Ryan v The State of Western Australia
[2011] WASCA 7
•14 JANUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RYAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 7
CORAM: McLURE P
PULLIN JA
MAZZA J
HEARD: 7 OCTOBER 2010
DELIVERED : 14 JANUARY 2011
FILE NO/S: CACR 173 of 2009
CACR 174 of 2009
CACR 18 of 2010
BETWEEN: DEREK CHARLES RYAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CACR 173 of 2009
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 129 of 2007
For File No : CACR 174 of 2009
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HASLUCK J
File No :INS 112 of 2008
For File No : CACR 18 of 2010
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :INS 129 of 2007
Catchwords:
Criminal law - Appeal against conviction - Whether verdicts unreasonable or cannot be supported by evidence - Construction of s 8(1) of the Evidence Act 1906 (WA) - Whether co-accused a competent witness for the prosecution in accused's trial - Whether a substantial miscarriage of justice - Turns on own facts
Criminal law - Appeal against sentence - Whether sentencing judge erred in refusing to make a parole eligibility order - Whether failure to give adequate or proper consideration to a relevant sentencing factor - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Evidence Act 1898 (UK), s 1
Evidence Act 1904 (WA), s 8(1)(a), 8 (1)(d), s 11, s 21, s 22
Evidence Act Amendment Act 1913 (WA)
Sentencing Act 1995 (WA), s 89(1), s 89(4)
Result:
Application for extension of time to appeal against conviction and sentence dismissed
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Mr P D Yovich
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Doughty v The Queen [2002] WASCA 238
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Manyam v The State of Western Australia [2009] WASCA 164
Moody v French [2008] WASCA 67
R v Chai (1992) 27 NSWLR 153
Roffey v The State of Western Australia [2007] WASCA 246
Royer v The State of Western Australia [2009] WASCA 139
The State of Western Australia v Wells [2005] WASCA 23
Vagh v The State of Western Australia [2007] WASCA 17
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
McLURE P: The appellant seeks an extension of time and leave to appeal against his conviction and sentence.
On 8 October 2008 the appellant was convicted after trial of one count of aggravated burglary and one count of aggravated armed robbery. He was sentenced by the trial judge, McKechnie J, to 5 years' imprisonment for the burglary and 8 years' imprisonment for the armed robbery. McKechnie J ordered the sentences to be served concurrently resulting in a total effective sentence of 8 years' imprisonment. Eligibility for parole was refused.
On 3 April 2009 Hasluck J sentenced the appellant on a further count of aggravated armed robbery and on 15 charges the subject of a s 32 notice. Hasluck J imposed a total effective sentence of 4 years' imprisonment which he ordered to be served cumulatively with the total sentence of 8 years imposed by McKechnie J. Hasluck J also refused to order that the appellant be eligible for parole.
The appeal against conviction was filed on 12 February 2010, some 14 months out of time. The appeal against the sentence imposed by McKechnie J was filed on 13 November 2009, more than 12 months out of time. The appeal against the sentence imposed by Hasluck J was just over seven months out of time. The delay in commencing the three appeals is both gross and inadequately explained. An extension of time will not be granted unless the appellant establishes that there has been a miscarriage of justice which would warrant the court setting aside the verdict or the sentence (as the case may be).
Appeal against conviction
The appellant relies on two grounds of appeal. He claims that, having regard to the evidence adduced at his trial, the verdicts were unreasonable or could not be supported. He also claims the trial judge erred in refusing to allow the appellant's counsel to cross‑examine a prosecution witness, Jonathon Slater, concerning evidence he had given in Children's Court proceedings.
The offences were committed on 15 June 2006. Three men were charged with aggravated burglary: the appellant, Slater and Dwayne Narrier, a juvenile. Slater and the appellant were also charged with aggravated armed robbery. Narrier was tried and convicted of the aggravated burglary offence in the Children's Court in January 2007. By that stage, the appellant and Slater had also been charged. Slater was a prosecution witness at Narrier's trial. Some time later, Slater pleaded guilty to both offences and gave evidence for the prosecution at the appellant's trial in October 2008.
The prosecution case
At around 2.00 am on 15 June 2006, three men broke into the home of Raffaela Bunting (the complainant) in Balga whilst she and her 9‑year‑old daughter were sleeping. The complainant's evidence was as follows. The men asked for 'Mitch', a woman who had until recently lived at that address. Two of the men remained in the living room with the complainant but the third, who was carrying a screwdriver, went into the kitchen. At the Children's Court trial, the complainant identified the third man as Narrier. One of the men in the living room put a knife to the complainant's throat and asked for gold, money or drugs. When she told him she did not have any, the man demanded that she give them anything she had. She gestured to her stereo. The two men took the complainant's stereo, mobile phone, cigarettes and makeup bag.
The complainant was unable to identify the man who held the knife to her throat. However, she identified the other man as the one who was arrested by police outside her house on the night of the offending. That was Slater.
