JOHNSON AND FAGAN JJ: By Notice of Motion filed on 20 November 2015, the Applicant, Wayne Paul Mason, sought to vacate the hearing of his appeal against conviction listed for 24 November 2015.
The Notice of Motion was returnable on 24 November 2015. Following argument that day, the Court (by majority) refused the application to vacate the hearing and dismissed the Applicant's Notice of Motion. The Court indicated that reasons for this decision would be given at a later time.
What follows constitutes our reasons for having concluded on 24 November 2015 that the Applicant's Notice of Motion to vacate should be dismissed.
[2]
Trial and Sentence
Between 6 August 2012 and 19 September 2012, the Applicant stood trial before his Honour Judge Frearson SC and a jury at the Sydney District Court on an indictment containing 52 counts. The charges related to sexual acts alleged to have been committed against four girls (including RS) when they were each under 16 years of age, as well as charges of using a child for a pornographic purpose, disseminating child pornography and one count of perverting the course of justice. The Applicant was found guilty in respect of 44 counts. The jury could not agree on one count and he was acquitted in respect of seven counts.
On 1 February 2013, the Applicant was sentenced to an aggregate term of imprisonment comprising a non-parole period of seven years and five months commencing on 24 July 2012 and expiring on 23 December 2019, with a balance of term of three years and six months commencing on 24 December 2019 and expiring on 23 June 2023.
It is sufficient to note, for present purposes, that the Applicant was charged with 23 offences with respect to RS (Counts 8-30). Of these counts, the jury returned four verdicts of not guilty (Counts 8, 18, 22 and 24). The jury was unable to agree in relation to one other count (Count 25). The jury found the Applicant guilty upon the remaining 18 counts.
For present purposes, two counts are of particular significance:
1. Count 16 alleged that the Applicant, on 30 November 2001, at Chullora, did have sexual intercourse with RS, without her consent and knowing she was not consenting, in circumstances of aggravation, namely, she then being under the age of 16 years, namely 15 years contrary to s.61J(1) Crimes Act 1900;
2. Count 27 alleged that the Applicant, between 30 November 2002 and 31 January 2003, at Sydney, did induce RS to withdraw her complaint to the New South Wales Police Service of sexual conduct between herself and the Applicant, intending thereby to pervert the course of justice contrary to s.319 Crimes Act 1900.
[3]
Proceedings in the Court of Criminal Appeal
Notice of Intention to Appeal is Lodged
Later in February 2013, the Applicant filed a Notice of Intention to Appeal to the Court of Criminal Appeal: s.10(1)(a) Criminal Appeal Act 1912. The Notice of Intention to Appeal had effect for six months from the date of lodgement: Rule 3A(1) Criminal Appeal Rules; paragraph 9, Practice Note No. SC CCA 1 (Court of Criminal Appeal - General). The Court may extend the period for which a Notice of Intention to Appeal has effect: s.10(1)(b) Criminal Appeal Act 1912; Rule 3A(2) Criminal Appeal Rules.
Thereafter, from time to time, the Registrar of the Court of Criminal Appeal granted extensions of the life of the Notice of Intention to Appeal, at the request of the Applicant. The evidence before the Court on the Notice of Motion indicated (in general terms) that from about May 2014 the legal representatives for the Applicant considered a number of features of the trial, with a view to advising the Applicant on the merits of an appeal against conviction.
The Applicant has been represented throughout by the same solicitor at trial and for the purpose of an appeal to this Court. Different counsel represented the Applicant at trial to those who appear for him in this Court.
An Issue Concerning Count 27
An aspect under consideration in this respect concerned the Applicant's conviction on Count 27. It was the Crown case that the Applicant, then a serving police officer, played a part in the preparation of two letters sent to New South Wales Police, in late 2002 and early 2003, which indicated that RS retracted allegations of sexual impropriety made against the Applicant.
The Applicant did not give evidence at his trial. It was put to RS in cross-examination by the Applicant's counsel, that the Applicant had nothing to do with either letter.
