Papalii v The State of Western Australia

[2005] WASCA 246

PAPALII -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 246

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 246
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:133/2005	Heard:	12 DECEMBER 2005
Coram:	ROBERTS-SMITH JA	Delivered:	12/12/05
No of pages:	11	Judgment Part:	1 of 1
Result:	Application for leave to appeal refused Appeal dismissed
Category:	B
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Parties:	REBECCA TILAIMA PAPALII THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Appeal Trial by Judge alone Application for leave to appeal against sentence Murder Self­represented applicant New or fresh evidence on appeal Whether adequate weight given to plea of guilty Whether reasonable prospect of succeeding
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PAPALII -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 246 CORAM : ROBERTS-SMITH JA HEARD : 12 DECEMBER 2005 DELIVERED : 12 DECEMBER 2005 FILE NO/S : CACR 133 of 2005 BETWEEN : REBECCA TILAIMA PAPALII

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MCKECHNIE J

File No : INS 128 of 2000

Catchwords:

Criminal law and procedure - Appeal - Trial by Judge alone - Application for leave to appeal against sentence - Murder - Self­represented applicant - New or fresh evidence on appeal - Whether adequate weight given to plea of guilty - Whether reasonable prospect of succeeding

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Legislation:

Nil

Result:

Application for leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Mr M Mischin

Solicitors:

Applicant : In person
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 3)

1 ROBERTS-SMITH JA: I will deal first with the application for leave to present what the applicant describes as new evidence. This application was filed on 2 December 2005. It seeks orders that three categories of material be admitted for consideration as evidence in the applicant's appeal against sentence. To set that in some sort of context, therefore, it is necessary for me to describe the history of the matter briefly and the nature of this appeal.

2 The early history of the matter or the history of the matter is somewhat protracted. It follows the killing of Cleon Jackman, a young Aboriginal boy, over six years ago. There was a preliminary hearing in 2000, as a consequence of which this applicant and her co-offenders, James Wayne Stapleton and a female by the name of Bardsley, were committed to stand trial in the Supreme Court on a charge of wilful murder and deprivation of liberty.

3 That trial took place in May 2001 and took some four weeks, following which all three offenders were convicted of deprivation of liberty which at that time was count 1 on the indictment then before the court and wilful murder.

4 On 30 May 2001 Miller J sentenced Stapleton to strict security life imprisonment with a minimum term of imprisonment of 23 years before eligibility for parole. Bardsley was sentenced to life imprisonment with a minimum of 18 years before eligibility for parole, and the applicant was sentenced to life imprisonment, also with a minimum of 17½ years before eligibility for parole.

5 The Crown case was that Stapleton had played by far the greater role on the commission of the offences. All three of the offenders were also sentenced to five years' imprisonment for the deprivation of liberty offence.

6 Stapleton appealed against his conviction and sentence and both appeals were dismissed by the Court of Criminal Appeal on 4 December 2002.

7 Bardsley lodged an appeal against conviction in 2003, some 22 months out of time. That appeal was not heard until December that year. In March 2004 the court requested further submissions from both parties in relation to an additional ground of appeal which the court members had themselves identified following oral arguments the previous day. Consequently, further oral submissions were made on that ground in August 2004, and on 27 August by a majority, the grounds of appeal

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formulated by the applicant Bardsley were dismissed but the appeal was allowed on the ground which had been identified by the court. The actual written reasons of the court were not handed down until November 2004.

8 Also in 2003 this applicant lodged an appeal on precisely the same grounds of appeal as those that had been lodged earlier that year by Bardsley even though, as I have indicated, those original grounds of appeal had subsequently been dismissed. Nonetheless, the prosecution had to accept that the successful ground of appeal formulated by the court in Bardsley's appeal had equal application to this applicant and on that basis the prosecution conceded the appeal; that is, the applicant's appeal, on that ground before the Court of Criminal Appeal in February 2005.

9 Following the outcome of those appeals, offers were made by Bardsley and the applicant to plead guilty to the crime of murder in full satisfaction of count 2 on the May 2001 indictment. Those offers were accepted, and that is how the applicant came to be sentenced before McKechnie J following her plea to the offence of murder on 19 July 2005.

10 At the very outset of those proceedings, the prosecution withdrew the original indictment containing the two counts and of course the second count, being that of wilful murder, and presented an indictment charging only murder to which the applicant then pleaded guilty.

