Yabsley v The Queen
[2015] TASCCA 25
•8 December 2015
[2015] TASCCA 25
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Yabsley v The Queen [2015] TASCCA 25
PARTIES: YABSLEY, Eric William
v
THE QUEEN
FILE NO: CCA 277/2013
DELIVERED ON: 8 December 2015
DELIVERED AT: Hobart
HEARING DATE: 28 August 2015
JUDGMENT OF: Porter, Estcourt and Pearce JJ
CATCHWORDS:
Criminal Law – Particular offences – Miscellaneous offences and matters – Other offences – Using a postal service to menace, harass or cause offence – Section creating the offence not ultra vires the Constitution.
Criminal Code 1995 (Cth), s 471.12
Monis v The Queen (2013) 249 CLR 92; Monis v The Queen [2011] NSWCCA 231, considered.
Aust Dig Criminal Law [2671]
Criminal Law – Procedure – Prosecution – Filing of information, presentment or indictment – Tasmania – Commonwealth offence – Complainant need not be a person referred to in the Justices Act 1959 (Tas) – Any person may institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth.
Crimes Act 1914 (Cth), s 13
Aust Dig Criminal Law [3025]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Other irregularities – Appellant not represented by counsel – Appellant made no complaint at trial or application for an adjournment or stay of proceedings – Factual and legal issues not overly complex – Trial judge properly explained appellant's rights and the procedures to be adopted – No miscarriage of justice in the circumstances of the case.
Aust Dig Criminal Law [3472]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: I M Arendt
Solicitors:
Appellant: In person
Respondent: Commonwealth Director of Public Prosecutions
Judgment Number: [2015] TASCCA 25
Number of paragraphs: 141
Serial No 25/2015
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
ESTCOURT J
PEARCE J
8 December 2015
Order of the Court
Appeal dismissed.
Serial No 25/2015
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
8 December 2015
I agree with Estcourt J. The appeal should be dismissed for the reasons which his Honour has given.
I would add some remarks about the appeal being conducted on the basis of an agreed summary of the 172 grounds of appeal. Leave was neither sought nor given in relation to the further documents containing additional grounds, but they have been taken into account. Many of the grounds contained multiple "sub-grounds". Many of the grounds were argumentative, and contained discursive and polemic comments.
The appellant had input into the process by which the so-called grounds of appeal were distilled to an essence of comprehensible "summary" grounds. This was done at a directions hearing in March 2015 after the hearing of the appeal was adjourned on the appellant's application. He was not then properly prepared to argue his appeal. I am satisfied that the summary, as has been dealt with by Estcourt J, properly represents the appeal points which the appellant wanted to pursue.
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
8 December 2015
The appellant was found guilty by a jury of one count of using a postal service to harass, and seven counts of using a postal service to cause offence contrary to s 471.12 of the Criminal Code 1995 (Cth) (the Code). He was convicted and sentenced on 20 March 2013 by Evans J who commented as follows:
"Following the defendant's dismissal from a position he held as a boarding house master with the Ipswich Grammar School on 16 September 1994, he developed an obsessive belief that the members of that school's board and its principal had not properly investigated allegations he had made and was continuing to make with regard to the physical and later sexual abuse of students of the school.
The board of the school initially sought to address the defendant's allegations, but following a meeting on 23 August 1995, in the course of which the defendant refused to provide the sort of details of his allegations that would enable them to be sensibly investigated, as I see it, the board quite understandably paid little regard to the communications it continued to receive from the defendant.
The defendant had persisted with and continued to persist with allegations that were relevantly made by way of written communications to the school, notwithstanding undertakings he had given to the Supreme Court of Queensland on 27 October 1994 and again on 15 September 1997.
As the defendant's conduct continued, it was reported to the authorities in late-2007 and the charges that are the subject of the convictions for which he is now being dealt with, were laid. The convictions relate to 71 letters between 24 January 2003 and 27 April 2010, which were harassing in nature, and seven letters that were offensive in nature.
The defendant is 61 years of age. He is in receipt of a disability benefit. He says he now realises that he must not harass the school and its staff, and I accept that this is so. Since 2 December 2010, he has complied with bail conditions that required that he desist from the sort of conduct that is in question.
It is ordered that the defendant be released forthwith upon him giving security by a recognizance of $10,000 to comply with the condition that for two years he not communicate directly with the Ipswich Grammar School or any persons who are or have been since 1993 members of its board, members of its staff, or engaged in its boarding house."
The appellant appealed against both his conviction and sentence by notice of appeal dated 3 April 2013, which notice was substantially amended on 14 October 2014 and 30 October 2014. The three notices ran to many pages and recited a litany of complaints in 172 grounds.
Ultimately on 6 March 2015, following the holding of directions hearings, the appellant agreed that the appeal against conviction could be argued on the basis of the following agreed summary of grounds of appeal:
"1 The proceedings were invalid as the complainant had no authority to make the original complaint.
2 Section 471.12 of the Criminal Code (Cth) is ultra vires.
3 The proceedings were invalid because no audio-visual record was made as required by s 85A of the Evidence Act 2001.
4 There was a miscarriage of justice in that the appellant's trial ought not to have proceeded when he was not represented by counsel.
5 There was a miscarriage of justice in that the Crown failed to provide full and proper pre-trial disclosure.
6 The trial judge erred in admitting into evidence all of the documents in the jury book, or in failing to exclude them pursuant to s 138 of the Evidence Act 2001 on the basis that they had been unlawfully obtained.
7 There was a miscarriage of justice in that the Crown failed to call all material witnesses and tender all relevant documents.
8 There was a miscarriage of justice in that the trial judge wrongly limited the issues on which the appellant could cross-examine witnesses.
9 There was a miscarriage of justice in that the trial judge erred in allowing evidence or suggestions of the appellant's bad character.
10 There was a miscarriage of justice in that the trial judge allowed the trial to be conducted on a basis [of], and involving material relevant to, an issue or issues other than the acts the subject of the charges ('the dismissal in 1994').
11 There was a miscarriage of justice in that the prosecutor used intemperate and inflammatory language which was likely to have prejudiced the jury against the appellant.
12 The trial judge erred in failing to discharge the jury or to direct it appropriately as to adverse material which appeared in the Mercury Newspaper during the course of the trial.
13 The trial judge erred in allowing the case to go to the jury and not ruling that the appellant had no case to answer at the end of the prosecution case.
14 The trial judge erred by providing to the jury a transcript of the evidence in the trial.
15 The trial judge erred in directing the jury that the fault element for the charges included recklessness, whereas it ought to have been confined to a specific intention.
16 The trial judge erred in failing to direct or caution the jury that the letters which were the subject of the allegations, were documents addressed to a corporation as distinct from individual persons.
17 The verdict of the jury was unsafe and unsatisfactory in that:
(a)on the whole of the evidence it was not open for the jury to be satisfied beyond reasonable doubt of the appellant's guilt;
(b)the appellant suffered significant forensic disadvantage in preparing and presenting his case due to the limitations imposed on him by his bail conditions."
In addition the appellant maintained his appeal against sentence on the single ground that it was "manifestly harsh and inappropriate".
There is no substance to any of the appellant's grounds of appeal and many of them are simply misguided and based on a complete misunderstanding of the law and of statutory interpretation. I will deal with each of the grounds as set out in the agreed summary and then turn to the appeal against sentence.
Agreed Summary Ground 1: The proceedings were invalid as the complainant had no authority to make the original complaint
This ground is wholly misguided and based on an ignorance of clear law.
Section 27(3) of the Justices Act 1959 provides as follows:
"(3) A complaint of a breach of the Criminal Code may not be made by a person other than —
(a) a public officer;
(b) a person authorized or directed to make the complaint by the Crown or the Commonwealth; or
(c) an officer of a municipality or another statutory public or local authority —
acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds."
The appellant argues, probably quite correctly, that a Mr Otto, who was the person who took out the complaint against him which led to his trial in this Court, did not meet the description of a person specified in s 27(3). But the charges laid against the appellant for using a postal service to harass, and using a postal service to cause offence, were Commonwealth offences contrary to s 471.12 of the Code, and they were not breaches of the Tasmanian Criminal Code, to which s 27(3) unarguably relates.
Section 13(a) of the Crimes Act 1914 (Cth), provides as follows:
"Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a)institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b)institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction."
For the institution of proceedings for offences against the law of the Commonwealth, Mr Otto, whatever his status or official position, was perfectly entitled to lay the complaint and did not require authority from anyone.
The grounds of appeal relating to the irregularity or invalidity of the original complaint laid against the appellant fail.
Agreed Summary Ground 2: Section 471.12 of the Criminal Code (Cth) is ultra vires
Section 471.12 provides as follows:
"Using a postal or similar service to menace, harass or cause offence
A person is guilty of an offence if:
(a) the person uses a postal or similar service; and
(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 2 years."
The validity of s 471.12 of the Code insofar as it relates to the offensive use of a postal service, has been affirmed by the effect of the decision of the High Court in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92.
