Redel v The State of Western Australia

[2007] WASCA 191

REDEL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 191

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 191
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:52/2007	Heard:	10 AUGUST 2007
Coram:	WHEELER JA	Delivered:	21/09/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Extension of time refused
Category:	B
PDF Version

Parties:	JAMES REDEL THE STATE OF WESTERN AUSTRALIA
Catchwords:	Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : REDEL -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 191 CORAM : WHEELER JA HEARD : 10 AUGUST 2007 DELIVERED : 21 SEPTEMBER 2007 FILE NO/S : CACR 52 of 2007 BETWEEN : JAMES REDEL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WISBEY DCJ

File No : IND 1539 of 2004

Catchwords:

Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Extension of time refused

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr M A Perrella

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

1 WHEELER JA: This is an application for an extension of time and, if an extension of time is granted, an application for leave to appeal in relation to one count of sexual penetration without consent, being count 14 on the relevant indictment. The appellant was convicted after trial of eight of the 22 counts which arose out of a series of connected incidents (counts 13 and 14 having effectively been left to the jury in the alternative). The counts of which he was convicted were assault occasioning bodily harm, wilful damage, two counts of unlawful detention, two counts of threatening to unlawfully kill, one count of stealing a motor vehicle and count 14 (which was a sexual penetration, being an anal penetration, without consent). As I have mentioned, the appeal relates only to the conviction in respect of count 14. The background circumstances were, broadly, as follows.

2 The complainant at the time of the offences was 19 years of age, and the appellant was 37. They had been involved in a dysfunctional de facto relationship which, according to the complainant, included numerous episodes of physical and emotional abuse. The 22 counts on the indictment were alleged to have occurred over a period of four or five days in late April and early May of 2004. The complainant was said to have separated from the appellant previously, but to have returned to him following repeated requests from him. When they first reconciled, they engaged in consensual sex.

3 However, on a day shortly following, the appellant became angry with the complainant, and began by verbally abusing her. It was alleged that he not only verbally abused her, but that he damaged items of property, including her property, that he assaulted her, and that there were a number of occasions of non-consensual sexual penetration. Count 16 of the indictment, of which the appellant was also convicted, involved a threat to kill, which involved the appellant constructing a device with an electric cord which he had plugged in and connected to the power point. It was alleged that he had demonstrated how the device worked by touching a piece of alfoil with it, with the result that the alfoil "blew up" and that a power blackout was caused in the workshop where the complainant was being detained.

4 There was considerable circumstantial evidence supporting at least some aspects of the complainant's account. She had a cut to the head, black eyes, bruising to and behind the ear and to the ribs. Her blood was found in the workshop where it was said that the offences had occurred. There were cut pieces of rope, corresponding with the rope which she said had been used to tie her with traces of her blood on them. Lint found on

(Page 4)

some masking tape was consistent with the way in which she said she had been gagged. There was bruising on the complainant's body which was described as being typical of finger-pad bruising - that is, bruising caused by someone being gripped very firmly. There were also some pale, faint abrasions to one wrist, which had a linear quality; the State alleged that they were consistent with the complainant's account of having had her wrists tied by the appellant.

The application for an extension of time

5 The appellant was convicted in February 2006. His appeal notice is dated February 2007, but does not seem to have been filed until May 2007. It is therefore well over a year out of time.

6 The appellant's explanation for the delay is essentially that he had been refused legal aid and had had difficulties in getting assistance from the unrepresented criminal appellants' programme to get his paperwork in order so that he could commence his appeal. Although that is an explanation for delay, to some extent, and it is accepted that unrepresented appellants do encounter significant procedural difficulties, and may not be competent with written documents, it is difficult to accept that it was not possible for the appellant to have at least commenced his appeal before May this year. Most unrepresented appellants manage to file a document of some kind in less than a year, even if they are often several months out of time. It appears to me that a proper assessment of the delay in this case is that it is gross delay and that it is only partly explained by the difficulties facing an unrepresented appellant.

7 Even having regard to the length of delay, it is my view that it would be appropriate to grant the extension of time if there were any serious suggestion of merit in the grounds which the appellant seeks to advance. It is to those grounds that I now turn.

Grounds of appeal

8 The grounds filed by the appellant are, in form, a cross between grounds of appeal and submissions. However, I put it to the appellant, when hearing his application on 10 August this year, that he was, in effect, saying three things, and he agreed with that proposition. They were: first, that there were further medical and forensic tests which were not carried out; second, that the absence of certain injuries, noted by the medical practitioner, was such that a jury should have had a reasonable doubt about count 14; and third, that there were inconsistencies in the

(Page 5)

complainant's evidence such that the jury should have had a reasonable doubt about count 14.

9 The first and second of those matters can be dealt with together. It is the appellant's contention that, had he anally penetrated the complainant as she alleged, there would have been, on medical examination, physical signs of that penetration detected. No physical signs were detected. Further, he contends that, since the complainant alleged that he used a condom, forensic examination of the condom would have proved that it displayed no evidence of either blood or faecal material, which one might have expected in those circumstances.

10 So far as the absence of physical signs is concerned, it should be noted that it was the complainant's evidence (ts 164) that when she saw the doctor some five days after the alleged assaults, she felt that both her vaginal and anal injuries had healed. The doctor's evidence can be briefly summarised as follows. She said that it would be more likely to see an injury in anal penetration than one would expect with vaginal penetration. In relation to the latter, it was her evidence that the literature relating to sexual assault suggested that less than 25% of people would have an easily visible vaginal injury. However, she said that, even in relation to the anus, one has to consider factors such as the amount of time between the alleged occurrence and the examination. It was her evidence that injuries in that area healed very quickly, since it was an area with a good blood supply and that an examination even two or three days later may mean that an injury which might have been visible initially would no longer be visible. That is, there was no inconsistency between the complainant's account and the medical evidence, so far as the absence of visible injury on medical examination was concerned.

