R v Grosser No. Sccrm-02-217, Sccrm-02-388

R v GROSSER
[2003] SASC 264
Court of Criminal Appeal: Debelle, Lander and Gray JJ

DEBELLE J The applicant was convicted after trial by jury of the crime of attempted murder and of five counts of endangering life. All of these crimes were committed at Nuriootpa on 3 May 1994. The applicant was sentenced to imprisonment for a period of 22 years with a non-parole period of 18 years.
The applicant has appealed against all of the convictions and against the sentence. His application for leave to appeal was heard by Martin J on 14 February, 21 March, 2 May and 16 May 2003. Leave to appeal against both the conviction and the sentence were refused.
The applicant applies to this Court for leave to appeal against the conviction and the sentence. The application for leave to appeal against conviction relates to some, but not all, of the issues the subject of the application to Martin J.
Two Additional Witnesses
The first ground complains of a refusal by Martin J to allow fresh evidence from a Mr Cole and a Mr Ian Grosser. Mr Cole had sworn an affidavit and had been cross-examined on that affidavit. In that affidavit, Mr Cole said that the man referred to as “Cass” is a violent man and a member of a motor cycle gang. He described two incidents of violent behaviour by Cass. Mr Cole also said that he had seen Cass with a revolver. It was the appellant’s case that he feared Cass and that he believed that it was Cass who had come to his house on 3 May.
There are serious questions whether the evidence is relevant and admissible. For present purposes, it may be assumed that it is. Even with that assumption, the evidence would not have made any difference to the verdict of the jury. I do not think there is a sound basis on which to allow the evidence to be led. There was ample evidence at the trial that the appellant feared that Cass might seek him out and harm him. That was not really in issue. The real issue is whether it was a reasonable possibility that the applicant truly believed that it was Cass who had come to his house on 3 May. This issue was carefully examined by the trial judge in his direction. The evidence which could be given by Mr Cole does not assist in the resolution of that question. The application is not sufficiently arguable. Leave to appeal on this ground should be refused.
Mr Ian Grosser is the applicant’s cousin. He had sworn an affidavit proving a statement made by him to a solicitor. In that statement, Mr Ian Grosser says that the applicant had told him about allegations of corruption he had made to the police and that he thought that the NCA building or police headquarters in Angas Street might be bombed. He also told him about the person called Cass. He also says that he assisted the applicant by sending letters by facsimile to numerous authorities. As already mentioned, there was a good deal of evidence at the trial concerning the man named Cass and that the appellant had informed a number of authorities of his belief or information that the Angas Street Police Headquarters might be bombed and he did so before the bombing of the NCA building. It was common ground at the trial that the applicant had told persons that he was worried about being killed and, in particular, the person called Cass. On the application for leave heard by Martin J, Mr Ian Grosser was available for cross-examination. Before he was called, the applicant was called to explain why he had not sought to lead his cousin’s evidence at the trial. That evidence established that the applicant was aware of the evidence but had overlooked calling Mr Ian Grosser. For the purposes of the leave application, Martin J assumed that the information in the statement provided by Mr Grosser was reliable. He did not think it would have altered the verdict of the jury. As Mr Ian Grosser’s evidence did not take the matter any further, he held that it was unnecessary for him to give evidence. Although this is not an appeal from Martin J, I have set out these matters to explain why Mr Ian Grosser did not give evidence on the application for leave heard by Martin J. In my view, the evidence of Mr Ian Grosser adds nothing to the evidence led at the trial. The applicant fails to satisfy the test to warrant the introduction of fresh evidence. It is not arguable that the evidence would alter the verdict of the jury. The application to adduce the evidence of Mr Ian Grosser is, therefore, refused.
No Legal Representation
The next ground is that the applicant was denied natural justice in that he did not have legal representation. This was a long trial lasting some 10 months. The applicant says that the length of the trial and the issues were such that he could not have a fair trial without legal representation. He also complains that the trial judge denied him an opportunity to obtain legal representation.
On 11 May 2001 Mr Germein informed the trial judge that the appellant was willing to instruct him as counsel. Mr Klotz was engaged as solicitor a few days later. On 5 June 2001 the applicant dismissed the services of Mr Klotz claiming that he was not adequately prepared for the trial which was to commence 20 days later. He also dismissed Mr Germein. The applicant applied for a stay of proceedings but the trial judge refused the application.
Allied with this complaint is a claim that the applicant lacked adequate clerical support for the presentation of his defence. He had clerical assistance but this was not provided until some five to six weeks after the trial had commenced.
