Want v The State of Western Australia
[2006] WASCA 189
•19 SEPTEMBER 2006
WANT -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 189
| Link to Appeal : | [2007] WASCA 129 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 189 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:53/2006 | 25 AUGUST 2006 | |
| Coram: | ROBERTS-SMITH JA | 19/09/06 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal refused on grounds 1 to 8 inclusive Appeal dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) | ||
| B | |||
| PDF Version |
| Parties: | BARRY CLIFFORD WANT THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Application for leave to appeal Conviction Stealing funds held under direction Appellant selfrepresented Evidence improperly admitted Evidence not supporting conviction "Inadequate" legal representation Police video record of interview Errors by trial Judge in summing up evidence to jury Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(1) |
Case References: | Hillstead v The Queen [2005] WASCA 116 Lawless v The Queen (1979) 142 CLR 659 Mickelberg v The Queen (1989) 167 CLR 259 Nudd v The Queen (2006) 80 ALJR 614 Samuels v The State of Western Australia (2005) 30 WAR 473 TKWJ v The Queen (2002) 212 CLR 124 Croll v McRae (1930) 30 SR (NSW) 137 Jukov (1994) 74 A Crim R 353 Mathews v The Queen (2001) 24 WAR 438 Norton v The Queen (2001) 24 WAR 488 Smout v Smout [1989] VR 845 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WANT -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 189 CORAM : ROBERTS-SMITH JA HEARD : 25 AUGUST 2006 DELIVERED : 19 SEPTEMBER 2006 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
Catchwords:
Appeal - Criminal law and procedure - Application for leave to appeal - Conviction - Stealing funds held under direction - Appellant selfrepresented - Evidence improperly admitted - Evidence not supporting conviction - "Inadequate" legal representation - Police video record of interview - Errors by trial Judge in summing up evidence to jury - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1)
Result:
Extension of time granted
Leave to appeal refused on grounds 1 to 8 inclusive
Appeal dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hillstead v The Queen [2005] WASCA 116
Lawless v The Queen (1979) 142 CLR 659
Mickelberg v The Queen (1989) 167 CLR 259
Nudd v The Queen (2006) 80 ALJR 614
Samuels v The State of Western Australia (2005) 30 WAR 473
TKWJ v The Queen (2002) 212 CLR 124
Case(s) also cited:
Croll v McRae (1930) 30 SR (NSW) 137
Jukov (1994) 74 A Crim R 353
Mathews v The Queen (2001) 24 WAR 438
(Page 3)
Norton v The Queen (2001) 24 WAR 488
Smout v Smout [1989] VR 845
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1 ROBERTS-SMITH JA: This is an application for leave to appeal against conviction.
2 Following trial before Martino DCJ and a jury in the District Court at Perth, between 3 and 5 April 2006, the appellant was convicted on one count 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.
3 The Managing Director and major shareholder of Tintron is Mr Brian Liddell.
4 The prosecution case was that in early December 2001, Mr Liddell signed an offer and acceptance offering to purchase the unit and agreed to pay $30,000 as a deposit. He paid the deposit to Mirvac Fini, which was the owner of the property. Settlement was due to take place on 4 January 2002.
5 Not long before the settlement date, Mr Liddell was going on holiday overseas. He had known the appellant for some time. The appellant offered to arrange settlement. They agreed to that on 2 January and Mr Liddell signed a document in which he appointed Wanlea Holdings or Want & Co, of which the appellant was a director, and authorised him to act as agent in relation to the settlement. The authority contained directions as to how the money was to be disbursed. It was common ground Mr Liddell had already appointed a firm of settlement agents to actually do the necessary work. The appellant's role was to liaise with the agents while Mr Liddell was away, and to provide them with the funds when required.
6 Instead of paying the money into the firm's trust account, the appellant put it into the general account. When the cheque for $590,000 was deposited, the appellant sought a "quick answer" on it.
7 Mr Liddell went on his trip and when he returned he presumed that settlement had taken place. However, he found that had not occurred. He made a number of attempts to try and contact the appellant, without much success. He did manage to meet with him about 19 February, at which stage Mr Liddell's company was being charged penalty rates for late settlement.
8 Some moneys had been paid out on behalf of Mr Liddell's company from the general account, being for stamp duty and other expenses.
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- However, when Mr Liddell spoke to the appellant on about 19 February, the appellant told him there was a shortfall of $200,000.
9 In the circumstances, Mr Liddell reluctantly agreed to put in $200,000 himself so that the settlement could proceed. He sold assets in order to get that money. He told the appellant he wanted security for it. The appellant gave him a completed offer and acceptance form, under the terms of which his wife agreed to sell a property in Cambridge Street to Mr Liddell for the sum of $200,000. In any event, however, after settlement went through on 21 February 2002, no further money was forthcoming to Mr Liddell's company.
10 The prosecution case was that when the money was paid into the general account, it was used for other purposes, such that there was never thereafter sufficient money in the general account (nor the trust account) to pay the full amount owing at settlement.
