The State of Western Australia v ADR - [2018] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ADR [2018] WADC 168
CORAM:   TROY DCJ
HEARD:   26 NOVEMBER 2018
DELIVERED          :   7 DECEMBER 2018
FILE NO/S:   IND BUN 178 of 2015
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
ADR

Catchwords:

Nil

Legislation:

Criminal Procedure Act 2004 (WA), s 143(2)

Result:

Limitations on accused's opening address identified

Representation:

Counsel:

The State of Western Australia	:	Mr M Hunter
Accused	:	In person

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Not applicable

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

Cotic v the State of Western Australia [2012] WASCA 252
KMT v The State of Western Australia [No 2] [2018] WASCA 49
Manyam v the State of Western Australia [2010] WASCA 107
O'Connell v State of Western Australia [2012] WASCA 96
Peck v the State of Western Australia [2005] WASCA 20
R v Farooqi [2014] 1 Cr App R 8
R v Karapandzk (2008) 184 A Crim R 320
R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148
R v Nona [1997] 2 Qd R 436
R v Oulds (2014) 244 A Crim R 443
Ritchie v The State of Western Australia (2016) 260 A Crim R 367

TROY DCJ:

Introduction

This matter originally came before me for trial on 9 October 2018. The accused is charged by this indictment with a total of 17 offences of indecently dealing with and sexually penetrating his daughter HMR. He also faces one count, count 18, of unlawfully assaulting her thereby doing her bodily harm. The accused pleaded not guilty to all counts on 9 October 2018.
On the morning of 11 October 2018 I discharged the jury as a whole and the trial was aborted. This was the second time that this trial has been aborted. The first occasion was before her Honour Judge Braddock on 2 May 2017 when the accused terminated the services of his then lawyer, Mr Graeme Allen. When the matter came before me for trial the accused was, and still is, self-represented. The matter is listed for a third trial commencing 22 January 2019.
Following the premature conclusion of the second trial, the State successfully applied for orders permitting the complainant HMR to give her evidence at a pre-recording. This occurred on 19 November 2018.
At the start of the second trial the accused addressed the jury at some length at ts 439 - 449. Subsequently, the State indicated in writing that objection is taken to the accused in essence repeating certain identified portions of that speech at the third trial.
The accused has indicated (ts 699) that the content of his opening speech at the third trial is likely to be quite different from the speech that he delivered on 9 October 2018.
My rulings in this decision are predicated on the basis that the accused remains without legal representation at the third trial. On 15 November 2018 I refused the accused's application to adjourn the third trial, such application being based, in part at least, on lack of representation: ts 600.
Subject to one important and obvious proviso, how the accused chooses to address the jury is a matter for him. It is an important part of the trial. It is the first time that a jury, whose only knowledge of the case will be what they will have gleaned from the indictment and from the prosecution opening, will have the opportunity of listening to the accused. The proviso of course, is that as the trial judge I have a responsibility to ensure that the opening address does not violate well‑established procedures in criminal trials.
In a document annexed to an email dated 13 November 2018, the State identified passages to which it takes objection by highlighting such paragraphs in red. I have annexed that document to this judgment as Annexure A. For the reasons that follow the accused will be prohibited from repeating some, but not all of the passages highlighted in red, but will also be prohibited from repeating some of the passages that the State did not take objection to.

The right of an accused to open in this jurisdiction

In this jurisdiction, the right of an accused, or a representative on their behalf, to deliver an opening address in a criminal trial is provided for by s 143(2) of the Criminal Procedure Act 2004 (WA) which reads:
Whether or not an accused intends to give or adduce evidence, the accused is entitled to give an opening address to the court about the accused's case.
There is obviously no obligation upon an accused to give an opening address. The term in s 143(2), 'the accused's case' is very wide. It doubtless encompasses a statement as to the nature of the accused's case and his/her contentions in relation to a key witness. It is an opportunity to convey to the jury a sense that the credibility of a particular witness is of central importance and that the defence will be submitting that he/she is untruthful and unreliable.
The right provided for by s 143(2) is an opportunity to inform the jury that the accused will be giving or leading evidence to provide an innocent explanation for an aspect of the evidence relied upon by the prosecution and which might have the tendency to incriminate the accused: Manyam v the State of Western Australia [2010] WASCA 107 [26] (Pullin JA).
In Cotic v the State of Western Australia [2012] WASCA 252, in the context of an appeal ground which complained of the trial judge interrupting defence counsel during the course of evidence, Buss JA quoted at [49], without criticism, a substantial portion of the opening address delivered in that case.
Since the enactment of s 143(2), the Court of Appeal has not been called upon to give any guidance as to the proper limitations of an opening address in this jurisdiction. I have considered the most relevant authorities elsewhere, but they must be read in the context of the limitations placed upon opening addresses by legislation in those jurisdictions, which is markedly more restrictive than s 143(2).