11 So far as examination and testing was concerned, it was the doctor's evidence that she only examined the anus externally and did not use an anoscope. She had no note of why she had not done so in this case. It was her evidence that she would have offered to carry out such an examination, although she may not have done so if the particular person was exhausted, or if it was uncomfortable for her. It was her evidence that, since the anoscope is a "fairly large plastic instrument", it was very unusual for people to consent to such an examination (ts 425). She agreed with cross-examination to the effect that, if there were anal penetration, there could be some breaks in the skin which could cause bleeding. The absence of such an examination was before the jury, for them to make of it what seemed appropriate to them. It is not clear from the doctor's evidence whether further examination of that kind would have been likely

(Page 6)

to have detected any signs of injury five days after an assault of the kind alleged by the complainant, so that it is by no means clear that the absence of such examination was of any relevance at all.

12 So far as examination of the condom was concerned, there were no forensic tests for blood or faecal material carried out. The condoms were analysed only for DNA. No visible faecal material or blood was seen on them, but no chemical screening was done to test for either substance.

13 The evidence of the visual examination was favourable to the appellant. It is no more than bare assertion on his part that, had there been further chemical examination, no traces of relevant materials would have been chemically detected. It is no more than an assumption that the hypothetical failure to find such material would have been inconsistent with his guilt in relation to count 14.

14 Putting it more succinctly, absence of evidence is not evidence of absence, and this court cannot speculate about what might have been found, had certain inquiries been undertaken, or what evidence might have been led about those hypothetical findings. I would add that there is no material before me which suggests that either the appellant or his counsel, at any time prior to or during the trial, sought to either have the condoms forensically examined in that way or to have access to them in order to have their own tests carried out.

15 So far as the alleged inconsistencies are concerned, the appellant has provided an "appeal book", received in the Court of Appeal office on 9 August 2007, setting out what he alleges to be relevant inconsistencies. Although it is not an appeal book as provided for by the rules, I have had regard to it.

16 It is clear that the appellant has spent a good deal of time going through the materials in order to find what he regards as inconsistencies. Many of them may or may not properly be regarded as inconsistencies. In many cases, it appears to me that what he puts forward as inconsistency is no more than a different or more abbreviated way of saying the same thing on more than one occasion. For example, in a police statement made by the complainant, she speaks of an occasion on which she woke up, had blood all over her eyes, and then she says the following occurred:

300. I got up and started cleaning up the shed, sweeping all the mess on the floor.

(Page 7)

301. Jamie [the appellant] made me help him prep the car for him. I remember prepping the car with blood still all over my hands.

302. After I prepped the car, Jamie told me to have a shower, he said 'Go have a shower, you can't get around looking like that'. [It is clear from an earlier part of the statement that 'the car' was a maroon Mazda.]

17 In her evidence-in-chief, she said that when she got up what had occurred was, "James was working on the maroon Mazda ... I think I walked around. He told me I can't get around looking like that". Although there is no reference in that account to her having started to clean up, or helping to "prep" the car, the accounts are consistent to the extent that they suggest that the appellant was working on a car and that the appellant had told the complainant that she could not "get around looking like that". Her account continued by explaining that the appellant had told her to go and have a shower. These are not so much inconsistencies, as omissions of immaterial matters, of a trivial kind.

18 A further difficulty with the appellant's concern for alleged inconsistencies in the complainant's account is that, as is clear from the submissions he made to me, many of the inconsistencies the subject of his appeal are inconsistencies alleged to exist between statements made by the complainant to the police, and her evidence in court, which alleged inconsistencies were never put to her during the course of cross-examination. The appellant advised me that he had picked out "over 150 inconsistencies" in relation to the statements and that his trial counsel had told him that he did not refer to them because that would be "nit-picking".

19 There is nothing to suggest that the decision made by trial counsel was not a forensically sensible one. In that case, there is no basis upon which the appellant can now complain of the failure to refer to those matters in court. Nor can this court have regard to matters not aired at trial in order to form a view that the appellant should not have been convicted.

20 To the extent that there were apparent inconsistencies in the complainant's account, or inconsistencies between her account and either what she had said to the police, or between her account and the forensic evidence, which did emerge at trial, those were matters which were before the jury, about which his Honour gave appropriate directions.

(Page 8)

21 His Honour explained to the jury (ts 533) that if a witness had made a prior inconsistent statement, that was a matter they could take into account in evaluating the worth of what the witness had said on oath. His Honour explained that the jury would, of course, look to the significance of the inconsistency, and consider whether it was merely a minor discrepancy that could readily be explained by memory lapse, mistake or confusion, or whether it was something that went directly to the witness' veracity and truthfulness. His Honour directed the jury (ts 551) that the reliability and truthfulness of the evidence of the complainant was critical in relation to all counts in the indictment. Although his Honour did not go through all of them, his Honour did direct the jury's attention to a number of matters which had been pointed to by the appellant's counsel as being inconsistencies relevant to her credibility. His Honour mentioned, in that context, the absence of any medical evidence of genital or anal injury.

22 In my view, the proposed grounds of appeal, analysed into the three broad categories which I have described, do not reveal any matters of merit. They certainly are not of sufficient force to warrant an extension of time within which to appeal, having regard to the appellant's lengthy delay. I would refuse leave for an extension of time within which to appeal.