Ottaway v The State of Western Australia
[2012] WASCA 20
•30 JANUARY 2012
OTTAWAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 20
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 20 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:43/2011 | 20 OCTOBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 30/01/12 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to adduce additional evidence dismissed Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM JAMES OTTAWAY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Transcript of intercepted telephone conversations between the offender and his cooffender provided to the jury Whether the provision of the transcript occasioned a miscarriage of justice |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a) Criminal Procedure Act 2004 (WA), s 110 |
Case References: | DPJB v The State of Western Australia [2010] WASCA 12 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : OTTAWAY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 20 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 871 of 2010
Catchwords:
Criminal law - Appeal against conviction - Transcript of intercepted telephone conversations between the offender and his cooffender provided to the jury - Whether the provision of the transcript occasioned a miscarriage of justice
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Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Criminal Procedure Act 2004 (WA), s 110
Result:
Application for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
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1 McLURE P: I agree with Buss JA.
2 BUSS JA: On 26 November 2010, the appellant was convicted, after a trial in the District Court before Scott DCJ and a jury, of one count in an indictment. This count alleged that on 14 October 2009, at Waikiki, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The trial judge imposed a sentence of 2 years 8 months' immediate imprisonment, and made a parole eligibility order.
3 The appellant has applied to this court for leave to appeal against conviction.
The material facts and circumstances of the offending
4 In 2009, police investigated the activities of Paul Raymond Burkhardt. As part of the investigation, police obtained an intercept warrant in relation to Mr Burkhardt's mobile telephone. This warrant enabled police lawfully to intercept all telephone calls and SMS messages to and from this telephone. The intercepted communications included 20 telephone conversations and 12 SMS messages between Mr Burkhardt and the appellant.
5 A police officer, Jamie Douglas Paterson, was involved in the police investigation. He was called by the State as a witness at the appellant's trial. Officer Paterson identified the voices of Mr Burkhardt and the appellant in the 20 telephone conversations in question.
6 On 14 October 2009, at 9.50 am, Officer Paterson drove a motor vehicle past Mr Burkhardt's home. He stopped his vehicle and watched the home. There were a number of vehicles parked in the driveway.
7 At 10.33 am, the appellant arrived at Mr Burkhardt's home. He was in the front passenger seat of a Mitsubishi vehicle being driven by a woman, Evie Ekland. Officer Paterson saw the appellant get out of the vehicle and go into Mr Burkhardt's home.
8 At 11.40 am, Officer Paterson saw the appellant leave Mr Burkhardt's home in the Mitsubishi vehicle. The appellant was in the front passenger seat and the vehicle was being driven by Ms Ekland. Other police officers required her to stop. They searched the vehicle. This initial search failed to find anything of interest. Shortly afterwards, additional police officers arrived at the scene. Further searches of the
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- vehicle were undertaken. Eventually, police found several items of interest under the panelling on the left-hand side of the centre console.
9 These items of interest included a bag containing methylamphetamine. The drug had been divided into two quantities. When the methylamphetamine was analysed it was found that the two quantities each weighed 14 g. One quantity had a purity of 15% and the other had a purity of 19%. Other items found included a pipe, which had methylamphetamine residue in it; a cigarette box containing a small set of digital scales; some empty clipseal bags; and another quantity (1.1 g) of methylamphetamine.
10 The appellant was taken to Rockingham police station for questioning. He participated in a video-recorded interview with police. Later that day, the appellant was charged with the offence in question.
The transcript of the 20 intercepted telephone conversations
11 The State arranged for the preparation of a transcript of the 20 intercepted telephone conversations and some of the SMS messages. It was made available to the defence before the commencement of the trial.
12 At a directions hearing on 19 November 2010, defence counsel objected to the transcript being given to the jury as an aide-mémoire. She submitted that the provision of the transcript was unnecessary and, in addition, it contained 'small errors' (ts 43: 19/11/2010).
13 At the directions hearing, the trial judge requested defence counsel to inform him 'by Monday morning' (that is, the morning of 22 November 2010) as to any specific parts of the transcript which she contended were inaccurate (ts 81: 19/11/2010). Defence counsel said she would do so (ts 81: 19/11/2010).
14 The trial commenced on 22 November 2010. Defence counsel did not inform the trial judge, either by the morning of 22 November 2010 or during the trial, of any specific parts of the transcript which she contended were inaccurate.
