Rogers v The State of Western Australia - [2005] WASCA 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ROGERS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 248

CORAM: PULLIN JA

HEARD: 28 NOVEMBER 2005

DELIVERED : 28 NOVEMBER 2005

FILE NO/S: CACR 75 of 2005

BETWEEN: STEPHEN ALEXANDER ROGERS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SLEIGHT DCJ
File No  :IND 1508 of 2004

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27

Result:

Application dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr D P A Moen
Respondent: No appearance

Solicitors:

Applicant: David Manera
Respondent: State Director of Public Prosecutions

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

Gee v The Queen [2003] WASCA 178
Longman v The Queen (1989) 168 CLR 79
Samuels v The State of Western Australia [2005] WASCA 193

Case(s) also cited:

Nil

PULLIN JA: The applicant was convicted of five offences after a trial by Judge Sleight and a jury on 13 April 2005. The first conviction was in relation to an offence which read that on 16 October 2001 at Rivervale the appellant indecently dealt with the complainant, a child under the age of 13 years, by showing pornographic images to her, and the other four counts were counts of sexual penetration and indecent dealing.
The amended notice of appeal which has been filed contains two grounds which are as follows:
"1.The learned trial judge failed to direct the jury in terms of a Longman direction, such failure thus giving rise to a miscarriage of justice;
2.The learned trial judge failed to give defence counsel sufficient time to place before the jury evidence which would have materially assisted the defence in respect of the timing of the said offences and the credibility of the complainant and the prosecution witnesses:
PARTICULARS
(a)The defence made attempts to locate information pertaining to the Westnet Computer Internet Services account details and when it was that the offender had the relevant connection to the internet installed;
(b)Although some time was granted to defence counsel, it was insufficient in order to place before the jury the relevant information and as such the offender had an unfair trial;
(c)The evidence pertaining to the Westnet Internet Services account would have been exculpatory evidence for and on behalf of the defence."
It is now necessary in all cases to obtain leave to appeal. Section 27 of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. As to the meaning of that phrase see Samuels v The State of Western Australia [2005] WASCA 193. A short summary of the facts in this case is as follows.
The appellant was staying at the complainant's parents' house as a guest. The complainant was 10 years old on 16 October 2001. On the evening of that day the complainant's parents went to a school function, leaving the appellant to look after the complainant and her little brother. The complainant gave evidence that the appellant placed her on his knee and showed her pornographic imagines of children on the screen of his computer. That is the subject of the first count. Shortly after this the acts of sexual penetration and indecent dealing occurred. They were the subject of the other four counts.
The appellant said that he had gone out that evening. He said that, in any event, he had no pornographic images on his hard drive and he was on that day not connected to the Internet. He said that his Internet service provider was Westnet, that he had previously been connected to the Internet via Westnet and that he did not reconnect until the day after the offences. By convicting the appellant on count 1, the jury must have been satisfied that the appellant did show pornographic images to the complainant. The conviction does not involve any finding about how the images came to be on the screen.
There are two grounds, as I have mentioned. The first ground is a complaint about the Longman direction which was given by the Judge. There must first be a question about whether a Longman direction would be necessary in the circumstances of this case, given that the appellant was able to give evidence about what he said he was doing on that night, his evidence being that he was not even there. However, his Honour did give a Longman direction, and I will proceed on the assumption that it was necessary. His Honour gave his direction at t/s 216 and was as follows:
"You should also bear in mind all the matters that you might think have an impact on the reliability of the evidence of [the complainant], these include her age; (2) the additional matters she added on the account of the incident to the account she gave to the police, and further the fact that some of the additional matters she said were influenced by dreams. Also bear in mind that because of the delay the evidence of the complainant may not be able to be adequate tested.
By reason of the delay the accused has lost the opportunity to bring forward matters of defence and to test the evidence of the complainant. For example, firstly there was no immediate medical examination of the complainant. The medical examination that took place, took place in August 2003; (2) there was no seizing of the computer at the time and examination of the hard drive of the computer to see if the computer had been used to show images; (3) there was no forensic testing of the bedding which might have given either weight to the complainant's allegations or indicated that the allegations might be false.
The direction which I give you is based upon the experience of courts of the difficulty that an accused person faces in a case such as this. Because of the delay it is important that you scrutinise [the complainant's] evidence with special care. You are at liberty to act upon the evidence of Charlotte Tomlinson to convict the accused if you are satisfied of the truth and accuracy of it, but it would be unsafe to convict the accused on the uncorroborated evidence of the complainant unless having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred and taking full account of the warning I have just given to you, you are satisfied beyond reasonable doubt as to its truth and accuracy."
In Longman v The Queen (1989) 168 CLR 79 at 91, Brennan, Dawson and Toohey JJ said in relation to a sexual offence case:
"The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning were satisfied it its truth an accuracy. To leave the jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."
