahy about items such as a glove, secateurs and a machete being found in the boot of Chau's car, which were consistent with her line of work.[78]
Evidence of Constable Wold
[78] Trial ts 213.
Constable Wold was the police officer who took the complainant's police statement. Mr Watters adduced the following evidence from her in cross-examination:[79]
As you read the statement did he say to you, 'That's not the full facts of what happened', and you said to him, 'It doesn't matter, this is a very long statement as it is, the rest will come out in court'?---No.
Is that the sort of thing you'd say as a police officer?---No.
Yes. Did you ever say to him, 'We don't need the full facts because the truth will come out in court'?---No.
Did you ever comment to him that, 'This is a very long statement and most statements are only two or three pages'?---It is a long statement, yes, but I don't remember making those comments, no.
…
When he read it before signing it, did this exchange take place? Did he say to you, 'That's not all of what happened', and you replied, 'There's no need, we cannot - we're not writing a book. All of this will come out in court. This is just a brief explanation of what happened'?---No.
Did you say that to him?---No.
[79] Trial ts 219.
Appellant's case at trial
The appellant elected to give evidence, and adduce the evidence of Chau, at trial.
Appellant's evidence-in-chief
The appellant gave evidence that he was 45 years old and had been involved in the car sales business for 24 years, at one stage owning his own business, Nick Morgan Motors.[80] In 2016 - 2017, Chau worked in the cultivation and harvesting of wildflowers for export to Japan and Europe. As part of her equipment for that business, Chau would have rope, gloves, hammers, axes, machetes and chainsaws.[81]
[80] Trial ts 222 - 223.
[81] Trial ts 224.
The appellant said that he met Mr Hinchliffe in around December 2016, and became aware of the 'Holder I Am' product, which in the appellant's view did not work.[82]
Events of Monday 20 February 2017
[82] Trial ts 225.
The appellant contacted the complainant by text message on 20 February 2017 as he was 'loosely employed' by Mr Hinchliffe to try to sell and market the product.[83]
[83] Trial ts 226.
Chau drove the appellant to the complainant's house on 20 February 2017, as he did not have a driver's licence. He walked up to the complainant's front door with a six pack of beer, while Chau waited in the car. The appellant spoke to the complainant in the patio area while the complainant's son watched television. The appellant was there for less than 2 hours.[84]
[84] Trial ts 227 - 229.
The appellant mentioned to the complainant that he was there 'to try to talk about options and solutions'.[85]
[85] Trial ts 229.
The first option was the appellant coming to see the complainant, because Mr Hinchliffe did not want to have the confrontation. The appellant said that he and Chau could assist in selling some of the product, and that Chau had just about closed a deal to sell some units to Red Dot stores for $1 each. The appellant tried unsuccessfully to encourage the complainant to drop the price of the units.[86]
[86] Trial ts 229 - 230.
The appellant explained the second option when he said:[87]
[U]nfortunately then that [Mr Hinchliffe] would be in a position where he was advising me that he was going to then pursue [the complainant] for damages or get a bailiff to - to try and retrieve money or cars or product or whatever.
[87] Trial ts 230.
The appellant said that he never discussed a third threatening option with the complainant.[88]
[88] Trial ts 230.
The appellant told the complainant:[89]
[Mr Hinchliffe] just wants something from you to show him some faith that you weren't just there to take the money, make a product and then let it sit and - and rot in a - in a shed.
The complainant volunteered to have the appellant sell one of the two cars parked at the front of his house. The complainant agreed that if the appellant were able to sell his BMW then he would use the proceeds as a payment to Mr Hinchliffe. The appellant arranged to collect the car at lunchtime the following day.[90]
Events of Tuesday 21 February 2017
[89] Trial ts 231.
[90] Trial ts 231 - 232.
On 21 February 2017, Mr Hinchliffe drove the appellant and Chau to the complainant's house. They planned to later do some renovation work on some lattice at one of Mr Hinchliffe's houses, and for that purpose took a hammer, rope and gardening gloves.[91]
[91] Trial ts 233 - 234.
Because it took some time for Mr Hinchliffe to get out of a car, the appellant went to the complainant's front door first to see if he was home. The complainant answered the door, and the appellant said that he had brought Chau and Mr Hinchliffe along and he would be back shortly. As Chau and Mr Hinchliffe got out of the vehicle, Chau reminded the appellant to grab the tools as they would be leaving in different vehicles. The appellant therefore carried the hammer, rope and gloves into the complainant's house and put them on top of a bar fridge in the rear patio area. The appellant also brought a six pack of beer. The four people sat around a table in the patio area.[92]
[92] Trial ts 234 - 236.
Once they were seated, the appellant asked the complainant whether he went to Mr Hinchliffe's house earlier that morning and:[93]
Did he honestly threaten [Mr Hinchliffe] to kill him, kill his dog and kill his daughter.
[93] Trial ts 237.
The complainant denied this, although he did not deny going to Mr Hinchliffe's house. The appellant told the complainant that he had brought Chau and Mr Hinchliffe with him to 'clear the air'. The appellant gave the following account of what then occurred:[94]
When [the complainant] kept denying - which probably went on for about 15 minutes - that he had ever threatened [Mr Hinchliffe], and kept denying, kept denying that that had happened, I said, 'Please can you just tell the truth, it's okay, let's get it out. But I want to know if you went round there and threatened an old man and his dog and his daughter with their life. Just tell the truth'
…And he kept … repeating 'No, no, no' and I said, '… if you don't, I will slap you like a bitch'.
[94] Trial ts 237 - 238.
The appellant said that he then slapped the complainant with an open hand. A ring that the appellant was wearing gave the complainant a little nick to the side of the ear, which bled. The appellant got a tea towel for the bleeding.[95]
[95] Trial ts 238.
The appellant and complainant discussed the proposal for the appellant to try to sell the complainant's car. The appellant said that the complainant would need to sign transfer papers if the appellant found a buyer. The complainant wrote the document referred to at [30] above, and gave the appellant registration papers and his passport to assist the appellant in trying to sell the car. No threats were made.[96]
[96] Trial ts 238 - 242.
The appellant knew from Chau that the complainant had a safe. The appellant asked the complainant if he could possibly look in the safe to confirm that the complainant did not have a big stash of cash that he was hiding away from everyone. The complainant took the appellant into his bedroom and showed him the gun safe, which was empty.[97]
[97] Trial ts 242, 245.
While the group were sitting around the table, the appellant asked the complainant for as much as he could possibly afford to give to Mr Hinchliffe. The complainant said that he might be able to get $5,000 from his mother. It was arranged that the appellant would collect that sum at lunchtime on Thursday.[98]
[98] Trial ts 242, 248.
The appellant grabbed the tools from the top of the fridge as they left. The appellant and Chau left in the complainant's BMW, with Chau driving, and Mr Hinchliffe left in his own vehicle.[99]
Events of Thursday 23 February 2017
[99] Trial ts 246.
The appellant described collecting the $5,000 from the complainant at the Noranda house on 23 February 2017. They had a short conversation, and the appellant did not demand that the complainant pay any further sums of money.[100]
Mr Camp's cross-examination of the appellant
[100] Trial ts 248 - 249.
Mr Camp asked only one question of the appellant in cross‑examination:[101]
After the slap did you say anything to [the complainant]?---Yes. I apologised.
Prosecutor's cross-examination of the appellant
[101] Trial ts 250.
The prosecutor extensively cross-examined the appellant as to the events. While it is not necessary to refer to all of the cross-examination in detail, the following points may be noted.
The appellant indicated that his only brief in attending the complainant's house on 20 February 2017 was to attempt to reach a deal under which the 'Holder I Am' units could be sold for a lower price. He did not expect any remuneration for this, but thought that Chau might be paid something by Mr Hinchliffe for selling the product.[102] The appellant appears to have struggled to give cogent reasons why he said he needed to see the complainant urgently in his text,[103] and why he was concerned at the presence of the complainant's son if all that was being discussed was a business deal.[104]
[102] Trial ts 253 - 254, 258 - 259.
