WKS v The State of Western Australia [No 4]
[2020] WASCA 178
•29 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WKS -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2020] WASCA 178
CORAM: BUSS P
BEECH JA
VAUGHAN JA
HEARD: 10 SEPTEMBER 2020
DELIVERED : 29 OCTOBER 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 : IND BUN 178 of 2015
Catchwords:
Criminal law and procedure - Appellant convicted after trial of 17 charges of sexual offending and one charge of aggravated assault against his daughter - Appellant self-represented at trial and on appeal - Whether appellant the victim of double jeopardy - Whether evidence fabricated by police - Whether prosecution commenced for a vindictive and malicious purpose - Whether proceedings should have been stayed as an abuse of process - Whether prosecution failed to disclose relevant materials - Whether judge erred by not permitting appellant to cross-examine complainant, or miscarriage of justice occasioned thereby - Whether judge erred by continually interrupting appellant's opening address, or miscarriage of justice occasioned thereby - Whether appellant's previous legal representatives failed in their duties towards him and engaged in misconduct - Whether judicial officers of the District Court, or the District Court as a whole, acted with actual or apprehended bias - Whether proceedings were unfair, vexatious and oppressive
Legislation:
Criminal Code (WA), s 17
Criminal Procedure Act 2004 (WA), s 145
Result:
Leave to appeal on each ground of appeal refused
Appeal 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):
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
De Alwis v The State of Western Australia [No 4] [2015] WASCA 43
House v The King [1936] HCA 40; (1936) 55 CLR 499
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Majinski v The State of Western Australia [2013] WASCA 10; (2013) 226 A Crim R 552
Michael v The State of Western Australia [2007] WASCA 100
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
MTI v SUL [No 2] [2012] WASCA 87
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
The State of Western Australia v ADR [2018] WADC 168
TABLE OF CONTENTS
Introduction
The State case
The evidence
Background matters
Counts 1 - 15
Counts 16 - 17
Count 18
Uncharged conduct
DS console
Trip to Geraldton
Propensity evidence
Admissions
Admission to C
The second pretext call
The defence case
The jury's deliberations and verdicts
Grounds of appeal
Procedural history
Arrest to first trial
First trial to second trial
Pre-recording of the complainant's evidence
Pre-trial hearings leading up to the third trial
Third trial
The appellant's applications in the appeal
Ground 1: double jeopardy and fabrication of pretext call
Double jeopardy
Fabrication of the second pretext call
Ground 2: prosecution for an improper purpose
The timing of the arrest
Complaints as to the first two trials
The alleged PRAVWS
Evidence given by the complainant prior to the first trial
The admissibility of the complainant's evidence given in the first trial
Ground 3: proceedings should have been stayed
The accusations were lies
The prosecution changed its case
Prosecution non-disclosure
Ground 4: fabrication of evidence
Inconsistencies in the evidence
Fabrication of C's 2006 statement
Troy DCJ's 'no merit' comment and removal from court
Tampering with Mr Beard's statement
Ground 5: doctoring of transcript and errors made in the third trial
Transcript doctored
Refusal to allow cross-examination of the complainant
Interruptions of the appellant's opening
Prosecution's reply in closing
Judge 'forced the issue' on count 18
Failing to adduce evidence of 2006 interviews
Ground 6: wrong decisions on procedural matters
Dismissal of applications for subpoenas
Failure to remit case to Supreme Court
'Upgrading' of charges
'Reinstatement' of Geraldton trip photograph
Ground 7: external consultation by judges
Ground 8: defence representatives failed in their duties to the appellant
Ground 9: actual and apprehended bias
Appellant's submissions
Bias on the part of Sleight CJDC
Bias on the part of Troy DCJ
Bias on the part of the court as a whole
Legal principles
Disposition
Bias on the part of Sleight CJDC
Bias on the part of Troy DCJ
Bias on the part of the court as a whole
Conclusion on ground 9
Ground 10: proceedings unfair, vexatious and oppressive
Other submissions
Conclusion
JUDGMENT OF THE COURT:
Introduction
The appellant appeals against his conviction after trial of 18 offences against his daughter (the complainant). There were 10 counts of indecent dealing with a child who is a lineal relative, seven counts of sexual penetration of a child who is a lineal relative and one count of aggravated assault occasioning bodily harm.
The appellant was self-represented at trial and is self-represented on appeal. Before the trial at which the appellant was convicted, two trials were commenced and aborted. Prior to and during the third trial, the appellant made a number of applications to various judges in the District Court, the majority of which were refused. Many of the appellant's complaints on appeal relate to aspects of the procedural history of the proceedings, rather than being directly concerned with the merits of the issues in dispute at the third trial.
The appellant did not give or adduce evidence in his defence. The essence of the defence case at trial was a denial of all the allegations. However, the focus of many of the appellant's submissions to the jury was on the conduct of the police, the prosecution and judges of the District Court in their dealings with the appellant. Among other things, he contended that the police had fabricated evidence, the charges against him had already been dealt with on a previous occasion, the prosecution had changed its case multiple times, the charges brought against him were malicious and vindictive, he was not given enough time to gather evidence in his defence, the judges who dealt with him were biased against him and the proceedings were an abuse of process.
On appeal, the appellant substantially repeats these contentions. He advances 10 grounds of appeal. In broad terms, he alleges that the primary proceedings were an abuse of process, he has been doubly punished for his offending against the complainant, evidence against him was fabricated, transcript has been doctored, the prosecution repeatedly changed its case, his lawyers failed in their duties to him, various judicial officers and the court as a whole acted with apprehended and actual bias against him and the judges who dealt with him made various errors of law.
For the reasons that follow, there is no merit in any of the grounds of appeal.
The State case
The State case was that the 18 offences occurred while the appellant was living at home with his wife (W) and three daughters (the complainant, C and H) between 2006 and 2010. Counts 1 - 15 were alleged to have occurred in the family home in Port Kennedy when the complainant was 13 to 14 years old. Counts 16 - 18 were alleged to have occurred when the complainant was 16 to 17 years old in the family home in Busselton, after the family had moved there.
The only witness to the events the subject of the sexual offence charges (counts 1 - 17) was the complainant, who gave direct evidence as to those counts. Both the complainant and W gave direct evidence of the aggravated assault (count 18).
The State also relied upon:
(1)propensity evidence of the appellant's prior convictions of indecently dealing with his eldest daughter, C;
(2)uncharged conduct of the appellant said to:
(a)provide context to the complainant's relationship with her father; and
(b)demonstrate the appellant's sexual interest in the complainant and his tendency to act on that sexual interest when the opportunity arose;
(3)admissions said to have been made by the appellant:
(a)to his wife, W;
(b)to his eldest daughter, C; and
(c)during a pretext call between him and the complainant; and
(4)evidence of the complainant's distress following one of the incidents, led to support the complainant's credibility.
The evidence
The State led evidence from five witnesses at the trial: the complainant, C, W and two police officers. As already noted, the appellant did not give or call any evidence.
The complainant gave pre-recorded evidence on 19 November 2018. The appellant was not present when the complainant gave her evidence‑in‑chief, having voluntarily removed himself from the proceedings that morning.[1] The following day the appellant declined to cross-examine the complainant, despite repeated invitations from the judge to do so.[2] Thus the evidence of the complainant was never challenged in cross-examination. The other witnesses, who gave evidence during the trial commencing on 22 January 2019, were cross‑examined by the appellant.
Background matters
[1] ts 607 - 609.
[2] See ts 668 - 680.
The complainant was born on 18 September 1992 to W and the appellant. She has two sisters: C, who is two years older than her; and H, who is two years younger than her. We will refer to the appellant, W, C, H and the complainant together as 'the family'.
From the early 2000s, the family lived in a house in Port Kennedy. Counts 1 - 15 were all alleged to have occurred in that house in 2006.
In late 2006 or early 2007, the family moved to a house in Warnbro.[3] This occurred before the appellant was sentenced on 19 February 2007 for his offending against C.[4] The appellant did not move with the family to the Warnbro house because of a program he was doing consequent upon his offending against C.[5]
[3] ts 1045 - 1046.
[4] ts 939, 1046.
[5] ts 1047 - 1048, 1057 - 1058.
In late 2008 or early 2009, the family moved down to Busselton.[6] The appellant returned to the family unit in Busselton. C only lived with the family in Busselton for a short time before moving elsewhere.[7] Counts 16 - 18 were alleged to have occurred in the Busselton house between 2008 and 2010.
Counts 1 - 15
[6] ts 1049, 1058.
[7] ts 977 - 978.
With the exception of C's evidence of the complainant's distress, outlined in [26] below, all of the direct evidence relating to counts 1 ‑ 15 was given by the complainant.
In 2006 the family were living at the Port Kennedy house. The complainant was 13 to 14 years old at the time. At that time, the appellant was a train driver who often worked night shifts.[8] Asked about her relationship with her father at that time, the complainant described him as verbally, emotionally and physically abusive, and said she was scared of him.[9]
[8] ts 615 - 616.
[9] ts 617.
The complainant's normal routine before school was to get ready, kiss her father goodbye and then walk to school. Her father would be in bed, having finished his night shift, when the girls were getting ready to go to school. They would individually go into his bedroom to give him a kiss goodbye. Her mum asked the complainant to do this and it then became a routine.[10] The complainant's evidence was that the incidents the subject of counts 1 - 10 occurred when the complainant went to give the appellant a kiss goodbye in the morning.
[10] ts 618 - 619.
On the first occasion, on an unknown date in 2006, the complainant went in and the appellant asked her to shut the door. She was not wearing a bra - she did not wear one for most of that year. He asked her to lie down on the bed, so she lay down with her legs hanging off the bed. He then reached over to hug her but, while doing so, squeezed her breast over the top of her school top for a few seconds (count 1). In response, the complainant said 'no' and left the room. She felt disgusted and shocked.[11]
[11] ts 619 - 620.
The day after the first occasion, the complainant went in and the appellant asked her to shut the door again. She went in despite what had happened the previous day because she was scared of the appellant and because she knew he was going through a lot of stress at work and did not want to cause him more stress. He asked her to lie down and she again lay down with her legs hanging off the bed. He reached over and hugged her, but this time put his hand under her school top and squeezed her breast, skin on skin, for a few seconds (count 2). In response, the complainant flicked his arm out and said 'no'.[12]
[12] ts 620 - 622.