French CJ summarised the challenge to the section in this way at [1] and [2]:
"1 These appeals arise out of charges laid against the appellants, one of whom, Man Haron Monis, is said, in 2007, 2008 and 2009, to have written letters to parents and relatives of soldiers killed on active service in Afghanistan which were critical of Australia's involvement in that country and reflected upon the part played in it by the deceased soldiers. The other appellant, Amirah Droudis, is said to have aided and abetted him in relation to a number of those letters. The appellants were charged under s 471.12 of the Criminal Code (Cth) ('the Code'), which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, 'offensive'.
2 The Australian Constitution limits the power of parliaments to impose burdens on freedom of communication on government and political matters. No Australian parliament can validly enact a law which effectively burdens freedom of communication about those matters unless the law is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government in Australia. The question in these appeals is whether the provision under which the appellants were charged exceeds the limits of the legislative power of the Commonwealth Parliament because it impermissibly burdens freedom of communication about government or political matters."
The High Court was equally divided on this issue, and accordingly the effect of s 23(2)(a) of the Judiciary Act 1903 (Cth) is that the unanimous decision of the New South Wales Court of Criminal Appeal in Monis v The Queen [2011] NSWCCA 231, upholding the validity of this limb of the section, was affirmed.
Section 23(2)(a) of the Judiciary Act provides as follows:
"23 Decision in case of difference of opinion
(2) Subject to the last preceding subsection, when the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority; but if the Court is equally divided in opinion:
(a)in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), a decision of a Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court is called in question by appeal or otherwise, the decision appealed from shall be affirmed."
The decision of the High Court in Monis and the outcome consequent upon the division of opinion of the Justices, is discussed in a case note Figg, Madeleine "Monis v The Queen; Droudis v The Queen (2013) 295 ALR 259" [2013] UTasLawRw 6; (2013) 32(1) University of Tasmania Law Review 125.
The validity of the "harassing" limb of s 471.12 was declared by Tupman DCJ in R v Monis; R v Droudis [2011] NSWDC 39, and the challenge to that limb was abandoned in the Court of Criminal Appeal, and was not pursued in the High Court.
The appellant's grounds of appeal related to the constitutional invalidity of s 471.12 fail.
Agreed Summary Ground 3: The proceedings were invalid because no audio-visual record was made as required by s 85A of the Evidence Act 2001
Section 85A of the Evidence Act provides as follows:
"85A Admission in serious offence
(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless –
(a)there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or
(b)if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or
(c)the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or
(d)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence.
(2) A reasonable explanation includes but is not limited to any of the following:
(a)the admission was made when it was not practicable to make an audio visual record of it;
(b)equipment to make an audio visual record of the interview could not be obtained while it was reasonable to detain the defendant;
(c)the defendant did not consent to an audio visual record being made of the interview;
(d)the equipment used to make an audio visual record of the interview malfunctioned.
(3) This section applies only to an admission in the course of official questioning by a defendant who, at the time of making the admission was, or ought reasonably to have been, suspected by an investigating official of having committed the offence.
Note: This section does not appear in the Evidence Act 1995 of the Commonwealth."
Section 79(1) of the Judiciary Act provides as follows:
"79 (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
Section 23A(4) of the Crimes Act provides as follows:
"23A (4) Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part."
There are two aspects to the appellant's grounds of appeal that invoke s 85A of the Evidence Act. The first relates to a record of interview in which the appellant participated during the course of the investigation of the offences with which he was charged. The second relates to the trial of those offences in this Court.
As to the record of interview, it is the case that s 85A applies prima facie to admissions made by a defendant during official questioning in respect of Commonwealth offences, because, by virtue of s 79(1) of the Judiciary Act, the peculiarly Tasmanian provision applies when this Court exercises Federal jurisdiction. However s 79(1) is subject to any contrary provision in any law of the Commonwealth, and s 23A(4) of the Crimes Act plainly excludes a provision of the nature of s 85A in relation to the admissibility of admissions during official questioning during the course of investigations.
The appellant's argument that the trial should have been audio-visually recorded in order to comply with s 85A is plainly nonsense. The section was, in its terms, plainly directed to there being available to the court an audio-visual record of an interview with the defendant, in the course of which the admission was made, and not to any questioning of an accused person in court.
Even if that were not the case, s 23A(4) of the Crimes Act would exclude the operation of s 85A, even if it were the case that there was anything said on the trial by anyone that could amount to relevant questioning, or there were any admissions involved. Moreover, of course, and in any event, there is in fact an audio-visual recording of everything that occurs in this Court by means of the Court recording system.
The appellant's grounds of appeal related to the application of s 85A of the Evidence Act fail.
Agreed Summary Ground 4: There was a miscarriage of justice in that the Appellant's trial ought not to have proceeded when he was not represented by counsel
Counsel for the respondent, Mr Arendt, submitted to this Court in his written submissions that the appellant did not at any time immediately before the trial started or at any time thereafter complain about the fact that he did not have legal representation, or apply for an adjournment or stay of proceedings, because he was not represented. The appellant did not submit to the contrary.
In my view, that is an end to this ground of appeal. There is no principle of law that requires a trial judge, of his or her own motion, to require that legal representation be provided to an accused person before a trial may proceed. No miscarriage of justice arises per se as a result of the failure of a trial judge to ensure the provision of legal representation. The learned trial judge did not err in failing to take steps to that end.
Were it the case that the appellant did not know how to complain about the absence of representation, then I accept the following submissions made by counsel for the respondent in his written outline of the respondent's contentions of fact and law which were not gainsaid by the respondent:
"23 An Accused has a right to a fair trial and in some situations that may not occur if the Accused is not represented.
24 Whether or not an unrepresented Accused has a fair trial will depend on all the circumstances of the case including the seriousness of the alleged crime, the facts of the case and the background of the Accused.
25 Dealing with the circumstances of this matter:
a The crime was not serious. The maximum penalty was 2 years.
b The likely penalty was a sentence that did not involve a term of imprisonment.
c It is apparent from the letters (exhibit P35-P45) that the Accused had been involved in litigation albeit civil, he was able to assert his rights and he is not unintelligent.
d He was in the final year of a law degree having passed all his subjects up to that point (AB T357 lines 20-35).
e The factual and legal issues were not overly complex.
f Prior to the trial commencing, the trial Judge explained:
•The elements of Section 471.12 Criminal Code and provided him with a draft memorandum (AB tab 1; AB Supplemental papers T335 lines 35-36);
•How to object to evidence to be led by the Prosecution (AB Supplemental papers T337 lines 24-36);
•How to challenge jurors (AB Supplemental papers T337 lines 39-46; T338 lines 1-25);
•An accused persons limited right to make an opening address (AB Supplemental papers T338 lines 37-41);
• How to cross examine witnesses (AB Supplemental papers T339 lines 8-30);
•How to raise an issue with him during the course of the evidence (AB Supplemental papers T340 lines 27-33);
•The elections open to him at the conclusion of the Prosecution case (AB tab 2; AB Supplemental papers T340 line 35-44; T341 line 1-19);
g The Prosecution also outlined the evidence to be led at the trial prior to the trial commencing (AB Supplemental papers T342 lines 12-45; T343, T344 lines 1-37, T345 lines 19-39).
h Most of the evidence was documents that originated from the Appellant.
i The Appellant appeared to understand what was going on and what he had been told. He did an opening and closing address plus cross examination.
j Whilst he was receiving a Disability Support Pension he owned a property consisting of 20 acres and the home he built on that property (AB Supplemental papers T357 line 40-44)."
The appellant's grounds of appeal related to a miscarriage of justice arising because his trial ought not to have proceeded when he was not represented by counsel fail.
Agreed Summary Ground 5: There was a miscarriage of justice in that the Crown failed to provide full and proper pre-trial disclosure
The appellant's written submissions on this ground are as follows:
"SUMMARY OF GROUND 5: There was a miscarriage of justice in that the Crown failed to provide full and proper pre-trial disclosure:
196 Example: (AB tab 6 T203 at 25 -45) AFP referral and QPS referral. These documents not provided to the Appellant. Not stated as privileged documents. Highly prejudicial to Appellant: may contain key information capable of establishing criminally concerned enterprise involving Police, Board and Mr Otto.
197 Example: (AB tab 6 T210 at 22) Robert Cross AFP reference to Mr Otto. Not provided to the appellant via discovery. AND (B tab 6 T212 at 35) referral from Queensland Police to AFP in QLD. Not provided via discovery. Highly prejudicial to the Appellant. No chain of custody established; no instructions relevant; who was running this investigation and under what terms of reference?
198 Example: (AB tab 6 T230 at 30) Mr Otto makes an admission that he had instructions from his management that he would have to go by. These instructions were never presented to the Appellant under discovery, [serious forensic disadvantage] Goes to prove the existence of some [secret] force driving this prosecution and raises serious issues of corruption and organised crime.
199 The Respondent failed to provide full disclosure primarily because it relied on Mr Otto as the investigator and Mr Otto was himself utterly incompetent, not independent and not impartial. He conducted no thorough investigation and refused to even assess any of the Appellants documents at the interview.
