Wells v The State of Western Australia
[2013] WASCA 124
•17 MAY 2013
WELLS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 124
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 124 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:200/2012 | 8 APRIL 2013 | |
| Coram: | McLURE P NEWNES JA MAZZA JA | 17/05/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal dismissed Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | DENNIS MICHAEL ALLAN WELLS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Applications for leave to appeal against conviction and sentence Grievous bodily harm with intent Admissibility of witness statement Special witness application Admissibility of unrecorded admissions Manifest excess Turns on own facts |
Legislation: | Criminal Code (WA), s 294(1) Criminal Investigation Act 2006 (WA), s 118(3), s 155 Evidence Act 1906 (WA), s 106R |
Case References: | Bolton v The State of Western Australia [2012] WASCA 2 Eriha v The State of Western Australia [2011] WASCA 167 Kennedy v The State of Western Australia [2008] WASCA 185 Krijestorac v The State of Western Australia [2010] WASCA 35 Rolfe v The State of Western Australia [2012] WASCA 169 Smith v The State of Western Australia [2010] WASCA 176 Thompson v The Queen [2005] WASCA 223 Wainwright v The State of Western Australia [2005] WASCA 250 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WELLS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 124 CORAM : McLURE P
- NEWNES JA
MAZZA JA
- CACR 201 of 2012
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEANE DCJ
File No : IND KUN 6 of 2012
Catchwords:
Criminal law - Applications for leave to appeal against conviction and sentence - Grievous bodily harm with intent - Admissibility of witness statement - Special
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witness application - Admissibility of unrecorded admissions - Manifest excess - Turns on own facts
Legislation:
Criminal Code (WA), s 294(1)
Criminal Investigation Act 2006 (WA), s 118(3), s 155
Evidence Act 1906 (WA), s 106R
Result:
Applications for leave to appeal dismissed
Appeals dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bolton v The State of Western Australia [2012] WASCA 2
Eriha v The State of Western Australia [2011] WASCA 167
Kennedy v The State of Western Australia [2008] WASCA 185
Krijestorac v The State of Western Australia [2010] WASCA 35
Rolfe v The State of Western Australia [2012] WASCA 169
Smith v The State of Western Australia [2010] WASCA 176
Thompson v The Queen [2005] WASCA 223
Wainwright v The State of Western Australia [2005] WASCA 250
Wheeler v The Queen [No 2] [2010] WASCA 105
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1 McLURE P: This is an application for leave to appeal against conviction and sentence.
2 The appellant was convicted after a four-day trial before a jury of one count of, with intent to do grievous bodily harm, doing grievous bodily harm to Michael Allan Powell (the complainant) contrary to s 294(1) of the Criminal Code (WA).
3 On 29 August 2012 the appellant was sentenced by Deane DCJ to a term of imprisonment of 6 years 6 months. He was made eligible for parole.
Appeal against conviction
4 The facts found by the sentencing judge for sentencing purposes are as follows. In May 2011 the complainant was working as a trades assistant for EFCO Industries in Wyndham on a fly-in fly-out basis. In Wyndham, the complainant lived in a company house with his supervisor, Mr Pobjoy, and another employee, Mr Buck. With these two people and others, the complainant was engaged in working on the jetty at the Wyndham port.
5 On site was an office and annexed to that, a sea container used as a storage shed for tools and associated equipment. There were two doors at the end of the sea container which were padlocked each evening but left open during the day. There was also a side entry door which was bolted from the inside.
6 As a result of head injuries inflicted by the appellant, the complainant had difficulties with his memory. The injuries were inflicted by 7.30 am on 31 May 2011 in the sea container. It was accepted that the complainant suffered grievous bodily harm. The complainant could not identify his attacker. No-one was present during the attack or saw the attacker leave the sea container.
7 Mr Pobjoy, whose evidence was accepted by the sentencing judge, said that he had arranged to go with the complainant early on the morning of 31 May 2011 to another job and that he had informed other members of the crew, including the appellant, that work on that day would commence around 9.00 am when the tide had receded and the jetty could be accessed. There was no reason for the appellant or other crew members to be at the site at around 7.30 am.
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8 Mr Tondut gave evidence that a vehicle matching the description of the vehicle driven by the appellant at the time accelerated away from the port area at around 7.15 am on 31 May 2011. Mr Pobjoy gave evidence that the appellant did not attend work on that day although he was not on leave, and that he did not see the appellant again until some 11 days later when he was arrested.