On the next occasion, sometime later in 2006, the complainant went in and the appellant asked her to shut the door. By this time, the complainant was wearing a bra. On that morning, she was also wearing a skirt with bike shorts underneath and underwear underneath that. The appellant asked her to lie down properly on the bed, so she did. He leant over and put his arm underneath her top and bra and squeezed her breast (count 3). He then put his hand underneath her skirt and bike shorts and rubbed her vagina over the top of her underwear (count 4). She moved his arm away. She remembered him saying, 'I love you too much'. She felt sickened.[13]
[13] ts 622.
On the next occasion, sometime later in 2006, the complainant went in and the appellant asked her to shut the door. The complainant was wearing shorts and a top. She lay down on the bed at his direction. He proceeded to put his hand up her top and squeeze her breast. He also lifted up her top and bra and kissed and sucked her breasts (count 6). He then put his hand underneath her shorts and rubbed her vagina over the top of her underwear (count 5). At some point during this incident, the appellant kissed her on the lips with tongue as well. The complainant thought this incident went for a long time, maybe around 10 minutes.[14]
[14] ts 622 - 624.
On the next occasion, in the spring or summertime of 2006, the complainant went in and the appellant was under a thin white sheet. At his direction, she shut the door and lay down on the bed. She could not remember what she was wearing on her lower body that day. The appellant put his hand down either her pants or her skirt and penetrated her vagina with one finger. He moved his finger in 'a rotating sort of up and down motion' for a few seconds (count 10).[15]
[15] ts 624 - 625.
Either the next day or a couple of days later, the complainant again went into the appellant's bedroom. She said that she did so because his behaviour was getting worse, she was getting more scared of him and she did not want to cause him any more stress. The appellant was again under a thin white sheet. At his direction, she shut the door and lay down on the bed. He reached over and put his hand up her shirt and under her bra and squeezed her breast (count 7). He then put his hand down under her underwear and penetrated her vagina with two fingers for a minute or so (count 8). She felt disgusted and shocked and flicked his arm away. As she did this, he grabbed her hand and made her squeeze his erect penis over the top of the sheet (count 9).[16]
[16] ts 625 - 627.
The incident the subject of counts 11 and 12 occurred on an unknown date in 2006 when the complainant was unable to attend school due to illness. She was alone in the house with her father. Her father yelled out to her to come into his bedroom and lie down on the bed. He put his hand down her pyjama pants and penetrated her vagina with two fingers (count 12). He then got up and she realised he was naked. He walked around to the bottom of the bed, grabbed her legs and pulled her down the bed. He then pulled her pants down, knelt down and licked her vagina while penetrating it with two fingers. The cunnilingus was charged as count 11; the digital penetration was not charged. The complainant felt like this went on for a long time. She then kicked the appellant in the shoulder and pulled her pants up. He went in front of her and blocked the doorway naked but she was able to get out.[17]
[17] ts 627 - 629.
The incident the subject of counts 13 - 15, charged as having occurred on an unknown date between 15 October and 15 December 2006, took place in the evening when the whole family was home. The mother was cooking dinner in the kitchen and the other girls were watching television in the soundproof front room. The complainant was asked to go into the master bedroom, which she did. The bedroom lights were off so the room was dimly lit. The appellant was on the bed covered by a sheet. He asked her to lie down on the bed under the sheet. He put his hand on top of her pyjama top and squeezed her breast (count 13). He then put his hand underneath her pyjama pants and penetrated her vagina with two fingers (count 14). After pulling down her pants, he rubbed his penis against her vagina, skin on skin (count 15). She left the bedroom in tears and went to her bedroom.[18]
[18] ts 637 - 638.
C gave evidence about what the State contended was the same incident. She said that, one evening in late 2006:[19]
[W]e were both - I think we were on the lounge and my mum asked me first but I made an excuse not to go in there and then mum asked [the complainant] to go in there, and I was too scared to stop [the complainant] from going in there. Then [the complainant] went in and shut the door and then I was just watching the door the whole time until she came out … And then when she came out she came out crying and ran - well, walked into her room.
Counts 16 - 17
[19] ts 976 - 977.
Count 16 was charged as having occurred in Busselton between 30 September 2008 and 1 January 2010. The judge observed in summing up that this would have been after the separation that followed the appellant's convictions of the offences against C.[20]
[20] ts 1141.
The complainant gave evidence that there was an occasion on which her father visited her bedroom in Busselton at night. Her mum was in bed, her younger sister was in bed and she was in bed. She was lying under the blankets with the light off and her father walked in to give her a kiss goodnight. She said this was unusual - 'we don't normally do that'. The appellant put his hand underneath the blanket and underneath her pyjama bottoms and penetrated her vagina with two fingers (count 16). The complainant said she was trying to be very quiet because she did not want her sister to hear anything.[21]
[21] ts 645 - 646.
Count 17 was charged as having occurred on a date unknown in 2009. The complainant gave evidence that she was home from school with an ear infection. It was daytime and it was just her and her father in the house, her mother being at work. She went to get a cotton bud for her ears from the ensuite bathroom adjoining her parents' bedroom. At this time, the appellant was lying in bed under the blankets. She walked out of the bathroom and as soon as she walked out she saw her father standing in front of her naked. He hugged her, put his hands down her pants and penetrated her vagina with two fingers (count 17). She pushed him away and said something - she could not remember what - and he said not to tell mum. She walked to the doorway but he went over to the doorway and blocked the door. She pushed past him, ran over to her bedroom, grabbed some belongings, put them into a bag and ran out of the house.[22]
[22] ts 647, 651 - 652.
W gave evidence which the State relied upon as an admission by the appellant. She described an occasion when she was asked to go down to reception at work. The appellant was standing out at the front of the carpark and she was shocked as to why he was attending her work. She said she went over to him and the following exchange took place:[23]
[H]e said, 'I've done something terrible.' And I said, 'What - what have you done?' And he says, 'It's [the complainant]. I didn't mean to. I touched her.' And I said, 'What do you mean you've touched her? What have you done?' And he said, 'I touched her down there.' And I said, 'What do you mean you've touched her down there? Do you mean you've touched her on the skin down there?' And he said, 'Yes, I did. But I didn't rape her.'
In cross-examination, she repeated the exchange that she said took place, but added a further detail in that she said at the end the appellant said, 'Yes, I did. But I did stop myself. I didn't rape her'.[24] She denied that this was a false statement, saying that she absolutely remembered the exchange.[25]
[23] ts 1051.
[24] ts 1076.
[25] ts 1076.
W said that after the exchange the appellant told her that the complainant ran away and that they needed to find her. She said, 'I couldn't drive, I kept shaking, so [the appellant] drove when we went to try and find where she was'.[26]
[26] ts 1051.
The complainant and W both gave evidence of what then occurred. The complainant said that, about an hour after she ran out of the house, she saw her mum and dad approach in the car. They pulled over and W asked the complainant to get into the car. The complainant said, 'No, I'm not going into the car with him in the car'. So W told the appellant to get out of the car and he did. The complainant got in and her mum drove her home.[27]
[27] ts 652, 1051 - 1052.
On the complainant's account, the appellant was told to leave the house because of the incident the subject of count 17. He left the house for a few weeks, maybe a month, but then his accommodation fell through so W allowed him to return home and sleep in the shed. It was while he was sleeping in the shed that he committed the assault the subject of count 18.[28]
[28] ts 653.
On W's account, the appellant left the house for three months following the assault the subject of count 18. He then returned when W agreed to let him live temporarily in the shed after he had called saying that he had no money, nowhere to go and needed some help. A matter of weeks later, the incident the subject of count 17 occurred and the appellant left the house for good.[29]
[29] ts 1052 - 1053, 1055 - 1056.
In summing up the judge drew to the jury's attention that they may well consider there to be a difference between the evidence of the complainant and W as to whether count 17 was the last incident that occurred or the second-last.[30]
Count 18
[30] ts 1141.
Count 18 was charged as having occurred on 17 July 2010.
The complainant gave evidence that, towards the evening one time, she and her younger sister were in their bedrooms and she could hear her mum and dad arguing. She said her dad was shouting at her mum. At the time, she would have been around 16 or 17 years old and her older sister was living at the house. She walked down the hallway and saw her mum and dad leaning up against the wall. Both of her father's hands were around her mother's neck. Her mother was looking quite purple in the face. It sounded like she was gasping. The complainant quickly went over and grabbed his arm. She tried to prise his arm off her but he flicked her away with his left arm and then punched her with his right fist. He punched her in the head and she fell backwards into a wall. Her head hit the wall and 'I believe I passed out for I don't know how long and then I came through and I was quite dazed and my vision was blurry'. The State case was that this constituted the bodily harm. She said the police were called and they came to the house. Her father had already left.[31]
[31] ts 653 - 656.
On the evidence, the only time that the police were called to the house was 17 July 2010. A police incident report dated 17 July 2010 was tendered in evidence as exhibit 10. That incident report, upon which the appellant placed some emphasis at trial, contains the following under the heading 'Narrative':
NO OFFENCE DETECTED
1.No offence detected.
2.2nd FDV incident involving these parties couple.
3.Three children present. Two residing at this address
…
Victim Risk Assessment
Consequence ȃ€" 1: General Incident
Likelihood ȃ€" 1: Rare
Risk Level ȃ€" 1: Low
ITI [W] and [the appellant] are seperated but [the appellant] still lives at the family address in the shed. He has come into the house to collect some belonngings as he is leaving for Cairns on Monday. An arguement has ensued between [W] and [the appellant] and he refused to leave the address when requested by [W]. [W] has caled the Police and [the appellant] has left the address and departed prior to Police attendance.
Detective Travers explained that the incident report was an initial report to document that the police attended on 17 July 2010 and spoke to the involved parties. At that time, according to the officers that attended, there was insufficient disclosure made to them, which explained why they wrote 'No offence detected'. It was then reinvestigated as part of the broader matter involving the alleged sexual offending, and, upon review after that investigation, he considered that there was sufficient evidence to prosecute.[32]
[32] ts 964 - 965.
W confirmed that the police were only called once.[33] She described that incident as follows:[34]
This was in the evening … [The appellant] and I had an argument and [the appellant] grabbed me by the throat and started choking me. And [the complainant] was present at the time, and [the complainant] came over to help. When she went to grab hold of [the appellant's] - one of [the appellant's] hands, [the appellant] let go, but then he just grabbed his - well, he had his fist and he just hit her. And then she just went in a heap and just bang into the wall and down in a heap on the floor.
[33] ts 1053; see also 1065.
[34] ts 1054; see also 1064.