200 (AB tab 6 T207 whole page) Mr Otto claims he can recall specifically showing Exhibits P41 to P45 to the Appellant at the interview. He is absolutely certain. BUT (AB tab 6 T221 at 35) Mr Otto admits he has no idea - can't recall how many envelopes were on that file at the interview, [at 40] he makes another admission 'I can't recall from memory how many there were.' This witness is seriously not reliable. No properly instructed reasonable jury could make a finding of guilty on this evidence.
201 The Respondent failed to discharge its duty: for example: the Respondent alleged that both the Board and the Police had conducted thorough investigations; that the Appellant refused to accept that fact; and that the correspondence resulted from the Appellants refusal to accept that fact [primarily because he was angry at the dismissal in 1994]. No proof of any investigations was discovered by the Appellant from the Prosecutor.
202 The Respondent denied the Appellant any realistic chance of establishing if Mr Otto was an official investigation [sic] by refusing to produce via discovery his qualifications and duty statement and any certificate issued by the Minister enabling him to perform the 'FUNCTION' of criminal investigator.
203 The failure listed in 191 above denies the Appellant the opportunity to prove false imprisonment at Trial and Appeal re Mr Otto's interview.
204 The Prosecutor alleged Mr Otto had qualifications and a duty to investigate the alleged crime and that was a function of the Australian Postal Corporations Act 1989 (CTH). No such discovered documents were provided to the appellant at any time.
205 The respondent stood silent as time and again the Crown witnesses perjured themselves to the court: unprofessional conduct re 190 and 191 above et al.
206 [at 27 of the respondents Summary of Grounds] the Respondent deliberately and maliciously claims to have provided all material evidence bought [sic] into existence for the purpose of the trial: The respondent was provided substantial documentary evidence that the Respondents Witnesses were lying to the court and were not reliable - the Williamson Report and associated Sworn Statements by child victims for example. We know from the Interview transcript with Mr Otto that he provided that document to the Respondent - where is it in the Supplementary Papers? Why was it not entered into evidence?
207 The Trial Judge was aware that the respondent is required by law to provide all relevant material evidence and witnesses to any trial in the interests of justice and within their duty to the Administration of Justice, the Rule of Law and their Minister of Justice responsibilities to the court. He knew that discovery is not just about what the prosecutor thinks is relevant to the prosecution BUT includes documents and evidence and witnesses in possession, command and control of the Prosecutor.
208 The issue for the Appeal Court is did the Respondent make reasonable efforts to make its own discovery or did it deliberately fail to make such discovery in order to obtain a conviction at any cost? Which it is not legally entitled to do.
209 The Respondent claimed at trial that the defence witnesses were not relevant to the trial. They provided/discovered no statutory declarations made by any defence witness to assess how they might be relevant. They were not put to proof by the trial judge.
210 The Respondents ignored their own Prosecution Disclosure Policy.
211 They ignored the CDPP Statement on Prosecution Disclosure.
212 They ignored the equality of arms requirements set out in Jaspers v Belgium (1981) 27 DR 61 at [51] - [56].
213 They ignored Ragg v Magistrates Court of Victoria (2008) 179 A Crim R 568: the overlap between the requirements of human rights law and the prosecutor's minister of justice status.
214 They ignored key Legal Argument such as David Platter ('The development of the prosecutors role in England and Australia with respect to its duty of disclosure: Partisan Advocate or Minister of Justice' (2006) 25 University of Tasmania Law Review 111
215 They ignored Whitehorn v The Queen(1983) 152 CLR 657 at 663-664 per Deane J [and at 674-5] and [at 663-664]: Failure to observe the standards of fairness to be expected of the Crown...consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused had actually been denied his fundamental right to a fair trial.
216 They ignored R v Callaghan (1993) 70 A Crim R 350 at 356: the Queensland Court of Appeal held that it was not appropriate that Crown Prosecutors use the dignity of their office to tell a jury something that is not in evidence and that counsel's role is to make submissions, not express personal opinions or enter the fray as a contestant. [When accusing the Appellant of selling out the children for the offer of a job.] This issue arose entirely because the Respondent failed to make proper inquiries or to direct an investigator to do it for them.
217 They ignored R v Keane[1994] 1 WLR 742
• Rule: Fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. Ward served [17] years in jail following a wrongful conviction re allegations he was an IRA terrorist. [The Appellant fears he will suffer the same fate as Ward due to incompetence by the Respondent].
218 They ignored R v Shaw(1991) 57 A Crim R 425 per Nathan J [at 450]
• [at 450] Witnesses are within the class of persons from which the juries expect and are entitled to hear. The characterisation of witnesses in camps is unfortunate. It necessarily implies that Prosecutors might choose to call only those witnesses favourable to his camp. This is absolute derogation of the Prosecutors responsibility.
219 Only possible relevant and logically connected Crown witnesses were the two school secretaries; Mr Wallace and Dr Winter.
220 Failure to call relevant witnesses Lawless v R[1979] HCA 49; (1979) 142 CLR 659 (12 October) Legal point made in the High Court:- the eyewitness supported the defence and the Crown did not call or disclose.
221 They ignored Grey v R(2001) 184 ALR 593 'the witness would have provided fertile ground for cross-examination that could cast doubt on the prosecution witness and on the principal investigating officer. [Only the two school secretaries could cast any light on the jury book documents].
222 The Trial Judge erred in applying persuasive and or coercive or compulsive authority. [at 76] ..the improper discharge of the duty, if it produced a miscarriage of justice, may give rise to an appealable error Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317
■The court may use its persuasive authority over the prosecution to bring about the voluntary disclosure of the material to the defence R v Higgins (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Brooking, Byrne and Eames JJ, (2 March 1994) BC9406132, 73
■The court may use its compulsive authority 'to order the production to the defence, of material in the prosecutions possession or power if the interests of justice so require Carter v Hayes (1994) 61 SASR 451, 456; R v Higgins ibid; Sobh [1994] VicRp 2; (1993) 65 A Crim 466.
223 Because discovery was not properly handled by the Respondent the respondent wrongly believed the circumstances underpinning the trial were those arising from 1993 to 2002. Making the trial a farce since the jury book documents circumstances arose entirely from NEW EVIDENCE the Williamson Report and child victim statements; the Coroners Report and the Justice Botting Transcripts that were only made known to the Appellant in 2002/3.
224 Tasmania v Everett [2008] TASSC 87 (23 December 2008) per Slicer J [at 14 - 17] inclusive. at 17] ...selective disclosure…might raise an appellate question of whether the jury should have entertained a reasonable doubt about the guilt of the accused; Mahmood v Western Australian [2008] 180 A Crim R 142
225 They ignored R v Apostilides (1984) 154 VLR 563; (1984) 53 ALR 445; (1984) 58 ALJR 371; (1984) 15 A Crim R 88; [1984] HCA 38; BC8400498
o There is no common law right to discovery BUT the Crown is obliged to call [all] relevant witnesses; R v Apostilides and R v Lucas [1972] VR 693 per justice Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ
226 The Respondent literally made no inquiry of any person instructing them. R v Paraskava (1983) 76 Cr App R 162; R v King per King CJ - prosecutors might be expected to make reasonable inquiry of those instructing them, [Mr Otto and Australia Post] as to matters potentially affecting the credibility of witnesses for the prosecution.
227 Withholding material constitutes a miscarriage of justice. Withholding of material constitutes a miscarriage of justice when viewed against the conduct of the whole trial R v Ward (on material irregularity at 641-642) The conviction may be set aside Clarkson v DPP The prosecution has a general duty to disclose its case in chief, as well as any other relevant material, favourable or unfavourable to the defence. PJL Rofe QC DPP Report of MS WAI-QUEN CHAN Pre-trial prosecution disclosure South Australia
228 Lack of discovery of key documents and witnesses amounts to a 'vexatious proceeding. RULE 1.06 'vexatious proceeding': see subsection 77RL (1) of the Judiciary Act 1903 (CTH) 'vexatious proceedings order' : see subsection 77RL(l) of the Judiciary Act 1903 (CTH)
229 Because of a lack of proper inquiry by the Respondent the Respondent Mr Ardent [sic] [at Pg: 367 at 12] misleads the court by claiming that the AFP referred this investigation to Mr Otto. The AFP has unequivocally denied any involvement in this matter. Justice Wood misled the court by stating 'the AFP had carriage of this matter and had appointed Mr Otto to conduct the investigation.' This claim is simply utterly false. It denied the Appellant a chance to prove Mr Otto did not have standing.
230 The lack of discovery was compounding: FAILURE OF THE COURT TO GIVE REASONS:
a For decisions made under Part 3.11 of the Evidence Acts (TAS) and (CTH)
CONSTITUTES AN ERROR OF LAW
1 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418; ALR 417; [1998] FCA 364 per Wilcox, O'Connor and Sackville JJ
2 Comcare v John Holland Rail Pty Ltd (No 5) at Pg: 392 at 25 in R v Apostolides (1984) 154 CLR 563, 575) it is not sufficient that the trial judge simply states the case of Comcare v John Holland Rail Pty Ltd (No 5) he is required to give reasons. Failure to do so constitutes an error of law."