11 The applicant's appeal notice was filed on 8 August 2005 and complains of the sentence imposed upon her of life imprisonment with a period of 12 years to be served before eligibility for parole. The sole ground of appeal which is stated on the notice is that the sentence imposed was manifestly excessive. That must, of course, and can only be a reference to the period to be served before eligibility for parole, as the sentence of life imprisonment is mandatory on a conviction for murder.

12 I return now to the application for new evidence. That is described as new evidence which has not been presented in court before and is said to consist of records of Telstra triple zero calls made by the applicant for urgent assistance, a report by Ms Battia Fisher, a counsellor with the Sexual Assault Referral Centre, in relation to the applicant and copies of documents currently in a court case in New Zealand and forwarded by the applicant's mother, Mrs Jean Beardsall. These documents are said to relate to an action recently begun against the applicant's former stepfather by the New Zealand Police Service and relate directly to the applicant in this appeal.

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13 As I understand it, the Telstra records relate to telephone calls made in April and on occasions in May to the police or emergency services number from the house in which the offence occurred, being calls seeking assistance in respect of burglaries or break-ins and other activities inside the house of Cleon Jackman.

14 There is no doubt that the position before McKechnie J, as indeed it had been at the previous trial before Miller J, was that it was common ground between all concerned that telephone calls of that nature had been made and that the great incentive, if that is an apt expression for what the three offenders did to Cleon Jackman, was essentially his activities in breaking into the house and otherwise.

15 There having been no dispute about that, it seems to me these records would add absolutely nothing to what was or ought to have been before the court. Even were they found to be fresh evidence, which they clearly are not, I would not grant leave to adduce that material as evidence to be considered by the Court of Appeal on this sentence application. Indeed, none of the material to which reference is made could be described as fresh or new evidence, certainly not fresh evidence as the law recognises it.

16 The letter from Ms Battia Fisher speaks of her contact with the applicant since June 1999 during her incarceration and sets out essentially her opinion based on her account of what the applicant has said to her from time to time. It goes so far as to indicate that in her personal opinion the applicant reacted out of fear and helplessness due to re-traumatisations and memories of the inability to protect herself and her young brother arising out of her childhood experiences at home.

17 I am of course summarising that extremely but that is the general nature of the content of Ms Fisher's letter. That may be new in the sense of observations and opinions formed and expressed by Ms Fisher but it is certainly not fresh evidence as the law recognises it and it is not something which the applicant could say was not within her knowledge or control or available to her for her sentencing before McKechnie J.

18 The material sought to be ventilated is something which was not only readily available to the applicant and within her knowledge at the time of her plea, especially since she had already then been through the first trial and conviction and subsequent appeal before the plea to the lesser charge, but it was material one would ordinarily have expected to have been brought forward and relied upon by her at that time. Furthermore, much

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of what is in Ms Fisher's letter seems to me to be exculpatory hearsay and expressions of opinions outside any area of expertise which Ms Fisher may have. I would not grant leave to the applicant to adduce that material on her appeal against sentence based on the ground that the sentence was manifestly excessive.

19 The third category of material is the copies of documents said to be currently in a court case in New Zealand and forwarded by the applicant's mother. These statements are very similar in content to that which is in Ms Fisher's letter and go to support the assertions of fact which she advances, but even though the statements themselves may be recent in the sense of having been recently created for some other purpose in New Zealand, the information is essentially from the applicant's mother and brother, both of whom could obviously have provided it for the plea.

20 It seems to me that the interests of justice would not be served by allowing the applicant now to, in effect, adduce material before the Court of Appeal which was readily available and which, had it been sought to be relied upon then, could easily have been done so. That brings me back to the application for leave to appeal itself. The applicant's case was filed on 14 November 2005. All of the material, as I have been told, indicates that it was prepared by Mr Chadwick on the applicant's behalf. What are described as "appellant's grounds of appeal, 15 paragraphs," which I take essentially to be particulars to the sole ground of appeal to which I have referred, it is as well that I set them out:

"(1) The Crown states, TP 1539 that the case in 2001 was considerably reliant on two juvenile witnesses aged 15 and 17 and that the appellant and her two co-accused were culpable pursuant to s 7 and s 8 of the Criminal Code. The evidence given at trial by these two juveniles and others in relation to the appellant is different in many areas of fact to what the crown alleged had occurred. Ground 1, errors of mixed fact and law.

