LAWLESS -v- TURNER [2007] WASCA 127 (18 June 2007)

4 The nature of a review hearing is such that the appellant is required to satisfy the Court of Appeal that there was error on the part of the single judge of appeal in refusing leave to appeal: Keating v The State of Western Australia [2007] WASCA 98 per Steytler P and McLure JA at [21]. If, however, on reviewing the decision of the single judge of appeal, the Court of Appeal assesses the grounds of appeal differently from the single judge, finding that there is a reasonable prospect of success, implied error may be found and the Court may set aside or vary the decision of the single judge: Keating v The State of Western Australia per Steytler P and McLure JA at [23].

5 The appellant was convicted in the Court of Petty Sessions at Midland on 6 June 2002 of two offences. The first was possession of an iron bar with the intention of using it to cause fear, contrary to s 8(1)(b) of the Weapons Act 1999 (WA). The second was a charge of damaging a door, contrary to s 80 of the Police Act 1892 (WA).

6 The appellant appealed his conviction to Le Miere J. The appeal was heard on 2 September 2005. The appeal was dismissed on 18 November 2005.

7 An appeal from the decision of Le Miere J was lodged on 9 December 2005, but the ground of appeal was patently inadequate. It

contended only that "the coram did not consider all the facts". On 13 January 2006, more extensive grounds of appeal were filed with the appellant's case. Those grounds are set out in the judgment of Roberts-Smith JA in Lawless v Turner (supra). There were then eight grounds of appeal.

8 On 26 April 2006, the appellant filed an "Amended Appellant's Case". Further documents were filed on 17 August 2006 and 12 September 2006 and ultimately the grounds of appeal which were put before Roberts-Smith JA were 12 in number. In truth, they are not properly described as grounds of appeal, but seem to be a narrative of the appellant's contentions that the prosecution case was contradictory about the time at which the alleged offences occurred. Before Roberts-Smith JA, the appellant made it quite clear that the sole point of his appeal related to the dismissal by Le Miere J of an application to adduce further evidence. This ground was basically ground 4 of the 12 grounds which had been formulated. Ground 4 is in the following terms:

"4. IN TELEPHONE RECORDS FROM TELSTRA OF POLICE PHONE CALLS, WHICH CLEARLY SHOW THE ACT STG SHEPARD MADE ONLY 1 CALL TO CONSTABLE TURNER AND THAT PHONE CALL OCCURRED AT .55AM."

That ground was put differently before Le Miere J, but nothing turns on this.

9 The appellant's contention is that the discovery of telephone records and police occurrence book records now reveal that the timing of the offences put forward by the prosecution at trial could not possibly have been correct.

10 To understand the ground advanced, it is necessary only to refer briefly to the facts. They reveal that the appellant was licensee of the Imperial Hotel in York. He resided there. The location of the hotel was on Avon Terrace, York. The complainant's residence was also on Avon Terrace, but about one kilometre from the hotel.

11 There was a history of ill feeling between the complainant and the appellant, full details of which are contained in the judgment of Roberts-Smith JA.

12 The prosecution case at trial was that the appellant had gone to the complainant's residence between midnight and 1 am on 3 June 2001 and at the time he had been in possession of an iron bar. At the residence, he had allegedly damaged the door.

13 The complainant gave evidence that, at about 11.15 pm on 2 June 2001, the appellant had approached her house, at which time the door was ajar. She had tried to brace the door, but the appellant had pushed on it. She telephoned the police at about 11.20 pm to report the matter. She had inspected the door and saw big scrape marks on it which she surmised had been caused by a metal object. Sometime afterwards, she was in bed and heard a motor vehicle pull up. She went to the hallway of her house and heard sounds which indicated that the door was being attacked. Pieces of wood flew off the door, the lock broke and the door flew open. She saw the appellant standing there, but he drove off shortly afterwards. The complainant again telephoned the police.

