Want v The State of Western Australia - [2007] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WANT -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 129

CORAM: PULLIN JA
BUSS JA
MILLER AJA

HEARD: 23 MAY 2007

DELIVERED : 21 JUNE 2007

FILE NO/S: CACR 53 of 2006

BETWEEN: BARRY CLIFFORD WANT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
File No  :IND 164 of 2005
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ROBERTS-SMITH JA
Citation  :WANT -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 189
File No  :CACR 53 of 2006

Catchwords:

Appeal - Application for review of decision refusing leave to appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(1), s 40
Supreme Court Act 1935 (WA), s 61(3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr M Mischin

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Keating v The State of Western Australia [2007] WASCA 98
Samuels v Western Australia (2005) 30 WAR 473
Want v The State of Western Australia [2006] WASCA 189

PULLIN JA: This is an application by the appellant for a review of the decision of Roberts‑Smith JA refusing leave to appeal against his conviction in the District Court. The appellant was convicted following a trial before Martino DCJ and a jury, on an indictment which alleged that on 2 January 2002, he stole $590,000 from Tintron Pty Ltd ("Tintron") which had been received by him with a direction that it be applied to the purchase of a unit in East Perth. The Managing Director and major shareholder of Tintron was Mr Brian Liddell.
A summary of the case is set out in Roberts‑Smith JA's reasons for decision in Want v The State of Western Australia [2006] WASCA 189 between [4] and [12]. It is unnecessary for me to repeat those paragraphs but they do have to be read to fully understand these reasons.
The appellant then appealed to this Court. There were eight grounds of appeal supported by the Appellant's Case which ran to 71 pages plus appendices.
Section 27(1) of the Criminal Appeals Act 2004 (WA) requires a grant of leave in respect of each ground of appeal. Section 27(2) provides that leave must not be granted on a ground of appeal unless the Court or Judge dealing with it is satisfied that the ground has a reasonable prospect of succeeding. The proper application of that test was explained in Samuels v Western Australia (2005) 30 WAR 473 [56] ‑ [59].
In an attachment to the appellant's application for review of Roberts‑Smith JA's decision, the appellant said that he expected the procedure to be that the respondent would file an answer following the filing of his case. He says that as a result he was left in doubt as to the purpose of appearing on 25 August 2006 when the leave application came on for hearing before Roberts‑Smith JA. He says that he was therefore in a state of unpreparedness and that notice to attend at the Supreme Court was only given "a couple of days" prior to that date. I note that there is on the Court file a notice dated 8 August 2006, advising that the appeal had been called on to consider the application for leave to appeal and that it was sent to Hakea Prison. However, even if the notice was only received "a couple of days" before the hearing, the transcript of the hearing reveals that the applicant was given every opportunity to say what he wished to say. The appellant did make some oral submissions, but in the main said that he relied upon the Appellant's Case plus attachments.
Roberts‑Smith JA refused leave on all eight grounds. The appellant is dissatisfied with the decision made by Roberts‑Smith JA and he now applies to the Court pursuant to s 61(3) of the Supreme Court Act 1935 (WA) to set aside the decision. This hearing is not a hearing de novo. It is in the nature of an appeal by way of rehearing; however, the appellant must first show that Roberts‑Smith JA erred in his decision. See Keating v The State of Western Australia [2007] WASCA 98 at [21].
The appellant has identified five points in Roberts‑Smith JA's reasons said to reveal error.
The first is said to be found in the section of his Honour's reasons covered by [19] ‑ [22]. They read:
"19 Ground 1 has two parts. First it complains the circumstances of the investigation and arrest were unfairly prejudicial.
20I do not propose to detail the factual matters asserted by the appellant in support of this. In substance they come to an assertion that Mr Liddell made a claim to REBA in May 2002 about the defalcation by the appellant. Apparently REBA accepted the claim and made a payout from the fidelity fund on it. The appellant suggests it was REBA and not Mr Liddell who complained to the police. He then says the:
'… acceptance of the claim by REBA would likely be regarded by the Jury as a prior determination of the Appellant's guilt.'
21At t/s 134, in the course of his summing-up, the trial Judge referred to the evidence of Mr Robert Sheppard, financial compliance officer with REBA about the fidelity guarantee fund. His evidence had been that reimburses people who have lost funds which have been misappropriated by agents and that Mr Liddell had made a claim on that fund, which had been paid. His Honour went on then to say:
