WMT v The State of Western Australia

[2020] WASCA 213

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WMT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 213

CORAM:   BUSS P

MAZZA JA

PRITCHARD JA

HEARD:   15 OCTOBER 2020

DELIVERED          :   15 OCTOBER 2020

PUBLISHED           :   16 DECEMBER 2020

FILE NO/S:   CACR 155 of 2019

BETWEEN:   WMT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BOWDEN DCJ

File Number            :   IND 1493 of 2017

Catchwords:

Criminal law - Appeal against conviction - Application to adjourn the hearing of the appeal - Interests of justice

Legislation:

Nil

Result:

Application for an adjournment granted

Category:    B

Representation:

Counsel:

Appellant	:	Ms R S Sleeth
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Headley v The State of Western Australia [2019] WASCA 119

The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285

REASONS OF THE COURT:

1. The appellant was convicted, after trial, of 23 sexual offences against a female complainant.  He received a total effective sentence of 9 years 6 months' imprisonment.

2. His sole ground of appeal against conviction alleges, in essence, that defence counsel's conduct of his case at trial occasioned a miscarriage of justice.  The particulars of the ground assert that defence counsel failed adequately to open the defence case; failed to lead or adduce good character evidence on behalf of the appellant; failed to object to inadmissible material in the appellant's electronic record of interview; and failed adequately to close the defence case.

3. The appellant's appeal against conviction was originally listed for hearing on 16 October 2020.

4. His application for an extension of time within which to appeal and his application for leave to appeal were referred to the hearing of the appeal.

5. By an application in the appeal filed on 14 October 2020, the appellant applied, in essence, for an adjournment of the appeal hearing.

6. On 15 October 2020, this court heard the appellant's application.

7. At the conclusion of the hearing of the application, the court made orders as follows:

   (a)the appeal hearing listed for 16 October 2020 is vacated;

   (b)the appeal is relisted for hearing on 23 November 2020 at 10.30 am;

   (c)by 4.00 pm on 30 October 2020, the appellant is to file and serve:

   (i)any application for leave to amend the appellant's case; and

   (ii)any application for leave to adduce additional evidence at the hearing of the appeal;

   (d)the parties are to appear at a directions hearing before Buss P on 3 November 2020 at 9.15 am.

8. When this court made those orders, we said that reasons for decision would be published at a later date.  These are our reasons.

The applications for leave to adduce additional evidence in the appeal

1. Prior to the hearing of the appellant's application to adjourn the appeal hearing, the State had filed two applications in the appeal for leave to adduce additional evidence.  Those applications comprised:

   (a)an application filed 1 April 2020 for leave to adduce an affidavit sworn on 31 March 2020 by counsel for the State, Robert Graham Wilson; and

   (b)an application filed 23 June 2020 for leave to adduce an affidavit sworn on 19 June 2020 by the lawyer who was the appellant's defence counsel at trial.

2. Prior to the hearing of the appellant's application to adjourn the appeal hearing, the appellant had not filed any application for leave to adduce additional evidence at the hearing of the appeal.

The appellant's affidavit evidence and submissions

1. The appellant's application to adjourn the appeal hearing was supported by an affidavit of counsel for the appellant, Rebekah Suzanne Sleeth, sworn 14 October 2020.

2. It appears from Ms Sleeth's affidavit that another barrister, Mr J, had been retained as the appellant's counsel in the appeal.  Mr J settled the ground of appeal and prepared and signed the written submissions in the appellant's case filed 13 January 2020.  However, on 26 August 2020, Mr J was admitted to hospital.  Initially, Mr J was told that his admission was likely to be for a week.  However, Mr J remained in hospital and the date of his discharge was unknown.

3. Ms Sleeth was retained subsequently by the appellant's solicitors to appear as the appellant's counsel in the appeal in place of Mr J.

4. Ms Sleeth deposed in her affidavit that, upon perusing the trial transcript, she formed the view that it may be necessary to apply for leave to amend the appellant's case, including his ground of appeal and his written submissions. According to Ms Sleeth, amendments may be necessary because it became apparent to her, upon perusing the trial transcript, that 'further errors may have been made in the course of this trial' [11]. Ms Sleeth deposed that she has already formed the view and indicated to the State's lawyers that she wanted to add a particular to the ground of appeal alleging that defence counsel failed to test the evidence in relation to each count on the indictment when defence counsel cross-examined the complainant. Ms Sleeth deposed that she may wish to make other amendments.

5. At the hearing of the application, Ms Sleeth informed the court, in effect, that:

   (a)Between 11 September 2020 and 12 October 2020 Ms Sleeth agreed with the appellant's solicitors that she would act for the appellant if Mr J was unable to appear.

   (b)Ms Sleeth was not formally retained to act for the appellant until 13 October 2020.  Ms Sleeth then commenced preparing for the hearing of the appeal on 16 October 2020.

   (c)Ms Sleeth required some additional time in order properly to prepare and present the appellant's case at the hearing of the appeal.

   (d)The work that Ms Sleeth had carried out indicated that she may need to apply for leave to amend the appellant's case.

   (e)Ms Sleeth had notified the State that there was an additional particular she wanted to add to the ground of appeal.  However, it was no longer likely that she would want to make other amendments to the ground.

   (f)Ms Sleeth wanted to file an application for leave to adduce additional evidence in the appeal from the appellant and from people who would have been willing and able to give character evidence on his behalf at the trial.

   (g)Ms Sleeth wanted to cross-examine defence counsel on her affidavit at the hearing of the appeal.

The State's affidavit evidence and submissions

1. The State opposed the appellant's application to adjourn the appeal hearing.  The State relied upon an affidavit of Mr Wilson sworn 15 October 2020.

