Newhill v The State of Western Australia
[2014] WASCA 172
•10 SEPTEMBER 2014
NEWHILL -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 172 | |
| THE COURT OF APPEAL (WA) | 10/09/2014 | ||
| Case No: | CACR:129/2014 | 29 AUGUST 2014 | |
| Coram: | MAZZA JA | 3/09/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail pending appeal refused | ||
| B | |||
| PDF Version |
| Parties: | PAUL WILLIAM NEWHILL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for bail pending appeal Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 4A pt C sch 1 Criminal Code (WA), s 304(1) |
Case References: | Edwards v The Queen (1993) 178 CLR 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : NEWHILL -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 172 CORAM : MAZZA JA HEARD : 29 AUGUST 2014 DELIVERED : 3 SEPTEMBER 2014 PUBLISHED : 10 SEPTEMBER 2014 FILE NO/S : CACR 129 of 2014
- CACR 130 of 2014
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 1380 of 2013
Catchwords:
Criminal law and procedure - Application for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Criminal Code (WA), s 304(1)
Result:
Application for bail pending appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr L M Fox
Solicitors:
Appellant : Fort Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
- MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
1 Before me is the appellant's application for bail pending appeal pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA) and, in the alternative, an order for an expedited hearing of the appeal.
2 The appellant was convicted after a trial in the District Court of one count of unlawfully doing an act causing bodily harm, contrary to s 304(1) of the Criminal Code (WA). In addition, he was convicted on his plea of guilty of being in possession of an unlicensed shotgun in a circumstance of aggravation, namely, the shotgun had been altered.
3 On 13 May 2014, the trial judge imposed a total effective sentence of 3 years' imprisonment, with eligibility for parole. This sentence is cumulative upon another sentence being served by the appellant. Based on information provided to this court, his earliest eligibility date for parole is 24 January 2016. The appellant has appealed against his conviction (CACR 129/2014) and sentence (CACR 130/2014). For the purposes of this application, the relevant appeal is the appeal against conviction.
4 In very brief terms, the State's case at trial was that on 14 June 2012, the appellant went to the home of Michael Grueter. There, Grueter and others were extracting pseudoephedrine from medications for the purpose of using it to manufacture methylamphetamine. While he was there, the appellant's sister, Donna Newhill, the complainant Russell James Pilgrim, and another male, arrived. The appellant's sister was angry with him because he had used her expired driver's licence to obtain medications containing pseudoephedrine from chemists. The complainant was also in an angry mood.
5 The appellant was aware that Mr Grueter had in his possession, in his bedroom, an unlicensed sawn-off shotgun. The appellant went to the bedroom where he loaded and cocked the weapon. He then opened the bedroom door. Immediately in front of him were his sister, the complainant and the other man. The complainant was shouting and screaming at the appellant. At different points in time, the appellant was waving the shotgun at both his sister and the complainant, threatening to shoot them unless they left. The appellant discharged the shotgun in the complainant's direction. The complainant was hit in the shoulder and suffered injuries which constituted bodily harm. The complainant and the others fled the house.
6 The appellant removed and disposed of the discharged cartridge, disassembled the shotgun into three separate pieces and placed those pieces into the roof space through a manhole outside the bedroom door. The police were called and the appellant was arrested. The appellant participated in a video record of interview commencing at about 5.44 am on 15 June 2012.
7 In that interview he told lies, three of which the State relied upon as evidence of consciousness of guilt. He falsely told the police that the complainant was armed with a shotgun, that the complainant had been waving it around, and that it discharged while the appellant was attempting to wrestle the gun from the complainant.
8 After giving this interview, the appellant appreciated that the version of events he had given was unlikely to be accepted and so, at approximately 8.30 am, he requested a second interview in which he agreed that some of what he had told the police in the first interview was untrue. Specifically, he told the police that the complainant did not bring the gun into the room.
9 The defence case was that the appellant and the complainant struggled over possession of the shotgun and, in the course of the struggle, the weapon discharged. In other words, his case was that the discharge of the shotgun was an unwilled act. The appellant testified in his defence to that effect.
10 In respect of the lies he told the police, he said that at the time of the first record of interview, he was scared, that he did not want to get others into trouble, and that he did not want Mr Grueter, in particular, to get into trouble (ts 427 - 428, 477).
11 The learned trial judge gave the jury directions about how it could use the appellant's lies. His Honour directed the jury that the lies were relevant to the jury's assessment of the appellant's credibility. No criticism is made of these directions. His Honour also gave directions to the jury in respect of those lies said by the prosecution to be implied admissions of guilt. The relevant directions are as follows:
So you will need to consider, members of the jury, what significance you place on these suggested lies, bearing in mind that the accused admits some were lies. The fact that a person has told a lie may be a factor in your assessment of the credibility of that person. It is, as I have said, a matter for you to consider. You may wish to take account of that in your deliberations.
