REGINA v FILIMOEHALA

REGINA v FILIMOEHALA - [2003] NSWCCA 37 - NSWCCA 2003 case summary — Zoe

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A brief summary of the facts 8 On the evening of Saturday 6 November 1999 a group of eight young males including the victims of the several assaults went to the Mad Cow Nightclub in Ballina. The applicant was in Ballina for the weekend with his brother, Sonny, and his brother-in-law. The applicant attended the Ballina RSL Club where he consumed a quantity of alcohol. The applicant and his brother-in-law left the club shortly before midnight dressed in a Hawaiian style shirt, this departure being recorded by security video. 9 The applicant attended the Mad Cow Nightclub with his brother and brother-in-law where he was identified as being the person dressed in the Hawaiian shirt. At about 2:15am one of the eight person group became involved in a physical confrontation with a person outside the group, Delsignore. One of the males in the eight person group and Delsignore were escorted from the premises. The group commenced to leave, Delsignore being held back by security officers until the group of eight persons had disappeared. The applicant appeared at the exit doors and asked if Delsignore was "all right" and the applicant then took a member of the group around the throat and that person then attempted to break free but was unable to do so until a security officer witnessing the event told the applicant to let the person go, which the applicant did. 10 As the group of eight males then walked down to River Street, the main street of Ballina, the applicant, his brother and brother-in-law and Delsignore walked to the corner of Moon and River Streets. The applicant, who was screaming out at the group of males, one of whom turned back to say, "We don't want any trouble." The applicant then grabbed hold of this male around the shoulders, picked him up and threw him onto the concrete path, causing that person to suffer a graze to his right arm. He then yelled at the applicant "We don't want any trouble", and was able to get away from the applicant. 11 The applicant then violently assaulted another member of the group, throwing him against a steel gate causing him pain. The applicant then kicked him in the head forcefully, causing a graze to the forehead. As the victim turned over the applicant repeatedly stomped with his feet on the victim's head, another member of the group called out to the applicant: "Leave him alone." 12 The applicant then turned to that person in turn, took hold of him, threw him to the ground and up against a concrete pillar and then kicked him in the head. The applicant then picked this person in turn and repeatedly drove the upper area of his body onto the concrete footpath which continued for about half a minute until the victim was released. He was left bleeding from the head and in a semi-conscious state. 13 The applicant then walked in a westerly direction at which time, a male person, Kevin Raymond Ellis, had just entered River Street from Moon Street, having also left the Mad Cow Nightclub, Ellis not having been involved in any of the groups. The applicant was at this time yelling out "Who else wants to fight me?" On seeing Ellis, the applicant walked over to him and said, "Come on", holding up his fists. Ellis ignored the applicant and went to walk past him, the applicant then punching Ellis to the head with a clenched fist hitting Ellis forcefully in what is described as a "king hit". Ellis fell to the ground, striking his head hard on the concrete having had no opportunity to defend himself and having done nothing to provoke the applicant. Ellis remained unconscious from the first blow. 14 The applicant then stomped on Ellis's head and body a number of times. On each occasion the applicant's boot hit Ellis's head causing it to bang against the concrete footpath. The applicant then walked away from the area with his family and Delsignore leaving Ellis lying unconscious with a considerable amount of blood coming from his head. Ellis and two of the others were conveyed to Ballina Hospital for treatment. Ellis subsequently being taken to Lismore Base Hospital and then being flown to Royal Brisbane Hospital for specialist treatment where he remained in intensive care for ten days before being returned to Lismore Base Hospital for a further number of days. 15 Ellis suffered from a fractured skull, fractured cheek bone, fractured jaw, three fractured ribs, extensive internal bleeding including within his head and appears to have permanent injury covering 70% loss of hearing to one of his ears and nerve damage to one side of his face. He had not, as at 2 January 2000, been employed since the assault. 16 The other victims have not suffered long term effects of the injuries.

