Sprigg v The State of Western Australia - [2007] WASCA 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SPRIGG -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 266

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 23 OCTOBER 2007

DELIVERED : 7 DECEMBER 2007

FILE NO/S: CACR 12 of 2007
CACR 13 of 2007

BETWEEN: GARY HARTLAND SPRIGG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND 578 of 2003
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :NISBET DCJ
File No  :IND 578 of 2003

Catchwords:

Criminal law and procedure - Appeal - Notice of discontinuance - Nullity - Turns on own facts

Legislation:

Criminal Practice Rules 1914 (WA), O IX r 13
Criminal Procedure Rules 2000 (WA), r 66(2)
Evidence Act 1906 (WA), s 36BD

Result:

Application for leave to withdraw notices of discontinuance dismissed
Appeals dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P L R Meyer
Respondent: Mr D Dempster

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Bridges v The Queen (1998) 20 WAR 59
Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169
Crofts v The Queen (1996) 186 CLR 427
Harris v The Queen [2004] WASCA 223
Hayley v The Queen [2006] WASCA 33
Longman v The Queen (1989) 168 CLR 79
R v Preval [1984] 3 NSWLR 647

WHEELER JA:

The applications

These matters have a somewhat convoluted history. The appellant instituted appeals against his conviction in respect of two separate convictions in 2004. In May 2005, he discontinued those appeals. Pursuant to r 66(2) of the Criminal Procedure Rules 2000 (WA), on the filing of the notices of discontinuance, the appeals were to be taken to have been dismissed by the Court of Criminal Appeal.
However, on 15 February 2007, approximately two and a half years after the last date for appealing conviction and sentence, the appellant filed notices of appeal, seeking leave to appeal both convictions. On 4 April 2007, Roberts‑Smith JA referred the applications for extension of time within which to appeal and the question of leave to appeal to the Court of Appeal, save that in the matter which was CACR 13 of 2007, his Honour refused leave to appeal in respect of the proposed ground 2. There is no application to review that refusal, and ground 2 in that matter does not need to be considered further.
Notwithstanding that the notices which had been filed were in form notices of appeal in new and separate appeals, a considerable amount of material was filed on behalf of the appellant which went to the question of his state of mind at the time of filing the earlier notices of discontinuance. Submissions were made about whether those earlier notices were to be regarded as "nullities".
At the hearing of the applications for extension of time and for leave to appeal, the court clarified with counsel for the appellant what it was that he was seeking to do; that is, whether he was seeking to institute fresh appeals, or was seeking to reinstate, by withdrawing the notices of discontinuance or having them declared to be nullities, the earlier appeals. Counsel for the appellant submitted that the law did not permit previous appeals simply to be put to one side and fresh appeals to be filed (ts 14). He invited the court to dismiss the fresh appeals, which were numbers 12 and 13 of 2007. He sought to have the previous notices of discontinuance declared to be nullities. His submission was that if that were done, the effect would be to reinstate the earlier appeals, CCA 107 of 2004 and CCA 120 of 2004, which would continue as appeals as of right (see Hayley v The Queen [2006] WASCA 33). In those appeals, he would then seek to substitute for the previous grounds of appeal, the grounds which were those that had been referred to this court in the matters entitled 12 and 13 of 2007, being different grounds from the grounds of the original appeals. That summary of the matter appears at ts 16.
The first question then is whether the earlier notices of discontinuance should be treated as nullities. If they are, then a question arises as to leave to substitute different grounds of appeal, some two and a half years from the institution of the original appeals.
A decision of five judges of the Court of Criminal Appeal of this State in Bridges v The Queen (1998) 20 WAR 59 considered the circumstances under which a notice of abandonment pursuant to O IX r 13 of the former Criminal Practice Rules 1914 (WA) could be described as a "nullity". Ipp J, in reasons with whom the other four members of the court agreed, said (at 66):