11 The defence position (as explained by the appellant's trial counsel, Mr D Love, in his opening to the jury immediately after the prosecution opening) was that what really happened was Mr Liddell had loaned the money to the appellant on a temporary basis and when that arrangement "went sour" he went to the Real Estate and Business Agents Supervisory Board ("REBA") as that was the only way he could see to get his money back. The defence position was that the dispute was really a civil one which ought to have been litigated in a civil court, but because the appellant was now a man of no means (his business had gone into liquidation), Mr Liddell was pursuing what he saw as the only option open to him to recover his money, which was to recover it from the statutory fund.
12 Counsel said the general authority document was not a document appointing the appellant as a settlement agent; the appellant was not, and never had been, a settlement agent and Mr Liddell knew that, and Mr Liddell had already appointed someone else as the settlement agent in the transaction and the appellant knew that.
13 The appellant's appeal notice was filed on 26 April 2006.
14 The Acting Registrar extended the time for the appellant to file his Appellant's Case to 31 July 2006. The Appellant's Case was in fact filed the following day. I would extend time to 1 August 2006.
15 I listed the application for leave to appeal for hearing before me on 25 August 2006. The appellant is self-represented, and appeared before
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- me himself on that day. The Appellant's Case runs to 71 pages, plus appendices. There are eight grounds of appeal. They are:
"1. The circumstances of investigation and arrest were unfairly prejudicial and the police interview was both unlawfully obtained and/or unfairly conducted.
1.1. The Investigation Process
1.2. Circumstances of Arrest
- 1.3. Videotape Record of Interview
2. The weight of evidence tendered did not support the conviction.
3. The absence of evidence from relevant witnesses and documentary exhibits detracted from the Jury's ability to return a safe verdict.
3.1 State Nominated Witnesses
3.2 Witnesses negligently overlooked
3.3 Evidenciary [sic] Documents
- 3.4 Summary of Fresh Evidence for the Defence
4. Inadequate legal representation resulting from negligent preparation or presentation of the Defence argument and cross-examination of State witnesses.
4.1 Confusing cross-examination, K. Liddell
4.2 Inadequate cross-examination, R. Sheppard
4.3 Argument out-of-line with instructions
4.4 Non cross-examination, H. Ryan
- 4.5 Inappropriate and prejudicial closing remarks
5. Dishonorable [sic], misleading, incorrect or untruthful remarks and references made by the Prosecutor or adduced by State witnesses providing the Jury with unfairly prejudicial, biased or faulty information.
5.1 Undisclosed Prosecution Exhibit
5.2 Misleading Examination of Witnesses
- 5.3 Misleading unfairly prejudicial and factually incorrect statements made by the learned Prosecutor in his closing address
- 6. The Honourable Trial Judge erred when he ruled in favour of admitting the highly prejudicial video record of interview, and subsequently failed to adequately direct the jury on issues arising from the viewing of it.
6.1 'Voir dire'
6.2 Background evidence of gambling
- 6.3 Hearsay police comments of wife's statements
7. The Honourable Trial Judge erred in the course of directing the Jury on matters of law.
7.1 Assumptive comment on breach of Real Estate Legislation
- 7.2 Confusing direction on REBA opinion
8. The Honourable Trial Judge made various errors in his summing up of the evidence and failed to comment on incorrect submissions by the Prosecutor.
8.1 Repetition of unfounded Prosecution claims
8.2 Misleading wording in summary of evidence adduced
- 8.3 Repetition of misleading Prosecution submissions"
17 Leave to appeal is required in respect of each ground of appeal (s 27(1) Criminal Appeals Act 2004 (WA)). Leave must not be granted on a ground of appeal unless the court or Judge dealing with it is satisfied the ground has a reasonable prospect of succeeding. The proper application of that test was explained in Samuels v The State of Western Australia (2005) 30 WAR 473, [56] - [59], which I apply here.
18 Some of the grounds of appeal overlap or are repetitious.
(Page 8)
Ground 1
19 Ground 1 has two parts. First it complains the circumstances of the investigation and arrest were unfairly prejudicial.
20 I 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."
21 At 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."
22 The 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.
23 As to the circumstances of arrest, the appellant claims that investigation was "long delayed" by what appears to have been a manpower shortage and movements of personnel, that Mr Liddell provided false and incomplete information to the police and failed to
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- disclose the existence of a formal loan agreement between him and the appellant and that the summary of the offence in the "Statement of Material Facts" was based almost solely on the account provided by Mr Liddell and made no reference to the appellant's claims and denials.
24 With the exception of the point about the loan agreement, none of these matters were relevant to prove (or disprove) the offence charged. They do not show any error of law or fact in the trial, nor do they go to demonstrate any miscarriage of justice. To the extent these matters are the subject of ground 1, it has no reasonable prospect of success. Leave to appeal is refused in respect of it to that extent.
25 I shall deal with the video record of interview aspect of this ground under ground 6 and with the loan agreement under ground 2.
Ground 2
26 The evidence that was before the court was not unduly complex. It turned in essence on the oral evidence of Mr Liddell supported by a number of documents.
27 The primary document was exhibit 3, an "Authority of Agent to Act" dated 2 January 2002 ("the Authority"). It was that which the State said contained the relevant direction. The Authority authorised Wanlea Holdings Pty Ltd trading as Want & Co Real Estate, from 1 to 31 January 2002, to:
"Arrange for settlement to take place by collecting and disbursing the various amounts* to the appropriate recipients.
