Walker v Regina

[2006] NSWCCA 228

CITATION:	Walker v Regina [2006] NSWCCA 228
HEARING DATE(S):	26/07/2006
JUDGMENT DATE:	1 August 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Kirby J at 2; Hoeben J at 3
DECISION:	The time within which the appellant can file his Notice of Appeal and Application for Leave to Appeal is extended to 5 December 2005 ; The appeal against conviction is dismissed; The application for leave to appeal against sentence is refused.
CATCHWORDS:	Appeal against conviction - extension of time for filing Notice of Appeal - objections to evidence - whether trial unfair.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	TKWJ v The Queen (2002) 212 CLR 124
PARTIES:	Allan John Walker - Appellant Crown - Respondent
FILE NUMBER(S):	CCA 2005/2554
COUNSEL:	Appellant in Person A Woodburne - Crown
SOLICITORS:	Appellant in Person S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/41/0239
LOWER COURT JUDICIAL OFFICER:	Knight DCJ
LOWER COURT DATE OF DECISION:	23 February 2004 21 May 2004

2005/2554

McCLELLAN CJ at CL
KIRBY J
HOEBEN J

Tuesday, 1 August, 2006

Allan John WALKER v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

3 HOEBEN J:

Charges and sentence
The appellant stood trial before Knight DCJ and a jury of twelve on Monday 16 February 2004 in the District Court at Bega. He pleaded not guilty to three counts of sexual intercourse without consent contrary to s61I Crimes Act 1900 (maximum term of imprisonment 14 years and a standard non-parole period of 7 years). The charges related to an incident on 19 October 2003 at Wallaga Lake and the counts on the indictment related to acts of penile/vaginal, penile/anal and penile/oral penetration respectively.

4 The trial proceeded over five days, including the summing up. The jury retired to consider its verdict at 1.47pm on Monday, 23 February 2004 and returned with verdicts of guilty to each of the three counts at 3.15pm that afternoon. The appellant was represented at trial by Mr Cook, Public Defender.

5 The appellant was remanded in custody. On 21 May 2004 he was sentenced on each count to imprisonment with a non-parole period of 4 years 6 months with a balance of term of 2 years. Each sentence was to commence on 19 October 2003. The non-parole period is due to expire on 18 April 2008 and the balance of term will expire on 18 April 2010.

6 The appellant, who appears for himself, has appealed against his conviction and sentence.

Factual background

7 The appellant and the complainant had a brief relationship in October/December 2002. During that time the appellant lived at the complainant’s house at Wallaga Lake. When the appellant left the relationship and moved out of the house to resume living with a former partner, he left a number of his belongings at the complainant’s house. The complainant attempted to contact him for him to retrieve his belongings but he took no steps to do so. The appellant did not return to the complainant’s house until the afternoon of Sunday, 19 October 2003.

8 On that afternoon the appellant drove from Eden to Wallaga Lake with three other men – Carlos Scott, Warren Scott and Timothy Parsons. Carl Scott drove the car and the other men drank beer during the course of the drive. When they arrived at the complainant’s house, Warren Scott went to visit some relatives and the other men went inside. The appellant asked the complainant for his diving gear and was told that she did not have it. A neighbour, Earl Mongta, arrived and the appellant offered him a drink. This invitation was accepted, so Carlos Scott drove the appellant to nearby Tilba in order to purchase a flagon of port wine. When they returned the men sat on the veranda drinking.

9 It was the complainant’s evidence that she went to her bedroom to get some photos to show the appellant, as well as a pension/carers card for the appellant that had been mailed to the complainant’s address. The complainant said that as she was looking for those items in her cupboard, the appellant came into the bedroom and started “mauling” her. He stood behind her and touched her breast and “down below”. She told him “don’t”, however, the appellant just slammed the door, locked it and then flung her onto the bed where he removed her underpants and forcibly had sexual intercourse with her by putting his penis in her vagina, then in her anus and finally in her mouth.

10 It was the complainant’s evidence that in the course of the assault, she struggled to get away. She said that when he had his penis in her anus she heard the television set turned on and the volume turned up in the lounge-room. She was crying and screaming at that time. When the appellant forced his penis into her mouth, he said “Why don’t you suck on it like that, like that white bitch do”. She said he eventually stopped and wiped his penis on some clean clothes she had placed on the bed after removing them from the clothesline. He got dressed and said “All I want us to be is just friends”, to which she replied “How could I be friends with you after what you just done to me?”

11 It was the complainant’s evidence that the applicant returned to the veranda. She put her underpants back on and sat on the bed crying. Later she spoke to Timothy Parsons. He then went back out to the veranda and the men left shortly afterwards. As they left the complainant went out to the car and told the appellant not to be surprised because he and his woman were going to get a phone call from her that night about what he had done.

