WKS v The State of Western Australia
[2020] WASCA 37
•30 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WKS -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 37
CORAM: BUSS P
MITCHELL JA
HEARD: 25 AND 26 MARCH 2020
DELIVERED : 26 MARCH 2020
PUBLISHED : 30 MARCH 2020
FILE NO/S: CACR 103 of 2019
BETWEEN: WKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : BUNBURY IND 178 of 2015
Catchwords:
Practice and procedure - Application for review of a decision by a single judge of appeal refusing leave to issue a subpoena - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 42A(c), r 43(2)(h)
Supreme Court Act 1935, s 61
Result:
Review application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
House v The King (1935) 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
REASONS OF THE COURT:
Introduction
The appellant was convicted after trial of 17 counts of sexual offending against the complainant, who is his daughter, and 1 count of assaulting the complainant and causing her bodily harm. The appellant has appealed against his convictions, but has not yet filed an appellant's case.
By an application in an appeal dated 10 December 2019, the appellant sought leave to issue a subpoena to Auscript for:
Documents/records relating directly to all transcripts for main Pretext Call Provided by Auscript for call made on 25-03-2015 TIME 1607 - 1641 …
The reference in the application to a 'main Pretext call' was to the second of two telephone calls made by the complainant to the appellant on 25 March 2015, which were recorded by police. In the second of these calls, the appellant allegedly admitted sexual offending against the complainant. Discs of the recordings were played and tendered as exhibits at the appellant's trial. Transcripts of the recordings were prepared, but did not form part of the evidence at trial.
On 14 January 2020, Mazza JA dismissed the appellant's application for leave to issue a subpoena to Auscript. By an application dated 26 January 2020, the appellant seeks a review of that decision.
At the conclusion of the hearing of the review application, we ordered that the application be dismissed and said that we would publish written reasons for that decision at a later time. These are our reasons for dismissing the application.
Proceedings before Mazza JA
In the hearing before Mazza JA, the appellant asserted that a 'fabricated copy' of a recording of a 'pretext' telephone call to him was played at his first trial (which was aborted on its second day), and that a 'different fabricated copy' was played at his second trial (which was also aborted). He said that a recording was also tendered by the prosecution at his third trial (at which he was convicted).[1]
[1] Appeal ts 23 - 24.
When Mazza JA put to the appellant that the recording of the pretext call was the evidence, rather than the transcript, and that his Honour could not see the relevance of the transcript, the appellant responded:[2]
It will prove, your Honour, that the recording that was tendered for the third trial was fabricated due to Auscript transcribing the first three recordings of the one main pretext call. The – on the 1.2.2018 prosecution were given permission to replace the evidence tendered for the first trial for the second trial. … Both are completely differing in content. As I cannot get a copy of the original or previous fabricated recordings from DPP or anywhere else, the only alternative I have to prove will be go to Auscript and have the transcripts of the main call …
[2] Appeal ts 24.
Mazza JA indicated to the appellant that the court had a copy of the actual call and a transcript of the call on the primary court file. His Honour indicated that he was not prepared to allow the issue of a subpoena to Auscript in those circumstances, as it would be completely futile to do so.[3] In formally ruling on the application, Mazza JA said:[4]
So far as your application to Auscript is concerned dated 10 December 2019, it seems to me that that application is unnecessary and unhelpful. The evidence of the pretext call was tendered at the trial. There is a transcript of that call on the brief. I cannot see how a subpoena issued to Auscript will be of any assistance and, therefore, that application is dismissed.
[3] Appeal ts 25.
[4] Appeal ts 28.
Mazza JA also dealt with other matters which are not challenged by the appellant, including by making an order extending the time for the appellant to file and serve his appellant's case to 14 February 2020. It appears that an appellant's case has still not been filed, and the time for the appellant to do so has been further extended to 3 April 2020.
Review application
On 31 January 2020, the appellant filed an application for review of Mazza JA's decision. That application was supported by an affidavit sworn by the appellant, but the contents of that affidavit are difficult to follow.
Evidence of the pretext calls at trial
Contrary to the assertions of the appellant noted at [6] above, recordings of the pretext calls were not played at the appellant's first trial before it was aborted. The recordings were played and tendered as exhibits at the appellant's second trial. They were also played and tendered at a pre-recording of the complainant's evidence prior to his third trial.
The 'pretext calls' to which the application relates were described in the following terms by the prosecutor in opening at the appellant's third trial:[5]
But on the afternoon of 25 March 2015, a [police officer, David Beard] facilitated what are called pretext telephone calls, which were made by [the complainant] to her father. And the true purpose of those calls was to seek from the [appellant] an admission of sexual offending against [the complainant] and to record any such admission made by him.
The [appellant] was still at work when he received [the complainant's] first call on 25 March, and they scheduled a time for her to call back. Then she called back, and that second call goes for about 25 minutes.
In the course of that, ostensibly, private telephone conversation, [the complainant] put squarely to her father that he had sexually offended against her. And the State contends that in the course of that conversation, the [appellant] made admissions against interest of sexual misconduct to [the complainant].