*Inclusive Stamp duty - Commissioner of State Revenue $23662.50
Balance of purchase price $565,000
Settlement fees searches & petties - NIL
Adjustment of rates & taxes $1,250 -
TOTAL $589,912.50"
28 There was no dispute the appellant paid the $590,000 into his general account. There was evidence that moneys received under direction or on trust for some purpose ought to be paid into a trust account. There was evidence that at the time the appellant received the cheque he was gambling regularly and his business was in financial difficulty. Mr Liddell denied as "preposterous" the suggestion that he gave the money to the appellant as a loan.
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29 Mr Liddell confirmed in his evidence that when he contacted the appellant after he returned from holidays in the third week of January 2002, he found the settlement had not taken place. He said the appellant told him it was because there was a shortfall of $200,000. He agreed to lend the appellant $200,000 so settlement could proceed, and did so on security provided by the appellant. He did that because he was apprehensive that if the settlement was not finalised quickly, he might well lose even more. That arrangement also was evidenced by an agreement, exhibit 7 (the "Letter Agreement").
30 There was evidence about the sale and settlement of the property which eventually took place.
31 A former employee of the appellant's business, Mrs Helen Ryan, testified as to that employment, and the fact she became licensee of the business in mid-1995. She had control of the firm's trust account. She testified that in early January 2002 she asked the appellant to approach Mr Liddell to obtain a loan of about $50,000. She needed that to replace money which she had misappropriated out of a trust account to feed her own gambling habit (she had been convicted and given a suspended sentence in respect of that).
32 It was Mrs Ryan's evidence that on 3 January 2002, a cheque for $390,000 was paid into the general account. The appellant told her it was a short term loan to him by Mr Liddell. She said she signed a trust account cheque for $20,100 on 19 January 2002 and used that, together with a cheque for $351,401 drawn on the general account and signed by the appellant, to purchase a bank cheque. There was a shortfall of $200,000 on the funds required to purchase the unit. That money came from Mr Liddell.
33 Evidence was given of transactions on the relevant bank accounts. There was evidence from Mr Robert Sheppard, to which I have referred, including that Mr Liddell made a claim on the fund on 13 June 2002 and that was paid out on 13 November 2002.
34 Detective Sergeant Neil Barry interviewed the appellant following his return from South Africa on 8 August 2004. The appellant told the police officers in late 2001 the firm was having financial difficulties and he was endeavouring to win money at the casino, but that was not solving the financial problems. He told them he had previously borrowed $100,000 from Mr Liddell (something Mr Liddell had earlier acceded to in his evidence-in-chief). That was an undocumented transaction. He
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- said he told Mr Liddell that he was having a cash flow problem. Mr Liddell was about to buy an investment unit and he gave the appellant the cheque for $590,000 saying the appellant could use it to help with his cash flow problem pending the settlement. The appellant was to give Mr Liddell "a good rate" on the money.
35 The Letter Agreement, exhibit 7, was a document which Mr Liddell had not provided to REBA. The appellant said it was a loan agreement; for the State it was argued it was, in effect, in the nature of an admission that the appellant had converted the $590,000 to his own use in the first place. The Letter Agreement recites the main details of the Authority - it states that a cheque for $590,000 was given to the appellant by Tintron and was cleared on 3 January and that settlement was to occur on 11 January 2002. It then states in cl 5 that:
"As at 17 February, despite repeated requests by Tintron, Settlement has not occurred, and Want is unable to advise when Settlement will occur due to Want having insufficient funds to disburse the full balance of the purchase price of $565,000.00."
- (An adjustment had already been made for stamp duty.)
36 It then sets out other terms relating, amongst other things, to penalty interest and to security (that being the Cambridge Street property).
37 The submissions advanced in support of this ground in substance rehearse the position which had been put to Mr Liddell at trial, about the $590,000 being a short term loan pending the settlement - which he denied - and which had been advanced in argument to the jury. By way of example, the appellant submits that evidence tendered by the State as to the prior offer to purchase a property by Mr Liddell was largely irrelevant to the charge and that a large amount of evidence tendered by the State was aimed at proving that the money was converted by him and used at his will - which was never denied by the appellant. He further submits that the rest of the State evidence was aimed at discrediting him, suggestive of adverse character traits and of a gambling addiction providing motive and intent.
38 The fact is that although the prosecution is not required to prove motive in a criminal trial, it may do so if there is evidence which tends to support proof of the commission of the offence by showing the appellant had a motive to commit it.
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39 As the appellant acknowledges in his submissions, there was no dispute at trial that he had received the $590,000, that it was eventually intended to be payment for the unit, nor that it had been paid into the appellant's general account and he had used $200,000 of it for his own purposes. The issue was whether Mr Liddell had given it to him on the basis he could apply it to his own purposes as a loan, prior to needing it for the settlement. The matters advanced in support of the contention that Mr Liddell's evidence should not have been accepted, were all advanced at trial. This ground really asserts the jury ought not to have accepted Mr Liddell's evidence. However, it was clearly open to them to do so. They obviously did. That being so, a ground that the weight of evidence did not support the conviction has no reasonable prospect of success. Leave to appeal on this ground must be refused.
Ground 3
40 This ground faces a fundamental problem. As I explained to the appellant, in the absence of additional evidence adduced on the appeal (for which leave would be required, which leave is not readily given) an appeal is to be determined on the basis of the evidence which was before the primary court. This ground however complains about evidence not being before the primary court.
