R v Williams
[2016] SASC 67
•18 May 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Permission to Appeal)
R v WILLIAMS
[2016] SASC 67
Judgment of The Honourable Justice Vanstone
18 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
Application for an extension of time within which to appeal and for permission to appeal against conviction for murder – application filed some 14 years after conviction – no appeal previously lodged – application to call fresh evidence said to bear on the credibility of an eyewitness to the killing referred to as Ms A – after the trial Ms A diagnosed with post-traumatic stress disorder said to arise from the fact that she saw the deceased, a man known to her, killed or from the sequelae to the killing – whether Ms A was suffering from post-traumatic stress disorder at the time she gave evidence – whether that disorder might have affected her reliability as a witness – whether it is reasonably arguable that the trial miscarried as a result of the defence not being aware of Ms A’s condition – permission also sought on a number of other grounds.
Held: Permission granted to appeal on the basis of the fresh evidence. Question of extension of time within which to appeal referred to the Court of Criminal Appeal. Permission to appeal on the remaining grounds refused.
Summary Offences Act 1953 (SA) s 74D, s 74E; Summary Procedure Act 1921 (SA) s 104, referred to.
Jago v District Court of NSW (1989) 168 CLR 23; Nudd v The Queen (2006) 80 ALJR 614; Question of Law Reserved (No 3 of 1997) (1997) 70 SASR 555; R v Hickey [1997] EWCA Crim 2028; R v Mohi (2000) 78 SASR 55; TKWJ v The Queen (2002) 212 CLR 124, considered.
R v WILLIAMS
[2016] SASC 67Criminal: Application for Permission to Appeal
VANSTONE J: The applicant, Brett Stuart Williams, applies for an extension of time, of more than 14 years, within which to appeal against his conviction for murder, as well as for permission to appeal.
On 8 December 2000, the applicant was found guilty by a jury of murdering Phillip John Paul McCormack (“the deceased”) at Morphett Vale. He was later sentenced by Martin J to imprisonment for life, with a non-parole period of 18 years.
On 14 July 2015, the applicant filed a notice of appeal against conviction. This is his first appeal. Although the applicant takes 15 grounds, he maintains that the “primary basis” for the application is found in fresh evidence he presents.
Background
The applicant was jointly charged with one, Lawrence Hersbach. The prosecution case depended on the evidence of a woman who was known to the applicant. I propose to refer to her as Ms A, since her name was suppressed from publication at the time of the trial. The prosecution alleged the applicant and Hersbach reached an understanding that, together, they would kill the deceased, and that they jointly carried out that plan, beating him to death. The applicant denied the existence of any understanding and said that, in striking the deceased, he acted in self-defence. The applicant claimed that one Raymond Mohi struck the fatal blow to the deceased.
Ms A gave evidence that she and another woman (“Amy”) arrived at the applicant’s home on the morning of 30 January 1999 and parked her car in his driveway. The deceased was in the front passenger seat of her car in a drug‑affected state, seemingly unconscious. Ms A told the jury that, prior to this, she had been directed to drive the deceased and two others to various houses. It appeared that the deceased may have committed crimes at some of those places. Ms A told the applicant she was looking for somewhere to leave the deceased, because she wanted to go home. She also told the applicant that the deceased had taken Serapax. Ms A learned that the applicant’s house had been broken into earlier, and that Serapax had been stolen. The applicant implied that the thief was the deceased.
Hersbach then arrived at the premises. Ms A gave evidence that later, from within the house, she heard a car door shut. She looked out the window to see that her car had been moved further up the driveway. She saw the applicant and Hersbach standing by the passenger door, the applicant being armed with a camshaft and Hersbach with a hammer. She saw the applicant and Hersbach swing at the deceased as he sat in the car. She looked away. When she looked back she saw the applicant and Hersbach striking the deceased. Ms A further described seeing another car in the driveway with its boot near to the boot of her car. She then saw the applicant and Hersbach put a “silvery blanket” over the deceased, before putting him into the boot of the second car.
The applicant and Hersbach both gave evidence to the effect that, in their dealings with the deceased, they were acting in self-defence. The applicant said that Ms A had arrived with the deceased and Amy and had explained that she wanted a place to leave the deceased. Amy left. Mohi arrived after that. Hersbach arrived at around 5.30 am. The applicant and Hersbach went outside to move the deceased to the back porch. Mohi came out a little later and they all moved Ms A’s car so that they did not have to carry the deceased so far. He said that Mohi tried to rouse the deceased. The deceased awakened and “snapped” when he saw Hersbach. He pulled out a gun and said “[y]ou’re dead, fucker” to Hersbach (t/s 1544). He got out of the car. Hersbach took up a hammer that was on the ground. The deceased rushed towards Hersbach and they began wrestling. The applicant then picked up a wheel brace and hit the deceased to the body. Mohi then struck the deceased, who fell to the ground. Mohi then struck the deceased across the bridge of his nose, using a camshaft.
The applicant said that he and Hersbach went inside and when they came back he noticed that Mohi had moved Hersbach’s car close to Ms A’s car. The applicant put a silver rescue blanket in the boot of Hersbach’s car. Mohi and Hersbach then lifted the deceased into the boot. Mohi cleaned the blood from the driveway with a hose. Mohi walked off and the applicant and Hersbach drove away in Hersbach’s car with the deceased in the boot. The car broke down and the applicant called Stephen John Gillen, who came and fixed the car. They all drove back to Hersbach’s house and Gillen picked up a shovel and pick. The three of them drove away in Hersbach’s car. They buried the body near Owen.
History of the application
In order to distinguish the various documents filed or received in support of the application, they have each been given a number.
On 14 July 2015, the applicant filed a notice of appeal against conviction seeking an extension of time within which to appeal. This is Document 1. The applicant filed a number of documents with his notice of appeal. They included:
Document 2: Covering letter
Document 3: Affidavit to Exhibits ‘CW1’ and ‘JB1’ (Expert witnesses)
Document 4: Psychiatric Opinion Regarding Legal Appeal by Dr Craig Raeside
Document 5: Expert Report of Dr Jules Begg
Document 6: Grounds of Appeal
Document 7: Written Argument – Fresh Evidence
Document 8: Written Argument – Additional Grounds
Document 9: Affidavit/Affirmation supporting leave
Document 10: Affidavit – Application for Extension of Time in which to Appeal Conviction
Document 11: Affidavit of Exhibits (‘Time Extension’ Application)
Document 12: Appendix A – ‘Chronology of Time Delay’
Document 13: Eight bundles of exhibits in support of extension of time application
Document 14: Copies of documents required for the appeal book
Document 15: Notice to respondent of appeal
Documents 16-18: Transcripts from earlier hearings
Documents 3-9 were filed in support of the applicant’s appeal against conviction. Document 6, Grounds of Appeal, contains grounds 1-13. Grounds 1-3 are referred to as “fresh evidence grounds” and grounds 4-13 are referred to as “additional grounds”. That document also contains a “brief summary of the fresh evidence argument” as well as a list of authorities and other documents.