The complainant's daughter also gave evidence which was broadly consistent with that of the complainant. However, the daughter said that after one of the offenders put a knife to the complainant's throat, the same offender then put the knife to her throat.
Senior Constable Trewin gave evidence that on the morning of 15 June 2006 his suspicions were aroused by a Ford Falcon which he followed. The vehicle turned around and went back the way it had come, ultimately stopping in a dead end. Two men got out of the car and fled. Constable Trewin and his partner approached the stationary vehicle and noticed a third man crouching down in the back seat. They arrested the man who was later identified as Slater. Constable Trewin searched the car and found a stereo in the back seat, a screwdriver, a large silver knife and a baseball bat. The plates attached to the Ford Falcon (8MU-417) were later found to be false.
Linda Trott testified that she had given her white Ford Falcon (without plates) to the appellant for him to repair. This was the same Ford Falcon in which Slater was located by Constable Trewin. The appellant admitted that he collected the white Ford Falcon from police on 21 August 2006. He also admitted collecting the false plates (8MU‑417) from police on 26 April 2007.
The prosecution also called Troy Riley. His evidence‑in‑chief was that the appellant and Narrier (Riley's cousin) drove him to his grandmother's place in June 2006. The car, which was being driven by the appellant, was identified by Riley as the appellant's white EA Ford Falcon. He said there was talk in the car about going to someone's house in Balga to look for someone to get money.
The defence case put to Riley in cross‑examination was that (i) the appellant, Narrier and Riley went in the appellant's white vehicle to Jodie Drayton's house; (ii) Slater was at Drayton's house on their arrival or shortly thereafter; (iii) the idea was to go and get some amphetamines; (iv) Riley, Slater and Narrier left Drayton's house in the appellant's white vehicle to get the drugs, leaving the appellant behind at Drayton's house.
Riley accepted that he went with the appellant and Narrier in the appellant's car to Jodie Drayton's house and that there was discussion about going to get amphetamines. However, his evidence was that the appellant, in company with Slater and Narrier, left Drayton's house in the white vehicle to get the drugs, with Riley staying behind.
Slater's evidence‑in‑chief at the appellant's trial was to the following effect. He was at Drayton's house on 14 June 2006. Earlier that day Slater had given a lady named Mitch $200 for a half weight of speed (amphetamine). In the early hours of the following morning, the appellant, Narrier and two others arrived at Drayton's house. On their arrival the appellant and Narrier said they wanted to go and get some amphetamines. Slater thought Mitch owed him $200 and would be able to supply amphetamines. The appellant, Narrier and Slater drove in the appellant's white Ford Falcon to the complainant's house in Balga where he had met Mitch a few times. Slater knocked on the door and asked whether Mitch was there and someone said 'no'. The appellant then kicked in the front door and Slater entered first. He was unarmed but the appellant was carrying a knife. The appellant grabbed the complainant's daughter and held a knife to her throat and demanded money and drugs. The three men left the house with a stereo belonging to the complainant. After driving off, they encountered a police car so turned around and went back to the house. The appellant and Narrier fled on foot. Slater remained in the car and was subsequently arrested. I will return to the cross‑examination later.
The defence case
The appellant exercised his right to silence but called for one witness, Narrier. Narrier confirmed that he had travelled to the scene of the crime in the appellant's white Ford Falcon.
Narrier's evidence was that earlier in the day Narrier had been with his cousin, Troy Riley and the appellant. They dropped Riley off at 'my nan's' and then went back to the appellant's cousins' house. Narrier referred to the appellant as 'Digger'. Narrier said that the two men who went to the complainant's house with him on the night in question were Slater and 'Digger's nephew', an unnamed person but not a reference to Riley. Narrier said he only went with them to make sure that Digger's car would be returned to him (Digger). According to Narrier, Slater drove the car to and from the complainant's house. His version of events in the house is inconsistent with the evidence of the complainant and her daughter.
Slater's prior inconsistent statements and evidence
Slater participated in a video record of interview with police on 15 June 2006. Later that day he signed a written statement. That statement reflects the substance of the interview and is to the following effect. [The bracketed numbers hereunder refer to the numbered paragraphs in the relevant statements].
Slater was at Jodie Drayton's house on 14 June 2006. At that time he was going out with her daughter Chanelle. In the early hours of the morning of 15 June 2006 the appellant stuck his head through the door of the bedroom occupied by Slater and his girlfriend. The appellant asked Slater if he had any money or drugs and then took $85 from his girlfriend's purse. When Slater complained, the appellant pulled out a screwdriver. Woods (Narrier) then entered the bedroom. After a short conversation with them about money, Slater got into a white EA Falcon driven by Narrier. He got into the car on the understanding that they were going to an ATM machine to enable him to withdraw money to give to them. When they started driving away from the bank he asked what was going on and the appellant told him that they were going to see Mitch because she ripped him off for a half weight of speed the night before. The appellant and Narrier got out of the car, both carrying screwdrivers [26]. Slater waited in the car for about 10 minutes [27] ‑ [28]. When they had not returned, he got out and went to the front door where he could see the complainant and her daughter. The appellant ran up and down the stairs [30]. Narrier left the house with the stereo system and the appellant with a baseball bat [33]. Slater followed them into the car and got in the back seat.