[103] Trial ts 252 - 253.
[104] Trial ts 254 - 255.
The prosecutor noted the limited task that the appellant agreed to undertake. The prosecutor questioned why the appellant asked the complainant whether there was anything the complainant could do to get some money to Mr Hinchliffe. The appellant said 'I guess I'm there at that moment' and that he was trying to see what he could do to help Mr Hinchliffe.[105]
[105] Trial ts 259.
The following exchange occurred between the prosecutor and appellant in relation to the hammer, rope and gloves:[106]
Well, why bring the hammer, rope and gloves into [the complainant's] house?---We were changing cars. His car was parked in the driveway, the other car was parked out the front.
Couldn't you have left the hammer, rope and gloves in [Mr Hinchliffe's] car until afterwards?---Possibly.
…
You were aware through Mr Hinchliffe that [the complainant] was agitated over your visit from the previous day?---I was made aware that yes, he was agitated with [Mr Hinchliffe] over the issue, yes.
So why would you then walk into his house holding a hammer, rope and gloves?---I think I've answered that question sufficiently.
[106] Trial ts 265 - 266.
The appellant was unable to explain how slapping the complainant in the face would assist the business negotiations he claimed were going on.[107] When asked why he wanted to look in the complainant's safe, the appellant did not give any cogent explanation about what business it was of his to see whether the complainant had a large sum of cash.[108] The appellant said:[109]
Look, during discussions, I guess, over the - the course of the period of finding out about [the complainant] and who he was about along with similar information like how he used to beat up his wife.
[107] Trial ts 266 - 268.
[108] Trial ts 268 - 269.
[109] Trial ts 269.
The prosecutor then applied to be able to cross‑examine the appellant about a conviction for breaching a violence restraining order in February 2014 and attempting to pervert the course of justice in 1988. This application, made under s 8(1)(e) of the Evidence Act 1906 (WA), was refused by the trial judge, essentially on the ground that it was a brief gratuitous comment. In making that ruling, the trial judge noted that 'if there's any other statements along those lines I will inevitably exercise my discretion in a different way'.[110]
[110] Trial ts 270 - 271.
The appellant also failed to give a good explanation as to how having the complainant's passport would assist him in trying to sell the BMW.[111]
[111] Trial ts 272 - 273.
The appellant denied that he had made any threats or demands for the complainant's property or money, and denied that he took the hammer, rope and gloves from the fridge to threaten the complainant.
Chau's evidence
Chau gave evidence which generally accorded with the appellant's account of events. In doing so, Chau displayed a high degree of hostility to the complainant, often making disparaging remarks about him. For example, when the prosecutor asked Chau whether the complainant's ex‑wife had told her that the complainant had a safe inside his house, Chau responded:[112]
Yes, she did. She - she told me that the safe was also a gun safe and that her husband was a dangerous person and he had dealings with - - -
DERRICK J: All right - - -?--- - - - the bikies.
- - - just stop there, please.
[112] Trial ts 330.
When asked by the prosecutor whether it was fair to say that Chau did not like the complainant, Chau said:[113]
No. I don't like men who beat women. … I've heard bad things about him and I've been told he's a very dangerous person, so … I don't like him.
[113] Trial ts 330.
Later the following exchange occurred between the prosecutor and Chau:[114]
[114] Trial ts 332 - 333.
Your intention was to, along with [the appellant] and Mr Hinchliffe - was to get money or valuables from [the complainant] and that's why you told others about the safe?---No.
There was no reason to tell others about the safe. You weren't scared - - -?---It was common practice.
- - - that [the complainant] might shoot [the appellant]?---I was scared that he was a wife beater and that he had bikie connections. Of course I was scared.
You thought that [the complainant] might be able to tackle [the appellant]?---I don't know.
Get physical with him?---I don't know.
Get the better of [the appellant] in a fight?---I don't know.
You don't know? But you'd seen [the complainant]. He's not a very large man, is he?---That doesn't make any difference. If you're a crazy person, you're a crazy person.
But what was the risk? If [the appellant] was going there to negotiate a business deal, what was the risk of violence?---Well, what had my friend as a woman done for him to beat his wife? What risk was that?
…
Why do you feel the need to make [the complainant] look bad?---I don't feel the need.
Grounds of appeal against conviction
The appellant, who is self-represented, now appeals against his convictions on nine grounds. Broadly, they allege:[115]
(1)A jury irregularity (ground 1).
(2)That the verdicts are unreasonable and cannot be supported on the evidence (ground 5).
(3)Various miscarriages of justice as a result of the conduct of his trial counsel (ground 8), the conduct of Mr Alan Camp, who was Mr Hinchliffe's trial counsel, and who had previously acted for the appellant (ground 6), the conduct of the prosecutor in not calling relevant witnesses (ground 2), the appellant's then undiagnosed type 1 diabetes (ground 7), and that the jury saw that the appellant was wearing handcuffs during the search video (ground 4).
(4)Errors on the part of the trial judge in failing to give a Jones v Dunkel[116] direction (ground 3), and by providing the jury with a jury aid the appellant claims was too complicated (ground 9).
The application for leave to appeal on all grounds was referred to the hearing of the appeal.[117]
[115] As distilled by Mazza JA in Morgan v The State of Western Australia [2019] WASCA 87 [17].
[116] Jones v Dunkel (1959) 101 CLR 298.
[117] Order of Mazza JA 28 May 2019.
Applications in an appeal
The following applications were referred to the hearing of the appeal:[118]
(1)The appellant's application in an appeal dated 21 May 2019 to adduce additional evidence in the appeal, being two affidavits he swore on 17 May 2019 and an undated affidavit of Chau.
(2)The appellant's application in an appeal dated 21 May 2019 for an inquiry as to whether jurors improperly received adverse information from a person identified by the appellant as his former mother-in-law.
(3)The State's application in an appeal dated 8 July 2019 for leave to adduce additional evidence, being an affidavit of Mr Camp sworn on 28 June 2019 and an affidavit of Mr Watters sworn on 2 July 2019.
[118] Order of Mazza JA 11 June 2019, Order of Mazza JA 11 July 2019.
The court received the above affidavits provisionally, subject to making a final determination of whether it would receive the affidavits when it determined the appeal against conviction.[119] Subject to dealing with objections to admissibility, we would receive the above affidavits as additional evidence in the appeal.
[119] Appeal ts 61.
The State did not seek to cross‑examine either the appellant or Chau in relation to their affidavits in the appeal.[120] The appellant cross‑examined both Mr Camp and Mr Watters on their affidavits in the appeal.
[120] Appeal ts 60 - 61.
We shall deal with the additional evidence and objections thereto in the course of dealing with the grounds of appeal to which the additional evidence relates.
During the appeal hearing, the following additional documents were tendered without objection:
(1)The statement of the complainant dated 25 February 2017 (appeal exhibit A1).[121]
(2)A letter of the FOI Coordinator Acacia Prison to the appellant dated 2 August 2019 and the attachments to that letter (appeal exhibit A2).[122]
(3)The email of Joel Grinceri to Robert Wilson dated 2 September 2019 and the attachments to that email (appeal exhibit R3).
[121] Appeal ts 153.
[122] Appeal ts 177.
Grounds 1 and 8(c): alleged jury irregularity
It is convenient to deal with grounds 1 and 8(c) together. Both grounds concern an alleged irregularity which occurred when the appellant's former mother-in-law was observed talking with persons who had been selected pursuant to a jury pool precept (jury panel) prior to the selection of the jury for the appellant's trial. We shall also deal in this section of our reasons with the appellant's application for an inquiry.
Ground 1 contends that an irregularity occurred in relation to the jury resulting in a miscarriage of justice.
Ground 8(c) contends that the appellant's trial miscarried because the appellant's trial counsel erred in:
Failing to investigate suspicions that the appellant's former mother in law had spoken to members of the jury panel prior to the trial about the appellant.