9 Mr Harris, another employee on site, gave evidence that on the evening of 30 May 2011, the appellant inquired of Mr Harris as to where he could acquire a handgun.
10 The statement of a witness, Mr Buck, was read into evidence. Prior to trial, Mr Buck was very severely injured in a motor vehicle accident. The state of his health was such that it was not known when he would recover and, given he had sustained head injuries, whether he would have a clear memory of events.
11 In his statement, Mr Buck said he was driving from Wyndham towards the port area around 7.30 am on 31 May 2011. He saw the appellant driving his vehicle towards him, that is, away from the port area. Mr Buck recognised the appellant's vehicle which was a Landcruiser with a yellow sticker on the windscreen. Mr Buck said he waved the appellant down because he wanted a cigarette (and presumably thought the appellant might have some). The vehicle did not stop. As the vehicle did not turn at the road leading to the caravan park where the appellant lived, Mr Buck formed the impression that the appellant looked like he was leaving town.
12 A forensic biologist, Dr Cooper, gave evidence that a spot of blood containing DNA consistent with the DNA profile retrieved from the complainant was found on the toe area of a left boot seized from the tray of the appellant's vehicle upon his arrest.
13 After receiving the forensic evidence, police travelled to Cairns in Queensland where the appellant was staying. Police escorted the appellant back to Kununurra, arriving on 7 November 2011. At 12.45 pm on that day, the appellant was given the opportunity to participate in a video record of interview. He declined. Detective Walsh left the room whilst Detective Branigan remained with the appellant. Detective Branigan gave evidence that he asked the appellant why he was aggressive or angry. Detective Branigan said that the appellant made two comments to him. First, the appellant said, 'If I knew he was going to take
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- another breath, I would have caved his head in and finished the cunt'. Next he said, 'It was kill or be killed. Himself got in first'.
14 Detective Branigan's evidence was that he understood the appellant's use of the word 'himself' to be referring to the appellant, he having referred to himself previously in the third person.
15 Detective Branigan then offered the appellant another opportunity to go on video but the appellant declined.
16 The appellant was interviewed by a psychiatrist for sentencing purposes. The appellant told the psychiatrist that he arrived at work at around 7.00 am; the complainant was at the sea container unlocking it and he asked the appellant to assist him to look for paint and a paint brush; prior to the offence, the appellant saw the complainant pull out a pistol from under his shirt and the appellant heard it click; the appellant immediately picked up a spanner, hitting the complainant on the head with it. That defence was not run at trial.
17 Although the appellant represented himself in the appeal, it is apparent from his written submissions that he has obtained assistance from a person with some legal training. The grounds of appeal are in the following terms:
1. The learned trial judge erred in permitting the statement of Kenneth Raymond Buck to be read into evidence, resulting in a miscarriage of justice.
2. The learned trial judge erred in granting a special witness application in relation to the complainant.
3. The admission of the appellant's alleged admissions to police which were not visually recorded occasioned a miscarriage of justice.
Mr Buck's evidence
18 The substance of Mr Buck's evidence is set out above. The following exchange occurred with the appellant's counsel in the presence of the jury about the admission of that evidence:
DEANE DCJ: … Now, what is the defence attitude to the statement of Mr Buck being read into evidence in the circumstances, Mr Arndt?
ARNDT, MR: Your Honour, the defence reluctantly acquiesces to the request.
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- DEANE DCJ: So the defence does not consent to the statement being read in in the usual course, however the basis for the defence acquiescence is?
ARNDT, MR: In the interests of seeing this trial proceed the defence accedes to the request. The defence is obviously deprived of the opportunity of cross-examining Mr Buck but so that the trial can proceed the defence is content for the statement to be read in on the understanding that your Honour will give an appropriate direction to the jury as to the use of the evidence.
DEANE DCJ: Yes. In the circumstances it would seem that it is very unclear when Mr Buck will recover or indeed what his situation will be in the event that he does recover and I take it that the defence view therefore is that one would then not know when the trial could proceed and you [are] desirous, as indeed is everybody, of that occurring.
ARNDT, MR: Precisely, your Honour.