Slater gave evidence for the prosecution at Narrier's trial. At that time Slater was in prison on remand for these offences. Slater's evidence‑in‑chief was consistent with aspects of his earlier statements as to the events leading up to when he went to the house. Thereafter it diverged. His evidence at trial was that when he got to the front door of the complainant's house the appellant told him to go back to the car with the baseball bat: ts 19. He was not able to recall what the appellant and Narrier were doing inside the house and did not hear any conversation taking place in the house: ts 20. In essence, Slater's evidence exculpated himself and minimised the culpable conduct of his co‑offenders.
Slater's cross‑examination commenced with the following:
So Jonathan, you have pleaded not guilty in relation ‑ you have been charged with this matter and it's one of the matters that you are on remand for at the moment?
So you are aware that the things that you say in today's court appearance can be used when it comes to your hearing?
HER HONOUR: You have to actually answer, Jonathon---Yes (ts 22).
The only matter of substance put to Slater in cross‑examination was that he was one of the first two men to go into the complainant's house, to which he answered 'no': ts 23.
On 12 September 2008 Slater signed a handwritten statement concerning the events on the night in question. It was to the following effect. On 14 June 2006 he had seen Mitch who gave her address as being at the complainant's house in Balga. He gave her some money and she was meant to go off and get some speed for him from that address. Mitch did not return. The appellant and Narrier arrived at Drayton's house at about 10.00 pm and wanted to get some drugs. The appellant, Narrier and Slater went to the complainant's house in the appellant's car. He said he had never met the appellant or Narrier before that night and he just knew them as Derek and Dwayne and that someone from the West Australian police later told him their surnames [16].
When they arrived at the complainant's house they all got out of the car and knocked on the door [19]. Slater did not have a weapon. When he was at the front door he realised the appellant had a knife in his hand [20]. He could not recall if Narrier was armed [22]. Slater knocked on the door and called out 'Is Mitch there' [24]. A female voice said no. Slater thought it was Mitch's voice. He knocked again and a woman opened the door [27]. He did not recognise her. Slater walked in first and said 'Where's Mitch' and the appellant walked in at the same time [30]. Narrier did not walk in straight away. He waited outside at the front door for a short time [33]. Slater was standing where the door frame was and he told the complainant that Mitch owed them money and drugs and that the appellant spoke to the complainant about Mitch, after which they left [31] ‑ [34].
There was no forced entry [35]. Slater did not take any property from the house [36]. He could not recall if anyone else (Narrier or the appellant) took any items from the house [37]. He could not remember if there was a stereo in the back seat of the appellant's Ford when he drove there [38]. He could not now remember any stereo [39]. He did not go past the front door frame [40]. Narrier and the appellant went further in than him [41]. Slater recalled the complainant saying the stereo belonged to Mitch and they could take it [43].
Threats were probably made but he could not remember what was said [44]. He knew the appellant was making some threats towards the complainant but could not recall what he was saying [45]. He remembered that the appellant had a knife but could not remember if he had threatened anyone with it and did not remember if he held the knife against anyone's throat or not [46] ‑ [47].
Slater said he could not remember if there had been any children at the house but maybe the complainant's daughter was there [56]. He reiterated that no one had forced entry to the front door that he could recall [57].
Slater signed a further statement dated 29 September 2008. He said he wished to correct something in the 12 September 2008 statement. He states:
6.Entry was forced.
7.Derek Ryan was holding the knife when he was threatening the woman I believe to be [the complainant].
8.I was involved in Ryan's threats and the stealing of the video.
9.I wish to add that it was Derek Ryan who booted the door.
All the written statements made by Slater end with a declaration in the following terms:
I declare that this statement is true and correct to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or do not believe is true.
The maximum penalty for making a wilfully false statement tendered in evidence is imprisonment for 7 years: Criminal Procedure Act 2004 (WA), sch 3, cl 4(8).
The cross‑examination of Slater
The cross‑examination focussed on Slater's prior inconsistent statements in the following order: the statement of 12 September 2008, the statement of 29 September 2008, the statement of 15 June 2006 and the video record of interview.
Starting with the statement of 12 September 2008, the cross‑examiner took Slater to around 20 individual paragraphs, obtaining admissions from Slater that statements made therein were false. These include the statements in [27], [35] ‑ [41], [46], [47], [56] and [57] which I have set out earlier. In the course of cross‑examination about par 27 the following exchange occurred:
And who opened the door?---No one opened the door.
If you look at paragraph 27 of your statement?---yeah
'A woman opened the door. I did not recognise her. I believe now that it was Lena Bunting'. So she opened the door, did she?---No.
But that's what you have said?---Recently, before we come to court and before this court appearance today and before I made the statement, there were threats made in prison about what I should and shouldn't say in this statement and now I've just pleaded guilty to these charges and I'm telling the truth today. The door was [not] opened by anyone inside the house. The door was booted in.