The lack of legal representation is essentially a problem of the applicant’s making. The relevant facts and the issues flowing from them are examined in reasons of the trial judge for refusing the applicant’s application for a stay of the trial: R v Grosser [2002] SASC 193. Those reasons show that the judge gave careful consideration to the evidence led on the question whether a stay should be ordered. The judge had regard to the correct legal principles. The findings of fact were open to him. The reasons also show that the trial judge explored every possible avenue to enable the applicant to have legal representation but, because of the applicant’s attitude, could not do so. There is no arguable error which justifies granting leave to appeal. It must be added also that the trial judge extended every reasonable opportunity to the applicant to present his case and all reasonable assistance in the conduct of the trial. Notwithstanding the fundamental importance of an accused person having legal representation in a criminal trial, particularly a trial as serious as this, I do not think the issues are sufficiently arguable to justify granting leave to appeal.
The applicant also complains that prosecuting counsel misled the court by asserting that the applicant had “sacked no less than eight lawyers”. The applicant alleges that this is false and had the potential to influence the trial judge unduly. It is quite apparent that the trial judge was not influenced at all by this assertion. The trial judge is long-experienced, especially in criminal trials. A perusal of the transcript of the hearing shows that he was alert to ascertain the true facts. He corrected the above assertion. The trial judge’s reasons for judgment for refusing the stay also show that he was not influenced by that assertion and that the application to refuse to stay the trial was not grounded on that fact. This is not an arguable ground.
Ms Bailey
The next ground was that the trial judge erred in allowing Ms Bailey to give evidence. She was the appellant’s partner at the time of the events, the subject of the criminal charges. Ms Bailey was the only witness to the shooting other than the applicant and the police officers. The applicant objected to her giving evidence on the ground that she had admitted that she had lied in statements provided to the police. He said she was a hostile witness. The applicant also objected to her giving evidence on the ground that her evidence was privileged. The applicant claimed that she had acted as a kind of para-legal assistant, in that she had transmitted confidential information to the applicant’s legal representatives at his first trial and so had had access to that information. He claimed that her evidence was the subject of legal professional privilege. There is no proper ground on which the claim for legal professional privilege could be sustained. There is no ground to establish that Ms Bailey should not have been called. That ground is not sufficiently arguable to justify granting leave to appeal.
The fact that she had lied when giving statements to the police is not a ground for excluding her evidence. The fact that she had lied was proved and was referred to by the trial judge in his directions to the jury. Plainly, the question of her credibility was put before the jury. This ground is not arguable and leave to appeal is refused.
DPP Not Called
The applicant complains that the trial judge erred in refusing to allow him to subpoena Mr Rofe QC, the Director of Public Prosecutions, in order to cross-examine him on an affidavit sworn by Mr Rofe which had been admitted. Mr Rofe had sworn that he remembered receiving documents from the applicant on a number of occasions concerning the NCA bombing, but could not remember how many documents he had received, the information contained in those documents, or where they were located. He said that he had taken no action concerning them other than to inform the police who were investigating the bombing. The applicant asserts that what Mr Rofe has said in his affidavit is not correct pointing to a file note in a file kept by a solicitor, Mr Peter Waye, who had acted for Mr Perre, the person accused with bombing the NCA building. That note shows that Mr Rofe had spoken to Mr Waye. The applicant wished to cross-examine on that topic. The issue is very peripheral to the issues in the trial. As earlier mentioned, there was a substantial amount of other evidence proving that the applicant had alerted authorities to the NCA bombing. Mr Rofe’s evidence confirmed that the applicant had done so. Even if Mr Rofe’s recollection was faulty on the extent to which he had acted on the information, it does not gainsay the primary effect of his evidence which confirmed what the applicant wished to prove, namely, that he had provided information concerning the NCA bombing to authorities. In addition, the applicant wished to cross-examine Mr Rofe on issues which were quite unrelated to the trial. Finally, the applicant was not entitled to call Mr Rofe for the purpose of impeaching his own witness. This ground also is not arguable and does not justify a grant of leave to appeal.
Witnesses Not Cross-examined
The applicant complains that he was refused leave to cross-examine two witnesses. The first was Constable Smedley who made notes on the day of the shooting. The applicant wished to cross-examine him as to when the notes were made. The notes taken by Smedley were put to Ms Bailey to answer a suggestion of recent invention. The applicant contended that he should be permitted to cross-examine Smedley before Ms Bailey gave her evidence. The trial judge ruled that he would not make that a condition of the admissibility of her evidence. Ms Bailey said that she had read the notes made by Smedley at the time. She said they were accurate but she later refused to sign them. The trial judge’s ruling was plainly correct. The issue is not arguable.