The Applicant's mother, Lynette Patricia Mason, gave evidence in the Applicant's case at trial before the jury on 3 September 2012 (T1169-1204; AB2128-2163). It was her evidence that RS had attended her home on an occasion indicating that she wished to withdraw the allegations against the Applicant. The Applicant's mother said she had made a telephone call in this respect to the office of the Commissioner of Police to obtain information concerning the person or persons to whom such a letter should be sent. She did not say that she had played any part in the preparation of the letter itself.
It is fair to observe that the evidence of the Applicant's mother came under strong challenge in cross-examination by the Crown, where her credibility was put in issue. A reading of the evidence of the Applicant's mother suggests that she was somewhat argumentative and, from time to time, needed to be confined by the trial Judge to the giving of responsive answers under cross-examination by the Crown. Aspects of her evidence had the flavour of advocacy for the Applicant rather than careful and objective evidence.
It is noteworthy that, at one point, the Applicant's mother said in evidence concerning RS and the proposed retraction letter - "That incident is just so bright in my mind" (T1192; AB2151).
After the Applicant was convicted by the jury on a number of counts, including Count 27, the Applicant's mother told the solicitor for the Applicant that she now remembered that she (the Applicant's mother) had typed a letter for RS directed to the Commissioner of Police. The Applicant's mother had not referred to this in evidence before the jury. She informed the Applicant's solicitor of this recollection on 21 September 2012. She wrote a letter to the solicitor mentioning this on 27 September 2012.
Accordingly, this information from the Applicant's mother was known to the Applicant's solicitor on 21 September 2012. The sentencing proceedings took place and the Applicant was sentenced on 1 February 2013. It appears that no mention was made of this further account from the Applicant's mother in this context.
It may be inferred that counsel for the Applicant briefed on the appeal advised that this additional account provided by the Applicant's mother was, on its own, not sufficient to give rise to an arguable ground of appeal. Understandable concerns about the credibility and reliability of her account existed.
Between February 2013 and June 2015, a number of extensions of time were granted to the Applicant by the Registrar, whilst potential grounds of appeal were being explored by the Applicant's legal representatives.
The evidence reveals that the claim by the Applicant's mother that she had typed the retraction letter was the subject of a conference with the Applicant's legal representatives in October 2014 at which a statement was taken from the mother.
The Applicant's solicitor was attempting to obtain an expert opinion from a forensic linguist which may have, in some way, served to support the account of the Applicant's mother. Steps were taken in this regard over a lengthy period of time from about February 2015.
By letter dated 24 June 2015, the Applicant's solicitor sought a further extension of the Notice of Intention to Appeal, then to expire on 30 June 2015. The solicitor advised that she was "still waiting on a comprehensive expert report" which would not be available until mid-July 2015.
On 25 June 2015, the Registrar extended (once again) the life of the Notice of Intention to Appeal, this time to 30 July 2015. The Registrar noted:
"This is the third time you have submitted the exact same explanation for delay. No further extensions without (a) good reason and (b) detailed history of what has been done to progress matter."
Court Informed that Appeal Ready to Proceed
On 31 July 2015, the Applicant's solicitor wrote to the Registrar seeking a further two-week extension until mid-August 2015. The solicitor stated that she had been instructed by the Applicant "to not continue with the investigations that were delaying the appeal". The Registrar extended the life of the Notice of Intention to Appeal to 15 August 2015.
On 14 August 2015, a Notice of Appeal was filed, accompanied by written submissions prepared by the Applicant's counsel. The Notice of Appeal contained one ground of appeal:
"Ground 1: The appellant contends that the verdict of the jury regarding count 16 is inconsistent and cannot be supported by the evidence."
On 27 August 2015, the Registrar listed the Applicant's matter for hearing on 24 November 2015.
According to the evidence, the Applicant's solicitor received instructions on 24 September 2015 to seek an opinion from Dr John Olsson, a forensic linguist.
On 19 October 2015, Dr Olsson provided a report to the Applicant's solicitor. The report of Dr Olsson purports to express an opinion concerning the authorship of the typed retraction letter of 29 December 2002, signed by RS, together with an opinion concerning the second handwritten letter of 2 January 2003. It is, at least, an open question whether Dr Olsson can express an admissible opinion which, in truth, bears upon the role of the Applicant's mother in the creation of the typed letter, or with respect to the second letter. To the extent that it is necessary to comment upon this aspect in this judgment, it does not seem to us that the report has any particular evidentiary value.
