Court of Appeal (WA)|2006-12-07|Before: Miller J, Steytler P, Lure JA, Buss JA

Featherston v The State of Western Australia [2006] WASCA 269 (7 December 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FEATHERSTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 269

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Assault occasioning bodily harm - Appeals against conviction - Whether evidence as a whole not sufficiently credible to support convictions - Where complainant and prosecutor referred to one appellant as a drug dealer - Whether trial Judge erred in failing to direct jury in relation to these statements - Turns on own facts

Criminal law - Appeal against sentence - Both offenders declared eligible for parole - Appellant's total term of imprisonment extended by full period as sentence imposed cumulatively upon term already being served - Sentencing Judge intended each offender spend equivalent time in custody - Sentence adjusted accordingly

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Jarvis v The Queen (1993) 20 WAR 201

Ladd v Debnam, unreported; SCt of WA (Miller J); Library No 980672; 23 November 1998

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Banks v Properjohn, unreported; FCt SCt of WA; Library No 920033; 17 February 1992

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82

Cabassi v The Queen [2000] WASCA 305

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432

Davies v The King [1937] HCA 27; (1937) 57 CLR 170

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517

Farquhar v The State of Western Australia [2005] WASCA 49

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Kirby v The Queen [2003] WASCA 164

Mill v The Queen (1988) 166 CLR 59

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996

R v Anderson (1994) 20 MVR 320

Repatriation Commission v Webb (1987) 76 ALR 131

Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Watt v Thomas [1947] AC 484

Yates v The Queen [1985] VicRp 3; [1985] VR 41

1 STEYTLER P: By an indictment dated 13 May 2004 the appellants were charged with a number of offences. Count 1 on the indictment charged the appellant Featherston with the offence of wilfully and unlawfully damaging a motor vehicle. Count 2 on the indictment charged both appellants with the offence of unlawfully assaulting a man named Tal Parnall Boyd ("Boyd") and doing him bodily harm. Count 3 charged the two men with having stolen from Boyd, with violence, his wallet and, at the same time, having done bodily harm to Boyd. Each of these offences was said to have been committed on 23 January 2003. The appellants were found guilty on count 2 but not guilty of the other offences charged. They appealed, by leave, against their convictions on count 2. In addition, the appellant Robinson appealed, by leave, against the sentence imposed upon him.

2 After hearing argument, we unanimously dismissed the two appeals against conviction, saying that we would give our reasons in due course. These are my reasons for joining in that decision.

3 The State case, which relied heavily upon the evidence of Boyd, was as follows. Boyd worked as a spray painter. He and his boss, Dave Fusco ("Fusco"), were involved in the distribution of illicit drugs. In January 2003 Boyd was asked by Fusco to take a quantity of amphetamines to the appellant Robinson in order to see whether he was interested in buying amphetamines in bulk. He did so, but Robinson rejected them, describing the drugs as "shit". Boyd returned them to Fusco. Later, Fusco gave Boyd another batch of amphetamines to take to Robinson. He did so. Once again the drugs were rejected. Undeterred, Fusco told Boyd to take a third batch of amphetamines to Robinson. He did so. Once again they were rejected and Robinson told Boyd not to bother bringing any more around. When told of this, Fusco was annoyed. He told Boyd to send a message to Robinson that he was standing on some big toes and was going to get "squashed". Boyd telephoned Featherston, who was a friend of Robinson. He passed the message on to Featherston and asked him to pass it on to Robinson. About half an hour later Boyd received a telephone call from Robinson in the course of which Robinson threatened to smash his face in.

4 Then, on 23 January 2003, an arrangement was made with Boyd for him to go to the home of an associate of his in order to pick up a computer. The trial Judge found, in the course of his sentencing remarks, that this was "a set-up". While Boyd was standing outside the front of the house, a car "screamed up", there was a loud bang, the front gate opened and Featherston came running up the driveway with a large lump of wood in his hand which, the trial Judge said, was best described as a pick handle. Boyd said that Featherston used the handle to smash the back windscreen of his car and that Featherston then attacked him with the handle. He swung the handle at Boyd's knees. Boyd blocked the blow with his right hand. Featherston ended up getting Boyd in a headlock, while he yelled to Robinson that he should hit Boyd. The two men tried to kick and hit Boyd. Featherston held Boyd in the headlock while he tried to hit him with his free hand. Robinson tried to kick and punch him. Boyd was struck, a number of times, around the head, legs and back. Featherston released Boyd from the headlock and then struck him on the head with the handle. Boyd said that his assailants then took his wallet (this allegation gave rise to the offence charged under count 3, of which the two men were acquitted) before driving off. Boyd sustained a serious fracture to his right index finger and a fracture just below the cheek bone. He also had a number of other, less serious, injuries.