W said that the appellant only grabbed her by the throat once at the Busselton house, but '[a]t the [Port Kennedy house], there was others'.[35] She explained that she did not make a full report when the police arrived, '[b]ecause I knew that [the appellant] had already been in trouble with the police. And he had already told me that he didn't want to go to prison. He didn't want to have anything to do with the police. And I knew that me calling the police, he would leave'.[36]
[35] ts 1055.
[36] ts 1055.
The appellant relied at trial upon differences between the accounts given by W and C.
C gave evidence in cross-examination that there was a time when she was down on the ground after being badly beaten by the appellant. She said:[37]
I was down on the ground, couldn't move. I couldn't move my body. Blacked out at times. And so I just remember that mum tried to pull you off me. And then you pushed her to the wall and grabbed her -choked - started choking her. Then [the complainant] stepped in and then, I think, you smacked her across the face, and she fell down. That's that time that I remember.
[37] ts 983; see also 993 - 998.
C's evidence was that this incident occurred in the Port Kennedy house in 2006.[38] She said the police were not called on that occasion.[39] The appellant put to her that her evidence was that he only hit the complainant once. She responded:[40]
To be honest, I can't remember. I remember that one time pretty well. But the other times - I - I know that the abuse was - the physical abuse was more at me than anybody else. But they only got hit when they got in the way. That's all I remember.
[38] ts 983.
[39] ts 1028.
[40] ts 983; see also 1001.
In cross-examination, W gave the following evidence:[41]
[41] ts 1063 - 1065.
ACCUSED: Do you remember myself every being violent to [the complainant] in 2006?---In 2006? No. You were very abusive, verbally. Very abusive.
Do you remember me kicking her, smacking her, kicking her against the ground, throwing her into a wall, anything like that in 2006/2005 or even before?---I do recall there was - there was an incident when you had hit [the complainant], but I don't - I cannot remember exactly the time. But I do remember that you did hit [the complainant], yes.
Yes, I - [the complainant] and [C], as usual, having arguments and [the complainant] was called out that she was lying to try and get [C] into trouble so she got clipped round the ear. That's the only time I can remember ever hitting [the complainant], so would you say that would be about right?---No.
…
So you were saying that I wasn't physically violent towards [the complainant] in 2006. Would that be correct?---I cannot remember you being physically violent in 2006.
…
Do you remember the accused throwing people - throwing the children into the wall at any stage?---Yes.
And when was that?---At [the Busselton house].
…
Throwing people into - - -?---Well, when you - when you used your fist and hit [the complainant] and she just slammed straight into the wall and then went down.
And why did I do that? … ---Because [the complainant] was trying to come to my aid and [the appellant] had both hands choking me round my neck. And [the complainant] had grabbed one of his hands. And when she did that, he used that hand with a fist to hit her, causing her to go slam straight into the wall, then fall to the floor.
And that was at [the Busselton house]?---Yes.
And who was in the house at the time?---It was [H], myself and [the complainant].
And where was [C]?---[C] didn't live at that address. She lived … a few streets away.
So she wasn't around?---No.
…
Now, has an incident like that happened before in [the Port Kennedy house], whereby I've grabbed you, [strangling] you up against the wall? [The complainant's] come in, tried to take my arm away and I've punched her into a wall?---Not at [the Port Kennedy house], no.
Are you sure?---As far as I can remember.
Okay. Now, the police called to that incident. Has the police ever been called before?---No.
That incident has never happened before, in that exact - [the complainant] coming in and grabbing my arm, me punching her against the wall. That's never happened before?---No, not like - not like that, no.
In closing, the appellant relied upon the inconsistencies between C's account and W's account to undermine their credibility. He also relied upon them to allege police corruption and fabrication.[42]
Uncharged conduct
[42] See ts 1113.
The complainant, C and W also gave evidence of conduct that was not the subject of a charge but was led as context evidence and in order to demonstrate the appellant's sexual interest in the complainant and his tendency to act on that sexual interest when the opportunity arose.
DS console
The complainant said she and her younger sister, H, each had a DS console, which they used for playing games and sending drawings to one another. On one occasion, the appellant took H's console and started sending the complainant pictures of penises while they were both sitting on the couch in the back room. The complainant was shocked and sent a picture of a flower back in order to change the subject, but the appellant continued to send penises. This made the complainant feel very disgusted.[43] The complainant could not remember whether this incident occurred in the Port Kennedy house or the house they moved to in Warnbro.[44]
[43] ts 639 - 641.
[44] ts 641.
C gave evidence of a time that she saw the appellant and the complainant using DS consoles at the same time. They were sitting in the lounge room at the Port Kennedy house. C was watching them through the French doors. She said, 'I was watching [the complainant] and I was watching dad. Dad laughing and joking and just on his DS. They were both in the same lounge room. And [the complainant] just on her DS, she was just like she was starting to get really upset and then she just closed her DS and just walked off'.[45] In cross-examination, C said she thought the appellant and the complainant were sitting on different bean bags in the room.[46]
Trip to Geraldton
[45] ts 975.
[46] ts 981.
The complainant, C and W all gave evidence of a family trip to Geraldton and Kalbarri. Their evidence was to the effect that the trip took place in 2006. The appellant's position, as revealed by his cross-examination of C and W and his closing, was that the trip took place in 2008. As will be seen, his view that the trip took place in 2008 is a basis upon which he alleges police corruption and fabrication.
The complainant's evidence was that the family went on a holiday to Geraldton and Kalbarri while they were living at the Port Kennedy house. She thought the holiday went for a couple of weeks. She said her mum or younger sister was taking a photo of her, her father and C on top of a gorge. She said, 'it probably looked to other people that he was just hugging me with his hand next to me but he did reach up and squeeze my breast and then he moved his hand down for the photo'.[47]
[47] ts 642.
The photo, which was tendered at trial as exhibit 3, depicts the father in the middle with his right arm around the complainant and his left arm around C. His right hand is slightly below the complainant's breast.
C gave evidence in cross-examination that she 'remember[ed] definitely going to Geraldton'. The judge said that it was put to her that it was in 2008 and asked whether she knew what year it was, to which she responded, 'I thought it was sooner than that, but I can't remember'.[48] Later in cross-examination, the following exchange took place:[49]
Okay. Have you had any more thought on the exact, roughly the exact, month, that we moved to Geraldton? That we had a trip to Geraldton in 2006?---No, sorry.
Still just between your birthday and this interview that you can remember?---I can't remember.
TROY DCJ: Do you remember what year it was?---All I remember, it was about when I was 16 because it's when I - after Geraldton that me and [the complainant] spoke.
ACCUSED: Okay. So you - so you were 16, or after you were 16?---About - I was 16. About 16.
You were 16?---I think I was 16.
So you (indistinct) 2006?---Yeah, think so.
As noted by the judge in his summing up, C turned 16 in 2006.
[48] ts 989.
[49] ts 1029.
In evidence-in-chief, W said that the family went to Geraldton just after selling the Port Kennedy house, which was in 2006. She said the sale had gone through but not the settlement, so they were still living at the Port Kennedy house. She thought the holiday lasted less than a week. She remembered taking two photographs. She realised after taking the first photograph that the appellant 'had his hand right underneath [C's] breast'. She asked him if he could lower it and then took another picture, which is exhibit 3. She said that as soon as the family returned from their trip - the day they got back - 'the DCP and the police came to our house and arrested [the appellant]'.[50]
[50] ts 1042 - 1045.
In cross-examination, it was put to W that the Geraldton trip took place in 2008. W maintained that '[w]e went to the Geraldton trip after the house was sold. And the house was sold in 2006'.[51] W later agreed that she had said that the Geraldton trip was before the appellant's arrest in 2006.[52] Later again, W agreed that she was still adamant that her Geraldton trip was in 2006.[53] W said that C informed her of the appellant's sexual offences against the complainant and herself before his arrest in late 2006 and before the Geraldton trip.[54]
Propensity evidence
[51] ts 1058 - 1059.
[52] ts 1062.
[53] ts 1066.
[54] ts 1068.
On 19 February 2007, the appellant was convicted, on his pleas of guilty, of three offences, committed in September 2006, of indecently dealing with his lineal relative, C, who was 16 years old at the time the offences occurred. The investigating officer, Detective Senior Constable Travers, read into evidence the facts founding the basis of those convictions, which were taken from the transcript of the sentencing hearing in 2007:[55]
On an evening between 10 and 22 September 2006, the victim was at home in bed when the offender called out to her asking her to come into his bedroom. At the time the victim's mother was attending to a younger sister. The victim attended the offender's bedroom.
Once the victim was inside his bedroom, the offender told her to close the door and leave the light off. He told the victim to get under the covers and into the bed with him. He started to cuddle the victim and placed his right-hand under the victim's pyjama top and onto her breast.
The victim pushed his hand away from her breast and he pushed his hand back and again placed his right-hand on her breast. The victim again pushed his hand away and turned away from the offender. He held the victim again, placing his hand on her breast for the third … time. The victim pushed him away again and struggled to break his grip.
She ran from the bedroom crying.
[55] ts 941.
The State invited the jury to accept the previous convictions as establishing a propensity on the part of the appellant to indecently touch his daughters.[56] The judge directed the jury that it was open to them to find beyond reasonable doubt from the prior conviction evidence that the appellant had an interest of a sexual nature in his teenage daughters and a tendency to act on that sexual interest when the opportunity arose.[57]
[56] ts 855.
[57] ts 1155.
The complainant gave evidence that she did not make an official complaint about her father's conduct towards her when C did because 'I was scared to speak out. I was ashamed that anything happened to me and I - I didn't want to split the family up'.[58]
Admissions
[58] ts 644.
The State relied upon admissions said to have been made by the appellant on three separate occasions. It relied upon:
(1) W's evidence of her conversation with the appellant outside her work immediately following the incident the subject of count 17 (see [30] above);
(2) C's evidence of a telephone call between her and the appellant in 2013 or 2014; and
(3) a pretext call made by the complainant to the appellant on 25 March 2015.
Admission to C
C gave evidence that she was in 'quite frequent' telephone contact with her father following his split from the family. When she was about 23 or 24 years old (which the judge observed would be in 2013 or 2014), she was having a conversation with the appellant and then the subject changed to the complainant. 'He said he did worse sexual things to [the complainant]. I - more sexual - worse things to [the complainant] than he did to me and laughed'. C said that was the last time she spoke to the appellant.[59]
[59] ts 978 - 979.