To summarise, it is the essence of a null notice of abandonment that it was executed or served by an applicant who did not thereby intend to abandon the appeal, or did not understand the nature or effect of the notice, or misunderstood the nature or effect of the appeal itself. It is only then that the mind of the applicant can be said not to go with the act of abandonment, or that the service of the notice is not the applicant's true act.
His Honour distinguished a notice executed by an applicant who did not intend to abandon his appeal from a notice executed by an applicant who did intend to abandon an appeal, but who did so because of a mistaken view or erroneous advice relating to the prospects of success on appeal. In that latter case, the notice would not be a nullity, since the mind of the applicant went with the act of abandonment, whatever his or her reasons for wishing to abandon the appeal. Those principles were applied to the relevantly similar notices of discontinuance under the Criminal Procedure Rules 2000, by the Court of Criminal Appeal in Harris v The Queen [2004] WASCA 223. It was accepted by both parties that those were the applicable principles.
The correspondence between the appellant, his solicitors and counsel which has been placed before us in an affidavit sworn by his instructing solicitor reveals the following matters. The appellant was represented at both his trials by Gillian Braddock SC who reported to her instructing solicitors immediately following his convictions. It was her view that in neither case was there any identifiable ground of appeal against conviction that would have any prospect of success. Notwithstanding that, the appellant's solicitors, who were at that time Macdonald Rudder, were apparently instructed to, and did, file notices of appeal in each matter. There was some discussion of briefing alternative counsel to review the transcript again. Macdonald Rudder were also the appellant's solicitors in relation to Family Court proceedings which took place in October of 2004. The Family Court proceedings were not completed then. It is not entirely clear when the Family Court proceedings were concluded. However, at some time between August 2004 and February 2005, while the Family Court proceedings were still on foot, the appellant changed his solicitors in relation to his criminal appeals from Macdonald Rudder to Bayly & O'Brien. Mr Richard Bayly appears to have acted as his solicitor and counsel in respect of those matters.
Mr Bayly wrote to the appellant in February of 2005 and recorded the result of a discussion he had with the appellant at the Family Court in relation to his criminal appeals. That letter records that an appeal against sentence had been filed at some time following the institution of the appeals against conviction. It reveals that, at the time of the discussion on 10 February, the appellant was "in the midst of Family Court proceedings" and that, for that reason, he instructed Bayly & O'Brien not to abandon any of the appeals against conviction. However, Mr Bayly indicated that he did not see any merit in relation to CCA 107 of 2004. He wished to discuss further with the appellant the prospects of appealing the conviction in respect of the other convictions. The notices of discontinuance which were signed by the appellant have typed on them the date 9 February 2005, suggesting that they were originally prepared on about that date, roughly contemporaneously with Mr Bayly's discussion with the appellant. However, they appear to have been eventually signed by the appellant on 12 May 2005, that being the handwritten date appearing on them. They were filed on the same day.
It was the appellant's evidence in his affidavit, which became an exhibit in this application, that it had always been his intention to appeal his convictions and have the appeals determined on their merits. He deposes that the notices of discontinuance were filed "not because of the advice I received as to the prospects of success, but on the basis I was informed by my previous legal representative, Mr Richard Bayly ... that I could file at a future date further notices of appeal against the judgments of conviction from both trials".