I have set the submissions on this ground out in full in order to demonstrate their disjointed and unfocussed nature. It is very difficult to bring home the submissions to the complaint that the respondent failed to provide full and proper pre-trial disclosure.
The duties of a prosecutor are well known, namely, as submitted by counsel for the respondent, to provide an accused person with all the relevant material relating to the prosecution against him or her, whether the prosecution proposed to use it in the course of the trial or not. I cannot discern any breach of that duty by the respondent in this case.
The appellant has not pointed to, in his many pages of submissions on this point, any document that existed that was relevant to any of the issues in the trial, and which was not disclosed to him.
The appellant's quest for material that may or may not exist and which relates to the matters that underlie his motivation in writing the letters he wrote is not something which cast any relevant obligation on the respondent.
I can discern nothing that might suggest a miscarriage of justice arising from inadequate pre-trial disclosure, or from any impropriety on the part of the respondent.
The appellant's grounds of appeal that relate to a failure to provide full and proper pre-trial disclosure fail.
Agreed Summary Ground 6: The trial judge erred in admitting into evidence all of the documents in the jury book, or in failing to exclude them pursuant to s 138 of the Evidence Act 2001 on the basis that they had been unlawfully obtained
The gravamen of the appellant's complaints that underpin this ground were set out in his written submissions as follow:
"GROUND 6
The trial judge erred in admitting into evidence all the documents in the Jury Book, or in failing to exclude them pursuant to sections 135, 136, 138 and 90 of the Evidence Act 2001 (TAS).
Extreme bias by the trial judge was prejudicial to the accused; breach of Article 14(3)(d) of the ICCPR tribunal not competent, independent or impartial; failure of due process; Prosecutor deliberately misleading the court extremely prejudicial to the accused; both prosecutor and trial judge colluded to admit evidence that was not admissible 'wilful blindness' extremely prejudicial to the accused; wrong sequence in considering the law; prejudice of incorrect sequence of consideration of sections 84 to 138 and then section 90 was extremely prejudicial to the accused; unfair trial; wrongful prosecution; wrongful conviction; miscarriage of justice
Extreme prejudice was shown to the accused in that the prosecutor was permitted to use the Mr Otto transcript at all and to use it word for word [for example voir dire pages 444 – 449] but when at trial the Appellant tried to do so he was denied that right the trial judge saying 'the jury can read that for themselves.' Well NO THEY OULD [sic] NOT! The concept that once the jury have documents in their possession both the prosecutor and accused have no right to raise issues contained in them is simply unreasonable. The claim that this is the same process in all courts of Australia - if that is correct - must be changed. The accused had a reasonable belief from the voir dire that he had a legal right to draw the jury attention to the errors of law and fact made by the prosecutor at trial. Errors that were an extension of the voir dire errors. For example: The trial judge and the prosecutor on the issue of hearsay of the 71 documents. What Crown Witness was relevant to those documents? Which one saw, heard or otherwise perceived the making or posting or receipting or stamping of those documents. On what basis were they entered into evidence? What was the forensic value of the stamps, or the alleged signatures? Mr Frederickson and Mr Bill Allen are not the Board! The Board is a wholly separate legal corporate entity separate from all its members. The documents were addressed to the Board as that corporate separate legal entity. The corporations law bound in the Grammar Schools Act 1975 (QLD) does not permit any Board Member to act unilaterally - the Board exists only in the minutes of the Gazetted Board Meetings and only has power if by voting by resolution. There is not one shred of evidence to show the Board received a single letter from the accused. There Is not a single shred of evidence [even if the Appellant physically wrote the documents themselves and signed them] that the Appellant posted any of those letters. There is not a single shred of evidence that the Board was even aware they existed. Not a shred of evidence any particular envelope actually contained those precise documents even if the envelope could be proved to have if been posted. The tribunal of fact breached Article 14(3)(d) it was not competent, independent or impartial. The trial judge had a closed mind to the nature of the discretions and the application of the material evidence that was being deliberately wrongly presented to the court by the prosecution. The entire voir dire and trial smacked of collusion to assist the prosecutor and to do everything possible to deny the accused a fair trial and due process of law. The sequence of considering the statute that is there to protect the accused legal rights was simply wrong. The court needed to consider the statutes first and then apply section 90. The conclusions by the trial judge were based on false assumptions provided to him by prosecutors who were not competent or impartial and who were seeking a conviction at any cost. This is unprofessional conduct a betrayal of the minister of justice duty and the duty to the administration of justice and the rule of law. Failing to properly apply the discretions directly led to the mistrial and false and wrongful conviction of the accused."
The respondent in written submissions answered the appellant's contentions as follows:
"28 There are two aspects to this ground:
(a)The trial Judge did not err in admitting into evidence the original documents, copies of which were contained in the jury book. Prior to the trial commencing, the trial Judge told the Appellant how to object to evidence led by the Respondent. All of the exhibits contained in the jury book were tendered into evidence without objection from the Appellant.
(b)The trial Judge did not err in failing to exclude the documents (P35 only) pursuant to s138 Evidence Act on the basis that they had been unlawfully obtained. There was no evidence capable of supporting the inference that the 71 letters had been unlawfully obtained by Mr Fredricksen. The learned trial Judge's ruling on this matter does not reveal an error. (AB Supplemental papers T381 lines 1-14) There was no other objection in relation to s138 Evidence Act raised by the Appellant at the trial relating to the other documents in the jury book."
I accept the respondent's submissions.
The appellant submitted that the 71 letters contained in the jury book had been stolen by a Mr Frederiksen and should be excluded in the exercise of the learned trial judge's discretion under s 38 of the Evidence Act.
In response to that submission prosecuting counsel submitted that there was nothing that had been advanced to the trial judge by the appellant to give rise to any suggestion that these letters that form the basis of the evidence of the charges have been stolen. He said:
"The fact that they may – and conceding what – sorry, accepting, not conceding. Accepting what Mr Yabsley has been putting to your Honour, the fact that the letters were not tendered or submitted at a board meeting to be discussed is completely irrelevant and it simply just doesn't change the character of the letters and what has happened to them, and from the statement of the headmaster who is the chief executive officer, he says in effect he has received correspondence that was addressed to the board from Mr Yabsley from the secretary and he put it in a safe and then he sent it on."
The transcript reference in the respondent's submissions set out above is incorrect. At page 51 lines 5–10 of the transcript of the trial for 4 March 2013, the learned trial judge ruled on the appellant's objection as follows:
"REASONS - HIS HONOUR: Yes, I am in position to deal with the s138 issue now. The only inference that can properly be drawn from the evidence before me in relation to the 71 letters is that they were properly received by Mr Dennis Fredericksen, the head master and chief executive officer of the school, and that consistent with his duties he provided copies to the chairman and members of the board.
Against this background, there is no basis on which on the evidence that's before me I could conclude that any of the 71 letters amount to evidence that was obtained improperly or in contravention of Australian law or in consequence of an impropriety or a contravention of Australian law. That being the case there is no basis upon s138 that can be invoked so the letters are admissible into evidence."
From my reading of the entire transcript of the trial for 4 March 2013, that ruling is factually correct and discloses no legal error.
The appellant's grounds of appeal that relate to any error on the part of the learned trial judge in admitting into evidence all of the documents in the jury book, or in failing to exclude them pursuant to s 138 of the Evidence Act, on the basis that they had been unlawfully obtained, fail.
Agreed Summary Ground 7: There was a miscarriage of justice in that the Crown failed to call all material witnesses and tender all relevant documents
I do not propose to set out or epitomise the many pages of the appellant's submissions on this issue, because in the end result it comes down to a question of whether any of those legal contentions has any foundation in the evidence of what took place at trial. In my view, they do not.
The written submissions on behalf of the respondent on this summarised ground are as follows:
"29 The Appellant's assertion is not supported by any evidence.
30 The Appellant was provided with a copy of the Crown Papers and the Jury book. There was no evidence tendered and addressed by the Prosecution which was not contained in these documents.
31 All witnesses known to the Prosecution who were relevant to the issues in the trial were called to give evidence. An additional witness Todd Woolley was called to give evidence so that he could be cross-examined by the Appellant.
32 There is no obligation on the Prosecution to summon defence witnesses or tender defence exhibits simply because the Accused asks for those witnesses or exhibits"
Those submissions cannot be gainsaid. There is nothing in my examination of the transcript of the trial proceedings that suggests otherwise. The point made at [32] is legally correct.
The appellant's grounds of appeal that assert a miscarriage of justice in that the Crown failed to call all material witnesses and tender all relevant documents fail.