Since then the Court of Criminal Appeal in the case of Gee v The Queen [2003] WASCA 178 had reason to consider Longman's case. In that case at [15] and [16] it was explained that the terms in which the warning is given will depend upon the particular circumstances of the case before the Court and the evidence which is led by both prosecution and defence, and that no particular formula or form of words is required.
In my opinion, the direction given was a sufficient Longman warning. Much of the phraseology used by his Honour was taken directly from the passage from the judgment of Brennan, Dawson and Toohey JJ at 91 of the Longman case. The fact that his Honour said it would be "unsafe" to convict rather than "dangerous" to convict is in my opinion, of no moment. Gee's case makes it clear that no particular formula is required and a satisfactory Longman warning was given. This ground has no prospect of success and I would refuse leave to appeal on this ground.
Ground 2 is in effect a complaint that his Honour should have adjourned the trial. The complainant gave evidence that he had no pornographic images on his computer's hard drive and that he was not connected to the Internet, so it would have been impossible for him to show pornographic images to the complainant. The complainant, of course, did not say that the pornographic images came from the hard drive or from the Internet. She simply said that she was shown the images on the screen.
The evidence that the appellant was not connected to the Internet was given by him in cross‑examination on 12 April 2005. He said he was not connected to the Internet until the day after the offence. He said that he had, at some unspecified time before the trial, sought information from Westnet to support his contention that he was not connected to the Internet on 16 October, that this information had been obtained and that his former solicitor, David Manera, had the information. He said he was asking his counsel to produce that material. At t/s 188 he said, in answer to a further question, that he would provide the paperwork to verify that he was not connected to the Internet.
The cross‑examination concluded shortly before the luncheon adjournment on 12 April 2005. His counsel asked for a delay in re‑examination until after the luncheon break. After the break his counsel reported that he had been to Mr Manera's office and with Mr Manera and his secretary he had searched for the information but the information was not on Mr Manera's file. His counsel suggested two alternatives, either that the addresses be adjourned until the following morning or that addresses continue with the appellant having the right to tender the documentation if it appeared between then and the completion of the trial on the next day.
His counsel correctly identified the evidence as going to the first count and flowing over to the others on questions of credibility. As a result his Honour agreed to adjourn. The adjournment was at about 2.25 pm on 12 April.
The next morning, 13 April, his counsel reported that he had faxed Westnet asking for information. The appellant intervened to inform the Court that Westnet was a Western Australian company and his counsel then asked for perhaps another half hour or something to see if something had arrived from Westnet. The Judge then adjourned for another hour and a half. Before doing so counsel for the appellant said that if the information did not arrive then "I would simply be putting it on the basis that there is no onus on him to prove anything" and the Judge agreed that he would be charging the jury to that effect anyway.
After the one and a half hour adjournment the appellant's counsel reported that he had sent off another fax to another fax number because he had sent his earlier ones to a wrong number and then added "but perhaps we could go ahead with the addresses and if the documentation does arrive maybe by consent it might be admitted". His Honour then said that he did not think that the matter could be delayed in anticipation that something might arise. He said that if something more definite existed then he might consider a further short delay. He said that unless there was something concrete put before him he would be inclined to say that the trial should proceed. As a result addresses then took place, his Honour summed up and the jury convicted on all counts.
The essence of the complaint on this ground must be that by not granting the adjournment a miscarriage of justice has occurred because the appellant has lost the opportunity of placing before the Court relevant evidence. Indeed ground 2 says so. In my opinion if this ground is to succeed it would be necessary to know whether any evidence was excluded as a result of his Honour's refusal or failure to grant the adjournment of the trial. If evidence was excluded then it would perhaps be arguable that there should be a retrial. I say perhaps arguable rather than definitely arguable because to prove that he was not connected to the Internet does not prove that the images were not on the screen and not shown to the complainant.
Nevertheless, I will assume for the moment that such evidence would be sufficiently relevant to argue for a retrial. In giving directions leading up to this hearing I directed that the appellant be asked whether or not the appellant intended to seek leave to adduce new evidence, that is new evidence in contradistinction to fresh evidence. Counsel for the appellant responded advising that the appellant did not seek leave to adduce new evidence and that no such application would be filed, and again today I am told that there is no new information of which counsel is aware.
In those circumstances, I consider that there is no reasonable prospect that this ground should succeed. To succeed on such a ground it would be at least necessary to show that the refusal to grant the adjournment had resulted in the exclusion of evidence. To show that it would be necessary to seek leave to adduce as new evidence the Westnet records showing that he was not connected to the Internet via Westnet on 16 October, that he was connected before that date and he reconnected on 17 October as he said. No such effort has been made.
In those circumstances the appellant has in my opinion no reasonable prospect of succeeding on this ground of appeal. I would refuse leave in relation to this ground. The consequence is that leave to appeal is refused on all grounds and the appeal is dismissed.