The appellant gave oral evidence in support of his application to reinstate his previous appeals, and was cross‑examined. During the course of evidence‑in‑chief, he said that he had asked Mr Bayly, prior to signing the notices of discontinuance, whether he could appeal at a later time. He said, "Mr Bayly's distinct answer was to me that, provided good grounds of appeal or fresh or new evidence came to light, then I could" (ts 20). He repeated the same answer once more in evidence‑in‑chief, with a slight variation. He said that Mr Bayly said, "I had the right to appeal, provided good grounds could be found by counsel and/or new evidence or fresh evidence came to light" (ts 21). In his evidence‑in‑chief, the appellant also confirmed as correct a typed statement produced by him in which he says that, when he asked Mr Bayly whether he could appeal even if he signed the notices of discontinuance, "I do not recall the exact answer but I remember being left with the distinct impression that signing a notice of discontinuance is not the same as abandoning an appeal". This statement does not fit easily with the evidence in which the appellant appeared to be recalling a "distinct answer" given to him by Mr Bayly.
In cross‑examination, he confirmed that he did not remember Mr Bayly's exact words. However, he also said that Mr Bayly "stated there [and] then that I could reappeal, provided I had the grounds ... " (ts 22). He said that, in signing the notices of discontinuance, he assumed that he was letting Mr Bayly "sort of go off the record and allow myself to engage another lawyer at another period of time" (ts 26). He said he did not know that he could go to another lawyer without abandoning his appeal. He agreed that he had read the typewritten notice which appears on the notice of discontinuance (which is itself an extremely simple one‑page document) which reads:
The applicant discontinues the above proceedings and understands that on filing this notice the proceedings will be taken to have been dismissed by the Court of Criminal Appeal.
Asked about his understanding of the word "dismissed", he said that it meant "he was cutting it off or finalising, I guess, at his stage" (ts 32). Asked what he meant by "at his stage", he said, incomprehensibly, "Well, on Mr Bayly's side of the events, that he wanted to opt out - or what, I don't know" (ts 33). This was an odd answer, given that, until that point in his evidence, the appellant had presented as an alert and not unintelligent man, who was keen to explain his mental processes.
Having read the relevant material, and heard the appellant's evidence, I do not accept his account of how it was that he came to sign his notices of discontinuance. I do not accept that he failed to appreciate the effect of those notices. It follows that there is no basis upon which either notice should be declared to be a nullity and the prior appeals reinstated. My reasons for reaching that view are, briefly, as follows:
•The Notice of Discontinuance form itself is a very simple one and its effect is clear upon its face. It is difficult to see how a person of ordinary intelligence could misunderstand it.
•The appellant's explanation of what he understood by the word "dismissed" was unsatisfactory. He gave the impression of wishing to avoid that question.
•His explanation that he considered that the point of the forms was only to enable him to effect a change of solicitors or to allow Mr Bayly to cease acting for him is implausible, in the light of the fact that he had already changed the solicitors handling those appeals without filing any such notices.
•There was an internal contradiction in his evidence, between his acceptance that he did not recall precisely what Mr Bayly had said and his statement, repeated more than once, that Mr Bayly's "distinct answer" had taken a particular form.
•If he had considered that he would be able to revive his appeals if good grounds were found, notwithstanding discontinuance, then it is difficult to see why he specifically instructed his solicitors in February of 2005 not to abandon his appeals, even though he was then preoccupied with Family Court proceedings and apparently did not then have the opportunity to give his appeals appropriate attention.
•Finally, it is unlikely that a competent legal practitioner would make the basic mistake about the effect of a notice of discontinuance which the appellant attributes to Mr Bayly. This consideration is of little weight, since the possibility of a slip of the tongue, or of a misunderstanding of badly phrased advice cannot be ruled out. However, it fortifies the conclusions which I would in any event have drawn from the points made above.
Having determined that the notices should not be permitted to be withdrawn, or should not be declared to be nullities, it follows that there is nothing to which the amended grounds which the appellant seeks to raise can be attached. However, I would, for the sake of completeness, note that there is in any event no merit in those proposed grounds.

Proposed grounds - lack of merit

In order to understand how the proposed grounds arise, it should be noted that in relation to one indictment (the first indictment), the appellant faced 12 counts of alleged sexual offences against his stepdaughter, P, in the years 1985 to 1987. At that trial, the witnesses for the prosecution were only P and the appellant's wife. The appellant did not give evidence in his own defence, but his daughter and son, his former wife, and a former employee were called to give evidence. There was a directed acquittal in respect of two counts, because the complainant failed to mention certain conduct. There was an acquittal in relation to counts 7 to 9 inclusive, concerning certain events alleged to have occurred in a vehicle, and there was a verdict of guilty in respect of the remaining counts. In relation to the other indictment (the second indictment), again there were sexual offences alleged in relation to his stepdaughter, J, between 1983 and 1992. In relation to that matter, there was evidence from the complainant, the appellant's wife, the complainant's then husband, and another. The appellant gave evidence in his own defence, and the other witnesses called by him in relation to the first trial were called. There were unanimous verdicts of guilt in relation to four counts, majority verdicts of guilt in relation to three counts, an inability to agree in relation to a further two counts, and a directed verdict in relation to one other count.
In relation to the first trial, the grounds of appeal complain of an allegedly inadequate Longman (Longman v The Queen (1989) 168 CLR 79) warning, and an allegedly "unbalanced" direction in accordance with s 36BD of the Evidence Act1906 (WA).
In relation to P, there was no evidence of recent complaint. There was, however, evidence that in 2000 certain admissions were alleged to have been made by the appellant to his wife. The admissions did not detail any particular offences, but would have been clearly understood, in the context of his wife's evidence, to have related to allegations of sexual conduct with P.
So far as the Longman direction is concerned, it appears that this is yet another case in which the sole point of the ground revolves around the omission to use the word "dangerous" in the direction. His Honour said to the jury that the raising of the allegations many years after the events complained of "means that the accused may have lost some of the means of testing those allegations which would perhaps have been open to him had the allegations been made sooner than they actually were". He repeated, in that context, "[t]he fact of the matter is that the making of the allegations years later may have had some impact on [the appellant's] ability to defend himself against them".
His Honour did not direct the jury that the appellant had lost "any" opportunity of testing the allegations. That was, no doubt, because the appellant had been able to call a former employee who was able to give evidence about the hours that were worked in the appellant's concreting business. This evidence was apparently in support of a contention that there would not have been the opportunity for the appellant to have committed certain offences. That is, it was clear that the appellant had been able to recall, in broad terms, what he was doing at some relevant times, and had been able to adduce evidence to that effect.
His Honour further said, "In this case it would be sensible to look for corroborating evidence when considering the complainant's evidence. It may be unsafe to convict without it". His Honour added shortly thereafter, "You can convict without corroboration but I do suggest that you scrutinise the complainant's evidence very carefully before doing so having regard to what I've said about the lapse of time in this case". Of course, if they accepted it, the jury might well have considered the evidence of the appellant's wife's very powerful corroboration of the complainant's allegations.
It is submitted on behalf of the appellant that these passages are a "mere suggestion". However, they take out of context a few lines from his Honour's direction. Immediately preceding the words "In this case it would be sensible … " is a passage in which his Honour calculated for the jury the lapse of time between the last of the sexual acts complained of and the time of trial, and told the jury that:
[i]f the events complained of did not occur there would not, so far as the accused is concerned, in all probability of being any reason for him to remember the details of otherwise unmemorable days. In order to defend himself against relatively recent allegations he has to consider many years later the events of 1985, 1986 and 1987; as I say, a considerable time later.
Immediately following the sentence "[i]t may be unsafe to convict without it", appears the following:
It is not absolutely necessary as a matter of law that you should find corroboration before convicting but, as I say, in the context of this case it would be sensible to do so. (Emphasis supplied)
His Honour then immediately went on to explain what corroboration was, in some detail, to remind the jury of the evidence of the appellant's wife, and to tell them that it was for them to determine whether her evidence did tend to connect the appellant with the crimes charged. It, in my view, would have been plain to the jury that what his Honour was saying to them was that corroboration was not strictly necessary as a matter of law, but that it was very desirable. The attention devoted to that question, and the careful explanation of what corroboration was and whether the appellant's wife's evidence could be corroboration, would have highlighted the importance of scrutinising, and if possible confirming by independent evidence, the evidence of the complainant.

Having considered authority relating to the question, the Court of Criminal Appeal has, on a number of occasions, noted that the Longman warning is not a prescribed or ritualistic formulation, that the word "dangerous" is not a magic word which must be included in any such warning, and that what must be brought home to the jury is the need to be persuaded of the truth and accuracy of the evidence of the complainant, in terms related to the evidence in the particular case: see Crisafio v The Queen [2003] WASCA 104; (2003) 27 WAR 169, [27] (Murray J). In my view, read fairly and as a whole, his Honour's direction complied with that requirement.
Ground 2 is curiously phrased. It complains of what is said to be an unbalanced direction "in accordance with" s 36BD of the Evidence Act1906 (WA). His Honour did say, during the course of explaining to the jury the effect which the delay might have had upon the appellant's ability to defend himself, that there might be good reasons why a person, particularly a child, may hesitate or delay in making a complaint of such conduct, or not make a complaint at all, for that matter. He advised the jury that an absence of, or delay in making, a complaint does not necessarily mean that the allegations made are false, and commented that that would seem to follow as a matter of common sense. Apart from the reference to common sense, that was essentially a direction in terms of s 36BD. The section itself says nothing about any need to "balance" that direction with some direction or comment of another kind. The requirement to which the appellant apparently endeavours to allude is that indicated by the High Court in Crofts v The Queen (1996) 186 CLR 427.
It may be accepted that, as the appellant submits, a substantial delay in making a complaint in cases of a sexual nature requires a trial judge "to give the jury a direction which [is] meaningful and which [is] adequate to enable the jury to make a responsible evaluation of the matter" (Crofts 450 citing R v Preval [1984] 3 NSWLR 647, 651). What is meant by a "meaningful" evaluation is, it seems to me, explained at 448 of that decision, where the court said:
... in the particular circumstances of a case, the delay may be so long, so inexplicable, or so unexplained, that the jury could properly take it into account in concluding that, in the particular case, the allegation was false. (Toohey, Gaudron, Gummow and Kirby JJ)
The content of the direction is, no doubt, to be shaped according to the way in which the trial is conducted, and in some circumstances the conduct of the trial may be such that no warning of that kind is required to restore a balance of fairness (451).
The way in which this trial was conducted was that, as his Honour indicated to the jury in his direction to them, there was no evidence as to when the allegations were first raised. There was evidence from the complainant of an absence of immediate complaint in relation to one particular count which she described. It was her evidence that the appellant had said, of that, "this is our little secret" (AB 48). Further, she said that she did not tell anyone because he had told her not to and she was scared (AB 50). She had earlier described him as being "heavy handed and intimidating and rough" and as having given her a "good clout" every now and then.
There was no cross‑examination directed at the question of when the complainant had first complained to anybody about the offending. There was no cross‑examination directed to why she may have delayed in complaining. There may well have been good forensic reasons for the omission of such cross‑examination. It is not unusual for cross‑examination of that kind to elicit evidence of complaints made, or hints dropped, on earlier occasions by complainants, which were ignored or not understood, or evidence of threats or violence, or of a complainant's perception that the conduct was normal because it happened on other uncharged occasions, or happened, in her understanding, to other girls. Having taken careful instructions, counsel may decide to stay away from attacking a complainant's credibility by reason of her delay, because of the risks involved in that course.
So far as the complainant P is concerned, while it would be largely a matter of speculation what was the reason for the absence of cross‑examination in this case, there is before the court, for the purposes of the application in relation to the notices of discontinuance, the letter from Ms Braddock SC which contains a summary of the course of that trial. There is a reference in that letter to "self‑serving statements tending to support the credibility of the complainant", which the learned trial judge apparently ruled could not be led by the prosecution. Although it is not entirely clear, that is an expression apt to describe complaints which are not able to be characterised as recent complaint. Further, there is a reference to the appellant's decision not to give evidence, which appears to have been related to "his subsequent relationship with [P], and the effect that any such disclosure might have on the jury". Those passages of the letter tend to suggest that cross‑examination of the complainant P about her failure to complain or delay in complaining, might well have elicited evidence about complaints which she had made, and may also have elicited evidence, discreditable to the appellant, about his relationship with her subsequent to the offences in question.
However, whatever the forensic reason, there was no evidence as to when the complaints were first made, or when the appellant first became aware that there might well be criminal proceedings involving him. Because of the course taken at trial by counsel for the appellant, then, it would not have been possible for the judge to give any "meaningful" direction about the possible effect of delay. How could the jury in those circumstances possibly determine that the delay was "so long" or "so unexplained" that it affected the complainant's credit?
The short answer to this proposed ground is that his Honour was not required to direct the jury about something which formed no part of the appellant's case.
So far as the complainant J is concerned, there is one sole ground of appeal, again concerning an allegedly unbalanced direction in relation to delay and the complainant's credit. So far as she was concerned, she had given evidence in general terms that she was always scared of the appellant, although that was not in response to a question about complaint, or absence of it. She also said that on "a few occasions", the appellant told her that if she did inform her mother, her mother would not believe her. In relation to this complainant, too, the appellant's wife gave evidence of admissions. She said that when she told the appellant that there had been "serious allegations" levelled at him (in 2000), he had replied, " ... there's nothing going on", but had added, "There was a few wanks, a few head jobs and a bit of fondling". Not surprisingly, her evidence was that there then followed a dispute between them about whether that was "nothing". There was also evidence from the complainant's husband, at the time her fiance, of a statement to him on the same occasion by the appellant, which the jury could have regarded as evidence of an admission of sexual misconduct with the complainant at least after she had attained the age of 15 years.
Concerning the issue of delay, his Honour said:
Next I want to turn my attention to this question of the failure to complain. Everyone in this case agrees that there was no complaint made until very, very late in the piece. The law has something specific to tell you about this. The absence of complaint or delay in complaining does not