12 It was the complainant’s evidence that at the time of the assault the appellant might have been “half shot” but he was not drunk. The complainant said that she had not been drinking alcohol. Shortly after the incident the complainant made a detailed complaint to Nora Fowler, the complainant’s carer.

13 It was the evidence of Nora Fowler that at the time the complainant told her about the incident, she was crying and distressed. The complainant said that she was in pain and was bleeding from the anus. At the complainant’s request Ms Fowler called the appellant’s de facto partner to tell her what the appellant had done. Ms Fowler then took the complainant to hospital and the police were called.

14 At the hospital the complainant was examined by Dr Shi. It was the evidence of this doctor that on examination he noted an abrasion on the complainant’s left shoulder, a small laceration to the vulva, old dried blood on the perineum and dried blood around the anus and perianal skin. It was Dr Shi’s opinion that the laceration to the vulva was a recent injury consistent with injury caused by friction during penile vaginal intercourse possibly from penetration when the vagina was not adequately lubricated. The complaint of pain in the anus was consistent with injury to the anus. The blood on the perineum and on the perianal skin could have come either from the anus or from the laceration to the vulva.

15 Police examined the complainant’s bedroom and found a pile of clothes on the bed and a wallet with the appellant’s identification in it. When some of these garments were tested, including a white nightie and the complainant’s underpants, semen was detected on the complainant’s underpants only.

16 The evidence of Carl Scott was that he told the appellant’s de facto, Sherrie Kebby, that the men had been on the veranda when the complainant had called the appellant inside the house where they were alone. He said that he “didn’t hear nothing the music was too loud” and that when the complainant came out she looked fine but when the men went to leave she yelled “You’re fucked Allan Walker, I’m ringing Sherrie on you”.

17 The evidence of Warren Scott was that he did not hear any screaming or calls for help that afternoon, nor did he see the complainant that day at any stage. Timothy Parsons was not called to give evidence as the police were unable to locate him. Earl Mongta said that he did not hear the complainant crying or screaming. He also said that he could not recall seeing the complainant that day.

18 In his statement to the police, the appellant said that he had had vaginal sex with the complainant but he denied having anal and oral sex with her. He said that he went into the complainant’s bedroom at her request and that they ended up on the bed together. He said that the complainant took her own clothes off because she wanted sex. He did not force her. She did not struggle and did not complain. He said that he thought he would have ejaculated into her vagina and agreed that he had wiped his penis on a nightie and some other clothes she had on her bed. He said that the complainant only started to abuse him and threatened to tell on him because he wasn’t going to stay with her.

19 In his evidence at trial the appellant maintained that he had consensual sex with the complainant. He said that the complainant was in two positions, firstly in the missionary position and then she got on her hands and knees on the bed and he stood behind her and inserted his penis into her vagina. Initially he said “he wouldn’t know” if his penis went into her anus but under cross-examination he denied having anal sex with the complainant. He said that he did not have oral sex. The appellant said he was “pretty drunk”, tipsy drunk but not inebriated at the time.

Appeal

20 An initial problem for the appellant was that his appeal was out of time. He was found guilty by the jury on 23 February 2004 and was sentenced on 21 May 2004. By s10(1) of the Criminal Appeal Act it was necessary for the appellant to file his Notice of Intention to Appeal and Notice of Application for Leave to Appeal within twenty eight days after conviction or sentence. In fact the Notice of Appeal and Application for Leave to Appeal were not filed until December 2005.

21 The Registrar did not exercise the power under r 3C of the Criminal Appeal Rules to extend the time within which the notices could be filed, but referred the question of whether or not an extension of time should be granted to the appellant to this Court.

22 The following written explanation was provided by the appellant for his failure to lodge his appeal and application for leave to appeal within time:

“I believe that the trial judge had ruled out any appeal against conviction, but I know now that the Judge, Judge Knight could not have done so. This is the main reason why I had not filed an appeal prior to now.”

23 In oral submissions before this Court, the appellant said that on a previous occasion in relation to other proceedings, he had been approached by his barrister at the conclusion of those proceedings and asked whether he wanted to appeal. Nothing like that had happened on this occasion. To use the appellant’s own words “No-one came near me to tell me to appeal” at the conclusion of either the trial or the sentence proceedings.

24 The Crown opposed the grant of leave to appeal on the following bases:

(i) That the explanation given for the failure to lodge an appeal more than 18 months out of time was inadequate in that the appellant had previously exercised his right of appeal (albeit in Local Court matters by way of appeal to the District Court).

(ii) It was not in the interests of justice to grant the application in circumstances where both the victim of a serious sexual assault and the community were entitled to expect some finality to the proceedings.