5 There are two grounds of appeal in respect of which leave has been given. The first is that the evidence, when viewed as a whole, is not sufficiently credible to support a conviction, rendering the convictions unsafe and unsatisfactory. The second is that the trial Judge erred in failing to direct the jury as to the weight that should be given, and the adverse inferences they could draw, with respect to what were said to be highly prejudicial statements made by the complainant in his evidence-in-chief. Boyd had said, in the course of responding to questions from the prosecutor, that Robinson was a drug dealer. Also, in the course of his opening address, the prosecutor had told the jury that "these people" were involved in the drug trade. This evidence, and the prosecutor's comment, were said to have been extremely prejudicial. In his written submissions, counsel for the appellants complained, also, of evidence given by Boyd concerning his association with a motorcycle gang and as regards his own involvement in the distribution of amphetamines. This evidence is said to have been irrelevant and also to have created an atmosphere of prejudice at the trial.

6 Essentially, the submission advanced on behalf of the appellants in respect of ground 1 complained of three shortcomings in the evidence. The first was that the police had not attended the scene of the offence in order to collect forensic evidence. The second was that persons nominated by the complainant as having been witnesses to the offence failed to give evidence to corroborate the complainant's allegations. The third was that, in the absence of corroboration, the complainant's evidence lacked sufficient credibility to justify a conviction.

7 It is true that Boyd said that others had been present at the house at the time at which he was assaulted. He said that the person that he had gone to see, Richard Werner, had not been home, but that Werner's girlfriend, Samantha Brown (known only to Boyd as "Sam"), and another man by the name of Doug (since identified as Douglas Sutton) were there. Neither gave evidence at the trial. However, the transcript reveals that the prosecutor informed the trial Judge that he had been unable to obtain a statement from Brown because she had avoided giving one, although she had been subpoenaed (transcript 76). He suggested that her name be called to see whether or not she was present to answer the subpoena. If so, he proposed to make her available for the defence to cross-examine her. Brown was not present. Evidence was subsequently given by one of the investigating officers, Detective Senior Constable Marshall, concerning attempts that he had made to contact Brown. In the course of outlining these attempts, he mentioned that, on one occasion, he had been telephoned by Brown who asserted that she did not know Boyd, that she knew nothing about the incident being investigated and that she refused to go to a police station in order to provide a statement.

8 It is also true that the police did not attend the scene of the offence in order to collect forensic evidence. That was presumably because they considered that, having regard for Boyd's evidence, and medical evidence which supported his contentions that he had been assaulted, there was no need for any additional forensic evidence if, indeed, any was available.

9 Neither of these omissions from the State case seems to me to have any great significance as regards ground 1. There can be no doubt that it remained open to the jury to rely upon the evidence given by Boyd, if satisfied that it was credible and cogent. Neither of the appellants gave evidence, with the consequence that Boyd's evidence stood uncontradicted.

10 During the course of his summing up, the trial Judge underlined for the jury the flaws which were said to have been identified in Boyd's evidence. He referred, in particular, to what had been described as prior inconsistent statements that had been made by Boyd. He also reminded the jury that Boyd had given evidence to the effect that he had been told by police officers that, if he cooperated with them in respect of the assault upon him, he would not be charged with any criminal offence in relation to his involvement with amphetamines. He reminded the jury that there was no independent evidence to confirm what Boyd had said as to the circumstances of the assault or as to the identity of those who assaulted him. He went on to say (transcript 244):

"So whether Mr Boyd's evidence is truthful or not is entirely up to you, but I need to give you this direction and it's this: that it would be dangerous to convict the accused on Mr Boyd's evidence in the absence of supporting or confirming evidence - and there isn't any ... - and that you should only do so if after careful scrutiny of Mr Boyd's evidence, you are satisfied beyond reasonable doubt of its truth in its material particulars. So you are entitled to act upon Mr Boyd's evidence, in the absence of any supporting or confirming evidence for it, but you should scrutinise it with great care and be satisfied as to its truth and accuracy before doing so."