2. Mr Wilson deposed in his affidavit (based on information supplied by defence counsel and a report dated 28 November 2019 from a medical practitioner, Dr Chris Bleakley) that in about November 2019 defence counsel was diagnosed with a serious medical condition.  Defence counsel had received medical advice that she needed to keep her blood pressure low to avoid the risk of serious, possibly life threatening, consequences. 

3. It appeared from Mr Wilson's affidavit that the appeal was causing defence counsel a high level of anxiety.  Mr Wilson deposed that defence counsel had informed him that if the appeal hearing was adjourned her anxiety level would increase.  A very high level of anxiety is a high risk factor for a fatal outcome in people suffering from defence counsel's medical condition.

4. Mr Wilson also deposed in his affidavit that he had been informed by the mother of the female complainant that the mother and other members of her family, including the complainant, were suffering significant emotional stress as a result of the appeal process.

5. Mr Wilson informed the court at the hearing of the application that the State did not oppose the appellant's proposed amendment of the ground of appeal to add the additional particular alleging that defence counsel failed to test the evidence in relation to each count on the indictment when defence counsel cross‑examined the complainant.  Mr Wilson also informed the court that on 29 September 2020 Mr J had told him that he should assume that defence counsel was required for cross‑examination at the hearing of the appeal unless Mr J decided otherwise, which was unlikely.

6. Mr Wilson made submissions to the following effect in opposition to the granting of an adjournment.

7. First, there was a paucity of evidence before the court as to the evidence which witnesses could have given as to the appellant's alleged good character.  The evidence they could have given has little probative value.  Secondly, and in any event, the proposed good character evidence did not tend to exculpate the appellant.  The refusal of an adjournment would not deprive the appellant of the opportunity to present a case, based on good character evidence, which had a reasonable prospect of success.  Thirdly, the matters to which Ms Sleeth wished to give further consideration in connection with the appeal had no reasonable prospect of success or were no more than an indication of an additional line of enquiry.  Fourthly, the impact of an adjournment upon defence counsel, the mother of the female complainant and other members of the mother's family, including the complainant, militated against an adjournment.  Finally, the appeal notice was filed about 15 months late.  The interests of justice include the timely disposition of appeal proceedings.  In any event, further delay would be futile because, on the material before the court, the appellant's appeal had no reasonable prospect of success.

Further information provided to the court, at its request, by Mr Wilson

1. At the hearing of the appellant's application to adjourn the appeal hearing, the court sought further information from Mr Wilson concerning defence counsel's medical condition.  After a short adjournment, Mr Wilson informed the court that he had spoken to defence counsel by telephone and, based on information defence counsel had given to him, Mr Wilson was able to inform the court as follows:

   (a)Defence counsel continues to practise as counsel in the areas of criminal law, family law and restraining orders.

   (b)Defence counsel is not taking any medication or receiving any treatment for her medical condition.

   (c)Defence counsel does not know whether she has high blood pressure.

   (d)In 2014 or 2015 defence counsel was diagnosed as suffering from some other medical conditions, but she does not take any medication or receive any treatment for those conditions.

The merits of the appellant's application for an adjournment of the appeal hearing

1. The principles relating to the granting of an adjournment of a criminal appeal hearing are referred to in TheState of Western Australia v Silich[1] and Headley v The State of Western Australia.[2]  It is unnecessary to repeat the relevant principles.

   [1] TheState of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [36] ‑ [44], [111] ‑ [113].

   [2] Headley v The State of Western Australia [2019] WASCA 119 [158] ‑ [168].

2. We were satisfied that it was in the interests of justice to grant the appellant's application to adjourn the appeal hearing (and to make the ancillary orders) for the following reasons.

3. First, the adjournment is necessary to enable Ms Sleeth (or another barrister) to prepare properly for the hearing of the appeal.  The change to the appellant's legal representation was caused by Mr J's continuing illness.  The change was not attributable to any personal act or omission of the appellant.

4. Secondly, we accept that, on a preliminary assessment and without the benefit of full oral submissions, the appellant's ground of appeal does not appear to be strongly arguable. The ground has weaknesses. However, the State did not apply for a summary dismissal of the appeal on the basis that the ground of appeal did not have a reasonable prospect of succeeding. See r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA). We are not persuaded that, having regard to the ground of appeal's prospects of success and at this late stage, it is appropriate to require the appellant's case to be presented at the appeal hearing by counsel who, for reasons which have been adequately explained, is not fully prepared.

5. Thirdly, the significant emotional stress which the appeal process has occasioned to the mother of the female complainant and other members of her family, including the complainant, is understandable and unfortunate.  However, the hearing of the appeal would be adjourned for only a short period (less than six weeks).

6. Fourthly, we are not persuaded that an adjournment for a short period would have any material adverse effect upon defence counsel.  The further information provided to the court, at its request, by Mr Wilson in relation to defence counsel's medical condition put a significantly different complexion on the nature and seriousness of her medical condition than that suggested in Mr Wilson's affidavit.

7. Fifthly, it is true that the appeal notice was filed about 15 months late.  However, since the appeal notice was filed, the appellant has not been dilatory in pursuing the appeal.

8. Finally, as we have indicated, the interval between the original hearing date for the appeal (namely 16 October 2020) and the new hearing date (namely 23 November 2020) is short.  All outstanding interlocutory steps will be able to be completed prior to 23 November 2020 without any material prejudice to the State's position and in a manner that will enable the appellant's case to be fully and adequately presented.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JM
Research Associate to the Honourable Justice Buss

16 DECEMBER 2020