Agreed Summary Ground 8: There was a miscarriage of justice in that the trial judge wrongly limited the issues on which the appellant could cross-examine witnesses
The appellant's written submissions on this issue run to almost 40 pages. They are so discursive and digress to such an extent, that it is not possible to distil their gravamen. Essentially, the appellant wanted, by means of cross-examination, to explore the truth of the allegations he had made in his correspondence with the school board of the Ipswich Grammar School with regard to the physical and later sexual abuse of students of the school. Those matters were, in my view, of no relevance to any issue on the trial. The trial was concerned with the number and tone of the 71 letters written by the appellant over some 10 years, and which were alleged by the respondent, and found by the jury, to be harassing in nature, and seven letters that were alleged and found to be offensive in nature.
On my reading of the transcript, not only did the trial judge not unduly limit the appellant's right of cross-examination, but he over generously extended latitude to the appellant. He was permitted to raise in cross-examination of witnesses issues such as a student who had committed suicide, a boy who had jumped from the third floor of a school building, the trial of a teacher who was alleged to have molested a student, a document called the Williamson Report, and a body called the Argos Taskforce, which was apparently a unit in Queensland Police Services which dealt with sexual crimes against children.
There is nothing in the transcript that evidences the appellant being wrongly limited on issues on which he could properly cross-examine. There is no substance in the appellant's grounds of appeal that claim a miscarriage of justice on this basis, and any such ground fails.
Agreed Summary Ground 9: There was a miscarriage of justice in that the trial judge erred in allowing evidence or suggestions of the appellant's bad character
At the heart of this issue, which once again involves some irrelevant digressions, is the note at the commencement of the appellant's written submissions on this agreed summary ground. The appellant states at page 184 of his submissions:
"1 the Appellant was forced to raise the matter of the false and malicious and untrue alleged extortion [at Pg: 296 at 37 transcript].
2[At Pg: 298 at 30] the accused was forced to again raise the alleged extortion to answer a question put to him by the Prosecutor who knew the questions would require a truthful answer that had to raise the alleged extortion yet again - but without any qualification.
3The purpose of raising the dismissal, the alleged selling out of the children by the accused for a job, the injunctions and all matters 1993 to 2002 was to entrap the accused into revealing the alleged extortion and other matters that the [sic] were not properly addressed at trial and led to confusion in the mind of the jury - and that is precisely what the Prosecutor intended - and it was irrelevant to the elements of the alleged crimes. Matters 1993 to 2002 served no purpose at trail [sic] other than to damage the character of the accused. They had no relevance at all to documents 2003 to 2010.
4The Prosecutor was not only incompetent, not independent and not impartial - his conduct in fabricating the alleged relevance of matters 1993 to 2002 and not from 2003 to 2010 was deliberate criminally concerned organised crime - to get a conviction at any cost and to steer the jury away from the key issues the element of the crime and the purpose of the letters 2003 to 2010 based on NEW EVIDENC [sic] that demonstrated the Board were committing perjury at trail [sic] and the Prosecutor was simply standing silent at that misinformation happened by direct conduct and by false implication."
As I apprehend it, the passage in the transcript of the trial which gives rise to this issue is of the cross-examination of the appellant at pages 282-284 as follows:
"You weren't employed as a teacher before your position at the boarding house was terminated, were you?……Only on a temporary basis as a substitute maths teacher, when – relief teacher. I was only – I only actually physically taught for two weeks.
This would, in effect, get you that maths teaching job that you'd unsuccessfully applied for?……No, that was a senior position. I think Mr Lapa's confused. I never applied for a senior position with the school, I applied for the relief teacher's position.
You say you wanted IGS to appoint you as Prep master co-ordinator for the purpose of updating and modernising the boarding house?.....Well that's an option but there's – it's not a paid position.
And you wanted a formal apology?.....Absolutely.
And before the boarding house, students and masters?.....Yes, they're the ones that I was accused of failing to protect.
Or the alternative you wanted five thousand dollars damages?......Yes.
For the loss of your job?......Yes but it wasn't a job, it was only a – it wasn't for the loss of the job, it was for the pain and suffering I suffered at the hands of the dismissal.
Look what's written at point 4?
IGS will pay me five thousand dollars damages for the loss of my job.
……Yes but I'm just explaining that even though I used that word, I never had a job with Ipswich Grammar School.
IGS will also pay me sixty thousand dollars damages for the loss of status, stress, defamation, personal injuries et al.
……Correct.
And then there's another alternative
Or I will hold a media conference outside the gates of IGS at 12.00 non on the 28th October 1994 at which time I will place in the hands of the media a brief indicating massive child abuse of several kinds.
…..That's correct.
So let me get this correct Mr Yabsley; if IGS had paid you the money, given you the full time job, you wouldn't have gone ahead with naming names in respect of these alleged abuse cases?....No the media release was to lawful authority and any media who asked for it. Although I may have said that here, that is not what was stated on the actual statement of claim. This is just my over view, this is something I'm discussing. The actual statement of claim was only to the lawful authorities.
This is the statement of claim?....No this is an overview that I wrote of the statement of claim as far as I'm aware.
Well go back to 41, it's all part of the same document, statement of claim, application for re-instatement….No it's not, sorry. 41.
Isn't it 41, that's where the document starts.
HIS HONOUR: Someone has marked it as page 8 of that document.
ACCUSED: You've only got to look at the numbering; it's a totally different document.
HIS HONOUR: But you…
MR McTAGGART: We'll have a look at the original exhibit overnight. In any event, let's go – do you say – anyway, go back to page 40?.....Yes.
HIS HONOUR: P19 if you would.
MR McTAGGART (Resuming): This is the document that you gave Mr Fallu?.....Yep.
Urgent settlement required by Wednesday 26th October, press release expected on Friday 28th October at 12.00 noon sharp.
……Correct.
I don't intend waiting until 7 November, IGS will settle this matter by the due date. Should you fail to do so; a written brief will be sent to the Criminal Justice Commission, Family Services, the Queensland government, any media requesting it.
……That's correct.
So Mr Yabsley, your position at this time was that if you got what you wanted from IGS, which was either a job or money, you wouldn't send a brief to the Criminal Justice Commission or to Family Services?.....Um can I explain what actually happened in the Court over this because I mean we're just going over stuff that's….
No, no, answer my question please?......Well it's – it doesn't matter what I said, the Commissioner Hall, Chief Commissioner Hall directed that it was to be non prejudice.
Answer my question. If IGS had settled on the terms you wanted, you would not have referred a brief to the Criminal Justice Commission or Family Services?.....Probably not.
Does that demonstrate that your – that your complaints of child abuse were not genuine?......No."
I am unable to see that there was any suggestion in that passage of cross-examination that the appellant was an extortionist, or any design on the part of the cross-examiner to characterise the appellant as such, and thus a person of bad character.
In my view, the cross-examination was designed to demonstrate that the appellant's complaints of child abuse that were the subject of his many letters were not genuine. An attempt to make that point to the jury by such cross-examination was not inappropriate given the nature of the charges against the appellant. Establishing that the appellant's complaints of child abuse may not have been genuine would enable the jury, if it so found, to more readily infer that the letters he wrote were harassing or offensive.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 10: There was a miscarriage of justice in that the trial judge allowed the trial to be conducted on a basis of, and involving material relevant to, an issue or issues other than the acts the subject of the charges ("the dismissal in 1994")
The appellant submits that upon entering the Ipswich Grammar School in 1993 he saw, heard or otherwise perceived, some 600 cases of criminal neglect and abandonment by the Board of Trustees resulting from their failure to adequately train and supervise the boarding masters who were men straight out of school with no capacity to deal effectively with teenage students. He says that after some 15 reports to the Board in writing, and orally to the headmaster, at 9am on 16 September 1994, he hand delivered a letter outlining possible sexual abuse of two boys. He says that at 1pm the Board held an emergency meeting and ordered the dismissal of the appellant from the school. The appellant submits that this is the dismissal the Crown prosecutor wrongly claimed was the circumstance underpinning the correspondence between 2003 and 2010 that was the subject of the prosecution brought against him.
The appellant further submits that no competent prosecutor could have formed any reasonable belief that the dismissal had anything to do with any correspondence between 2003 to 2010.
The respondent submits that there was no miscarriage of justice as the learned trial judge explained to the appellant what he needed to do if he objected to any evidence, and that the appellant did not object to the questions that related to his dismissal from the Ipswich Grammar School in 1994.
The respondent further submits that, in any event, the evidence relating to the dismissal was relevant contextual evidence which went to the issue of why the letters were being sent by the appellant to the Board, and that in addition the evidence was also relevant to prove that it was the appellant who was sending those letters because the dismissal and the consequential legal action was personal to the appellant and was frequently referred to in the letters the subject of the prosecution.