So when you made this statement to the police, as recently as 12 September 2008, that wouldn't have been made in the prison, would it?‑‑‑Yes. This was made in prison.
But was it not in a private place between you and a police officer?‑‑‑Yeah.
So how was whoever made these threats going to know what you put into the statement to the prison officer?‑‑‑Well, in prison there's ‑ in prison you're related to everyone, you know. Anyone could have walked up to me and sort of, you know ‑ like, when I get back to gaol today I'm still going to have problems (ts 128).
Slater was cross‑examined about the content of a letter from his lawyer to the DPP which recognised that his client would get some benefit in terms of sentencing if he were called to give evidence against the appellant. The cross‑examination took up this point:
The question to you, Mr Slater, is: that's what this is about, isn't it? You are expecting an advantage?‑‑‑For?
To your sentence in giving evidence against Mr Ryan? Isn't that true?‑‑‑Whether I get an advantage off my sentence [or] not, I can't go and get a ‑ another young boy who is downstairs gaoled for a crime he didn't commit and whether I get gaol or not, I don't care how much gaol I get. I just want to get my gaol over with and get back to my family and get on with my life (ts 138).
Slater gave evidence at the appellant's trial after Riley but on the same day. The jury were aware that Riley was in custody 'downstairs' in the Supreme Court (ts 97). It can be inferred from the letter to the DPP and the cross‑examination that some time between 29 September 2008 and the commencement of the appellant's trial, Slater had pleaded guilty to the offences.
Slater was cross‑examined about par 7 of the statement of 29 September 2008 as follows:
So if you are looking at paragraph 7, is that true or false, 'Derek Ryan was holding the knife when he was threatening---' ?---Yeah, when he was making threats before he held the knife to the daughter, he was ‑ he had the knife in his hand when he was making threats to Lena (ts 139).
Slater was also cross‑examined on statements made by him in [23], [26], [27], [30] and [33] of the statement of 15 June 2006. Slater admitted that the statements to which he was taken were incorrect. The admittedly untrue statements were that:
-the appellant and Narrier were carrying screwdrivers when approaching the complainant's house [26];
-Slater waited in the car for some time before going to the house [27];
-the appellant ran up and down the stairs at the complainant's house [30].
-the appellant picked up a baseball bat from the complainant's house [33];
In the course of cross‑examination on these matters Slater said:
At the end of the day, like I'd like to say I'm sorry for lying back then, but that one there was made up, but like I said, from back then when this happened to now, a lot of my life has changed. I've got a family of my own and this is why I just want to confess and admit to it (ts 140).
Slater also admitted that he made a number of untrue statements in his video record of interview. The untrue statements were that:
-the appellant and Narrier were armed with screwdrivers;
-he did not go into the complainant's house (a statement made to police at the scene);
-the appellant and Narrier forced him to the front door frame of the house;
-he was terrorised with a screwdriver by his co‑accused;
-he did not step foot in the front door;
-he had not seen anyone in the house with a knife; he had only seen them with screwdrivers;
-he first met the appellant about three or four months previously.
Slater explained at trial that he knew, but had not met, the appellant. He knew him because the appellant's brother had two children with Slater's auntie (ts 125).
Unsafe verdicts (ground 1)
Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) empowers the court to set aside a conviction if, having regard to the evidence, the verdict is unreasonable or cannot be supported.
The jurisprudence concerning s 30(3)(a) developed using the phrase 'unsafe or unsatisfactory'. However, the change in wording does not affect the approach an appellate court is required to take: M v The Queen (1994) 181 CLR 487, 492; Jones v The Queen (1997) 191 CLR 439, 450.
The plurality in M v The Queen stated the relevant principle as follows:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations [493].
The plurality continued:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [494].
At the hearing of the appeal, the appellant's counsel sought to rely on statements made in depositions that were not the subject of evidence at trial. That material is irrelevant to this ground of appeal which depends solely upon an examination of the evidence adduced at trial. No complaint was made about the directions given by the trial judge in relation to the approach to be taken to the assessment of Slater's evidence.
The question for this court is whether on the whole of the evidence it was open to the jury as a matter of fact to be satisfied beyond reasonable doubt that the accused was guilty. On my assessment of the evidence, the answer is in the affirmative.
There are a number of circumstances that are relevant to an assessment of Slater's evidence. First, the evidence established that the appellant's vehicle was used by the three men who committed the offences. Secondly, it was accepted by the defence that the appellant was present in Drayton's house up to the time when the three offenders left her house in the appellant's vehicle to travel to the complainant's house. Thirdly, there was evidence from Riley from which it could be inferred that the appellant was present when the plan to go to the complainant's house was discussed. In the circumstances, the appellant would be expected to know who the third man was. However, the defence case was inconsistent. Initially, the defence position was that Riley was the third man. However, Narrier gave evidence (rejected by the jury for fairly obvious reasons) that the third man was the appellant's (unnamed) nephew.