In Document 9, Affidavit/Affirmation supporting leave, the applicant, again, outlines his grounds of appeal and provides brief submissions in support of his application. Document 7, Written Argument – Fresh Evidence, and Document 8, Written Argument – Additional Grounds, contain the applicant’s lengthy written argument on grounds 1-13. Document 3, Affidavit to Exhibits ‘CW1’ and ‘JB1’ (Expert Witnesses), attaches two opinions on the effects of post‑traumatic stress disorder on a person’s memory: one of Dr Craig Raeside (Document 4) and one of Dr Jules Begg (Document 5). Documents 10 to 13 were filed in support of the applicant’s application for an extension of time within which to appeal.
Document 10 is the applicant’s affidavit in support of this application and contains written submissions. Document 11 is an affidavit annexing eight bundles of documents referred to by the applicant as “exhibits” in support of his extension of time application (Document 13). Document 12 is a document said to contain a “year-by-year summary of appeal-related correspondences and activity”.
On 26 October 2015 the applicant filed the further documents:
Document 19: Notice Clarifying Proposed Fresh Evidence
Here the applicant lists five documents that he relies on as fresh evidence. On this date, the applicant also filed two documents raising an additional ground of appeal (ground 14):
Document 20: Additional Ground of Appeal (Ground 14)
Document 21: Written Argument – Additional Ground 14
On 13 November 2015, the applicant filed two more documents, raising a further ground (ground 15):
Document 22: Additional Ground of Appeal (Ground 15)
Document 23: Written Argument – Additional Ground 15
During a mention of the application on 27 November 2015, the applicant agreed to waive privilege in relation to ground 14, which raises the competence of his trial counsel. On this occasion, the respondent indicated that it objected to the admissibility of the evidence said to be fresh, and opposed the grant of permission to appeal. On 1 December 2015, the applicant filed additional documents in support of his fresh evidence grounds:
Document 25: Affidavit to Exhibit ‘AK1’ (Consultation Notice)
Document 26: Exhibit (Fresh Evidence) – AK1
Document 26 is a copy of an invoice dated 13 March 2001 referring to the dates of Ms A’s consultations with Dr Angela Kinnane, a psychiatrist.
On 11 December 2015, the Registry received the following documents from the respondent:
Document 27: Respondent’s Outline of Submission on Applications for Extension of Time and Leave to Appeal
Document 28: Chronology
On 17 December 2015, the applicant filed another document:
Document 29: Outline of Oral Submissions for Leave (Re: Fresh Evidence)
On 18 December 2015, at a directions hearing, the applicant confirmed that the documents he relies on as fresh evidence are the documents listed in Document 19 and Document 26. These documents were tendered at a subsequent hearing:
Applicant 1: Ms A’s Summons and Statement of Claim for criminal injuries compensation dated 19 June 2001 in the matter of [Ms A] v South Australia [2002] SADC 16;
Applicant 2: The report of Dr Blakemore dated 8 August 2001;
Applicant 3: The judgment of his Honour Judge Lowrie in [Ms A] v South Australia [2002] SADC 16;
Applicant 4: The written opinion of Dr Craig Raeside dated 3 February 2015 (received de bene esse);
Applicant 5: The written opinion of Dr Jules Begg dated 20 May 2015 (received de bene esse); and
Applicant 6: Copy invoice referring to Ms A’s consultations with Dr Kinnane dated 13 March 2001.
The respondent objected to the tender of Applicant 4 and 5 on the basis that neither Dr Raeside nor Dr Begg has examined Ms A. I received those documents de bene esse.
On 21 December 2015, the applicant commenced his submissions on the fresh evidence grounds. He relied on his oral submissions, together with the submissions contained in Document 7. The hearing occupied most of one day. There was not sufficient time to deal with the other grounds or the extension of time.
On 14 January 2016, the Court received an email message from Mr Michael Hegarty, solicitor, advising that he had been instructed to act for the applicant, and that Mr Kevin Borick QC would be acting as counsel. The applicant confirmed this position on the following day at a directions hearing, at which neither Mr Borick nor Mr Hegarty appeared. On 3 February 2016, at a directions hearing, Mr Borick appeared for the applicant. He applied for an adjournment. The application was adjourned to 29 April 2016.
On 17 February 2016 the applicant filed the following document.
Document 37: Applicant’s Outline of Argument
On 22 February 2016, the applicant advised the Court by letter that he had “discharged” his legal representatives and that he would be ready to proceed with argument at the next hearing date. He provided the Court with the following document:
Document 39: Appellant’s Outline of Proposed Way in which to Proceed
In this document, the applicant foreshadowed that he intended to call both Dr Kinnane and Dr Begg to give evidence. He said that, in relation to his extension of time application, he would be relying on Documents 10, 12 and 13. The applicant indicated that he intended to make submissions on grounds 7, 8, 9 and 15, and that he relied on his written argument (Document 8) in support of the remaining grounds. He purported to “reserve the right to argue these grounds at substantive appeal”. Also in Document 39 the applicant foreshadowed a wish to “re-list” some of his additional grounds 4 to 15 in different terms. On 24 March 2016, the applicant filed the following document:
Document 40: Application for Permission to Amend Grounds
Some of the proposed amendments were allowed. None of them changed the substance of the grounds. They amounted only to alterations to the headings employed.
I now turn to the grounds of appeal.
Grounds 1, 2 and 3
I propose to deal with grounds 1, 2 and 3 together as that is the way the applicant has presented them. Those grounds are contained in Document 6 and read:
1.Fresh Evidence has been discovered which gives rise to the defence, in the interest of ensuring a fair trial, having been deprived of all it was entitled to know for the purpose of presenting a proper and complete defence.
2.Fresh Evidence has been discovered which gives rise to the Trial Judge having been deprived of all he was entitled to know for the purpose of ensuring a fair trial.
3.Fresh Evidence has been discovered, which gives rise to the jury having been deprived of all it was entitled to know for the purpose of arriving at a just verdict.
The applicant argues that, subsequent to his trial, important evidence emerged bearing on the principal prosecution witness, Ms A. It is suggested that Ms A suffered a “mental injury” as a result of making the observations which she described to the jury and that from that time she suffered ongoing psychiatric difficulties. The applicant submits that it is at least arguable that, had this material been known to the applicant at the time of his trial, Ms A could have been cross-examined about it and evidence to support it could have been presented by his counsel. Had this occurred, then the jury may have taken a different attitude to the reliability of Ms A.