The tendering of a computer disk containing the telephone conversations and the use of the transcript at trial
15 At trial, in the course of Officer Paterson's evidence, a computer disk containing the 20 intercepted telephone conversations was played to the
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- jury (ts 154 - 160). The prosecutor tendered the disk as exhibit 14 (ts 160).
16 During the trial, extensive reference was made, without objection by defence counsel, to the transcript of the 20 intercepted telephone conversations. The transcript was attached to a table which set out, in summary form, the date, time and other details of the telephone conversations and, also, some of the SMS messages. Officer Paterson and the appellant were examined-in-chief and cross-examined on the table and the transcript, without objection by defence counsel. The jury was provided with copies.
17 Shortly after the commencement of Officer Paterson's evidence-in-chief, the following exchange occurred between the trial judge, the prosecutor and defence counsel, in the presence of the jury, in relation to the provision of the table and the transcript to the jury:
DWORCAN, MR: Your Honour, what I might do at this stage, and I've indicated this to my friend is to distribute for members of the jury that document as well as transcripts. I appreciate I haven't played the calls yet, but I'm going to very shortly.
SCOTT DCJ: All right. Well the jury probably ought not - I take it, Ms Chong, there's not going to be any objection to the document as it is presently compiled being made available to - it being an exhibit, I should say, in due course?
CHONG, MS: I would object to it being an exhibit, but I have no problems to - the transcripts being made available to the jury to assist them when the calls are being played as an aide-memoire.
SCOTT DCJ: Any objection to it going in - going before the jury now to assist the jury in the course of this evidence?
CHONG, MS: I think the documents should only be distributed to members of the jury at the time when the calls are being played, otherwise the jury may be distracted.
SCOTT DCJ: Mr - - -
DWORCAN, MR: The jury can simply be told, 'Don't look at the document yet.'
SCOTT DCJ: Well, if they're not going to look at the document yet then we won't give it to them yet.
DWORCAN, MR: Well - but that - but that page, your Honour, they'll have it closer - - -
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- SCOTT DCJ: I think - I think if in the event that - let's separate the documents.
DWORCAN, MR: Very well.
SCOTT DCJ: This witness is giving some evidence about the calls themselves which are on the document camera. I have no - no reason why they shouldn't have the top page, Ms Chong?
CHONG, MS: There's no reason, it's only - - -
SCOTT DCJ: It's an aide-memoire.
CHONG, MS: Yes, and it's information gathered from the transcript itself, and - - -
SCOTT DCJ: I don't have a problem with any of that, but whilst this witness is talking about these numbers, they're on the document camera, the jury can have the top page?
CHONG, MS: Yes.
SCOTT DCJ: All right. Just - let's deal with it sequentially.
Just the top page, thank you Mr Usher.
Ladies and gentlemen, what all - what we're going to do is that certain documents are going to be exhibited as part of the evidence at the trial. Other documents are going to be made available to you as an aid to - for your assistance. This is one of those documents. It is a - it's a copy of the document you'll see on the document camera, or you - until my usher knocked it off, it was on the document camera (ts 83 - 84).
18 Officer Paterson said in evidence-in-chief that he had listened to the telephone conversations and he had reviewed the transcripts for accuracy (ts 91 - 93). He also said that, as far as he was aware and based on his having listened to the calls, the transcripts were accurate (ts 93). Officer Paterson was not cross-examined on this evidence.
19 When the transcript was given to the jury, during Officer Paterson's evidence-in-chief, the trial judge said:
SCOTT DCJ: All right.
Now, ladies and gentlemen, my usher is going to distribute to you some transcripts and then the prosecutor, Mr Dworcan, is going to play some DVDs - a DVD with respect to the actual calls. Now, these documents are not exhibits. They are merely what are called aide-memoires - aide-memoire to you. They are just to assist you because
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- they are a transcript of the calls that you're about to hear. But the - Mr Usher, there's a gentleman there - - -
THE JUROR: I think we're one short.
SCOTT DCJ: We're one short. Thank you.
Now, ladies and gentlemen, be aware and I will make reference to it again, but the evidence is going to be the DVD that you will hear. The documents that you have in front of you are just an easier means or an easy means for you to follow what's been said during the course of these calls (ts 92).