11 Counsel for the appellants does not suggest that there is any error in this direction. However, he contends that, in the absence of corroboration, and having regard for the "deal" that had been done by Boyd with the police, the jury could not be satisfied beyond reasonable doubt of the appellants' guilt. He said in this respect that it had been put to Boyd, during the trial, that he had in fact been assaulted by a person or persons other than the appellants, but that it was too dangerous for him to name the real perpetrators. It was suggested to Boyd that, in order to fulfil his obligations under the "deal" with the police, he had implicated the appellants. While Boyd denied that there was any truth in this proposition, counsel for the appellants contended that it remained a reasonable hypothesis.

12 In considering a ground such as this, the Court is required to ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, paying full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the fact that the jury has had the benefit of having seen and heard the witnesses: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

13 My reading of the transcript disclosed nothing in the evidence of Boyd that might cause a jury to find that it lacked sufficient credibility to justify a conviction in the absence of corroboration. To the contrary, his evidence appeared to me to have been cogent, largely consistent and credible. That being so, it seems to me plainly to have been open to the jury, who had the benefit of seeing and hearing Boyd, to find that his evidence was sufficient to entitle them to convict. I should add, in this respect, that the hypothesis contended for on behalf of the appellants was based solely upon conjecture. There was no evidence to support it. The jury would, no doubt, have had regard for that fact in arriving at their conclusion and, on the face of it, it seems to me plainly to have been open to them to regard the hypothesis advanced on behalf of the appellants as untenable: see, in this respect, Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ; Ladd v Debnam, unreported; SCt of WA (Miller J); Library No 980672; 23 November 1998 at 10.

14 Finally, counsel for the appellants sought to add some weight to ground 1 by relying upon the possible effect on the jury of what he described as the prejudicial material allowed to be placed before them, being that identified by the second remaining ground of appeal. For the reasons set out below, I am not persuaded that there is any substance to that ground or that the introduction of the impugned material, when considered together with the other matters advanced on behalf of the appellants in respect of ground 1, had the consequence that the appellants' convictions should be regarded as unsafe and unsatisfactory.

15 As to the second ground of appeal, I am, firstly, not at all persuaded that anything untoward followed from what was said by the prosecutor in the course of his opening remarks, or by Boyd in the course of his evidence, to the effect that Robinson was a drug dealer. It would have been obvious to the jury, even if Boyd had not specifically described Robinson as a drug dealer, that Robinson dealt in drugs. That inference could readily be drawn from the fact that Boyd had, on three separate occasions, attempted to interest Robinson in buying amphetamines in bulk and from the fact that Robinson had rejected them only because they were not of the required quality. The evidence was, in any event, highly relevant. It explained why it was that Boyd should have taken the drugs to Robinson on three occasions and why it was that the person or persons selling the drugs would have been annoyed at Robinson's failure to accept them. Also, Boyd was cross-examined (transcript 126) in relation to the fact that, according to him, it was "the person who wasn't taking supply" who was threatened. Boyd responded by saying:

Boyd went on, a little later (also transcript 126), to say that the reason for the threat was not because of Robinson's failure to accept the drugs, but "because he was already dealing drugs [presumably supplied by others] in this same person's area".

16 Boyd's evidence that he "used to occasionally buy drugs off" Robinson emerged at the commencement of his evidence, when he was asked to tell the jury what his relationship with Robinson was. As soon as this evidence had emerged, the then counsel for Robinson expressed concern in respect of it and asked if he could take some instructions. The then counsel for Featherston sought a similar opportunity. Having taken the opportunity, counsel for Robinson told the trial Judge that he was instructed not to make an application for the trial to be aborted. Counsel for Featherston also made no such application.

