Sams v The Queen

[2005] HCATrans 451

[2005] HCATrans 451

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B45 of 2004

B e t w e e n -

STEPHEN JOHN SAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 9.35 AM

Copyright in the High Court of Australia

MR S.J. SAMS appeared in person.

MR B.G. CAMPBELL:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Mr Sams, I think we will hear what Mr Campbell has to say first and then you can respond to that.  That is probably the best way to proceed.

MR SAMS:   Yes, your Honour.

GUMMOW J:   Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honours.

GUMMOW J:   Now, we have read the written materials of course.

MR CAMPBELL:   Your Honours, in my submission there is no merit in the application itself and therefore leave should be refused.  There is firstly an issue in relation to the question of time.  The application was itself considerably out of time, a little over 12 months.

GUMMOW J:   Yes, that is right.  Is that extension of time opposed?

MR CAMPBELL:   It is not consented to on this basis, that it probably follows the Court’s view of the merits of the application in that there is the ‑ ‑ ‑

GUMMOW J:   Well, we cannot decide that without getting into it.

MR CAMPBELL:   Indeed, yes.

GUMMOW J:   Yes, Mr Sams has that leave.

MR CAMPBELL:   Thank you, your Honour.  Your Honours, the issue of abandonment of an appeal is now governed by rule 70 of the Criminal Practice Rules 1999.  Those rules replaced the Criminal Practice Rules.  The former Order 9, rule 22 was the provision in relation to abandonment of an appeal and from such notice being given the appeal was deemed to have been dismissed. 

The new rule introduced a new discretion to the court to set aside the notice of abandonment and reinstate the appeal if the court considered it was necessary in the interests of justice.  That would appear a much more broad discretion than previously, where…..the notice of abandonment, required that the notice would not be shown to be a nullity, and there are those cases, for example, Tabe in Queensland and some more recent New South Wales cases.  However, that discretion was clearly being broadened to allow for the setting aside of the notice and the reinstatement of the appeal if it is in the interests of justice to do so.  It was exercised in ‑ ‑ ‑

GUMMOW J:   This was an application to reinstate the appeal, was it not?

MR CAMPBELL:   In essence, yes.

GUMMOW J:   In essence.  The Court of Appeal decided to deal with that by looking at the merits?

MR CAMPBELL:   Indeed.

GUMMOW J:   What do you say about the merits?

MR CAMPBELL:   Well, in my submission, the Court of Appeal correctly disposed of the matter by determining that there were no prospects on the appeal and therefore refusing the leave to set aside the notice of abandonment and it was precisely that discretion which was within section 70 which they purported to exercise.

GUMMOW J:   Now, what do you say about the merits?

MR CAMPBELL:   Well, there was a hearing ‑ ‑ ‑

GUMMOW J:   Their reasons are rather – I can understand perhaps why, but the reasons are rather terse.

MR CAMPBELL:   Yes, there is an economy of language, but nevertheless there was no discernible error in the judgment.  They address all of the relevant issues, particularly ‑ ‑ ‑

GUMMOW J:   So is your predecessor’s outline at 3.7.  That is rather terse too.

MR CAMPBELL:   Indeed.

HEYDON J:   I think you should get a message that where the Crown is appearing against unrepresented parties they cannot approach it in a simply adversarial fashion.  They have to, from this Court’s point of view, explain, as it were, what the Court of Appeal was trying to do, what could be said against what it had done and why, in fact, it was satisfactory in its handling.  This is quite useless, that paragraph 3.7 on page 98.

MR CAMPBELL:   Yes.  I take your Honours’ comments.

HEYDON J:   I know it is not your fault.

GUMMOW J:   That is why we have called on you first.

MR CAMPBELL:   If I can then take your Honours to the rather factual grounds and they are factually based in relation to the merits of the appeal.  The assessment involves a purely factual analysis which perhaps really only serves to highlight the point that the applicant does not raise a special leave point in this application.  It is my submission there is no error in the court’s assessment there was no prospect of the applicant successfully appealing.  The details and particulars of the individual offences were identified in the summing‑up, particularly at record book page 25 from lines 15 onwards.

GUMMOW J:   Yes.