This evidence was not challenged or referred to in cross-examination. Following submissions from the prosecutor, during the course of the appellant's cross-examination of C, the judge specifically drew to the appellant's attention that if his case was that C's evidence as to this conversation was not true he needed to put that to C to give her the opportunity to respond.[60]
The second pretext call
[60] ts 1005.
The complainant gave evidence that she made an official complaint about her father at the Busselton Police Station in early 2015. The officers who became involved in the case were Detective Travers and Detective Beard.[61] Mr Beard (who had left the police force by the time he gave evidence) gave evidence that he and Detective Travers investigated the file and then had a conversation with the complainant 'in regards to her evidence and what we could do'. He said the complainant agreed to do a pretext call, which is where a complainant makes contact with the person against whom allegations have been made and tries to get some admissions or something to assist with the investigation. He said a device is used to record the conversation between the parties.[62]
[61] ts 656.
[62] ts 878.
The complainant said she made three pretext calls, all on 25 March 2015. In the first call the phone rang out. In the second call she spoke to the appellant but only briefly and they organised to call back later. The third call was longer and contained the statements the State relied upon as admissions.[63] Each call was played to the jury and tendered in evidence. The first and second calls (as described by the complainant) became exhibit 6. The third call became exhibit 7. It is convenient to describe the brief conversation in exhibit 6 as 'the first pretext call' and the longer conversation in exhibit 7 as 'the second pretext call', which is how they were referred to at trial.
[63] ts 657.
It is the appellant's position that he has heard multiple different copies of the second pretext call, all of which have been doctored to greater or lesser degrees. That was a primary concern of his at the trial and, as will be seen, remains so on appeal.
As tendered at trial, the second pretext call contains the following exchange, to which the prosecutor drew specific attention in opening:[64]
[64] ts 860. C denotes the complainant and A the appellant.
CBut, but what, because you did sexual things to me. You - - -
AYeah, I know.
CYou - - -
AI know, I know, I know. It's hard, hard to explain. And it, I think that's probably why it's taken me - - -
CBecause, because you kissed me on the lips and you fingered me - - -
AYes, I know.
CAnd, and, you fingered me and, and things like that.
AYeah, I know. I, you don't have to tell me. I, I know. I know, [complainant's name], and it's, I can only im-, I can't even imagine what you're going through.
When the complainant put to him that he went down on her and licked her, the appellant said that he did not remember that. Otherwise, much of the second pretext call involves the appellant attempting to explain why he did the things that he did, without explicitly saying what those things were.
The defence case
The appellant did not give or call any evidence. His case was a denial of all the allegations.
The submissions he made in closing may be summarised as follows:
(1)He received a prosecution notice in 2006 with the names of both the complainant and C on it.[65] His reasonable belief is that everything was dealt with back then[66] - he even told this to police upon his arrest in 2015.[67]
[65] ts 1108, 1116.
[66] ts 1110, 1117.
[67] ts 1117.
(2)There are multiple copies of the second pretext call.[68] They have been doctored - he never admitted to the accusations against him.[69]
[68] ts 1109, 1110.
[69] ts 1110.
(3)The prosecution has changed its case multiple times, which is an abuse of process.[70]
[70] ts 1109, 1118.
(4)He has not had enough time to get information to contradict the materials he received from the prosecution on 16 January 2019 -but he could have got that information given more time.[71]
(5)The photographs tendered in evidence are completely irrelevant and prove nothing.[72]
(6)The witnesses all have a bad memory.[73]
(7)There are inconsistencies in the witnesses' evidence as to the timing of the trip to Geraldton,[74] the timing of the assault,[75] the circumstances of the DS console evidence[76] and the day the appellant got arrested in 2006.[77]
(8)C's 2006 statement proves that the prosecution and police have fabricated evidence. It was impossible to know, on 23 November 2006, of a Geraldton trip that happened in 2007/2008 or an assault incident that happened in 2009/2010.[78]
(9)The prosecution against him is malicious and vindictive.[79] It happened only after he said he was coming back to Perth and the complainant failed to obtain a violence restraining order against him.[80]
(10)The complainant has anger issues.[81] She was not scared to come forward - she came forward back in 2006 but for some reason the prosecution did not press charges.[82]
(11)The number of charges against him has increased over time -'what started off as three charges when I first found out … went to eight, went to 10, went to 15, went to 18'.[83] Not only that, but the charges have been upgraded.[84]
(12)The accusations against him are lies.[85]
(13)The prosecution has blown this case, and that is why it has taken three trials to get to where it is now.[86]
[71] ts 1109, 1119.
[72] ts 1109, 1118.
[73] ts 1111, 1118, 1119.
[74] ts 1111, 1115.
[75] ts 1113.
[76] ts 1115.
[77] ts 1115.
[78] ts 1111 - 1115, 1118, 1119.
[79] ts 1116.
[80] ts 1116 - 1117, 1119.
[81] ts 1116, 1117, 1119.
[82] ts 1116, 1117.
[83] ts 1118.
[84] ts 1118.
[85] ts 1118, 1119.
[86] ts 1119.
As will be seen, many of the appellant's complaints on appeal reflect matters he put to the jury in closing address.
The jury's deliberations and verdicts
The jury retired to consider their verdicts at 1.30 pm on 29 January 2019.[87]
[87] ts 1160.
After receiving an answer to a question about certain evidence related to the 2007 convictions,[88] they returned to deliver verdicts of guilty on counts 1 - 17 at 4.34 pm on the same day.[89] They indicated that they were unable to reach a unanimous verdict as to the charge of assault at that time.
[88] ts 1170 - 1175.
[89] ts 1177.
The following day, the jury asked the judge to read aloud all of the evidence‑in‑chief of the complainant, C and W relevant to count 18.[90] The judge did so.[91] At 11.12 am, the jury informed the judge that they were still unable to reach a unanimous verdict.[92] Thus, the judge gave the jury a majority direction. At 11.39 am, the jury returned to deliver their verdict of guilty, by majority, on count 18.[93]
[90] MFI C.
[91] ts 1187 - 1196.
[92] MFI D.
[93] ts 1199.
Grounds of appeal
As already noted, the appellant is self-represented. His 10 grounds have in common the assertion of a miscarriage of justice. Each of his 10 grounds contains multiple particulars.
The application for leave to appeal on these 10 grounds was referred to the hearing of the appeal.[94] Also referred to the hearing of the appeal was an application seeking leave to rely upon a further 33 pages of submissions and an application seeking leave to rely upon 84 pages of documents described as 'Index of Evidence'.[95] After the hearing, in the circumstances referred to at [130] below, the appellant filed a further two documents (44 pages and 12 pages respectively) which were in the nature of additional (but largely repetitive of earlier) submissions in support of the appellant's appeal.
[94] Order of Mazza JA, 22 May 2020, WAB 4.
[95] Orders of Buss P and Mazza JA, 19 May 2020, WAB 5.
The grounds, and the submissions in support of them, overlap substantially. When dealing with a given topic, we have considered all of the appellant's submissions relevant to that topic, regardless of whether they are raised under that specific ground or not.
The grounds may be broadly summarised as follows:
(1)Ground 1 encompasses the appellant's complaint of double jeopardy and his complaint that the second pretext call was fabricated by police.
(2)Ground 2 deals with a number of matters in support of the appellant's contention that the proceedings against him constitute a 'false prosecution commencing for vindictive and malicious intent'.
(3)Ground 3 contends that the proceedings should have been stayed as an abuse of process prior to the third trial.
(4)Ground 4 complains of fabricated evidence, inconsistencies in the evidence and a comment made by the judge on the second day of trial.
(5)Ground 5 encompasses the appellant's complaint as to doctored transcript and various errors of law said to have been made by the trial judge, including not permitting him to cross‑examine the complainant and continually interrupting his opening address.
(6)Ground 6 complains that various judges erred in law in relation to a number of procedural matters.
(7)Ground 7 complains that various judges consulted with, and received materials from, the prosecution and other lawyers externally of the proceedings, without the appellant's knowledge.
(8)Ground 8 contends that the appellant's previous lawyers failed in their duties towards him and engaged in misconduct.
(9)Ground 9 contends that certain judicial officers of the District Court, and the District Court as a whole, acted with actual and apprehended bias against him.
(10)Ground 10 contends that the proceedings were 'unfair, vexatious and oppressive'.
The grounds, and the appellant's submissions in support of them, can properly be understood only against the background of the procedural history of the proceedings. Consequently, we turn to outlining that history.
Procedural history
Arrest to first trial
On 19 February 2015, the complainant made her first statement to the police. Mr Beard, who at the time was a detective, was the investigating officer. He and Detective Travers investigated the matter.[96] When Detective Sergeant Beard resigned from the police force in mid-2015, Detective Travers became the investigating officer.[97]
[96] ts 878.
[97] ts 939.
On 25 March 2015, the complainant conducted the pretext calls. The complainant said she was pretty sure the appellant was in Darwin at the time.[98]
[98] ts 658.
On 17 August 2015, the appellant was arrested at Perth Airport upon his return to Perth.[99] As will be seen, the appellant asserts that the timing of his arrest reveals the vindictive nature of the proceedings against him. Detective Travers' evidence was that there were 10 charges against the appellant at the time of his arrest.[100]
[99] ts 943 - 944.
[100] ts 945.
The appellant's first appearance was in the Busselton Magistrates Court on 1 September 2015. Bail was revoked on the appellant's application and he has been in custody since that time. He was committed for trial to the District Court on 22 December 2015.
On 1 June 2016, at the request of the DPP, Detective Travers took a further statement from the complainant. As a result of that statement, the police laid three additional charges against the appellant.[101]
[101] ts 947.
At all times during 2016 the appellant was legally represented by practitioners acting on a grant of Legal Aid. He was represented by Mr Michael Laurino until 3 August 2016 and then, having terminated the services of Mr Laurino, by Mr Graeme Allen.
On 15 September 2016, the indictment was filed. The indictment contained 18 charges. One of the appellant's complaints relates to how the number of charges increased between the time of his arrest and the time the indictment was filed.
On 2 November 2016, the matter was set down for trial commencing 1 May 2017.[102] The State's applications for the complainant to be declared a special witness and for it to lead propensity evidence were listed for directions on 20 January 2017.
[102] ts 18.
On 20 January 2017, Herron DCJ ordered that the complainant be declared a special witness under s 106R of the Evidence Act 1906 (WA).[103] Counsel for the appellant indicated that he did not oppose the application.[104] The State's propensity application was adjourned to 16 February 2017.[105]
[103] ts 23.
