Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : PRAZMO -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 25

Criminal law - Appeal against conviction - Application for review of single judge's decision to refuse leave to appeal - Turns on own facts

Criminal Appeals Act 2004 (WA), s 27(1), s 27(3)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 8

Supreme Court Act 1935 (WA), s 61(3)

Barry v The State of Western Australia [2007] WASCA 12

Morey v The State of Western Australia [2007] WASCA 103

Prazmo v The State of Western Australia [2009] WASCA 25

1 McLURE P: The appellant has applied to review the decision of Miller JA made on 29 January 2009 refusing leave to appeal against the appellant's conviction on one count of sexual penetration without consent.

2 The leave of the Court of Appeal is required for each ground of appeal (s 27(1) of the Criminal Appeals Act 2004 (WA)). In the documents comprising the appeal to this court, the appellant relied on three grounds of appeal (the original three grounds). They are as follows:

(a) The learned trial judge erred in law by not explaining to the jury that wherever she used the term 'satisfied' it meant 'satisfied beyond reasonable doubt' such that there was a miscarriage of justice.

(b) the learned trial judge erred in law when she failed to direct the jury correctly as to the relevance of intoxication to the defence of honest and reasonable mistake, specifically by failing to direct them that intoxication was relevant to the question of whether or not such a belief was honestly held by the accused, such that there was a miscarriage of justice.

(c) The learned trial judge erred in law by failing to give the jury any direction as to the use to which they could put the evidence of the complainant's distressed condition.

3 Miller JA concluded that none of those grounds had a reasonable prospect of succeeding and refused leave.

4 A person who is dissatisfied with a decision made by a single judge of appeal may apply to the Court of Appeal to set aside or vary the decision or order (s 61(3) of the Supreme Court Act 1935 (WA)).

5 An application to the Court of Appeal to set aside or vary the decision made by a single judge must be filed within five working days after the date of the decision (r 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA)).

6 The appellant by his then solicitors filed an application to review the decision of Miller JA on 11 June 2009, over four months after the decision was made. Thus, the appellant requires an extension of time within which to review the decision. On 18 June 2009, Wheeler JA ordered that the appellant's application for an extension of time be heard together with the review application.

7 The appellant sought to rely on nine grounds in the review application. Three of those grounds (grounds 2, 5 and 6) repeated the substance of the original three grounds considered by Miller JA. The other grounds constituted new and different challenges to the trial judge's directions to the jury at the appellant's trial. The nine grounds in the review application had been identified by senior counsel (Mr T Percy QC) as arguable errors in November 2008. However, the appellant's case dated 22 December 2008 was signed by a different counsel who confined the grounds of appeal to three of the nine identified by Mr Percy. Mr Percy was again briefed as counsel for the appellant around June 2009.

8 The refusal of leave to appeal on all grounds has the automatic consequence that the appeal is taken to be dismissed pursuant to s 27(3) of the Criminal Appeals Act. An application to add additional grounds of appeal is incompetent unless, on a review of the single judge decision, leave is granted in relation to at least one of the original grounds: Morey v The State of Western Australia [2007] WASCA 103 [3]; Barry v The State of Western Australia [2007] WASCA 12 [24].

9 On 6 July 2009, the Court of Appeal Registry advised the appellant's solicitor that new grounds of appeal could not be the subject of review and drew her attention to Morey.

10 In July 2009 the appellant himself sought to file an affidavit sworn on 16 July 2009 explaining the background and enclosing Mr Percy's November 2008 advice and draft grounds of appeal.

11 On 20 July 2009 the appellant's solicitors filed submissions addressing only the original three grounds. The review application was originally listed for hearing on 14 September 2009. However, owing to the unavailability of Mr Percy, and with the agreement of the appellant, the application was listed to be heard on 7 April 2010. On 8 February 2010 the appellant's solicitor filed an application seeking leave to cease acting and the appellant filed a notice of self-representation on 16 February 2010. On 18 February 2010 the appellant filed a further affidavit sworn on 17 February 2010 in support of his review application. That affidavit traverses much of the same ground as that sworn on 16 July 2009. On 22 February 2010 the appellant advised the court that Mr Percy would not be appearing at the hearing.