'The fact that Mr Liddell has been paid from the fund is not evidence that Mr Want has misappropriated moneys provided to him by Mr Liddell or that he's guilty of this charge. It is for you to determine whether the state [sic] has proved the charge beyond reasonable doubt. You do so in accordance with the law as I explained it to you and the facts as you find them.
The opinion of the real estate body is not relevant to your verdict. Counsel for Mr Want says that it is relevant because the reason that Mr Liddell reported Mr Want to the authorities was to obtain moneys from the fund. That is a matter for you to consider, but the fact that Mr Liddell has been paid from the fund is not evidence that Mr Want has misappropriated moneys or that he is guilty of this charge.'
22The jury must be taken to have had regard to this direction and acted in accordance with it. There is accordingly no substance in this point."
Before this Court, the appellant submitted that evidence about the Real Estate and Business Agents Supervisory Board ("REBA") Fidelity Guarantee Fund payment should not have been led at all. That submission must be rejected because it was the appellant who wanted this evidence before the Court. In essence, the appellant contended that Mr Liddell concocted his story about giving the money to the appellant for the purposes of a land transaction so that he could claim on the REBA Fidelity Guarantee Fund.
The appellant also submitted that it was not correct that the jury must have been taken to have had regard to the direction which had been given by the trial Judge and acted in accordance with it. Roberts‑Smith JA correctly stated the law. There is no error revealed in these paragraphs.
The next paragraph to which the appellant points and alleges contains error, is [49]. This paragraph reads:
"'Witnesses negligently overlooked' is the appellant's next category. He mentions Kim Trewan and Ross McCallum. Although the appellant says they appear to have been negligently overlooked during the police investigation, the complaint really seems to be against the appellant's own counsel. The appellant says his counsel failed to act on his instructions to call them. Against the background of what it is the appellant suggests those witnesses might have been able to say at his trial, it is not difficult to appreciate that there may well have been entirely rational forensic reasons for his counsel not calling them. In any event, apart from the appellant's own assertions, there is no evidence of what those witnesses would in fact have been able to say. Nor is there any evidence about what the appellant's instructions to his counsel in fact were, nor what counsel's reasons may have been for deciding not to call the witnesses (if indeed he made such a decision)."
The appellant's submissions concentrate entirely on the witness Kim Trewan. The appellant says that Ms Trewan was a settlement clerk and that she spoke to the complainant and to the respondent. He said that she should have been called; that he wanted Ms Trewan called and that his counsel decided only shortly before the trial, not to call her. A bundle of correspondence was produced by the appellant in support of this ground. The correspondence was marked for identification ("MFI 1") and counsel for the respondent did not object to the letters being received as additional evidence pursuant to s 40 of the Criminal Appeals Act. I would admit MFI 1 as an exhibit. The trial was conducted between 3 and 5 April 2006. One of the letters in the bundle is a letter dated 24 March 2006 from the appellant's counsel to the appellant and it read in part:
"I will not be calling Kim Trewin [sic] as a witness at trial. In my discussions with her, she has no personal knowledge of your dealings with Mr Liddell. If she had any such knowledge it would be hearsay and inadmissible. However, she simply cannot recall the transaction, and her lack of recollection makes her unreliable. To suggest that police had been derelict in their investigations by not obtaining a statement from her is drawing a very long bow indeed."
This simply confirms that there were, as Roberts‑Smith JA said, "entirely rational forensic reasons" for counsel not calling Ms Trewan. The appellant conceded that he did not know what it was that Ms Trewan could have said in evidence which might have been of any assistance to him during the trial. There is no error revealed in Roberts‑Smith JA's reasons in [49].
The appellant next referred to [79] ‑ [80] of the reasons for decision and submitted that error was revealed in them. These paragraphs read:
"79 I have already dealt with the appellant's complaint about the State prosecutor's characterisation of exhibit 7 as being in effect 'a confession'. The appellant now asserts that the State prosecutor misled the court by causing Mr Liddell to adduce '… false evidence …'. The so‑called 'false evidence' is that which appears in the italicised portion set out below, but I reproduce the relevant part of the transcript in full (t/s 80 - 82):
'McCallum, Donovan and Sweeney searched the titles though, didn't they?---Yes, and he was - - -
They prepared the transfer, didn't they?---Yes.
They did the rates and adjustments?---Yes, and they did all that paperwork.
And they attended the settlement meeting?---And they got paid $787 to do that and Barry - - -
There wasn't anything else for Barry Want to do?---It was to make sure it all went smoothly, and he offered to do that and I accepted for him to do that.