[104] ts 23.
[105] ts 23
On 13 February 2017, Bowden DCJ, by consent, granted leave for the State to lead evidence of the appellant's 2007 convictions and relationship evidence of his uncharged conduct.[106]
[106] ts 28.
On 1 May 2017, the appellant's first trial commenced before Braddock DCJ. Mr Allen appeared for the appellant.
On the first day, the complainant gave evidence, completing most of her evidence‑in‑chief. At the start of the second day, the appellant terminated Mr Allen's services. The appellant indicated to the judge that he did not want Mr Allen to continue to act as his counsel.[107] The appellant handed up a document which evidently alleged that Mr Allen, together with Mr Laurino, had joined with the police and the DPP in doctoring the recording of the second pretext call.[108] Mr Allen was granted leave to withdraw as defence counsel.[109] After some discussion (which forms the subject of some of the appellant's complaints on appeal - see ground 2 below), the trial was aborted.[110] In the course of that discussion the appellant explained his allegation that the recording of the second pretext call had been doctored by the superimposing of the complainant's voice onto what had truly been recorded.[111] He described the doctoring as part of a larger fabrication by witnesses and the police.[112]
First trial to second trial
[107] ts 111.
[108] ts 112 - 113.
[109] ts 113.
[110] ts 139 - 140.
[111] ts 120 - 122, 136.
[112] ts 130.
There followed a brief appearance before Braddock DCJ on 12 June 2017 at which the appellant represented himself. During this hearing he asserted that the transcript of the second day of the trial had parts that were missing.[113] The matter was adjourned to a trial listing hearing on 28 July 2017.
[113] ts 150.
On 14 July 2017, the grant of Legal Aid was transferred to Mr Thomas Percy QC. The appellant was represented at the following four appearances before the District Court. On 4 August 2017, the court ordered that the parties be given access to a copy of the visual recording of the complainant's evidence given at the first trial.[114] On 1 September 2017, with the agreement of the defence, Sleight CJDC listed the matter for a retrial commencing 19 March 2018.[115]
[114] ts 158.
[115] ts 165.
On 16 November 2017, Mr Percy was granted leave to withdraw as defence counsel. He informed the court that the grant of Legal Aid had been transferred to Mr John O'Connor.[116] The appellant refused to be represented by Mr O'Connor. The judge informed the appellant that the withdrawal of his counsel would not affect the commencement of the trial listed to commence on 19 March 2018.[117] After Mr Percy was granted leave to withdraw as defence counsel, the appellant again complained that he had not been given a 'word for word' transcript of the second day of the first trial.[118]
[116] ts 169.
[117] ts 169.
[118] ts 172 - 174.
On 30 November 2017, the matter came back before Sleight CJDC. The appellant represented himself. He informed the court that he had received the State brief, which had been posted to him on 20 November.[119] One of the appellant's contentions on appeal is that he was not given sufficient time to prepare his defence. In the course of the directions hearing the appellant asserted that the allegations against him were vindictive and malicious and that he was only charged because those making the accusations knew he was returning to Perth.[120] The appellant asked the court to order that Legal Aid transfer funding from Mr O'Connor to Mr Seamus Rafferty. The judge pointed out that the court could not direct Legal Aid and that the appellant must apply to Legal Aid either himself or through Mr Rafferty.[121]
[119] ts 178.
[120] ts 178.
[121] ts 181.
On 14 December 2017, the matter came before Stavrianou DCJ. On that occasion, Timpano Legal, who were instructing Mr Percy, sought and, without objection from the appellant, were given leave to withdraw.[122] That was the last occasion on which the appellant was represented. As of that date, according to information provided to the District Court by the Legal Aid Commission, Legal Aid for the appellant had been terminated.[123] The appellant asserted that he was unable to get access to a legal library so that he would not be ready for the trial in March, requesting that it be adjourned.[124] The court adjourned that oral application to 15 January 2018, informing the appellant that the application would need to be supported by an affidavit.[125]
[122] ts 187.
[123] ts 595.
[124] ts 187.
[125] ts 188.
There were then several appearances before Sleight CJDC, from 15 January to 20 August 2018. The appellant made a number of applications in that time. They included two applications for the proceedings to be permanently stayed as an abuse of process.[126] The appellant's grounds for a permanent stay were, in broad summary, that the second pretext call was fabricated, the proceedings constituted a retrial of issues dealt with in 2007, the proceedings were 'vindictive and malicious with no genuine attempt', Mr Laurino falsified a letter in order to deceive him and Mr Allen destroyed a copy of the second pretext call.[127] The appellant also applied to issue witness summonses against numerous people,[128] applied to adjourn the trial on account of inadequate disclosure[129] and, on four separate occasions, applied to have Sleight CJDC removed from dealing with the case on account of bias.[130] All of these applications were refused. We will say more about these applications in the course of dealing with grounds 6 and 9 below.
[126] ts 239, 279.
[127] ts 240, 279 - 283.
[128] ts 239.
[129] ts 255.
[130] ts 250 - 251, 268 - 271, 26 - 27 (19 July 2018), 297 - 298.
On 1 February 2018, Sleight CJDC refused the State's application that the complainant's evidence given at the first trial be presented at the retrial in the form of a visual recording.[131]
[131] ts 242 - 244.
Also on 1 February 2018, Sleight CJDC vacated the trial listed to commence on 19 March 2018 so as to obtain for the appellant a psychiatric report. This was done at his Honour's own initiative. He stated that it 'ought to be obtained so that the court can satisfy itself that [the appellant] is fit to stand trial and conduct his own defence'.[132]
[132] ts 244.
The appellant subsequently refused to be examined by a psychiatrist.[133] One of the appellant's complaints on appeal is that the judge's questioning of his mental health constituted defamation of him and demonstrated bias against him.
[133] ts 251.
On 24 May 2018, Sleight CJDC set down the matter for trial commencing on 9 October 2018.[134] The appellant opposed the trial being listed on 9 October 2018, asserting that there would not be enough time for the defence to obtain full disclosure from the prosecution.[135]
[134] ts 259.
[135] ts 259.
On 12 June 2018, at a further directions hearing, the appellant asserted that the disc he had received of the audio recording of the second day of the first trial was incorrect - it had been 'doctored and spliced'.[136] He asserted that the transcript had 'been doctored by the court itself'.[137] Sleight CJDC rejected those assertions.[138]
[136] ts 267.
[137] ts 267.
[138] ts 268.
On 20 August 2018, the appellant said he needed the trial to be adjourned, perhaps for three months. The court observed that the appellant would need to make an application, supported by an affidavit.[139]
[139] ts 298.
On 10 September 2018, the matter came before Troy DCJ for the first time. The matter was adjourned to 13 September because the court had not received some materials that the appellant had sent by registered post.
On 13 September 2018, the appellant renewed his applications for a permanent stay of the proceedings, an adjournment of the trial and for witness summonses against various people, all of which his Honour refused.[140] His Honour also refused the appellant's application to remit the matter to the Supreme Court on account of bias.[141] In his reasons for refusing these applications, the judge said:[142]
[I]n the absence of any new compelling evidence, I do not intend to take up any more court time by considering applications to adjourn the trial, or have the prosecution stayed as an [abuse of] process, or for the issuing of witness summons. Any such applications are likely to be peremptorily rejected.
[140] ts 325 - 335.
[141] ts 334.
[142] ts 335.
After giving his ruling, the judge drew to the parties' attention s 106G of the Evidence Act, which provides relevantly:
106G.Cross-examination of protected witness by unrepresented accused
(1) Where in any proceeding for an offence an accused who is not represented by counsel wishes to cross-examine a protected witness, the accused -
(a) is not entitled to do so directly; but
(b) may put any question to the protected witness by stating the question to the judge or a person approved by the court,
and that person is to repeat the question accurately to the protected witness.
The judge observed that the effect of this section was that the appellant was not permitted to ask questions of the complainant directly and any questions he wished to ask would have to be asked via an intermediary.[143]
[143] ts 338.
On 8 October 2018, the State applied to amend the indictment by adding the words 'with his penis' to count 15, which would thus read 'by touching her vagina with his penis'.[144] The judge granted that application over objection.[145] One of the appellant's complaints on appeal is that this constituted an upgrading of the seriousness of the charge.
[144] ts 356.
[145] ts 357.
Also on that date, the appellant renewed his application to remit the matter to the Supreme Court on account of bias, which his Honour summarily refused, observing that the issue had already been dealt with.[146]
[146] ts 359.
At this hearing, the State indicated that it would not call the witnesses requested by the appellant, namely Braddock DCJ and Mr Allen.[147] The appellant also complained that the prosecution had not produced the complainant's pre-recorded audiovisual witness statement, which he explained to be pre‑recorded evidence given by the complainant prior to the first trial.[148] On appeal, the appellant calls this the 'PRAVWS' (or 'Pre‑Recorded-Audio-Visual-Witness-Statement'), which forms the basis of one of his primary complaints (see ground 3 below).
[147] ts 361.
[148] ts 364 - 365.
The second trial commenced on 9 October 2018. The complainant completed her evidence-in-chief. She was also asked some questions in cross-examination, on behalf of the appellant, by an independent person, acting under s 106G of the Evidence Act.
On the morning of the third day of trial, before cross-examination of the complainant was complete, the judge received a communication indicating that, prior to the jury selection process, the usher had told the jury panel that the appellant was self-represented and 'isn't a nice character'. The judge said that he had confirmed with the usher that the report was accurate and that the usher had told the panel not to take much notice of the appellant and that he was rude and disrespectful.[149] As a result of the usher's inappropriate comments, the judge discharged the jury.[150] The judge personally apologised to the jury, to the appellant and to the complainant for the usher's conduct.[151]
[149] ts 548.
[150] ts 552 - 553.
[151] See ts 550 - 551, 552 - 553, 554 - 555.
Following the aborting of the second trial, Troy DCJ adjourned the matter to a trial listing hearing on 26 October 2018. The appellant indicated his intention to obtain the services of a lawyer.[152]
Pre-recording of the complainant's evidence
[152] ts 557.
On 26 October 2018, Gething DCJ made an order declaring the complainant to be a special witness and directing that her evidence be taken by way of a pre-recording (commencing 19 November 2018). His Honour also listed the trial for hearing commencing on 21 January 2019. The appellant indicated that he was in the process of trying to find a lawyer.[153] He made oral applications to adjourn the pre‑recording and adjourn the trial. The appellant also raised issues related to (i) the admissibility of previous evidence given by the complainant - referring to the pre-recorded audiovisual witness statement taken from the complainant prior to the first trial - and (ii) bias and prejudice on the part of the District Court. Those applications and issues were adjourned to a hearing before Troy DCJ.