The applicant said that after the trial Ms A made a claim for criminal injuries compensation and, in support of it, she presented psychiatric evidence. The Statement of Claim is Exhibit Applicant 1. She had been referred to a psychiatrist, Dr Blakemore, in respect of her criminal injuries claim. She saw him on 7 August 2001. She told Dr Blakemore that the trial had “overloaded” her. It had only recently finished. She described symptoms of fear, nightmares, distress, flashbacks, depression, anxiety, as well as paranoid ideations and delusions.
In his report of 8 August 2001 (Exhibit Applicant 2), Dr Blakemore diagnosed a post-traumatic stress disorder. I reproduce part of that report:
You have asked me to provide you with a report outlining the nature of your client’s injuries, the treatment given, and my professional opinion as to any long-term or residual disability suffered by her.
In my opinion, in answer to your particular questions:
1.[Ms A] is suffering a post-traumatic stress disorder as a result of witnessing the murder of Phil (McCormack), I understand, on 30th January 1999, with her present symptoms outline in the body of the report.
2.[Ms A] has received some psychiatric counselling, without benefit, and has had no other specific treatment, being helped, however, by the support of family and friends, with her boyfriend somebody she is able to talk with every openly.
Should her symptoms continue, [Ms A] would likely gain benefit from psychotherapy aimed at helping her not experience distressing thoughts, and antidepressant medication if she would be prepared to trial it, and these forms of treatment, [Ms A] said, she will consider if she is not improving with all the litigation over.
3.The balance of probabilities is that [Ms A] will improve emotionally, but just to what extent, and how completely her present symptoms are likely to ameliorate, it is, of course, impossible to be certain about.
[Ms A] remains frightened now, and is fearful now for her safety when Brett, who had threatened her life earlier, is released from jail in 16-years’ time, and feeling thus threatened remains a handicap so far as [Ms A’s] recovery is concerned.
On 1 March 2002, Judge Lowrie of the District Count made an award of damages to Ms A totalling $11,750 (Exhibit Applicant 3). The applicant relies on statements made by Judge Lowrie in his reasons to the effect that Ms A indeed suffered from the effects of post-traumatic stress disorder as a result of witnessing a murder.
The applicant also tendered reports from forensic psychiatrists, Dr Craig Raeside (Exhibit Applicant 5) and Dr Jules Begg (Exhibit Applicant 6) which were received de bene esse. Neither of these persons had been consulted by Ms A. However, the applicant had written to each seeking his expert opinion about the effects of post-traumatic stress disorder in the context of a witness who was suffering mental injury as a result of seeing a traumatic event and being later asked to give evidence about it. He provided to each psychiatrist a number of research articles which he wished them to, in effect, validate. Dr Raeside was not available to give evidence and so his report was not received. The applicant called Dr Begg. His report of 20 May 2015 and a subsequent one of 29 March 2016 were received as Exhibits Applicant 6 and 8.
The applicant also called Dr Angela Kinnane, consulting psychiatrist, who saw Ms A in February, March and May 2000.
The fresh evidence ultimately before the Court was therefore:
·Exhibits Applicant 1, 2 and 3 already identified;
·the evidence of Dr Jules Begg, his curriculum vitae and two reports; and
·the evidence of Dr Angela Kinnane.
Dr Jules Begg
In his supplementary report dated 29 March 2016 (Applicant 8) Dr Begg explained that:
Memory disturbance is a feature of post-traumatic stress disorder. Generally speaking the more severe the disorder, the more severe the memory disturbance. Extreme trauma can therefore impact on the reliability of memory.
He went on to state that symptoms of post-traumatic stress disorder “may or may not affect memory”. Dr Begg expanded on this in his evidence-in-chief to say that post-traumatic stress disorder could result in a failure to forget, a fragmentation of the memory or amnesia manifesting as an inability to recall important aspects of the trauma. It is noteworthy that Dr Begg referred to a failure to forget as the most common problem seen in post-traumatic stress disorders.
Dr Begg explained that what is called “memory distortion” is seen more in someone with post-traumatic stress disorder. This involves memories being “shifted or changed” when they are being recalled as a result of the emotional state of the person at the time of recall and what other people are influencing them to understand about that memory. The latter of these is a concept referred to as “suggestion”. In his supplementary report, Exhibit Applicant 8, Dr Begg states that “[a] false memory can be created by another person suggesting what happened”. He said that people who have suffered traumatic events are more susceptible to suggestion. In evidence he agreed that a later diagnosis of post-traumatic stress disorder would be a significant indicator that a witness to a traumatic event might have been susceptible to earlier suggestion. Dr Begg’s supplementary report also referred to the effect of amphetamine use on a person’s memory. He said that while small amounts of amphetamine could enhance memory, too much could cause difficulties with memory formation.
Dr Begg said that to understand the extent of a person’s psychiatric disorder it was important to look beyond the psychiatric diagnosis to the symptoms and the effect of those symptoms. In his supplementary report, Dr Begg noted that “[tr]auma response is subjective, it is often mediated by the meaning of the trauma to the person”.
Dr Angela Kinnane
Dr Kinnane, a psychiatrist in private practice, gave evidence that Ms A was referred to her by a general practitioner on 10 January 2000. Dr Kinnane had three consultations with Ms A. These took place on 10 February 2000, 10 March 2000 and 9 May 2000. (The applicant’s trial commenced in November 2000.) Dr Kinnane gave evidence that during the first consultation, Ms A described her mood as “pretty depressed and scared of court”. She was “irritable, very tearful, feels like crying, sleep variable, scared at night”. She was experiencing insomnia and nightmares. She further described avoiding certain shopping centres and people she knew. Ms A referred to graffiti being twice put on the windows of her workplace and abuse being shouted at her from a passing car. In terms of her drug history, Ms A admitted using amphetamine for two months only and had not used it for a year. Dr Kinnane described Ms A as “well‑groomed, casually dressed, she made good eye contact, she was cooperative and close to tears at times”. She explained that Ms A was very anxious about upcoming court hearings. Dr Kinnane said she did not make a formal diagnosis after the first consultation because “it was hard to tell how much of her anxiety may be at that time related to impending court”. Dr Kinnane did not initially prescribe any treatment to Ms A, but the possibility of using antidepressants was discussed. Following that consultation, Dr Kinnane wrote to Ms A’s general practitioner and advised that she thought Ms A would benefit from medication to reduce her level of hyperarousal.
During the next consultation, on 10 March 2000, Dr Kinnane prescribed an antidepressant, Sertraline, 50mg. At the time of the third consultation, on 9 May 2000, Ms A had not started her medication as she said her mother was against it. Dr Kinnane noted that she was “generally maturing...was less phobic, less fearful of the world”. No further treatment was recommended at that point. Dr Kinnane wrote to the general practitioner on 11 May 2000 and advised that Ms A had made progress in a number of areas in her life, “is less avoidant and beginning to socialise more often and more comfortably” and explained that her role at that point was “mainly a supportive one”. Ms A made a further appointment for 20 June 2000; however, she later rang and cancelled it. She made another appointment for 11 July 2000, but she did not attend. Dr Kinanne said that she did not have any concern that Ms A did not attend subsequent appointments, as Ms A was “improving”.