The respondent's submissions are correct in fact and in law on my review of the evidence, and there is no substance in the appellant's complaint of a miscarriage of justice.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 11: There was a miscarriage of justice in that the prosecutor used intemperate and inflammatory language which was likely to have prejudiced the jury against the appellant
The appellant commences in relation to this summary ground by submitting that the prosecutor at trial deliberately misled the court on numerous issues such as:
"■The fact that he cannot have had any proof the Board or the QPS had conducted any thorough investigations; and
■Cannot have failed to understand that the dismissal was not relevant to the jury book documents; and
■Cannot have failed to know that as from 2003 the Board was committing a serious crime by refusing to table, discuss or respond to allegations of crimes being committed against the children by specified Board Members; and
■Cannot have failed to know that in the [DA] case the Williamson Report contained express evidence proving that the prior representations made on oath by the Crown Witness Mr Lapa was perjury and that he stood silent as the witness perjured himself at trial on that issue; and
■Cannot have failed to know that Mr Fallu had no proof that he had conducted 10 interviews and had generated ten typed statements - and refused to put that issue to proof before the jury by producing those statements; and
■While these and many other criminally concerned matters were put to the jury the trial judge like the prosecutor stood silent knowing that there was no proof before the court to support the opinion, hearsay and down right lies of the Crown Witnesses."
From that point on the appellant digresses and makes submissions about the prosecutor's duty of care in tort, his conflict of interest and abuse of process.
The respondent accepts that a miscarriage of justice can occur if prosecuting counsel uses language such as could have excited an undue prejudicial impression of an accused in the mind of the jury (see Tran v The Queen (2000) 118 A Crim R 218 at 238 [132], and Deriz v The Queen (1999) 109 A Crim R 329), but submits that the appellant does not identify any specific part of the trial at which he contends involved intemperate or inflammatory language.
While I appreciate that the appellant may feel that, for example, his cross-examination as to "the dismissal" was intemperate or inflammatory in the sense that he advances in respect of the summary ground concerning that issue, there is nowhere in the transcript that I can see any objective sight or sign of language on the part of prosecuting counsel that could possibly have inflamed the jury or prejudiced the appellant's defence.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 12: The trial judge erred in failing to discharge the jury or to direct it appropriately as to adverse material which appeared in the Mercury Newspaper during the course of the trial
The appellant makes the following submissions in relation to this summary ground:
"ASSUMPTIONS AND ARGUMENTS:
1 Protecting the right to a fair trial.
2 Trial by Google: on social media and in the local newspaper.
3 The Mercury released a published article on the morning of day two of the trial - it was misleading - it portrayed the defendant as - whatever the reader chose to form an opinion about.
4 Those opinions could have been very defamatory and prejudicial to the defendant
5 The trial judge had a duty to discover precisely who [on the jury] had read this article and what conclusions they had formed as beliefs, and if those formed beliefs were of a kind that would/could result in an unfair trial and conviction.
6 The mere possibility that a juror could form a belief that the defendant was some kind of religious nutter and would not be believed is sufficient to have required the trial judge to discharge the jury and start the trial afresh or order a new trial, or whatever other order he might choose to make.
7 His Honour Pg: 337 act of god: 'there is no such defence!' Self - Defence and defence of another - is not open in terms of justifying the application of force in response to a threat - is just simply not open.
8 I cannot find the reference to the Mercury Newspaper in His Honour summing up: this is because my Application for the court to order an electronic version of the transcript has not been considered or approved. This is a serious forensic disadvantage to the Appellant at and in preparing the Appeal.
9 On the associated matter of duress - it is clear that the defence is open as is act of god - His Honour misled the jury [at page 337.]
10 Considering these factors as one: His Honour erred in his directions to the jury; and he failed take the time to assess the damage the Mercury article may have done to the defendant's defence; and as such the entire treatment by His Honour amounts to a serious miscarriage of justice."
On the third day of the trial, 18 March 2013, before the jury entered the court, the appellant raised with the learned trial judge an article that had appeared in the Mercury newspaper. The exchange is as follows:
"ACCUSED: Your Honour, before the jury is empanelled, I want to bring up a point. On Friday the Mercury published a document, a report about this case, and that report is extremely libellous towards myself. The facts that they stated there are totally untrue, were never stated in this Court, and if any of the jury have read that it basically poisons their mind.
HIS HONOUR: I'll – I'm sorry, I'm not familiar with what you have got in mind. I'll get a copy of the report and I'll direct the jury –
ACCUSED: Page 18 of Friday's Mercury.
HIS HONOUR: - direct the jury appropriately about it. Very well. Just one moment. Yes?"
No application was made to discharge the jury or to interrogate its members.
In his submissions, the appellant notes that the newspaper report used words "to the effect that the Defendant Yabsley had been influenced by God".
In summing-up to the jury the learned trial judge told the jury that the evidence in the trial was what they had heard and seen in court and said specifically:
"… to faithfully and impartially try an accused with the evidence also requires that you not let anything that you may have read or heard or seen outside the Court affect your decision in any way. In this regard Mr Yabsley has expressed concern to me about a newspaper report on his trial. Obviously you will pay no regard to how the case is being reported by the media in any situation. Your sole focus has been on the evidence and it is for you and no one else to assess and construe the evidence."
In my view, the trial judge adequately dealt with the matter in that way.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 13: The trial judge erred in allowing the case to go to the jury and not ruling that the appellant had no case to answer at the end of the prosecution case
The appellant's submissions on this summary ground are manifold and confusing to the extent that I have approached the ground by examining the transcript and the exhibits to ascertain whether a submission of no case to answer, or an application for a Prasad direction, would have succeeded. Neither would.
I accept the respondent's submission that there was more than enough evidence at the close of the prosecution case that could be taken into account by the jury in its deliberations and which was capable of supporting a verdict of guilty.
There was circumstantial evidence that the appellant sent the letters because his name and address appears on them. They also refer to matters which the jury could infer only the appellant knew about, and the theme of all of the letters was, in essence, the same theme.
There was evidence that all of the letters were sent through Australia Post, as some of them tendered in evidence had postmarked envelopes attached to them.
The appellant complains that only three of the letters taken into evidence had envelopes attached to them and that appears to be the case. However, there was evidence from Mr Frederiksen that after commencing at the school as its headmaster on 15 January 2001, he became aware of the appellant through some mail that arrived through Australia Post.
Mr Frederiksen gave the following evidence about this:
"MR McTAGGART: In respect of all of the documents that you've identified, the two bundles and the individual documents subsequent to that during the course of your evidence, are you able to say how they were received by the school, that is, were they hand-delivered, faxed, post or otherwise?.......Do you mean mail from Mr Yabsley?
Yes……They came through Australia Post invariably. There were, there may have been one or two faxes and at least one letter in his handwriting, but Australia Post.
And the faxes would they have some identifying feature on them?......They did.
That would – and what would that identifying feature be?........Well it showed the source that it was from Mr Yabsley, as I recall.
Retaining any feature identifying that it had been sent by fax?
HIS HONOUR: If you get a fax, normally it's got dates and other features on it, is that?
WITNESS: Yes, I understand they were there.
MR McTAGGART: But in respect of the documents that have been tendered through you there's no such documents?......No. All of mine were Australia Post."
From that evidence the jury could have inferred that the appellant sent all of the letters tendered through Australia Post. For the sake of completeness, I mention an argument put by the appellant about other letters that were tendered and said to be from him. He argued that exhibits P36 to P42 inclusive were tendered without the envelopes. He suggested that their absence precluded a finding of guilt. As to this, first, only three of the seven letters were without envelopes. Second, the appellant offered no basis, let alone a rational one, for his assertion. Expertise in handwriting is not needed to see similarities across signatures on other letters and envelopes in evidence. The appellant further submitted that the date on the envelope for P43 predated the letter. That is so, but by a day, and it is readily explained by him putting the wrong date on the letter, or anticipating sending it after he actually did. The appellant also submitted that as to P45, the postmark date stamp on the letter was an obvious forgery. He did not explain why that would be so. On its face, the postmark seems to be a legitimate one for 13 May 2010.
It was a question for the jury as to whether the appellant intended to send the letters.
And it was a question for the jury as to whether the sending of the 71 letters was harassing, and whether the content of the letters alleged to be offensive was in fact offensive.
Unquestionably the appellant had a case to answer, and there was no conceivable basis upon which the learned trial judge might have invited the jury to exercise its right to stop the trial at any time after the close of the prosecution case and return a verdict of not guilty.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 14: The trial judge erred by providing to the jury a transcript of the evidence in the trial
While this summary ground relates to the provision to the jury of a transcript of the evidence taken upon the trial, the appellant has addressed it in his written submissions as relating to the provision to the jury of a transcript of the interview of him by Mr Otto of Australia Post (the Otto interview).
The appellant's principle submissions are as follows:
"GROUND 14
The trial judge erred by providing to the jury a transcript of the interview as evidence in the trial.
ASSUMPTIONS AND ARGUMENT:
1 RvUL Haque (2007) 177 A Crim R 348; [2007] NSWSC 1257] NSWSC 1251 at [95]- [106] per Adams J ASIO knew they had no powers of arrest or compulsion - the accused was interviewed and cautioned and told he was under no obligation to speak - BUT they had assumed unlawful powers of direction, control and detention - which was a gross interference with the accused legal rights; was deliberately overbearing in the hope the accused would cooperate - so admissions made were excluded under section 138 - the Appellant asserts that the interview by Mr Otto was similar to the abuse of legal rights in RvUL Haque:
a Mr Otto had no lawful authority to conduct the interview
b He was not authorised to do so by any lawful authority
c He was not authorised to act as agent for the Board
d He had little if any competence, independence or impartiality
e There is no evidence at trial that he had any qualifications or power to interview at all - save for his own opinion."