[153] ts 560.
On 14 November 2018, the matter came before Troy DCJ for a directions hearing. The appellant made an application to adjourn the pre-recording, citing his lack of legal representation and a failure of disclosure by the prosecution. The failure of disclosure was said to be related to the pre‑recorded audiovisual witness statement given by the complainant prior to the first trial.[154]
[154] ts 572 - 575, 591 - 592.
The following day, the judge dismissed the appellant's application to adjourn the pre-recording. His Honour outlined the history in considerable detail, concluding that he was 'quite satisfied' that this was not a case where the appellant was unable to obtain legal representation through no fault of his own - rather, for a considerable period of time the appellant had chosen to represent himself. His Honour was also satisfied that there had been no failure of disclosure.[155]
[155] ts 599.
The judge foreshadowed that, if by the time of the trial the appellant was legally represented, he would hear and give sympathetic consideration to any application for the complainant to be recalled to be cross‑examined by the legal representative.[156]
[156] ts 600.
On 19 November 2018, the complainant gave evidence by way of pre‑recording. As had occurred at the second trial, the court had organised for an independent person to appear on behalf of the appellant to ask the appellant's questions in cross‑examination of the complainant. However, prior to the start of the complainant's evidence, in response to a question from the bench, the appellant indicated that he did not want the person to ask questions on his behalf.[157] Shortly thereafter, he removed himself from the courtroom after repeatedly saying 'these proceedings are illegal under the law' and then swearing at the judge.[158] The judge said that he would have exercised his power under s 140 of the Criminal Procedure Act 2004 (WA) to exclude the appellant in any event.[159] After the appellant's removal, the complainant gave her evidence-in-chief.
[157] ts 607.
[158] ts 607 - 609.
[159] ts 612.
The following day, the judge asked the appellant whether he wanted to have someone ask questions of the complainant on his behalf. In response, the appellant raised issues of doctored transcript, bias on the part of the judge, concealed evidence and various other matters. The judge repeated his question eight times.[160] On each occasion, the appellant raised other matters. Ultimately, the judge stated, 'the position, therefore, is that no questions will be asked on your behalf of this witness'.[161] The appellant then removed himself from the courtroom, with the judge commenting that he would have removed the appellant on account of his behaviour in any event.[162] After the appellant's removal, the judge indicated that he would not finally discharge the complainant, because she may be required for cross-examination on 21 January 2019 if, and only if, the appellant became legally represented.[163]
Pre-trial hearings leading up to the third trial
[160] ts 674, 674, 675, 675, 677, 677, 678, 678.
[161] ts 679.
[162] ts 679.
[163] ts 681, 686.
On 26 November 2018, Troy DCJ heard submissions on the State's application to limit the content of the appellant's opening to certain matters, having regard to what the appellant had said in opening during the second trial. On 7 December 2018, his Honour delivered written reasons for his ruling on this application, which was to the effect that the appellant would be prohibited from repeating certain statements he had made during his opening in the second trial.[164]
[164] The State of Western Australia v ADR [2018] WADC 168.
On 20 December 2018, the matter came before Troy DCJ for a further directions hearing. The appellant made an application for his Honour to recuse himself on the basis of actual and apprehended bias, which his Honour refused, giving lengthy reasons for doing so.[165] His Honour also dealt with various other procedural matters raised by the appellant, and made an order to the effect that if no application to recall the complainant for cross‑examination was made by a legal representative of the appellant before 18 January 2019, the complainant would be finally discharged.[166]
[165] ts 714 - 735.
[166] ts 741.
On 16 January 2019, the matter came before Quail DCJ for directions to deal with applications made by the appellant by letter. In response to an application by the appellant to cross‑examine the complainant, the judge stated that he was not in a position to overrule the order made by Troy DCJ on 20 December 2018 and that he would make no orders concerning the recalling of the complainant for further cross‑examination.[167] His Honour also said that the matters the appellant raised (again) in relation to bias and admissibility were matters that should be raised before Troy DCJ rather than him.[168]
[167] ts 782.
[168] ts 755, 757, 781.
On that date, the appellant also applied to adjourn the trial, based on an asserted non‑disclosure of documents related to his 2007 convictions concerning C, as well as issues with having little access to the prison's legal library and not having enough time to prepare his case. The judge dismissed this application, finding that the prosecution had complied with its disclosure requirements and that the appellant had had more than a year and a half to prepare for the trial.[169] Nevertheless, the judge took what he described as a 'practical measure' to order that the prosecution serve a further copy of the requested documents on the appellant later that afternoon, despite finding that the prosecution had provided a copy some years earlier.[170] One of the appellant's complaints on appeal is that full disclosure was not made until 16 January 2019, leaving him not enough time to prepare for the trial.
[169] ts 787 - 789.
[170] ts 789.
On 21 January 2019, the day before the third trial commenced, the matter came before Troy DCJ to deal with issues raised by the State. The appellant again applied for his Honour to recuse himself, this time on the basis that he had presided over the second trial. The judge refused his application.[171] His Honour also dealt with various other procedural matters. The appellant enquired of the judge as to whether the complainant would be attending court, to which the judge said that she would not. The judge confirmed, in response to a query from the appellant, that the appellant could not cross-examine the complainant because his opportunity to do so was on 19 and 20 November 2018 and he did not do so.[172]
Third trial
[171] ts 805.
[172] ts 830 - 831.
On 22 January 2019, the third trial commenced. The trial was completed on 30 January 2019, after the jury returned verdicts of guilty on all counts.
It is from the judgments of conviction entered following those verdicts that the appellant appeals.
The appellant's applications in the appeal
On 14 April 2020, the appellant applied for leave to (i) file a further 33 pages of submissions;[173] and (ii) rely on 84 pages of documents as evidence in the appeal.[174]
[173] WAB 6 - 40. The submissions are contained in an affidavit sworn by the appellant on 14 April 2020 (the appellant's further submissions affidavit).
[174] WAB 41 - 138.
Both applications were referred to the hearing of the appeal.[175]
[175] Orders of Buss P and Mazza JA, 19 May 2020, WAB 5.
The submissions the subject of the first of these applications largely repeat or elaborate the submissions and grounds filed as the appellant's case.
In support of the second application, the appellant has sworn another affidavit of 14 April 2020 (the appellant's index of evidence affidavit). In that affidavit he says that the documents the subject of the application were not tendered at trial because they were only disclosed to him after the court's order of 16 January 2019, so that he had insufficient time to prepare to use them in his defence.[176] The appellant has provided an index that connects each document to the ground of appeal to which it is said to relate.[177]
[176] Appellant's index of evidence affidavit [1], [5], WAB 42.
[177] WAB 44 - 51.
We have considered the contents of these documents in evaluating the merits of the grounds of appeal. While ultimately we conclude that the grounds as supplemented and explained by these documents are without merit, we would grant leave in relation to each of the appellant's further submissions affidavit and the appellant's index of evidence affidavit to reflect that we have considered them.
At the hearing of the appeal, it became apparent in the course of oral submissions that the appellant was reading from a 44‑page document.[178] The court gave leave for the appellant to file that document,[179] which he subsequently did (the appellant's oral submissions document). He also sent a further 12-page document to the court which he described as 'reference to laws and cases'. Although the court had not granted leave for the appellant to file that document, the court accepted the document for filing. We have taken both of these documents into account in evaluating the merits of the grounds of appeal. Again, we would grant leave to file the second document to reflect that we have considered it.
[178] Appeal ts 174.
[179] Order of Buss P, Beech and Vaughan JJA, 10 September 2020.
That brings us to the appellant's grounds, which we will deal with in turn.
Ground 1: double jeopardy and fabrication of pretext call
Ground 1 encompasses two complaints. First, the appellant contends that he has been punished twice for the same offending. Secondly, he contends that the second pretext call, upon which the State relied as containing admissions, was fabricated by the police.
Double jeopardy
The appellant contends that he has been the victim of double jeopardy. He contends that the present offences were dealt with in 2007 when he was convicted of the three indecent dealing offences against C, so that the present proceedings have had the effect of punishing him twice for the same conduct. This complaint is founded upon his belief that he received a prosecution notice in 2006 with the names of both C and the complainant on it.[180]
[180] Appellant's particulars 1.1, 1.3, 1.4; appellant's submissions [1] - [3], [6], [14], appeal ts 144.
In written submissions, the appellant asserts that he received four prosecution notices in one week in 2006. The fourth notice he received contained the names of both C and the complainant.[181] Neither at trial nor on appeal has he sought to adduce that prosecution notice in evidence. However, he points to two matters which he says reveals the existence of that notice.
[181] Appellant's submissions [2].
First, the appellant asserts that a letter dated 7 December 2006 sent by his then-lawyers, which he received as part of the bundle of documents 'disclosed' on 16 January 2019, reveals its existence. That letter, which he has sought to adduce in evidence on the appeal,[182] states: 'I act for [the appellant] in relation to police charges involving his daughters, [C] and [H]'. Despite it referring to H (the youngest daughter), the appellant asserts that the letter mistakenly refers to H when it meant to refer to the complainant.[183]
[182] WAB 55.
[183] Appellant's particular 1.2; appellant's submissions [1].
Secondly, the appellant refers to the following evidence given by Mr Beard during cross‑examination:[184]
Are you aware that I had a prosecution notice with the both names of [C] and [the complainant] on?---Yes, I was, yes.
In 2006?---You were charged, you brought it up, your prosecution notice was for [C] and that's what you're charged with, for [C]. Nothing was charged - you were never charged for anything against [the complainant] in that time.
…
Now, in your research can you tell me how many prosecution notices were sent to myself in 2006?---I'm sorry, that was over three years ago. I don't - without some documentation in front of me I can't recall exactly numbers, no.
But there is more than one?---Again without - without seeing the documentation I can't say yes or no, but I do recall seeing some notices, hence how we identified who you were within the family. (emphasis added)
[184] Appeal ts 144, referring to ts 891 - 892.
The appellant also points to previous occasions on which he has asserted his belief that the charges concerning the complainant were dealt with in 2007. He says he stated it to the complainant during calls with her, including the second pretext call, when the subject of the 2006 charges came up. He says he also informed the police of it when he was arrested at the airport in 2015.[185]
[185] Appellant's submissions [3], [6].