19 The trial judge immediately gave the following direction to the jury:
DEANE DCJ: So, members of the jury, in a moment Mr Hunter, the prosecutor, is going to read into evidence the statement provided by Mr Kenneth Raymond Buck. In fact, I think you have heard a little bit about Mr Buck already today. I think Mr Powell mentioned his name in the course of his evidence.
As you have heard the defence acquiesce to the statement being read in in the circumstances that have been explained by Mr Arndt on behalf of his client and of course you have heard a clear explanation why Mr Buck is not here today and indeed it is unclear as to when he would be in a condition to travel and give evidence. So obviously you are not going to have the opportunity to see Mr Buck as he gives his evidence and of course you will recall that I said to you a little bit earlier that it is very important that witnesses have the opportunity - jurors have the opportunity to see witnesses and watch them as they give their evidence.
Obviously because Mr Buck is not going to be physically present you are not going to be able to do that and obviously the defence, Mr Arndt, is going to be deprive[d] of the opportunity of cross-examining Mr Buck in the circumstances. You are going to hear of course what Mr Buck said to police in a statement that he gave them. So as he is not here it is obvious he can't be cross-examined and in that sense you won't have the opportunity to see and hear Mr Buck's evidence being tested in cross-examination. I am going to be talking about this a little later in the course of my charge to you but those particular matters that I have just mentioned may well affect the weight that you are prepared to attach to the evidence that is read from Mr Buck's statement.
(Page 7)
- As I say, you won't have the opportunity to see and hear him in the usual way and you certainly won't have the opportunity to see him cross-examined. The reasons for that have been explained and, as I have said, that may well be a factor or factors which affect the weight that you are inclined to give to his evidence in due course. However, I will revisit these matters later. It is important however you are aware of them at this stage (ts 87- 88).
20 The trial judge also gave a direction on the matter in her summing up. She said:
In relation to Mr Buck's evidence, the defence say, well, look, there's no real challenge that Mr Buck saw the accused's vehicle being driven by the accused that morning coming towards him near the site. But of course Mr Arndt points out, quite properly, that in the circumstances that have arisen he has been deprived of the opportunity of cross-examining Mr Buck about the matters he raised as in his statement.
They said that the vehicle does not turn off towards the caravan park, according to Mr Buck's evidence, but that does not mean to say that you conclude that the accused was actually leaving town; he might have been going elsewhere (ts 318 - 319).
21 Counsel made a forensic decision to acquiesce in the admission of Mr Buck's statement. It was a reasonable decision in the circumstances. The trial judge gave a warning in strong terms.
22 This ground of appeal has no reasonable prospect of succeeding.
Special witness application
23 The respondent sought and obtained an order under s 106R(1)(a) of the Evidence Act 1906 (WA) to declare the complainant a special witness. The court ordered that the complainant be permitted to give evidence from a location outside the courtroom.
24 Section 106R(3) relevantly provides:
The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court's opinion -
(a) by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or
(b) be likely -
(i) to suffer severe emotional trauma; or
- (ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily,
by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject-matter of the evidence, or any other factor that the court considers relevant.
25 The application was supported by a report dated 11 May 2012 from a psychiatrist, Dr Raj Sekhon. The report established that the complainant had developed a chronic post-traumatic stress disorder and that any form of interaction with the appellant would result in him being re-traumatised, exacerbate his symptoms and complicate his recovery.
26 The appellant contends that the evidence was incapable of enlivening the court's power to make a special witness order. The suggestion is that the matters in s 106R(3)(b)(i) or (ii) can only be established by reason of age, cultural background, relationship to a party to the proceeding or the nature of the evidence. That submission ignores the statutory expression 'or any other factor that the court considers relevant'.
27 This ground has no reasonable prospect of succeeding.
Admissibility of admission
28 This ground relates to the evidence of Detective Branigan relating to statements made by the appellant on 7 November 2011 at Kununurra.
29 The admissibility of this and other admissions against interest was the subject of a voir dire conducted before Braddock DCJ on 27 April 2012. Detective Branigan gave evidence on the voir dire. The appellant did not give evidence. Further, counsel for the appellant did not in the course of cross-examination suggest to Detective Branigan that the statements in question were not made or were made in other terms or other circumstances. Having regard to the appellant's admissions to the psychiatrist after the trial, there were obviously good reasons for not doing so.