The other witness was Sergeant Warren. The prosecution agreed to call him but failed to do so. The applicant asserts that Warren was an important witness, being an example of police animosity towards him. He claims that her evidence is relevant to his claim of self-defence. The trial judge ruled that the evidence was irrelevant. The ruling was plainly correct. There is nothing which justifies leave to appeal on this ground.
No Access to PCA File
The next ground of appeal is that the trial judge erred in not allowing the applicant access to the file maintained by the Police Complaints Authority concerning Constable McManus. It included complaints made by the applicant as well as others. The trial judge examined the file and ruled that its contents were not relevant. The judge was aware of the nature of the defence case. He knew that the applicant was raising issues as to police corruption. He knew the issues which the applicant wished to explore. The decision of the trial judge not to permit inspection was plainly correct. This ground is not arguable and leave is refused.
Validity of Warrant
The applicant contends that the trial judge erred in ruling that the question of the validity of the warrant for the appellant’s arrest was an irrelevant issue. The warrant ultimately led to the events the subject of the offences with which the applicant was charged. The warrant had been issued by a magistrate because the applicant had failed to attend a court hearing. Ms Bailey had telephoned the court leaving a message that the applicant would not be attending because he was ill and had gone to a medical surgery. It seems that the information was not accurately recorded. The applicant asserts that the magistrate had been misinformed as to the true position when he issued the warrant. Even if it is assumed that the magistrate was not correctly informed of the true facts, that he had acted on incorrect information, and that the warrant is invalid, those facts do not assist the applicant. The existence of the warrant explains why the police came to the applicant’s house. The question whether the warrant was valid does not alter the fact that the police were there. It is for that reason that the question of the validity of the warrant is irrelevant. The trial judge was quite correct in so ruling. The question is not arguable and there is no basis for granting leave to appeal.
Missing Exhibits
The next ground of appeal relates to the fact that several exhibits were mislaid and could not be traced. The applicant asserts that they are critical to his defence. I deal with each in turn.
The applicant had initially been advised by a Miss Lieschke. He had given her a box containing 20 to 40 audiotapes. He asserts that some of those tapes had recorded death threats made by members of the South Australian Police Force. He said that they supported his case that he had not fabricated allegations of police corruption and threats to him by corrupt police officers. He also asserts that they validate conversations he had had with others. It seems that Miss Lieschke had handed these tapes to an officer in the Legal Services Commission and that officer was the last person to possess the tapes. The applicant did not seek an adjournment to enable searches to be made for the tapes. There is no basis which justifies the Court in setting aside the conviction on the basis of the applicant’s assertions. The ground is not arguable.
The next item was a small piece of metal said to be the fragment of a bullet which had been removed by a surgeon from the applicant’s skull after the shooting. It had been handed to Miss Lieschke. She said it had been handed to the Legal Services Commission. The surgeon who removed the projectile gave evidence that he had done so. The applicant did not seek an adjournment at the trial to endeavour to locate the projectile. He did not complain of its absence. The applicant says it is part of a bullet fired very early. He says that the projectile could have come from the pistol of a STAR Force officer or the victim, McManus, so that it would support his assertion that he was hit in the head early in the events of 3 May 1994. He says it would assist his case of self-defence. There is nothing to suggest where the projectile can be located or that it would be located. It is speculation that the projectile was part of a bullet fired by McManus. In all the circumstances, there is no arguable question and leave must be refused on this ground.
A police officer gave evidence that he had found a panel of blood stained fibre plaster within the roof cavity into which the applicant had moved on 3 May. It had been mislaid. The applicant contends that this evidence would have confirmed his sworn testimony that he was hit in the head by a bullet fired through the northern vent of the house within hours of seeking refuge in the ceiling in his home. The absence of this panel does not have the significance the applicant attaches to it. There was other evidence that he had been shot. If it is assumed that the panel had been proved and contained blood stains, it would not have added anything to the defendant’s case. It does not establish when the applicant was shot. It is of so little probative value that the absence of this panel would not have justified staying the trial. There is no possibility of a miscarriage of justice. The issue is not arguable. The application for leave to appeal on this ground is, therefore, refused.
The next item said to be missing is the applicant’s keys to his motor car. The applicant ascribes to the missing keys a significance which they do not have. There was no dispute at the trial that the keys were found in the roof cavity where the applicant had set himself up. The production of the keys would not have improved the evidence in any way for the applicant. There is nothing which affects any issue in the trial. There is no arguable point. Leave to appeal must, therefore, be refused.