Okay. But you already had the money to complete the purchase anyway. Why not just give the money to them?---Well, in hindsight, that would have been - that's what I should have done.
And then the deal went bad and you lost $200,000?---Exactly, and that's when the nature of the relationship changed.
Did you go to the police at that time?---No, I didn't. I tried to solve it in this way.
Did you report him to REBA at that time?---No.
Instead you tried to achieve a negotiated resolution with him?---Yes.
In the form of characterising the transaction as a loan?---The nature of the relationship changed when $200,000 went missing.
This loan document, you gave this to the state [sic] prosecutor today, didn't you?---Yes.
Did you ever show REBA?---No.
When they investigated this transaction, do you think your failure - or do you think the fact that they didn't see this loan agreement might have affected their decision to pay you out?---I don't know.
Do you think if they thought the transaction might have been a loan they would have still paid you out?---The transaction wasn't a loan.
But you've used the term loan agreement in that letter?---Because the nature of the relationship changed when $200,000 went missing, and I had to try and protect the other $350,000 that was sitting in Want and Co's account. I didn't know what was going on at the time.
Okay. So you explain the loan agreement as an attempt to mitigate your loss?---Yes.
Now, that would be a fine explanation if you had explained that to REBA, but you never did. You never told them about this agreement. You hid this agreement from them?---I didn't hide it from them.
You hid it from them deliberately because you knew it would affect their decision to pay you compensation?‑‑‑Not at all.
And that's why you've only just shown it to the state [sic] prosecutor today?---No.
Thank you, your Honour.
MARTINO DCJ: Thank you. Do you have any re‑examination, Mr Edwards?
EDWARDS, MR: Yes. Just as to the last matter about telling REBA about the agreement, did you tell them in general terms what the arrangement was?---The initial arrangement?
No, the second arrangement?---No.
But I think you have referred to it in your statement, have you not?---What, the - there are a lot of things referred to in the statement.
I think you have already been referred to your statement a number of times, haven't you?---Yes.
If you go to paragraph 79 thereabouts?---Yes, I noted - yep.
Who did you make that statement to?---Sorry, this statement?
Yes?---To Neil Barry, Detective Neil Barry.
Yes, okay. When he was investigating this particular matter?---Yes.
Did Mr Want ever discuss with you a loan in relation to the sum of $590,000 that you paid over in early January of 2002?---Never, no.
Would you have been prepared to lend him that amount - - -?---No.
Why was that?---Well, because that money was to settle on the property that I'd just purchased.
When did you expect settlement to go through?---In mid January.
I have no further question [sic], your Honour.'
80The question that '… I think you have referred to it in your statement …' was a leading question, but even so, did not elicit the answer the State prosecutor was obviously seeking. Nor did the following questions elicit any clear answer that Mr Liddell had told the police officers about the Letter Agreement. The evidence of the witness remained as being that he had not told REBA - something which the Judge reminded the jury of in his summing-up (t/s 137). There is no prospect these and the related complaints the appellant asserts about the 'misleading' examination of witnesses could sustain this ground of appeal."
The appellant points to the fact that Mr Liddell admitted that he gave the loan document relating to the $200,000 shortfall to the State prosecutor only on the second day of the trial. The cross‑examination reveals that Mr Liddell did not show the agreement to REBA. It was put to Mr Liddell that he "hid" the loan agreement from REBA because "you knew it would affect their decision to pay you compensation". Mr Liddell denied this.
Then in re‑examination, counsel for the prosecution led evidence that the "second arrangement", that is the loan concerning the $200,000 shortfall, was referred to in par 79 of the complainant's statement to the police. He was taken to par 79 and Mr Liddell answered "Yes, I noted - yep". The appellant submits that this amounts to a statement by the complainant that par 79 of the statement referred to the "second arrangement" and that this answer was false because par 79 did not refer to it.
Justice Roberts‑Smith considered that the questions did not elicit any clear answer that Mr Liddell had told the police officers about what Roberts‑Smith JA called the "letter agreement". His Honour said that the evidence of the witness remained as being that he had not told REBA, which was something the trial Judge reminded the jury of in his summing up. The suggestion that the complainant gave false evidence depends upon the answer "Yes, I noted - yep" being understood as "Yes. Paragraph 79 refers to the $200,000 document". This may have been understood by the jury as simply meaning that he noted the contents of par 79 which were never revealed to the jury. However, even if there was anything potentially objectionable about this evidence, or if it was false, then counsel for the appellant who had the prosecution brief containing the police statement, could have objected or taken the matter up with the trial Judge. He may well have thought that the answer was entirely innocuous, as it does appear to be. In any event, the statement by Mr Liddell read (according to the Appellant's Case pages 49/50 ‑ 112/113 of the review book):