There were numerous inconsistencies between the evidence given by Slater at the appellant's trial and the written and oral statements which preceded it. However, there was one constant in Slater's statements and that was the identity of the three co‑offenders. Most importantly, there was no inconsistency at any stage as to the identity of the appellant as the third offender.
Further, Slater's status as an accused awaiting trial and the reasons he gave for the inconsistencies between his evidence at the appellant's trial and his prior statements provide an objectively compelling explanation for his conduct. At all times until the statement of 29 September 2008 Slater was attempting to minimise his role to avoid liability. That conduct went hand in glove with his denial of guilt. After his decision to plead guilty, there was no glaring or obvious attempt to minimise his culpability. Further, according to Slater, he was subject to pressure from others within the prison system as to the content of his statements. His explanation of the pressure placed on him to name another person as the third offender has some resonance with the conduct of the defence case at trial.
It was open to the jury in fact and in law to be satisfied beyond reasonable doubt that the appellant was the third offender. The appellant has failed to demonstrate that the verdicts were unreasonable or not supported by the whole of the evidence.
Ground 2
After cross‑examining on the inconsistent statements in Slater's video record of interview, the appellant's counsel then attempted to cross‑examine Slater concerning his evidence in the Narrier trial. The trial judge ruled that Slater could not be cross‑examined on that evidence because it was given in contravention of s 8(1)(a) of the Evidence Act which provides:
(1)Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person: Provided as follows ‑
(a)a person so charged shall not be called as a witness except upon his own application.
The trial judge found that Slater was called on the application of the prosecution, not on his own application. There is no challenge to that finding. The trial judge also noted that Slater was never warned that he was not required to answer questions on the ground that they might tend to incriminate him.
The trial judge concluded that by virtue of s 8(1), Slater was either not a competent witness or not a compellable witness for the prosecution in the Narrier trial with the consequence, as a matter of law not discretion, that he could not be cross‑examined on that evidence in the appellant's trial.
The appellant's challenge to the trial judge's ruling focussed solely on s 21 and s 22 of the Evidence Act which, it was contended, gave the appellant a right to cross‑examine Slater on prior inconsistent statements he had made in his evidence in the Narrier trial. The State in its written submissions simply asserted without elaboration or explanation that the trial judge's ruling was correct.
After the completion of the hearing of the appeal, the State provided further written submissions on issues raised by the court. The State's subsequent position was that the trial judge erred in concluding that he had no discretion to permit cross‑examination of Slater on his evidence in the Narrier trial. It was also conceded that the discretion could properly have been exercised to allow the cross‑examination. However, the State contends the refusal to allow it did not occasion any miscarriage of justice let alone a substantial miscarriage of justice.
Neither party was able to assist the court on the question whether s 8 had any application to Slater's position at all. As this court was not provided by the parties with any assistance or relevant authorities on whether s 8 applied, it is inappropriate to determine that issue in these proceedings. However, the matter cannot be left without comment in view of the trial judge's ruling.
It is necessary to start with the common law background. At common law an accused (and the husband or wife of the accused) is not a competent witness at the accused's trial, either for the prosecution or for the defence. Further, any person who is being jointly tried with the accused (the co‑accused) is also incompetent to give evidence. To render a co‑accused competent, it is necessary for him to cease being a co‑accused such as by filing a nolle prosqui, offering no evidence to obtain an acquittal, entering a plea of guilty or ordering a separate trial.
However, there is a rule of practice that an accomplice who has been charged shall not be called by the prosecution to give evidence in the trial of an co‑offender unless the accomplice has pleaded guilty, or no evidence is offered against him or a nolle prosqui has been entered in his case: Phipson on Evidence (14th ed) [9‑22]. The rule of practice also has no application where a co‑offender has been given an indemnity from prosecution: R v Chai (1992) 27 NSWLR 153, 171 ‑ 179. It is apparent from Chai that the rule of practice is not a rule of law but an exercise of the discretionary power to prevent unfairness to an accused.
The issue before us is the extent to which s 8 of the Evidence Act has altered the common law. Section 8 is modelled on s 1 of the Criminal Evidence Act 1898 (UK) as it was in 1906 when the Evidence Act was enacted. Section 1 of the UK Act relevantly provided:
Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person, Provided as follows:-
(a)a person so charged shall not be called as a witness in pursuance of this Act except upon his own application.
The purpose and effect of s 1 of the English Act was that an accused (and the accused's wife or husband) was made a competent but not compellable witness for the defence. An accused (and the accused's wife or husband) remained incompetent as witnesses for the prosecution.
By the Evidence Act Amendment Act 1913 (WA), s 8(1) was amended to add the words 'Except as in this Act it is otherwise provided' and to delete the words 'for the defence'. The second reading speech identifies the purpose of the amendment as being to permit a husband or wife of an accused to be a competent witness for the defence and the prosecution.