As is submitted by the respondent, a transcript of the questions and answers asked and given in the course of the trial are routinely given to a jury to assist in its deliberations. Accordingly, I will address only the contentions made by the appellant on this summary ground.
There had been, prior to the commencement of the trial, an objection by the appellant to the admission of the Otto interview into evidence on the basis that it offended s 85A of the Evidence Act, it not having been audio and visually recorded. That objection was determined against the appellant, and, on the third day of the trial, the audio tape of the Otto interview was admitted into evidence without objection.
A transcript of the Otto interview was not provided to the jury as evidence on the trial. What occurred was that prior to the audio tape, being Exhibit 48, was played to the jury, a copy of the transcript of the tape was given to the jury as an aid to following the playing of the recording.
As to the character of that transcript, the following comments by learned trial judge are relevant:
"HIS HONOUR: I think the best way to deal with it is to mark it for identification by provide the jury with a copy of it. I just want to make a distinction between an exhibit and an aid.
MS WILSON: Yes, your Honour.
HIS HONOUR: So, we'll mark it for identification and you have sufficient copies for the jury.
#MFI-A – TRANSCRIPT OF AUSTRALIA POST AUDIO TAPE
MS WILSON: I do, your Honour.
HIS HONOUR: All right, well they can be handed to the jury. The point that's being made here, members of the jury is the point I've made to you about the transcript. The evidence is what you'll hear, not what you'll see is printed. Unless it's spectacularly good, they've always got mistakes in them. It's not possible not to have mistakes in them. Just wait one moment."
There was no objection by the appellant to that course, and Mr Otto had just given evidence that he had checked the accuracy of the transcript against the tape, and that the transcript was a true and accurate reflection of the questions asked and the answers given on the interview.
Mr Otto gave evidence-in-chief that prior to his retirement he had worked for Australia Post as a corporate investigator for 25 years. He said that as an investigator his duties were to investigate matters that came under the Commonwealth Criminal Code and were applicable to Australia Post. He said that in the course of his employment with Australia Post he came to the appellant as a result of receiving a referral from the Australian Federal Police.
The appellant cross-examined Mr Otto, but, on my reading of the transcript, he elicited no evidence that in any way supported his submissions in relation to this summary ground as I have set them out above.
In the circumstances, there has been no error on the part of the trial judge in permitting a transcript of the Otto interview to go into the jury room as an aid, and there was no basis upon which the evidence of Mr Otto might have been excluded under s 138 of the Evidence Act, had such an application been made.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 15: The trial judge erred in directing the jury that the fault element for the charges included recklessness, whereas it ought to have been confined to a specific intention
In his written submissions, the appellant commences by stating that the learned trial judge erred in directing the jury that the fault element for the charges included recklessness, whereas it ought to have been confined to intention, but that even if this Court disagrees, recklessness was not proved at trial.
That is a perfectly comprehensible statement, but beyond that statement I am unable, because of the set out and the style of writing the appellant uses, to follow the points he no doubt sees himself as making. I do not see any fundamental difficulty caused by that state of affairs because I understand his argument and I can assess its validity or otherwise from the transcript of the evidence on the trial. Either the appellant is right in the point he contends for, or he is wrong, based on the nature of the charges and the evidence given at the trial.
As set out earlier in these reasons, s 471.12 of the Code provides as follows:
"Using a postal or similar service to menace, harass or cause offence
A person is guilty of an offence if:
(a) the person uses a postal or similar service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 2 years."
Division 5 of the Code provides as follows:
"Division 5—Fault elements
5.1 Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
5.5 Negligence
A person is negligent with respect to a physical element of an offence if his or her conduct involves:
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
5.6 Offences that do not specify fault elements
(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness."
Section 5.6 applies to s 471.12 because there are no fault elements prescribed in that section.
The elements of section 471.12 are:
a A person uses postal service (conduct)
b Use of the postal service by that person (whether by the method of use or the content of the communication or both) would be regarded by reasonable persons as being, in all the circumstances, harassing or offensive (physical element consisting of a circumstance or result).
By virtue of s 5.6(1) the fault element for the conduct is intention.
By virtue of s 5.6(2) the fault element for the circumstance or result is recklessness.
The result of all of those provisions applied to the present case is that the posting of the letters by the appellant had to be proved beyond reasonable doubt to be intentional. On the other hand, the jury only needed to be satisfied beyond reasonable doubt that the harassment or offence caused by the letters was reckless, and recklessness can be proved by proof of intention, knowledge or recklessness.
The learned trial judge provided both the jury and the appellant with a written memorandum setting out the law. His Honour correctly set out in that memorandum that in relation to both the counts alleging that the sending of the 71 letters was in the circumstances, harassing, and the counts alleging that the contents of some of them were, in the circumstances, offensive, the jury had to be satisfied beyond reasonable doubt that the use of the postal service was intentional, and that the appellant "intended, knew of, or was reckless as to whether it was the event", ie that the sending was harassing or offensive.
There was ample evidence in the number and content of the letters alone from which the jury could infer that the appellant "intended, or knew or was reckless as to whether it was the event" that the 71 letters (count 1 on the indictment), would be regarded by reasonable persons as harassing, and that the content of some of them (counts 2 to 11), would be so regarded as offensive.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 16: The trial judge erred in failing to direct or caution the jury that the letters which were the subject of the allegations, were documents addressed to a corporation as distinct from individual persons
The appellant's principal submissions in relation to this summary ground are as follows:
"Procedural unfairness, unprofessional conduct by the Prosecutor, abuse of process, conspiracy, conspiracy to enter into a criminally concerned agreement, unreliable Crown Witnesses, Crown Witnesses not relevant to the jury book documents, miscarriage of justice, jury not open to convict on the evidence presented at trial, not proven beyond reasonable doubt.
ASSUMPTIONS AND ARGUMENTS:
Progression
1 The Actus reus and mens rea elements of the alleged crime were not proved beyond reasonable doubt and it was not open to the jury to convict.
2 The required elements within the statute were also not proved beyond reasonable doubt and it was not open to the jury to convict.
3 Discovery by the Prosecutor was not effective; possession, command and control were largely ignored and manipulated in such a way as to create incredible bias.
4 These factors underscore the failure of the Prosecutor and the trial judge to understand that nature of any documents however acquired by Mr Frederikson [not the Board].
5 The Board is not the school: the Board is a separate corporate legal entity that only exists on paper in the minutes of Board Meetings - it is as inert as a lump of wood; it has no capacity to feel harassed or offended.
a Under corporations law a Board is separate from its members - and they cannot act unilaterally or in the name of the Board unless properly authorised following the due process laid out in their constitution.
6 The Board is bound by a constitution called the Grammar Schools Act 1975 (QLD).
7 The constitution governs the powers, rights and responsibilities of the Board.
8 It is a Government Legislative Act that requires the Minister for Education to act in a certain way - failure for which may lead to serious legal consequences.
9 Sections 7; 18; and [38]-[45] are relevant to facts at issue at trial.
10 Evidence MUST have logical relevance [section 55 Evidence Act 1995 (CTH) 'the Act'] and the test is not stringent or narrow Kirby J in Smith v R [2001] HCA 50 [at 7].
11 Section 58(2) 'the Act' relates to conspiracy - persons acting in furtherance of a common purpose also common law re Ahern v R [1988] HCA 39.
12 Section 361A Criminal Code 1924 (TAS) - argument before a jury is formed [voir dire] the court may determine the procedure (c) fact; (d) all other questions to facilitate a fair and expeditious trial; (e) give directions; and 361A(2)(b) admissions, determinations, directions in first trial - which have the same statue [sic] as a new trial.
13 Statute does not displace the common law unless explicitly or implicitly shows that intention Fuller v R (1994) 34 NSWLR 233.
14 Real evidence - a document plus a relationship to the fact at issue may be direct [establish the existence or non existence of one or more facts at issue without the need for further reference - eg saw the shot fired - man fell down dead - establishes the fact: witness to the act plus video tape of it happening. Evidence may be circumstantial eg a persons perception of what happened plus each piece of evidence is capable of innocent explanation.
15 Provisional relevance is where one piece of evidence relies upon another and is only relevant in combination. Eg a fatal wound consistent with the weapon s57(l)(a) - relevant if reasonably open to make that finding s57(l)(b) subject to further evidence being submitted at a later stage. Supplemented by s58(l) the question arises does the document or thing draw any reasonable inference including authenticity? In this case the jury book documents - to who were they addressed?