41 In his submissions the appellant identifies a number of categories. The first he describes as "State Nominated Witnesses".
42 He begins with his wife Janet Want. He says she was named as a witness for the State and that:
"Surprisingly, in response to the Appellant's earlier questioning of his wife's compellability, the learned Defence Counsel had said that she would have no choice other than to give evidence if called by the State."
- He then refers to an inquiry made by the trial Judge in the absence of the jury whether or not the appellant's wife was to be called as a State witness. The State prosecutor confirmed she was and his Honour indicated that he would be required to give her a direction under s 9 of the Evidence Act 1906, that she was not obliged to give evidence. He said he would give that direction in front of the jury unless counsel had any different views. As the appellant points out, defence counsel made no comment or objection, he says "despite the likely prejudicial effect on the Jury" of that being done in front of them.
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43 Accordingly, during the course of the trial, the State prosecutor called the appellant's wife. The transcript reads (t/s 116):
"MARTINO DCJ: Before I ask you to take the oath or affirmation, Mrs Want, I understand that you are the wife of the accused man Mr Barry Clifford Want. Is that correct?---I am, yes.
Under our Evidence Act you are not compellable to give evidence on behalf of the prosecution if you are unwilling to do so. By that I mean you do not have to give evidence on behalf of the prosecution if you do not want to do so. Do you understand that?---I do, yes.
Do you wish to give evidence or not?---No, I don't.
I see. There's nothing you wish to raise, is there, Mr Edwards?
EDWARDS, MR: No, your Honour.
MARTINO DCJ: Yes, thank you. You may go, Mrs Want?---Thank you."
44 Section 9(1) of the Evidence Act stipulates that in any criminal proceeding the wife of an accused shall, subject to that Act, be competent to give evidence on behalf of the prosecution or the accused. However, subs (5) provides that if the wife of an accused is called as a witness for the prosecution, she is not a compellable witness for the prosecution and it is the duty of the Judge to inform her that she is not compellable to give evidence on behalf of the prosecution if she is unwilling to do so. (There are exceptions to that provision but they are not relevant here).
45 His Honour was therefore bound as a matter of law to take the course he did. There was therefore no error nor miscarriage in that. There was no reason why that should not have been done in front of the jury, and indeed, that course was appropriate so the jury would know why they were not to hear her evidence.
46 If defence counsel told the appellant that his wife would have to give evidence if called by the prosecution, that was incorrect (assuming that it was said). In fact, although the appellant's wife was not a compellable witness at the instance of the prosecution, by s 9(1)(b) she was compellable at the instance of the appellant. She was not called by counsel for the appellant. On the face of it there might well have been
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- some good reason for that (particularly having regard to the appellant's gambling and to the suggestion later made that he had forged his wife's signature on the Offer and Acceptance form for the Cambridge Street property). But whether that be so or not cannot be known on the material presently available. An accused is ordinarily bound by the forensic decisions made by his or her counsel (TKWJ v The Queen(2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614). No apparent miscarriage is demonstrated here.
47 The appellant also complains that his brother Neil Roger Want, although named on the indictment, was not called and he was not made aware of the prosecutor's decision not to call him. He asserts this effectively prevented the giving of evidence under cross-examination "… or the convenient calling of him as a witness for the Defence". The appellant asserts his brother was included in the list of witnesses announced by the prosecutor at the commencement of the trial and a prospective juror even excluded himself on the basis of knowing the appellant's brother. The appellant says in his submissions that whilst it may have been considered there was little he could add to the prosecution's case, "… there would likely have been evidence adduced under cross-examination of some benefit to the Appellant". He refers in that regard to discussions held between all the directors of Want & Co at the time the $590,000 cheque was received from Mr Liddell regarding its character as a short term cash flow loan, with repayment to be made mid-January 2002, to provide for settlement of Mr Liddell's property purchase. He then refers to the fact that Neil Want had beneficially owned the Cambridge Street property jointly with the appellant for seven years prior to it being transferred into the appellant's wife's name in mid-2001 and he would have been in a position to confirm that transfer had been effected to take advantage of Janet Want's ready mortgage capability for refinancing purposes, to assist with the company's ongoing cash flow requirements. The appellant says he could also have confirmed the verbally agreed ongoing beneficial ownership of the property at the material time and the appellant's right to deal with it as he saw fit.
48 Evidence of discussions between the directors would not have been admissible as proof that the money had in fact been given as a loan to the appellant. In that regard it would have been hearsay. Whether or not the appellant had the right to give security over the Cambridge Street property was not in issue at the trial. What was relevant was the fact that he had used it for that purpose. Nor was the authenticity of his wife's signature on the Offer and Acceptance form in issue. I can see no appeal point in respect of this.
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49 "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).
50 The next category is "Evidenciary [sic] Documents". He refers, inter alia, to a draft loan agreement dated 17 February 2002, a fax cover letter dated 17 February 2002, an enclosure to a letter dated 24 December 2001 (which he says was exhibit 8 but incomplete as tendered) as well as what he describes as "Alternative forms of Evidence" being his own summaries and timeline of events and a diagram showing parties to the settlement process (which he says would have been admissible under s 27A and s 27B of the Evidence Act).