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The Case before Black DCJ 17 The court heard evidence that the Crown Prosecutor who had appeared before Gibson DCJ did not retain the carriage of the sentence matter and it was referred to the senior Crown prosecutor who then referred it to the Director of Public Prosecutions who determined that the application for withdrawal of the plea be made and that the matter proceed on the more serious offence which carries twenty years' penalty rather than the offence to which the applicant pleaded which carries seven years. The difference in the two offences as set out above is that the more serious offence requires the Crown to prove that the infliction of grievous bodily harm was done with intent to do grievous bodily harm. 18 The application was made before Black DCJ on the basis that the Crown having accepted the plea to the lesser offence had committed an error of judgment. The Crown then tendered, and Black DCJ admitted, a statement of facts prepared by the police from witness statements and told the court that it was put forward as an accurate statement of facts. Counsel for the applicant objected to the admission of the statement on the grounds that, in pointing to the error of judgment relied on by the Crown that there should have been an affidavit from the Crown Prosecutor as to what he looked at in terms of statements and that Black DCJ should not just look at the summary statement of facts. 19 In a judgment, Black DCJ outlined his reasons for admitting the statement prepared by the officer in charge stating that he accepted the assurance of the Crown that the document was reliable and appropriate to be relied on, holding that counsel for the applicant had a number of avenues whereby he could attack the basis of the statement of facts. The document was then admitted as part of the Crown's case. 20 It was put to Black DCJ by counsel for the applicant that the Crown should submit the whole of the evidence before the Crown, who appeared in the previous hearing before Gibson DCJ. The Crown elected not to tender the statements in support of the statement of facts stating that the statement of facts was an accurate summary of the Crown case. After being given an opportunity, counsel for the applicant declined to call any evidence or tender any statements but submitted that the Crown should have made available to the court all the material that the original Crown Prosecutor had when he made the decision to accept the plea to the lesser charge. 21 In his reasons for allowing the Crown to withdraw its acceptance of the plea, Black DCJ referred to the history of the matter as set out in the affidavit which placed before the court the evidence as to the internal review by officers of the Director of Public Prosecutions. 22 His Honour found that the Crown had the right to make the application and relied on BWM (1997) 91 A Crim R 260. His Honour then found it was not necessary to have all depositions or statements before him, nor was it necessary to have an affidavit from the Crown and that the material before him was accepted as the only material before him in particular the two paragraphs setting out the assaults and the injuries to Ellis as summarized above and that although there were other issues as to identification and intoxication, Black DCJ found that it was extremely difficult, in the light of the contents of the statement of facts, which he obviously treated as an outline of the case for the prosecution that an acceptance of a plea to the lesser count caused severe problems of credibility and the duty of the prosecution to the court. 23 His Honour relied on the following passages of Hunt CJ at CL in BWM at p263: "In the High Court, the basis upon which leave may be granted to the Crown to withdraw an acceptance of a plea was expressed as being where it is in the interests of justice that the Crown be permitted to do so. It was made clear that different interests were involved in that question, a proposition which was ultimately accepted by the applicant. The interests of justice include the legitimate interests of the Crown, which prosecutes on behalf of the community, as well as the legitimate interests of the accused. The High Court gave examples of situations which would fall within the interests of justice. The legitimate interests of the accused include the prejudice to him by any admissions made - these would include any admissions implicit in the plea itself - which would not have been made if the matter were to go to trial, or the unavailability of his witnesses at the time when the trail would proceed. The legitimate interests of the Crown include the situation which arise when the facts tendered on the sentencing demonstrate to the judge that the accused was guilty of the more serious offence originally charged. "

