Owen v The Queen
[2002] TASSC 102
•4 November 2002
[2002] TASSC 102
CITATION: Owen v R [2002] TASSC 102
PARTIES: OWEN, Gregory Meredith
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 118/2000
DELIVERED ON: 4 November 2002
DELIVERED AT: Hobart
HEARING DATE: 4 November 2002
JUDGMENT OF: Cox CJ, Underwood and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Practice: After criminal appeal legislation - Miscellaneous matters - Tasmania - Procedure - Extension of time, notice of appeal and abandonment - Extension of time - Whether arguable case for appeal - Relevance of missing documentation.
Criminal Code (Tas), s418(2).
Aust Dig Criminal Law [1059]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: T J Ellis SC
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 102
Number of paragraphs: 19
Serial No 102/2002
File No 118/2000
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
BLOW J
4 November 2002
Order of the Court:
Application refused.
Serial No 102/2002
File No 118/2000
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
4 November 2002
This is an application for an extension of time to appeal against the applicant's conviction on five counts of perverting justice in relation to interference with witnesses called on a first trial in which he was charged with, but acquitted of, several counts of indecent assault. The application was initially refused by a single judge and it now comes before the Court for determination pursuant to the Criminal Code, s418(2).
Having regard to the concessions in the Crown's outline of submissions, it seems to be common ground that the delay in seeking to appeal has been satisfactorily explained. It was to a large extent due to erroneous beliefs on the part of the Crown that the applicant had taken up a number of exhibits tendered on his first trial, and on the part of the applicant that the Crown had taken them up. The true position was that the exhibits had remained in the possession of the District Registrar in Launceston all the time and only came into the applicant's possession after he was released from prison.
The real issue in this case is whether or not the applicant has demonstrated that he has any arguable case for appealing. It is well established that if there is no merit in an appeal, the grant of an extension of time within which to appeal will be an exercise in futility.
The applicant has raised six grounds of appeal in his proposed notice and it appears from the hearing before the primary judge that there are two further matters he wishes to agitate. His first ground of appeal is that the judge erred in permitting perjured evidence to be given on his second trial. The issue on the second trial was whether the applicant had persuaded, or attempted to persuade, certain witnesses to give evidence about his whereabouts on 3 July 1996, the date on which the indecent assaults were alleged to have occurred, and to provide him with an alibi in respect of that particular matter. It was for the jury to determine whether or not they believed those witnesses who retracted, for whatever reason, their earlier testimony or part of it. There is no substance in this ground of appeal.
Secondly, it is alleged that the learned trial judge erred in allowing altered tape recordings into evidence. No error has been demonstrated here. It is not uncommon, and in the interests of justice, that tape recordings of interviews with police or surveillance tapes and the like should be edited so as to exclude irrelevant material from the jury's consideration, or more importantly, material which is prejudicial to an accused person. Nothing has been advanced which gives any reason for supposing that the tapes were so edited as to create a false or prejudicial version. I note from the transcript of the application to Slicer J that the applicant conceded that he was represented by counsel at the trial and that the edited tape was admitted without objection by counsel. It is not appropriate for a Court of Appeal to second guess the wisdom of counsel's decision on matters of that nature.
The third ground of appeal is that the learned trial judge failed to instruct the jury to disregard perjured evidence. The trial judge could only direct the jury that in certain circumstances the jury should carefully scrutinise the evidence of a particular witness. As to what reliance could be placed on it, that was a matter for the jury. It was not for the judge to determine issues such as whether or not a witness was lying, for that was exclusively a jury matter. There is no substance in that ground of appeal.
Fourthly, it is alleged that the prosecutor led evidence which he knew to be perjured. There is no basis for this bald assertion; no material has been advanced to indicate that the prosecutor knew the evidence was perjured, nor that in fact it was perjured.
Fifthly, the defence counsel is alleged to have refused to call witnesses when instructed to do so. Once again, subject to certain clear exceptions, it is a matter for defence counsel to conduct the case as he considers appropriate. Where there is a claim that counsel has refused explicit instructions to call certain witnesses, the person making such a claim must produce evidence to that effect so that counsel may, in fairness, have the opportunity to respond. Despite the Court's frequent warnings of the need to do this in this particular case, no such material was produced.
Finally, according to the original notice of appeal, reliance was placed on a claim that the verdict was unsafe and unsatisfactory. No analysis of the evidence has been attempted to show the validity of this contention. Nothing has been put to the Court which would enable any assessment to be made in respect of this ground.
The next matter that seems to have been raised before Slicer J when the matter came before him is that there is a claim that there is fresh evidence. This was not persisted in before us and no material showing the existence of fresh evidence has been produced. Accordingly there is no substance in that contention.
The final matter relates to certain missing documents. As to these missing documents, the only question is whether the inability of the applicant to produce them, or any of them, on his trial for perverting justice prejudiced him or caused a miscarriage of justice in relation to that matter.