(iii) The conviction appeal was without merit.

(iv) The appellant had not notified any objections to sentence.

25 The submissions on behalf of the Crown are powerful and persuasive. Were the appellant legally represented, I would not be inclined to grant leave to appeal out of time. In view of the fact that the appellant is representing himself and that the Court has before it both the appellant’s written submissions, his oral submissions and full submissions in reply by the Crown, I am disposed to exercise my discretion in favour of the appellant and to extend the time within which his Notice of Appeal and Notice of Application for Leave to Appeal can be filed.

Appeal against conviction
Ground of Appeal 1 – The evidence of Dr Shi.

26 The Ground of Appeal is expressed in the following terms:

“Dr Shi in his statement on the stand was inconclusive ie Shi page 92/97 Shi.”

27 The appellant’s written submission was:

“Dr Shi’s evidence was inconclusive in transcript Shi xx p 94.
Q.20 When somebody comes in with a complaint that someone has put their penis into their anus without consent it would be your function to examine the anus to try to find signs of that is that correct?
A.20 I have not been told to do that. I was told just to do a bit of swab. To have a look. Inspection.”

28 That submission was elaborated slightly in oral submissions by the appellant. He submitted to the Court that it was unfair that he should be convicted because Dr Shi had not properly carried out his job. Implicit in the submission was the suggestion that had a proper examination been carried out by Dr Shi, no sign of penetration or other activity on the part of the appellant would have been found.

29 The evidence of Dr Shi is to be found at T.88-97. Mr Cook, who represented the appellant at trial, addressed on his evidence at T.280. In his submissions to the jury, Mr Cook made the same point as that raised by the appellant, ie that only limited use could be made of the evidence of Dr Shi because “it is equivocal on the question whether there is anal injury”.

30 Clearly the evidence of Dr Shi was admissible. The question of its weight was a matter for the jury. Through his cross-examination Mr Cook effectively highlighted the limitations of that evidence. This resulted in the trial judge giving the following summary to the jury (SU 37-38):

“It was put to you that the evidence of the doctor is somewhat equivocal and I think that is a fair summation of it. It is not inconsistent with what (the complainant) said was done to her but it equally can be explained on other bases other than the occurrence of these events.”

31 It follows that the inconclusive nature of the evidence of Dr Shi was forcibly put to the jury both by Mr Cook and by the trial judge. The jury were clearly aware of its limitations. Accordingly, the complaint made by the appellant does not provide a basis for disturbing the verdict of the jury.

32 This ground of appeal is not made out.

Ground of Appeal 2 – Evidence of Nora Fowler

33 The ground of appeal is expressed in the following terms:

“Nora Fowler was giving evidence on the health of Maxine Kelly, she said (at that time) Maxine had trouble with her stomach. That is when Mr Cook objected, this is on Fowler-Fowler x 115.”

34 The appellant’s written submission on this ground is:

“Nora Fowler x p 115.
CROWN PROSECUTOR:
Q.45 Did she say anything to him about doing it up the back?
A. She (Maxine Kelly) said it really hurt really hurt she has a problem with her – she at that time had a problem with her stomach.
OBJECTION:
COOK: I object.”

35 In oral submissions the appellant said that he did not understand why Mr Cook had objected when he did. Ms Fowler was the complainant’s carer and was very familiar with her health problems. Had Ms Fowler been allowed to continue her evidence without objection, she may have provided an explanation for the blood in the anal and perianal area of the complainant which was consistent with a cause other than the actions of the appellant.

36 There is no substance to this ground of appeal. The objection by Mr Cook was soundly based in that the evidence of Ms Fowler was non-responsive to the question which she had been asked. Mr Cook clearly did not want evidence to come out in that way which may have been adverse to the appellant. It is speculation to now suggest that had Ms Fowler been allowed to complete the answer, she would have given evidence which would or might have assisted the appellant.

37 This ground of appeal is not made out.

Ground of Appeal 3 – “The statement to police in Eden was edited, I was not informed about this until in court”.

38 The editing of the interview is referred to at T.172. In the appellant’s absence the Crown informed the trial judge that the appellant’s interview had been edited by consent “to exclude inadmissible and irrelevant material” and asked that the jury be directed accordingly. This information was repeated when the appellant arrived at Court (T.173) and Mr Cook confirmed that he joined in the application that the jury be directed accordingly.

39 An examination of the unedited record of interview shows that there was good reason to edit the appellant’s interview. It contained irrelevant and potentially prejudicial material relating to the appellant’s use of illegal drugs, including amphetamines and cannabis. The appellant’s complaint appears to relate to the editing of the fact that he had consumed speed on the morning of 19 October 2003. That emerged from his oral submissions. Those submissions went somewhat further in that the appellant submitted that because the statement had been edited, the jury did not understand how drunk he was in the context of the trial judge telling the jury that his state of mind at the time was important.