14 The evidence of the complainant was supported by testimony from her son. He said he heard somebody come to the door on the night in question and heard his mother talking to that person. He later heard knocking on the door, and, later still, heard the door being beaten on. He said that he saw the door give way at a time when his mother was behind the door. He looked out and saw the appellant stepping off the verandah.

15 The respondent was a senior constable who was off duty on the night of 2 June. He was playing in a band at the Imperial Hotel. He testified that, at about 12.50 am on 3 June, he received information on his mobile telephone, as a result of which he went to the back bar of the hotel and spoke to the appellant. He told him that he had received a complaint that the appellant had been at the complainant's house and had broken her front door. The appellant denied that he had done it.

16 At about 1.45 am on 3 June, the respondent went to the complainant's house. He then patrolled the York town site, looking for the appellant's vehicle. He found it parked in Howick Street, which runs parallel to Avon Terrace. It was about 100 or 150 metres from the hotel and it was not where it was normally parked. Normally, the appellant parked his vehicle outside the hotel, or in the back carpark of the hotel. The appellant later reported that his vehicle had been stolen on the night in question.

17 The appellant gave evidence at the hearing before the learned Magistrate. He contended that, on the afternoon of 2 June, he had been looking for his dog and had been at or near the complainant's house in the course of the search. He had made repeated trips around York looking for the dog, including trips in the evening, but the last of them was just before 7 pm. He testified that he and his wife had dinner at the hotel with friends and his wife had gone to bed at about 10 pm. He had checked the hotel and gone out to get some ice. When he returned, he parked his vehicle in front of the hotel. It was then about 10.45 pm. He commenced to close down the front bar, the alfresco area and coffee shop at about 11 pm. He did work on the till and the Eftpos machine, locked up and then moved his vehicle around to the back of the hotel. He returned inside and went to bed. It was then about 11.45 pm. At no time did he get up during the night.

18 The testimony of the appellant was confirmed by his wife, who said she remembered the appellant coming to bed around 11.40 pm. She said that, had he got out of bed again, he would have woken her.

19 Before Le Miere J, the appellant sought to adduce new evidence to contradict the evidence of the complainant and cast doubt upon the reliability of her testimony that the appellant had been at her premises at or about 11.45 pm on 2 June 2001. The new evidence was in the form of telephone records, detailing calls between the complainant and the police, and between various police officers. The essence of that proposed evidence was to the effect that the complainant had telephoned police at 12.45 am on 3 June and therefore the damage to her door must have occurred at or shortly before 12.45 am. Records which the appellant produced revealed that he had spoken to the respondent at the Imperial Hotel at 12.55 am and yet the complainant had telephoned the police complaining that he was again outside her house at 12.56 am. The appellant's basic submission was that if the time of the incident is taken at 12.45 am, he could not possibly have driven from the complainant's house to the Imperial Hotel, spoken to Constable Turner at 12.55 am and then returned to the complainant's house at 12.56 am. This was said to cast grave doubt upon the credibility of the complainant.

20 However, the respondent submitted before Le Miere J that the complainant had not specified in her telephone call at 12.56 am when it was that the appellant had been at her house. She had spoken to police at 12.56 am, 1.52 am and 1.57 am, but that these calls were because police had not arrived. The telephone calls had been made through the Northam police station and relayed back to York.

21 Le Miere J concluded that the new evidence sought to be adduced by the appellant did not contradict the evidence of the complainant. The appellant may have been at the hotel speaking to Constable Turner at 12.56 am, but may also have committed the offence alleged.

22 Le Miere J concluded that the new evidence did not show that the appellant was innocent, nor did it raise such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand. See de la Espriella-Velasco v The Queen (2006) 31 WAR 291 per Pullin JA at [150] - [154] and [156] - [158], quoted by Roberts-Smith JA in Lawless v Turner (supra) at [56].

23 Le Miere J also concluded that the new evidence should not be received for the reason that the appellant's case at trial was that he could not have been at the complainant's house at the time of the commission of the alleged offence because he was in bed with wife. His case was that he had not spoken with the respondent at 12.50 am because he had gone to bed at 11.40 pm. This evidence was corroborated by that of his wife.