51 It may at once be observed that both of those sections contemplate the use in evidence of charts, summaries or other explanatory documents which aid the comprehension of evidence given otherwise. As the appellant neither gave nor led evidence at his trial, the sections would have had no application.
52 The draft loan agreement is a draft of exhibit 7. The appellant's complaint about this appears to be that exhibit 7 was improperly tendered into evidence because it had been undisclosed by Mr Liddell until he delivered it to the prosecutor on the morning the trial commenced. His contention appears to be that the Letter Agreement ought to have been rejected as State evidence due to the fact it had not previously been disclosed, but that it ought to have been tendered by the defence, together with the draft. I have looked at the draft. There appears to be nothing of forensic significance to it. Be that as it may, it was apparently available to the defence and accordingly could have been tendered. The decision not to tender the draft (if that was a decision deliberately made) is on the face of it, rationally and readily explicable on the basis the final executed agreement had already been tendered.
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53 It cannot be contended that the Letter Agreement was "improperly" tendered by the prosecution. It was obviously a relevant document. The fact that it had not previously been disclosed by Mr Liddell was a matter for comment - and comment was made at trial.
54 The other evidence referred to is not "fresh evidence" - it clearly existed at the time of trial and could, with reasonable diligence, have been produced. Indeed, for the most part, it seems to have been within the knowledge or possession of the defence. Alternatively, it could readily have been obtained. This was accordingly new evidence (as to the distinction between fresh and new evidence see Mickelberg v The Queen (1989) 167 CLR 259). Where the evidence is "new" evidence, it must be strong enough to show that the appellant is innocent or raises such a doubt that the court concludes the accused "should not have been convicted": Lawless v The Queen (1979) 142 CLR 659 at 676; Mickelberg v The Queen (supra), at [413]; Hillstead v The Queen [2005] WASCA 116 at [61]). It seems to me none of the material referred to by the appellant is capable of leading to such a conclusion. In any event, there has been no application to adduce this evidence on the appeal.
55 This ground has no reasonable prospect of success and leave to appeal must be refused in respect of it.
Ground 4
56 In his submission the appellant says that his counsel's cross-examination of Mr Liddell was "confusing" and that he pursued a lengthy line of argument during cross-examination but often missed following through on crucially important aspects. The examples given in his submissions do not necessarily reflect that to be the fact. It is generally a matter of opinion and judgment as to whether particular inconsistencies or answers should be pursued in cross-examination, and if so, in what way. An appellant is not entitled to run an appeal ground on the basis that he considers simply that his counsel should have done it differently - or indeed, even better.
57 In Nudd, Gleeson CJ said (at [11] - [12]):
"[11] There is a further reason for caution in setting out to measure the performance of counsel. Criminal trials are conducted as a contest, but the adversarial system does not require that the adversaries be of equal ability. The system does its best to provide a level playing field, but it cannot alter the fact that some players are faster, or
- stronger, or more experienced than others. Opposing counsel may be mismatched, but this does not make the process relevantly unfair. Judges can do their best to minimise the effects of differences between the abilities of opposing counsel, but their capacity to intervene is limited by their own obligations of neutrality. Accreditation requirements impose basic standards of professional competence, but beyond those there are large differences in individual levels of competence. The practical effect of a certain level of performance by a defence counsel might depend upon the level of performance of the prosecutor. Any experienced advocate knows that what might amount to a minor slip against one opponent could be a fatal mistake against another.
- [12] The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well-founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice."
58 A reading of the cross-examination of prosecution witnesses by defence counsel suggests counsel was putting what the appellant says his case was. Whether that was done as comprehensively or as effectively as the appellant in retrospect would have liked, is another matter. I have
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- already dealt with the issue of counsel either not being diligent or not acting in accordance with instructions.
59 Apart from assertions of fact which the appellant could have made had he given evidence at trial (which he did not), most of what the appellant sets out here is in the nature of an argument seeking to demonstrate inconsistencies or illogicalities in Mr Liddell's evidence and the prosecution case generally.
60 In other parts it is speculative in nature - such as postulating what Mr Liddell's motives may have been for doing certain things, or what advice he may have been given by his lawyers.
61 A further illustration of the approach taken by the appellant to this ground and his proposed appeal generally, is to be found in his submissions concerning the cross-examination of Mr Liddell. He submits, for example, that:
"Despite prior instructions from the Appellant based on Mr Liddell's false police statement claims, the learned Defence Counsel failed to cross-examine Mr. Liddell regarding evidence adduced by him during examination-in-chief not quite consistent with his witness statement, that he persistently attempted to contact the Appellant about repayment of the $200,000 shortfall loan following settlement." (My emphasis)
62 The appellant then gives what he suggests are illustrations of Mr Liddell's evidence being "not quite consistent". He says that "to the appellant's knowledge and on the evidence other than Mr Liddell's own suggestion" Mr Liddell had never attempted to contact him following settlement. As I have already observed, the appellant himself did not give evidence.
63 Similarly, in respect of the cross-examination of Ms Ryan, he says that his counsel erred when he recommended against cross-examination of Ms Ryan. He says his counsel recommended against cross-examination as he felt Ms Ryan's evidence had not particularly assisted the prosecution case and he wanted to avoid the possibility of re-examination following cross-examination. The appellant says that he was not necessarily concerned at any further line of questioning during re-examination of Ms Ryan but accepted his counsel's recommendation. Then:
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- "In retrospect, the Appellant considers that a significant benefit to the Defence could have resulted from suitable cross-examination."