The authorities in South Australia and New South Wales on the right to open

I have considered the decision of the Court of Criminal Appeal in South Australia in R v Karapandzk (2008) 184 A Crim R 320.
In that case counsel for the appellant addressed in exercise of the right conferred by s 288A of the Criminal Law Consolidation Act 1935 (SA). That section relevantly provides as follows:
288A ‑ Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution
(1)On the trial of an offence on information, the judge is to invite the defendant, at the conclusion of the prosecutor's opening address, to address the court to outline the issues in contention between the prosecution and the defence.
(2)The defendant may then address the court accordingly or decline the invitation.
It is clear that s 288A is much more restrictive than s 143(2).
In his judgment Doyle CJ (with whom Duggan & David JJ agreed) observed that the equivalent New South Wales provision appeared to give somewhat more latitude to counsel than s 288A (although I observe not as much as s 143(2)): [44].
Doyle CJ agreed at [44] with the following observations made by Howie J in R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 [139], where his Honour said, referring to the New South Wales provision,
… It is not an opportunity for defence counsel to embark upon a dissertation on the onus and standard of proof, or the functions of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way that they should assess the evidence of a witness to be called in the Crown case. It behoves trial judges to ensure that the addresses of counsel are not open to abuse, particularly in a case where the contents of the address is circumscribed by a provision of an Act. To permit counsel to ignore such a limitation is not in the interests of justice, either generally or in the particular case. It may be appropriate for a trial judge to ensure, before the defence opens and in the absence of the jury, that defence counsel is aware of the limited basis of an opening under s 159 and that the address will comply with it.
Doyle CJ observed at [45] that the point that Howie J made about a trial judge ensuring that defence counsel is aware of these limitations was a pertinent one.
Doyle CJ further held at [46] and [48]:
46.It is in the interests of the administration of justice that the parties identify the matters in issue, narrow them down as far as possible, and inform the jury of the issues that are in contention between the prosecution and the defence. But the process of identifying and outlining issues should not become an occasion for the defence to argue its case, either by reference to general principles of law or by reference to aspects of the facts of the case. In the present case, while the address by defence counsel was brief (occupying only two pages of transcript), there are aspects of it that, in my opinion, travel beyond the scope of s 288A.
48.Counsel's general observations did not contribute to the outlining of issues in contention. They were accurate, so far as they went, and in a sense harmless. But it is not appropriate for defence counsel, at this stage of the proceedings, to embark upon an outline of general principles relevant to the trial that is about to unfold. If this were to be permitted, sooner or later the question would arise of where the outline is to stop. The function of the address by defence counsel at this stage is to identify issues in contention, and to outline them, not to remind the jury of their duty.
For my part, I respectfully agree with the observations of Doyle CJ and of Howie J, but there is no capacity for a judge in this jurisdiction to restrict an opening address in this manner because of the terms of s 143(2).
Doyle CJ also observed at [52]:
Moreover, if counsel knew that Mr Karapandzk was not intending to give evidence, or at least had not been instructed that he would give evidence, it was particularly important to avoid the use of expressions that would be appropriate, even in an opening address, only if Mr Karapandzk was to give evidence. In explaining to the jury that there was no issue as to the sexual relationship between Mr Karapandzk and JA after she had turned 17, counsel used language that even in an opening address would not be appropriate if the matters were to be raised only by cross-examination, and not by way of a positive case for the defence.
Those observations plainly apply here even allowing for the additional latitude that is provided for by s 143(2). See also the decision of the English Court of Appeal (Judge LCJ, Treacy LJ and Sharp J) in the extraordinary case of R v Farooqi [2014] 1 Cr App R 8 [111].

The authorities in Queensland on the right to open

I have also considered the decision and direction of Fryberg J in the Supreme Court of Queensland in R v Nona [1997] 2 Qd R 436 and the decision of the Queensland Court of Appeal in R v Oulds (2014) 244 A Crim R 443. In Oulds the appellant complained that trial counsel's failure to outline the appellant's case in the opening statement was incompetent.
Holmes JA, with whom Fraser and Thomas JJ agreed, held at [65]:
There is no prescription for what may be said in an opening statement in Queensland. The making of such a statement had not been the practice in Queensland before the ruling of Fryberg J in R v Nona, and it is still not a common occurrence. Fryberg J took the view that a discretion existed to allow an opening statement which would assist the jury. Fryberg J's conclusion was based on the view that s 619 of the Criminal Code 1899 which deals with rights of address, was not a comprehensive statement of the occasions on which an accused person might address a jury.
Her Honour noted at [66] that the position is different in New South Wales, where an accused person has a statutory right to make an opening address limited to matters raised in the prosecutor's opening address and the matters the accused intends to raise. Her Honour referred to the holding of Howie J in R v MM as to the purpose of such an address being to define, for the jury's benefit, the real issues in the trial and what the accused might say in answer to the Crown's allegation.
Her Honour observed at [69]:
MM and Karapandzk, concerning as they do particular statutory provisions which give a right to make an opening statement and identify the matters to which it must be confined, are of limited assistance when one is dealing with a common law discretion residing in the trial judge. In broad terms, the parameters for the exercise of such a discretion are what the interests of justice require. Ordinarily, it would serve those interests to permit a defendant to alert the jury to the issues in the case and any parts of the Crown case in significant dispute, having regard to those issues. Correspondingly, identification of those issues not in dispute would be appropriate.

The approach in considering the limitations on the accused's proposed opening

The limitations thus placed on an opening address at common law must give way, in my view, to the terms of s 143(2). Accordingly, I approach the task of scrutinising the accused's previous speech in the context of the expansive language of s 143(2).
The accused is of course self‑represented and in that regard I repeat the observations I have made on an earlier occasion drawing from the judgment of Mazza JA in O'Connell v State of Western Australia [2012] WASCA 96 [109]:
An unrepresented accused cannot deliberately take advantage of this position to conduct him or herself in a way that would not be acceptable from defence counsel. Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules.

Conclusions on what it is permissible for the accused to say in opening

The accused began his opening at the second trial as follows:
I hope you enjoyed that discussion. What you will hear from witnesses, prosecution, police, is bullshit. You cannot imagine how it feels to be so helpless against such disgusting - I try not to swear at them. If they told the truth, bang, we wouldn't be here.
The accused is entitled to submit in robust terms his view as to the nature of the prosecution brought against him. Resorting to terms such as 'bullshit', however, creates a dreadful impression with a jury and the accused would be well advised not to employ such terminology. That is a matter for him. He is entitled to submit that the prosecution witnesses are untruthful. It will, of course, be a matter for the jury as to whether the witnesses, in particular HMR, are telling the truth. But I do not intend to prohibit the accused from repeating in essence the first two sections in red on page 1 of the document.
The accused then stated:
And the evidence of that [that the witnesses have been coerced] could be proved but I'm not allowed to show it to you, unless the judge has decided to find that evidence that seems to have gone missing like a visual recording of the first trial. It's amazing how things go missing when it helps the defence.
The accused is not entitled to say that part of the evidence from the first trial has gone missing because it has not. He is also not permitted to assert that he has not been allowed to show certain material to the jury. If a ruling has been made precluding the accused adducing certain material, because it is irrelevant and inadmissible, the accused is bound by such a ruling and he must not seek to re-agitate it in front of the jury. In any criminal trial if an accused person is dissatisfied with a ruling, in the event of an adverse verdict, he/she is entitled to consider taking up that complaint on appeal.
The accused continued (ts 439):
I mean, there's - I've got letters - last three years to try and get investigation on these people - CCC, Canberra, ICAC, Internal Affairs. You name it, I've been doing it, and these guys are pissed off with it.
All of that sentence is inappropriate. What the accused has or has not been doing since his arrest on these allegations is entirely irrelevant to the issue that the jury will be required to decide, which is whether or not they are satisfied beyond reasonable doubt that, for each count, the accused did what is alleged against him.
I have indexed the accused's extensive correspondence since 2 May 2017 and annexed that schedule to this judgment as Annexure B. The accused's correspondence is in large part a complaint of an alleged conspiracy to effectively frame him. As such it is material which is as a matter of law entirely self-serving. None of this material contains admissions against interest.
Accordingly, it is inadmissible. See the joint judgment of Mazza, Beech JJA & Chaney J in KMT v The State of Western Australia [No 2] [2018] WASCA 49 [54]:
Self-serving statements of parties to litigation are inadmissible as to the truth of those statements. That is because of the rule that assertions by persons other than the witness who is testifying are inadmissible as evidence of the fact asserted, because they offend the rule against hearsay evidence and the rule against self-corroboration.
In Ritchie v The State of Western Australia (2016) 260 A Crim R 367 McLure P noted [46]:
In that State [Victoria] wholly exculpatory self-serving statements are traditionally adduced by the Crown as part of its case as a matter of fairness. That is not the position in Western Australia (Peck [70] – [71]) or in Queensland (R v Reynolds [2015] QCA 111).
That can be seen from an examination of Peck v the State of Western Australia [2005] WASCA 20 where Roberts-Smith JA (with whom Steytler P & Wheeler JA agreed) held at [70] - [71]:
What the applicant said out of Court on some other occasion, whether to police officers or anyone else, claiming her innocence was entirely inadmissible (R v Beck [1990] 1 Qd R 30). Things said out of Court by an accused person are only admissible as to the truth of what they assert if they constitute admissions against interest. Mere denials out of Court have no probative value. They are therefore irrelevant and inadmissible.
Evidence of this kind infringes the rule against self-corroboration, it infringes the rule against hearsay and it is irrelevant and inadmissible as having no probative value. The prosecution cannot be compelled to adduce out-of-court denials or wholly exculpatory statements of an accused and nor can an accused either elicit them in cross-examination of prosecution witnesses or give evidence of them.
If the accused wishes to put in cross-examination to a prosecution witness that there is a deliberate plan to knowingly and falsely accuse him of these alleged offences he can do so. Accordingly, if he wishes to open on the existence of this alleged conspiracy he may do so. He is not permitted, however, to speak to the jury about his endeavours to pursue this theory.
The accused continued (ts 440):
Eventually, regardless of what happens in this case, I'll be still trying to pursue these people because this is a big police prosecution and I have attempted to try and give my daughters a chance not to commit perjury, even for what they've done or said. As a father, you still wouldn't want to see them go to gaol. But in three years I've put up with this. My heart has hardened somewhat and if they commit perjury in this trial, then I will make sure they go to gaol themselves. Perjury. They know what it is.
What the accused may do following the conclusion of this case is irrelevant for the jury's purposes. The accused is restricted to saying, should he so wish, that the evidence that HMR gave at the prerecording on 19 November 2018 is deliberately false and therefore amounts to perjury.
The accused continued:
And those offences that I was charged with I pleaded guilty to in the belief they were for Claire [the oldest of his three daughters] and Helena because I had a prosecution notice come through that led me to that belief. And I understand that back then I was in no fit state. Again I haven't lied. I never lied then and I'm pissed off if I'm going to lie again now. Not with this trial. You never lie.

The accused is entitled to submit to the jury that he was frank in acknowledging his offending conduct in 2006, (which led to his guilty pleas and which will be led as propensity evidence) and equally frank in his denials of the offending alleged against him by this indictment.
The accused continued (ts 441):
Helena reckons I've never spoken to her from (indistinct), we'll go for it up (indistinct). But in the points in the conversation through the years, every now and then, very rarely, it would come up. Something about the police, or something with Claire. She would raise that she wasn't sure whether her complaint was dealt with at the same time, or if her information was dealt with at the same time in 2007.
If the accused proposes to give evidence at his trial, and in doing so will testify that there were conversations with HMR where she expressed some confusion as to whether her complaints had been dealt with at the same time as matters concerning C, he can open upon that.
The accused should be aware that in the event that he makes an assertion of fact in his opening address, but does not then actually give evidence, the jury will be directed to disregard that part of his opening address. To avoid such a direction, it is incumbent upon the accused not to open on matters that can only be before the jury for their consideration in the event that he gives evidence about them.
I have made no enquiry of the accused as to whether or not he will give evidence. I proceed, however, on the assumption that on 22 January 2019 the accused will have determined in his mind whether or not he proposes to give evidence.
The accused continued:
Now, obviously multiple statements were made and multiple statements have disappeared.
The accused is not permitted to state that as an asserted fact. If he wishes, he can tell the jury that it will be his case that a number of statements were made and that some at least of those statements have disappeared. He can then explore that in cross-examination.
The accused continued:
One of the reasons for that is, the offences that I was charged with then, dealt with Claire and Helena, all right? They don't relate to Claire at all, so that's why on the charges alone, the fact that the prosecution notice (?) on the charges alone, one put to the other would presume that that trial was for both, in my eyes.
It is not entirely clear to me what point the accused was seeking to put to the jury at that stage. I will make no observations about this particular passage on the basis that I assume that this is one of the aspects of the accused's speech that will be adjusted, now that he has had the further opportunity of reflecting on what he said on the last occasion.
The accused then referred (ts 442) to a letter that his first lawyer wrote to the police:
I believe Helena was having second thoughts about assisting police in – or agreeing to fabricate the evidence being used. I reckon Helena was having second thoughts about using this fabricated evidence. Second – first of all (indistinct) because he wrote a false letter to my daughter, just a load of legal – legal crap. He phoned me up, I tried to get freedom of information on the phone call. Because after he wrote that false letter, and he read it to me over the phone while I was in prison, and I said, 'No, I don't understand it, it's a load of crap. It's not been sent.', and he goes, 'It's just normal stuff' I said, 'No, I don't even understand, it's crap', I said, 'It's not the one you sent'.
There is no evidential basis for the assertion that 'HMR was having second thoughts about using this fabricated evidence' and it cannot be opened upon.
There is no relevance in the lawyer's letter save to say this. If the accused proposes to put in cross-examination to a prosecution witness that, within a short period of his then lawyer writing to the police, further charges were laid and that an inference to be drawn is that these charges were purely a response to the fact that a letter had been written by his lawyer, he may open on that assertion.
The accused continued:
So anyway, a second lawyer came along. Unknown to me, because I sacked the first lawyer from upsetting my daughter (?), unknown to me, he had organised a second lawyer for taking my case over through Legal Aid. I didn't know that until, well (indistinct).
Those comments are plainly irrelevant and should not be repeated.
I now turn to the section of the accused's opening address commencing at ts 442 from, 'He brought me that first disc' through to ts 444 'to try and find evidence that was tendered for that trial, which I'm legally entitled to, to be tendered for this trial, refused'.
As any review of the transcript of hearings from 2 May 2017 onwards together with the accused's correspondence summarised in Annexure B will show, a great deal has been said and written on the issue of the authenticity of the pretext call relied upon by the prosecution. I refer to the DVD of the call of 25 March 2015 which was MFI 6 in the second trial and then exhibit 7 as tendered in the pre‑recording on 19 November 2018. There is an earlier call but that was merely to arrange for this conversation.
This is the only pretext call the prosecution propose to rely upon. On their case exhibit 7 it is the only DVD of that call that exists and it has not been tampered with or falsified in any way. HMR testified that this DVD is exactly the way the conversation with the accused went (ts 659).
In the second trial the accused did not dispute that it is him speaking on the DVD with his daughter (ts 542). That accords entirely with my observations having heard the accused speak at considerable length since 10 September 2018.
Leaving aside the question of the inferences to be drawn from the accused's observations, which of course is a matter for the jury, the issue is whether anything else was said by him in that conversation which has been deleted so as to put his observations in a different context (ts 542).
If the accused wishes to put to the relevant police witnesses that this fabrication occurred he is, of course, entitled to do so. Accordingly, he is entitled to open on the fact that an issue for the jury will be whether the pretext call has been doctored in that way. Further, if he intends to give evidence the accused is entitled to say that the DVD of the pretext call, exhibit 7, differs in a number of respects from a DVD that he listened to on an earlier occasion.
In conformity with my ruling on 13 September 2018 (ts 332) and indeed the earlier ruling of the Chief Judge on 1 February 2018 (ts 242) as to the lack of merit in the witness summons in respect of the accused's lawyer at the first trial, Mr Allen and her Honour Judge Braddock, the accused is prohibited from opening or giving evidence concerning alleged conversations he had with Mr Allen and his contention of the events on 2 May 2017.
I have compared the audio recording of the hearing before her Honour Judge Braddock to the transcript. The transcript accurately reflects what occurred in that courtroom on 2 May 2017. Where there are differences between the accused's account of that hearing as set out at ts 443 – 444 the transcript represents the correct representation of what was said by all concerned on 2 May 2017.
Nothing that was said by the accused in the passage identified at [58] can be repeated. He is restricted to opening on this area in the way I have identified at [63].
The accused next stated (ts 444):
I want the visual of the recording. Where? On the stand, the complainant gave me an evil, vindictive and malicious stare at the end of her (indistinct). Guess what? This morning, can't find it Court of record can't find it. Court of record will not allow me to use evidence tendered in the first trial in this trial.
This was a reference to the accused's belief that on leaving the witness box at the conclusion of her evidence on 1 May 2017, HMR stared at him in the manner he described. Subsequent to the accused's opening, the recording of the complainant leaving the witness box was located. It does not, in fact, show her staring at the accused in the way that he alleged. This part of the accused's opening address should not be repeated at the third trial.
The accused continued:
The abuses of process, the illegal activity of this court, these judges, prosecution and police are covering up offences that you wouldn't believe (indistinct). I can tell you it goes to the Attorney-General. I can tell you it goes to the Commissioner of the CCC. Getting a bit too far, Commissioner of CCC, ex-judge. He actually stopped the investigation, 2017 (indistinct). The CCC Act - Crime, Corruption, Misconduct Act, section 27, I couldn't figure out why the CCC were not taking the evidence I provided them, copies of the letters that I provided them, why they were not investigated.
Although the prosecution have not objected to this passage, the accused's actions since 2 May 2017 are irrelevant to the issues that will be before the jury in January. The accused is not permitted to repeat that passage of his opening speech at the third trial.
For the same reason, the accused must not repeat the passage that commences with, 'So I had to look up the Act. Section 27 stated …' (ts 445) through to 'So you've got the CCC who can't do its job (indistinct) to Parliamentary - - -' (ts 445).
The accused next relevantly stated (ts 447):
I apologise for getting upset earlier. It wasn't my intention to show these people that they're getting to me. At the end of the day, why it's taken so long, why there is an aborted trial before, is because I've told the truth. I've been honest. I fought against lies, corruption.
I understand the references to 'because I've told the truth' and 'I fought against lies, corruption' to relate to the accused's assertion that the DVD which is exhibit 7 is different to a DVD that a lawyer had previously provided to him. Secondly, that things that he said in that recorded conversation have been removed from the DVD. As I have indicated, I will permit the accused to open on those assertions. If the accused wishes to inform the jury that there have been two earlier trials, both of which have been aborted, I will not prevent him from doing so although, of course, the jury must not be misled as to the reason why those trials were aborted.
The accused continued:
The only thing that I - the only evidence I got is to show you my attempts to get professionals to look at the fabricated evidence, the attempts I have had to try and get CCC to look into this, to get the (indistinct) to look into this, police to look into this, Eastern States government. You name it, I've written to them. And all they've told me is, 'Get in touch with the attorney-general,' or, 'Get in touch with CCC.' So shocked.
Again this passage refers to the accused's actions, primarily since 2 May 2017, in support of his defence. Given the absence of any evidence, other than the accused's assertions, that the DVD which is exhibit 7 has been fabricated, the accused is confined to submitting that he will put to prosecution witnesses the proposition that this DVD has been altered in the way that he suggests. His reference to his seemingly unsuccessful attempts to obtain professionals to assess the DVD is, in the absence of any such evidence, prohibited as an invitation to the jury to speculate.