MR CAMPBELL:   The torture count was a count which was based really upon the other incidents and that point is made clear in the summing‑up at page 38, lines 45 through to page 39, line 30.  The individual counts then were dealt with.  Counts 2, 3 and 4 relate to an assault which was a punch associated with forcing the complainant to the ground and then there were the two counts of indecent assault.  Now, the penetration with the didgeridoo is count 3 and the cardboard roll, and the gladwrap roll, was count 4.  Count 5 is then an offence of assault on a particular day following which the police were called and observed fresh injuries to the complainant.

Count 6 was a complaint of anal rape.  Then count 7 was an offence for which he was found not guilty.  It alleged that there was a rope placed around her neck and she was dragged around.  Count 8 again where he was found not guilty was an allegation that she had been cut on the breast with a machete, and count 9, the third count he was acquitted of, where the allegation was that she was forced to stand on a chair with a noose around her neck with increasing tension on the noose.  Then counts 10 and 11 involved an assault with a cord from an electric jug on the hand and back and a punch which dislodged a tooth.

Now, in relation to a number of those offences there were specific injuries which matched the allegations.  For example, there was a very recent injury or very recent injuries observed to the face of the complainant by the police officer who attended in respect of count 5.  There was also scarring on the hand and back consistent with being hit by the jug cord in relation to count 10 and the observation that the tooth had been knocked out in relation to count 11.  In addition, there was evidence of multiple injuries all over the body and the pattern of which excluded any accidental cause and consistent with her claim of an ongoing violent relationship at the hands of the applicant.

In relation to the incidents in counts 2, 3 and 4 and count 6, the anal rape, there appears to have been a very considerable advantage enjoyed by the jury in being able to see the complainant give her evidence which is not necessarily reflected in the transcript.  Now, I say that because of the comments of the learned trial judge in his summing‑up, particularly the summing‑up in relation to submissions of counsel at page 53, lines 1 to 10, where the clear impression from the Crown was that she was a very impressive witness in relation to that incident when she was relating a very humiliating incident and had the very real ring of truth speaking about those humiliating events.

The counts on which the applicant was acquitted, namely, 7, 8 and 9, do not necessarily have the same direct correlation between the complaint and an injury being observed.  For example, in count 7 and 9 they involve allegations of a rope or a noose being placed around the neck.  Now, the doctor did give evidence that there was evidence of scarring to the neck, but it was brought out in cross‑examination that there were no encircling injuries observed, although there was evidence of an abrasion – sorry, there was evidence that if there was an abrasion it would be unlikely to cause scarring unless it was deep and superficial scarring, as described by the complainant, would not necessarily be expected to cause scarring.

In relation to count 8, the allegation is that there was a cut to the breast with the machete.  There was scarring indicated on the breast indicating a gaping wound, but again it was brought out in cross‑examination that the doctor had not described that particular injury – the doctor observed it only as a scar – did not describe it as an incised wound in her notes.  It is therefore, in my submission, that the verdicts did not necessarily reflect that the complainant had been disbelieved, it merely reflected a cautious approach in the discharge of the jury’s heavy responsibility, to adopt the words of MFA.

The jury were entitled to act with greater confidence in relation to the other charges, particularly where there was a direct correlation between the complaint and the injury observed and, it seems, a question of demeanour in relation to the sexual offences.  Now, that is particularly in the context where the jury were given specific instructions in relation to assessing the complainant’s evidence.  That is particularly at page 46 of the summing‑up.  They were in addition to general comments upon the assessment of credibility which occurred at page 20 to 22, but from page 46 there are a number of factors highlighted in relation to the complainant’s credibility.

Your Honours might notice there that there is reference, particularly at line 30, that she had pleaded guilty in the Ballina Court to making a false complaint in relation to allegations against the applicant.  His Honour further went on to say that the complainant gave an explanation for that which is summarised there but also included that she had complained to the police truthfully but then withdrew that complaint and said that she had made a false allegation out of fear and threats by the applicant himself.  That places it very similarly to the comments which were made in MFA in relation to those young boys at various times giving statements to the police that nothing had occurred.

In those circumstances, it is my submission, the Court of Appeal is entitled and properly entitled to come to the conclusion there was no inconsistency which reflected upon the credibility of the complainant such that it was not open to the jury to convict on the counts which they did return verdicts of guilty.

GUMMOW J:   Now, there is a complaint also about what used to be called similar facts.