12 The appellant represented himself at the hearing of the review application. In his affidavits sworn on 16 July 2009 and 17 February 2010 and in his oral submissions at the hearing of the application, the appellant persisted with his attempts to raise challenges to his conviction on grounds travelling beyond the original three grounds for which leave was refused by Miller JA. The appellant was again informed that unless he could establish that Miller JA was wrong to conclude that none of the original three grounds had a reasonable prospect of succeeding, he was not permitted to rely on any additional grounds of appeal.

13 The relevant facts relating to the appellant's conviction are set out in the reasons for judgment of Miller JA (Prazmo v The State of Western Australia [2009] WASCA 25) as follows:

The facts of the case are well summarised in the trial judge's directions to the jury. The complainant testified that she was sexually penetrated on the night in question, while she was asleep on a bed. She said that she felt a sharp pain inside her vagina and realised from past experience that this must have been caused by a penis penetrating her. She thought that it was her partner who was responsible. She pushed him away and said, 'What are you doing?' As events transpired, it was not the complainant's partner, but the appellant who was there. The appellant said, 'I thought you wanted it'. The complainant said that the appellant got up and left the room. She followed shortly afterwards. She went outside to her partner and told him that the appellant had come into her room. She said that the appellant had 'got into my pants'. The complainant denied that she had flirted with the appellant at any time, or that she had given any indication to him on that night, or beforehand, that she wanted to have sex with him. She denied various assertions made by the appellant to the effect that she had said she was attracted to him.

The appellant did not give evidence at trial. However, he engaged in a video record of interview with investigating police. He said that, on the night in question, the complainant had given him every indication that she was interested in him. He said that she used words to the effect of 'you put me on fire'. He said that, whilst people were lying around the pool area of the house where the complainant was living, he (the appellant) had gone looking for her. He saw her lying on the bed with her pants and underwear pulled down to around her lower legs. He said her legs were open and he thought that the complainant was waiting for him. He removed the complainant's pants and underwear and lay on top of her, trying to place his penis into her vagina. He said that her vagina was too dry and he tried to lubricate it by spitting on his hand and wiping his hand across the lips of her vagina. He said that he tried to penetrate her vagina with his penis, but she said, 'Peter', and when he replied, 'No, it's Kris', she closed her legs and jumped off the bed.

The appellant's defence at trial was that there had been no sexual penetration of the complainant, but if there had been, it was with consent,

or, alternatively, in circumstances where there was an honest and reasonable, but mistaken, belief that consent was being given [4] - [6].

14 I agree with Miller JA for the reasons he gives at [9] - [17] that there is no substance whatsoever to the contention that the trial judge erred by failing to tell the jury that whenever she used the term 'satisfied' she meant 'satisfied beyond reasonable doubt'.

15 As to ground 2, the specific error is alleged to be the failure to direct the jury that intoxication was relevant to the question of whether the appellant had an honest belief that the complainant had consented to sexual penetration. I agree with Miller JA for the reasons he gives at [20] - [23] that this ground had no reasonable prospect of succeeding. It is going too far to suggest the trial judge was bound to direct the jury as to what constitutes a relevant consideration in their determination of whether the appellant honestly believed the complainant had consented. Moreover, based on the appellant's video record of interview with police, it is apparent that the primary issue was the reasonableness of any such belief having regard to what the appellant said he relied on as indicating consent.

16 In ground 3 the appellant contended the trial judge erred in failing to give the jury any direction as to the use to which they could put evidence of the complainant's distressed condition. The complainant did not give evidence that she was distressed. Her partner gave evidence that he thought she was very distressed based on the tone of her voice and his knowledge of her. Another witness said the complainant looked '[s]ort of shaken up'. A review of the prosecutor's address to the jury and the trial judge's summing up discloses that the evidence relating to the complainant's distress assumed no significance at trial. There is nothing in the way the case was conducted that required the trial judge to intrude into the fact-finding province of the jury by giving a direction on distress in this case. I agree with Miller JA for the reasons he gives at [30] - [33] that ground 3 had no reasonable prospect of succeeding.

17 Miller JA was correct to refuse leave to appeal on all the original three grounds. Thus, the appeal was dismissed. The appellant cannot now seek to raise additional grounds of appeal. As the application for review is without merit and there was a very long delay in filing the review application, I would dismiss the appellant's application for an extension of time.