Dr Kinnane made no formal diagnosis. She gave evidence that, if she were to have offered a diagnosis, it would have been that Ms A’s symptoms were consistent with post-traumatic stress disorder. However, she said that she would have to “qualify the timing” to determine whether the anxiety she was observing was attributable to impending court proceedings, or threats and harassment which had occurred since the murder, or to the murder itself. In cross‑examination, Dr Kinnane said that she did not entertain concerns about Ms A’s memory at the time and that, had there been indications of such defects, it would have been normal practice to conduct relevant tests.
The applicant relies on all this evidence to demonstrate that Ms A did suffer from a post-traumatic stress disorder, that her symptoms were apparent from the time of the killing (January 1999) until at least August 2001 and that post‑traumatic stress disorder can affect both the laying down of memory and the recall of the traumatic events.
In my opinion, the applicant has mounted a reasonable argument to say that Ms A’s evidence might have been affected by the traumatic events she witnessed and their sequelae. The argument is highly speculative. Whether her evidence was so affected might not be ascertainable, at least without (inter alia) a close examination of her evidence and full argument.
I would add that nothing before me indicates that the fact that Ms A had sought assistance from a psychiatrist was known to officers of the Director of Public Prosecutions at the time of trial.
Permission to appeal on these grounds is granted.
Grounds 4, 5 and 6
I also propose to deal with grounds, 4, 5 and 6 together as that is the way the applicant has presented them. Those grounds are contained in Document 6 and read:
Abuse of process and prejudice suffered
4. The conduct of officers for the Director of Public Prosecution at the appellant’s committal constituted a blatant misrepresentation of the strength of the Crown’s case, which was an abuse of process and created fundamental flaws in the due and fair process of the prosecution of the appellant. Not only did the prosecution misrepresent its case to the Magistrates Court and the defence, it also misrepresented its case to the community at large. This misconduct adversely influenced the preliminaries (committal) and the arising issues of concern were irremediable at trial, permanently depriving the court of evidence which may have favoured the defence (further argued in Appeal Grounds 5 & 6).
5. The conduct of the Director and his officers, which amounted to an abuse of process as identified in Ground 4, permanently deprived the defence of the opportunity to discover and rely upon material which may have been favourable to the appellant.
6. The deprivation as identified in Ground 5 was oppressive, in being unfair and prejudicial to the appellant, and compounded the ramifications of the abuse of process which flowed from the misrepresentation identified in Ground 4.
I understand the applicant’s complaint to concern the prosecution’s conduct in initially presenting Raymond Jules Mohi and Stephen Gillen as prosecution witnesses, opposing the applicant’s application to cross‑examine witnesses at committal and then later charging Mohi and Gillen with assisting an offender. As a result, the applicant was deprived of “the opportunity to discover” evidence which would have helped his case.
In support of these grounds the applicant seeks to rely on the reasons of Martin J in his decision to grant Mohi a permanent stay of his prosecution: R v Mohi (2000) 78 SASR 55. It is convenient to outline some facts identified by Martin J in his reasons, which were not disputed by the prosecution. I shall also refer to the facts in relation to the witness Gillen, which were not referred to by Martin J. In the course of police inquiries, information was received which led police to question Mohi and Gillen in relation to McCormack’s death. Between 23 February 1999 and 20 June 1999, Mohi and Gillen provided statements to police. At this time, notwithstanding that police believed that Mohi had committed an offence, investigating officers treated Mohi as a witness, rather than as a suspect. They led Mohi to believe that he would not be charged and that position endured until long after the Director of Public Prosecutions became responsible for the conduct of the prosecution. During the proceedings in the Magistrates Court, the prosecution presented Mohi and Gillen as witnesses, filing and relying on their police statements.
Prior to committal, solicitors for the applicant filed a Rule 20 Application seeking to have 15 civilian witnesses called to give evidence and to be cross‑examined on the circumstances of their interviews with police. Among the witnesses nominated were Mohi, Gillen and Ms A. The application was refused. The Magistrate ruled that the prosecution case was adequately disclosed and that the issues for trial were clearly defined in the eyewitness statements. The applicant and Hersbach were thereafter committed for trial. Months later, police arrested Mohi and Gillen and charged each with assisting an offender. From 3 October 2000, Mohi and Gillen appeared on the same information as the applicant and Hersbach. On 6 November 2000, the first day of that trial, Gillen signed a further statement and was given an immunity from prosecution. On 7 November 2000, counsel for Mohi made an application for a permanent stay of the charge against him on the basis that the conduct of the prosecution in treating Mohi as a witness for a lengthy period had led to an abuse of process. On 8 November 2000, Martin J granted that application.
At trial, Mohi was not called. Gillen had, by then, provided a new version of events to police. He gave evidence along the lines of his later statement.
The applicant argues that, in presenting Mohi and Gillen as prosecution witnesses at committal, and relying on the statements made by them to police, the prosecution “falsely strengthened” its case. By “false”, the applicant is referring to the fact that they were later charged with assisting an offender and Mohi was not used as a prosecution witness. The prosecution’s “falsely strengthened” case led to the Magistrate refusing to grant the applicant’s Rule 20 application and committing the applicant for trial. This conduct amounted to “deception” and was such as to undermine confidence in the administration of justice.
The applicant argues that a Rule 20 examination in the Magistrates Court would have clarified arguments the defence took surrounding the circumstances of the taking of the statements of Mohi, Gillen and Ms A, and the misconduct of investigating officers. Cross-examination, he argues, would have revealed significant problems with the prosecution case which the applicant could have relied on at trial. The applicant complains that, had defence been able to cross‑examine Mohi, Gillen and Ms A, there would have been “sworn answers on the record” from them in relation to the events leading to McCormack’s death and the circumstances surrounding the taking of those statements. Such evidence would have gone “specifically to the reliability and credibility of the primary witness statements” and “to the conduct and reliability of the investigating officers as witnesses at trial”. Had Gillen committed himself to a version at the preliminary examination, he would not have been later able to “sculpt his evidence”. The applicant argues that this could not be remedied at trial because, when a witness was questioned about those statements, the ability to recall events was affected by the delay between committal and trial.