64 The fact is, on his own submission, the appellant accepted his counsel's recommendation and the fact that, in retrospect, he might or would have made a different forensic decision, is not an appeal point.
65 One aspect which did give me initial concern was the appellant's complaint that his own counsel made adverse comment on the appellant's decision not to give evidence in his own defence. He sets out the following passages from the transcript (t/s 20, 5 April 2006):
"His Honour will tell you that an accused does not have to give evidence in a criminal trial and that no adverse inference may be drawn from that. For me, it's a tactical consideration. It's a matter of weighing up what I might hope to gain from having my client give evidence as opposed to what I might lose from him being subjected to cross-examination.
I know that juries like to her from an accused person and I would like you to hear from him. However, allowing you to hear from him would expose him to cross-examination. You have seen the video and you can probably work out what sorts of things that my learned friend is going to cross-examine him on."
66 The appellant also complains in this context that the comments made by his counsel comparing him with the key prosecution witness, Mr Liddell, could only have had a prejudicial effect on the jury's assessment of the appellant's own character.
67 On the face of it, it might be a matter of some surprise to hear defence counsel saying to the jury what the appellant's counsel said in the passages set out above. However, the remarks have to be considered in context and against the background of what counsel was apparently trying to achieve.
68 The transcript shows that counsel immediately went on to refer to some of the things he would anticipate that the prosecutor would have cross-examined the appellant upon. He noted the prosecutor had already drawn attention to the appellant's gambling habits and to Ms Ryan's defalcations from the Want & Co trust account. He said the prosecutor had drawn the jury's attention to financial problems caused by the cyclical
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- fortunes of the real estate business. He said that no doubt the State prosecutor would try and suggest that those and other things would have caused the appellant to be in a financial predicament where he would have been inclined to steal money and would try and link those "essentially credibility issues" to the transaction involving Mr Liddell. Counsel went on to say:
"Obviously I am trying to separate those issues. I'm trying to say, 'Look, those are credibility issues.' I doubt very much I'm ever going to persuade you to like my guy but on the other hand look at Keith Liddell. I'm pretty sure you don't like him either. The point is what you are being asked to consider here is what the nature of the transaction actually was in early January, what was the nature of the direction given to Barry Want, and that's what I want you to focus upon.
That's the tactical consideration which caused us to come to the conclusion that it might not be in our best interest to give evidence because we might draw your attention away from that issue and into a situation where we are forced to answer other issues that may further cause you to have some prejudice against Barry Want. I simply say that all of these other issues are a smokescreen. They are an attempt to divert your attention away from the dubious nature of this transaction.
The real issue for this trial is what was the nature of the direction given to Barry Want by Keith Liddell. That's what I want you to focus upon. Everything else is a side issue."
70 Despite the appellant's prolific references to, and analysis of, both the evidence and his own views on the matter, in my opinion what he advances does not demonstrate that this ground has a reasonable prospect of succeeding on appeal. I would refuse leave to appeal on ground 4.
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Ground 5
71 There are three points, or "particulars", raised under this ground. The first is what the appellant describes as the "Undisclosed Prosecution Exhibit". This is a reference to exhibit 7. The submissions advanced here are to the effect that the existence of a loan agreement between the appellant and Mr Liddell at the time of the shortfall in repayment of funds due for settlement had remained undisclosed by Mr Liddell throughout all investigations by the authorities and consequently it was not part of the prosecution brief and had never been referred to in committal hearings, nor in the discovery process. He says it was "tagged on" to the end of the examination-in-chief of Mr Liddell and the content of the agreement then used to convey a significantly prejudicial impression on the jury.
72 In his submissions in support of this ground, the appellant contends that the agreement had been substantially varied verbally by he and Mr Liddell in various ways and so the final written agreement did not reflect the agreement in fact entered into between them as varied.
73 As the appellant acknowledges, his counsel did not object to the use, nor the tender, of this document. The Letter Agreement was a document which was relied upon by the State at trial. The State was therefore under an obligation to disclose it as soon as possible after the appellant's committal for trial (s 95(6)(c) Criminal Procedure Act 2004 (WA)). That could not have been done where the prosecution did not become aware of the document until later. However, the obligation is a continuing one. The prosecution is obliged to disclose such material to the defence as soon as they receive it (s 95(9)(b)). That was apparently what happened here. If the appellant's counsel thought the appellant was prejudiced by the late disclosure, he could have applied for an adjournment to deal with it, or for the discharge of the jury, under s 97 of the Criminal Procedure Act. He did not do so. Given that on his own submissions, the appellant and his counsel had a copy at least of the draft agreement in respect of which he had clearly given instructions to his counsel (and he says he wanted his counsel to tender the original Letter Agreement), it is understandable why counsel apparently considered there was no unfair prejudice to the appellant in the circumstances. None is demonstrated, especially since the appellant did not give evidence.