16 In R v Slack [2003] NSWCCA 93 [at 37] the trial judge may exclude evidence even if there is no objection.
17 In Jackson v the Queen [2005] NSWCCA 411 if there is a failure to object then you may object at Appeal.
18 Relevant evidence is evidence that has a tendency to make the existence of any fact more probable or less probable. US Federal Rules of Evidence, rile [sic] 401(1)
19 Stephen J in A Digest of the law of evidence, 8th edition 1907, London Macmillan, Art 1 states that: two facts - related to a common course of events taken by itself or in conjunction with other facts proves or renders probable: past, present or future existence or non existence of the other.
20 McHugh J makes it clear that notions of reliability and procedural fairness play no part in testing relevance BUT the tribunal of law considers the effect the evidence could have were it to be accepted - in deciding if a witness lacks credibility Papakosmas v R [1999] HCA 37 [at 81 and 87]
21 Legal relevance must be sufficiently relevant not minimal; time consuming or distracting R v Stephenson [1976] VR 376, [at 380 to 381]
22 Evidence is admissible not because it is causally connected but to assist the jury to decide if the act was deliberate or not Wilson v R [1970] HCA 17 [at 334] BUT it is also be necessary to spell out how it is connected, there must be a process of reasoning eg evidence that renders a fact more probable or not - eg the sexual history in a rape case re consent.
23 In Smith v R [2006] HCA 50 [at 23] police officers are in a better position than the jury as they saw the defendant in a variety of situations. BUT what if those situations were manufactured, and the witness is not a trained police officer, and that person did not see the defendant do anything?"
In my view, it is immaterial as to whether the person to whom the letters were addressed was an individual or a corporation.
There was evidence from Mr Frederiksen, who was the headmaster of the Ipswich Grammar School from 15 January 2001, and from Mr Allan, who was commercial manager of the school, and who by dint of that office was also Secretary of the Board of Trustees from 2002 until 2012, that the letters that were tendered were received at the school, looked at and filed away.
Mr Allan gave the following evidence:
"Yes, all the incoming mail that is addressed to the Chairman of the Board, or to the Board itself I would open the incoming mail and I would record that and would send copies around to all the relative Board members. Initially that was done by fax, but once technology caught up it was then done via email. I would then attach those letters to my board report which would be circulated to the Board members before a board meeting and it would form part of the actual board report that was discussed at the Board meetings.
What would happen to the original letter?……The original letter was – if it was addressed to the Board the original letter was kept in my office. If it was addressed to the Headmaster or the CEO it would go round to his office."
Mr Frederiksen gave the following evidence:
"Now in relation to the mail that came to you, that was addressed to the school or to the headmaster, you said that that went to your secretary unless it was marked personal or confidential, what would your secretary do with it?............The secretary would stamp the mail and the mail would be put in my basket for me to deal with and if it was privately confidential I personally would open the envelope.
Now I just want to concentrate on the mail from Mr Yabsley, once you'd either opened it yourself or your secretary had stamped it and provided it to you what did you do with that correspondence?..........I would label all correspondence including letters from Mr Yabsley with a yellow sticker or write directly onto the letter, copies for the Board of Trustees or a copy for Mr Fallu who was my Chair of the Board at the time in the early days, similarly later on to the new Chairs of the Board and a copy to file. So the secretary of the Board of Trustees, the Commercial Manager would get a copy for Board papers."
That evidence was capable of satisfying the jury that the postal service had been used in a way that reasonable persons would regard as being, in all the circumstances, harassing or offensive. It is not an element of the offences provided for by s 471.12 of the Code that the addressee of a letter must regard the use of the postal service as harassing or be personally caused offence.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
Agreed Summary Ground 17: The verdict of the jury was unsafe and unsatisfactory in that:
(a)on the whole of the evidence it was not open for the jury to be satisfied beyond reasonable doubt of the appellant's guilt;
(b)the appellant suffered significant forensic disadvantage in preparing and presenting his case due to the limitations imposed on him by his bail conditions
I have reviewed the transcript of the appellant's trial, and the submission that on the whole of the evidence it was not open for the jury to be satisfied beyond reasonable doubt of the appellant's guilt, cannot possibly be sustained.
It will be obvious from what I have written thus far that the elements of the offences charged are few and non-complex and that the evidence of guilt was overwhelming.
The contention that the appellant suffered significant forensic disadvantage in preparing and presenting his case due to the limitations imposed on him by his bail conditions does not really relate to the summary ground that the verdict of the jury was unsafe and unsatisfactory.
Nonetheless, dealing with the argument, the appellant's submissions are exemplified by the following passage:
"Justice Wood refused to demand that the CPP call all defence witnesses: AND claimed that the then Defendant could call his own witnesses - which demonstrates a total lack of competence by that Judge who was well aware that the Appellant could not even o=contact his witnesses such as [DA] under the oppressive Bail conditions: the Appellant was left standing naked before the court at trial unable to admit into evidence any of his key documents that formed the true circumstances of any correspondence however delivered: The Coroners documents; the Williamson Report; the Justice Botting Transcripts; the media reports; the victims statements and Emails et al which is a breach of the Appellants human rights under the ICCPR to which this country is a signatory; and it is torture under the Criminal Code Act 1995 (Cth) and the Rome Statute Article 7 and the ICCPR Article 7. This kind of nonsense is repeated by Justice Evans at page 131 Transcript at [43] you can call any witness - WELL NO I COULD NOT!"
I am inclined to accept the submission made by the respondent as to this aspect of the appellant's complaint. That is, there was no suggestion at trial that the appellant was at a forensic disadvantage because of his bail, and he did not complain about any such disadvantage. Had there been substance to any such complaint and the matter raised, the bail conditions could have been varied.
There is nothing in any ground of appeal that underpins this summary ground, and any such ground fails.
The sentence was manifestly excessive or inadequate
The appellant's summary of the ground of appeal against his sentence was expressed in his written submissions as follows:
"The sentence was manifestly excessive or inadequate: unreasonable, ambiguous and impossible for any human being to comply with; it was an ambush document containing entrapment clauses; the result of which the Appellant, through no intention or recklessness of his own, was entrapped; such entrapment amounting to torture, judge and magistrate acting oppressively."
It will be recalled that the sentence imposed by the learned trial judge was that the appellant be released forthwith upon him giving security by a recognisance of $10,000 to comply with the condition that, for two years he not communicate directly with the Ipswich Grammar School, or any persons who are or have been since 1993 members of its Board, members of its staff, or engaged in its boarding house.
The heart of the appellant's appeal in relation to what would otherwise be regarded, in my view, as lenient, is that the recognisance was impossible to comply with in that there was no way of knowing who had served on the Ipswich Grammar School Board since 1993 because the names of those persons were not published on the School internet website between 2000 and 2012. The appellant submits that "the wording of the recognisance is cast so wide it potentially includes every human person on planet Earth".
There may be a basis for the appellant's concern as to the breadth of the terms of the recognisance, but I would have thought that no consequences would attach to a genuinely accidental breach of those terms. I do not need to pursue that question however as the period of the conditional release order expired on 20 March 2015. Since that date the appellant has not been subject to the unfair restrictions of which he complains. The question is now academic.
The appellant does not appear to have made any submissions that, apart from that question, the sentence was manifestly excessive. Nor does he appear to complain that his conviction was unreasonable in view of his intention to become admitted as a practitioner of this Court. I will nonetheless deal with those issues as they are capable of being embraced by one of the grounds of the appellant's original notice of appeal which asserted that the sentence is manifestly harsh and inappropriate.
The appellant was, when sentenced, 61 years of age and had no prior convictions.
The maximum penalty for a contravention of s 471.12 of the Code is two years' imprisonment.
There is nothing to suggest that the learned trial judge failed to take into account matters that were required to be taken into account in sentencing the appellant as set out in s 16A(2) of the Crimes Act.
The respondent submits, and I accept, that the learned trial judge needed to take account of the duration of the offending, namely seven years, the apparent lack of contrition or remorse, the importance of personal deterrence given the persistent nature and circumstances of the offending, and the lack absence of substantial mitigating factors. I do not overlook the appellant's age and previous good character as evidenced by the lack of any prior convictions.
I also accept the respondent's submission that the recording of a conviction does not of itself impact on the appellant's future application for admission as a legal practitioner. The conviction would not necessarily disqualify the respondent from obtaining admission. Rather, his admission is dependent upon him being a fit and proper person. He would be obliged to disclose the circumstances of the offending whatever the sentencing outcome was. It is then a matter for the Court to consider the nature of the appellant's conduct and its impact, if any, on his fitness for admission.
In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, said at [8]:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
Error in the learned trial judge's sentencing order is not apparent to my mind. Indeed, as I have said, I regard the sentence as lenient. It cannot be said that by reason of its severity the sentence is "unreasonable or plainly unjust".
The grounds of appeal that relate to sentence fail.
Disposition
All grounds of appeal having failed, I would dismiss the appellant's appeal.
File No CCA 277/2013
WILLIAM ERIC YABSLEY v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
8 December 2015
I agree that, for the reasons given by Estcourt J, the appeal should be dismissed.
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