Additional evidence
In support of this ground the appellant relies on two of his affidavits sworn 17 May 2019[123] and an undated affidavit of Chau.[124] The question of whether the appellant discussed the issue with Mr Watters at trial is the subject of par 6 of Mr Watters' affidavit,[125] and was the subject of the appellant's cross‑examination of Mr Watters at the appeal hearing.[126]
[123] See esp White AB 19, 22, 53 - 55.
[124] White AB 8 - 9.
[125] White AB 67 - 68.
[126] Appeal ts 93 - 97.
In its written submissions, the State asserts that it does not accept the accuracy or truthfulness of the account given by the appellant and Chau in their affidavits.[127] However, the State did not seek to challenge that account by cross-examining either the appellant or Chau on this aspect of their evidence. The account given is not inherently implausible, and it is not contradicted by the evidence of Mr Watters (whose evidence was largely to the effect that he had limited recollection of discussions concerning the appellant's mother-in-law). In these circumstances, the account given by the appellant and Chau in their affidavits should be accepted as a basis for determining the appeal.
[127] Respondent's Submissions, par 13.
We therefore make the following findings of fact relevant to grounds 1 and 8(c), based primarily on the affidavits of the appellant and Chau.
Relevant facts
On 19 November 2018, the first day of the appellant's trial, Chau was waiting to give evidence outside the court room in the District Court Building which was being used for the trial. Chau was sitting on a black couch opposite the court room. She noticed a well-dressed woman (subsequently identified as the appellant's former mother-in-law) with a scruffy looking man.
About 10 minutes later, the jury panel arrived with a jury officer, and sat on black couches in the corridor. The appellant's former mother-in-law spoke to at least 3 to 4 people on the jury panel for a period of about 15 minutes prior to the jury selection. Chau did not hear what was said.
The appellant saw his former mother-in-law sitting in the court room on the first day of his trial. She sat near the people on the jury panel, but moved to the other side of the court room when the trial judge spoke to the jury.
Before the empanelment of the jury began, the trial judge asked counsel to read the names of proposed witnesses. The trial judge told the jury panel that it was important that they listen carefully to the names. His Honour said:[128]
It is important for this reason. Before you serve as a juror you must take an oath or make a solemn promise, called an affirmation, to give a verdict upon the evidence.
Therefore if you know either of the accused men or anything about the events which are the subject of the charges on the indictment, or any of the witnesses to be called and you feel that you will not be able to be true to the juror's oath or affirmation to give a verdict upon the evidence produced in the trial because of your prior knowledge of either of the accused men, the events or the witnesses, then you must make that known to me if your number is called.
[128] Trial ts 14.
After the relevant names were read aloud, the trial judge said:[129]
So members of the jury panel, if you know either of the accused men - so that's [the appellant] or Mr Stephen Hinchliffe, or if you know any of the proposed witnesses, or you know anything about the events which are the subject of the charges and you feel that your prior knowledge may prevent you from being able to give a verdict based solely on the evidence, please make that known to me if your number is called.
[129] Trial ts 15.
The jury was then empanelled, without any issue being raised by anyone in relation to discussions with the appellant's former mother‑in‑law.
On the evening of 19 November 2018, the following text messages were exchanged between the appellant and Mr Watters:[130]
Appellant:Simon, Chau witnesses my Ex Mother in-law trying to talk with the jurors prior to them going in for selection. What is to stop her from trying to make conversation with them after they are released and before they start. She is crafty enough to make a simple conversation that might damage that juror. Is there nothing we can do to keep her out?
Mr Watters: Ok. I'll raise it with the Judge.
Appellant:Thank you. There is no reason for her to be there other than to cause trouble or tell details.
[130] Annexure 14A to the appellant's affidavit sworn 17 May 2019 (White AB 53).
The affidavits of the appellant and Chau both indicate that Chau identified the appellant's former mother-in-law from a Facebook photo that the appellant showed her later in the week. Given the terms and timing of the text messages just quoted, this must have occurred during the first day of the trial.
No issue relating to the appellant's former mother-in-law was raised by anyone during the course of the trial. The appellant's cross‑examination of Mr Watters gave rise to some speculation as to why Mr Watters may not have raised the issue with the trial judge. However, the effect of Mr Watters' evidence was that he could not now recall why he did not do so.[131]
[131] Appeal ts 94 - 95.
As would be expected, the trial judge's charge to the jury directed them that they could only decide the case upon the evidence.[132]
[132] See, for example, trial ts 394 - 395.
On the last day of the trial, after the appellant was convicted, Chau heard the appellant's former mother-in-law speaking to the prosecutor, in the following terms:[133]
I heard her refer to [the appellant] as a horrible man, a monster, mentioned something about the children and talked about how he did not pay child support.
Disposition
[133] White AB 8.
In our view, the above facts do not establish a miscarriage of justice occurred, and do not give rise to any reasonable suspicion that a miscarriage of justice may have occurred, as a result of communications by the appellant's former mother-in-law. That is so for the following reasons.
First, there was no failure to follow the procedures required by the Criminal Procedure Act 2004 (WA).
Section 111(1) of the Criminal Procedure Act relevantly provides that a trial by jury begins when the first juror is sworn. Section 111(2)(c) of the Criminal Procedure Act provides that, during a trial by jury, there must not be any communication between a juror and a person who is not a juror, except as permitted under s 111(4)(b). Section 111(4)(b) allows a judge to permit a juror and a person who is not a juror to communicate subject to any condition that the judge thinks necessary to impose in the interests of justice. Commonly, as occurred in this case,[134] jurors are permitted to talk to other persons during adjournment, subject to the condition that they not discuss the case with any person who is not on the jury.
[134] Trial ts 22.
The discussion between people on the jury panel and the appellant's former mother-in-law before the jury selection began could not infringe the above requirements. That is because they occurred before the trial began, which was when the first juror was sworn in.[135]
[135] Criminal Procedure Act, s 111(1).
Secondly, there is no evidence that any person the appellant's former mother-in-law spoke to outside the court room was subsequently selected and sworn in as a member of the appellant's jury.
Thirdly, there is no evidence to suggest that the appellant's former mother-in-law said anything to the people on the jury panel about the appellant or the matters the jury would have to decide. The appellant's suggestion in submissions that she may have said something prejudicial about him was purely a matter of speculation. The fact that none of the selected jurors said anything after they had been given warnings in the terms set out at [117] - [118] above strongly suggests that she did not. Otherwise, a juror would be expected to have raised the issue with the judge.
Fourthly, there is nothing to suggest that the jurors failed to follow their oaths or affirmations and the trial judge's directions to determine the case solely on the basis of the evidence adduced in court. The jury is presumed to have understood and followed the trial judge's directions.[136] If the appellant's former mother-in-law had said something relevant to one of the jurors before they were empanelled, the jury following those directions would have been required to ignore what she had said.
[136] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13], [31] - [32]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] - [29].
In Smith v The State of Western Australia,[137] the High Court recognised that a miscarriage of justice may have arisen from evidence of a note left by a juror in the following circumstances:
If the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that a juror has not discharged his task because of unlawful coercion, the appeal should have been allowed unless other evidence put the integrity of the verdict beyond question. If the shadow of injustice over the verdict could not be dispelled, the proper course for the Court of Appeal would have been to allow the appeal, quash the conviction and order a new trial.
[137] Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473 [55].
The High Court recognised that the 'shadow of injustice' might be dispelled by an inquiry by the sheriff under the direction of this court. Such an inquiry was conducted when the appeal in Smith was remitted to this court.[138] In the course of his reasons for ultimately dismissing the appeal, Martin CJ (Mazza JA agreeing), observed that:[139]
[I]n a case such as this, in order to sustain an application for a curial inquiry, an appellant carries the burden of adducing evidence capable of belief which gives rise to a reasonable ground for suspicion that there may have been an irregularity in the course of the deliberations of the jury which could constitute a miscarriage of justice.
[138] Smith v The State of Western Australia [No 2] [2016] WASCA 136; (2016) 263 A Crim R 449.
[139] Smith [No 2] [44].
In the present case, there is no suggestion of jury coercion. Nor is there any basis for a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the jury decided the appellant's guilt other than solely on the basis of the evidence. The appellant's argument is based on speculation as to:
(1)what his former mother-in-law might have said to people who might or might not have become jurors; and
(2)the influence that anything she might have said could have had on the jury's deliberations.