Applicant Seeks to Vacate Hearing
Thereafter, the Applicant's solicitor made application to vacate the hearing listed for 24 November 2015. On 5 November 2015, the Registrar refused that application.
No further application was made to a Judge of the Court after 5 November 2015 seeking to vacate the hearing date.
As mentioned, a Notice of Motion was filed on Friday 20 November 2015, supported by an affidavit of the Applicant's solicitor affirmed that day. The affidavit annexed an affidavit of the Applicant's mother sworn 19 November 2015.
It was this material which formed the foundation for the application made to the Court on the hearing day to vacate the hearing of the appeal.
[4]
The Adjournment Application on 24 November 2015
In the course of the adjournment application, the Court enquired of senior counsel for the Applicant whether a ground of appeal had been formulated as a foundation for the application to adjourn the hearing. Mr Game SC responded that the issue was still to be "properly investigated" (T6.44, 24 November 2015).
In the course of further submissions, Mr Game SC said (T7.48, 24 November 2015):
"… but what the ground would be that the trial miscarried by reason of the absence of the evidence of Mrs Mason in relation to this subject, and now that would have to be explained whether as fresh or new evidence or inadvertence or whatever reason, it would have to be explained."
The adjournment application was advanced upon the basis that this issue required further investigation. It was not being put to the Court that there would necessarily be an application to add a further ground of appeal, nor had a possible ground of appeal been formulated beyond what was said as quoted at [34] above.
The Crown neither consented to nor opposed the adjournment application.
[5]
Decision on Adjournment Application
If the hearing was vacated on 24 November 2015, the matter would have been placed in the Registrar's call-over list in December 2015, with the prospect of a hearing date in April or May 2016.
The Court was confronted with a hearing which had been fixed following a very substantial length of time in which the Applicant's legal representatives had explored potential grounds of appeal, with the appeal as then formulated ready to be argued and heard by the Court on the scheduled hearing day. The members of the Court had prepared for that hearing and had read the materials relevant to the hearing of the appeal.
What the Applicant sought was to vacate that hearing to allow further consideration to be given as to whether another ground of appeal might be included at a later time. The application did not rise above that.
If leave to add a further ground should not, after all, be sought then the hearing of the appeal on the single ground of appeal (which was ready to proceed on 24 November 2015) would be listed in 2016, almost certainly before a different Bench. The members of that Court would be required to prepare fully for that hearing.
It is appropriate to consider the application to vacate the hearing date against the background of the protracted history of the Applicant's matter before this Court. He was granted substantial and repeated indulgences, by way of extensions of the life of his Notice of Intention to Appeal. In July 2015, the Applicant's solicitor informed the Registrar that the issue under investigation (concerning Count 27) was not to be pursued, and the appeal was fixed upon the basis of the single ground of appeal notified on 14 August 2015.
Thereafter, in the circumstances described above, the Applicant's solicitor obtained the report of Dr Olsson leading to an application to vacate the hearing date to permit yet further investigations to be undertaken. It should be kept in mind, that the primary factual issue which was being explored (and to which Dr John Olsson's report was apparently directed) was the altered account of the Applicant's mother about preparation of the 29 December 2002 typed letter, which had been known to the Applicant and his solicitor since about 21 September 2012.
The Court has an undoubted discretion to vacate a hearing in an appropriate case. The discretion should be exercised keeping in mind, amongst other things, the clear public interest in the avoidance of delay in bringing appeals to this Court against conviction. The Applicant had been given very substantial latitude before he indicated, through his solicitor, that his appeal was ready to proceed.
By 14 August 2015, the Applicant had utilised the Notice of Intention to Appeal process and had determined, after some two-and-a-half years, to proceed on one ground only. Paragraph 15 of Practice Note No. SC CCA 1 is pertinent:
"The overall effect of the giving of a Notice of Intention to Appeal is to facilitate the obtaining of necessary transcripts, exhibits and other documents so that a decision may be taken as to whether an Appeal or Application for Leave to Appeal should be instituted, and to ensure that, when instituted, all material is available to enable the expeditious listing and determination of the appeal or application."