(2) on the first count in the indictment the Crown states, TP 1536, the appellant and her two co-offenders were convicted of deprivation of liberty. The evidence given at trial in 2001 and 2005 relating to it show the indictment, as read out, should not have been applicable to the appellant under section 7 and section 8 of the Criminal Code as she was not part of and made no decisions in the

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pursuit, abduction and tying up of Cleon Jackman. Ground 2, error of mixed fact and law.

(3) the Crown states, TP1540, that the three co-accused decided to take the law into their own hands and that the appellant and Bardsley had both stated to a number of people what they had in store for Cleon if they catch him. This is incorrect as applied to the appellant and is shown in the evidence given at trial. Ground 3, error of fact.

(4) the Crown states, TP1540 to 42, word that Cleon was in their street got back to the three offenders, and two of the offenders with the two juveniles went after him while the appellant remained in the house. The evidence given at trial does not support the crown's statement of the appellant having knowledge of this. Ground 4, error of fact.

(5) the Crown states, TP1542, that after Cleon was hogtied and unable to move or defend himself in the lounge at 3 Petry Street, the appellant confirmed that the boy was the one that had been breaking into the house and that all three offenders then took turns in beating the boy. This implies that the appellant beat Cleon more than once. The evidence at trial shows this is incorrect. Ground 5, error of fact.

(6) the Crown states, TP1543, that the appellant got a knife from the kitchen drawer and held it against Cleon's throat. The evidence at trial gives a different version of these events than that stated by the crown. Ground 6, error of fact.

(7) the Crown states, TP1545, that the appellant was present while Stapleton shoved toilet paper into Cleon's mouth, gagged him and placed plastic bags over his head and tied them with tape. The evidence at trial does not support this statement. Ground 7, error of fact.

(8) the Crown states, TP1565, that this was clearly a racially motivated crime and that the two female offenders were fully aware and complicit in the inflicting of grievous bodily harm upon Cleon. The evidence given at trial does

(Page 8)

not support this statement as being applicable to the appellant. Ground 8, error of fact.

(9) the appellant was the only person to accept any responsibility when asked to plead to the second count in the indictment in 2001 and did so by pleading guilty to being an accessory after the fact to wilful murder, TP91, which the Crown rejected. This resulted in his Honour Miller J entering a not guilty plea on the appellant's behalf, TP92. The learned trial Judge was, on appeal, found to have erred in directing the jury pursuant to section 8 of the Criminal Code and this excluded any possibility of a verdict based on the appellant's actual involvement, as shown in the evidence, being returned. Ground 9, error of mixed fact and law".

21 The nine purported grounds of appeal, and I say purported because none of them is a ground of appeal, are, in essence, argumentative assertions to do with the facts of the matter, as Mr Chadwick (to whom I earlier gave leave to speak on behalf of the applicant) himself frankly conceded to me in the course of his submissions today. He explained that the grounds in his submissions are based on what he says are differences between some of the evidence given at trial in 2001 and some of what was put to the sentencing Judge on the applicant's plea before McKechnie J on 19 July 2005.

22 Each is an argumentative assertion to do with the facts of the matter - claiming essentially, as I have said, that in some particular respects what was put to the sentencing judge was in conflict with or unsupported by evidence given at the applicant's original trial on the charges of deprivation of liberty and wilful murder. Other than to describe each of them as asserting that the sentencing judge erred when sentencing the applicant by taking incorrect facts into account, it is not possible to cast the purported grounds in a proper way.

23 It is of critical importance in this application that the applicant was, at the time she pleaded guilty to the offence of murder, represented by counsel. It is also critical to appreciate that in accordance with s 617A of the Code the state prosecutor outlined the material facts to his Honour. Counsel for the applicant then made a plea in mitigation on her behalf. Counsel made specific submissions about what view of the facts the Judge should take insofar as they related to the applicant's culpability. Unless some matter of fact asserted by the State prosecutor was disputed by the

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applicant's counsel, the Judge was entitled to take it into account, and it is not open to the applicant to now seek to advance a ground of appeal or a particular of appeal claiming that she should have been sentenced on some different factual basis.