For the above reasons, the evidence does not establish that the discussions with the appellant's mother-in-law gave rise to any miscarriage of justice. The evidence does not give rise to any reasonable ground for suspecting an irregularity in the jury's deliberations such as to justify this court directing an inquiry by the sheriff.
The complaint about counsel not raising the issue with the trial judge does not add anything to the appellant's argument. If the circumstances had given rise to an objectively reasonable suspicion that there may have been an irregularity in the course of the deliberations of the jury, there would be a miscarriage of justice irrespective of whether or not Mr Watters raised the matter with the trial judge. Once this court finds that the circumstances do not give rise to such an objectively reasonable suspicion, the failure of counsel to raise the matter cannot itself constitute a miscarriage of justice.
Therefore, neither ground 1 nor ground 8(c) is established. While we would grant leave to appeal on ground 1, leave should be refused on ground 8(c) which has no reasonable prospect of succeeding. The appellant's application for an inquiry should be dismissed.
Grounds 2, 3 and 8(d): failure to call witnesses
Grounds 2 and 3 both concern the absence of three witnesses at trial. Ground 2 contends that the 'prosecution not calling relevant witnesses resulted in a miscarriage of justice'. Ground 3 contends that the trial judge 'erred in law in not correctly addressing the jury on the issue of relevant witnesses not being called by the prosecution'.
Ground 8(d) contends that the appellant's trial miscarried because his trial counsel erred in not interviewing or calling critical witnesses for the defence who would have supported the appellant's case.
Background
These grounds principally relate to three persons, who were not called as witnesses at trial. The three persons were the complainant's neighbour, who leaned over the fence and asked if the power was out, and the two persons who visited the complainant. The complainant and appellant both gave evidence of those persons interacting with the complainant on 21 February 2017 while the appellant, Chau and Mr Hinchliffe were at the Noranda house. As noted at [66] above, police were aware of the identities of the two visitors, but had not interviewed them or obtained statements in relation to the incident.
The trial judge gave the following direction in relation to the evidence:[140]
Now, you have heard all the evidence that you're going to hear in this case. Do not guess or speculate about matters that are not in evidence or look for theories that are unsupported by the evidence. You have got all of the evidence that you are going to get in this trial and that is the evidence that you must consider and work with in deciding the facts and arriving at your verdicts.
So do not waste your time wondering about what the neighbour who put his or her head over the fence might have said if he or she was called. Do not waste your time wondering about what the two men who apparently came to [the complainant's] house during the relevant incident might have said if they'd been called to give evidence. The fact is they haven't been called, you do not have their evidence and that is the end of the matter.
The issue for you is whether or not the State has proved its case on the evidence that has been adduced. If the evidence that has been adduced is not sufficient to prove the guilt of [the appellant] on a charge then you will find him not guilty of that charged offence.
Disposition
[140] Trial ts 395.
In R v Apostilides,[141] the High Court identified the following general propositions as applicable to the conduct of criminal trials in Australia:
(1) The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
(2) The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He [or she] is not called upon to adjudicate the sufficiency of those reasons.
(3) Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he [or she] cannot direct the prosecutor to call a particular witness.
(4) When charging the jury, the trial judge may make such comment as he [or she] then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his [or her] decision as the prosecutor thinks it proper to divulge.
(5) Save in the most exceptional circumstances, the trial judge should not himself [or herself] call a person to give evidence.
(6) A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
[141] R v Apostilides (1984) 154 CLR 563, 575.
In Dyers v The Queen,[142] Gaudron and Hayne JJ remarked:
[A]s a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
[142] Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [6].
In Whitby v The State of Western Australia,[143] Buss P and Mazza JA (Hall J relevantly agreeing), remarked:
The general rule in a criminal trial is that it is inappropriate to draw an inference in accordance with or by analogy to the rule in Jones v Dunkel against either the State or the accused. In the case of the accused, the general rule is based upon considerations arising from the accused's right to silence, the burden on the State to prove the charge beyond reasonable doubt and the absence of any burden on the accused to disprove the charge. In the case of the State, the general rule is based upon considerations arising from the prosecutor's duty to call all material witnesses, irrespective of whether their evidence will or will not advance the State's case, unless there is a good reason not to call a particular witness. The fact that a particular witness would give evidence inconsistent with the State's case is not, of itself, a good reason not to call the witness. In both the case of the accused and the case of the State, the rule in Jones v Dunkel is concerned with the drawing of inferences from proved facts and the confidence with which those inferences could be drawn. Where the issue for a jury in a criminal trial is whether a particular event occurred or whether the accused committed a particular act, and there are witnesses who can give evidence as to those matters, inferential reasoning will, in general, have no role except, perhaps, in relation to peripheral issues. (citation omitted)
[143] Whitby v The State of Western Australia [2019] WASCA 11 [53], [184].
It is unnecessary to undertake any more detailed examination of the above principles in the present case. Although not the subject of query by the trial judge, the reasons the three persons were not called is obvious. The State did not have statements from any of the three persons. Nor is there evidence which supports the conclusion that any of them were material witnesses who the State had any duty to call. Both the appellant and the complainant gave consistent accounts of the complainant's interaction with the three persons on 21 February 2017. Nothing in the trial record or in the material before this court provides any basis for inferring that the evidence of these people could have materially assisted the jury in deciding whether the State had proved the appellant's guilt of the charged offences beyond reasonable doubt. The trial judge's direction quoted at [141] above was entirely orthodox and consistent with the principles set out in the above authorities.
The appellant's submissions also refer to other persons mentioned in passing by the complainant's evidence.[144] It is not apparent from the material before this court that those persons could have given any relevant, or at least any significant, evidence at trial.
[144] Appellant's Submissions, par 6(c) (White AB 91), referring to trial ts 88 - 91.
There is no merit in grounds 2 or 3. Leave to appeal on those grounds should be refused.
Ground 8(b) and the submissions in support of the ground do not identify the witnesses which it is alleged Mr Watters failed to interview or call. The closest that the written submissions come to explaining this ground is the assertion that:[145]
Mr Watters did not investigate and summons potential witnesses who would have been able to support the [appellant's] case. The appellant told Mr Watters of three witnesses, however after [the complainant's] testimony the appellant is now aware that there are more people that could have been interviewed.
[145] Appellant's Submissions, par 17(xviii) (White AB 99).
To the extent that the witnesses contemplated by this ground are those referred to above, there is no basis for concluding that they were 'critical witnesses for the defence'. There was some suggestion in the cross‑examination of Mr Watters that persons could have been called to show that the appellant and Chau were in fact involved in renovations of Mr Hinchliffe's property.[146] In our view, that would not have materially assisted the appellant's case. The difficulty for the appellant was not in establishing why he had the hammer, rope and gloves (which was uncontroversial at trial) but in explaining why he brought them into the complainant's house. There was also a suggestion that Mr Watters could have called witnesses to show that the appellant was involved in attempting to sell the 'Holder I Am' product.[147] This is not inconsistent with the complainant's evidence. Otherwise, there is no evidence of the appellant's alleged instructions to Mr Watters about other potential witnesses, or of the existence of witnesses who could have materially assisted the appellant's case at trial who were not called as witnesses.[148]
[146] See also Appellant's Submissions, par 17(xxvii) (White AB 101).
[147] Appellant's Submissions, par 17(xxvii) (White AB 101); appeal ts 148.
[148] Cf the cross-examination of Mr Watters at appeal ts 148 - 149, where Mr Watters in effect says that he does not recall various conversations put to him by the appellant.
Leave to appeal on ground 8(b), which has no reasonable prospect of succeeding, should be refused.
Grounds 4 and 8(a): search video
Grounds 4 and 8(a) both relate to the search video, referred to at [61] - [63] above. Ground 4 contends that the search video showing the appellant in handcuffs was unfairly prejudicial to the appellant and resulted in a miscarriage of justice. Ground 8(a) contends that the trial miscarried because the appellant's trial counsel erred in failing to ensure that appropriate edits were made to the search video to exclude highly prejudicial material that had no probative value, namely the footage of the appellant in handcuffs.
The appellant submits that showing the appellant in handcuffs to the jury was unfairly prejudicial to him, in that there was a risk that the jury would be unfairly influenced by an irrelevant consideration in the determination of the trial.[149]
[149] Appellant's Submissions, par 11 (White AB 92).
We have watched the search video. In our view, there was no proper basis for excluding the evidence of the search video. The video was relevant to show the location of items described by the complainant in the complainant's car at the time when it was in the appellant's possession. The fact that an arrested person may be handcuffed is likely to be regarded by the jury as unexceptional. The appellant appears calm and co-operative in the search video. There was no objection to the jury being shown images of the appellant in handcuffs. Any objection that had been made to that evidence would have properly been over-ruled, so that a failure to object cannot give rise to a miscarriage of justice. Although DS Leahy was not a particularly co-operative witness, Mr Watters' cross‑examination in the passage quoted at [67] above adduced evidence that the officer told Mr Watters that handcuffing was standard procedure. In all the circumstances, we are not satisfied that showing this video to the jury gave rise to any real risk that the jury's verdict would be improperly influenced by seeing the appellant in handcuffs. The video was properly admitted at trial.
Leave to appeal on grounds 4 and 8(a) should be refused, as neither of those grounds has any reasonable prospect of succeeding.
Grounds 6 and 8(b): appellant's legal representation
Grounds 6 and 8(b) are both concerned with the appellant's legal representation. Ground 6 contends that:
The appellant's trial was rendered unfair and the verdicts unreasonable as the appellant did not receive proper and independent legal advice until approximately two months before the trial.
Chau's evidence did not remove the implausibility of the appellant's account. Further, many of her answers, including volunteering allegations that the complainant was a 'wife-beater', strongly suggested that she was a highly partisan witness. The jury could reasonably take the view that Chau was lying to protect her partner.
Having reviewed and assessed the whole of the evidence admissible against the appellant at his trial, we do not have any doubt of the appellant's guilt of the offences of which he was convicted. We are not satisfied that it would be dangerous to permit the verdicts of guilty to stand, or that there is a significant possibility that an innocent person has been convicted.
Further, in the present case where the issues were contested on credibility grounds, the jury had a significant advantage over this court as a result of having observed the complainant, appellant and Chau give their evidence. Even if we had experienced some doubt about the appellant's guilt (and we do not), the jury's advantage in seeing and hearing the evidence would be capable of resolving that doubt.
In our view, ground 5 is not reasonably arguable. We would refuse leave to appeal on that ground.
Appeal against sentence
We turn to consider the appellant's appeal against sentence.
Sentences imposed
The trial judge imposed the following sentences on the appellant and Mr Hinchliffe:
| Count | Offence | Max penalty | Hinchliffe sentence | Cum / conc | Appellant sentence | Cum / conc |
| 1 | Extortion | 14 years | 2 years 6 months | Head sentence | 2 years 10 months | Head sentence |
| 2 | Armed robbery (BMW) | Life | 2 years 2 months | conc | 2 years 6 months | conc |
| 3 | Armed robbery (passport) | Life | 16 months | conc | 18 months | conc |
| 4 | Assault occasioning bodily harm | 5 years | 4 months | cum | 6 months | cum |
| Total effective sentence | Hinchliffe | Appellant | ||||
| 2 years 10 months | 3 years 4 months | |||||
The trial judge ordered that the terms of imprisonment imposed on Mr Hinchliffe be wholly suspended for a period of 18 months.
The trial judge ordered the terms of imprisonment imposed on the appellant to be partly suspended. He ordered that the appellant was to be released after serving 14 months' imprisonment. The judge ordered that the balance of the total effective sentence (2 years 2 months' imprisonment) was to be suspended for a period of 18 months.
The sentences noted above were imposed on 1 February 2019. The appellant had been in custody on remand between the date of his conviction and the date of sentence. The trial judge backdated the appellant's sentence to commence on 23 November 2018, to take account of time spent in custody.
Circumstances of offending
The trial judge made detailed findings as to the circumstances of the appellant and Mr Hinchliffe's offending,[243] which were generally consistent with the account given by the complainant and summarised above. There is no challenge to the findings of primary fact, and the complainant's evidence is summarised in detail above. We will confine the following observations to matters which do not appear from that summary.
Engagement of the appellant by Mr Hinchliffe
[243] The State of Western Australia v Morgan [2019] WASCSR 16 (Sentencing Remarks) [1] - [92].
The trial judge found that Mr Hinchliffe made the decision to seek the assistance of somebody who he believed could, through intimidation and threats, force the complainant to start being more proactive in relation to the sale of the 'Holder I Am' units and the repayment of some of what Mr Hinchliffe believed was owed to him. Mr Hinchliffe, either directly or through Chau, sought the assistance of the appellant, who was much younger, fitter and stronger looking, to recover some or all of the $150,000 debt that Mr Hinchliffe believed was owing to him.[244]
[244] Sentencing Remarks [23].
The appellant, having been approached, agreed to provide the assistance that Mr Hinchliffe was seeking. He did so for two reasons. First, the appellant wanted to show Mr Hinchliffe his gratitude for the support previously provided to Chau. Second, the appellant contemplated that there was at least a possibility that if the complainant's agreement could be secured to Chau selling a number of the 'Holder I Am' units at a much reduced price to the potential buyer that she had located, that she, and therefore the appellant, may, subject to any agreement Chau reached with Mr Hinchliffe, derive some modest financial gain. The trial judge did not making a finding that the appellant's primary motivation for agreeing to assist Mr Hinchliffe was to gain financially. However, his Honour was satisfied beyond reasonable doubt that the appellant's conduct was at least partially motivated by the possibility of financial gain.[245]
Plan between the appellant and Mr Hinchliffe for 21 February 2017
[245] Sentencing Remarks [24].
The trial judge made the following findings as to the plan between the appellant and Mr Hinchliffe prior to attending at the complainant's house on 21 February 2017:[246]
The plan that was agreed upon between the two of you was that [the appellant] would compel [the complainant] to agree to pay a sum of money in part reduction of the debt that he owed to Mr Hinchliffe, and that [the appellant] would also compel [the complainant] to provide you with an authorisation to sell his car so that you could use the proceeds therefrom to further reduce the debt that he owed to Mr Hinchliffe. It was agreed between the two of you, if not expressly then certainly implicitly, that [the appellant] would behave towards [the complainant] in a generally intimidating and threatening manner in order to ensure that [the complainant] did agree to pay a sum of money and authorise the sale of his car.
It was also agreed between the two of you that efforts would be made to see if [the complainant] had any readily available cash in his house which could be taken. This part of the agreement was arrived at in light of [Chau] having informed you both that she knew that [the complainant] had a safe in his house.
It was also part of the plan arrived at between the two of you to convince [the complainant] to get a job, to secure his agreement to start making regular repayments to Mr Hinchliffe in order to reduce the $150,000 debt, and to secure his agreement to the Holder I am units being sold at a much reduced price, certainly less than the $5 that [the complainant] was at the time insisting on.
As is apparent from what I have just said, I am not satisfied beyond reasonable doubt that it was part of the agreed plan for [the appellant] to actually inflict physical violence on [the complainant] in order to make him comply with the demands that were going to be made of him. Nor am I satisfied beyond reasonable doubt on the evidence adduced at trial that you Mr Hinchliffe contemplated the possibility that actual physical violence might be used by [the appellant].
Basis of criminal responsibility for count 1 (extortion)
[246] Sentencing Remarks [35] - [38].
The trial judge found that it was the appellant's conduct in making the demand for the payment of the $5,000 that formed the basis of his extortion offence the subject of count 1. The threat of injury that he made to the complainant at the time of making his demand was comprised of:[247]
(1)The appellant's reference to 'option 3'.
(2)The generally intimidatory conduct in which the appellant engaged from his arrival at the complainant's house on 21 February 2017. That conduct included:
(a)the assault of the complainant when he opened his front door; and
(b)the appellant's conduct in entering the house with the rope, hammer and gloves and placing them on the fridge in close proximity to the complainant.
[247] Sentencing Remarks [51].
Mr Hinchliffe was criminally responsible on the basis that he knowingly and intentionally aided and encouraged the appellant to make the demand while threatening the complainant with injury if he did not agree to make the payment. Mr Hinchliffe's aiding conduct was constituted by him:[248]
(1)Securing the appellant's assistance to recover some or all of the money that he believed the complainant owed to him.
(2)Forming the agreement with the appellant, referred to at [274] above, prior to attending at the complainant's house.
(3)Remaining present with the appellant at the complainant's house at the time that the appellant engaged in his threatening conduct and made the relevant demand.
Basis of criminal responsibility for counts 2 and 3 (armed robbery)
[248] Sentencing Remarks [52].
The trial judge found that the armed robbery offences in counts 2 and 3 were constituted by the appellant's conduct in taking the complainant's BMW and passport respectively. The trial judge found that:[249]
[249] Sentencing Remarks [73].
(1)The appellant took the complainant's BMW and the passport without the complainant's free and voluntary consent knowing that he was not freely and voluntarily consenting.
(2)The appellant's intention at the time of taking the items was to permanently deprive the complainant of them.
(3)The appellant intended to sell the complainant's BMW and give the proceeds of the sale to Mr Hinchliffe in part repayment of the debt that Mr Hinchliffe believed the complainant owed him.
(4)The appellant threatened violence to the complainant in order to overcome any resistance that he might offer to the appellant taking his car and passport. The threatened violence was constituted by:
(a)bringing the rope, hammer and gloves into the house and placing them on the fridge;
(b)moving the rope, hammer and the gloves onto the table directly in front of the complainant immediately before telling the complainant that he was going to write out the authorisation document; and
(c)behaving in a generally intimidatory way towards the complainant throughout the time that the appellant was at his house.
(5)The appellant used actual violence to the complainant in order to overcome any resistance that he might offer to the appellant taking his vehicle and passport by assaulting him in the way described below.
(6)The appellant was armed because he was, at the relevant time, in possession of the hammer, an instrument that could be used to inflict bodily injury, with the intention of causing fear of injury to the complainant.
The trial judge found that Mr Hinchliffe knowingly and intentionally aided the appellant to commit the armed robbery offences.[250] Mr Hinchliffe did this by doing the following acts knowing that the complainant was not freely and voluntarily consenting to the taking of his BMW and passport and intending to provide support and encouragement to the appellant in the commission of the offences:[251]
(1)Securing the appellant's assistance to recover some or all of the money that he believed the complainant owed to him.
(2)Forming the plan with the appellant referred to at [274] above.
(3)Remaining present with the appellant and the complainant at the patio table at the time that the appellant moved the rope, hammer and gloves in front of the complainant and directed him to write out the authorisation document.
(4)Not raising any objection to the appellant's conduct at this time.
(5)Remaining with the appellant at the house at the time the appellant obtained the keys and the passport and until the appellant drove away in the complainant's BMW.
Basis of criminal responsibility for count 4 (assault occasioning bodily harm)
[250] Sentencing Remarks [75].
[251] Sentencing Remarks [76] - [79].
The trial judge found that the appellant struck the complainant to the right side of the head with an open hand a number of times (but not more than six times). This constituted the appellant's unlawful assault of the complainant causing bodily harm. The bodily harm was constituted by the injury to the complainant's ear, which bled.[252]
[252] Sentencing Remarks [53] - [56].
The trial judge found Mr Hinchliffe to be criminally responsible for the assault offence on the basis that the commission of the offence by the appellant was a probable consequence of the prosecution of the common unlawful purpose. That unlawful purpose was the plan referred to at [274] above.[253]
Personal circumstances
[253] Sentencing Remarks [58].
The trial judge also made detailed findings as to the personal circumstances of the appellant and Mr Hinchliffe.[254] The following is a summary of the main findings.
Appellant
[254] Sentencing Remarks [124] - [188].
The appellant was 45 years old at the date of sentence. He came to Australia with his mother and step-father when he was about 15 years old. The appellant is a British citizen who has been a permanent resident of Australia since 1986.[255]
[255] Sentencing Remarks [126], [132], [134].
The appellant is in a supportive and stable relationship with Chau and, prior to being remanded in custody, lived with two of her children (aged 10 and 15 years). Chau also has a third child. The appellant treats these children as his own. He has three children of his own from previous relationships (aged 26, 16 and 13 years).[256]
[256] Sentencing Remarks [136] - [137], [140].
The appellant has been consistently employed in a range of positions since he left school in year 10. He has worked extensively in the car sales industry, but his car dealer's licence was cancelled when the appellant was charged with the present offences and he was consequently unable to find work. His convictions make it unlikely that he will be able to return to work in the car sales industry, as he will not be able to meet the relevant licensing requirements. At the time of committing the offences, the appellant and Chau were working, and making a reasonable income, in her wildflower business.[257]
[257] Sentencing Remarks [148] - [149], [151] - [153].
The appellant has a history of methylamphetamine and alcohol abuse. He had not been using methylamphetamine for about 10 years prior to his offending, but was drinking heavily at the time of committing the current offences. He suffers from pancreatitis and insulin dependent type 1 diabetes, which are consequences of the appellant's long-term alcohol abuse. While these conditions can be managed in the custodial setting, they will make any term of imprisonment slightly more arduous than for a man of the appellant's age who does not have health problems. The appellant also experienced mental health issues, which were not suggested to be causative of his offending.[258]
[258] Sentencing Remarks [154] - [161].
The appellant had a criminal record which included a significant number of convictions for driving related offences, a 1998 offence of attempting to pervert the course of justice and 15 breaches of a violence restraining order (constituted by sending emoji messages) in 2014.[259]
[259] Sentencing Remarks [162] - [168].
The appellant regretted having resorted to the use of physical force against the complainant, but had not demonstrated any significant remorse for the offences. The trial judge was satisfied that the risk of the appellant committing further offences of a serious nature was relatively low. Character references indicated that the appellant was capable of living a productive and law abiding life in the community.[260]
Mr Hinchliffe
[260] Sentencing Remarks [169] - [172].
Mr Hinchliffe was a 69-year-old man with good antecedents. He married late in life, and had one child of the marriage which ended 10 years ago. He was engaged in ongoing Family Court litigation in relation to access to his daughter.[261]
[261] Sentencing Remarks [173] - [177].
Mr Hinchliffe received a disability pension, and had been totally unfit for work for a number of years due to his health problems. The trial judge observed:[262]
According to the letter from your general practitioner, you suffer from hypertension, chronic obstructive sleep apnoea, osteoarthritis in both knees with chronic knee pain, diabetes mellitus, gouty arthritis with fluctuating pain in the legs, cirrhosis of the liver, fatty liver (related to your obesity) and morbid obesity which is uncontrollable and unsuitable for surgical treatment. Your morbid obesity means that your mobility is restricted.
There is nothing before me to indicate that your physical health issues will not be able to be adequately managed in the custodial setting. Nonetheless, I am satisfied that your poor state of physical health will make any term of imprisonment imposed on you more arduous than it would ordinarily be for a man of your age who does not have your extensive list of health problems. This is a mitigatory factor that I take into account.
[262] Sentencing Remarks [182] - [183].
The judge also accepted that Mr Hinchliffe experienced depression which had intensified since he was charged with these offences.[263]
Trial judge's approach
[263] Sentencing Remarks [184].
The trial judge observed that the armed robbery offences fell 'towards the lower end of the scale of seriousness of armed robbery offences, albeit certainly not at the lower end'. [264] It appears that the last reference to 'lower end' is a typographical error, and should be to the 'lowest end'. The assault occasioning bodily harm fell at the lower end of the scale of seriousness of such offences.[265]
[264] Sentencing Remarks [101].
[265] Sentencing Remarks [101].
The trial judge identified the following aggravating features of the appellant's offending:[266]
(1)The appellant agreed to provide Mr Hinchliffe with stand over type services despite the fact that he had no substantial vested interest in Mr Hinchliffe recovering some or all of the $150,000.
(2)At the time of committing the offences, the appellant had already engaged in some intimidatory and threatening conduct towards the complainant on the previous day. When the appellant collected the $5,000, he made a further demand for more money from the complainant. The appellant's conduct could not be seen as a momentary lapse of judgment.
(3)There was a degree of premeditation involved in the commission of at least the extortion offence.
(4)The appellant behaved aggressively towards the complainant from the moment the complainant opened the front door to the appellant on 21 February 2017. The appellant grabbed the complainant around the collar area and pushed him against the wall in the entrance hall of the complainant's house.
(5)The appellant committed the offences in the complainant's house.
(6)The amount of money that the appellant obtained from the complainant as a result of committing the extortion offence, $5,000, was not an insignificant amount.
(7)The property stolen in count 2, namely the complainant's BMW, was a significant and reasonably valuable item of property.
[266] Sentencing Remarks [103] - [109].
The trial judge found that the fact that Mr Hinchliffe genuinely felt aggrieved by the $150,000 debt made him slightly less culpable for committing the offences in counts 1 - 3 than the appellant, who was at least partially motivated by the possibility of some modest financial gain.[267] However, in the trial judge's view, the fact that Mr Hinchliffe did not:
(1)perform any of the physical acts the subject of those counts; or
(2)form any prior specific intention for the appellant to commit the robbery offences while armed,
did not make him materially less culpable than the appellant for the commission of those offences. This was on the basis that:[268]
[Y]ou were the person who instigated the course of conduct that led to the commission of the offences. You were the person who secured [the appellant's] services. You were the person who planned with [the appellant] to attend [the complainant's] house so that [the appellant] could make the relevant demands and take [the complainant's] vehicle while behaving in an intimidatory and threatening way. Moreover, once at the house you knowingly and intentionally supported and encouraged [the appellant] to commit the offences in the way I have described.
[267] Sentencing Remarks [118].
[268] Sentencing Remarks [119].
However, the trial judge found Mr Hinchliffe's culpability for the unlawful assault occasioning bodily harm offence to be significantly less than that of the appellant.[269]
[269] Sentencing Remarks [120].
As to the appellant's culpability, the trial judge observed:[270]
The fact that part of your motivation for committing your offences was to repay Mr Hinchliffe for having been a friend and supporter of your wife over the years does, in my view, make your conduct slightly less serious than that of a person who commits the type of offences you have committed solely for personal financial gain. If you had committed the offences solely for personal gain this would have made your conduct even more serious than it was.
[270] Sentencing Remarks [122].
The trial judge identified general deterrence as a significant sentencing factor, particularly for the extortion offence.[271]
[271] Sentencing Remarks [191] - [193], citing Barry v The State of Western Australia [2012] WASCA 175 [65].
The trial judge in effect concluded that, in all the circumstances, only a sentence of imprisonment could be justified for the appellant, and that a wholly suspended sentence was not appropriate. His Honour concluded that a total effective sentence of 3 years 4 months' imprisonment appropriately reflected the appellant's overall criminality in committing the offences having regard to all relevant circumstances including those referable to the appellant personally.[272]
[272] Sentencing Remarks [199] - [209].
In deciding to partly suspend the appellant's sentence, the trial judge observed:[273]
The decision as to whether or not to partially suspend the term of imprisonment that I have imposed is not an easy one. Your offences were for the reasons that I have already identified serious and the sentencing consideration of general deterrence is of relevance. On the other hand you did not embark on your course of conduct for the sole purpose of gaining financially. Your criminal record is relatively speaking not a bad one. You have no prior offences of violence. Your risk of reoffending is relatively low. You have a supportive network in the community. You are capable of living a productive life in the community. You do have some physical health issues that will make any time you spend in prison slightly more onerous than would otherwise be the case.
At the end of the day, taking into account all of the factors that I have mentioned, and weighing the mitigatory factors against the seriousness of your offences and where they fall within the scale of seriousness of offences of their type, I am satisfied that it is appropriate to suspend 2 years and 2 months of the term of imprisonment that I have imposed on you for a period of 18 months. I consider that although your offences are serious, they are not so serious that, when viewed in light of the factors that I have mentioned, the only appropriate disposition is to require you to serve the whole of the term I have imposed. I consider that both your interests and the interests of the community generally are best served by 2 years and 2 months of the term that I have imposed being suspended for a period of 18 months. I also consider that in the particular circumstances of your case the imposition of a partially suspended term of imprisonment gives sufficient effect to the sentencing consideration of general deterrence.
[273] Sentencing Remarks [211] - [212].
The trial judge indicated that the difference between the sentences imposed on Mr Hinchliffe and those imposed on the appellant reflected what his Honour had assessed to be Mr Hinchliffe's lesser degree of culpability for the offences and the greater mitigatory benefit given to Mr Hinchliffe as a result of his poor state of physical health and 'unblemished prior record'.[274]
Grounds of appeal
[274] Sentencing Remarks [223] - [232].
The appellant appeals against his sentences on four grounds.
Ground 1 alleges a breach of the parity principle in relation to the wholly suspended sentences received by Mr Hinchliffe. Ground 2 contends that the individual sentences are manifestly excessive and the total effective sentence infringes the first limb of the totality principle. Ground 3 alleges that the trial judge failed to take into account relevant considerations in sentencing the appellant.
Ground 4 contends that the trial judge erred in law by backdating the partly suspended sentence when his Honour had no power to do so under the Sentencing Act 1995 (WA).
Leave to appeal has been granted on ground 4. The application for leave to appeal on grounds 1 - 3 was referred to the hearing of the appeal.
Disposition of grounds 1 ‑ 3
The State concedes that ground 4 is established. We accept that concession. As a result, grounds 1 ‑ 3 can be dealt with briefly.
Ground 1: parity
Ground 1 asserts an infringement of the parity principle. The principles to be applied in determining whether this court should interfere with a sentence on parity grounds are well established. This court recently adopted the following summary of Buss JA in Barnden v The State of Western Australia:[275]
The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance.
An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question.
[275] Barnden v The State of Western Australia [2014] WASCA 161 [55] ‑ [56], adopted in Bull v The State of Western Australia [2019] WASCA 24 [36].
In our view, the differences between the types and lengths of sentences imposed on the appellant and Mr Hinchliffe were justified by the matters to which the trial judge referred. The fact that Mr Hinchliffe's culpability was slightly less than the appellant's, combined with his better antecedents and his significantly worse health, are reasonably capable of explaining the different sentences. The differences do not give rise to any objectively justifiable sense of grievance on the part of the appellant. However, as will become apparent, the parity principle is a significant factor when we come to exercise this court's discretion to resentence the appellant.
Ground 2: implied error
Ground 2 contends that the individual sentences are manifestly excessive and the total effective sentence infringes the first limb of the totality principle. As will become apparent when we deal with the resentencing of the appellant, we consider the length of the individual terms of imprisonment and the length of the total effective sentence to be appropriate (subject to now taking account of time spent in custody). But for the application of the parity principle, we would have considered the appellant's offending to be so serious as to make a term of immediate imprisonment to be wholly served the only appropriate sentencing option. It follows that we would not imply error from the outcome of the exercise of the trial judge's sentencing discretion.
Ground 3: failure to take account of relevant considerations
Ground 3 alleges that the trial judge failed to take into account relevant considerations in sentencing the appellant. The considerations identified by the appellant's submissions concern, in effect, the financial impact of the convictions on the appellant by virtue of being unable to work in the motor sales industry.[276] There is no merit in this ground, as those matters were expressly referred to and taken into account by the trial judge in sentencing the appellant.[277]
Conclusion
[276] Appellant's Submissions, par 16 - 19 (White AB 168).
[277] Sentencing Remarks [150] - [153].
For the above reasons, none of grounds 1 - 3 have any reasonable prospect of succeeding. We would refuse leave to appeal in respect of those grounds.