[The complainant] put to her father that he had 'fingered' her and he replied 'Yes, I know, you don't have to tell me. I can't even imagine what you're going through'.
[5] Trial ts 860.
In his opening submissions the appellant, who was self-represented, said to the jury:[6]
The evidence was fabricated, the telephone main pretext call, telephone call, whereby the police have fabricated this evidence and cut and squashed my voice and left gaps within that telephone conversation.
[6] Trial ts 866.
Mr Beard, a former police officer, gave evidence at trial that the pretext calls were recorded using a handheld digital recording device, and the audio saved onto two discs before being deleted from the handheld device.[7] Discs containing the audio were played to the jury and became exhibits 6 and 7 at trial, being tendered through the pre-recorded evidence of the complainant, who said that the recordings accorded with her recollection of the conversations.[8] Another officer gave evidence that he had made several copies of the recordings to provide to the defence and the DPP and to retain on file.[9]
[7] Trial ts 878 - 880.
[8] Trial ts 656 - 659.
[9] Trial ts 946. See also 955 - 957 in cross-examination.
It should also be noted that the District Court file shows that transcripts of the pretext calls, prepared by Auscript, were incorporated into the prosecution brief on 11 April 2017 (at pages 92 - 108). This was before the appellant's first trial, which began on 1 May 2017 and was aborted on its second day, in part because the appellant wanted to pursue issues concerning the probity of the recording of the pretext calls.[10]
[10] Trial ts 139 - 140.
Submissions on review application
At the hearing of the review application, the appellant advised the court that the original recording of the pretext call had been destroyed. He said that he had read three transcripts of the call, and they were different. The first transcript had been provided to his original solicitor, the second transcript had been provided to his second solicitor, and he had received the last transcript. He contended that the original recording had a male voice other than his on it, and the recording played at trial was edited to make it sound as if he agreed to having committed a majority of the offences alleged. The appellant told this court that he had lost, and was unable to regain, access to the transcripts.
The appellant also made a number of allegations of corruption against police, the prosecutor and the District Court.
None of the above allegations were substantiated by sworn or affidavit evidence.
The court's review jurisdiction
Section 61(1) of the Supreme Court Act 1935 (WA) (Act) provides that, in relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of the Court of Appeal that are conferred on a single judge of appeal by rules of court.
Rule 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) gives a single judge of appeal power to make an interim order in the appeal. An interim order includes 'an order granting leave for any matter for which leave is required under rule 42A'.[11] Rule 42A(c) provides that the leave of a single judge is required for the issue of a subpoena that would require a person to give oral evidence or produce anything to the Court of Appeal. Therefore, in dealing with the application for leave to issue a subpoena to Auscript, Mazza JA was exercising powers conferred on a single judge of appeal by the Rules.
[11] Under par (ga) of the definition of 'interim order' in r 3(1) of the Rules.
Section 61(3) of the Act provides that a person who is dissatisfied with a decision or order made by a single judge of appeal may apply to the Court of Appeal to set aside or vary the decision or order. A review application is a rehearing, not a hearing de novo, and error on the part of the single judge of appeal must be shown.[12] As the decision to grant leave is a discretionary decision, it is necessary for the appellant to show error of the kind identified in House v The King.[13]
[12] Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21].
[13] House v The King (1935) 55 CLR 499, 504 - 505.
Disposition
We are not satisfied that any error has been shown in Mazza JA's decision to refuse to grant leave to issue a subpoena.
It appears that the issue of tampering with the recording of the second pretext call was a live issue at the appellant's trial. There does not appear to have been any evidence led at trial objectively indicating that there was any tampering with the recording. There was no evidence before Mazza JA which provided any objectively reasonable basis for apprehending that the recording of the second pretext call, which was tendered as an exhibit in the appellant's trial, may have been fabricated. Further, the recordings were exhibits at trial, and transcripts of the recordings were incorporated into the prosecution brief before the commencement of the appellant's first trial. Any change in the recording after the transcript was incorporated in the prosecution brief would be evident from a comparison of the transcript and exhibit. It was the recordings and not the transcript which constituted the evidence before the jury.
The material before Mazza JA did not indicate, and the material before us does not indicate, any reasonable prospect that a summons to Auscript would assist the appellant in demonstrating that the recording was fabricated. There is no evidence objectively indicating the existence of multiple versions of transcripts of the recorded pretext calls. There is no evidence, beyond the appellant's speculation and assertion, that Auscript produced or holds multiple versions of the transcript. In the circumstances, Mazza JA was correct to conclude that the issue of a subpoena would be futile. No error of principle is apparent from his Honour's reasons, and the result of the exercise of the discretion to refuse leave to issue the subpoena cannot be described as unreasonable or plainly unjust. To the contrary, in our view, his Honour's decision was correct.
For the above reasons, we dismissed the appellant's review application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell30 MARCH 2020
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