But do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that it is evidence of guilt or dishonesty in respect of the rest of their testimony. The fact that a person told a lie is not evidence that the person is guilty of the crime, except for those lies which I will identify in a moment that the State relies upon as implied admissions of guilt by the accused.
Those lies are these: in respect of the first interview, the State says that the accused deliberately lied with a guilty mind, that the complainant had the gun to start with, and was swinging it around in the air, that he was trying to snatch the gun off the complainant, and that the gun discharged during a wrestle with the complainant after he had managed to get hold of it.
Those lies the State says you can use over and above the issue of credibility on the basis that the State says they were told with a guilty mind - or, by the accused with a consciousness of guilt. The accused of course said that when he told those lies at the time of his first record of interview, he was terrified, and not thinking straight.
With respect to each of those three identified lies, and also the lie in the second record of interview that the State relies upon in this way, that is that the accused admitted that he had lied in the first record of interview, including that he had the gun first, you must be satisfied about four things before you could draw an implication of guilt from those lies.
Firstly, you must ask yourself whether the lie was deliberate. It must have been a deliberate lie in order to be capable of supporting the State's case in this way. So saying something that is not true by mistake or inadvertence can't obviously be evidence of guilt.
The second thing is the alleged lie must relate to a circumstance or event connected with the offence. The telling of the lie must be explicable only on the basis that the truth would implicate the accused with the offence with which he had been charged.
Third, the motive for the lie must have been a realisation of guilt, and a fear of the truth. That is, it was told out [of] a consciousness of guilt. That is, the accused knew the truth would implicate him in the offence.
The fourth requirement is, in order to use a lie as evidence of guilt in the way contended for by the State, is that the statement which is alleged to constitute the lie must be clearly shown to be a deliberate lie by the accused's own admission, or by other evidence. In this case, you have the accused's own admission that he told these lies to the police at the first opportunity for him to explain what had happened.
Members of the jury, it is only if you are satisfied of these four things beyond reasonable doubt that you could use these lies told by the accused to support the State's case as an implied admission of guilt. Those directions apply to the identified lies that I mentioned at the outset (ts 555 - 556).
12 No exception was taken to these directions at trial by defence counsel. However, it is now asserted in the ground of appeal that the directions failed to adequately direct the jury as to the lies. The ground reads:
1. The learned trial judge erred when he failed to adequately direct the jury as to 'Edwards lies' relied upon by the State;
Particulars of error:
- 1.1 His Honour failed to direct the jury there may be a reason, other than out of a consciousness of guilt, for the accused to tell the lies relied upon by the State;
1.2 The 'fourth lie' relied upon by the State as an 'Edwards lie' was not a lie, but was merely the appellant confirming in his second electronic record of interview ('EROI') that a matter he put forward in his first EROI was a lie.
14 In oral argument before me, the parties focused on the first particular of the ground of appeal. As to its strength, the appellant submitted that it is clear that his Honour failed to direct the jury that there may be other reasons why an appellant has lied, besides the realisation of guilt: see Edwards v The Queen (1993) 178 CLR 193, 211.
15 The State accepts that the learned trial judge failed to explicitly tell the jury that there were reasons why people tell lies, other than a realisation of guilt. The State submitted that, read as a whole, the directions were sufficient to guard against the danger of the jury misusing the lies.
16 The State emphasised that his Honour directed the jury that they needed to be satisfied beyond reasonable doubt that:
(a) the lie was deliberate;
(b) the lie related to the offence;
(c) it was explicable only on the basis that the truth would implicate the accused; and
(d) the motive for the lie was a realisation of guilt and a fear of the truth.
17 The State submitted that, as the telling of the lies was not an indispensable link in the prosecution case, it was unnecessary to prove the matters referred to by his Honour to the criminal standard, and that the direction that his Honour gave was unduly favourable to the appellant. In these circumstances, the State contended there was an objective forensic reason why defence counsel did not seek a redirection. Thus, it is asserted there has been no miscarriage of justice.
18 I adjourned the proceedings to today to enable me to examine the parts of the trial transcript referred to by counsel in oral argument and to review again all the material that was put before me. His Honour's direction appears to be imperfect, although the imperfections seem to cut both ways. The ultimate question is whether there has been a miscarriage of justice.
19 On a preliminary assessment of the ground of appeal, while the ground is reasonably arguable, I have not been persuaded that it is sufficiently strong to constitute exceptional reasons to grant bail. No more needs to be said about the merit of the appeal at this point. The application for bail is thus dismissed.
20 With respect to the application for an expedited hearing, the preparation of the appeal is reasonably well advanced. The respondent's case will be filed in the next few days. The appeal is not complex, and I doubt that the appeal books will be complicated. It would not require, I think, a lengthy hearing.
21 The appellant has expressed a fear that the appeal will not be heard and determined until mid-2015. That is, in my view, an unduly pessimistic estimate. In these circumstances, an expedited appeal order is unnecessary and, on this basis, the application for the expedited appeal order is dismissed.
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