PFC v R, R v PFC

Judgment 1ALLSOP P: Listed before the Court today is an appeal by the appellant against his conviction in respect of a significant number of charges of a very serious nature concerning sexual conduct with a number of teenagers in years past, together with convictions in relation to charges of intention to pervert the course of justice. 2We have also dealt with a Crown sentence appeal this morning, in the sense of hearing it. The Court has reserved its decision but it made clear it did not seek the assistance of the respondent's counsel, that is the offender's counsel, beyond having read his written submissions. 3The appellant is, in relation to the conviction appeal, self-represented. The trial proceeded for approximately six weeks in the District Court some two years ago or thereabouts. The trial and convictions concerned ultimate allegations or complaints by a number of young boys of teenage years. The appellant gave evidence. He was represented at the trial by counsel and solicitors. I do not propose to go into the detail of the charges or the evidence or, indeed, the detail of the complaints by the appellant beyond a brief description sufficient to understand the course of action that the Court has decided upon today. 4The appellant has provided the Crown and the Court with a number of versions of what are apparently written submissions, together with detailed annexures and a number of affidavits. The totality of these pages is over 750 including annexures. They are detailed, at times a little repetitious. That is not said critically of an unrepresented litigant. However, they raise most serious allegations of how the trial was conducted. It is said that counsel, in particular, refused to follow instructions and exhibited a degree of lack of competence in conducting the trial, that would be sufficient on the authorities to lead to the conclusion of a miscarriage of justice. These allegations are both broad ranging and detailed, although they probably have a core of complaint. 5The closer one comes to understanding the matters in the submissions, I suspect, the closer one comes to an ability to categorise and find a degree of coherence in the complaints. Because of the nature of the complaints in the submissions and affidavits, an issue naturally arose as to waiver of privilege. There is now no issue about waiver of privilege and the Crown has assembled a body of paper reflecting instructions and the running of the trial. The Court has not had those placed before it. 6Notwithstanding the nature of the complaints of the appellant, a view has been taken by the Crown that they would not publish any affidavit material of the barrister and solicitor. Indeed, the view was taken that they would not even be asked to come to court. In the light of this, it would appear the appellant caused subpoenas to be issued to the barrister and solicitor and they have, in answer to those subpoenas, attended court today. 7The appellant indicated that he wished to cross-examine the counsel and solicitor about the conduct of the trial. Mr Roff, the solicitor, was to be subject to, it was said, a fairly narrow body of questioning about material that had been placed in his possession. On the other hand, it was clear from questioning that Mr Webb, who was counsel, would be questioned about a significant number of aspects of the conduct of the trial. The appellant had begun to elucidate which aspects he wished to ask Mr Webb about. However, the Court is of the view that no useful purpose will be further served in Mr Roff and Mr Webb giving oral evidence in relation to the directions we are about to make. 8The Crown has filed submissions of some 11 pages, the subject of which is that this matter can be dealt with adequately at a fairly high level of generality. (It has not otherwise filed a written analysis of the matters complained of by the appellant in the tender bundle.) That, ultimately, may be a correct submission. However, in light of the fact that the appellant wishes to canvas important aspects of the running of the trial and in the context of the Crown itself wishing to demonstrate the conduct of the trial, it is, if I may respectfully say so, most regrettable that the Court has been left in the possession of 750 pages of annexures and submissions by the appellant with no clear way through dealing with those matters, in particular, in the light of the serious allegations made against the practitioners. 9It can be well understood and the Court accepts immediately the wisdom of attempting to limit the paper in an appeal like this. However, the nature of the complaints by the appellant although they may be able to be confined in their despatch - in the fullness of time, require the Crown to give the utmost assistance to this Court in its analysis. 10The appellant has been sentenced to a non-parole period of 10 years over numerous very serious offences. In his appellate defence, he makes most serious allegations about two members of the profession. This Court is charged with the heavy responsibility of resolving those matters, and it needs the assistance of experienced Crown counsel to grapple with the matters that the appellant is putting. I appreciate the no doubt good faith in which decisions as to how to run the appeal were made, but I think this Court needs more assistance than the Crown was planning to give it. 11As I said to junior counsel appearing for the Crown earlier today, that is not meant as a personal criticism of her, and I repeat that comment. But I think the gravity of the matter for both the appellant and for the parties means that the 750 pages and the substance of the complaints need to be grappled with in a way that has not hitherto occurred. 12That said about the Crown, the appellant has been less than helpful to some degree and I appreciate in saying that that he is a litigant in person conducting his appeal under circumstances that are not ideal. It is not necessarily straight forward to attend to the intellectual exercise of preparing for an appeal and attending to the paperwork whilst in custody. That said, it was unfortunate, in my respectful view, that the appellant did not take up the suggestion from the Chief Judge at Common Law, earlier this year, to attempt to summarise his complaints. 13That said, we have the totality of the appellant's complaints in his various submissions and affidavits. Two aspects that are missing, however, which began to be explored today are a clear statement setting out in summary form topic areas relevant to proposed examination of Mr Webb and Mr Roff and, secondly, a statement setting out the bases upon which leave is sought to adduce fresh evidence and identifying the nature and significance of that fresh evidence. 14No doubt, somewhat diffusely through the 750 pages, those matters will appear but the appellant needs to make the effort to be more concise by way of summary without in any way limiting what he has said in the 750 pages and to assist both the Court and the Crown understand his precise complaints. 15None of what I have said is to be taken as an assumed criticism of Mr Roff or Mr Webb. Their task as they will see by the directions required is that they address by affidavit the issues raised to an extent that they affect them. The Court fully appreciates the difficulty and logistics and otherwise in reaching back two years or thereabouts in relation to a not straight-forward case. But as they will see from these submissions and affidavits, the appellant has significant complaints, in the sense that they are significant to him. 16It may well be that answering those complaints, as I said earlier, falls into one or two coherent core themes. But there is a plethora of examples and descriptions of matters which would need to be addressed whether under those coherent core matters or on a miscellaneous basis. 17I do not underestimate the difficulty of dealing with this matter but I and my colleagues am and are of the view that it would be most unfair to both Mr Webb and Mr Roff to simply put them in the witness box and have the appellant today begin a wide ranging examination of them in circumstances where no-one has asked them to address the circumstances of the trial and the specific complaints that the appellant makes in his 750 pages. 18It is in the interests of the appellant, as an appellant to the Court of Criminal Appeal, that his appeal is dealt with by evidence in the most reliable form. It is in the interests of the due administration of justice that that occur, and it is in the professional interests of the third party witnesses that they not be subjected to an unprepared roving examination of their solemn professional conduct of some two years ago. 19This matter has been around in the court lists for some time. It will be heard this year. The matter will be listed, as I said, if necessary as a special fixture but if properly prepared it seems to me that it should not necessarily go beyond one day, though that is possible. 20These are the reasons why I think it is appropriate to adjourn this matter to a date to be fixed and the directions that I would make are as follows, and I will set them out in a moment. 21The time I would suggest for the filing of the evidence by Mr Roff and Mr Webb is not overly generous. If in consideration of the matters in the context of their own professional commitments they need more time, then I suggest the Crown can approach the Registrar through correspondence sent to the appellant and an extension can be given. But I would not give longer than I propose to now on the basis that if one gives too long people wait a period of time before starting. 22The matter is in the minds of the parties and counsel and solicitors now and I think it is a good time to commence thinking about this matter forthwith. 23For the appeal, the directions I make are as follows: