VJS v The State of Western Australia
[2017] WASCA 172
•15 SEPTEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VJS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 172
CORAM: MARTIN CJ
BUSS P
MAZZA JA
HEARD: 5 SEPTEMBER & 24 OCTOBER 2016
DELIVERED : 15 SEPTEMBER 2017
FILE NO/S: CACR 66 of 2015
BETWEEN: VJS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BRADDOCK DCJ
File No :IND 411 of 2011
Catchwords:
Criminal law - Appeal against conviction - Sexual offences against de facto child - Right to legal representation - Where appellant chose to represent himself at trial - Whether trial was unfair
Legislation:
Criminal Code (WA), s 329
Evidence Act 1906 (WA), s 31A, s 106G
Result:
Application to amend grounds of appeal dismissed
Application to adduce additional evidence dismissed
Application for extension of time dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J A Scholz
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
ARK v The State of Western Australia [2014] WASCA 45
Browne v Dunn (1893) 6 R 67
Collins v The Queen (1975) 133 CLR 120
Craig v South Australia (1995) 184 CLR 163
de La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dietrich v The Queen (1992) 177 CLR 292
DPJB v The State of Western Australia [2010] WASCA 12
Gavin v The Queen (1992) 6 WAR 195
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
Lawless v The Queen (1979) 142 CLR 659
Love v The Queen (1983) 9 A Crim R 1
MacPherson v The Queen (1981) 147 CLR 512
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
McInnis v The Queen (1979) 143 CLR 575
O'Connell v The State of Western Australia [2012] WASCA 96
R v Frawley (1993) 69 A Crim R 208
R v Karounos (1995) 63 SASR 451
R v Zorad (1990) 19 NSWLR 91
Rodi v The State of Western Australia [2017] WASCA 81
Szulc v Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143
Wimbridge v The State of Western Australia [2009] WASCA 196
MARTIN CJ: For the reasons given by Mazza JA, with which I agree, the application to amend the grounds of appeal, the application to adduce additional evidence, and the application for an extension of time within which to appeal should all be dismissed.
BUSS P: I agree with Mazza JA.
MAZZA JA: This is an appeal against conviction.
The appellant was charged on indictment in the District Court with six sexual offences in respect of his de facto child, J, who was, at all material times, under the age of 16 years.
Counts 1, 3 and 4 alleged that the appellant indecently dealt with J, contrary to s 329(4) and s 329(10)(a) of the Criminal Code (WA) (the Code). Counts 2, 5 and 6 alleged that the appellant sexually penetrated J, contrary to s 329(2) and s 329(9)(a) of the Code.[1] The alleged charges were as follows:
[1] Blue AB 1 and 2.
(1)On a date unknown between 1 January 2006 and 31 December 2006 at Kingsley [the appellant] indecently dealt with [J], a child who he then knew to be his de facto child, by kissing her.
And that [J] was a child under the age of 16 years.
(2)On a date unknown between 1 January 2006 and 31 December 2006 at Kingsley [the appellant] sexually penetrated [J], a child who he then knew to [be] his de facto child, by engaging in cunnilingus.
And that [J] was a child under the age of 16 years.
(3)On a date unknown between 1 January 2007 and 31 December 2007 at Kingsley [the appellant] indecently dealt with [J], a child who he then knew to be his de facto child, by kissing her.
And that [J] was a child under the age of 16 years.
(4)On a date unknown between 1 January 2007 and 31 December 2007 at Kingsley [the appellant] indecently dealt with [J], a child who he then knew to be his de facto child, by rubbing his penis against her.
And that [J] was a child under the age of 16 years.
(5)On a date unknown between 1 August 2009 and 16 October 2009 at Kingsley [the appellant] sexually penetrated [J], a child who he then knew to be his de facto child, by performing cunnilingus.
And that [J] was a child under the age of 16 years.
(6)On a date unknown between 1 August 2009 and 16 October 2009 at Kingsley [the appellant] sexually penetrated [J], a child who he then knew to [be] his de facto child, by inserting his penis into her vagina.
And that [J] was a child under the age of 16 years.
The appellant was tried before Braddock DCJ and a jury. The appellant represented himself at his trial. The circumstances in which this occurred will be canvassed later in these reasons. On 12 August 2011, the appellant was convicted on counts 1, 2, 5 and 6, being one count of indecent dealing and three counts of sexually penetrating J. He was acquitted on counts 3 and 4.[2]
[2] ts 500 ‑ 501.
On 13 October 2011, the appellant was sentenced to a total effective sentence of 6 1/2 years' imprisonment with eligibility for parole, backdated to commence on 1 July 2011.[3]
[3] Sentencing ts 9, 10.
On 8 April 2015, the appellant appealed against his convictions. Once again, he was self‑represented. The appeal was commenced approximately 3 years and 5 months out of time. The appellant requires an extension of time to appeal. His affidavit in support of this application filed 8 April 2015 (including annexures) is over 200 pages in length.
In my opinion, the appeal has no merit. Given this, and the gross delay in bringing the appeal, the application for an extension of time should be dismissed. My reasons for these conclusions are as follows.
The grounds of appeal
Initially, the appellant relied upon seven grounds of appeal. They are not clearly expressed. Rather than paraphrase them, I will set them out as they were expressed in the appellant's case:[4]
1.GROUND 1 - Failure of the State of Western Australia to recognise the right of an accused person facing serious charges to counsel, and to provide counsel at public expense if necessary, to ensure a fair trial by law.
2.GROUND 2 - The trial judge erred in judgement by failing to properly assess foreseeable conditions and unique circumstances confronting the accused that would necessitate a stay of proceedings, by law, until the unfair disadvantages could be satisfactorily remedied, which, in this class of trial, could only be achieved by way of impartial, competent counsel acting in behalf of the accused.
3.GROUND 3 - In the matter of ground 3, the trial judge erred in discretion by failing to adjourn trial and dismiss the tainted jury after exceptional circumstances caused the trial to be manifestly unfair to the accused, which not only inhibited cross examination of a primary witness but created unacceptable risk of causing prejudice in the jury against the accused.
4.GROUND 4 - Procedural error - Prosecution misuse of evidence: The trial judge erred by permitting the prosecution to re-introduce material evidence to another witness - in this case the reporter and mother of the complainant - which had already been addressed and discredited of its probative merit by the complainant herself, whereby creating an unfair disadvantage to the accused and tainting jury opinion.
5GROUND 5 - Key defence evidence was withheld from defence by prosecution who then used the absence of said evidence to discrete the defence witness's testimony, unfair to the accused.
6.GROUND 6 - The trial judge erred in discretion by refusing to allow the defence's request that certain evidence be read aloud for the jury by the complainant. The evidence in question concerned a document that the complainant had validated in trial as being of her own creation. The evidence thereon contradicted her statements made against the accused in both her report to police and during trial.
7.GROUND 7 - The trial miscarried on the ground that significant evidence led by the State, or significant statements made by state witnesses, was wilfully misleading, misrepresented, fabricated, or otherwise not what it was purported to be. Where evidence has been led in trial, which subsequently proves to be non‑probative, there has been a serious error at the trial. The test for the admissibility of evidence is that it is both relevant and probative. Evidence which is non-probative is inadmissible. Therefore, if non‑probative evidence has been let into trial there has been an error in letting it in.
[4] White AB 243.
Application to amend the grounds of appeal
After the hearing of the appeal on 5 September 2016, by an application filed on 30 September 2016, the appellant sought leave to amend his original grounds of appeal by adding ground 8. Proposed ground 8 amounts to a claim that the appellant suffered a miscarriage of justice by reason of the admission of 'complaint evidence' given by J's mother.[5]
[5] Appellant's affidavit sworn 22 September 2016.
Leave to appeal has not yet been granted in respect of any of the appellant's proposed grounds of appeal.
Application to adduce additional evidence
At the hearing on 5 September 2016, the appellant claimed that he had evidence in his possession, not adduced at trial, which established his innocence.[6] In the interests of justice, this court made orders, in effect, giving the appellant the opportunity to put before it this evidence. The hearing of the appeal was then adjourned to 24 October 2016.[7] By an application dated 13 September 2016 which was filed on 22 September 2016, the appellant sought leave to adduce additional evidence in relation to grounds 1, 6 and 7 of the appeal. The additional evidence the appellant sought to adduce is contained in his affidavit sworn 13 September 2016. The affidavit is 37 pages long and refers to annexures JVR 1 ‑ JVR 26. Annexures JVR 4 and JVR 6 have a cover sheet but no document. Further, JVR 7 appears to have a District Court exhibit label on it (Ex 15), as does JVR 13 (Ex 16) and JVR 14 (Ex 17). I will assume JVR 7, JVR 13 and JVR 14 are copies of exhibits tendered at trial and are not additional evidence. Leave is not required to adduce them.
[6] Appeal ts 29.
[7] Appeal ts 35.
Overview of the State's case
In overview, the State's case may be summarised in this way.[8]
[8] This overview is drawn from the prosecutor's opening address.
The appellant is a citizen of the United States of America. He met J's mother, L, on the internet. Eventually, he moved to Australia. In 1999, he and L married. At the time, J was six years old.[9]
[9] ts 167.
For the first few years of the marriage, the relationship between the appellant and J 'was an ordinary stepfather, stepdaughter relationship'.[10] However, when J was about 11 years old and approaching puberty, the appellant developed a sexual interest in J.[11]
[10] ts 167.
[11] ts 167.
The six charges in the indictment arose out of three separate incidents, the first of which was alleged to have occurred 'around about 2006' when J was 12 or 13 years old.[12] According to J, she and the appellant were alone together in the master bedroom of the family home when the appellant kissed her neck and body for 'a couple of minutes or so' (count 1).[13] The appellant then sexually penetrated her by kissing the outside of her vaginal area (count 2).[14] This made her feel uncomfortable. J asked the appellant to stop, which he did.[15]
[12] ts 168.
[13] ts 168.
[14] ts 168.
[15] ts 168.
The second incident was the subject of counts 3 and 4. The State alleged that this incident occurred 'likely in 2007 when [J] was about 14 years of age'.[16] On this occasion, it was alleged that the appellant entered J's bedroom, ostensibly to kiss her goodnight. The appellant leaned over her and 'suddenly passionately kissed [J], putting his tongue into her mouth'[17] (count 3). J rolled onto her stomach. The appellant then got on top of her, over the bedcovers, and thrust his body against hers so that she could feel his penis against her bottom[18] (count 4).
[16] ts 168.
[17] ts 169.
[18] ts 169.
Counts 5 and 6 were committed in another incident which allegedly occurred when J was almost 16 years of age and culminated with the appellant sexually penetrating J's vagina with his penis. The State alleged that 'there had been a very long lead‑up to this act of sexual intercourse'[19] and that the appellant had been putting pressure on J to have sex with him 'for years'.[20]
[19] ts 169.
[20] ts 169.
It was alleged that the appellant told J that many years earlier he had been in a relationship with a young girl who had died in tragic circumstances. It was said that the appellant showed J the girl's death certificate which showed that she had died the day before J was born. It was alleged that the appellant told J that she was the reincarnation of his former girlfriend and that she (J) had been sent back to him so that he could have sex with her.[21] The State's case was that the appellant told J this story 'regularly and repeatedly'.
[21] ts 169.
Further, as J approached her mid‑teens, he regularly left her notes, cards and song lyrics. J kept some of these items. According to the State, some of them were 'benign', but some were 'more intimate'.[22] An example of the 'more intimate' communications was a note in which the appellant told J:
Only you can make every belief and conviction I ever had melt away like mountain snow in the summer.[23]
[22] ts 169.
[23] ts 170.
Another told J that she was part of the greatest love story ever told.[24]
[24] ts 170.
The State identified some common themes in a number of the notes. It was said that the appellant used a particular symbol he allegedly designed which was described as 'like a stylised lightning bolt with a cross'.[25] Further, he frequently wrote the words 'love you beyond imagination' or used an acronym for this expression, 'LYBI'.[26]
[25] ts 170.
[26] ts 170.
The State's case was that by August or September 2009, when J was 15 years old, J had 'basically had enough' of the appellant.[27] At this time J was feeling 'very stressed' because the appellant was hostile to her boyfriend and was giving her 'the cold shoulder'.[28]
[27] ts 170.
[28] ts 170.
The State alleged that on the nights counts 5 and 6 were committed, L was in bed and the appellant was on the computer. J decided that she would do what the appellant wanted, that is, to have sex with her, 'and get it over with'.[29] J went to the appellant and took him into the lounge room and told him that she would allow him to have sex with her 'but only briefly'.[30] The appellant agreed and then took J into her bedroom where he took off her track pants and underwear. He then, briefly, committed an act of cunnilingus upon her (count 5).[31] The appellant then took his clothes off, got onto the bed and put his penis into J's vagina 'for a short time before he stopped'[32] (count 6).
[29] ts 170.
[30] ts 170.
[31] ts 171.
[32] ts 171.
J did not immediately disclose to anyone what had occurred between her and the appellant.
In late 2009 or early 2010, the appellant went to the United States of America. He returned in about April 2010. When he did so, he stayed at the family home for some time, but eventually he and L separated. It was not until after the separation, in June 2010, that J disclosed the alleged offences. On 30 June 2010, J's allegations were reported to the police.[33] In addition to J's testimony, the State also adduced evidence from L, J's uncle (SAE), a former stepdaughter of the appellant (AB) and from a police officer.
[33] ts 171.
SAE said that the day after J's allegations against the appellant were disclosed, he spoke to the appellant by telephone. In the course of the conversation the appellant told SAE that he had 'fucked up'. When SAE asked him what he meant, the appellant said that he had twice had sex with J.[34] According to the State, the occasions the appellant referred to were the first act of cunnilingus when J was 12 or 13, and the second was the act of sexual intercourse that occurred when she was 15.[35]
[34] ts 171.
[35] ts 171.
AB's evidence was adduced as tendency or propensity evidence, pursuant to s 31A of the Evidence Act 1906 (WA). When AB was the appellant's stepdaughter, and at a time when she had just turned 16 years, the appellant twice had sexual contact with her. On the first occasion in late 1994, AB was lying on a lounge with the appellant lying behind her. It was said that he ran his hands over her clothing and touched her vaginal area over the top of her clothes.[36] The second occasion occurred shortly after Christmas 1994. On this occasion, AB wandered into his bedroom and the appellant asked her to lie down with him. The appellant then began to masturbate under the covers. When the covers came off, AB saw that he was naked. It was said that he then asked her to touch his penis, which she did for a short time.[37]
[36] ts 172.
[37] ts 172.
Overview of the appellant's case
The appellant gave evidence in his defence and called a witness, SMP.
In essence, the appellant denied any sexual interest in J. He specifically denied committing the acts said to constitute the offences in the indictment.
The evidence in detail
The evidence of J
J was born on 17 October 1993.[38]
[38] ts 174.
She has an older brother and a younger sister. The appellant is the father of her younger sibling.[39] J recalled that, when she was five or six years old, the appellant became her stepfather.[40] She said that her relationship with the appellant became closer about the time she turned 11.[41] She said that her relationship with the appellant changed after an incident when she was 11 when they were in a spa together.[42]
[39] ts 175.
[40] ts 175.
[41] ts 175.
[42] ts 175.
Counts 1 and 2 occurred when J was in year 8. J testified that she and the appellant were in his bedroom together, watching a movie or talking. Somehow, he rolled on top of her and began kissing her lips, face, neck and collarbone (count 1). The appellant then told J that he 'was going to do something' to her and if she felt uncomfortable she could ask him to stop.[43] The appellant then got onto his knees, removed J's pants and underwear and kissed the front of her vagina. J said that she felt uncomfortable and that she asked the appellant to stop, which he did (count 2).[44] Afterwards, he said something along the lines of, 'That was beautiful and it's okay that you get nervous. Everyone does'.[45]
[43] ts 176.
[44] ts 176.
[45] ts 176.
The incident the subject of counts 3 and 4 (the counts on which the appellant was acquitted), were said to have occurred when J was in year 9. J testified that the appellant was tucking her into bed as he did every night and, instead of giving her the usual goodnight kiss which involved a peck on the lips, he kissed her, putting his tongue in her mouth for about 30 seconds[46] (count 3).
[46] ts 177.
J said that she was 'kind of in shock' and she rolled onto her stomach, hoping that he would leave the room. Instead, he 'mounted' her and thrust his pelvic region into her back. J said that she felt his penis 'in my bum region'[47] (count 4).
[47] ts 178.
The incident the subject of counts 5 and 6 occurred when J was 15, 'a couple of weeks' before her 16th birthday.[48] J said that these offences occurred against the following background:
1.Since she was 11, the appellant had told her that when he was younger he had a girlfriend named Gigi. He told her that they had promised each other that they would lose their virginity together. However, Gigi slept with someone else and, afterwards, died in a car accident.[49]
2.One night, the appellant showed J Gigi's birth and death certificates. Gigi's date of death was close to J's birthday. The appellant told J that he believed J had been 'sent back as Gigi' in order to lose her virginity to him. The appellant told J that 'it would kill him if he didn't get to have his virgin or if I lost my virginity to anyone other than him'.[50]
3.The appellant brought up the subject of Gigi more than once and more frequently when she turned 14, but especially after she turned 15. By that time, the appellant brought up the subject 'once every couple of weeks'.[51]
4.The appellant became upset when J began a relationship with a boy, TS, with whom she went to school.[52]
5.The appellant made an item of jewellery which he called 'his amulet' which he asked her to wear. He told J that this object was 'some sacred special thing' and would tell him if she lost her virginity to someone else.[53]
6.One night he told her that the amulet had been red hot and scalded his neck. When she came home he wrongly accused her of losing her virginity.[54]
7.J said that these conversations with the appellant made her 'very, very anxious'. She said that after the appellant accused her of losing her virginity, he did not speak to her.[55] In this emotional state, she decided that she had 'to get it done'.[56]
[48] ts 178.
[49] ts 179.
[50] ts 179.
[51] ts 179.
[52] ts 179.
[53] ts 180.
[54] ts 180.
[55] ts 180.
[56] ts 180.
J said that counts 5 and 6 occurred in an incident late at night when the rest of the family were asleep.[57] J testified that she spoke to the appellant in the lounge room. She said he could 'make it really quick'.[58] The appellant agreed and led her into her bedroom. There, he removed her underwear and pants and performed an act of cunnilingus[59] (count 5). J said that this act lasted approximately 30 seconds.[60]
[57] ts 180 ‑ 181.
[58] ts 180.
[59] ts 181.
[60] ts 181.
According to J, the appellant then said, 'Well, I'm going to do it now,' to which she replied, 'You can only go in once. I - I don't want this to go for very long'. The appellant then penetrated her vagina with his erect penis.[61] J said that, after penetrating her for 'a minute or so', he withdrew his penis. He then started to cry and said that he felt 'like such a real man' and told her how special it was (count 6).[62]
[61] ts 181 ‑ 182.
[62] ts 182.
J said that the relationship between the appellant and her mother started to fall apart over Christmas in 2009. She said that the appellant went on a business trip to the United States of America and returned in 2010.[63]
[63] ts 182.
In 2010, L and the appellant separated.
J did not disclose to her mother what the appellant had done to her. The first person she told was a school friend, SMP.[64]
[64] ts 183.
Ultimately, J told her mother what had occurred and the matter was reported to the police. By that time, J had written a letter to the appellant, in substance telling him that what he had done was 'inappropriate'.[65]
[65] ts 184.
Exhibits tendered through J
After the commission of counts 5 and 6, the appellant gave J the amulet, telling her that it no longer had any power 'because it's been done'.[66] Ultimately, the amulet was handed to the police and tendered in evidence (exhibit 1).[67]
[66] ts 184.
[67] ts 185, exhibit 1.
When J was 14 or 15, the appellant gave her a copy of Gigi's death certificate. The certificate was tendered in evidence (exhibit 2).[68] The death certificate concerns a person who was known by the first given name of 'Gigi'. It reveals that her date of death was the day before J's birth.
[68] ts 186, exhibit 2.
In the course of their relationship, the appellant gave J various notes, cards and other documents. J said that, between the ages of 13 and 15 years, she received a lot of these items.[69] A bundle of these documents was tendered in evidence (exhibit 3).[70]
[69] ts 187.
[70] ts 197, exhibit 3.1 ‑ 3.19.
It appears that, after the appeal period expired, all of the exhibits I have so far mentioned were returned to the State and are no longer available. However, exhibits 2 and 3 (along with other documentary exhibits which need not be referred to) were part of the prosecution brief. Relevantly to exhibits 2 and 3, the prosecutor referred to them in the course of J's evidence by reference to the page number in the prosecution brief. This court has access to the prosecution brief and thus to copies of the documents that were tendered in evidence. Further, the contents of many of the documents which comprise exhibit 3 were read by J and were transcribed.
It is unnecessary to refer to all of the documents which comprise exhibit 3. Some of them bear a particular symbol used by the appellant. J said that the appellant designed the symbol which he called 'disparage'.[71] It is the symbol that was described earlier at [23]. In his evidence, the appellant admitted that the symbol was his. He called the symbol 'the disparage symbol' or 'the cross of broken faith'.[72] Some of the documents comprising exhibit 3 use the acronym LYBI.[73] While the contents of some of the documents may, when read in isolation, appear innocuous, the overall impression created by them is that the appellant had formed an inappropriate intimate attachment to J. The appellant frequently expressed his love for her. On one occasion, he gave her a piece of paper on which he had written the 'disparage' symbol and signed his name in his blood.[74] On another note he wrote:
Love beyond imagination LBI -
The kind legends are made of -
You are a part of the
greatest love story every [sic] told
ILY [I love you]
(disparage symbol)[75]
[71] ts 187.
[72] ts 378 ‑ 379, 407.
[73] ts 187.
[74] ts 191 ‑ 192, prosecution brief page 101.
[75] ts 192, prosecution brief page 102.
On 11 November 2009, the appellant gave her a sheet of paper with some song lyrics on it, next to which was printed a love heart separated by the 'disparage' symbol.[76]
[76] ts 193, prosecution brief page 94.
J identified a note the appellant had left under her bedroom door entitled 'Thanks for last night', and the lyrics of a song. J said that he had given her the note at around the time she lost her virginity, but she was not certain that it was given the night after the incident the subject of counts 5 and 6.[77] The note contains the lyrics to a song about a 16‑year‑old girl.[78]
[77] ts 193 ‑ 194.
[78] Prosecution brief page 98.
J said that the appellant gave her a card just before he left for the United States of America in late 2009. The card itself is dated Christmas 2009. In the card, the appellant wrote that he and J had:
been inseparable since you were just 11. You became my dearest friend and confidant. We grew up together, so to speak. You kept me young through your love and playful antics and I assisted in helping you grow up by being sometimes brutally honest about life.
Later, he wrote:
I've never in my life been sent to such extremes of emotions as you have done to me over the years. You made me laugh when no one else could. You brought me to knees [sic] and made me cry when I thought I was strong. You know my darkest secrets and greatest dreams.
The appellant continued:
I'm just going back home to where I am king … and there I will raise an empire … because you so inspired me to do so. I love you, [J] … for all you are. You're perfect. Never forget that you are unique among humanity …
The card ends with the following:
Love knows no age.
No race, creed, colour or religion.
It knows no boundaries.
Nor space too vast.
It knows only what it is.
And it is love.
And pure love is innocent of any wrong.[79]
[79] ts 195 ‑ 196, prosecution brief pages 103 ‑ 104.
The cross-examination of J
As J was a protected witness as defined by s 106G(a) and (b) of the Evidence Act and the appellant was not represented by counsel, J was cross‑examined pursuant to s 106G(1) of the Evidence Act which provides, in substance, that he could only cross‑examine J through an approved intermediary.[80] In this case, the approved intermediary was Ms Howard, an experienced associate to a District Court judge, other than the trial judge. The questions were written down by the appellant and given to Ms Howard, who then read them to J. Her Honour directed the jury that this procedure was required by Parliament and no adverse inference should be drawn because of its use.[81]
[80] Section 106G(1): where in any proceeding for an offence an accused who is not represented by counsel wishes to cross‑examine a protected witness, the accused -
(a) is not entitled to do so directly; but
(b)may put any question to the protected witness by stating the question to the judge or a person approved by the court,
and that person is to repeat the question accurately to the protected witness.
[81] ts 213 - 214.
The appellant began his cross‑examination by asking questions of J about her relationship with TS. J said she met TS at high school. She agreed that he became her boyfriend. She said this happened after a meeting at SMP's house on an occasion when he and SMP had been drinking. She initially agreed that this incident occurred in August 2009 but added that she was not sure of the date. She said she thought the appellant broke up her relationship with TS before her 16th birthday.[82]
[82] ts 215.
J agreed, in substance, that prior to April 2010 she and the appellant were close.[83] J agreed that she and the appellant shared similar interests in music and film.[84] She also agreed that between 2005 and 18 December 2009, when L was working in the evening, she and the appellant spent time together.[85]
[83] ts 216 ‑ 217.
[84] ts 216.
[85] ts 217.
She accepted that it was not uncommon for the both of them to watch DVDs or TV under the same blanket or doona.[86]
[86] ts 216.
J agreed that on occasions the appellant would take her to McDonald's or to the Chocolate Factory as a treat.[87] She accepted that she called the appellant to pick her up if she was drunk, but added that it was the appellant who had purchased the alcohol in the first place.[88]
[87] ts 216.
[88] ts 217.
The appellant did not ask J questions about the precise circumstances in which counts 1, 2, 3 and 4 were committed.
In respect of counts 5 and 6, J confirmed that her evidence was that she offered the appellant her virginity because he pressed her to do so.[89]
[89] ts 219.
It was put to J that, on an occasion when she was in year 9, she showed him her vagina. J denied this. She also denied that this was the only occasion when she was in year 9 in which she discussed sexual matters with him.[90]
[90] ts 220 ‑ 221.
In respect of count 6, J confirmed that the appellant 'definitely' penetrated her vagina.[91]
[91] ts 256.
The appellant cross‑examined J with respect to the contents of a letter she gave him on 30 June 2010. Although the existence of the letter had been referred to in J's examination‑in chief, the prosecutor did not question J about its contents. The appellant cross‑examined her about what she meant when she wrote in the letter that the appellant had taken her innocence. She responded by asserting that the appellant had manipulated her from a young age and sexually abused her. In this way, she said, the appellant took her childhood away from her.[92] She also accused him of isolating her from her mother.[93] She confirmed that she wrote in the letter that the appellant had ruined her mother financially.[94]
[92] ts 257.
[93] ts 257.
[94] ts 257 ‑ 258.
J accepted that in the letter of 30 June 2010 she claimed that she was more angry about the way the appellant had treated her mother than the sexual abuse she claimed to have suffered at his hands.[95]
[95] ts 258.
In substance, J agreed that, despite the alleged sexual abuse, she spoke to the appellant via Skype in March 2010.[96] She also agreed that she missed the appellant and told him that she could not wait for him to get home. J accepted that, while he was away in the United States in early 2010, she called him on the telephone and spoke to him 'for a while'.[97]
[96] ts 258 ‑ 259.
[97] ts 259.
J said that she stopped talking to the appellant around April 2010 when she found out that he was having 'an internet affair with someone else'.[98]
[98] ts 260 ‑ 261.
When Ms Howard indicated that she had asked the questions she had been given, the learned trial judge asked the appellant if he wished to have further time to consider whether to ask any supplementary questions of J or whether he had completed his cross‑examination. The appellant replied:[99]
I'm not going to get any correct answers from her … at all.
[99] ts 263.
Her Honour once again asked the appellant if he had any further questions for J, to which he said:[100]
No more further [sic] questions to ask her.
[100] ts 264.
Taken as a whole, it is clear that the appellant challenged the veracity of J's allegations. In effect, he suggested in cross‑examination:
(a)J's conduct towards him during the period of the alleged offending was inconsistent with someone who was being sexually abused by him;
(b)the allegations were false and were made to get back at the appellant for the way he treated L; and
(c)he did not behave in a sexual way towards J and that their relationship had no sexual aspect to it.
The evidence of AB
AB gave evidence by video‑link from Utah in the United States of America.[101] AB testified that she was born on 29 October 1978.[102] She said that the appellant became her stepfather when she was approximately 6 years old. She said that the appellant was her stepfather until she was 16 years of age.[103]
[101] ts 265.
[102] ts 265.
[103] ts 266.
Initially, she thought the appellant was a good role model for her, but in 1994 'things started to change'.[104]
[104] ts 266.
AB testified that around October/November 1994, when she was 16, he touched her vagina over her clothes and at the same time sucked her ear.[105]
[105] ts 268.
In late December 1994 or January 1995, she went upstairs where she saw the appellant in the bedroom he occupied with AB's mother, lying on the bed under the covers. She said that the appellant invited her to come next to him and, after she did so, he exposed his penis and asked her to touch it, which she did. According to AB, the appellant then masturbated in her presence.[106]
[106] ts 269 ‑ 270.
AB said that, at about the time of these incidents in 1994 and 1995, the appellant introduced her to a religion called Starborn in which it is claimed that angels speak through numbers.
AB said that at this time she completely lost the capacity for logical thought. She attributed this, not to Starborn, but to the fact that she was suffering from bipolar disorder at the time, for which she was not medicated.[107]
[107] ts 267.
In his cross‑examination of AB, the appellant put to her that the only incident of a sexual nature which occurred was when, in January 1995, she unexpectedly walked into his unlocked bedroom and found him masturbating on the bed. She denied that this is what occurred.[108] AB agreed that it was her father who called the police and pressed charges against the appellant.[109] AB said that she was unaware that the appellant had pleaded 'no contest' to 'lewd exposure', nor did she have any knowledge of the judge chastising her father 'for attempting to make a big issue out of accidental viewing'.[110]
[108] ts 273.
[109] ts 275.
[110] ts 277.
AB said that the last time she saw the appellant was after the incident in January 1995 at a school event. She added that she recalled speaking to the appellant over the telephone, possibly in October 1995.[111]
[111] ts 278.
The evidence of L
In her examination‑in chief, L outlined the history of her relationship with the appellant. She said that they met over the internet and that, in September 1999, he came to Perth from the United States of America. On 11 November 1999, they married. She described how their relationship deteriorated. She said that the appellant travelled to the United States of America in January 2010 and returned to Perth in April of that year. In April, she decided that the marriage was unviable. Initially, the appellant slept in another room in the house, but eventually, in May 2010, he left the house and, for a period, lived in his car.[112]
[112] ts 281, 288 ‑ 289.
L said that she became aware of J's allegations of sexual misconduct against the appellant on 30 June 2010. As a result, she called the police.[113]
[113] ts 290.
L testified as to the appellant's relationship with J. L described the appellant's relationship with J at about the time that she married him as 'not especially close'.[114] However, when J was about 12, their relationship changed. She described the appellant as being 'possessive' of J.[115] She said that the appellant seemed 'much more interested in [J]' than her siblings.[116] She said that the appellant 'seemed to be secretive with [J]'.[117] According to L, when J was approximately 14 to 16 years old, the appellant became her 'confidant' and she felt that she was 'the bad guy' who 'was squashing all her fun'.[118] During this period, L said that she was not as close to J as she had thought.[119]
[114] ts 284.
[115] ts 284.
[116] ts 285.
[117] ts 285.
[118] ts 286.
[119] ts 286.
L said that J started a relationship with a boy named TS. L said that the appellant told her he did not like TS.[120] In examination‑in chief, the prosecutor drew L's attention to a number of documents. One of those documents was exhibit 3.19. L was asked about a 'red symbol' on the front cover of that document. L said that it was a symbol that the appellant and J designed together and which they 'were going to have made into tattoos'.[121] Exactly which document this is requires some deduction given that the exhibits are no longer available. As the documents which comprise exhibit 3 were numbered in the order they were shown to J, it may be inferred that exhibit 3.19 was the last document in exhibit 3 she identified. According to the transcript of J's evidence, this document appears at pages 103 and 104 of the prosecution brief. The document which appears in the brief at pages 103 and 104 is a card on the cover of which is a photograph of the appellant and J. There are two symbols on the cover (page 103 of the brief); one the 'disparage' symbol, the other a love heart inside of which are two birds separated by the 'disparage' symbol. On what appears to be the reverse side of the cover (assuming the document is folded) is another 'disparage' symbol incorporated inside the body of a bird. The copy of this card in the brief is in black and white.
[120] ts 289.
[121] ts 288.
Another document, described by L as an essay that the appellant had written, was tendered as exhibit 4.[122]
[122] ts 290, prosecution brief pages 112 ‑ 121.
The document primarily described the relationship the appellant had with the witness AB. It describes their 'love story'. At one point, he wrote:[123]
But it was at the time, a forbidden love. Forbidden in that I had found the companion I'd searched for but I was married … to her mother.
[123] Exhibit 4, prosecution brief page 112.
L also identified a calendar on which she said that the appellant had marked for the date 8 September a design that he and J had made. The calendar page is marked exhibit 7.[124] I observe that the mark is the 'disparage' symbol. L also identified an entry in the appellant's diary for the date 8 September in which the appellant wrote 'I love you [J]. Thank you. LYBI forever'.[125]
[124] ts 291, prosecution brief page 110.
[125] Exhibit 8, prosecution brief page 111.
L did not give evidence of recent complaint. When the prosecutor adduced the evidence that L first became aware of J's allegations on 30 June 2010, he expressly prefaced the question by telling L that he did not want her to give 'any specifics about what was said [by J]'.[126]
[126] ts 290.
Some of the appellant's cross‑examination of L appears unhelpful. An analysis of the transcript of the cross‑examination shows that the appellant was more intent on cross‑examining L about the history of their relationship and the reasons for their separation, rather than on the matters she testified about in her examination‑in chief. On several occasions, the learned trial judge sought to focus the appellant's attention on the relevant, rather than the irrelevant. In doing so, she displayed appropriate patience and restraint.[127]
[127] See, for example, ts 316.
It is evident that the appellant lost his composure several times in his cross‑examination of L. At one point, he abused the witness, for which he was appropriately admonished by the trial judge. Immediately following this incident, her Honour took a short adjournment to allow the appellant to compose himself.[128] On a number of occasions in the cross‑examination of L, the appellant said that he had not been able to sleep prior to the trial.[129] He said that he found the situation of having to represent himself in relation to the allegations to be 'extremely emotional'.[130] At times he became frustrated, telling the trial judge:[131]
Everything's being said horrible about me and it's not true [sic].
[128] ts 315.
[129] ts 315, 339.
[130] ts 311.
[131] ts 332.
The learned trial judge frequently intervened in the cross‑examination to assist the appellant to frame his questions in a comprehensible and proper form. She gave the appellant the opportunity to take breaks where she thought it was necessary.
Despite the difficulties I have mentioned, in the end, it clearly emerged from the appellant's cross‑examination of L that it was his case that nothing untoward had occurred to J and that L had 'set up' the appellant.[132] It emerged that the appellant's case theory was that L had set him up in order to end their marriage and because she did not want their daughter (J's sister) either being taken to the United States of America or to call any other woman 'mother' if the appellant formed another relationship.
[132] ts 334 ‑ 336.
At one point in the cross‑examination, the appellant put to L that they had 'built' a radio program called 'Ghost Radio', as a result of which they became famous. L denied that Ghost Radio was popular.[133] The appellant also put to L that he helped her become 'one of Australia's top paranormal talk show hosts'. L also denied this proposition.[134]
[133] ts 332 ‑ 333.
[134] ts 334.
Evidence of SAE
SAE is L's brother and, thus, the appellant's former brother‑in‑law.[135] In examination‑in chief, he testified that on 1 July 2010 he telephoned the appellant to have a conversation with him about the allegations that had been made by J. According to SAE, he said to the appellant that he had heard 'some pretty serious allegations' to which the appellant replied, 'I fucked up. I fucked up. I had sex with [J] and it happened twice'.[136]
[135] ts 350.
[136] ts 351.
In cross‑examination, the appellant, in substance, put to SAE that he did not admit having sex with J and that his testimony was a lie.[137] SAE denied these allegations.
[137] ts 364.
The appellant then sought to cross‑examine SAE, to the effect that L had 'set up' her first husband for the purpose of keeping the house in which they had lived.[138] The learned trial judge intervened in the cross‑examination and ruled that the questions could not be asked because any answers SAE gave would be hearsay.[139]
[138] ts 360.
[139] ts 360 ‑ 361.
The appellant asked SAE questions concerning Ghost Radio. SAE contradicted L's evidence in that he accepted that both the program and L were 'very popular'.[140]
[140] ts 353 ‑ 354.
Evidence of Detective Sergeant Thwaites
Detective Sergeant Thwaites gave brief and unchallenged evidence that:
(a)On 30 June 2010, a complaint was made to police.
(b)On 2 July 2010, various photographs were taken of the interior of J's residence.
(c)On 11 September 2010, L handed the amulet, the death certificate and the items which comprised exhibits 1 ‑ 4, 7 and 8 to police.
Detective Sergeant Thwaites obtained J's birth certificate from the Office of Births, Deaths and Marriages. That document was tendered and admitted into evidence as exhibit 11.[141]
[141] ts 369 ‑ 371.
At 11.14 am on 11 August 2011, the third day of the trial, the State closed its case.
Events after the prosecutor closed the State's case
After the prosecutor closed his case, the trial judge, in the absence of the jury, then addressed the appellant. She told him that after the mid‑morning break she would ask him if he intended to give or call any evidence in his defence. She also said that she would ask him whether he wished to make an opening statement to the jury.[142]
[142] ts 372.
Her Honour told the appellant (as she had done on other occasions in the trial) that he was not obliged to give or call evidence.[143]
[143] ts 372.
She told the appellant that at the conclusion of his evidence, the prosecutor had the right to cross‑examine him.[144]
[144] ts 373.
After the mid‑morning break and in the presence of the jury, the appellant said that he did not wish to make an opening statement.[145] He elected to give evidence, and to adduce other evidence in his defence.
[145] ts 375.
The appellant's evidence
In his examination‑in chief, the appellant was given considerable latitude by the prosecutor and her Honour. At times, he gave irrelevant and confusing evidence. On occasions, her Honour appropriately intervened to ensure that the evidence was relevant and that the appellant addressed the significant parts of the State's case. For example, her Honour drew the appellant's attention to the documents which comprised exhibit 3 and AB's evidence.[146]
[146] ts 411, 423.
The appellant explained in some detail the history of his relationship with L. His account of how they met, the circumstances in which they married and the birth of their child, A, accorded with the testimony given by L.
He testified that, in 2009, he began an online relationship with a woman in Finland named Titta and that, following L's discovery of that relationship, his marriage deteriorated.[147]
[147] ts 383, 387.
According to the appellant, L contrived to have him returned to the United States of America in early 2010 and she did not want him to return to Australia. However, he did return in April 2010. The appellant said L was afraid that he would take their child, A, from her. As a result, L decided to 'set up' the appellant by falsely accusing him of sexually abusing J. As he put it, '[a] sexual allegation charge is the only charge that would ever prevent me from seeing my daughter'.[148] The appellant went further, and accused L of also setting up her first husband.[149]
[148] ts 407.
[149] ts 407.
With respect to his relationship with J, he said that they were 'best buddies'.[150] They shared a number of interests, including in music. He denied behaving in a sexual way towards her and denied the offences.
[150] ts 397.
With respect to the incident the subject of counts 1 and 2, in substance the appellant said that it did not happen.
However, the appellant testified to an event which he said occurred when J was in year 9. He said that in mid‑2006, J started to hang around with girls who were experimenting with 'lesbianism, sexual relations and stuff like that'.[151] He said that, after coming home from spending the night with these girls, she came into his bedroom and told him that the girls were 'showing themselves', but she was too embarrassed to do so. When the appellant inquired, 'Why?', J pulled down her underwear and exposed her labia.[152]
[151] ts 397 ‑ 398.
[152] ts 398.
With respect to counts 3 and 4, the appellant testified that because he has bad breath, he never kisses anyone, including his wife, on the mouth. Accordingly, he would never 'French kiss' J as she described.[153] He denied that he 'dry humped' her.[154]
[153] ts 399.
[154] ts 399.
With respect to counts 5 and 6, the appellant denied pressuring J for sex or demanding that she 'give' him her virginity.[155] The appellant accused both J and L of fabricating an elaborate story concerning J's relationship with TS.[156]
[155] ts 401.
[156] ts 406 ‑ 407.
The appellant accepted that an incident occurred on 8 September 2009. He testified that on this night he was playing a computer game when J took him by the hand and into the lounge room. There, she whispered something to him which he did not hear. She then 'pulled' the appellant into her bedroom. J then removed her pants and underwear, laid on the bed and said to the appellant, 'I want to lose my virginity right now. I don't want to be a virgin at sweet sixteen'.[157] The appellant described what occurred as 'extremely embarrassing'. He did not engage in any sexual behaviour with her. He said that, 'Nothing happened'.[158]
[157] ts 405.
[158] ts 406.
With respect to the various documents the subject of exhibit 3, the appellant gave various innocent explanations for what he had written. In effect, he denied that they indicated an unnatural or inappropriate sexual interest in J.[159]
[159] ts 411 ‑ 423.
With respect to the testimony of AB, in answer to a question by the learned trial judge, the appellant said that he did not wish to put anything else before the court.[160]
[160] ts 424.
With respect to the 'disparage' symbol, the appellant said that he created it in 1976. He testified that in 2007, he 'gave' J the symbol for her to use as a logo for a band she had formed.[161] He testified that the heart symbol which appears on some of the items the subject of exhibit 3 was his personal symbol and was not a symbol of love.[162]
[161] ts 407 ‑ 408.
[162] ts 409.
During his evidence‑in‑chief, the appellant tendered a number of documentary exhibits: exhibit 14, a bundle of six photographs;[163] exhibit 15, a photograph of promotional material, being the 'disparage' symbol;[164] another exhibit, erroneously numbered 'exhibit 15', of an 'online storefront' for 'disparage' merchandise;[165] exhibit 16, a tattoo design drawn by SMP;[166] and exhibit 17, a photograph of various book covers.[167] He also referred to, and sought to explain, some of the documents which comprise exhibit 3, including exhibit 3.19.[168]
[163] ts 397.
[164] ts 408.
[165] ts 410.
[166] ts 410.
[167] ts 418.
[168] ts 411 - 422.
Under cross‑examination, the appellant agreed that he showed Gigi's death certificate to J, but only to illustrate the 'coincidences and synchronicities' that occur in life.[169] The appellant stated that he believed in reincarnation, but he did not believe that J was Gigi's reincarnation - although he and J 'joked about it'.[170]
[169] ts 426 ‑ 427.
[170] ts 426.
The appellant denied that he believed J had been sent back to have sex with him. He also denied pressuring her to have sex with him.[171] He repeated the denials he gave in examination‑in chief that he had ever touched J in a sexual way.[172]
[171] ts 427.
[172] ts 427.
With respect to AB, he denied having sexual contact with her.[173] The appellant said that he fell in love with AB after their 'separation' and not while he was her stepfather.[174]
[173] ts 428.
[174] ts 428, 429.
When the appellant was confronted with the contents of exhibit 4, he conceded that his love for AB 'probably' began before January 1995 (that is, before they 'separated').[175] Eventually, he accepted that he fell romantically in love with AB while he was her stepfather.[176]
[175] ts 433.
[176] ts 434, 436.
With respect to his relationship with J, he reiterated that they were 'best buddies'.[177] He denied that he became sexually attracted to J as she approached puberty. He agreed that he gave her an amulet.[178] The appellant denied telling J it would tell him if she had ever had sex.[179]
[177] ts 438.
[178] Exhibit 1, ts 439.
[179] ts 439 ‑ 440.
The appellant said that he used the acronym LYBI when communicating with L and his other wives.[180]
[180] ts 441 ‑ 442.
The prosecutor put to the appellant the allegations in each count on the indictment. The appellant denied the allegations.[181]
[181] ts 448 ‑ 451.
With respect to the calendar, the appellant denied making the mark shown on the date 8 September.[182]
[182] Exhibit 7, ts 453.
With respect to the diary, he agreed that he wrote the words which appear on the entry for 8 September.[183]
[183] ts 454.
The appellant denied making any admissions to his former brother‑in‑law, SAE.[184]
[184] ts 453.
Evidence of SMP
SMP was called to give evidence by the appellant. In examination‑in chief, she said that she was J's best friend for several years.[185]
[185] ts 460.
SMP said she designed a tattoo for J. The design she described was inconsistent with the 'disparage' symbol. She said she had not heard of the 'disparage' symbol. She was shown exhibit 3.19 by the appellant. She was referred to a red mark inside a raven. She said that she had not heard J or the appellant ask for a tattoo incorporating this design.
The appellant asked her about an incident which he said happened on 4 November 2009, when J came to her house for a sleepover. She recalled that TS arrived at the house in a taxi. He was intoxicated and was asked to leave by her grandparents. According to SMP, J and TS left the house together. SMP said that before that night she had not known J to have 'dated' TS, nor had she ever known TS to have been J's boyfriend.[186]
[186] ts 467.
Under cross‑examination, SMP said that although the date of 4 November 2009 was suggested to her, she had no idea whether the incident which occurred at her house actually occurred on that date.[187] In re‑examination she said she paid for TS's taxi fare using a credit card linked to her savings account. She said she did not recall ever receiving a bank statement showing this transaction.[188]
[187] ts 468.
[188] ts 468.
The history of the appellant's attempts to obtain legal representation
The appellant was charged with the offences for which he was ultimately tried by a prosecution notice dated 3 July 2010. On that day he appeared in the Perth Magistrates Court with counsel. Thereafter he appeared in that court on a number of occasions. On some, but not all of these occasions, he was represented by counsel. On 27 January 2011, he was committed for trial to the District Court on 29 April 2011.[189]
[189] Prosecution brief, pages 1 ‑ 5.
An indictment was filed in the District Court dated 30 March 2011[190] On 29 April 2011, the appellant appeared in person before Martino CJDC (as his Honour then was) at a trial listing hearing. His Honour noted the absence of defence counsel and asked the appellant whether he wanted to list the matter for trial or if he wanted some time to speak with a lawyer. The appellant chose the latter course. His Honour remanded the appellant to appear on 13 May 2011. He told the appellant that on that occasion he expected that he would list the matter for trial. He also told the appellant that he had 'two weeks to organise representation'. The appellant acknowledged that he understood the situation.[191]
[190] Combined blue and green AB, pages 1, 2.
[191] ts 3.
On 13 May 2011, the appellant told his Honour that he had not yet obtained defence counsel. The appellant explained that he had already instructed two lawyers, but he regarded each of them as unsatisfactory and had dispensed with their services.[192] The appellant said that he had attempted to find another lawyer, but he or she had requested the appellant to pay 'up front' and he did not have the funds to do so.[193]
[192] ts 6.
[193] ts 6.
His Honour explained that, due to the nature of the allegations '[the case] needs to be progressed'. His Honour listed the case for trial for three days commencing on 8 August 2011.[194] He also adjourned the case to 3 June 2011 so that the appellant could inform his Honour '… what's happening about legal representation for that trial on 8 August'.[195] His Honour warned the appellant that he had 'to get organised if you want legal representation'.[196] His Honour added:
Well, it's your responsibility to organise your own legal representation. All I can do is give you a reasonable amount of time, not an indefinite amount of time: a reasonable amount of time to do that. It may be that you need to speak to the American consulate to get some assistance. That's a matter for you.[197]
[194] ts 7.
[195] ts 8.
[196] ts 8.
[197] ts 9.
On 3 June 2016, the appellant told Martino CJDC that, despite the statements made by his Honour on 13 May 2011, the appellant had not obtained counsel. He said that he had 'just received' a letter from one of the two lawyers who had acted for him in the past 'officially terminating [their] relationship due to a conflict of interest and a lack of communication on [the appellant's] part'.[198] After the appellant confirmed with his Honour that the matter had been set down for a three‑day trial commencing on 8 August 2011, the appellant said:
The reason I'm finding it difficult to find an attorney is this case is far from cut and dry; in fact, quite the opposite. This case is steeped in mysticism and occult, and it's centred around my daughter and goes back 33 years of my life.
The prosecution has no idea what they're getting into with this and it's very, very complex. And for this reason, the attorney that I have to represent me must be knowledgeable in this. My wife practises her pagan beliefs, and every act that she has done has been directly related to a specific date and it's all based around my daughter.
Her intent on calling the police that night on 1 July is a very special date. Her intent was to kill me. It was nothing short of attempted murder and which I can prove.
This case that I've carried with me that has not left my side is filled with the evidence. It's very difficult to find an attorney who is knowledgeable in this type of area. And that's my problem with finding the attorney to represent me.[199]
[198] ts 11.
[199] ts 11.
His Honour adjourned the matter to another trial listing hearing on 24 June 2011 so that the appellant could inform his Honour whether he was acting for himself or whether he had obtained a lawyer.[200]
[200] ts 12.
On 24 June 2011, the appellant told Martino CJDC that he had spoken to a lawyer who had informed him that because he was employed he was not qualified to obtain legal aid and that, unless he had $40,000, he would not be represented by counsel at trial.[201] The appellant said that he had written to the Prime Minister of Australia and the President of the United States explaining his situation.[202]
[201] ts 14.
[202] ts 14.
His Honour responded:
This matter has been adjourned for several occasions now. As you know, it's listed for trial for three days commencing on 8 August. You will not be in a position to cross‑examine in person the complainant, given the nature of the prosecution, and so directions will need to be made as to how that's to happen.
So I'm going to list this matter for directions before the trial judge on 22 July. The trial remains listed for three days commencing on 8 August and the ball's in your court as far as legal representation is concerned. I can't organise legal representation for you.
The appellant responded by saying, 'No, that's fair enough'.[203]
[203] ts 15.
His Honour's reference to the appellant not being in a position to cross‑examine the complainant in person is a reference to the requirement in s 106G of the Evidence Act to which I have already referred.
The directions hearing on 22 July 2011 was conducted by the trial judge, Braddock DCJ. The appellant told her Honour that he had not obtained legal representation.[204] It is apparent that the appellant had done little, if anything, to progress the matter since his last appearance on 24 June 2011. Her Honour asked whether the appellant had contacted the Law Society of Western Australia or the Bar Association of Western Australia to see if legal assistance 'might be offered to you in your particular circumstances'.[205] The appellant answered in the negative. The appellant said that he had been in contact with the US Consulate who had given him a list of legal practitioners, but he had not been able to obtain legal representation 'for … over a year now'.[206]
[204] ts 18.
[205] ts 20.
[206] ts 20.
Her Honour proceeded to hear submissions concerning a number of pre‑trial issues including the admissibility of the evidence of AB, pursuant to s 31A of the Evidence Act.
Later in the directions hearing, her Honour informed the appellant in clear and detailed terms of the effect of s 106G of the Evidence Act. She explained that if the appellant remained unrepresented, he would not be able to directly cross‑examine J. Rather, the cross‑examination of J would occur through an intermediary. Her Honour suggested that the appellant should prepare his questions in writing and that, dependent upon the answers the witness gave, he would be given a further opportunity to prepare supplementary questions.[207]
[207] ts 50, 51.
Her Honour then proceeded to make a number of rulings, including that the evidence of AB was admissible pursuant to s 31A of the Evidence Act.[208] She also said that in the event the appellant remained unrepresented, the appellant could provide her with those questions in writing prior to the taking of J's evidence. She adjourned the proceedings to 29 July 2011 to 'deal with any further matters arising' and to give the appellant a further opportunity to secure representation.[209]
[208] ts 59 ‑ 60.
[209] ts 61.
On 29 July 2011, her Honour inquired from the appellant whether he had secured or sought to secure representation. In answer to this question, the appellant said that he had decided to represent himself. He said:
I decided over the weekend after long and careful thought that, due to the fact that there's so little time left and I'm already familiar with this and with the previous experience that I've had, I've decided that I - I'll defend myself and, in fact, most of that was based on the fact that if anybody was going to defend my daughter's honour, it should be her father and that was my stance that I - I made that on.[210]
[210] ts 69.
The appellant went on to say that he had not quite completed preparing the questions that he intended to ask J.[211] The appellant asked her Honour if he could submit to her the questions he wished to ask J on the following Monday (1 August 2011). Her Honour said that she had no difficulty with that proposal.[212]
[211] ts 70.
[212] ts 70.
Her Honour then explained to the appellant that after J's evidence‑in‑chief she would ask him if he required any further time to consider additional questions he may wish to ask or to rephrase or reorder the questions he had prepared.[213] The appellant, in effect, agreed with this course.[214] The prosecutor, when called upon, indicated that the State would do all that it could to assist the procedure her Honour indicated that she would adopt.[215]
[213] ts 70.
[214] ts 71.
[215] ts 71.
The prosecutor then indicated the names of the witnesses that would be called by the State.[216]
[216] ts 71.
Later in the directions hearing, her Honour explained in detail and in clear terms the effect of the rule in Browne v Dunn[217] and then she explained the general procedure by which the trial would be conducted. She informed the appellant of his right to make an opening statement;[218] how each witness would be subject to examination‑in chief, cross‑examination and re‑examination[219] and his right to make a closing statement to the jury.[220]
[217] Browne v Dunn (1893) 6 R 67, ts 84.
[218] ts 85.
[219] ts 86.
[220] ts 86 ‑ 87.
The first scheduled date of the trial, 8 August 2011, was taken up by her Honour dealing with a number of pre‑trial matters, including the propriety of some of the questions the appellant intended to ask J in cross‑examination. Her Honour also took the opportunity to provide the appellant with a handout summarising the procedural matters raised by her on 29 July 2011 and the procedure for empanelment of the jury. As to this, and in addition to the handout, her Honour explained at some length the jury empanelment procedure.[221]
[221] ts 93 ‑ 95.
Ground 1 - asserted right to legal representation
Grounds 1, 2 and 3 overlap to some extent, but it is convenient to deal with ground 1 separately.
By ground 1, the appellant contends that as an accused person facing serious charges, he had a 'right' to be provided with counsel by the State at public expense. As this 'right' was not afforded to him, he claims his trial was necessarily unfair.
Alternatively, he contends that the learned trial judge should have adjourned or stayed his trial, having regard to the principles enunciated by the High Court in Dietrich v The Queen.[222]
[222] Dietrich v The Queen (1992) 177 CLR 292.
The first contention may be dealt with quickly. It is contrary to binding High Court authority and cannot be accepted. That is because, as the decisions of the High Court in McInnis v The Queen[223] and Dietrich v The Queen make clear, the common law of Australia does not recognise the right of an accused facing serious charges to be provided with counsel by the State at public expense.[224]
[223] McInnis v The Queen (1979) 143 CLR 575.
[224] McInnis v The Queen (579) (Barwick CJ) and Dietrich v The Queen (297 ‑ 298), (311) (Mason CJ & McHugh J).
Instead, having regard to the fundamental nature of a fair trial in the Australian criminal justice system and to the serious disadvantages which flow to an unrepresented accused who is charged with a serious offence, a court has the power to stay or adjourn proceedings until legal representation is made available. The approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation, is to, in the absence of exceptional circumstances, adjourn, postpone or stay the proceedings until legal representation is available. If, in those circumstances, such an application is refused, the resulting trial is not fair and any conviction must be quashed on appeal.[225] For ease of reference, I will refer to these propositions as 'the Dietrich principles'.
[225] Dietrich v The Queen (315) (Mason CJ & McHugh J).
Axiomatically, the Dietrich principles apply only to an accused person who wishes to be represented by counsel at his or her trial. They do not apply to an accused who declines to be represented.[226] All litigants have the right to present their own case.[227] Nothing in Dietrich v The Queen denies an accused person's right to appear unrepresented. That right has been described as 'fundamental': R v Zorad.[228] It is not open to a trial judge to override the choice of an accused to appear unrepresented. A judge may well (but not must) attempt to dissuade an accused from doing so. But in the end, assuming he or she is of sound mind, an accused's decision to appear unrepresented by counsel must be accepted, even when that choice is perceived to be unwise or ill‑conceived. Where an accused person exercises that right, he or she may be taken to accept that, in the circumstances, fairness in the trial does not depend upon legal representation.[229]
[226] Dietrich v The Queen (365) (Gaudron J).
[227] Collins v The Queen (1975) 133 CLR 120, 122 (Barwick CJ, Stephen, Mason & Jacobs JJ).
[228] R v Zorad (1990) 19 NSWLR 91, 94 - 95 (Hunt, Enderby & Sharpe JJ).
[229] Dietrich v The Queen (365) (Gaudron J).
A person may desire legal representation but may be unwilling to take the necessary and proper means to obtain it. A person cannot be said to be deprived of a fair trial by reason of lack of representation if he or she refuses to take reasonable steps which are necessary to obtain it.[230]
[230] R v Karounos (1995) 63 SASR 451, 457 (King CJ).
Assuming that an accused person wishes to be legally represented at his or her trial, the onus is upon an accused who seeks a stay on the basis of the Dietrich principles, to prove, on the balance of probabilities, that he or she is indigent and that he or she has been unable to obtain legal representation, and that any such inability is not due to his or her fault.[231]
[231] R v Karounos (457) (King CJ).
Indigence, for the purposes of the Dietrich principles, means that the accused lacks the means to engage appropriate legal representation to conduct his or her defence. Thus, depending on the circumstances, it does not require the accused to prove that he or she is living in poverty.[232]
[232] Szulc v Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143 [42] (Martin CJ).
The concept of 'fault' was considered by the High Court in Craig v South Australia.[233] In that case, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that the expression used in Dietrich v The Queen was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of the accused which had contributed to his or her lack of representation automatically precluded the granting of a stay or an adjournment. Their Honours agreed with the statement made by Olsson J in the court below, that the test of 'fault' contemplated in Dietrich v The Queen:[234]
focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.
[233] Craig v South Australia (1995) 184 CLR 163.
[234] Craig v South Australia (184).
In my opinion, the appellant's contention that the trial judge should have stayed or adjourned his trial pursuant to the Dietrich principles must be rejected for the following reasons.
First, at no time did the appellant apply for an adjournment or a stay of the proceedings to obtain legal representation.
Secondly, the appellant failed to demonstrate that he was indigent. The appellant did not adduce any admissible evidence to demonstrate that he was indigent in the relevant sense. For example, he did not adduce sworn evidence of his income and expenses, or his assets and liabilities. He did not provide Martino CJDC or the trial judge with any evidence of his anticipated legal expenses. The assertions that he made from the bar table as to his anticipated legal expenses and his inability to meet those expenses, were just that - mere assertions.
Thirdly, contrary to the position the appellant now asserts, he chose to defend himself at his trial. This is clear from what he said to Braddock DCJ on 29 July 2011, which has been quoted at [145] of these reasons. The statement made by the appellant to her Honour that he wished to represent himself was unequivocal. His decision was made, as he put it, 'after long and careful thought'. The choice was made in the context that:
(a)he had already retained and dismissed two lawyers;
(b)he claimed that he had not been able to find counsel knowledgeable in mysticism and occult, being matters which he believed were important to his defence;
(c)he was familiar with the facts and circumstances of the case;
(d)he was aware that he would not be able to cross‑examine J, other than through an intermediary;
(e)he wished to represent himself to, as he put it, 'defend my daughter's [not J's] honour'; and
(f)his choice was made after several directions hearings in which the importance of instructing defence counsel was impressed upon him.
While the appellant's choice may have been unwise, as the appellant now sees, it was a choice with which he now must live. As I have already said, it was not a choice that Martino CJDC or the trial judge could override.
Fourthly, even if the appellant's choice to be unrepresented is put to one side, it cannot be said that he was unrepresented through no fault of his own. Prior to 29 July 2011, the appellant appeared in the District Court on five occasions. On each occasion, the court raised the subject of the appellant's legal representation. When the trial dates were allocated by Martino CJDC on 13 May 2011, his Honour impressed upon the appellant the need to obtain legal representation if he wanted it. By then, the appellant had dispensed with the services of the two lawyers he had previously retained. The appellant was given ample time to obtain legal representation if he desired it. At the hearing on 24 June 2011, the appellant acknowledged that it was his responsibility to organise legal representation.
It is apparent that between the time that the trial dates were allocated and the directions hearing on 29 July 2011, the appellant made little effort to secure legal representation, save for apparently speaking to a lawyer who gave him the information he conveyed to Martino CJDC on 24 June 2011.
Assuming the appellant was given that information, an accused in his position who wanted counsel would have made an application for legal aid at that time, or sought representation on more favourable monetary terms. The appellant has not adduced evidence that he took any of these measures.
It also appears that the appellant did not take up Braddock DCJ's suggestion on 22 July 2011 to contact the Law Society of Western Australia or the Bar Association of Western Australia to obtain representation.
Finally, I note in connection with this ground, the appellant, as part of the additional evidence he has sought to adduce in his application dated 13 September 2016, referred to a letter sent to him from Legal Aid WA dated 25 August 2011 (JVR1).[235] This letter, which was sent to the appellant after his trial, is unhelpful to him. It reveals that legal aid was refused because:
on the information provided, it appears that your lifestyle is totally or partly supported by financial resources other than those disclosed in your application.
From the information provided by you it would appear that you recently ceased your employment.
Further it would appear that you are not in receipt of any benefits and have weekly living expenses of $250.00 per week rent.
As a result your application has been refused, as it would appear that you have access to funds other than has been declared in your application.
[235] The same letter appears as annexure A-JR58 in his affidavit in support of his application for an extension of time; see WAB 236.
The appellant was charged on 3 July 2010. His trial was listed to commence more than a year later. The case was not anywhere near as complex as the appellant states. The appellant had ample time to obtain counsel. Allowing for the possibility that the services of the two lawyers he retained were reasonably terminated, I am far from persuaded, on the material that has been provided to this court, that the appellant acted reasonably to obtain legal representation and that the absence of legal representation was through no fault of the appellant.
Ground 1 has no merit.
Grounds 2 and 3 - was the appellant's trial unfair?
Grounds 2 and 3, as elaborated upon by the appellant in his submissions, focus upon what actually happened in his trial. Essentially, the appellant asserts that his trial was unfair due to:
(a)his ineptitude in the manner in which he represented himself;
(b)his inability to cross‑examine J directly; and
(c)his emotional and physical state during the trial.
The appellant also asserts her Honour erred by failing to foresee the alleged difficulties the appellant would encounter in the trial, and that she should have discharged the jury when those difficulties became evident.
Relevant legal principles
An unrepresented accused will generally, if not always, be at a disadvantage compared to someone who is represented by counsel. This is because he or she will not ordinarily have the knowledge and skill of counsel, or the ability to present his or her case dispassionately.[236] Further, there will almost always be a mismatch in competence as between a legally qualified prosecutor on the one hand, and a self‑represented accused on the other. By reason of these disadvantages, the burden on a trial judge to ensure a fair trial is greater when faced with an unrepresented accused.[237]
[236] McInnis v The Queen (590) (Murphy J) and Love v The Queen (1983) 9 A Crim R 1, 3 (Wickham J).
[237] Love v The Queen (3) (Wickham J).
An unrepresented accused forfeits none of their legal rights and is entitled to a fair trial like any other litigant, regardless of the circumstances in which he or she comes to be without counsel, and even if the absence of counsel is for tactical reasons or as a result of perverse behaviour on his or her part.[238] However, when an appeal court is called upon to make a judgment about whether the trial of an unrepresented accused was unfair, that judgment must take into account that the accused was unrepresented as a consequence of his own choice or conduct. I have already referred to Gaudron J's statement to this effect in Dietrich. Deane J made similar observations in that case.[239]
[238] MacPherson v The Queen (1981) 147 CLR 512, 524 ‑ 525 (Gibbs CJ & Wilson J).
[239] Dietrich v The Queen (365 - 366) (Deane J).
In R v Frawley,[240] Gleeson CJ (with whom Carruthers J agreed) said:[241]
The fact that the appellant was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and representation that was provided to him at public expense, does not of itself amount to unfairness. The Court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct. (citation omitted)
[240] R v Frawley (1993) 69 A Crim R 208.
[241] R v Frawley (212) (Gleeson CJ).
An unrepresented accused does not gain any special advantage compared to an accused who has counsel. The procedures and laws that apply to criminal trials apply to all litigants, whether represented or not. However, consistently with the duty of a trial judge to ensure a fair trial, and because an unrepresented accused will not ordinarily have the legal knowledge and skill of counsel, a judge is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure a fair trial.[242] There is no limited category of matters regarding which a judge must advise an unrepresented accused.[243] The scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance.[244] Of course, it is necessary to have regard to the entire trial record in order to decide whether the appellant received a fair trial.[245]
[242] McPherson v The Queen (534) (Mason J).
[243] McPherson v The Queen (524) (Gibbs CJ & Wilson J).
[244] O'Connell v The State of Western Australia [2012] WASCA 96 [106] and the case cited therein.
[245] R v Frawley (212) (Gleeson CJ).
Disposition
In my opinion, the appellant's trial was not unfair as he alleges.
As I have said, in the context of dealing with ground 1, the appellant chose to represent himself or, alternatively, he was unrepresented at his trial due to his own fault. Either way, he was unrepresented as a result of his own conduct. Accordingly, while I readily accept that the appellant lacked the legal knowledge and skill of a lawyer, and that he was less competent than a lawyer, he cannot simply rely on his lack of legal acumen to found a claim of unfairness. It is incorrect to compare the manner in which he conducted his defence with the way in which counsel would theoretically conduct the task. I will first deal with his specific complaints of unfairness, then I will make some general observations about the trial.
The appellant cannot legitimately claim unfairness by reason of his inability to cross‑examine J directly. This is because the prohibition upon a self‑represented accused cross‑examining a protected witness is founded upon s 106G of the Evidence Act. Moreover, the appellant made the choice to represent himself after he had been told of the statutory prohibition by Martino CJDC on 24 June 2011.
It is clear that the appellant found the cross‑examination of L difficult. He often strayed into irrelevancy and at times lost his composure and expressed frustration. He also complained of a lack of sleep. However, her Honour, consistently with her obligation to ensure a fair trial, dealt with these difficulties as they arose in a manner which, in my opinion, effectively neutralised any potential unfairness to the appellant.
Insofar as the appellant claims that he was suffering from ill health during his trial, he did not present any evidence to support the claim at the trial. I note that the appellant has annexed medical reports to his affidavit in support of his application for an extension of time to appeal,[246] but those reports relate to cardiac problems and a cerebral haemorrhage which occurred in 2012, that is, after his trial.
[246] WAB 237 ‑ 242.
Stepping back and viewing the proceedings as a whole, it must be said that her Honour gave the appellant every assistance she could have, consistent with her role as trial judge. While this does not necessarily mean that the trial was fair, it is a circumstance of significant relevance. Her Honour's assistance began in the directions hearings she conducted before the trial itself commenced and continued during the trial.
Prior to the commencement of the trial, her Honour:
(a)Gave the appellant a clear and detailed explanation of s 106G of the Evidence Act.
(b)Gave the appellant the choice (which he took advantage of) to present to her in writing questions he proposed to ask J in cross‑examination, with a view to ensuring that they were in proper form.
(c)Reviewed the questions the appellant proposed to ask J and made appropriate rulings on them.
(d)Explained the general procedure by which the trial would be conducted.
During the trial, her Honour:
(a)Provided the appellant with a handout which summarised the procedural matters she had already explained to the appellant.
(b)Explained the jury empanelment procedure.
(c)Appropriately intervened to assist the appellant to formulate and clarify questions.
(d)Gave adjournments to allow the appellant to prepare supplementary questions, particularly in the cross‑examinations of J and L.
(e)Appropriately intervened when the appellant strayed from the path of relevance. Often when she did so she reminded the appellant to deal with the issues in dispute.
(f)Prompted the appellant in his examination‑in‑chief to deal with aspects of the State's case such as the documents in exhibit 3 and the evidence of AB.
(g)Explained to him his rights as to giving or adducing evidence in his defence.
(h)Directed the jury as to the appellant's status as an unrepresented litigant. Her Honour gave the following direction on the subject in her summing up:
Now, reference has been made by both [the prosecutor] and [the appellant] about [the appellant] representing himself. It's right that he has conducted his own defence, and it is his right to do so. But inasmuch as you make allowances for witnesses, and the difficulties that particular witnesses may face in giving evidence in the unfamiliar environment of a courtroom, you should make the same allowances and more so for a person in [the appellant's] position, who is doing an unfamiliar job in an unfamiliar environment in defending himself.
You must give due weight to all the arguments that [the appellant] has put as they relate to the evidence and you must put aside all other sympathies and prejudices, all impatience and consider the evidence objectively. You most certainly should not draw any inference against [the appellant] because he has represented himself or because he has found it difficult to do so. It is indeed a very difficult task for any person in [the appellant's] position to perform.[247]
[247] ts 489 ‑ 490.
Having examined the trial record, I have concluded that despite the difficulties and disadvantages the appellant encountered as a litigant in person, he was able to and did fully put his defence to the jury.
In my opinion, the appellant exaggerates the extent of his incompetence. He put the substance of his case to the prosecution witnesses. He exposed contradictions in the evidence; for example, the difference between L and her brother on the popularity of Ghost Radio. He testified in detail as to his defence. He called SMP who gave evidence capable of undermining L's evidence about J and the appellant wanting tattoos with the 'disparage' symbol. He tendered in evidence the documents he believed were relevant to his defence. Contrary to his submissions, his closing address was adequate to convey his defence. Her Honour's summing up accurately and fairly put the appellant's case to the jury.
There is no merit in the appellant's assertions that her Honour erred by failing to foresee the difficulties he would encounter in the trial and that she should have discharged the jury when those difficulties became evident. While trials involving litigants in person are likely to pose difficulties, whether and to what extent those difficulties manifest themselves are unpredictable. The mere potential for difficulty was an insufficient reason for her Honour to adjourn the trial. As to her Honour's failure to discharge the jury, the appellant made no application to that effect. Acknowledging that her Honour had the power to discharge the jury on her own motion, I have not been persuaded that the circumstances in which the trial was conducted justified that course.
In my opinion, grounds 2 and 3 have no merit.
Ground 4 - the 'disparage' symbol
As I earlier described, the State led evidence from J that between the ages of 13 and 15 years the appellant gave her various notes, cards and documents. Some of these were tendered in the trial as exhibit 3. Some of the documents which comprise that exhibit bear the 'disparage' symbol. The prosecutor questioned J about this symbol as follows:
What can you tell us about that symbol?‑‑‑That was a symbol that [the appellant] designed that he called 'Disparage'.
Did he say anything to you about that symbol?‑‑‑I don't really remember much about that symbol. But it was everywhere. He went through phases with symbols and that was the phase at this stage.
[J], you've told us that you would get notes under your door. Can you tell us at what period in your life you would get these notes?‑‑‑Heavily between about 13, 14, 15 was when I got a lot of them.[248]
[248] ts 187.
In examination‑in‑chief of L, the prosecutor referred her to the documents in exhibit 3. The following exchange took place between the prosecutor and L with respect to exhibit 3.19:
So what is it you recognise about that document?‑‑‑Well, I've seen those images because [the appellant's] a graphic designer so he would have stuff on his computer and I would see those images and - and the [disparage] symbol and …
All right. Can you tell us anything about that symbol that you've - can you first point out the symbol that you're talking about?‑‑‑This one.
That's the red - the red symbol on that - the front cover?‑‑‑Yeah.
And what can you tell us about that?‑‑‑It is a symbol that he and [J] designed together and - and were going to have made into tattoos and ‑ ‑ ‑
How do you know that?‑‑‑Because I heard them talking about it and I said it wasn't going to be happening at 16.[249]
[249] ts 288.
As I understand it, the appellant alleges that he has suffered a miscarriage of justice because, in essence, unlike L, J did not give evidence to the effect that she and the appellant designed the 'disparage' symbol together and intended to be tattooed with it. The appellant alleges that, as J did not give evidence to this effect, the State should not have adduced evidence from L about the origins of the symbol and that the appellant and J intended to be tattooed with it.
There is no merit in this complaint. The prosecutor was entitled to ask L what she knew about the 'disparage' symbol regardless of what J might have said about it. It is frequently the case that one witness's knowledge on a topic does not accord with the knowledge of another witness. There may be many reasons for such differences. Differences of the type identified by the appellant in this case do not go to questions of admissibility. Rather, they are matters of weight for the jury to assess.
Ground 4 has no merit.
Ground 5 - alleged non‑disclosure of evidence
Ground 5 alleges that the prosecution withheld 'key' evidence from the appellant and that, as a result, he has suffered a miscarriage of justice. The alleged 'key' evidence which the prosecution failed to disclose was SMP's bank statement for the period which included 4 November 2009. According to the appellant, this document had the capacity to undermine J's evidence concerning counts 5 and 6.
It will be remembered that J testified that these offences occurred just before her 16th birthday in early October 2009. She also testified that, at about this time, the appellant was upset because J had begun a relationship with TS. It was the appellant's case that J's relationship with TS was not on foot in early October 2009. In support of this proposition the appellant called SMP as part of his case. Her testimony was designed, in part, to show that any relationship that J had with TS did not begin until the incident said to have occurred on 4 November 2009 when J came to her house for a sleepover and TS arrived at the house by taxi in an intoxicated state. The evident purpose of adducing the bank statement was to pin down that date, bearing in mind that SMP said she paid for TS's taxi using a card. The appellant's submission is that he believes that the bank statement would have helped establish the date upon which J and TS began their relationship.
During the directions hearing on 22 July 2011, the appellant informed her Honour that he needed to obtain the bank statement.[250] Her Honour explained that he should issue a subpoena to produce the relevant document. She directed him to the District Court registry for that purpose.[251] The appellant indicated that he would go to the court registry. Her Honour suggested that he should do so 'as quickly as possible'.
[250] ts 53.
[251] ts 53 ‑ 54.
The prosecutor indicated that although SMP had provided a deposition and was named on the indictment as a State witness, it had been determined that she would not be called as a prosecution witness because the evidence she proposed to give was inadmissible. He indicated that if the appellant required her to testify, the State would summons her and she would be made available for him to call her.[252] This in fact is what occurred.
[252] ts 55.
At the directions hearing on 29 July 2011, the appellant again raised the question of the bank statement. Her Honour suggested that the appellant should liaise with the prosecutor and that the prosecutor could then make a request to SMP. In a letter written to the appellant dated 4 August 2011, the prosecutor informed the appellant that she did not have the bank statement. This is consistent with the evidence SMP gave at the trial.
In the appellant's written submissions in support of this ground he alleges that the prosecutor was 'dispatched on 3 August 2011 to secure certain vital document evidence and additional witnesses' and that he later advised the appellant that SMP had told him that she 'did not know how to print' the statement. The respondent does not accept that these statements are accurate. They are not the subject of evidence before this court. They cannot be accepted.
The appellant alleges that the State suppressed the bank statement. There is no evidence to support this proposition and it cannot be accepted. The appellant further submits that the State was obliged to provide him with a copy of the bank statement pursuant to its disclosure obligations.
The State's statutory disclosure obligations are contained in s 42, s 45 and s 95 of the Criminal Procedure Act 2004 (WA) (CPA). The definition of 'evidentiary material' in s 42 CPA refers to various materials 'in the possession of the organisation or person who investigated the offence'. There is no evidence that the police who investigated the case against the appellant or the prosecutor were ever in possession of the bank statement. Accordingly, the State's statutory obligation of disclosure was not engaged.[253] The appellant relied upon the common law duty of a prosecutor to provide disclosure to an accused which is based on an accused's right to a fair trial: see, for example, Mallard v The Queen.[254] In my opinion, that obligation did not require the State to provide the appellant with the bank statement.
[253] See Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197.
[254] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125.
In the present case, her Honour appropriately informed the appellant of how he might obtain the production of the bank statement at his trial. It does not appear that the appellant took up her Honour's advice. Further, it also appears that the State requested the bank statement from SMP. There is no evidence it was in her possession. The fact that the bank statement was not produced at the appellant's trial is not through any lack of disclosure on the part of the prosecutor. Nor was the State under any duty to obtain it from the bank and disclose it.
Finally, the bank statement, if it exists, has not been produced to this court and its contents are unknown. In these circumstances it is impossible for this court to be satisfied that the appellant suffered a miscarriage of justice by reason of the State's alleged failure to disclose it.
Ground 5 has no merit.
Ground 6 - alleged refusal by her Honour to permit J to read aloud a document
Ground 6 alleges that her Honour erred by refusing to allow the appellant's request for J to be permitted to read aloud a document to the jury. In his written submissions, the appellant did not identify the document by its exhibit number. Instead, he identified the document as exhibit JVR2. JVR2 is one of the annexures referred to by the appellant in his affidavit sworn 13 September 2016. This document is a copy of J's MySpace profile page in 2007, when she was aged 13. As the exhibits that were tendered in the trial are no longer available, I have been unable to compare the document which comprises JVR2 to any of the exhibits. However, based on discussions between the appellant and her Honour in the absence of the jury[255] and questions asked of J in cross‑examination,[256] the relevant exhibit appears to be exhibit 6 which is described in the transcript as 'copy of MySpace home page of complainant'. I will assume, favourably to the appellant, that JVR2 is an accurate reproduction of exhibit 6. JVR2 comprises both images and text. The images include the 'disparage' symbol. The text said to have been written by J is a personal profile headed, 'I'm just me'.
[255] ts 244 ‑ 247.
[256] ts 262 ‑ 263.
The ground of appeal may be disposed of shortly. Contrary to the ground and the submissions in support of the ground, her Honour did not refuse the appellant's request for the text of the MySpace profile page to be read by J to the jury.
During J's cross‑examination, but in the absence of the jury, the appellant foreshadowed asking J questions about her MySpace profile page. Initially, he indicated to her Honour that he wished J to identify the artwork on the page as having been created by him and J.[257] Then he indicated that he wished J to read out the text she had apparently written which was displayed on the document.[258] Her Honour suggested that if J identified the document as being hers, there was no need for the text to be read out aloud. She explained that the document would become an exhibit and the jury would have it 'to peruse'.[259] The appellant expressly agreed with this course.[260] Ultimately, J identified the document and it was tendered as an exhibit. It would have been before the jury in their deliberations. In these circumstances, the appellant's allegation of error on her Honour's part is unsustainable.
[257] ts 244 ‑ 245.
[258] ts 245.
[259] ts 247.
[260] ts 247.
Insofar as the ground and the submissions in support of it may be understood as alleging a miscarriage of justice, such a proposition is also unsustainable. Whether or not the contents of the MySpace profile page were read aloud by J is of no real significance given the document was tendered in evidence and was before the jury in its deliberations.
The appellant asserts that the text of the MySpace profile page was 'highly relevant' or 'central' to his case because it showed that J had lost her virginity when she was 13 and not in the circumstances alleged to constitute counts 5 and 6. I do not accept this assertion. Having read the text of the MySpace profile page, it cannot reasonably be said it constitutes a statement by J that she had lost her virginity.
Ground 6 has no merit.
Ground 7 - prosecution evidence wrongly admitted
Ground 7 and the submissions in support of it are particularly difficult to understand.
It appears that the appellant alleges that the evidence of J and L was wrongly admitted because it was false.
The appellant described the allegedly false evidence in this way:[261]
[261] Paragraph 178 of the appellant's written submissions, WAB 265, 266.
The evidence in question refers specifically to:
1 - a 'symbol' or design found upon the bulk of the evidence led in trial, which was alleged to have been created together by the accused and the complainant as 'matching tattoos';
2 - the phrase 'Love You Beyond Imagination' or acronym 'LYBI';
3 - cards and notes misrepresented and/or misinterpreted;
4 - a 'symbol' on a calendar at a specific date;
5 - 'Valentine' card/note
6 - an 'amulet' alleged to have been created by the accused in order to manipulate the complainant to his favour;
7 - death certificate of a previous (deceased) girlfriend of the accused and alleged 'reincarnation' of said deceased girlfriend,
8 - the reason for the divorce between the accused and his wife was said by his wife to be that he 'wouldn't work'. Likewise the complainant echoed her mother's words by saying that the accused "never worked', 'had poor work ethics' 'mother had to work every hard'. The reporter also made false statement that the applicant had caused them to file for bankruptcy, which did not occur. These statements are, by fact, false. The applicant submits that the reporter and complainant manufactured statements to avoid the real cause for the divorce which was the applicant's relationship with a woman in Finland beginning in 2009. Exposing this fact would have provided the applicant with the opportunity to expose that the accusations made against his had been fabricated, and the motive for why, but lacked the skill to challenge the witnesses due to being unrepresented. The applicant was, in fact, employed for some years prior and after the divorce, operated his own business, was a producer and writer. It was in fact his wife (reporter) and the complainant who were unemployed. These comments further undermined the jury's opinion of him during trial.
9 - The reporter and complainant alleged that the complainant had a boyfriend named [TS] between August 2009 and mid-October 2009, and that the applicant had been jealous of said boyfriend because he wanted the complainant's virginity for his own, that he grossly mistreated the complainant for having a boyfriend, and that due to this pressure the complainant at last gave her virginity to the accused on the night of 8 September 2009. The applicant has maintained that no such sexual encounter occurred. Equally important, the applicant can prove with factual evidence that the complainant did not have any boyfriend, [TS] or otherwise, at the time. In question, and not until 4 November 2009. This evidence is highly significant as it proves that the allegations made against the applicant were wholly manufactured and not true to any degree.
I will refer to this material as 'the impugned evidence'.
Contrary to the appellant's submissions, all the impugned evidence was relevant to a fact or facts in issue and admissible. Items 1 ‑ 6 were relevant to show the inappropriate nature of the relationship between the appellant and J. Items 7 and 9 were relevant to the circumstances surrounding counts 5 and 6. Item 8 was relevant to the issue of the hostile relationship between L and the appellant. Whether and to what extent the impugned evidence had probative value was not a matter for her Honour. Rather, it was for the jury to decide as the judges of the facts.
There is a further and broader aspect to ground 7. The appellant appears to allege, in effect, that he has suffered a miscarriage of justice because the evidence of J and L was false. The material said to falsify their evidence is the subject of the appellant's application to adduce additional evidence and, in particular, the material in the appellant's affidavit sworn 13 September 2016, including the documents labelled JVR3 ‑ JVR26. The appellant's description of those documents is annexed to these reasons.
Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal must be decided on the evidence and material that was before the lower court. However, s 39(3) states that subsection (1) does not affect the power of an appeal court under s 40 to admit evidence.
Section 40(1)(e) is in these terms:
40. General powers to deal with appeals
(1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following —
…
(e)admit any other evidence;
The effect of these sections, when read together, is to give this court the discretion to admit and decide an appeal on evidence and material which was not before the lower court.
A discretion given to the court to admit evidence not before the lower court is plainly wide and is designed to serve the demands of justice. It is confined only by the subject matter of the legislation and by the requirement that it must be exercised judicially. However, because Parliament conferred an appellate jurisdiction on the Court of Appeal, it is highly unlikely the Parliament intended to abolish the distinction between original and appellate jurisdictions.[262]
[262] de La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] (Pullin JA).
The power in s 40(1)(e) CAA is broader than the principles applicable in common law proceedings.[263] Those principles distinguish between fresh and new evidence. Evidence is considered to be 'fresh' if it did not exist at the time of the trial or it could not have been discovered with reasonable diligence. Evidence will be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered.[264] Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.[265]
[263] Rodi v The State of Western Australia [2017] WASCA 81 [98] (Buss P).
[264] DPJB v The State of Western Australia [2010] WASCA 12 [61].
[265] Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676 (Mason J).
While the common law principles touching upon the distinction between fresh and new evidence will not necessary determine the manner in which the statutory discretion will be exercised, those considerations will ordinarily be weighty, so much so that it will be a rare case in which the exercise of the statutory discretion produces a different outcome to that produced by the application of those common law principles.[266]
[266] Rinaldi v The State of Western Australia [2007] WASCA 53 (Steytler P, Wheeler & Pullin JJA agreeing).
In ARK v The State of Western Australia,[267] Buss JA (with whom I agreed) made a number of observations in relation to this court's approach to an assessment of additional evidence admitted in an appeal. It is unnecessary to repeat all of what Buss JA wrote. It is sufficient to note that one of the tasks which this court must undertake is to decide the relevance of the additional evidence.
[267] ARK v The State of Western Australia [2014] WASCA 45 [139].
The evidence the subject of the application was either before the lower court or is 'new' evidence. As the appellant frankly admitted in his affidavit, the evidence, which was not before the lower court, was in his possession at the time of his trial.[268]
[268] Appellant's affidavit sworn 13 September 2016, page 1.
Leaving aside the annexures to the affidavit, much of what is written in the affidavit is assertive, argumentative and repetitive of the evidence he gave at his trial and, as such, is inadmissible in these proceedings. The focus of the additional evidence is mostly on the testimony of L. It is alleged that the additional evidence shows that L's testimony was false in a number of significant respects. Further, the appellant claims L and J colluded to falsely accuse the appellant of the alleged offences. Finally, it is claimed that the additional evidence shows that TS was not J's boyfriend before her 16th birthday in October 2009. In fact, it is said, J did not know TS at that time.
I have carefully examined the documentary evidence which was not before the lower court. In my opinion, none of this material is reasonably capable of sustaining the allegations of collusion or that J and TS were not in a relationship before J's 16th birthday, let alone that J did not know TS at that time.
I now turn to the additional evidence as it relates to the evidence of L.
The first point to be made is that while the evidence of L was not irrelevant, its overall importance has been greatly exaggerated by the appellant. The State's case rose or fell on the evidence of J. J's evidence was confirmed in material respects by the documentary evidence written by the appellant and tendered as exhibit 3. The State also relied upon the admissions allegedly made by the appellant to his brother‑in‑law. The State's case did not depend upon acceptance of L's evidence.
In any event, my examination of the additional evidence the appellant seeks to adduce does not falsify L's evidence. The main point the appellant has attempted to make is that her testimony that the appellant and J designed together the 'disparage' symbol on the cover of exhibit 3.19 was false. The appellant asserts that this cannot be correct because he designed the 'disparage' symbol many years before. Much of the additional evidence he seeks to adduce is to establish the long provenance of the 'disparage' symbol and L's knowledge of that provenance.
The additional evidence the appellant seeks to adduce on these points does not materially add to the evidence the appellant gave at his trial concerning the disparage symbol. The appellant testified at some length about the history of the symbol and its significance, which was not seriously challenged. The difficulty for the appellant is that, in my opinion, he has misunderstood L's evidence on this point. It may be recalled that L's testimony concerned the cover of exhibit 3.19. As I observed at [82] of these reasons, the cover of the card which appears to comprise exhibit 3.19 has two symbols on it, both of which incorporate the 'disparage' symbol. It is not clear which of the two symbols L claims was designed by the appellant and J. The love heart design, which incorporates the 'disparage' symbol, appears unique. Nothing in the additional material sought to be adduced by the appellant shows that the love heart symbol could not have been designed by the appellant and J.
The appellant seeks to adduce additional material to show that he commonly used the acronym 'LYBI', and had done so for many years. The point being that there was nothing sinister in his use of that acronym. This additional evidence is, in essence, a repetition of the evidence that he gave to this effect at trial. The issue at trial did not concern the origins of the acronym, but rather the use of the acronym in his communications with J, and whether, combined with other evidence adduced by the State, its use was sinister.
Another aspect of the additional evidence the appellant seeks to adduce is to show that L's evidence to the effect that he was not a hard worker and was bankrupt, was false. It appears that the appellant has taken great umbrage to this testimony, but the additional evidence said to falsify it does not have that effect.
The appellant alleges that the additional evidence shows that L forged the 'disparage' symbol on the entry for 8 September on the calendar (exhibit 7). None of the additional evidence has the capacity of demonstrating this point.
The appellant makes numerous other allegations against L, and suggests that the additional evidence falsifies her testimony. It is unnecessary to particularise all of these allegations. It is enough to say that the additional evidence does not falsify them.
In the end, I am satisfied that none of the additional evidence the appellant seeks to adduce in this appeal shows that the appellant is innocent, or raises a doubt that the appellant should not have been convicted.
Ground 7 has no merit.
The application to adduce additional evidence must be dismissed.
Proposed ground 8 - alleged recent complaint evidence
Proposed ground 8 is the subject of the appellant's application to amend his grounds of appeal filed on 30 September 2016. Proposed ground 8 is misconceived and has no merit. As I said earlier, it contends, in essence, that the appellant suffered a miscarriage of justice by reason of the admission of 'complaint evidence' given by L.
As the respondent correctly pointed out in its written submissions filed 20 October 2016, the prosecution did not lead from L evidence of recent complaint. The prosecution did lead evidence from L as to when J complained, but that was only to establish the timeframe of relevant events, including the appellant's alleged confession to SAE, which was said to have occurred shortly after J's allegations came to light.
In the appellant's affidavit sworn 22 September 2016 in support of the application to amend the grounds of appeal, he makes various allegations to the effect that the evidence given by L about the circumstances in which she was informed of J's allegations were false. This material is assertive and argumentative, and cannot be accepted.
As proposed ground 8 has no merit, the application filed 30 September 2016 should be refused.
Extension of time in which to appeal
I now come to the application for an extension of time.
The appellant requires an extension of time in which to appeal. The delay in commencing this appeal has been gross by any standard. The appellant's extensive affidavit in support of his application for an extension of time does not adequately explain the delay. Where there has been a lengthy delay in filing an application for leave to appeal, the court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Gavin v The Queen.[269]
[269] Gavin v The Queen (1992) 6 WAR 195, 198 (Malcolm CJ).
In Wimbridge v The State of Western Australia,[270] Buss JA observed that in general there are five principal factors to be considered in determining whether to grant an application for an extension of time to appeal against conviction being:
(1)The nature and extent of the delay.
(2)The reasons for the delay.
(3)The proposed grounds of appeal and their merit.
(4)The prejudice to the applicant if the extension of time is not granted.
(5)The prejudice (if any) to the State or the Crown if an extension of time is granted.
[270] Wimbridge v The State of Western Australia [2009] WASCA 196.
His Honour did not intend these factors to be an exhaustive statement of the relevant considerations.[271]
[271] Wimbridge v The State of Western Australia [45].
In my opinion, an extension of time should not be granted in this case. As I have said, the delay is gross and the reasons for the delay are unsatisfactory. The seven proposed grounds of appeal and the proposed additional ground of appeal have no merit and as such there is no prejudice to the appellant if the extension of time is not granted. I am unable to determine that any prejudice exists to the State if the extension of time is granted, but the absence of any prejudice to the State, on the facts of this case, does not justify the grant of an extension of time.
Orders
I would make these orders:
1.The application to amend the grounds of appeal is dismissed.
2.The application to adduce additional evidence is dismissed.
3.The application for an extension of time is dismissed.
4.The appeal is dismissed.
ANNEXURE
| Ref ID | Description of annexures |
| JVRl | [Ground 1] Legal Aid- Request for Legal Aid refused (25 August 2011) |
| JVR2 | [Ground 6] Print of complainant's actual MySpace Profile Page with self description when complainant was age 13 (2007). |
| JVR3 | [Ground 7.1] Symbol of 'Disparage' (hand drawn by appellant) |
| JVR4 | [Ground 7.1] Officer's note on 'Index of Cards and Letters, Page 1' (No document) |
| JVR5 | [Ground 7.1, 7.2, 7.5] Print of Take 5 Magazine article, 23 June 2006 |
| JVR6 | [Ground 7.2, 7.5] Print of web site for appellant's Underworld Radio Program hosted by his wife (April 2006 - December 2009) (No document) [website URL redacted] |
| JVR7 | [Ground 7.1] Print of Ghost Radio's Online Shop [redacted] showing appellant's symbol of 'Disparage' on top banner as well as 'Disparage' product category. [website URL redacted] |
| JVR8 | [Ground 7.1, 7.2] Print of Ghost Radio's Online Shop [redacted] showing appellant's product line which includes 'Disparage' symbol, 'Heart of Disparage' and 'Raven'. [website URL redacted] |
| JVR9 | [Ground 7.1] Print of appellant's personal web site ([VJS].com) showing typical use of the appellant's trademark symbol 'Disparage'. [website URL redacted] |
| JVR10 | [Ground 7.1] Print of Photos of appellant's February 2009 birthday cake, created by his wife, using his symbol of 'Disparage' in proper context as synonymous with his name '[VJS]' and/or 'Daddy'. |
| JVR11 | [Ground 7.1] Print of Print of photo of a stone gift with drawing/writing, made by the appellant's biological daughter when she was age 8, showing the use of the appellant's symbol 'Disparage' in proper context in place of his actual name. |
| JVR12 | [Ground 7.1] Print of Promotional photos of the appellant showing the common use of his trademark symbols 'Disparage' and the 'Raven', which was branded widely on the Internet and elsewhere (2005-current). |
| JVR13 | [Ground 7.1] Print of actual tattoo design drawn by [SMP] for the complainant. [JVR13-A, JVR13-B] |
| JVR14 | [Ground 7.1, 7.2, 7.5] Print of artwork for books authored by the appellant showing the use of 'Disparage' symbol and 'LYBI'. a) Disparage: Bloodline of Enki b) The Story of LYBI: A Love that Legends Are Made Of c) A Stranger Life: Memoirs of an Unusual Journey d) Quest for Peralta Gold: A Hidden History of Red Mountain [website URL redacted] |
| JVR15 | [Ground 7.1] Print of Statement from [DG] (appellant's supervisor), Gryphon Garage Doors, Malaga, WA |
| JVR16 | [Ground 7.1] Photocopies of examples of typical production work orders signed by the appellant using his symbol 'Disparage' in place of his name. |
| JVR17 | [Ground 7.1] Print of Statements regarding long-time use of symbols in a) [J and DD] (appellant's parents) b) [MV] (appellant's first wife, mother of his children in USA) c) [SH] (appellant's daughter, USA) |
| JVR18 | [Ground 7.1] Print of Photos of heart-shaped cake pans used for the appellant's birthday since 1961 (regarding the usage of the symbol of the 'heart'). |
| JVR19 | [Ground 7.5] Print of employment record from Gryphon Garage Doors, Malaga, WA |
| JVR20 | [Ground 7.5] Print of Response to query regarding bankruptcy. |
| JVR21 | [Ground 7.5] Print of Concepts and contracts for TV series created/developed by the appellant, and consigned to LaVella Entertainment Group, Toronto, CA. |
| JVR22 | [Ground 7.5] Print of excerpts from the appellant's book 'Quest for Peralta Gold: A Hidden History of Red Mountain [2000] (ISNB: 0646 3965 28), 'About the author'. |
| JVR23 | [Ground 7.5] Print of Ghost Radio Network's web site [website URL redacted] |
| JVR24 | [Ground 7.5] Print of Ghost Radio Network web page: 'About [VJS]' |
| JVR25 | [Ground 7.2, 7.5] Print of Email from [Titta G] to the appellant dated 28 August 2009. |
| JVR26 | [Ground 7.5] Print of Email from [Titta G] to appellant's mother regarding the email sent by the appellant's wife stating: "Amy will never go to Finland". |
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