necessarily indicate that the allegation that the offence was committed is false and, ladies and gentlemen, I am obliged to inform you there may be good reasons why a victim of offences such as those alleged here may hesitate in making or may refrain from making a complaint of that or those offences.
Now, it is for you to decide whether those reasons exist in this case but it has been suggested to you by the complainant herself that she said she didn't complain to her mother when she clearly had plenty of opportunity to and in particular following the events alleged in counts 3 and 4 when her mother specifically asked her if there was anything going on, so she had the ideal opportunity to complain then but didn't. You need to then consider her circumstances in the light of what I have told you the law is, that there may be good reasons why a person in the then position of the complainant would not complain, or refrain from complaining.
She said that she felt guilty in respect of this conduct. She told you that there were threats made against her, her mother; "She had nothing when I met her and she'll have nothing again." Then, of course, there is the very nature of the relationship itself - this is stepfather and young stepdaughter - when these events first took place. The nature of that relationship, ladies and gentlemen, changes as she gets older.
Counts 9 and 10 are alleged to have occurred when she was an adult and she was living for the main after that separate and apart, she was not in the same household as the accused, and those considerations do not carry as much weight as they might do with you when she was younger, when she was a young teenage girl. You have to bear all those things in mind but generally speaking, this is a matter that you must give consideration to.

It was plain from that direction, that the jury might regard delay in complaining as relevant to credit, and that the length of delay and the explanation given would be factors they should consider. The direction was tailored to the circumstances of the case. It was not "unbalanced".
In short, as senior counsel for the appellant at trial reported to the appellant's instructing solicitors immediately following the trial, there is in relation to neither of these proposed appeals any ground which has a prospect of success.
PULLIN JA: I agree with Wheeler JA.
BUSS JA: I agree with Wheeler JA.