During his submissions, Mr Williams suggested that the conduct of officers of the Director of Public Prosecutions, throughout the proceedings, did not reflect their true thinking. In other words, he suggested that the prosecuting authorities misrepresented their plans in relation to the use of the statements of Mohi and Gillen, and always meant to charge Mohi ahead of trial. That submission is not borne out by the findings of Martin J in his reasons for upholding Mohi’s application for a stay of proceedings. Martin J held that there was no material change of circumstances leading to the decision of a senior prosecutor that Mohi should be charged with assisting an offender. That decision did not arise from any event which occurred, but rather from the fact that the matter was referred to a senior prosecutor for consideration. His Honour accepted that, at the time the senior prosecutor made that decision, her understanding was that “no deals had been done” with Mohi. The senior prosecutor denied on oath that, in reaching the decision that Mohi should be charged, she turned her mind to the possibility that the applicant and Hersbach might seek to cast the blame for the killing on to Mohi and that, in those circumstances, it would be better if he were on trial as well. Martin J accepted that evidence without hesitation: [21].
The very fact that the prosecution of Mohi was stayed by Martin J indicates that there were a number of errors made in the investigation and prosecution of these charges. However, I do not see in the reasons provided by Martin J any finding of a lack of bona fides on the part either of the investigating police officers or officers of the Director of Public Prosecutions. This issue was thoroughly investigated in the context of Mohi’s application of a stay. If the conduct of the authorities was due to a lack of bona fides and that could have adversely impacted upon the fairness of the applicant’s trial, then that could also have been explored.
It is now too late to complain that the Magistrate was wrong to refuse the application to cross-examine witnesses at the preliminary examination. If there were to be a challenge to that decision, then it should have taken place before the trial. In any event, quite apart from the filed statements of Mohi and Gillen, the prosecution had sufficient material to demonstrate a case to answer in the statements of Ms A and evidence of objective facts.
While at trial the defence did not have available evidence given at a preliminary examination by Gillen, it did have his previous statements. They were available to contradict him on his latest statement. There is no absolute right to cross-examine witnesses at preliminary examination. Whether special reasons are found is a matter of judgment for the Magistrate.
It is of note that there was no application by the applicant at trial for a stay of proceedings.
I find there is no merit in grounds 4 to 6.
Grounds 7, 8 and 9
Again, I propose to deal with grounds 7, 8 and 9 together as that is the way the applicant has presented them. Those grounds are contained in Document 6 and read:
7. (Question of law) Did investigating officers fail to follow the mandated investigative procedure s 74D of the Summary Offences Act, when interviewing a suspect and gathering primary evidence?’
The trial judge erred in failing to acknowledge there was an obligation in law requiring police to record their interview with [Ms A] on 13/02/99
8. (Question of law) Did the trial judge err in failing to acknowledge that police breached the mandated investigative procedure of s 74D of the Summary Offences Act, when interviewing a suspect, and subsequently deprive the jury of the appropriate ‘non-compliance’ warning to which it was entitled.
Complaint that the integrity and legality of [Ms A’s] immunity has been compromised by the improperly conducted interview (13/02/99) and, the related conditional terms caused important evidence to be presented at trial, which could not be adequately and satisfactorily tested
9. By way of contractually binding improperly obtained evidence to an immunity from prosecution agreement, the integrity of the Crown’s only eyewitness evidence came into question, and thus the trial of the appellant. The opportunity to test the voluntariness and reliability of the evidence was not available because:
a)firstly, non-compliance had ensured there was no observable record of how the evidence was created; and
b)secondly, the contractual clause of the immunity, very specifically binding testimony to the improperly obtained evidence, removed the opportunity for voluntary remedy of any inaccuracy or untruth, or freshly remembered detail.
I understand grounds 7 and 8 to submit that the trial judge erred in finding that police were not in breach of s 74D of the Summary Offences Act 1953 (SA) by failing to record an interview with Ms A on 13 February 1999. That was the fourth interview conducted with Ms A during which a statement was provided by her, which was not signed. On 17 February 1999 Ms A amended and signed that statement. On the same day the Director of Public Prosecutions provided her with an immunity from prosecution.
Section 74D provides:
Obligation to record interviews with suspects
74D. (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:
(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made;
(b) if it is not reasonably practicable to record the interview on videotape but it is reasonably practicable to record the interview on audiotape, an audiotape recording of the interview must be made;
...
Section 74E provides that, in the absence of certain exceptions, evidence of an interview which was not conducted in compliance with s 74D is inadmissible against “the defendant”.
The applicant argues that police considered Ms A a suspect, or at least had reasonable grounds to suspect her at the time of conducting the interview on 13 February 1999, and therefore had an obligation under s 74D to record the interview. The applicant submits that this suspicion is demonstrated by the fact that the three previous interviews with Ms A on 5 February 1999 and 9 March 1999 were recorded. During these interviews police told Ms A that they believed she had information regarding the murder of the deceased, they cautioned her and informed her that her vehicle had been seized for forensic examination. The applicant argues that the existence of police suspicion is evidenced by the following excerpt from the cross-examination of Officer Damien Epps at 1340:
QYou talked to her again on the 13 February, didn’t you.
AYes, I did.
QAnd between the 9th, when that interview finished, and 13 February, when you next spoke to her, of course, investigations were going on, by police.
AYes.
QInto the suspected murder of Phillip McCormack, just as you told her they would be going on.
AThat’s correct.
QAnd it would be fair to say that what you were hearing and what you were finding out was confirming in your own mind that Ms [A] was at the place where Mr McCormack met his end, and probably knew a lot more than she was prepared to tell you about.
AYes.
QThat was your view.
AYes.
The applicant puts that the fact Ms A received an immunity from prosecution four days after her interview on 13 February 1999 supports the argument that police considered that she had committed an offence and therefore earlier considered her to be a suspect.
At trial Officer Epps gave evidence that police were treating Ms A as a witness during her interview on 13 February 1999 and therefore were not obliged to record the interview. The applicant argues that the decision whether to prosecute, or whether to treat someone as a witness, is a decision to be made by the Director, not police. He relies on the following comment made by Martin J in his decision to grant Mohi a stay from prosecution, at [6]:
[T]he decision whether to charge the person in the position of [Mohi] or to treat him as a witness is a decision to be made by the Director.
Therefore, he argues, there was a mandatory obligation to comply with s 74D.
The applicant relies on the following passage from the summing up of the trial judge in support of these grounds at 85[3]:
...there is an interesting question in law as to whether Mr Epps should have, by law, recorded that interview on videotape. However, regardless of the niceties of the law, Mr Epps told you he was treating her as a witness...
The applicant argues that the trial judge’s failure to find that police were in breach of s 74D is in “stark contrast” to his Honour’s ruling based on the “exact same conduct” in his decision to grant a stay of prosecution to Mohi. The applicant submits that, as a result of the breach of s 74D, Ms A’s statement dated 13 February 1999 was illegally obtained. He puts that the statement was not only inadmissible against Ms A, but also against anyone else; or at the least subject to discretionary exclusion. He also argues, if the evidence was admitted pursuant to s 74E(1)(b), then the trial judge was obliged to give the jury a warning in regards to Ms A’s, evidence pursuant to s 74E(2).