In submissions made in relation to other grounds, the appellant asserts that the police and prosecution 'purposely withheld evidence of what [the appellant] has stated in regards to honest belief and prosecution notice received in 2006. It is undeniable evidence of vindictive and malicious prosecution, an improper purpose'.[186]
[186] Appellant's particular 2.2; appellant's submissions [8].
The appellant's complaint that he had already been dealt with for his offending against the complainant was one of his primary complaints at trial. In his summing up to the jury, the judge observed, correctly, that there was no evidence that a prosecution notice with the names of both the complainant and C ever existed.[187] In fact, the prosecution notice refers only to C. On 12 June 2018, the prosecutor handed up a copy of the 2006 prosecution notice and indicated that he would send a copy to the prison for the appellant.[188] That prosecution notice, dated 23 November 2006, refers only to C. Nowhere does it refer to the complainant.[189]
[187] ts 1127.
[188] ts 275.
[189] Prosecution notice dated 23 November 2006.
In substance, that is the end of the matter - there was no prosecution in 2006 or 2007 relating to the complainant. The appellant attempts to build a case of double jeopardy based on snippets of secondary evidence. Such evidence provides an inadequate foundation for a claim of double jeopardy.
In any event, contrary to the appellant's submission, the two matters he raises in support do not indicate the existence of a notice in 2006 containing the complainant's name. In relation to the letter dated 7 December 2006, it cannot reasonably be inferred from the sentence 'I act for [the appellant] in relation to police charges involving his daughters, [C] and [H]' that there was a prosecution notice bearing the name of the complainant, who is not even mentioned in the letter. As to Mr Beard's evidence, the appellant selectively highlights the italicised portions in the passage extracted at [136] above. However, this ignores Mr Beard's more detailed evidence that 'your prosecution notice was for [C] and that's what you're charged with, for [C]. Nothing was charged - you were never charged for anything against [the complainant] in that time'.
As we have said, the secondary evidence of the letter and Mr Beard as to the prosecution notice cannot controvert the primary evidence of the prosecution notice itself, which refers only to C.
In oral submissions, the appellant went so far as to submit that '[t]he law is prosecution not to bring case against accused that could have been dealt with on some previous occasion'.[190] That is not correct. In Western Australia, the law of double jeopardy is governed by s 17 of the Criminal Code (WA). That section relevantly provides that it is a defence to a charge of any offence to show that the accused has already been tried and convicted or acquitted either (i) upon an indictment or prosecution notice on which he might have been convicted of the offence or (ii) of an offence of which he might now be convicted. In this case, none of the 2007 convictions involved the complainant, so it was not possible for the appellant to (i) have been convicted of the present offences in 2007 or (ii) be convicted on the present indictment of an offence of which he was convicted in 2007.
[190] Appeal ts 165 (emphasis added).
The appellant's complaint of double jeopardy is without substance. The appellant's belief that the counts the subject of the indictment had already been dealt with, however genuine and however strongly held, is not evidence that this was so. There is nothing beyond the appellant's assertion to suggest, much less to establish, that any of them had previously been the subject of conviction.
Fabrication of the second pretext call
The appellant asserts that the police fabricated the recording of the second pretext call. He says sentences in the call were rearranged and pauses deleted.[191]
[191] Appellant's submissions [4] - [5]. See also appellant's particulars 2.3, 4.4; appeal ts 146 - 147.
The appellant elaborates upon his complaint in submissions relating to other grounds. He says that he has heard multiple copies of the second pretext call, each of them different and each of them fabricated. The first copy was received by his lawyer, Mr Laurino. The second copy was requested and received by his lawyer, Mr Allen. The copy played at trial was different again.[192] The appellant contends that the refusal to allow him to adduce evidence of the first two copies was an abuse of process.[193]
[192] Appellant's submissions [20] - [22], [25]; appellant's further submissions affidavit [38] - [48], WAB 14 - 15; appeal ts 149.
[193] Appellant's particular 6.1; appellant's submissions [15] - [16], [37].
The appellant contends that Sleight CJDC's bias and prejudice was 'rife' throughout the proceedings.[405] He says that his Honour's attitude towards him was one of contempt.[406] He says that his Honour's bias progressed to the point where he was refusing all of the appellant's applications 'without reasons or laws referenced' and 'descend[ing] into the arena multiple times on behalf of the prosecution'.[407] Further, his Honour called him delusional and a 'mental case' in open court, which constituted defamation.[408] He contends that his Honour failed to abide by laws and the rules of court, made rulings based on pre‑written findings, misused laws in order to deceive him, failed to give reasons for his decisions and failed to answer the appellant's questions.[409] His Honour even admitted that he had been consulting with the prosecution and the appellant's former lawyers 'externally of proceedings' and that he had 'viewed unknown materials left by the prosecution'.[410] He says that Sleight CJDC was ultimately removed from the case following the appellant's complaint to the Privy Council.[411]
Bias on the part of Troy DCJ
[405] Appellant's submissions [52].
[406] Appellant's submissions [49].
[407] Appellant's submissions [49] - [50]. See also appellant's particulars 9.1, 10.2; appellant's submissions [55], [116], [119].
[408] Appellant's particular 9.1; appellant's submissions [51], [117]; appellant's oral submissions document [114].
[409] Appellant's particulars 5.4, 9.1; appellant's submissions [118]; appellant's further submissions affidavit [67], [139], WAB 17, 28; appeal ts 178, 179; appellant's oral submissions document [104] - [105].
[410] Appellant's submissions [52]. See also appellant's particular 7.2; appellant's submissions [56].
[411] Appellant's particular 5.4; appellant's submissions [52].
The appellant contends that the conduct and decisions of Troy DCJ manifested bias. He says that his Honour failed to remain impartial;[412] misused laws in order to deceive him;[413] interrupted the appellant's opening and closing on multiple occasions;[414] made comments in the absence of the jury that were 'very vindictive in regards to sentencing';[415] failed to remove the case to another court;[416] dismissed applications 'without reference to laws or reasons explained';[417] held the appellant in contempt of court after new fabricated evidence was revealed;[418] had an external pre-existing relationship with the jury 'spokesperson' from the second trial;[419] and erred by failing to remove himself after the prosecution and Detective Travers were caught conspiring in a private room just prior to Detective Travers taking the stand.[420] The appellant also contends that Troy DCJ, having presided over the second aborted trial, should not have presided over the third trial.[421]
Bias on the part of the court as a whole
[412] Appellant's submissions [137].
[413] Appellant's particular 9.2; appellant's submissions [120].
[414] Appellant's particular 9.3; appellant's submissions [123].
[415] Appellant's particular 9.3; appellant's submissions [125]; appeal ts 180; appellant's oral submissions document [111].
[416] Appellant's particular 9.2; appellant's submissions [121].
[417] Appellant's particular 10.2; appellant's submissions [116].
[418] Appellant's submissions [124].
[419] Appellant's submissions [126].
[420] Appellant's submissions [121].
[421] Appellant's further submissions affidavit [201], WAB 36; appeal ts 174.
The appellant's submissions as to bias on the part of the District Court as a whole revolve around the manner in which the second trial was aborted.[422] He contends that the usher attempted to 'pervert the course of justice through bias/prejudicial influence of whole jury' against him. He contends that the usher should have been arrested or had some action taken against him for attempting to pervert the course of justice.[423] He says that the same usher was present in the third trial.[424] He also contends that a jury member in the third trial showed clear prejudgment and bias against him.[425]
Legal principles
[422] See appellant's particular 6.3; appellant's submissions [53] - [54], [121] - [122], [133]; appeal ts 173.
[423] Appellant's submissions [121] - [122]; appellant's oral submissions document [124] - [126].
[424] Appellant's submissions [122].
[425] Appellant's submissions [127].
The legal principles relevant to a ground of appeal asserting apprehension of bias on the part of the trial judge in a trial by jury were comprehensively outlined by Steytler P, with whom McLure JA and Miller AJA agreed, in Michael v The State of Western Australia.[426] For present purposes, the principles include the following.
[426] Michael v The State of Western Australia [2007] WASCA 100.
The test of apprehended bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.[427] In a jury trial, that test is applied in the framework where the judge is not the tribunal of fact, but must make decisions on questions of law and as to the fair conduct of the proceedings.[428]
[427] Michael [56]; see also De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [67].
[428] Michael [56]; De Alwis [69].
The test is objective. The observer is taken to be reasonable and to understand that the judge is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[429]
[429] Michael [59].
Application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[430]
[430] Michael [60]; De Alwis [68].
In evaluating whether the test has been met, the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the trial as a whole.[431]
[431] Michael [61]; De Alwis [70].
In a jury trial, there is a distinction between comments or interventions by the trial judge in the presence of the jury and comments or interventions in their absence.[432]
[432] Michael [78]; De Alwis [72].
It will often be necessary, particularly with self‑represented litigants, for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions.[433] If the conduct of the trial judge unduly hampers the accused person in the presentation of his or her defence, this may well give rise to a miscarriage of justice.[434]
[433] Michael [65]; De Alwis [71].
[434] Michael [76].
The conduct of a trial judge must be evaluated in the light of any provocation offered to him or her by an accused's conduct.[435] While the court recognises the disadvantage at which a self-represented person is ordinarily placed, lack of representation does not give an accused person a licence to be as provocative as they choose, especially when this is done with the motive of delaying the proceedings, aborting the trial or hoping to distract or gain the sympathy of the jury.[436]
[435] Michael [79].
[436] Michael [84] - [85].
Insofar as the appellant asserts actual bias, the principles were outlined by Gleeson JA (Emmett and Tobias JJA agreeing) in Reid v Commercial Club (Albury) Ltd[437] and may be summarised as follows.
(1) A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required.
(2) If there is an allegation of prejudgment, the party making that claim must establish that the judge is 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
(3) There are distinct elements underlying an assertion of prejudgment: that the judge (i) has an opinion on a relevant aspect of the matter in issue in the particular case; (ii) will apply that opinion to the matter in issue; and (iii) will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
(4) The test requires an assessment of the state of mind of the judge in question, although it is not confined to an intentional state of mind. Bias may be subconscious.
Disposition
Bias on the part of Sleight CJDC
[437] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] - [74].