The questions of construction that arise are: (1) is s 8(1) confined in its scope to an accused in proceedings in which he or she is the defendant; (2) does it extend to a co‑defendant (that is, can a co‑defendant give evidence on behalf of the other co‑defendant at their joint trial); and (3) does it also extend to persons charged with an offence giving evidence for the prosecution and if so, in what circumstances.
My preliminary view is that s 8(1) does not alter the common law as to whether and in what circumstances a person charged with an offence can be called to give evidence for the prosecution. All the paragraphs in s 8(1) tend to support the view that s 8(1) is confined to an accused who is a defendant in the relevant proceedings. Of particular significance is par (d) which provides:
[A] person charged and being a witness in pursuance of this section may be asked any question in cross examination, notwithstanding that it would tend to criminate him as to the offence charged.
This abrogation of the privilege against self‑incrimination suggests the section is only intended to apply to an accused (or co‑accused) who elects to give evidence for the defence at his (or their) trial. Section 11 of the Evidence Act protects the right of witnesses who give evidence in someone else's trial.
If my preliminary view is wrong and s 8(1)(a) is wide enough to apply to a co‑offender giving evidence for the prosecution, Slater should have been warned that he could not be compelled to give evidence in the Narrier trial but if he applied to do so, he was not entitled to rely on the privilege against self‑incrimination.
If s 8 had no application to Slater's evidence in the Narrier trial, Slater would have been a competent (and thus compellable) witness at common law because he was not a co‑accused. However, the rule of practice would apply and he ought not to have been called by the prosecution.
The next question is, assuming a breach of s 8(1) or the rule of practice, what are the consequences of the breach. The statute is silent on the point. It does not in terms render the evidence inadmissible. In my view, the appropriate course is to characterise Slater's evidence for the prosecution in the Narrier proceedings as being improperly obtained to which the principles in Bunning v Cross (1978) 141 CLR 54 apply (directly or by way of analogy).
I would have no hesitation in concluding that Slater's evidence in the Narrier trial should not have been used against him at his own trial for the offences with which he was charged. The conduct of the prosecution in calling Slater was irregular and occasioned him great unfairness. However, at the time of the proposed cross‑examination, Slater had pleaded guilty to the offences and was giving evidence against the appellant. That materially alters the mix of relevant considerations, with the focus now on the fairness to the appellant at his trial. The trial judge had a discretion to permit the cross‑examination of Slater about his evidence at the Narrier trial notwithstanding that it was improperly obtained and that discretion should have been exercised in the appellant's favour.
As the trial judge erred in law in ruling that Slater could not be cross‑examined on his evidence in the Narrier trial, the remaining question is whether that error gives rise to a substantial miscarriage of justice.
Whether a substantial miscarriage of justice
The assessment of whether the error gives rise to a substantial miscarriage of justice is undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offences in which the jury returned its verdict of guilty: Weiss v The Queen (2005) 224 CLR 300 [41].
The appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. There are cases in which it is possible to assess whether or not the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury: Weiss [43]. This is such a case. It was not suggested that there was a significant denial of procedural fairness or that the error amounted to a serious breach of the presuppositions of the trial.
We are here concerned with an error that prevented relevant and admissible evidence being elicited from a witness. The appellant's counsel identified the matters on which he wished to cross‑examine. Their factual scope was limited. The first related to Slater's evidence that he did not enter the house but returned to the car with a baseball bat. The second was his evidence that he had never seen the appellant before. However, the purpose of the cross‑examination was to demonstrate that Slater had lied on his oath at the Narrier trial. I have no doubt that, if asked, Slater would have accepted that (subject to the provision of a s 11 certificate if someone was looking out for his interests) he had lied on oath. Cross‑examination of that nature would no doubt have elicited re‑examination addressing the reasons and motivations for his conduct.
In the unusual circumstances of this case, I am satisfied that an admission by Slater that he had lied on oath in the Narrier trial would or should have had no significance in determining the verdicts. That conduct was consistent with all that had preceded Slater's late plea of guilty to the offences. He had, by his own admission, lied to police on many occasions about the circumstances surrounding the commission of the offences. He lied in statements containing the declaration as to the truth of the statements. His bad character was established by his own evidence in the appellant's trial. The reasonable expectation would, in the circumstances, be that while his status was that of an accused awaiting trial, Slater would lie, including on oath, to protect his interests. However, on the one issue on which Slater's evidence was crucial, being the identity of the third offender, he had always been consistent. The circumstances of this case are in sharp contrast to those in Doughty v The Queen [2002] WASCA 238.
I am satisfied that the evidence wrongly rejected by the trial judge would or should have had no significance in determining the verdicts of guilt on the aggravated burglary and aggravated armed robbery counts.
Accordingly, I would refuse an extension of time within which to appeal on ground 2.
Appeal against the sentence imposed by McKechnie J
The appellant relies on three grounds of appeal. First he claims the sentence of 8 years' imprisonment for the offence of aggravated armed robbery was manifestly excessive. Secondly he claims the sentencing judge gave undue weight to the appellant's expression of a wish not to be granted parole, thereby failing to consider other relevant factors. Finally the appellant claims the sentencing judge erred in failing to take into account a relevant factor in considering eligibility for parole, namely the public interest in offenders being subject to conditional release upon their return to the community after serving a period of time in prison.