"Para. 76On the 21st of February 2002 Barry Want personally delivered the Offer and Acceptance Sale Agreement to me in respect of the sub‑division of the Cambridge Street property and I signed the Agreement on behalf of Tintron Pty Ltd.
Para. 77This Agreement was to be held by me as security of a default of payment of the $200,000.
Para. 78Barry Want told me this Agreement had already been signed by the Vendor.
Para. 79I noticed on the Agreement the property was owned by Barry Want's wife and that she was the vendor. I therefore presumed that it was all in order."
The reference in par 79 appears to be a reference to the security arrangement concerning the written agreement regarding the $200,000 shortfall loan. No error is revealed in Roberts‑Smith JA's reasons.
The next error is said to be in [87] to [95] of the reasons which read:
"87 At the end of the evidence on the first day and in the absence of the jury, the appellant's counsel raised two matters with his Honour. They were, to some extent, related. The first was an objection to evidence to be given by Ms Ryan. The second was to the tender of the VROI. The objection was to parts of Ms Ryan's evidence which was to be about her observations of the appellant's gambling at the Burswood Casino. Her evidence was to be that she went with the appellant to the casino on a number of occasions and observed his betting.
88The objection to the VROI had been put on the same basis. The appellant made no admissions to police as to his fraudulent conversion of the money. He told them he had received it and put it in the general account, but claimed that it had been by way of short term loan to him by Mr Liddell to help him temporarily overcome his cash flow problems, before the money would be needed for the settlement. He was questioned extensively about his gambling and described his gambling habits and winning and losing large sums of money.
89The State prosecutor submitted that the evidence would show that the appellant was gambling at the casino every day throughout the relevant period. Counsel for the appellant argued before his Honour that the evidence was not relevant because it was not probative of what was in issue, namely whether the money had been given to the appellant with the specific (and exclusive) direction the prosecution was alleging, or whether that was subject to a verbal authority by Mr Liddell that the appellant could use the money for the purpose he asserted to the police.
90The trial Judge ruled (t/s 90) that evidence of the appellant's gambling at the relevant time could be evidence of motive, which (if the jury were to accept it in that way) may tend to show the appellant committed the offence. It could therefore be led.
91That was the only basis on which the VROI was objected to at trial. The appellant now seeks to argue that there were also other reasons why it ought not to have been allowed into evidence. It is said that it contained 'suggestions in the form of police questions' about the appellant's allegedly fraudulent dealing with the Cambridge Street property 'reportedly' owned by his wife. He refers to 'hearsay police comments of [his] wife's statements' recounting that she had told the police officers he had forged her signature on the documents relating to the property.
92As to this, the trial Judge expressly directed the jury in the following way (t/s 133):
'As I informed you at the start of the trial, it is the witness answers to questions that counts, which are the evidence. The questions are not evidence. The same applies to the interview by the police officers of Mr Want. It is Mr Want's answers to the police officers' questions that are the evidence. The police officers' questions are not evidence.
For example, when questioning Mr Want the police officer said that his wife said that he had forged her signature on a transfer of land in Cambridge Street. As you know, Mrs Want did not give evidence during the trial. You have no evidence from her. The fact that police officers told Mr Want that she had told them something is not evidence that that is what she says. It is not evidence that Mr Want forged Mrs Want's signature. You will recall that I explained to Mrs Want when she was called to give evidence that she was not compelled to do so, and she declined to give evidence.
That was something she was entitled to do. You draw no conclusions against either the state [sic] nor the defence from Mrs Want exercising that right. The only thing that flows from that is that you have no evidence from Mrs Want.'
93These directions were apposite and correct. If the jury had regard to them (which they must be presumed to have had) the appellant could not have been disadvantaged in the way he apprehends.
94In his submissions in respect of ground 1, the appellant contends that the VROI was unlawfully obtained and unfairly conducted.
95The first point to note about this is that no such challenge to evidence of the VROI was made at trial."