The accused continued:
You've got to ask yourself a question and it's under law, evidence tendered for trial, is it admissible? This court has found it to be not. The judge at the time, Judge Braddock, found it to be admissible and states - the transcripts of the second day of trial have been changed. That's why I wanted Judge Braddock to go on the stage - to go on the stand.
That passage is impermissible. The transcript has not been changed. I repeat my observations at [65].
The accused continued (at ts 448):
So the fabricated evidence was used in a statement and obviously if I can't use that fabricated evidence in this trial, you've got no evidence to show - I've got no evidence to show you that proof. If I can't use a judge as a witness, I can't use a witness to show you that proof. And there's a lawyer. I can't use the lawyer to show you that proof. All has been ruled against.
All of that passage is impermissible for the reasons stated at [33] and [65].
The accused continued:
Now, the visual recording of the statement. The court can't find it. This - this is the kind of shit I'm up against.
This is a reference to the accused's repeated contention that prior to 1 May 2017, HMR gave evidence about these matters at a hearing which was recorded. This assertion is not borne out by the transcript or any court records and has been denied by the complainant on 19 November 2018 (ts 662 ‑ 663) clarifying her earlier evidence of 10 October 2018 (ts 530).
The accused can ask other prosecution witnesses at the third trial if they are aware of the existence of this supposed earlier hearing. If the accused knows that he is to give evidence, and will say that he was present when there was an earlier hearing, not documented in any transcript, he can tell the jury in opening of that assertion.
The accused continued (ts 448), 'later on I just go through the law, tell you a few cases'. A little later he stated, 'I'll talk about the laws later'.
It is not clear what the accused is referring to, but it will be for me to direct the jury on matters of law, not the accused nor the prosecutor Mr Hunter and the jury will be so advised.
The accused continued:
If I'm allowed to, show you paperwork I've sent out, show you the paperwork I've sent to my previous lawyer for the attempt to get a professional to look at the fabricated - there are three discs of 1 May called (indistinct) transcripts, two of them missing. The (indistinct) which is against the law, this court allowed to happen in February this year. So basically all I have is the letters I've been sending out to try and get an investigation against these people. Trying to get hold of the fabricated evidence which proves the lies that's been stated. And (indistinct) this case (indistinct) where I may be able to get a fair trial.
This passage is also impermissible for the reasons already stated. If there was a witness who was to give evidence concerning the alleged alteration of this DVD, the accused could open upon that anticipated evidence. There is no such witness. Any material concerning efforts made to obtain such a witness is irrelevant and self-serving and thus inadmissible.
The accused continued:
He [Mr Hunter] tried to make stories up last time.
The jury at the third trial will be concerned only with the evidence that will be put before them, as opposed to any evidence given on an earlier occasion. There is an exception to that general proposition if it is shown that a witness has said something inconsistent to what they said on an earlier occasion. If the accused takes objection to anything said by the prosecutor in his opening speech he can tell the jury about that objection. He cannot tell them that the prosecutor 'tried to make up stories' on some earlier occasion.
The accused's observations from 'But at the end of the day I can only do what I can do …' (ts 448 ) through to 'It just makes the next process a bit quicker, so we'll just get on with it' (ts 449) should also not be repeated. The trial is not a 'stepping stone' as the accused described it. There is no automatic right of appeal for either side. In the event of not guilty verdicts delivered by the jury the prosecution do not have a right of appeal per se. Section 47 of the Criminal Appeals Act2004 (WA) allows for the Attorney General to refer to the Court of Appeal any question of law that was decided by a superior court when dealing with a charge of an indictable offence, but does not permit an appeal against the verdict itself.
Apart from s 47, the State only have a right of appeal against a judgment of acquittal (as distinct from seeking leave of the Court of Appeal to charge an acquitted accused with new charges in the circumstances referred to in s 46E) if that judgment has been entered after a decision by the judge that the accused has no case to answer on the charge: s 24(2)(e) of the Criminal Appeals Act or if the judge has made an error of fact or law: s 24(2)(da).
An accused person who is convicted has the right to seek leave to appeal against conviction: s 23(1) and s 27(1) of the Criminal Appeals Act.
During my summing up I will direct the jury that the consequences of their verdicts, whatever they are, are not something that they should be concerned with. Further, once they reach their verdicts the case will be my responsibility alone. It is therefore impermissible for the accused to refer in opening to possible appeals or to implicitly suggest that their verdicts will be, in some way, provisional.

ANNEXURE 1

ANNEXURE 2

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ASSOCIATE TO JUDGE TROY

7 DECEMBER 2018