The wide discretion conferred on the Court of Criminal Appeal, by way of extension of time or adjournment of a hearing, is to be exercised upon consideration of what the interests of justice require in the particular case: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 607-608 [11]-[13]; 613 [30]; 614 [32].
As the plurality observed in Kentwell v The Queen at 614 [32], the "interests of justice will often pull in different directions". The interests of the Applicant are relevant, as are the interests of the community, witnesses and victims and the administration of justice, including criminal appeals in this State: Darwiche v R [2011] NSWCCA 62 at [38]-[39]; Kentwell v The Queen at 614 [32].
The Court raised with senior counsel for the Applicant the availability of an application under Part 7 of the Crimes (Appeal and Review) Act 2001 if, after further investigation, the Applicant wished to advance a ground concerning Count 27. Any impediment under s.79(3) Crimes (Appeal and Review) Act 2001 would seem to be reduced if his application to vacate the hearing of the appeal had been refused. That said, it would remain a matter for any Judge, to whom a Part 7 application might be referred, to consider it upon the merits.
Where it is open to the Applicant to bring a Part 7 application, the refusal of an adjournment does not shut the Applicant out completely. The availability of the Part 7 procedure is relevant, as well, to the exercise of discretion: Darwiche v R at [536].
We are well satisfied, in the exercise of discretion, that the appropriate course to take was to refuse the application to vacate the scheduled hearing before this Court and to proceed with the hearing of the appeal.
Nothing in this judgment should be taken as indicating any merit in the issue which the Applicant seeks to investigate further. A perusal of the transcript of the trial evidence of the Applicant's mother raises very considerable concerns about her credibility. In circumstances where she asserted a good memory on the topic, it is difficult to see how she could have overlooked the fact (if it be true) that she had typed the retraction letter of 29 December 2002, only to recall it a few days later, after the jury had convicted the Applicant of many serious offences to which the retraction letter purported to be an answer.
It is understandable that the Applicant's legal representatives approached the inclusion of an appeal ground concerning this subject with considerable circumspection given the context in which the Applicant's mother made this claim. We do not consider that Dr Olsson's report advances the position materially. To the extent that it is relevant to this judgment, we regard the material advanced in this respect as tenuous.
Nevertheless, if a Part 7 application is made, it will be a matter for a Judge to consider the material presented in the exercise of that administrative function.
[6]
Conclusion
It was for these reasons we determined on 24 November 2015 that the application to vacate the hearing date should be refused and that the Applicant's Notice of Motion filed 20 November 2015 should be dismissed.
BUTTON J: I would have granted the application to vacate the hearing of the appeal on 24 November 2015. Because my views about that interlocutory question were in the minority and not determinative, I shall be brief.
I gratefully adopt the chronological background of the matter contained in the judgment of the majority.
At the conclusion of the application, I respectfully considered that, in all of the circumstances outlined in the affidavits read on the application, as expanded upon in writing and orally by senior counsel for the applicant, and in light of the position of the Crown with regard to the application, the hearing of the appeal should have been adjourned. Four matters were of particular significance in me coming to that conclusion.
First, I accepted the proposition that there had been some sort of "crossed wire" between senior counsel, junior counsel and the solicitor for the applicant, whereby his solicitor was continuing to explore the availability of expert evidence that might have supported a further ground of appeal, despite the fact that a hearing date had been taken, and a single ground of appeal settled and notified.
Secondly, on the very limited material available at the time of the application, I did not feel confident in making a firm adverse assessment of the merits of any possible further ground.
Thirdly, I considered that the making of an application pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW), although an alternative way for the applicant to agitate the matters underpinning the putative ground that in turn founded the application to vacate the hearing date, could nevertheless ultimately be an exercise more inconvenient, disruptive and time-consuming to the criminal justice system than the postponement of the hearing of the appeal for a period of six months or so.
Fourthly, I bore in mind that the prospect of an application pursuant to Pt 7 foreshadowed by senior counsel for the applicant meant that refusal of the application to vacate would not provide any finality to the young victims of the applicant in any event.
[7]
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Decision last updated: 18 December 2015