Some pieces of projectile were removed from McManus but not all were retained. The applicant says that he wished to have the pieces of metal examined to ascertain whether they were shotgun pellets. He was not using a shotgun. He suggests that, if the pellets are from a shotgun, it may establish that at least one other person was shooting when McManus was shot. That hypothesis is far-fetched. It requires a conclusion that other police officers were firing in the direction in which McManus was moving. That is most unrealistic. More significantly, the submission overlooks the fact that two of the projectiles removed from McManus were proved to be consistent with the ammunition being used by him but inconsistent with the ammunition being used by the police. The decision not to hand over some fragments was made by the treating medical practitioner. There can be no suggestion that those investigating these crimes or prosecuting authorities have destroyed a relevant exhibit. The point is not arguable and leave to appeal should be refused.
The next item stems from notes made by a police officer, Mr Sheldon, a senior investigator at the crime scene. Mr Sheldon had notes which recorded that STAR Force police officers had picked up spent shells and contaminated the crime scene. The notes were provided to the applicant. In addition, the applicant had some 1,000 photographs of the scene. It seems that the original notes were lost but there was no disadvantage to the applicant because he was able to use his copy of the notes to conduct his cross-examination. The point which the applicant seeks to make is that the amount of spent police shells was crucial evidence to support his claim that, after he was hit in the head by a bullet, he stopped firing so that much of the evidence concerning shooting was actually police shooting at other police. This evidence relates to the charges of endangering life. In the case of this evidence also, the applicant attaches a significance to it which it does not have. The location of the police shells says nothing as to the direction in which the police were firing or the time when they were firing. It does not have any probative value on the issues asserted by the applicant. The issue is not arguable. Leave to appeal is, therefore, refused.
For these reasons, leave to appeal is refused in respect of each of the so-called missing exhibits.
The Evidence of Kinsman

The applicant claims that a police officer, Detective Kinsman, misled the jury by giving evidence that Mr Hall, an officer in the Western Australian Police Force, denied telling the applicant that his life was in danger from South Australian police. The applicant had cross-examined Detective Kinsman to suggest that Mr Hall had informed the applicant that his life was in danger. In re-examination, Detective Kinsman refuted the allegations. A report was prepared which contained a statement of Mr Hall. It was Exhibit D202. The applicant says that this was a false document. The report was tendered by the applicant. The issues were relevant to the credit of Detective Kinsman only. It is peripheral to the issues at the trial. The applicant now complains that he is not able to pursue the matter and prove that Detective Kinsman lied. Because it relates only to the credit of Detective Kinsman, it was not a matter which the applicant was entitled to pursue. There is no arguable ground and leave to appeal is refused.
Expert Witnesses
The applicant submits that he was denied natural justice in that he was unable to obtain the services of expert witnesses. He says that he was unable to obtain the services of a forensic pathologist to rebut forensic evidence called by the prosecution. He also says that he did not have the opportunity to call two other witnesses, Mr Jankewicz and Dr Devilly. Mr Jankewicz was willing to give evidence as to the physical effects of CS gas, a gas which was pumped into the home during the incidents on 3 to 5 May. However, he could not give evidence as to the psychological effects of the gas. The applicant also wished to call a Dr Devilly, who was willing to give evidence on post-traumatic stress disorder. However, it seems that there was no request made on behalf of the applicant for Dr Devilly to assist. The applicant asserted this evidence related to his state of mind during the events of 3 to 5 May.
CS gas had been used in an attempt to induce the applicant to surrender. The prosecution had called two witnesses to give evidence about the effects of CS gas. They were Dr Lehnane and Dr Wearne. The applicant had cross-examined both.
The applicant has not described the nature of the evidence which the experts might give. He has not demonstrated that they would give any evidence different from that given by either Dr Lehnane or Dr Wearne. He has not explained the issue on which the forensic pathologist would give evidence. In any event, the issue of CS gas was not relevant to the applicant’s state of mind at the time of the commission of the offences with which he was charged. The applicant did not seek an adjournment of the trial for the purpose of arranging the calling of expert witnesses. There is no possibility of this ground succeeding and leave to appeal is refused.
For all of these reasons, the application for leave to appeal against the conviction is refused.
The Appeal Against Sentence
The applicant has been sentenced to a very substantial period of imprisonment. Although there was no doubt that the crimes for which the applicant has been convicted were extremely serious, it is arguable that the sentence is manifestly excessive. I would grant leave to appeal against sentence, both as to the head sentence and the non-parole period.
Conclusion
For these reasons, I would not grant leave to appeal against the conviction but I would grant leave to appeal against sentence.
LANDER J I agree that leave to appeal against conviction should be refused for the reasons given by Debelle J. I also agree that leave to appeal against sentence should be granted.
GRAY J I agree.

[2003] SASC 264

14 August 2003