17 It is true that, when he came to sum up to the jury, the trial Judge gave the standard direction concerning the drawing of inferences, and urged the jury not to be "governed by prejudice" (transcript 250), but gave no specific direction concerning the fact that Robinson had been identified as a drug dealer. However, that was done in circumstances in which Robinson's trial counsel had earlier told the trial Judge that he did not want the issue highlighted (transcript 100). Neither counsel suggested, at the conclusion of the summing up, that the trial Judge should give such a direction. In these circumstances, and having regard for the very strong direction that was given by the trial Judge in respect of Boyd's evidence generally, I am not persuaded that there was any need for the trial Judge to say anything more than he did. I should add that, in circumstances in which Boyd and the appellants had been identified as being involved in the drug trade, I very much doubt that the jury would have been prejudiced against the appellants (who, as I have said, did not give evidence) in such a way as to influence their decision whether or not to convict them. It is noteworthy, in this respect, that the appellants were acquitted on the other charges brought against them.

18 Finally, it seems to me that there could have been no prejudice to the appellants as a consequence of evidence which demonstrated Boyd's own criminality or criminal associations. To the extent that that evidence was relevant to credibility, it reflected only upon that of Boyd.

19 It was for these reasons that I concluded that each appeal against conviction should be dismissed.

20 In sentencing the two men the trial Judge made it clear that he regarded the offence as being serious. He took into account the fact that the assault on Boyd was premeditated and planned, that it was done in company and that it involved the use of a pick handle.

21 There was not a great deal to choose between the two men so far as their personal circumstances and antecedents were concerned. Featherston was 37 years old and gainfully employed. He had two children from a current relationship and three from a former relationship. He had a substantial criminal record, although he had not previously been sentenced to a term of imprisonment for any lengthy period of time. Robinson was 37 years of age. He was divorced from his first wife, who had custody of two of their five children with Robinson having custody of the other three. That position continued until Robinson was sentenced to a term of 6 years and 8 months' imprisonment in respect of an unrelated drug offence. Robinson had married for a second time during 2002. While his criminal record was considerably less than that of Featherston, the offence for which he was sentenced to a term of 6 years and 8 months' imprisonment (on 22 December 2004) was obviously serious, being one of possession of a prohibited drug with intent to sell or supply.

22 The sentencing Judge concluded that both men should receive the same sentence. He imposed upon Featherston a term of imprisonment of 1 year and 10 months, allowing for 61 days that he had already spent in custody. He sentenced Robinson to a term of 1 year and 11 months' imprisonment, allowing for 33 days that he had already spent in custody, to be served cumulatively upon the sentence imposed in respect of the earlier drug offence. Both men were declared eligible for parole. The sentencing Judge went on to explain that, because they were eligible for parole, each of the two men would be required to serve half of the term of imprisonment imposed.

23 There are two grounds of appeal. The first is that the sentencing Judge erred in failing adequately to give effect to the totality principle in ordering that the sentence imposed upon Robinson be served cumulatively on that already being served by him. The second is that the sentencing Judge erred in applying parity of sentence as between the two offenders in circumstances in which Robinson was already serving a lengthy sentence.

24 While this point was not squarely raised by either ground of appeal, it is obvious that the sentencing Judge understood that each of the two men would serve the same amount of time in custody before being

released on parole. However, he was in error in that regard. Because the sentence imposed upon Robinson was to be served cumulatively upon that already being served by him, the length of the total sentence imposed was such that he would be eligible only to serve the last two years of the combined sentence on parole, being the period of parole for which he was already eligible under his existing sentence of imprisonment: s 93(1)(b) and s 94 of the Sentencing Act 1995 (WA). Consequently, the effect of the sentence imposed by the sentencing Judge on Robinson was to extend the period that he would spend in prison by the full period of 2 years (including the 33 days already spent in custody in respect of the assault). This led the State, at the hearing of the appeal, to concede that the appeal should be allowed upon the basis that the sentencing Judge's evident intention had not been carried into effect with the consequence that the total sentence imposed upon Robinson infringed the totality principle (as to which see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Jarvis v The Queen (1993) 20 WAR 201).

25 It seemed to me that that concession was rightly made. I consequently joined in the decision to allow the appeal, to set aside the sentence imposed by the sentencing Judge in respect of Robinson and to substitute, in lieu, a sentence of 111/2 months' imprisonment to be served cumulatively upon the sentence that was currently being served by him. Robinson should be declared eligible for parole, although this will have no practical consequence by virtue of the provisions of s 94(4) of the Sentencing Act.

Featherston v The State of Western Australia [2006] WASCA 269

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Featherston v The State of Western Australia [2006] WASCA 269 (7 December 2006)

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