Ms A gave evidence at trial and, therefore, her statement was not relied on as evidence. However, I understand ground 9 to allege that Ms A’s letter of immunity from the then Director, dated 17 February 1999, contained a condition which bound her to repeat at trial the version of events she gave in her statement of 13 February 1999, and in that way the interview was used. The letter of immunity was in these terms:
I advise that if you give evidence for the prosecution at the trial of those charged with respect to the murder of Phillip McCormack, you will not be prosecuted for any offence disclosed by your evidence in respect of any involvement you may have had in the offence. This undertaking is subject to the condition that you have been truthful in the statement provided to police on 13 February 1999 regarding the matter.
The above undertaking is dependent upon you giving truthful evidence for the prosecution, but not upon the content of that evidence. It does not preclude a prosecution for Perjury should you commit that offence during the course of your evidence. It also does not preclude a prosecution for Murder as a principal in the first degree if that offence is disclosed by your evidence.
The applicant questions why the immunity letter did not simply require that the witness give truthful testimony. He argues that the immunity instead had the effect of assuming that the content of Ms A’s statement of 13 February 1999 was truthful. This, he argues, raises a “fruit from the poison tree” analogy. He submits that if her statement was “poisoned by impropriety” then evidence which flowed from it was tainted. As a result, he argues, Ms A’s evidence lacked “integrity” and, since the prosecution relied heavily on it, the integrity of the whole prosecution case was brought into question. The applicant concedes even though the terms of this immunity might be acceptable in other cases, it was not acceptable in circumstances where the witness’s statement was improperly obtained.
It is important to note that s 74E refers to an interview between an investigating officer and the defendant being inadmissible “against the defendant”. The section does not prevent such an interview being admissible in the prosecution of another person. Ms A was not the defendant in this matter and therefore, even if the applicant were to succeed in his argument that police officers had an obligation to record the interview with Ms A on 13 February 2016, the interview would be admissible in his trial.
The applicant submits that such a reading of s 74E is “ambiguous and does not reflect parliamentary intent”. He argues that the legislation “clearly recognises” the need for an obligation to video record police interviews where people are questioned about indictable offences. This is evidenced, he argues, in the Second Reading Speech in the Legislative Council introducing s 74D and s 74E where an objective of the legislation is described as “to minimise the necessity for voir dire hearings and for judicial warnings to the effect that it is dangerous to trust in the veracity of police officers”. He argues that the intention of Parliament was to “prevent the creation of environments which give rise to challenges of the integrity of police interviews”. The applicant also cites Question of Law Reserved (No 3 of 1997) (1997) 70 SASR 555 with reference to the judgment of Prior J at 560. It is not clear on what basis the applicant relies on that decision. In that case Prior and Williams JJ held that s 74E did not prevent the use of an excluded statement of an accused from being used at the instance of a co-accused.
The police evidence was that at no stage did they consider Ms A to be a suspect. Neither was there evidence that she was involved criminally in the killing. Therefore, s 74D of the Summary Offences Act did not apply. The fact that, having reviewed her account, Officer Epps, or perhaps his superior, or the Director, might have considered that she should be given an immunity from prosecution, does not imply that she should have been treated as a suspect when interviewed. If that is accepted, then grounds 7, 8 and 9 inevitably fail.
Part 17 of the Summary Offences Act, which contains a number of provisions relating to the recording of interviews, is directed to the protection of the person being interviewed. There is nothing in the text of the section, nor in the policy behind it, which implies that it has a wider purpose. Indeed, it is hard to see why it should have.
Even if there were some illegality or impropriety attaching to the manner in which the statement of 13 February 1999 were taken, and assuming that this gave rise to a discretion in the Court to exclude evidence so gained, that would be a discretion to be exercised to the benefit of the person who suffered the illegality or impropriety. It could not be utilised by a person in the applicant’s position.
The fact that Ms A’s statement was not tendered at the applicant’s trial – and in the normal course could not have been – demonstrates the point. The evidence which implicated the applicant was Ms A’s oral testimony of what she saw. That testimony would have been admissible irrespective of whether previous conversations between Ms A and police were recorded.
The fact that the immunity letter referred to the interview of 13 February 1999 and had the effect of assuming that the account then being given was truthful, is not to the point. In my experience, such immunity documents would almost invariably refer to a version of events previously given. Even assuming that Ms A was regarded as a suspect on that date (which I do not), there would not be any vice in a reference to that occasion as a shorthand means of establishing what version the prosecuting authorities regarded as being truthful.
In my view, there is no substance in these grounds. They are not reasonably arguable.
Ground 10
Ground 10 is contained in Document 6 and reads:
10.The trial prosecutor took unfair and prejudicial advantage of the misrepresentation and abuse of process detailed in Ground 4 and put various allegations to the appellant in front of the jury which he either knew, or ought reasonably to have known were untrue. This breached the prosecutor’s clear and well established obligation to put the Crown case fairly and, resultantly, created great prejudice and deprived the guilty verdict of any moral legitimacy.
I understand this ground to allege that, at trial, the prosecutor unfairly cross-examined the applicant by putting allegations to him which were inconsistent with Mohi’s statements, and which prejudiced the applicant.
As previously mentioned, Mohi gave two statements to police which were not later relied on by prosecution at the applicant’s trial. In his statements Mohi made admissions to being present at the scene of the crime, to helping Hersbach lift the body of the deceased into the boot and to helping him wash away the blood from the driveway. During cross-examination it was put to the applicant that Mohi was not present at the scene of the crime (t/s 1636) and that it was he who helped Hersbach lift the deceased’s body into the boot of the car (t/s 1663). These questions were based on evidence given by Ms A that she did not see a third man outside (t/s 333). The applicant argues that this was unfairly prejudicial because the prosecutor knew, from the statements of Mohi, that Mohi had admitted to being there and lifting the body of the deceased into the boot.
As mentioned, Mohi was not called to give evidence at trial. The applicant acknowledges that the prosecutor’s questions were permissible on the evidence as it stood. However, his argument is that in the prosecutor’s “good conscience he knew those things not to be true”.
Counsel for the Director at trial was Mr Peter Snopek, who I note was later a Magistrate. I would not lightly impute to him any breach of duty.
One can appreciate that the applicant would see a certain flexibility in the prosecution case in circumstances where Mohi might have made admissions against himself which were contrary to a version which the prosecution later relied upon. However, if there were any suggestion of inconsistency or opportunism in the approach taken by the prosecution, then the trial judge was in a peculiarly good position to appreciate it. Similarly, it was open to defence counsel to complain about it. No such matter was raised. I consider that the prosecutor was entitled, if not obliged, to put his case – as it stood during the trial – to the applicant in the course of cross-examining him.