The application repeats the objection made at trial to the admission of the VROI.
In my view the content of the VROI was relevant to motive. It was admissible. Roberts‑Smith JA reached that conclusion. There was no error in reaching that conclusion.
The second aspect of the appellant's complaint is that the video should have been edited to eliminate any objectionable reference to gambling, but once again evidence about his gambling provided motive for the appellant to steal the money. There is no error in his Honour's reasons.
The appellant then complained about police questions recorded on the VROI about alleged fraudulent dealing with the Cambridge Street property. It may be that the questions about Mrs Want were not edited out on the basis that Mrs Want was to be called as a witness. However, once she had exercised her right not to give evidence, it was necessary for the trial Judge to give the direction he did. Roberts‑Smith JA was correct to conclude that the directions were "apposite and correct". There was no error made by Roberts‑Smith JA in the paragraphs under review.

Finally, the appellant referred to [97]. His Honour said that the evidence of the "police officers" was that the appellant was arrested at the airport. The appellant said that this was the evidence of only one police officer. That minor discrepancy or perhaps typographical error, is not an error which would warrant the setting aside of his Honour's order refusing leave.
The remaining matter to deal with is the appellant's application to tender as additional evidence, pursuant to s 40 of the Criminal Appeals Act, the draft agreement concerning the $200,000 shortfall loan which was said to have preceded the actual agreement, ie the "letter agreement" as Roberts‑Smith JA refers to it as or the "second arrangement" as referred to in the passage of re‑examination of Mr Liddell set out above. The respondent does not object to the admission of the document, so I would receive it as an exhibit. However, it does nothing to support a submission that Roberts‑Smith JA erred in any respect.
The appellant's application for review should be dismissed.
BUSS JA: I agree with Pullin JA.
MILLER AJA: I agree with Pullin JA.