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Grounds of Appeal 26 The grounds of appeal sought to be relied on by the applicant firstly related to the admissibility of the statement of facts in which it was submitted that the provisions of the Evidence Act 1995 were not applied and that the judge erred in accepting the assurance by the Crown as to the reliability and admissibility of the statement of facts rather than applying the rules of evidence. 27 The remaining ground 4 was that Black DCJ erred in granting the Crown leave to withdraw the plea as the Crown had failed to identify circumstances warranting a change of the evidentiary position from that taken at the time the plea was accepted. 28 During the course of the hearing the Crown sought to rely on an affidavit filed which purported to exhibit the document headed "Facts" which had been admitted before Black DCJ which had been prepared by the officer in charge of the case and in addition, annexed the forty statements of the witnesses intended to be called. Mr Hamill, counsel for the applicant opposed the filing of this material before this court on the basis that it has not been shown why the material had not been placed before the District Court and there was no evidence that any of the material now sought to be adduced was any different. 29 Mr Hamill for the applicant relied on Boag (1994) 73 ACrimR 35 which was an application to withdraw a plea which case dealt with principles and the test to be applied as set out in the judgement of Hunt CJ at CL pages 37 and 38, with which the other members agree. 30 I note the following passage in Boag at p38: "Such requirements, it seems to me, are perhaps of less importance where the appeal is from an interlocutory judgment or order rather than against a conviction: cf Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 436-437; Wickstead v Brown (1992) 30 NSWLR 1 at 11. But the very least which must be provided before leave is granted to adduce additional evidence on the hearing of the appeal, in my view, is an acceptable explanation for the absence of that evidence at first instance",

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referring to the admissibility of further evidence. 31 It was submitted by Mr Hamill for the applicant that if court made an order vacating the order made in the District Court then the Crown could then run its application on the basis of proper admissibility before that court. It was submitted that this court should not receive a document setting out the statements of all the witnesses where a Crown Prosecutor specifically chose not to produce it in the District Court denying the applicant the opportunity of making submissions. 32 During the course of the hearing this court granted leave to adduce the additional evidence as set out in the affidavit of the respondent's instructing solicitor. This court frequently admits fresh, additional or substituted evidence by leave as it is empowered to do under s5F of the Act. This is particularly so in an appeal from an interlocutory judgment but there should be an explanation for failure to call the evidence before the trial court. It had been held that a tactical decision of counsel is not an acceptable explanation (R v Boag). 33 This court was asked by counsel to reject the evidence of the statements the applicant tendered at a time when the applicant seeks to have an order made by the District Court set aside, on the basis that the statements were not before the District Court. It is inappropriate to suggest, as the applicant's counsel did, that this Court should vacate the order and have the matter go back before the District Court. The parties are present before this court, the material is the same and an additional hearing is unnecessary. 34 These proceedings are interlocutory in nature. There is, therefore, no finality of any decision such as a conviction and there is no prejudice, as such, occasioned to the applicant other than the loss of the benefit of the agreement as the acceptance of the plea to the lesser charge. 35 Leaving aside the question of whether the statement of facts ought to have been admitted, the statement of facts clearly disclose facts that would support the more serious offence and it is clearly in the interests of justice that this court determine the issue by admitting the additional evidence on which the Crown seeks to rely. The evidence by way of affidavit relied on by the respondent sought to be admitted, should be admitted. 36 The evidence now being before this Court the grounds of appeal relating to the admissibility of the statement of facts is not now a matter on which this court has to decide. It is, however, clearly desirable on an application in the circumstances such as this application that the Crown place before a District Court evidence setting out the reasons for the acceptance of a plea and the material such as the statements upon which the Crown had relied. 37 Cumbersome though this procedure may be, there is clearly an interest in the community in the acceptance of pleas, after negotiations have taken place for the acceptance of a plea, unless the interests of justice otherwise dictate. 38 Although the statement of facts which was admitted did not purport to be proof of the matters contained within it and it purported to only outline the case for the Crown the seriousness of an issue such as the withdrawal of acceptance of a plea warrants proper evidence being placed before a court when a motion to allow withdrawal of that acceptance is to be heard. The evidence placed before Black DCJ was clearly insufficient. 39 As to the last ground of appeal, it was submitted that there was no identification parade although offered on behalf of the applicant and it was further submitted there were discrepancies between the descriptions of the various witnesses. 40 It seems to me that there will inevitably, particularly where there is alcohol in the early hours of the morning involved, in an intense situations such as described in the evidence now before the court, that there will be such variations. That is clearly, however, a matter for a jury. The issues of intoxication and intention will be, it is put, relevant in determining the intent of the applicant in the commission of the more serious charge. It seems to me this is clearly a matter for a jury to determine. 41 The submission of counsel for the applicant in submissions received subsequent to the hearing was the applicant's position is that this court should vacate the order made by Black DCJ but that there is no basis to find that there are good and proper reasons for the court to grant leave to the Crown to withdraw its acceptance as all that has been established in the present case is a difference of opinion between Crown Prosecutors. 42 What has been placed before the court is evidence of the circumstances consequent upon the change of prosecutor and an explanation as to the processes of the office of the Director of Public Prosecutions as an explanation of the application before Black DCJ. What is further clear is that the evidence now placed before this court clearly establishes a most serious set of facts which ought clearly be the subject of the more serious charge and that the matter should go before a jury on the undertaking of the Crown not to adduce evidence as to the offering of the plea to the lesser charge nor any evidence relating to the circumstances leading up to that. The Crown should deal with its case as it was before the hearing of 20 August 2001. 43 It is clearly in the interests of justice that the more serious charge be determined by a jury applying the passage in BWM at p267 cited above. Justice Dunford in Beeby (1999) 104 A Crim R 142 with whom the other members of the court agreed, held that where a plea was accepted to a manifestly lesser charge, it would bring the system of justice into disrepute. In my view, on the serious nature of the evidence before this court, to allow the applicant to be sentenced to the lesser count would similarly endanger the reputation of the system of justice. 44 The facts of this case warrant, in the interests of justice, that the Crown have leave to withdraw its acceptance of the plea. 45 I would therefore make the following orders:- ( i) That leave to appeal be granted; (ii) That the appeal be dismissed.