30 It was clearly open to Braddock DCJ and appropriate in all the circumstances for the evidence to be admitted under s 118(3) and s 155 of the Criminal Investigation Act 2006 (WA).
31 This ground has no reasonable prospect of succeeding.
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Conclusion on conviction appeal
32 None of the grounds of appeal in the appellant's case have any reasonable prospect of succeeding. Matters raised by the appellant in oral submissions travelled well outside the grounds and were not supported by admissible evidence. Leave to appeal must be refused with the consequence that the appeal against conviction is taken to be dismissed.
Appeal against sentence
33 The appellant claims that the sentence of 6 years 6 months is manifestly excessive. The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of an error from the sentence itself. In that regard, consideration is given to the maximum penalty for the offence, the standards of sentencing customarily imposed for the offence, the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.
34 The appellant was aged 38 at the time of sentence. He was not a first offender. He has a record of convictions in this State as well as New South Wales and Queensland, including a number of convictions for offences involving violence, including domestic violence. The combined court histories indicated that he had offended consistently and in a similar manner over the preceding 20 years
35 The appellant reported that he was diagnosed with and had suffered from schizophrenia since 2001 and that he had been medicated since that time but ceased taking antipsychotic medication in 2008. He was not on antipsychotic medication at the time of the offence but reported taking testosterone at that time and had been doing so for the preceding 12 months. The appellant reported a variety of symptoms including hearing voices, paranoia and depression.
36 The sentencing judge summarised the psychiatric evidence as follows:
According to the psychiatrist, some of the psychotic symptoms which you describe raise a degree of uncertainty in relation to the presence of a genuine psychotic illness. The presence of hallucinations in two modalities, being seeing and hearing someone who is not there, in the psychiatrist's opinion, is particularly unusual. In addition, the fact that you claim that you are able to converse in response to, or with, the auditory hallucination, also raises a doubt as to your psychotic symptoms. You appear to be quite suggestible in response to a number of psychological symptoms.
(Page 10)
- There was evidence to suggest significant personality pathology including borderline anti-social and paranoid personality traits in combination with a history of past substance abuse. It could be the fact that you were taking testosterone at the time of the offending may have contributed to your aggressive behaviour.
In relation to your management the psychiatrist makes the observation that further clarification should be considered in relation to your diagnosis and it would [be] appropriate to approach that on a longitudinal perspective because that may clarify the presence or absence of a major psychiatric disorder such as schizophrenia (ts 393).
37 The psychiatrist concluded that the appellant had significant risk factors in relation to future violence and that his risk of reoffending was at the higher end of the spectrum.
38 However, the sentencing judge accepted that the appellant had mental health issues. There were no other matters of mitigation. The sentencing judge described the offence as involving a vicious, unprovoked attack with a weapon from behind involving extremely severe force to a vulnerable area of the body.
39 The trial judge found that the complainant had significant ongoing physical difficulties in combination with serious emotional problems and concerns and was unlikely to ever to return to the happy, healthy and fulfilling life he enjoyed before the attack.
40 The sentence imposed on the appellant is well within the customary range. See for example Wainwright v The State of Western Australia [2005] WASCA 250; Rolfe v The State of Western Australia [2012] WASCA 169; Bolton v The State of Western Australia [2012] WASCA 2; and Eriha v The State of Western Australia [2011] WASCA 167. The appellant's submissions focus on Kennedy v The State of Western Australia [2008] WASCA 185. The offender in that case had the benefit of relative youth and better antecedents. Further, comparison with an individual case provides no assistance in assessing whether a sentence is manifestly excessive.
41 The appellant places some stress on his mental health issues. There was, and could not be, any finding as to the precise nature and extent of his condition.
42 The sentencing principles on the subject of sentencing an offender with a mental illness are settled: see Smith v The State of Western Australia [2010] WASCA 176; Wheeler v The Queen [No 2] [2010]
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- WASCA 105; Krijestorac v The State of Western Australia [2010] WASCA 35; Thompson v The Queen [2005] WASCA 223. The appellant's history and antecedents underscore the need for personal deterrence.
43 The ground of appeal has no reasonable prospect of success. Leave to appeal against sentence must be refused and the sentence appeal dismissed.
44 NEWNES JA: I agree with McLure P.
45 MAZZA JA: I agree with McLure P.
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