24 I deal with the grounds individually.

Ground 1:

25 There is no particularisation of any relevant respects in which it is claimed the evidence given at trial by the two juveniles and others in respect of the applicant is different to what the Crown alleged on 16 July 2005 to have occurred.

26 In any event there is no point which can be made about that as none was taken before the sentencing Judge by counsel for the applicant.

Ground 2:

27 This ground seems to be a complaint that the applicant should never have been convicted of the offence of deprivation of liberty. That, however, was a count on the original indictment which was withdrawn at the beginning of the hearing on 19 July 2005. On that day the applicant and the co-offender Bardsley each pleaded guilty to murder which was the only count on the indictment upon which they were then presented.

28 Again in the course of his oral submissions to me this morning Mr Chadwick I think acknowledged that he was proceeding on something of a misapprehension about that and indicated that as the deprivation of liberty charge was not on the indictment to which the applicant pleaded guilty then the submissions in respect of the deprivation of liberty offence fall away. That must be so. Ground 2 has nothing to do with the present proposed appeal.

Ground 3:

29 This appears also to relate to an offence of deprivation of liberty; alternatively, to the extent that I read it as going to the applicant's culpability in the murder of Cleon Jackman, it was relevant. In stating the facts to the Judge for sentencing purposes the state prosecutor said at t/s 1540:

"… the offender Bardsley had moved back into the house at the beginning of May. Prior to 11 May both the female offenders had stated to a number of different people what they had in

(Page 10)

store for this young boy should they ever catch him. Just one month before the death before Cleon Jackman the offender Bardsley had told a police officer, 'It doesn't really matter if you catch Cleon because my boyfriend is coming up from Bunbury and he will sort him out.' Just six days before the boy's death, Bardsley told another police officer that she was thinking about ringing up some girlfriends and for them to get hold of baseball bats and wait for the boy to break in again, and then give him a hiding.

As things turned out, she ignored the police officer's response to allow the police to handle it. It was also evident in the week prior to the boy's murder the two offenders before your Honour would drive around the suburbs looking for Cleon Jackman. On one occasion they actually showed a teenage boy who lived in the area weapons that they had in the car, which comprised of a piece of wood and a steering lock."

30 That had an obvious bearing on the applicant's culpability in the murder and again the applicant's counsel did not dispute that as a matter of fact and that being so it is not something which can now be contested on appeal.

Ground 4

31 This ground evinces the same problem. This was not a sentencing following a trial and conviction upon which the sentencing Judge had to make his own assessment of evidence that he had heard in the course of a trial and form a particular view about it, applying the correct standard of proof. It was a sentencing upon a plea of guilty to a lesser offence than that upon which the applicant had earlier been tried and convicted.

32 The sentencing Judge had not heard the evidence in the earlier trial and was in no position to make any findings in relation to it nor was he required to. His task was to sentence the applicant on the facts and legal submissions as presented to him on the sentencing hearing by the state prosecutor and by the applicant's counsel. That is what he did.

33 There might well have been differences between the various accounts given by the witnesses at the first trial and the facts as put to the sentencing Judge but what his Honour was required to do and all that he could do was sentence the applicant on the basis of what was put before him by both counsel.

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Grounds 5 to 8:

34 These all fall into the same category. They assert the sentencing Judge made an error of fact when sentencing because there was some difference between the facts told to him and evidence at the applicant's first trial. The grounds are unsustainable.

Ground 9:

35 I do not really understand what this ground seeks to say. It appears to be a complaint that by reason of what occurred in the trial before Miller J the applicant was denied the possibility of a verdict in that trial reflecting some lesser degree of criminal culpability; namely, that of being an accessory after the fact to wilful murder, s 562 of the Criminal Code, for which the statutory maximum sentence would have been 14 years' imprisonment.

36 None of that can possibly give rise to a ground of appeal against the sentence imposed upon the applicant in separate proceedings following her plea of guilty to the offence of murder. Presumably if she had offered to plead guilty to being an accessory after the fact to wilful murder in satisfaction of the indictment charging murder the state would have refused to accept it as they had earlier.

37 She pleaded guilty to murder as the result of negotiations between her counsel and the Office of the DPP to which of course neither his Honour nor I am privy and obtained the benefit of that by way of a reduction in her sentence on account of her plea of guilty. None of these purported grounds of appeal has any reasonable prospect of succeeding.

38 The appeal is accordingly dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005.