The appellant's case at trial
20 The appellant gave sworn evidence in his own defence at trial.
21 The appellant's case was that he was a heavy user of amphetamines on a daily basis. Mr Burkhardt was his supplier. According to the appellant, he knew nothing about the 28 g of methylamphetamine that had been hidden in the Mitsubishi vehicle until he heard police officers talking about it at Rockingham police station. During his evidence, the appellant gave explanations about the intercepted telephone conversations and SMS messages, and endeavoured to place an innocent interpretation upon them.
22 Defence counsel called Ms Ekland (the driver of the Mitsubishi vehicle) as a witness. The trial judge granted her a certificate under s 11 of the Evidence Act 1906 (WA). Ms Ekland said in evidence that the 28 g of methylamphetamine was her property, and she had purchased it on credit from Mr Burkhardt.
The trial judge's ruling as to the provision of the transcript to the jury
23 On 26 November 2010, the trial judge delivered his summing up to the jury. His Honour decided that the transcript of the 20 intercepted telephone conversations and some of the SMS messages should be given to the jury as an aide-mémoire. His Honour gave the jury this direction about the transcript:
While I'm at it you will have received as has been the case early in this trial, the transcript of the intercepted calls, which were exhibited again. As I - I just want to remind you that that's not the evidence. That's an aid to you, because it allows you to decipher more easily the calls. But the calls themselves are those that are contained on the DVD, that is the evidence, not the transcript (ts 551: 26/11/2010).
24 Later in his summing up, his Honour told the jury:
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- [W]hen you listen to the intercepted calls and you look at the SMSs, the State says - between [the appellant] and Mr Burkhardt - the State says it's clear that they were, in the main, referring to the supply by Mr Burkhardt to [the appellant] of methylamphetamine which [the appellant] would sell, and that they demonstrate, and it's clear from that, and you should find and could find, I should say, that [the appellant] had arranged to go to Mr Burkhardt's house on 14 October to pick up a quantity of methylamphetamine (ts 557: 26/11/2010).
25 After the trial judge had completed his summing up and the jury had retired to consider its verdict, defence counsel submitted to his Honour that the transcript should be retrieved from the jury. The following exchange occurred:
CHONG, MS: Sir, the aide-memoire of the intercepted calls should be retrieved from the jury.
SCOTT DCJ: Well, the aide-memoire really is - why should that be retrieved from the jury?
CHONG, MS: Because it's not an exhibit and nothing should accompany the jury to the jury room unless it is an exhibit.
SCOTT DCJ: I'm not sure about that, I must say.
…
CHONG, MS: … the aide-memoire is only being used as an aid during the trial process to enable the jury to follow the trial.
SCOTT DCJ: Well, why should the jury not have that assistance when they are considering the DVD again? This is a DVD where the voices are not necessarily clear and there's no issue about accuracy.
I'll tell you, what I'll do, the answer is that I've always taken the view that the aide-memoire stays with the jury. What I'm prepared to do though, Ms Chong, is to give that some immediate consideration and if there's something that arises from it and I take a different view then I will deal with it (ts 572: 26/11/2010).
26 His Honour did not subsequently express a different view.
The proposed ground of appeal
27 The proposed ground of appeal, as set out in the amended appellant's case, reads:
The learned trial Judge erred in the exercise of his discretion by providing to the jury when they retired to consider their verdict, over objection, a
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- copy of the transcript of telephone intercept product adduced at trial by the prosecution ('the aide memoir') in circumstances that led to a miscarriage of justice.
28 Two particulars are provided of the circumstances that occasioned the alleged miscarriage of justice. The first particular asserts that the aide-mémoire was 'inaccurate and/or deficient such that it unfairly prejudiced the Appellant's Case'. The second particular asserts that the aide-mémoire 'caused the jury to focus undue attention on particular statements in the transcript of the aide memoir rather than evaluating the whole of the evidence'.
Particular 1 of the proposed ground of appeal: its merits
29 The appellant has filed an application dated 2 September 2011 for an order that he be entitled to rely on the affidavit of James Miln Thomson sworn 2 September 2011 in support of his application for leave to appeal.