Manifest excess
This court may only intervene in the exercise of the sentencing discretion if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends on an inference of error arising from the sentence itself.
In considering this ground, it is necessary to have regard to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.
The maximum penalty for the offence of aggravated armed robbery is life imprisonment. The sentence customarily imposed for a single offence of armed robbery usually fall within the range of 4 to 6 years without regard to matters of mitigation: Manyam v The State of Western Australia [2009] WASCA 164 [24] ‑ [25]; The State of Western Australia v Wells [2005] WASCA 23 [5].
By any measure, the criminality of the appellant's offending in this case is at the very high end of the scale of seriousness for both offences. It involved a home invasion in the early hours of the morning by three male offenders acting together and a knife was used by the appellant to threaten the complainant in the presence of her young daughter.
The appellant was aged 44 at the time of sentencing. He had a dreadful criminal history. The sentencing judge counted 24 convictions for burglary, one for attempted burglary, 11 for stealing, six for receiving, nine offences of violence, two convictions for armed robbery, one conviction for robbery and one conviction for attempted robbery. In fact, the offences for which he was sentenced by McKechnie J were committed whilst the appellant was on parole for prior offences of aggravated burglary, armed robbery and attempted robbery for which he also received a total sentence of 8 years.
There were no mitigating factors of any significance to ameliorate the appellant's culpability. Significant weight had to be given to personal and general deterrence, punishment and the protection of the public. A sentence of 8 years' imprisonment for the aggravated armed robbery is very high but is not in the particular circumstances of this case outside the range of a sound sentencing discretion.
Moreover, even if the appellant was able to demonstrate that the individual sentence was manifestly excessive, I would not intervene because the total effective sentence was entirely appropriate for the totality of the criminal conduct: Royer v The State of Western Australia [2009] WASCA 139 [115] ‑ [116]. In that regard it is relevant that the sentences for the aggravated burglary and armed robbery were made concurrent. Further, the appellant had 1,054 parole days outstanding for his prior offences. The sentencing judge ordered that the total effective sentence of 8 years be served concurrently with the outstanding parole days.
There is no merit in ground 1. An extension of time should be refused.
Refusal of parole by McKechnie J
The broad thrust of grounds 2 and 3 is that the sentencing judge failed to consider factors relevant to the exercise of the discretion to refuse eligibility for parole. The trial judge gave short reasons for refusing parole. He said:
You don't want parole but, in the end, it is not a decision for you but for me but I think in this case that is an appropriate recognition by you and having regard to the factors in section 89 of the Sentencing Act, I will not make a parole eligibility order (ts 181).
It is clear the sentencing judge made his own assessment of whether to order eligibility for parole. He notes that the appellant's position accorded with his own assessment of what was appropriate. A court sentencing an offender to a fixed term has a discretion to make a parole eligibility order (s 89(1)). Section 89(4) provides:
A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors ‑
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d)any other reason the court considers relevant.
It was clearly open to the sentencing judge to refuse to make a parole eligibility order in this case, the matters in pars (a), (b) and (c) having been established.
The relationship between subs (1) and (4) of s 89 is explained in Moody v French [2008] WASCA 67 [42] ‑ [50]. Once the discretion in s 89(4) is enlivened, there is no bias in favour of parole. The submissions advanced on behalf of the appellant relate to former statutory regimes for parole.
Moreover, there appears to be a lack of understanding of what must be established in order to prove that a decision‑maker has made an express error by failing to take into account a relevant consideration. First, it only applies to relevant mandatory considerations. Secondly, an appellant does not demonstrate that a decision‑maker has failed to take into account a relevant consideration simply because of an absence of reference to a particular matter in the decision‑maker's reasons.
The clear weight of the relevant discretionary factors support the decision to refuse to make a parole eligibility order. The appellant has failed to establish any error entitling this court to intervene.
Appeal against sentence imposed by Hasluck J
On 10 February 2009 the appellant was convicted after trial of one count of aggravated armed robbery. At the time of sentencing for that offence by Hasluck J the appellant pleaded guilty to 15 charges the subject of a s 32 notice. The offences and penalties imposed are as follows.
Count/Charge
Offence
Sentence/Penalty
IND 976/2009
Aggravated armed robbery
2 years
Section 32 Notice
1032/08
Driving without a current driver's licence
$200
1033/08
Providing a false name
$200
1034/08
Driving an unroadworthy vehicle
$300
1035/08
Breach of bail undertaking
3 months
1036/08
Breach of bail undertaking
3 months
1039/08
Burglary
18 months
1065/08
Burglary
2 years
48050/06
Stealing
6 months
59523/06
Breach of violence restraining order
3 months
25268/07
Driving without a current driver's licence
$400
25269/07
Wilfully misleading police
$400
58104/08
Possession of stolen property
6 months
58105/08
Driving without a current driver's licence
$400
58106/08
Providing a false name
$400
58107/08
Driving unlicensed vehicle
$400
The sentencing judge ordered that the sentence of 2 years' imprisonment for the aggravated armed robbery be served cumulatively with the 2‑year sentence imposed for the burglary (charge 1065/08) resulting in a total effective sentence of 4 years' imprisonment. Eligibility for parole was refused.