Sleight CJDC had no involvement in the proceedings after August 2018, which is five months before the trial at which the appellant was convicted. In those circumstances, even if the appellant demonstrated that there was substance in his complaint of actual or apparent bias on the part of Sleight CJDC, there would have remained a question as to whether any miscarriage of justice thereby arose. However, that question does not arise, because, as explained below, the appellant has fallen well short of demonstrating actual or apparent bias on the part of Sleight CJDC.
The appellant's contentions as to bias on the part of Sleight CJDC are summarised in [330] above. In summary, those contentions must be rejected because they are mere assertion, not borne out by the record, and misconceived.
The appellant asserts that his Honour refused all the appellant's applications 'without reasons or laws referenced'. That assertion is without foundation. The record reveals that the Chief Judge gave careful reasons, by reference to relevant statutory provisions and legal principles, on numerous occasions in dealing with applications made by the appellant.[438] The appellant made five applications for the Chief Judge to disqualify himself. On some occasions, the judge dismissed the application summarily on the basis that he had already ruled and no new matter had been raised. His Honour was right to proceed in that manner.
[438] See, for example, ts 236 - 242, 270 - 271, 283 - 286.
Even if the appellant were correct in asserting that his Honour ruled against the appellant in all of his rulings, that, without more, would not demonstrate bias. Merely because a court has decided matters against a party and that party feels aggrieved does not provide a basis for a claim of actual or reasonable apprehension of bias.[439] On our review of the record, we discern no error in any of the Chief Judge's rulings. Even if established, the making of error, including appellable error, does not demonstrate prejudgment.[440] Further and in any event, as already noted, the judge ruled in favour of the appellant in rejecting the State's application for the complainant's evidence of 1 May 2017 to be presented at the retrial in the form of a visual recording.[441]
[439] MTI v SUL [No 2] [2012] WASCA 87[14]; De Alwis v The State of Western Australia [No 4] [2015] WASCA 43 [8].
[440] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67].
[441] ts 242 - 244.
The appellant asserts that Sleight CJDC called him delusional and a mental case, indicating the judge's bias. The appellant misstates what occurred. The judge invoked the court's power under s 11(2) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) to raise the issue of the fitness of an accused person to stand trial. The judge noted that the appellant had a history of severe depression and observed that his behaviour in relation to the case involved what the judge called 'conspiracy theories of corruption'.[442] The ever‑increasing web of people who, the appellant asserted, were involved in the doctoring of the recording of the second pretext call and the transcript included witnesses, police officers, two of the appellant's former solicitors and a judge (Braddock DCJ). In our view, the judge's approach in seeking a report as to the appellant's mental capacity was, in all the circumstances, justified.
[442] ts 244.
The appellant's complaint that Sleight CJDC was biased because he made rulings based on pre‑written findings is based on a misconception of appropriate judicial practice. Neither procedural fairness nor good practice requires a judge to begin a hearing without having prepared notes reflecting the judge's preliminary thoughts as to the application. Judges routinely prepare notes in relation to interlocutory applications, refine and supplement those notes in the course of listening to argument and, immediately thereafter, deliver oral reasons. This is far from an indication of prejudgment and is often conducive to a just and efficient disposition of matters before the court.
The appellant complains of Sleight CJDC's failure to answer his questions as an indication of the judge's bias.[443] That complaint misapprehends the role of a trial judge in a criminal trial. It is not incumbent on a judge to answer questions posed by a self-represented litigant.
[443] Appellant's submissions [118].
The appellant makes repeated reference to Sleight CJDC having been removed from the case following the appellant's complaint to the Privy Council.[444] To state the obvious, the Chief Judge was not 'removed' from the case. His Honour, the person in charge of allocation of matters in the District Court, evidently transferred management of the case to Troy DCJ. The appellant's belief that the Chief Judge was removed following the appellant's complaint to the Privy Council is an indication of the appellant's tendency to adopt a view of events that is not grounded in reality.
Bias on the part of Troy DCJ
[444] Appellant's particulars 5.4, 9.1; appellant's submissions [52], [120].
The appellant's complaint that Troy DCJ misused provisions of the Evidence Act, including s 106K, s 106N and s 106T,[445] is founded on the appellant's misconception of those provisions and of the effect of the ruling by Sleight CJDC to which we have already referred.[446] There is no basis whatsoever for his assertion[447] that his Honour sought to 'divert away' from s 106RA of the Evidence Act.
[445] Appellant's submissions [118].
[446] See [185] - [187] above.
[447] Appeal ts 180; appellant's oral submissions document [119].
We have already dealt with the appellant's complaints as to the judge's interruption of his opening and that the judge failed to have the case remitted to the Supreme Court. The appellant's submission that the judge's interruptions made the defence 'look pathetic' and caused the jury to be prejudiced against him[448] is without foundation. Contrary to the appellant's assertion,[449] the judge did not interrupt the appellant's closing address. Insofar as the appellant complains about the judge's interruptions of his opening address, as already explained those interruptions were necessary and appropriate.
[448] Appellant's further submissions affidavit [74], [208], [218], WAB 18, 37, 38; appellant's oral submissions document [109].
[449] Appellant's further submissions affidavit [216], WAB 38; appellant's oral submissions document [108].
The appellant's complaint that Troy DCJ made 'vindictive' comments after the verdicts were given has no substance. Following the verdicts, the judge observed that '[p]lainly the only sentence that is open to me is a substantial period of immediate imprisonment',[450] 'it will be necessary for there to be some information before me as to which community he's likely to be released into and in particular, what his citizenship status is in terms of whether he's a permanent resident or a citizen of this country'[451] and '[m]y recollection of the legislation is that I'm obliged to make [a lifetime restraining] order'.[452] These observations were well‑justified in light of the appellant's convictions of the offences.
[450] ts 1203.
[451] ts 1204.
[452] ts 1207.
Contrary to the appellant's assertion, Troy DCJ did not dismiss applications 'without reference to laws or reasons explained'.[453] To the contrary, Troy DCJ gave careful and comprehensive reasons for his decisions.[454]
[453] Appellant's submissions [116].
[454] See, for example, ts 402 - 404, 549 - 551, 593 - 600, 714 - 735, 735 - 736 and 805 - 806.
The appellant's assertion that the judge had an external, pre‑existing social relationship with the jury 'spokesperson' at the second trial is without evidentiary or factual foundation.
Contrary to the appellant's submission, the judge did not err by failing to disqualify himself after the prosecution and Detective Travers had been reported 'conspiring in [a] private room just prior to … taking [the] witness stand'.[455] While that submission substantially overstates what had occurred as between the prosecutor and Detective Travers,[456] in any event, whatever had transpired between the prosecutor and a police witness in the trial would provide no basis for the judge to have disqualified himself.
[455] Appellant's submissions [121].
[456] See [169] - [171] above.
The appellant's submission that Troy DCJ should have recused himself on the basis that he presided over the second trial is misconceived. He made the same submission the day before the third trial, based upon a passage in the textbook Ross on Crime entitled 'Retrial should take place before a different judge'.[457] After referring to that passage, and the 1962 English case cited in support, Troy DCJ gave the following reasons for declining to recuse himself:[458]
There is no authority in this state nor, indeed, to my knowledge in England that where a trial is inconclusive either because the jury are unable to agree, or because the trial has been aborted the judge who has presided over the inconclusive trial cannot preside over the retrial.
The case of [T]he Queen v Quinn and Bloom has never been cited as authority for that proposition. As I observed to [the appellant] it often is the case particularly where the matter has gone all the way to a jury, but they have not been [able] to agree that a different judge will preside over the retrial.
This case, however, although the evidence has only occupied three and a half days has now generated 797 pages of transcript. Given the extraordinarily protracted history of this matter it is in my view an efficient use of the - of this court's resources that the matter stay with me, because of my familiarity with it, unless there is good reason for me to recuse myself.
As I have indicated on a number of previous occasions, I have not so (inaudible). The section in, 'Ross on [Crime]' is slightly misleading with respect to the author in the sense that it asserts as an asserted proposition retrials should take place before a different judge. As I say, the authority that is then referred to in support of that proposition does not mandate that conclusion.
It is a (inaudible) observation made by the English Court of Appeal (inaudible) 80 years ago and does not mean that I am obliged to [recuse] myself and I do not.
[457] Mirko Bagaric, Ross on Crime (8th ed, 2018) [18.3435].
[458] ts 805 - 806.
No error is disclosed by his Honour's reasoning.
On each occasion on which the appellant applied to Troy DCJ to recuse himself, the judge's reasons for refusing to do so were cogent and compelling. The appellant's assertion of actual or apprehended bias in relation to Troy DCJ is without substance.
Bias on the part of the court as a whole
In this regard, the appellant relies on the conduct of the usher at the second trial. While, as Troy DCJ observed, the usher's conduct was deplorable, it was done without authority or approval of the court. A reasonable observer would not have considered that the usher's conduct impinged, at all, on the ability of the court to continue to perform its function in ensuring a fair trial of the appellant. The appellant's assertion that the same usher was used again in the third trial is simply wrong.[459]
Conclusion on ground 9
[459] See ts 867.
For these reasons, there is no substance in the appellant's complaints of actual or apprehended bias.
Ground 10: proceedings unfair, vexatious and oppressive
By ground 10, the appellant complains of 'proceedings unfair, vexatious and oppressive'. Under this ground, he repeats his complaints as to a number of matters with which we have dealt - concealment, doctored transcripts, bias and prejudice, the alleged PRAVWS, the failure to remit his case, non-disclosure, subpoenas and the fabrication of evidence. For the reasons already given, none of these complaints has substance.
Other submissions
The appellant also raises some other matters, such as the asserted failure of the Supreme Court to adequately deal with his writs of certiorari and prohibition,[460] his misconception that the prosecutor on appeal has had private conversations with associates and judges of this court[461] and complaints as to the manner in which he has been dealt with by this court.[462] Those matters do not relate to any ground of appeal and, in any event, do not establish any miscarriage of justice in his convictions.
[460] Appellant's further submissions affidavit [192] - [198]; appellant's oral submissions document [164] - [172].
[461] Appellant's oral submissions document [176] - [177].
[462] Appellant's oral submissions document [177] - [186].
Conclusion
For the above reasons, all of the appellant's grounds of appeal are without merit. We would make the following orders:
1.Leave is granted to the appellant to rely on a further 33 pages of submissions in support of the appellant's appeal and 84 pages of documents described as 'Evidence Index'.
2.Leave is granted to the appellant to rely on the further 12 page document described as 'reference to laws and cases'.
3.Leave to appeal on each ground of appeal is refused.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech29 OCTOBER 2020
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