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(b) If the judge had not incorrectly acceded to the Crown's application to admit the unverified summary of Det Sgt Taylor and proceed on that basis it is probable that the Crown would have tendered the Crown brief of evidence, a copy of which the Crown had available in court and a copy of which the accused also had. After being given an opportunity to consider his position after the judge's ruling the accused did not seek to lead evidence. For example, he did not seek to tender the Crown brief and suggest that it did not support the statement prepared by Det Sgt Taylor. (c) While finality in criminal proceedings is highly desirable and important and the Crown should have conducted its case correctly before the judge and placed the relevant evidentiary material before him, these considerations are outweighed by the matters of public interest earlier mentioned when an interlocutory judgment or order is under consideration. (d) Because of the apparent strength of the Crown materials and the issues which they raise there would be a miscarriage of justice if leave were not granted to the Crown to rely on those materials. The resolution of the issues ought not to be tied to incorrect steps taken by the Crown. (e) If this court were to reject the Crown brief of evidence and hold that the statement prepared by Det Sgt Taylor was inadmissible even on an interlocutory basis (as I think it was) or an insufficient basis on which to act in the circumstances this would involve unnecessary expense and delay. In such an eventuality this court would allow the appeal. That would result in the Crown making a further interlocutory application to the judge on fuller materials that is on the Crown brief of evidence. That would result in a further hearing before a primary judge and possibly a further application for leave to appeal. The accused complained that if the Crown brief of evidence were admitted he would lose the opportunity of having a primary judge look at such material and exercise his discretion and the further opportunity of having that decision reviewed on appeal. 70 The disadvantages complained of are more apparent than real. On our admitting the Crown brief of evidence the accused stated that he did not wish to lead or tender any evidence. The statement of Det Sgt Taylor covers in summary the important aspects of the Crown brief of evidence and the accused did not attend and seek to participate in the committal proceedings.

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Judgment (43 paragraphs)

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