40 Trial counsel for the appellant made a deliberate and informed decision to both ask for and agree to the editing of the record of interview. Prior to the commencement of the trial, Mr Cook provided to the Crown a written outline of objections to the evidence including the ERISP. Consistent with that decision, Mr Cook did not adduce evidence from the appellant as to his consumption of speed.

41 This was a rational, tactical decision on the part of Mr Cook. Apart from any question of remoteness (the speed was consumed in the morning) the appellant told the police that speed made him feel relaxed. There was no suggestion anywhere that the appellant’s consumption of speed affected his actions. The deliberate decision not to adduce evidence of the consumption of speed viewed objectively was a rational, tactical decision which did not make the trial unfair or produce a miscarriage of justice. (TKWJ v The Queen (2002) 212 CLR 124 at [16], [26-27], [95] and [107].

42 In relation to the appellant’s state of sobriety generally, he gave evidence in the proceedings. His evidence was that he was “pretty drunk”, tipsy drunk but not inebriated. Had he been more greatly affected than that, it was open to him to give evidence to that effect. He did not.

43 This ground of appeal is not made out.

Ground of Appeal 4 – The withholding of evidence of the car crash

44 The ground of appeal is expressed in the following terms:

“On pages 8/9 of my transcript Judge Knight, Mr Cook and the Prosecutor withheld evidence about Maxine Kelly and a car crash she had many years ago! That had caused her to use a walking stick when asked about the stick she replied “I never used a stick until all this happened with Allan Walker on 19.10.02”. Page 42 Kelly x-Q10 You weren’t using.
Page 42 Kelly x Question (5) The stick that you’re using today is that to assist you to walk? A: Yes it is.
Q.(10) – You weren’t using that – when did you first start using it?
A. – I got the stick after everything took place.
In summing up, Judge Knight referred to the stick to the jury, the jury still not knowing about the car accident, the car accident was never asked by Mr Cook!
Summing up page 30.”

45 The fact of the car accident and the use of a walking stick was a peripheral matter at best. At no time did the complainant say or suggest in her evidence that her use of the walking stick was related to or was a consequence of the incident on 19 October 2003. She had ample opportunity to do so when she gave evidence about the effects of the assault on her. There was no evidence from Dr Shi nor from Ms Fowler about any such complaint by her to them. There was no submission to that effect. There was no rational basis in the evidence whereby the jury could have concluded that the complainant’s use of a walking stick was related to the incident of 19 October 2003.

46 Moreover it is not correct to say that the trial judge, Mr Cook and the Crown Prosecutor withheld evidence of the car accident from the jury. The relevant transcript references are T.8-9, T.41-42, T.96, T.228-229 and SU 33.

47 Before the complainant gave evidence, the Court was advised by the Crown Prosecutor that the complainant suffered from a number of medical complaints and that she used a walking stick as a result of a car crash she had “some many years ago”. Because of her diabetes she needed to drink a lot of water and required toilet breaks from time to time. The trial judge suggested to the Crown Prosecutor that he either repeat that information in front of the jury or elicit that evidence from the complainant so that the jury would understand the need for taking breaks (T.8).

48 Mr Cook had no objection to the jury being informed that the complainant had diabetes and other health problems requiring her to drink water and take breaks. He did object to the complainant detailing her various ailments (T.8-9). The complainant’s health complaints were only relevant at that point to explain her need to be drinking water and to take frequent breaks. The reason for Mr Cook’s objection is obvious – to avoid the risk that the jury would feel sympathy for a woman rendered vulnerable by her poor state of health.

49 That there was no attempt to withhold evidence of the car accident from the jury is clear from the question addressed to Dr Shi by Mr Cook at T.96-55:

“Q. Did you understand that she had been in a car accident some years before?
A. No she didn’t tell me that, she actually told me got non-insulin dependent diabetes. She had a heart attack in the past.”

50 Even if such evidence should have been placed before the jury its substance and effect was so marginal that any such omission did not make the trial unfair or produce a miscarriage of justice.

51 This ground of appeal is not made out.

Application for leave to appeal against sentence.

52 No submissions were made by the appellant, either in writing or orally, to support his application for leave to appeal against sentence. Accordingly, leave to appeal against sentence should not be granted.

Conclusion

53 The orders which I propose are as follows:

(i) The time within which the appellant can file his Notice of Appeal and Application for Leave to Appeal is extended to 5 December 2005.

(ii) The appeal against conviction is dismissed.

(iii) The application for leave to appeal against sentence is refused.

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