MR CAMPBELL:   Yes, the complaint seems to be in relation to the admission of evidence that there had been a domestic violence order taken out against the applicant.  That matter was argued, but in fact was not led at the trial and his Honour the learned trial judge left the matter on the basis that he could not see the relevance of it, but left it open in case it became relevant during the course of the evidence.

HEYDON J:   But was the domestic violence order admitted into evidence or was it not?

MR CAMPBELL:   No, it was not.

HEYDON J:   So the Court of Appeal was wrong on that?

MR CAMPBELL:   Well, that was a matter which was raised in the applicant’s material rather than in the grounds of appeal, so the Court of Appeal seemed to have addressed it and, in my submission, correctly.  It was clearly relevant that during the course of this alleged ongoing relationship of violence there was an interruption in that a domestic violence order was imposed and the effect upon that on the relationship.  In that sense the Court of Appeal were quite correct to say that it was relevant and admissible, although they do not seem to have been directed to the factual circumstances that in fact it was not led at trial and therefore cannot be in any way a buffer to the applicant’s argument now.

The Court, in my submission, properly addressed the issues to be raised – properly addressed all of the issues in relation to the unsafe, unsatisfactory or, should I say, unreasonable ground, particularly the ground they have clearly identified at the application record book page 78.  A critical issue, namely, the credibility of the complainant, is identified at page 79 and the factors affecting her credibility are discussed on page 79 on to page 80.  They included the alcoholism.

GUMMOW J:   Yes.  I think we do not need to hear you any more at this stage, Mr Campbell.

MR CAMPBELL:   Thank you, your Honours.

GUMMOW J:   Yes, Mr Sams.  Would you come to the centre.

MR SAMS:   First of all I would like to apologise for having to represent myself but I had no other option, your Honours.  I did prepare an oral argument, but I only received the fax on the 15th which was sent by the High Court on the 7th and I have had very limited time in getting access to the legal library, et cetera, because most things take a week for applications to go through at the prison.  So I more or less did this in my cell, et cetera, and what I did have in material I did have.

GUMMOW J:   Well, read it to us if you wish.

MR SAMS:   Well, yes, thank you, your Honours.  In preparing this oral argument I tender the following as an extract of my written argument.  Rule 27 of the Criminal Appeals Rules provides that upon a notice of abandonment being forwarded by an appellant to the registrar of the appeal an application shall be deemed to have been dismissed or refused by the court.  In the joint judgment of Hunt and Badgary-Parker JJ in R v Cartwright (1989) 17 NSWLR 243 it was held that where a notice of abandonment had been filed in the court the court could hear an appeal against sentence as no appeal on the merits had been heard and the court had an inherent jurisdiction to go behind rule 27 to ensure that a miscarriage of justice did not go unremedied. The joint judgment continued at 246:

For the purpose of exercising that jurisdiction, it is necessary firstly to ascertain how the notice of abandonment came to be filed and then to have regard to the prospects of success which the applicant may have if leave to appeal were granted:  R v Bell (1987) NSWLR 311 at 314. Assuming that there were fair prospects of success in the appeal itself, leave may be granted to withdraw the notice if it is established that the applicant had signed it without fully appreciating its significance or the significance of its consequences: R v Griffin (1969) 90 WN (Pt 1) (NSW) 548 at 549; [1969] 2 NSWR 497; or as a result of fraud or of bad legal advice: R v Stubbs (1970) 71 SR (NSW) 76 at 78; 92 WN (NSW) 768 at 770; [1970] 3 NSWR 392 at 395. Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave if it be seen that there would be a miscarriage of justice if leave were refused: R v Bell (at 315).

In R v Jeffery NSW CCA, 16 December 1993, unreported, Badgery‑Parker said:

The power of the court to grant leave to withdraw a notice of abandonment is a discretionary power.  The circumstances in which it should be exercised are the subject of authority.  In Regina v Stubbs (1970) 92 WN (NSW) 768 it was held that leave should be granted only if it appears . . . fraud or at least bad advice given by a legal adviser which has resulted in an unintended and ill considered decision to abandon the appeal.

The cases mentioned make it clear that both an extension of time and leave to withdraw the notice of abandonment is a question of a miscarriage of justice.  In my case at the time of me lodging the notice of abandonment was done as a result of advice from my legal representatives saying that they would not represent me at all if I did not lodge the notice.