74 The appellant complains of what he says was "an extremely prejudicial" reference to the document by the State prosecutor in his closing remarks to the jury. The complaint is about the prosecutor's characterisation of the document as amounting to a "confession". The
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- appellant says this was "[a] somewhat dishonourable characterisation of a previously undisclosed document quite obviously intended as a Loan Agreement/Memorandum of Understanding". The inference suggested by the prosecutor was clearly one that was open. It was a matter for the jury. That was made quite clear to the jury. Again, this really amounts to no more than a complaint by the appellant that the jury should have accepted his own characterisation of the transaction (remembering again that it was one he explained to the police, but not in evidence). There is nothing in this point.
75 The appellant's next point is what he says was the "Misleading Examination of Witnesses" by the State prosecutor. He says that during the course of Mr Liddell's examination-in-chief, the prosecutor "recovered from his own apparent misunderstanding". He submits that in the process however, it was highly likely that the jury were left with the false impression that a signed (and suggestively forged) land transfer document for the security of property registered in the appellant's wife's name had actually been given by the appellant to Mr Liddell. He then refers to Mr Liddell's evidence on the matter.
76 The appellant claims that evidence was false, but he did not give evidence that it was. He cannot complain that the prosecutor conducted his examination or presented his address to the jury on the basis of evidence actually given. The trial Judge expressly referred to the arguments advanced by the appellant's counsel on this.
77 The appellant next says that the prosecutor, presumably knowing of the police comments made in the video record of interview concerning the appellant's alleged forgery of his wife's signature and also that she was to be given a direction under s 9 of the Evidence Act, unfairly drew the court's attention to the otherwise irrelevant point "How is the document signed by the Vendor?" The appellant suggests that the reference to the signatures as "scribbles basically" and to the appellant's signature appearing as witness, the jury would likely have been left with the prejudicial implication that the scribbled signatures were referred to as such because they were forged.
78 There can be nothing in this by way of appeal point. The trial Judge made it clear that the only offence they had to consider was that charged. He properly directed them that what the police officers had suggested by the questions in their interview with the appellant, about the wife's signature being a forgery, was not evidence of the truth.
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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.
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- 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.
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- 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."
80 The 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.
81 The same must be said of the third particular the appellant advances here, namely the prosecutor's "unfairly prejudicial and factually incorrect" closing address. The numerous examples he gives here are his own analyses of the evidence and commentary on that and upon what the prosecutor said and how he expressed himself. Whilst there was arguably in some instances some looseness of language or lack of precision in counsel's submissions, none of the matters argued under this ground could, in my opinion, give rise to any expectation that this ground has a
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- reasonable prospect of success. I would refuse leave to appeal on ground 5.
Ground 6
82 This concerns the video record of interview. The ground complains there was a miscarriage of justice because the trial Judge erred "within the exercise of his discretion" when he ruled in favour of admitting the "highly prejudicial" video-taped record of interview ("VROI") and subsequently failed to adequately direct the jury on issues arising from the viewing of it.
83 The submission first is that his Honour ought not to have allowed the unedited VROI to be admitted into evidence without first making it the subject of a voir dire.
84 In fact, counsel had raised this at the very commencement of the trial, in the absence of the jury. Counsel told his Honour that he and the State prosecutor had some discussions about it as to how the tape should be edited, if at all, but had not resolved that. The Judge queried why that was being done so late. Counsel said that the prosecution had been on notice for some time that he had issues with the VROI and that it had been noted at the last status conference but the DPP had not allocated trial counsel until the middle of the previous week and so it could not be discussed until then.
85 When the Judge again queried why the Office of the DPP could not have dealt with the issue in any event prior to the appointment of trial counsel, counsel said that he had been unable to get an answer. His Honour, quite rightly, expressed his displeasure and dissatisfaction with that state of affairs.
86 As to the tape itself, counsel told his Honour it was a very lengthy record of interview and ran for about three hours. His Honour said he would hear argument about the editing of the tape or its admission into evidence, at the end of the evidence that day. That is what occurred.
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
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- evidence was to be that she went with the appellant to the casino on a number of occasions and observed his betting.
88 The 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.
89 The 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.
90 The 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.
91 That 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.
92 As 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.
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- 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."
93 These 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.
94 In his submissions in respect of ground 1, the appellant contends that the VROI was unlawfully obtained and unfairly conducted.
95 The first point to note about this is that no such challenge to evidence of the VROI was made at trial.
96 The appellant describes his impressions of his contacts with the police, how he was met by them at the airport on his return from South Africa and the journey by car to their office. He describes the journey as "cordial". He then says that on arrival at the police offices, his understanding of the principal purpose of his presence was simply to answer questions about the circumstances of the cheque. However, he says that in the event, it developed into a comprehensive series of predetermined questions relating to a confusion of company and personal matters long past. He says that only on completion of the interview did he become aware that he was to be charged with the offence, and that:
"Had he been made aware at the commencement of the interview he would have most definitely have requested legal advice before agreeing to the interview and would most likely have given less flamboyant accounts of his gambling activities."
97 The evidence of the police officers was that the appellant was arrested at the airport, but that it was only at the end of the VROI that they
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- decided to charge him. They said they told him at the airport he was under arrest. He was cautioned in the usual terms at the commencement of the interview. That he now thinks he made an unwise decision about that does not render the interview involuntary and nor does it demonstrate any impropriety or unfairness which could justify its exclusion in the exercise of the trial Judge's judicial discretion. In coming to this conclusion I do not overlook the appellant's reference to s 23G of the Crimes Act 1914 (Cth), which he says was not complied with. That is a Commonwealth law which does not apply to State police officers. These officers were members of the Western Australian Police Force dealing with the commission of an offence against State law.