At the time of sentencing, the appellant was serving the total sentence of 8 years' imprisonment imposed by McKechnie J on 8 October 2008. Hasluck J ordered that the sentence of 4 years be served cumulatively with the sentence of 8 years.
The facts of the indictable offence are as follows. At about 1.30 am on 5 February 2008 the appellant, armed with a tomahawk, and a co‑offender, armed with a length of PVC water pipe, entered the complainant's shed situated near his residence. The appellant threatened the complainant with the tomahawk and demanded money and drugs. The co‑offender punched the complainant in the face, leaving him with a split lip. The offenders obtained about 1 or 2 gm of amphetamine in a film container and $50 cash.
It is unnecessary to refer to the facts of all the s 32 offences. The following will suffice for present purposes. The facts of 1039/08 are that on 1 June 2007 the appellant gained entry to a house by forcing a rear laundry door and stole a plasma television and a compressor to the value of $2,196. As to 1065/08, on 4 July 2007 the appellant returned to the premises he burgled on 1 June 2007. He gained entry this time by forcing a rear bedroom window and stole the complainant's antique coin collection, jewellery, a digital camera and other property to the value of $1,700. Charge 48050/06 was for stealing vehicle licence plates.
The appellant relies on two grounds of appeal. First, he claims the orders for cumulation resulted in a total effective sentence that breached both limbs of the totality principle. By the second ground the appellant contends the sentencing judge erred by giving undue weight to the appellant being refused parole by McKechnie J and by failing to consider or failing to adequately consider factors relevant to the exercise of the discretion.
Totality
The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally. The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release.
The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. These principles are outlined in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
The appellant makes no complaint about the individual sentences imposed. Indeed, the sentence of 2 years' imprisonment for the offence of aggravated armed robbery is lower than could reasonably be expected having regard to the nature and circumstances of the offence. There is no arguable basis for the claim that the total effective sentence of 4 years for all the offences for which the appellant was sentenced by Hasluck J breaches any limb of the totality principle.
The only question is whether the total effective sentence of 4 years should have been made totally cumulative on the sentence of 8 years then being served by the appellant. The overall total sentence of 12 years reflects significant reductions for totality considerations including the absorption of the considerable number of parole days owed, the total cumulation of the sentences imposed by McKechnie J, the very low sentence imposed by Hasluck J for the offence of aggravated armed robbery and the concurrence of all but two of the sentences of imprisonment.
There is little in the pre‑sentence report or the psychiatric and psychological reports to provide a basis for any reasonable expectation that the appellant has any commitment to breaking the cycle of crime which has typified his past. In view of the seriousness of the offending as a whole which occurred between 2006 and 2008 and the appellant's personal antecedents, I am not persuaded that the overall sentence is more than is required to further all the relevant sentencing objectives, including punishment, protection of the public and deterrence.
Refusal of parole by Hasluck J
After referring to the provisions of s 89 of the Sentencing Act 1995 (WA), the sentencing judge continued:
I am conscious that parole serves to mitigate punishment as well as provide an opportunity for rehabilitation, however the materials must point positively to its appropriateness and in a manner that outweighs the exclusionary factors mentioned in s 89(4) of the Sentencing Act. In your case, as the prosecution counsel has pointed out, the criteria in s 89(4) [weigh] heavily against you. The prosecution did not shut the door upon eligibility for parole but were not able to characterise parole as suitable in the circumstances of this case. I am conscious that you were not granted eligibility for parole when sentenced recently.
In the end I am unable to identify sufficient positive factors that suggest that you ought to be granted parole. I am obliged to note also that you have previously been subject to three periods of parole of which only one was completed successfully. This matter has given me a great deal of pause but in the end I am not prepared to grant you eligibility for parole having regard to the criteria in the [A]ct.
The grounds of appeal reflect a misunderstanding of the grounds which enliven this court's power to intervene in the exercise of a discretionary decision. A failure to give adequate weight or too much weight to a relevant sentencing consideration does not give rise to an appealable error unless it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. No such error is shown in this case.
Further, a failure to give 'adequate' or 'proper' consideration to a relevant sentencing factor does not give rise to an appealable error. As previously noted, there is an appealable error if an appellant can demonstrate that the decision‑maker failed to give any consideration to a relevant factor. Such an error cannot be demonstrated simply by an omission to expressly refer to the factor in the reasons for decision. The appellant has not established that Hasluck J erred in the exercise of his discretion to refuse parole.
Conclusion
The applications for an extension of time to appeal against conviction and sentence should be dismissed.
PULLIN JA: I agree with McLure P.
MAZZA J: I agree with the reasons and the proposed orders of McLure P.
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