In R v Tabe CA240/1979 it was reported that the applicant was convicted of an offence and sentenced to seven years imprisonment on 18 October 1979.  He gave notice of appeal and an application for leave to appeal on 1 November 1979 after receiving legal advice which incorrectly gave him reason to believe that if he abandoned his appeal at that point in time he might still be able to proceed at a later date.  He gave notice of abandonment under O IX r 22 of the Criminal Practice Rules on 1 April 1980.  He gave further notice of appeal on 1 July 1982 together with an application for extension of time within which to appeal and applied to the court for leave to withdraw the notice of abandonment.

Upon the application for withdrawal of notice of abandonment it was held that where the Court of Criminal Appeal is satisfied for whatever reason that the giving of a notice of abandonment of an appeal or of an application for leave to appeal was not the result of a deliberate and informed decision on the part of a prospective appellant, it is appropriate that it exercise its jurisdiction to give leave to withdraw the abandonment.

It is for these reasons outlined I believe the Court of Appeal did not give adequate weight to the facts and I should have been granted an opportunity to offer my case in full and be determined on a full picture rather than the rushed presentation submitted to the court due to inadequate time, due to only just receiving the transcripts five days before the day of the hearing.  I do not believe the Court of Appeal took the opportunity or had the opportunity to analyse the full weight of the case.

Furthermore, my argument for the abandonment notice to be set aside is due to Mr O’Brien of the Legal Aid Office, Brisbane telling me that Legal Aid would not fund an appeal against conviction and that if I did not put in a notice of abandonment legal aid would be refused for any type of appeal.  Not realising the consequences of my actions, and also under the assumption I could appeal against conviction later, I agreed to the abandonment of conviction as at that stage I was not up to the task of representing myself.

The notice of abandonment was lodged with the court registrar on 4 November 2002 and after due consideration I spoke to Mr O’Brien from Legal Aid and told him that I did not want to abandon my right to appeal against conviction and he then informed me that on that basis aid would be cancelled.  I made this all clear in an affidavit that was lodged with the Court of Appeal of which I can now make a copy available to the Court and the DPP as I have copies with me which I can hand to the Court now if required.

On the same day the notice of abandonment was lodged I immediately wrote a letter to the court registry to withdraw the notice.  I then wrote a further letter to the court registry a few days later of which I did not receive an answer to either letters and of course this culminated in me representing myself on 4 June 2003 applying to rescind my notice of abandonment. 

I now wish to draw the Court’s attention to the hearing in the Supreme Court of Appeal of 4 June 2003 which I believe did not include in the book of appeal, which I have a copy now I can give to the Court.  As is displayed in the transcript of proceedings the Court can see I was not in a position to argue my case due to the lack of preparation and my little understanding of the law.  I believe I was not given the applicable time in which to prepare and went into the courtroom blind, not understanding proper procedure.  I also believe the appeal judges did not give adequate time in considering their decision.  Notwithstanding that there is no doubt the judges were doing their job, but with the many pages that were submitted during the appeal I find it hard to believe the judges could make their decision after only a 20 minute adjournment.

I believe the decision was rushed as I find it hard to believe the three judges could have viewed the mentioned cases in that time let alone what I and my solicitor tendered to the court.  In believing the decision to dismiss my application was made in too short a time and perhaps left some questions unanswered, I bring the Court’s attention to the transcript of proceedings of the appeal, in particular page 12, paragraph 2 reads, Judge Williams JA, “She didn’t see a scar on the breast, did she?”  And that is to the medical officer, Dr Caulfield.  Prosecutor Rutledge, “No, I’m trying to – no, there’s – and this probably links too”, Judge Williams, “The – the verdict of acquittal.”

I submit that there was an evidence photograph submitted during the trial showing that there was indeed a scar to the breast and also hospital records showing an old open laceration to the breast, and on the counts 7, 8 and 9 where I was found not guilty was the strongest part of the whole of the evidence.  Taking this into account it is difficult to understand the jury finding me guilty on the balance of the counts and therefore I believe this leaves unanswered questions.

I believe the notice of abandonment should be withdrawn and I be given the chance to lodge an appeal against conviction because of numerous reasons, some of which I will outline.  I realise that I am not here to argue any merits of appeal against conviction, but I feel that I should at least mention a few areas of appeal to only strengthen my reasons for the notice of abandonment to be set aside.  My conviction followed a trial where I was acquitted on some counts and for this reason the verdicts are inconsistent.  The jury found me not guilty on counts 7, 8 and 9 because they could not believe the complainant.  This known disbelief was entirely rational and correct. 