24 The appellant sought to argue before Le Miere J that the respondent must have been mistaken as to the time he spoke with the appellant and that it must have been that it was before he went to bed at 11.40 pm. Le Miere J concluded, however, that the effect of the application to adduce further evidence was to change the defence run at trial and, in those circumstances, leave should not be granted to adduce that evidence.

25 Roberts-Smith JA approached the appellant's appeal on the basis that leave to appeal could not be granted unless the ground or grounds of appeal had a reasonable prospect of succeeding on appeal (s 18 read with s 9(2) Criminal Appeals Act 2004 (WA)). His Honour considered that the appellant's challenge to the decision of Le Miere J refusing leave to adduce additional evidence had no prospect of success. Roberts-Smith JA concluded that the reasoning of Le Miere J appropriately analysed the evidentiary issues which the appellant sought to raise and articulated a conclusion which on the material it was properly open for him to reach.

26 I have already pointed out that the appellant is required to show error on the part of Roberts-Smith JA. In my opinion, the appellant has failed to show any error in the decision reached by Roberts-Smith JA. Plainly, it was open to his Honour to conclude that Le Miere J was correct in refusing leave to adduce new evidence, particularly as the appellant was changing the whole basis of his defence. In those circumstances, Roberts-Smith JA was clearly correct to conclude that the proposed ground of appeal had no reasonable prospect of success.

27 In the application for review, the appellant set out his grounds of appeal in the following way:

"1. [First ground. I am completely innocent of the charges I have been convicted of ;his honour mr Nicholls was prejudice, in his decision and revue of evidence in northam and midland [sic]

1. [Second ground of review]; I had not been allowed, the opportunity to present the evidence which clearly proves my innocent to court (.police denied access to and withheld records of evidence. which conclusively would have proved my innocent [sic]
2. [Third ground I can now show, the court video tapes of the corrupt police who have charged me engaging in theft from my hotel and other illegal corrupt conduct
3. the complainant d Robinson committed perjury before Busselton , court in her presentation to court of evidence [sic]
4. the coram mr Roberts smith, failed to read or comprehend. the evidence presented in my 80 page revue and analysis of prosecution witnesses evidence and plagiarised the findings of his honour mr Nicholls [sic]."

28 These are grounds of appeal which are additional to those which were raised before Roberts-Smith JA. That being so, the application to set aside or vary the decision of Roberts-Smith JA by adding further grounds of appeal must fail: s 27(3) Criminal Appeals Act 2004 and Barry v The State of Western Australia [2007] WASCA 12 per Steytler P at [24].

29 It follows that the appellant's application to this Court cannot succeed for two reasons: (1) insofar as the application contests the decision of Roberts-Smith JA, no error has been shown; (2) insofar as the application seeks to adduce further and additional grounds of appeal which were not relied upon before Roberts-Smith JA, the application is incompetent and the proposed grounds will not be accepted.

Application to adduce additional evidence before Court of Appeal

30 The appellant sought to put before the Court of Appeal a number of additional documents. They were received provisionally, on the basis that the Court would rule as to their admissibility in due course. The documents included material from Vodaphone, letters from the Police Department, a letter from the appellant's solicitor and records from police occurrence books.

31 No formal application was made to adduce this evidence. It was simply handed up by the appellant. Not only was no formal application made for leave to adduce the evidence, but there was no affidavit directed to the basis upon which the material was put forward. This Court may admit additional evidence (s 39(3), s 40(1)(e) Criminal Appeals Act 2004), but in the circumstances of the present case no good reason has been shown by the appellant why the additional material should be received. Even if the material was received, it would not affect the outcome.

32 The application to review the decision of Roberts-Smith JA is out of time but should not be dismissed for that reason alone. The applicant has failed to make good the application because:

(1) his present grounds of appeal are incompetent; and

(2) Roberts-Smith JA has not been shown to have been in error in the decision he made.