This ground is not reasonably arguable.
Ground 11
Ground 11 is contained in Document 6 and reads:
11.Police failed to take DNA samples from Raymond Mohi, which was contrary to their duty as investigating officers. Taking samples from Mr Mohi was warranted and reasonable as part of their investigation.
The failure both favoured the Crown’s case in trial and, deprived the court and defence of material which was potentially favourable to the defence.
I understand this ground to argue that the prosecution had a duty to take a DNA sample from Mohi for testing against blood samples found at the scene and in the car. The results might have contradicted (or confirmed) what the applicant and Hersbach said at trial about Mohi’s conduct towards the victim.
Katrin Both, forensic scientist, gave evidence at the applicant’s trial. She had compared a number of samples taken from the scene with profiles of the deceased, the applicant and Hersbach. Ms Both said that a number of DNA profiles derived from samples from the scene could not be attributed to the applicant, Hersbach or the deceased. Because there was no reference sample from Mohi, no assessment could be made as to whether he was a contributor.
The applicant argues that the prosecution had a duty to take a control sample from Mohi and to make the relevant comparisons. The applicant argues that an adequate investigation should see investigators gathering “readily available and reliable evidence which there is good reason to believe would be relevant to the investigation and the prosecution” whether that evidence “might point towards or away from their suspect”: t/s 134. The applicant’s complaint is that DNA evidence in relation to Mohi might have prevented the prosecution from attacking the defence version which implicated Mohi.
It will be recalled that Mohi was not charged until very late in the investigation of the killing. At least at that point the investigators could have sought an order authorising the obtaining of a sample from him. In my opinion, there was no duty upon them to do so.
I disagree that the absence of a reference sample from Mohi left the applicant at a material disadvantage. The existence of “foreign” DNA at the scene left the applicant’s counsel free to argue that Mohi may well have been a contributor. The failure of police to secure a control sample from Mohi could have been the subject of comment by the applicant’s counsel to the jury.
The ground is not reasonably arguable.
Ground 12
Ground 12 is contained in Document 6 and reads:
12.The ‘crime scene viewing’, which was attended during the trial, became impractical and inadequate, following conduct of the prosecutor, in his circumvention of a proper demonstration of facts. Clarification was sought and concerns were raised on more than one occasion by jurors during the viewing, demonstrating an obvious concern in the mind of at least one juror. The prosecution opposed His Honour’s logically suggested resolution, and upon the prosecution’s insistence, the juror’s concerns were not adequately addressed, even though the issue was again raise at the viewing’s conclusion. The issue in question later became one of the most primary issues in trial upon which the resultant uncertainty aided the prosecution in proving its case for murder.
I understand the applicant’s complaint to be that the view of the scene taken at the beginning of the applicant’s trial was inadequate in that the jury were denied information that the applicant argues should have been provided to them.
On 10 November 2000, during the applicant’s trial, a view was conducted of the applicant’s premises in Morphett Vale. During the view, and while the jury were positioned near the window through which Ms A would give evidence she witnessed the murder, the following discussion took place:
HIS HONOUR: Ladies and gentlemen, take your time, and then, when you are ready, you can move into the lounge.
JUROR: Are we allowed to ask where the car was parked here?
HIS HONOUR: You would like a demonstration?
JUROR: If [we] could; where the car was, and what we can see from that window.
HIS HONOUR: Do you refer to the car in the photographs?
JUROR: The red car.
MR SNOPEK: Can’t do it by dimension. I think they have to wait till the evidence.
HIS HONOUR: Counsel are unable to provide a demonstration. I think this is the value of the view; that you can line up with the plans in due course and have a picture in your own mind, so undoubtedly the witnesses will be asked to mark on the plan where the car was according to their memory, and you will have an idea from your own vision here. We can’t line it up for you today.
The applicant argues that later in the trial, when Ms A was giving evidence, the jury were “left with their own memories of the viewing, with no proper or effective demonstration to base their assessment on”. The applicant submits that, for the view to have been adequate, an identical car should have been placed in the exact location nominated by Ms A. This, he argues, would have demonstrated to the jury that Ms A’s version of events was implausible because the witness’s view from the window would have been obstructed.
There are two short answers to this complaint. The first is that viewings of scenes are not permitted to descend into demonstrations. The second is that, had the defence wished to place additional admissible material before the jury, either by cross-examination or by calling a witness, it was open to it to do so.
Ground 13
Ground 13 is contained in Document 6 and reads:
13.Appeal Grounds 4-11 demonstrate a systematic failure by the police and officers for the Director of Public Prosecutions investigators to comply with procedures and rules governing their conduct in this appellant’s case. The cumulative effect from that systematic failure, combined with a biased, grossly inadequate and unsatisfactory investigation, vitiated the prosecution process, which then became an instrument of unfairness and injustice.
This ground argues that the accumulation of errors and procedural defects identified by the applicant in his previous grounds resulted in an unfair trial. The applicant refers to R v Hickey [1997] EWCA Crim 2028.
As has been seen, I do not consider that the premises upon which this ground rests have been made good. In those circumstances, the ground is not reasonably arguable.
Ground 14
Ground 14 is contained in Document 20 and reads:
Ground 14: that the appellant did not receive adequate and satisfactory representation by counsel at trial.
The applicant argues that each of the issues identified in grounds 4 to 13 and 15 should have been identified by his counsel before or during his trial and have led to “objections and / or applications for stay or acquittal or seeking other orders or rulings and remedies”. The applicant does not point to specific transcript references where he claims his counsel did not act with the proper diligence; rather, he argues it is the absence of action by his counsel that causes his complaint.
The applicant submits that there were reasonable grounds to have raised objections prior to trial with respect to the complaints indicated in his grounds 4 to 7 and 9. The applicant concedes that the police failure to record the last interview with Ms A (ground 7) was raised by counsel for the co-accused at trial. However, he argues that his counsel “should have pressed the matter to its proper and full extent” taking those points he now argues in ground 7. In relation to ground 9, regarding Ms A’s immunity letter, the applicant argues that his counsel should have obtained a copy of the letter before trial, rather than merely relying on what he was told about it.
Further, the applicant argues that defence counsel should have objected to questions posed to the applicant in cross-examination (which are the subject of ground 10) and should have complained about investigators’ failure to obtain a DNA sample from Mohi (ground 11). The applicant also argues that his counsel should have intervened at the view of the crime scene to insist upon a demonstration being given to the jury (the subject of ground 12). The applicant argues that, as a result of his inadequate representation, he did not receive a fair trial.