98 The appellant says that he understood that any relevant admissions contained in his interview could be submitted to the court but not that the tape itself could be played.
99 Again, no point was taken about this at trial. In any event, the appellant does not say the interview was involuntary. When asked what he understood by the caution which the police officers had just given to him, he said that it meant that anything that he said could be used in any court proceedings. There is nothing in this point.
100 The appellant advances other arguments, including that he was fatigued after his long flight and that the interview "evolved" into more of an adversarial exercise. There is nothing in the VROI or the material which leads me to the view this ground would have a reasonable prospect of success on these bases.
101 The same arguments are also relied on in respect of ground 6. For example, the appellant says that had a voir dire been held, it ought to have resulted in the exclusion of the VROI in its entirety or at least in a significantly edited form. He says the circumstances of arrest and "irregularities" in the procedures and process of obtaining the VROI would have been made more evident in argument heard following a voir dire and that the probative value of the videotape was questionable and certainly far outweighed by its likely prejudicial effect on the jury. I do not see the matters the appellant raises as being likely to have the effect he appears to think they would have had.
102 I have read the particular criticisms which the appellant makes of this including his criticisms that the prosecutor and the trial Judge either made inappropriate observations or comments in respect of what he said on the
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- VROI or (in the case of the Judge) failed to adequately direct the jury with respect to the content of it.
103 I am not persuaded that either ground 1 insofar as it relates to the VROI, or ground 6, has a reasonable prospect of succeeding on appeal. I would refuse leave.
Ground 7
104 The appellant complains the trial Judge made an "assumptive comment" referring to matters of law and which was likely received with an adverse inference by the jury. He refers to the fact that at t/s 134 the Judge directed the jury that the charge against the appellant was not that he had breached the real estate legislation by not paying money into the trust account, but was one of stealing money. The appellant contends this was a self-contradictory statement in as much as it contained an implied suggestion that the appellant had indeed breached the real estate legislation by not paying the money into the trust account.
105 In context, the direction by the trial Judge cannot fairly be taken in the way the appellant contends. His Honour was clearly telling the jury the question they had to decide was not whether the appellant did not comply with the requirement of the real estate legislation that he pay money into the trust account, but was whether he had received the funds subject to a particular direction but had applied them in some other way. I cannot envisage that the Court of Appeal would accept the direction contained an implied suggestion that the appellant had indeed breached the real estate legislation in that way. The direction was clearly an entirely appropriate and proper one. The jury could not have had the understanding for which the appellant contends.
106 I have already dealt under ground 1 with what the appellant says was the trial Judge's "confusing direction" on the opinion of REBA. The direction was not confusing.
107 There is no substance in ground 7.
Ground 8
108 This ground complains of various errors in the trial Judge's summing-up of the evidence and failure to comment on incorrect submissions made by the prosecutor.
109 The appellant's first complaint is that it was an error for the Judge to repeat Mr Liddell's evidence that, to enable the settlement to go ahead, he
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- "agreed" to lend $200,000 on security of property provided by the appellant. The appellant complains about the use of the word "agreed" as suggesting that the appellant initiated the proposal for the loan and Mr Liddell reluctantly agreed. The point is about how Mr Liddell's evidence was to be understood. The trial Judge's recounting of it was a fair summary.
110 The next point is one which turns upon the trial Judge referring to "money" and "the money" in the context of the appellant's gambling. The Judge said that evidence from the appellant's police interview was "that money was used for gambling and that Want & Co. were under great financial pressure at the time". He says the reference would have been taken by the jury as meaning the money which had allegedly been stolen. The Judge did not say that - but it was an inference open to the jury. There is nothing in this.
111 There are various other complaints which are similar, about what the appellant says was repetition by the Judge "of misleading Prosecution submissions" as to the time of the settlement. The particular reference complained of was that "settlement was due to take place possibly 4 January 2002". Again, that was a fair statement of the evidence, although it is true to say that it was also possibly expected to have taken place somewhat later and even up to mid-January. The jury would no doubt have appreciated what the evidence was. His Honour was not purporting to refer to it all. There is nothing in this.
112 The appellant complains about the direction given by the trial Judge (t/s 138) that:
"Mr Edwards submitted to you that exhibit 7, the agreement made between Mr Want and Mr Liddell, constitutes essentially a confession, was his characterisation of that document.
That's of course a matter for you."
113 The appellant submits the inference likely to be taken by the jury "unfamiliar with legal terminology and Court jargon" could have been that this was a matter for the jury to take as fact rather than a matter for them to decide. In my view that proposition is simply untenable.
114 I have looked at all of the matters complained of by the appellant in respect of this ground. None of them give me cause to be of the view that this ground would have a reasonable prospect of success on appeal. Leave to appeal in respect of it will be refused.
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Conclusion
115 Time for filing the appellant's case will be extended to 1 August 2006.
116 Leave to appeal will be refused on each of grounds 1 to 8 inclusive.
117 As I have come to the conclusion that none of the grounds of appeal has a reasonable prospect of succeeding, I would order that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).
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