Re the State of Western Australia
[2005] WASCA 175
•8 SEPTEMBER 2005
RE THE STATE OF WESTERN AUSTRALIA; EX PARTE STOREY [2005] WASCA 175
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 175 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:83/2005 | 8 SEPTEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA | 8/09/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Application for leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM HENRY STOREY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal Application for leave to appeal against conviction Direction to jury to reach finding on "who is to be believed" as between complainant and accused Context in which direction given Expressly subject to appropriate directions on onus and burden of proof Whether reasonable prospects of success |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2) |
Case References: | Murray v The Queen (2002) 211 CLR 193 R v E (1995) 89 A Crim R 325 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE STOREY [2005] WASCA 175 CORAM : ROBERTS-SMITH JA HEARD : 8 SEPTEMBER 2005 DELIVERED : 8 SEPTEMBER 2005 FILE NO/S : CACR 83 of 2005 EX PARTE
WILLIAM HENRY STOREY
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MULLER DCJ
File No : POR 57 of 2002
(Page 2)
Catchwords:
Criminal law and procedure - Appeal - Application for leave to appeal against conviction - Direction to jury to reach finding on "who is to be believed" as between complainant and accused - Context in which direction given - Expressly subject to appropriate directions on onus and burden of proof - Whether reasonable prospects of success
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Result:
Extension of time granted
Application for leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr R W Keeley
Respondent : No appearance
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Murray v The Queen (2002) 211 CLR 193
Case(s) also cited:
R v E (1995) 89 A Crim R 325
(Page 3)
1 ROBERTS-SMITH JA: In this matter the appellant filed an appeal notice dated 19 May 2005 following his conviction on 19 April on one count of indecent dealing with a child under 13 years and two of sexual penetration of a child under 16 years. He was sentenced to a total of five years, eight months' imprisonment with parole. We have reached the stage where the applicant's case has been filed and it is necessary for me to consider whether or not leave to appeal should be granted.
2 Leave to appeal is required in respect of each ground in a proposed appeal by virtue of s 27(1) of the Criminal Appeals Act 2004 (WA) ("the CAA"). By s 27(2), the Court must not give leave on a ground unless satisfied that ground has a reasonable prospect of succeeding. By s 27(3), unless the Court gives leave in respect of at least one ground of appeal, the appeal is to be taken to have been dismissed.
3 The powers of the Court of Appeal under s 27 may be exercised by a single Judge (see r 43(2)(c) of the Supreme Court (Court of Appeal) Rules 2005.)
4 Although s 27(4)(a) of the CAA provides that the Court may decide whether or not to give leave to appeal with or without written or oral submissions from the parties, as I have mentioned, this matter has reached the stage at which the appellant's case has been filed and having read that, it seemed to me appropriate to list the application for hearing ex parte to enable the appellant to make oral submissions in support of the application.
5 On 30 June 2005 the Registrar granted an application by the appellant for extension of time to file the appellant's case to 28 July 2005. I was informed by Mr Love on the last occasion in which this matter came before the Court that the appellant's case was not filed within time and the appellant seeks a further extension.
6 There is one ground of appeal which is:
"The learned trial judge erred in law in directing the jury:
(1) 'A question does arise in this trial as to who is to be believed. It is an issue that without an exception arises in all sexual trials ...' (p 181).
(2) 'In this case you will have to evaluate the evidence of the complainant, on one hand, and that of the accused on the other and subject to the rules I have explained as to the
(Page 4)
- onus and standard of proof, reach a finding as to who is to be believed.';
- in that, such a direction reverses the burden of proof."
7 The appellant relies upon Murray v The Queen (2002) 211 CLR 193. He refers specifically to the judgment of Gaudron J at [23], Gummow and Hayne JJ at [57], Kirby J at [72] and Callinan J at [132]. Essentially their Honours in those passages indicated that where a trial Judge perhaps even correctly instructs a jury with respect to the onus of proof in certain passages, if the question is posed for the jury's determination being as to whether or not it accepts the prosecution's or the appellant's version of events, that would be a misdirection - subject of course to the context in which it appears. Gaudron J said in the passage at [23]:
"Although the trial Judge, in the earlier part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt."
8 As Gaudron J pointed out in that passage, the question posed there by the trial Judge for the jury's determination, namely whether they accepted the prosecution or the appellant's version of events, was the central or critical direction in her summing-up. That was not the situation here. In this instance the trial judge relevantly directed the jury as follows (t/s 181 and 182):
"In this case, however, the accused has elected to give evidence. He has given an explanation and answered questions put to him by his counsel. He has been cross-examined by the state prosecutor. You can and should take his evidence into account together with the evidence in the case as a whole in deciding whether or not the prosecution has discharged the burden of which I am speaking.
(Page 5)
- The law also requires the prosecution to discharge the burden of proof to a certain standard. That standard, as you have heard, is proof beyond reasonable doubt. If at the end of the trial you are left with a reasonable doubt as to the guilt of the accused, the prosecution has not made out its case and a verdict of not guilty must inevitably be returned in respect of that count or those counts where in your view a reasonable doubt exists."
9 His Honour then went on to refer to the comparison with the burden of proof in a civil case and then continued:
"It is, put quite simply, the entitlement of every accused person charged with an offence in the Commonwealth of Australia. It simply means that if the prosecution fails to establish guilt to your satisfaction beyond reasonable doubt, it has not discharged the burden which the law casts upon it and the jury must inevitably return a verdict of not guilty.
In this case, of course, there is a direct conflict between the evidence of the complainant on the one hand and the evidence of the accused on the other. A question does arise in this trial as to who is to be believed. It is an issue that without exception arises in all sexual trials and in most trials of other criminal offences as well. When you come to consider that question, it is essential that you have regard to what I have just said about the onus of proof and the standard of proof.
You must be aware that as a consequence of the rules I have just explained, even if you prefer the prosecution case, you are not entitled to act on it unless you are satisfied beyond reasonable doubt as to the truthfulness and the accuracy, that is the reliability, of the evidence put before you by the prosecution. Further, even if you do not positively believe the accused in relation to an issue, you are not entitled to be satisfied as to that issue if his evidence in your minds gives rise to a reasonable doubt in relation to that issue.
Of course, it is also the case that if you positively disbelieve the accused on an issue, you must still be satisfied beyond reasonable doubt as to the reliability of the prosecution case on that issue before you can find against the accused person in relation to that issue. What I have just said to you is simply an extension of these two overriding principles I explained at the
(Page 6)
- outset of my charge: firstly, the state must prove the guilt of the accused and carries the onus or burden of doing so; secondly, the burden must be discharged to the standard required by law, which is proof beyond reasonable doubt.
As I have said, cases of this nature turn upon the jury's findings as to the credibility of the witnesses who have testified. In this case, you will have to evaluate the evidence of the complainant, on the one hand, and that of the accused on the other and subject to the rules I have explained as to the onus and standard of proof, reach a finding as to who is to be believed."
10 The remarks attacked here by the ground of appeal appeared in the middle of entirely appropriate directions about the onus and burden of proof. It would have been better had his Honour not expressed himself in this respect in the way he did because such remarks have, at the very least, a potential to give rise to an appeal precisely on this ground or at worst might have a capacity to fatally mislead the jury so that any conviction must be quashed.
11 Taking these particular comments in the context in which they were made, there is no reasonable basis for apprehending that a bench of three judges of this court might conclude that the jury may thereby have been diverted from their proper duty. This ground has no reasonable prospect of success. That being so and because the delay was only brief I would grant the extension of time in which to file the appellant's case but I would refuse leave. The order is that leave to appeal on the sole ground is refused.
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