Disposition of ground 4: backdating a partly suspended sentence
As noted above, ground 4 contends that the trial judge erred in law by backdating the partly suspended sentence when his Honour had no power to do so under the Sentencing Act.
The appellant was sentenced on 1 February 2019, subject to a presently immaterial correction made on 6 February 2019. Shortly thereafter, on 19 February 2019, this court delivered its judgment in SBJ v The State of Western Australia.[278] In SBJ, the court relevantly held that there was no power to backdate a partly suspended sentence.[279] SBJ was followed by this court in Evans v The State of Western Australia.[280]
[278] SBJ v The State of Western Australia [2019] WASCA 32.
[279] SBJ [136].
[280] Evans v The State of Western Australia [2019] WASCA 73 [72] - [75].
It follows that the sentence imposed by the trial judge on the appellant did not accord with the Sentencing Act and involved a material express error of law. It also necessarily follows that a different sentence (ie a sentence which is not a partly suspended sentence backdated to 23 November 2018) should have been imposed.[281] Ground 4 is established.
[281] Criminal Appeals Act, s 31(4)(a).
Resentencing
It having been concluded that the trial judge erred in backdating the sentence and that a different sentence ought to have been imposed, this court (which has the necessary material) must now set aside the sentence imposed by the trial judge and resentence the appellant.
In our view, in all the circumstances of this case and having regard to all relevant sentencing considerations, the individual terms of imprisonment imposed by the trial judge were the appropriate sentencing dispositions. We, like the trial judge, consider that a total effective sentence of 3 years 4 months' imprisonment appropriately reflects the appellant's overall criminality in committing the offences having regard to all relevant circumstances including those referable to the appellant personally.
We do differ from the approach taken by the trial judge in relation to suspension. The appellant's offending comprised serious and sustained intimidation of the vulnerable complainant by the appellant acting as a thug demanding money and stealing property with violence and threats of violence. In our view, subject to the matters noted below, the seriousness of the appellant's offending was such that suspended imprisonment (whether in whole or part) and conditionally suspended imprisonment are inappropriate sentencing options. But for the matters noted below, we would impose a total effective sentence of 3 years 4 months' immediate imprisonment, and make the appellant eligible for parole. If sentences of immediate imprisonment were imposed, then the sentences could be backdated to take account of time spent in custody.
However, that exercise of this court's sentencing discretion would involve a more severe sentence than that which is the subject of the appellant's appeal. The court could not take that course without giving the appellant notice of that possible outcome and giving him an opportunity to discontinue his appeal against sentence to avoid that outcome.[282]
[282] Neal v The Queen (1982) 149 CLR 305.
Further, it is necessary for this court to take account of the parity principle in resentencing the appellant. As explained above, we do not consider the difference between the partly suspended sentence imposed on the appellant and the wholly suspended sentence imposed on Mr Hinchliffe to give rise to an objectively justifiable sense of grievance by the appellant. However, in our view the difference between a wholly suspended sentence and a sentence of immediate imprisonment (to be wholly served) cannot be justified by the differences between those offenders.
Having regard to the parity principle, we consider it appropriate to impose a partly suspended sentence on the appellant having the same practical effect as the sentence imposed by the trial judge. In doing so, we will take account of time spent in custody by reducing the length of the sentences and the period to be served. That is, given that the appellant has now spent 12 months in custody, we will reduce the sentences for counts 1 - 3, and the time to be served before release on those sentences, by 12 months.
There is a further issue which has not been the subject of previous decisions of this court, and was not the subject of submissions on the hearing of this appeal. That concerns how partly suspended sentences are imposed in respect of multiple offences which might be subject to orders for accumulation if sentences of immediate imprisonment were imposed. There seems to us to be room for doubt as to whether orders can be made for the accumulation of partly suspended sentences of imprisonment, or whether questions of accumulation will only arise if there is a breach of the suspended imprisonment order resulting in the imposition of a term of immediate imprisonment.
It is undesirable to reach any concluded view on this issue in the absence of submissions. In our view, the issue can be dealt with by imposing partly suspended imprisonment in respect of counts 1 - 3, and wholly suspending the sentence for count 4 (which was the practical effect of the orders made by the trial judge).
Therefore, we would impose the following sentences:
| Count | Offence | Max penalty | Sentence |
| 1 | Extortion | 14 years | 1 year 10 months |
| 2 | Armed robbery (BMW) | Life | 1 year 6 months |
| 3 | Armed robbery (passport) | Life | 6 months |
| 4 | Assault occasioning bodily harm | 5 years | 6 months |
The sentences for counts 1 - 3 are partly suspended. The appellant is to be released after serving 2 months of those sentences. The balance of the terms are to be suspended for 18 months. Each of those terms commences on the day this judgment is delivered.
The sentence for count 4 is wholly suspended for 18 months.
The ultimate outcome for the appellant does not change adversely in practical terms. He will be released from custody at about the same time after serving 2 months' imprisonment, and then be subject to suspended sentences for the balance of the terms of imprisonment imposed on counts 1 - 3 and the whole of the term of imprisonment imposed on count 4.
We note that we have taken account of the time spent in custody in reducing the term of imprisonment of a partly suspended sentence. Section 87 of the Sentencing Act has no application to a partly suspended term of imprisonment.[283] However, the court's capacity to take account of time spent in custody by reducing the sentences imposed arises independently of s 87.[284] Further, s 87 contains no express or implied limitation on the court's non‑statutory power to take into account, if appropriate, time spent in custody.[285] The result is that while the court currently has no power to backdate partly suspended sentences, it clearly has the power to take into account time spent in custody and reduce the sentence which it would otherwise consider to be appropriate, without recourse to s 87(1)(c).
[283] SBJ [2].
[284] Mogridge v The State of Western Australia [2016] WASCA 205 [49]; O'Brien v The State of Western Australia [2016] WASCA 23; (2016) 306 FLR 372 [65], [90]; Peake v The State of Western Australia [2015] WASCA 239 [40], [72] (Buss JA; Mazza JA agreeing); MJS v The State of Western Australia [2011] WASCA 112 [1], [16], [218] (Mazza J; McLure P and Buss JA relevantly agreeing), each referring to Narkle v Hamilton [2008] WASCA 31 [30] - [31].
[285] O'Brien [65]; Peake [40]; MJS [218].
Orders
For the above reasons, the following orders should be made in the appeals:
CACR 20 of 2019 (appeal against conviction)
(1)The appellant have leave to adduce the following evidence as additional evidence in the appeal:
(a)The appellant's two affidavits sworn 17 May 2019 which appear at White Appeal Book pages 18 - 56.
(b)The undated affidavit of Chau Ngoc Huynh which appears at White Appeal Book pages 7 - 9.
(c)The statement of the complainant dated 25 February 2017 (appeal exhibit A1).
(d)The letter of the FOI Coordinator Acacia Prison to the appellant dated 2 August 2019 and the attachments to that letter (appeal exhibit A2).
(2)The appellant's application for leave to adduce his affidavit sworn 17 May 2019 which appears at White Appeal Book page 11 is dismissed.
(3)The respondent have leave to adduce the following evidence as additional evidence in the appeal:
(a)The affidavit of Alan James Camp sworn 28 June 2019 (appeal exhibit R1).
(b)The affidavit of Simon Barry Watters sworn 2 July 2019 (appeal exhibit R2).
(c)The email of Joel Grinceri to Robert Wilson dated 2 September 2019 and the attachments to that email (appeal exhibit R3).
(4)The appellant's application for an inquiry as to whether jurors improperly received adverse information from a person identified by the appellant as his former mother-in-law is dismissed.
(5)Leave to appeal is granted on ground 1.
(6)Leave to appeal is refused on grounds 2 - 9 inclusive.
(7)The appeal is dismissed.
CACR 24 of 2019 (appeal against sentence)
(1)Leave to appeal is refused on grounds 1 - 3.
(2)The appeal is allowed.
(3)The sentences imposed by the trial judge are set side and the sentences referred to at [321] - [323] above are substituted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell21 NOVEMBER 2019
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