What can be and should be questioned is why counts 7, 8 and 9 resulted in an acquittal and the remaining counts resulted in a guilty verdict when the evidence for these counts attracted the same evidence as the counts I was acquitted on, be it at all, the evidence was either circumstantial or allegations made by the complainant.  There were serious issues as to the credibility of the complainant which emerged in many areas, including the following:  false statutory declaration of a carer’s social security income made for money causing fraud; alcohol abuse from the age of 8; heroin, speed and illegal methadone use during relevant period; prior scarring to body and head that could not be identified and all scarring could not be dated, nothing was conclusive in the medical officer’s report, the scarring could have been from six months to 10 years old in evidence; plea of guilty to false declaration against me prior to this; false claims to the police; short and long term memory loss; evidence in transcripts, “All my husband and I did”, her ex-husband, “was punch one another up”; criminal history. 

The complainant has medical records which identify a number of prior injuries that she alleged in her complaints were caused by me that I have obtained since.  That is Dr Skimmings records.  The complainant made several denials and inconsistent statements in evidence on examination and cross‑examination, refused to swear on oath about scarring to her face that she had none prior to seeing me.  Medical records were shown to be inconsistent with some of the allegations the complainant made.

I also submit to the Court that argument during the course of the trial, many individual errors in procedure and discrepancies in evidence may not alone amount to much, but that together along with what I have previously mentioned carry the weight of a gross miscarriage of justice.  At best, the prosecutor’s case was that of the direct testimony of the complainant and circumstantial evidence, basically, the medical evidence.  In the medical evidence that was given there is no doubt that those injuries did exist, but there was no evidence to show conclusively that I had caused all of or even part of those injuries.  In fact, there is no doubt it was shown at trial that some of the said injuries without doubt existed prior to me, even meeting her and herself admitted many caused by ex-husband.

I further submit that all qualified opinions relied on were based solely on information supplied by the complainant.  This is hard to believe that the jury’s verdict could be based on the evidence of a woman who undoubtedly has no problems in lying when it suits her.  On the basis I believe the decisions the jury made are unsafe and unreasonable and in the manner I believe that my application to set aside my notice of abandonment and give me the opportunity to prepare a proper appeal in appropriate time and be given a fair hearing by the Court of Appeal, Brisbane.  Thank you, your Honours.

If I may say a few things.  Dr Caulfield’s evidence, none of it was conclusive.  She could not date anything and she did say in her evidence that, yes, they may all be caused by accident because the person has been an alcoholic since the age of 8.  She did admit that in evidence.  All this evidence has been based on her solely, you know, they are just – excuse me, I am just a bit nervous, your Honour.  I will sit down now.

GUMMOW J:   Yes, thank you, Mr Sams.  We do not need to call on you again, Mr Campbell.  We are not satisfied – yes, Mr Sams, do you want to say something else?

MR SAMS:   If I just may say a few things.  In the three reasons that the Court of Appeal judges brought back, there are three reasons for not allowing – if I may draw your attention to the application book in the judgment of ‑ ‑ ‑

GUMMOW J:   About page 78.

MR SAMS:   Thank you, your Honour.  At page 78 where they brought down – it seems that they did make their decision on the scarring because they felt that there was no scarring alleged by the Prosecutor Rutledge.  They thought there was no scarring at all so therefore that is why the acquittal was.  That was the first reason.  In the second reason they also thought that the complainant took out the apprehension violence order which they did not.  A police officer took it out in my absence from the court.  The third reason that they brought this on was the fact that I tried to bring in a statement of a deceased person since, of Brian Read, that witnessed several situations where the complainant had injured herself from falling around drunk as usual, your Honour.  That is all, your Honour.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Campbell.

Having read the written materials and heard the submissions this morning made orally, we are not satisfied that there are sufficient prospects of success in demonstrating error by the Court of Appeal in its refusal to the applicant of leave to withdraw the notice of abandonment of his appeal against conviction to warrant a grant of special leave by this Court.  Accordingly, special leave is refused.  However, we emphasise the need in a case such as this for the preparation of fuller written submissions by the Crown than those which were filed in this case.

We will take a short adjournment.

AT 10.07 AM THE MATTER WAS CONCLUDED