The applicant acknowledges that he did not complain about his representation at trial until the time of filing his grounds of appeal. This, he explained, is because it was not until he was preparing his grounds of appeal that he came across case law which alerted him to the fact that these matters should have been raised by his counsel.
The applicant relies on Jago v District Court of NSW (1989) 168 CLR 23 as authority for the proposition that the right to a fair trial extends to the whole course of the criminal process, including the preliminary proceedings. In that case, Mason CJ stated, at p. 30:
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay.
Deane J also stated, at p. 57:
Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one.
The applicant frankly acknowledges that he added this ground in case his more specific complaints should be met with the answer that no objection was taken at the appropriate time.
As has been seen, I have found that many of the complaints which the applicant now raises are unsustainable. Even so, it is true that some counsel might have taken a more proactive stance in objecting to material presented by the Crown, or objecting to the procedure which had been followed. I do not imply that any such objection would have borne fruit. However, the more fundamental difficulty with this ground is that there is no reason to suppose that the way the trial was conducted was other than in accordance with sound forensic decisions taken by the applicant’s then counsel.
In Nudd v The Queen (2006) 80 ALJR 614, the High Court discussed what need be demonstrated by a ground of appeal in this style. At [17], Gleeson CJ referred to the general rule that a client is bound by counsel’s conduct. Unless the conduct was “incapable of rational explanation on forensic grounds”, the client could not later complain. At [157] Callinan and Heydon JJ referred to the earlier High Court case of TKWJ v The Queen (2002) 212 CLR 124 where Gaudron J, with whom Gummow J agreed, pointed out that the relevant inquiry was an objective one, that is whether the course taken by counsel was capable of explanation. Thus the relevant test was framed in a manner comparable to that employed by Gleeson CJ. Gummow and Hayne JJ preferred to focus on the question at [25]:
Was what happened, or did not happen, at trial a miscarriage of justice?
None of the matters alluded to by the applicant in the course of arguing his grounds of appeal have raised in my mind a question of competence of counsel. Moreover, there is no material before the Court from counsel then acting. The Court is simply ignorant of why objections were or were not taken, or applications for various orders made or not made.
In my view, this ground is not reasonably arguable.
Ground 15
Ground 15 is contained in Document 22 and reads:
Ground 15: that the prosecution failed in its duty of disclosure, with respect to the immunity document for [Ms A]. This immunity document was not provided to the defence, nor was the document filed in Court.
As mentioned already, on 17 February 1999 the Director of Public Prosecutions agreed to provide an immunity from prosecution to Ms A. It was in the form of a letter. The applicant asserts that a copy of that letter was not provided to the defence.
In a letter of 10 March 200, the Director notified solicitors for the applicant that, on 17 February 1999, Ms A had been provided with an immunity from prosecution and that the immunity was “in the usual terms”. The applicant argues in ground 9 that the immunity agreement was compromised by its terms and the way in which Ms A’s version was obtained. Here, the applicant argues that the failure of the prosecution to disclose the letter deprived the defence of the opportunity to examine its legality. The applicant relies on s 104(1) of the Summary Procedure Act 1921 (SA) which relevantly provides:
104—Preliminary examination of charges of indictable offences
(1) Where a charge of an indictable offence is to proceed to a preliminary examination, the prosecutor must at least 14 days before the date appointed for the defendant's appearance to answer the charge—
(a) file in the Court in accordance with the rules—
(i) statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant; and
(ii) copies of any documents on which the prosecutor relies as tending to establish the guilt of the defendant (other than sensitive material or documents that are of only peripheral relevance to the subject matter of the charge); and
(iii)a document describing any other evidentiary material (including sensitive material and documents that are of only peripheral relevance to the subject matter of the charge) on which the prosecutor relies as tending to establish the guilt of the defendant together with a statement of the significance the material is alleged to have; and
(iv)all other material relevant to the charge (whether relevant to the case for the prosecution or the case for the defence) that is available to the prosecution except material exempt from production because of privilege or for some other reason; and
(b) give personally or by post to the defendant or a legal practitioner representing the defendant copies of all documentary material filed under paragraph (a).
He asserts that the obligation to file a copy of the letter arose under s 104(1)(iv), as it assumed the description of “all other material relevant to the charge”.
The applicant argues that the letter of immunity was relevant because the prosecution case relied upon Ms A’s evidence, which was affected by the agreement. The applicant also refers to guideline six of the Office of the Director of Public Prosecutions Statement of Prosecution Policy & Guidelines (1999) which states:
When an accomplice receives any concession from the prosecution in order to secure his or her evidence, whether as to choice of charge or the granting of immunity from prosecution, the terms of the agreement or understanding between the prosecution and the accomplice should be disclosed.
The applicant says he does not know whether the document was shown to his counsel. He argues that the letter from the prosecution dated 10 March 2000 which asserted that the immunity was “in the usual terms” was misleading. The applicant argues that the document was not in the usual terms.
It is not necessary to discuss whether the Director might have a valid argument as to why a copy of the letter need not have been filed at the Magistrates Court. It may be accepted that, if requested, a copy should have been provided to defence counsel prior to Ms A giving evidence. As I understand it, the Director’s long‑standing practice has been to hand over a copy of such a letter. There is nothing to say that this was not done in this instance.
This ground is not reasonably arguable.
Extension of time
The applicant applies for an extension of time within which to appeal of some 14 and a half years. As mentioned, he filed an affidavit in support of his application (Document 10), together with a chronology containing a “year‑by‑year summary of appeal related correspondences and activity”, being Document 12. The applicant also filed eight bundles of documents which mainly contain correspondence illustrating his attempts to obtain legal representation (Document 13).
The applicant gave evidence before me going to the question of an extension of time. He told me of his repeated attempts after his trial to obtain legal aid, all of which failed. In response to questions put to him by Ms Ingleton, for the respondent, as to whether he considered representing himself, he replied that the idea was not something he could “realistically entertain” (t/s 82). The applicant also sought to have the assistance of various practitioners on a pro bono basis. In this way, he secured some legal advice.
There is no doubt that the applicant has persistently pursued an appeal over the period since the criminal injuries compensation trial. Ultimately, he was driven to represent himself, which he did with great insight and flair.
In my view, the extraordinary lapse of time since the applicant learned about Ms A’s post-traumatic stress disorder – being the period 2001/2002 to July 2015 – cannot be readily overlooked. In the event that the applicant’s conviction were to be quashed, there would be no realistic prospect of a re-trial taking place. In those circumstances, I consider that the question of an extension should be referred to the Court of Criminal Appeal for its decision.
Conclusion
For the reasons given, I make the following orders:
1. Permission to appeal on grounds 1, 2 and 3 is granted,
2. Permission to appeal on grounds 4 to 15 is refused,
3.The application for an extension of time within which to appeal is referred to the Court of Criminal Appeal.
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