30 In the affidavit, Mr Thomson deposes that on 12 August 2011 he listened to the disk containing the 20 intercepted telephone conversations that was tendered by the prosecutor at the trial and became exhibit 14. Mr Thomson states that he compared what he heard from the disk with the transcript of the telephone conversations in question. According to Mr Thomson, there were a number of inconsistencies between what he heard on the one hand and the transcript on the other. Details of these inconsistencies are set out in his affidavit.
31 Mr Thomson's evidence is, without doubt, new (as distinct from fresh) evidence. Where an accused has been convicted, an appellate court will only allow an appeal, on the basis of new as distinct from fresh evidence, if the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
32 Particular 1 of the proposed ground of appeal is devoid of merit.
33 First, defence counsel, who is an experienced criminal trial lawyer, did not inform the trial judge (as requested by his Honour on 19 November 2010), either before or during the trial, of any specific parts of the transcript which she contended were inaccurate. This indicates that,
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- on defence counsel's assessment, there was no material inaccuracy in the transcript.
34 Secondly, his Honour said, after he had completed his summing up and defence counsel had submitted that the transcript should be retrieved from the jury, that there was 'no issue about [the] accuracy' of the transcript (ts 572). Defence counsel did not disagree. This reinforces the impression that the appellant's experienced defence counsel was of the view that there was no material inaccuracy in the transcript.
35 Thirdly, defence counsel did not cross-examine Officer Paterson in relation to the accuracy of the transcript.
36 Fourthly, the appellant did not give any evidence, and defence counsel did not attempt to adduce any evidence from him, as to any material discrepancies between the disk containing the relevant telephone conversations on the one hand and the transcript of those conversations on the other.
37 Fifthly, the appellant gave evidence about the meaning conveyed by the telephone conversations in question. He put an innocent interpretation upon them.
38 Sixthly, I am satisfied, after examining Mr Thomson's affidavit, that none of the discrepancies set out by him is material. Many of the discrepancies relate to parts of the conversations which the transcript notes are 'indistinct'. It is apparent that, in these instances, Mr Thomson has sought to decipher the indistinct passages.
39 Seventhly, Mr Thomson's affidavit does not satisfy the test for the admission of new evidence on appeal. But even if it did, any inaccuracies or deficiencies in the transcript did not prejudice the appellant's case. It is not reasonably arguable that the discrepancies to which Mr Thomson refers, when evaluated in the context of the issues at the trial, including the appellant's defence and the manner in which his case was run, occasioned a miscarriage of justice.
Particular 2 of the proposed ground of appeal: its merits
40 Section 110(1) of the Criminal Procedure Act 2004 (WA) provides:
On the application of a party or on his or her own initiative, the judge may order that the jury be given, on any conditions the judge orders, any record (including any document in the court's record) or thing that may assist the
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- jury to understand the issues or the law, or to understand and assess the evidence.
41 Section 110(1) conferred on the trial judge a discretion to provide the jury with the transcript as an aide-mémoire. It is therefore necessary for the appellant to establish that his Honour's exercise of the discretion was vitiated by error.
42 Particular 2 of the proposed ground of appeal is unmeritorious.
43 First, it is not unusual, when a recording of intercepted telephone conversations is tendered in evidence at a criminal trial, for a transcript of the recording to be provided to the jury as an aide-mémoire.
44 Secondly, in the present case, the provision of the transcript to the jury did not solely assist the State. In a case such as the present where the State and the accused contended that the conversations bore a different meaning, the provision of the transcript assisted both of them. Also, it enabled the jury to have a better understanding of what was being said by the parties to the conversations.
45 Thirdly, in the present case, the disk containing the relevant conversations was played to the jury, and the disk was received as an exhibit. The trial judge directed the jury that the disk containing the relevant conversations was the evidence and that the transcript was not the evidence.
46 Fourthly, as I have mentioned in the context of particular 1 of the proposed ground of appeal, the transcript was used extensively during the trial, without objection by defence counsel, in examining and cross-examining some of the witnesses.
47 There is no basis for any apprehension that the provision of the aide-mémoire to the jury may have caused it to focus undue attention on particular statements in the transcript rather than evaluating the evidence as a whole.
Conclusion
48 The proposed new evidence from Mr Thomson does not materially advance the appellant's case. The application for leave to adduce this additional evidence should therefore be dismissed.
49 The proposed ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused, and the appeal dismissed.
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50 MAZZA JA: I agree with Buss JA.
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