The first document that he said he was unable to produce was a document which consisted of a statement of one Andrew Roach. Mr Roach, it would appear, was never accepted by the Crown as a witness of the truth. He gave evidence at the first trial before Crawford J that he had cashed a cheque for the applicant on 3 July and deposited it on the same day. He was called by the applicant on that trial. He was not, however, called on the trial before Evans J, the subject of this proposed appeal. There does not seem to be any reason why he could not have been called. On the face of it, there was nothing to stop the applicant calling Mr Roach on the second trial. He was obviously in his camp and he gave evidence favourable to him on the first trial and the cross-examination on that trial by the Crown caused no resiling by him from his earlier statement.
As to the second document, this is a document purporting to be a statement by or proof of evidence of one Leo Joseph Payne. He had given evidence on the first trial before Crawford J. Before Evans J, he was called by the Crown and he produced his diary note and this was put in by the Crown. He said that Mr Owen had asked him to put an entry in his diary for 3 July, but he had no memory of that being the day Mr Owen had been with him. It was common ground on the second trial that he had made a prior statement to the same effect as annexure "B" to Mr Owen's affidavit. As it happened, the jury disagreed on this count in any event and the Crown filed a nolle prosequi, so it is hard to see how any miscarriage of justice could have occurred in respect of Payne.
As to the third document, document "C" annexed to the affidavit, on the trial before Crawford J, a witness called Porter was called by the Crown after the notice of alibi was published to the jury and he denied that the accused was with him on 3 July and said that it was on 4 July that he had seen him. On cross-examination by the defence, he confirmed having made a statement to a solicitor in Launceston, Mr Bruce Crawford, to the effect that he had been with Mr Owen on 3 July. A statement to similar effect signed in the presence of one, Mace, was put to him and was tendered as "D1" on that first trial and that is the document which is marked "C" annexed to the applicant's affidavit and about the absence of which he now complains. On the trial before Evans J, Porter was called to say that he had, with some coaxing perhaps on the part of the applicant, made the statement and thought that it was true at the time, but that when he realised that it was the next day that this incident had occurred, he advised the police and made a fresh statement. Thereafter he said he had been threatened by the applicant, as well as abused, for changing his statement. On the second trial, in cross-examination, the document was not shown to him because, in fact, it was still in the District Registrar's possession; but Mr Richardson, on behalf of the applicant, put to him the substance of it and he confirmed that he had made it, but he continued to claim that it had been made in error.
The next document, the absence of which it is said caused some miscarriage of justice, is a document marked "D" annexed to the applicant's affidavit. It is a document that apparently was created by the complainant in the indecent assault proceedings and it was produced on the first trial and shown to her and she agreed that she had drawn the cartoon on it and written the words alongside it. She denied any suggestion that she had sent this document to Mr Owen some time after the alleged assaults and it seems to have been the Crown case that it was left in the car and taken possession of by Mr Owen at some later stage. Its significance seems to be that it would suggest inconsistency with her claim that she did not consent to the acts of indecency which she alleges the applicant had committed upon her that day. It may seem strange that she should have drawn such a cartoon and caption if she was as frightened of him and as reluctant to engage in any sexual conduct with him of the kind she claimed had been inflicted upon her. But it has no significance on the subsequent trial. The applicant was not accused of any perversion of justice in relation to the use of that document, or in relation to any attempt to change her evidence. It may have been a useful tool on the first trial to undermine her credibility, but she was not called on the second trial and the issue on the second trial was not whether indecency had occurred in the car, but rather whether he was or was not at the place of alibi, that is to say, his own premises at Prospect, at the relevant time.
The final document the absence of which is complained of, is a copy of one Saunders' log book and the relevant entry is one dated 3 July 1996 in which he is recorded as noting "Pruning pines. Doctor. Neck. City Ford radio". Mr Saunders was called on the first trial before Crawford J by the defence and said that on 3 July he was pruning pine trees and that day had a medical appointment to have a sweat gland removed in the morning. He said he returned home and then decided to go to Mr Owen's wrecking yard (which is named City Ford) and that he got there about 3pm and saw Mr Owen there. However, on the trial before Evans J, he was called by the Crown and said that Mr Owen had told him to fill in the diary because he needed him to be at his place at a certain time. He said he did go to Mr Owen's premises that day later in the afternoon, but he did not recall seeing Mr Owen there. It seems to me that there is not any significant argument that he did go to City Ford in the afternoon of 3 July, but he disputed that he was there between 3pm and 4pm and said it was 4pm - 4.30pm. Mr Owen's inability to produce the log book or diary does not seem to advance the matter one way or the other because no timings are mentioned and the entry is consistent with both versions, as it makes no mention of what time he was there, or whether or not he saw Mr Owen.
In my opinion, the fact that the documents were not available to the applicant on his second trial could not have caused him any prejudice and, in my opinion, the application for an extension of time should be refused. The application is dismissed.
File No 102/2002
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
4 November 2002
I agree with the order proposed by the learned Chief Justice for the reasons he has just expressed.
File No 102/2002
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
4 November 2002
I agree and have nothing to add.
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