SHERWOOD -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 81 (20 April 2007)

4 The time within which the appellant was required to file his appeal notice (or notice of appeal) was 27 July 2004. It was not filed until 12 December 2006. It is accordingly some two years four months out of time. The delay may be described as inordinate or "gross". Where there is delay of that kind, exceptional circumstances must be shown before an extension of time will be granted, unless it is demonstrated that there would be a miscarriage of justice if the extension is not granted (Peck v The State of Western Australia [2005] WASCA 20 per Roberts-Smith JA (Steytler P and Wheeler JA agreeing) at [6] - [9]; Buckland v The Queen, unreported; CCA SCt of WA; Library No 980144; 3 April 1998, at 3 - 4; BPR v The State of Western Australia [2007] WASCA 41). Such an application accordingly rests entirely on the merits of the appeal (Butler (1989) 44 A Crim R 215; Gavin v The Queen (1991) 6 WAR 195).

5 The appeal notice sets out one ground of appeal, as follows:

Material obtained post-conviction, which amounts to new evidence, establishes a miscarriage of justice occurred:

(i) The credibility of the two complainants was central to the Respondent's case;

(ii) The new evidence shows Counts 10-12 occurred at a time when the first complainant was not involved in umpiring football with the Appellant;

(iii) The new evidence shows Counts 20-24 occurred at a time when the second complainant would not have known the Appellant."

6 The application for extension of time is supported by the affidavit of Paul Lothar Ralf Meyer, sworn and filed on 12 December 2006. There were 20 annexures to that affidavit, mostly items of correspondence between the appellant's current and previous solicitors about his case, between the appellant and his current and former solicitors (including correspondence containing legal advice and opinion), but also including correspondence from a medical practitioner to the appellant's lawyers and what are described as "Subiaco/Wanneroo Umpires' Panel Grand Final List" for each of the years 1985, 1986 and 1987 ("the umpire lists").

7 The Appellant's Case was also filed on 12 December 2006.

8 The short point sought to be made by the appellant is that the umpire lists contradict the evidence of the two complainants as to the time and circumstances in which they said he committed the sexual offences upon them. Each of them related the offence to times when they were associated with the appellant in umpiring football matches.

9 The offences were committed over a period between 1985 and 1992 upon two (then) young male victims, B and K.

10 The appellant had faced trial on an indictment containing 26 counts. He was found not guilty on six counts, five in respect of B and one in respect of K.

11 The appellant previously appealed against the convictions entered in respect of counts 16, 17 and 18. They all related to the complainant B. The appeal was upheld and the convictions were quashed (Sherwood v The State of Western Australia [2005] WASCA 123).

12 The remaining offences concerning B occurred over a period between 31 March 1985 and 1 August 1992. At trial the appellant denied any of the offences occurred at all.

13 B's date of birth was 13 January 1971. His evidence was that the first year he umpired junior football was in 1986, when he was 15 years of age. Counts 10, 11 and 12 were alleged to have occurred in 1987 when B and the appellant travelled in the appellant's care to Moora to umpire football. B testified that trip occurred at a time when his father became ill, which was in June or July 1987.

14 The appellant now submits that the new evidence obtained by him "establishes and supports the fact" that B was removed from the umpires' list in May 1987. It is submitted this evidence goes to the question of B's credibility which was the central issue at trial.

15 The offences concerning K occurred over a period between 1 February 1985 and 31 December 1986. His date of birth is 21 January 1971.

16 K testified he met the appellant through umpiring junior football and that the appellant was in charge of umpiring back in 1985, which was the year K started umpiring.

17 The offences in counts 19 to 23 are said to have occurred between 1 February 1985 and 31 December that year.

18 It is submitted that the new evidence obtained by the appellant "establishes and supports the fact" K did not umpire in 1985, but was umpiring in 1986, the year he turned 15.

19 In accordance with the practice of the Court, I directed the matter be listed ex parte before me on 2 March 2007. When it came before me on that day, I pointed out to Mr Watters, counsel for the appellant, that it would be impossible for a single Judge, much less the Court of Appeal, to deal with the ground of appeal as presented, since it purported to rely wholly on new evidence when there had been no application for leave to adduce additional evidence on the appeal. Mr Watters sought to rely upon the three umpire lists annexed to Mr Meyer's affidavit. However, these were not original documents, each was simply a one page photocopied, typed, numbered list of names and the only material saying anything about their provenance was a letter dated 5 December 2006 from the appellant to Mr Watters, which was annexure PLRM 21 to Mr Meyer's affidavit. That letter was in the following terms:

"Dear Simon,

Further our [sic] telephone conversation on Tuesday 5th December 2066 [sic], with further documentation as requested.

1. 10 days before the trial on the 5-12 May 2004 I packed all items of papers and other documentations in large plastic storage bins and small cases.
2. When I was sentenced on the 6th July 2004, many of my friends assist [sic] in packing all my furniture and personal papers into storage in Osborne Park.
3. On the [sic] September 2006 I contacted my friends the Taylors at City Beach. Val Taylor with her son searched the bins and cases for legal papers and football umpires matters from my storage in Osborne Park.
4. On 23rd September 2006 I received from Val Taylor a large envelope containing legal and umpires papers from 1985-88.
5. On the 30th September 2006 visit the library and carried out research on the WAFL football budgets 1986-1987 football season re-Gadenne.
6. On the 18th September 2006, I received from Josephine Pepe the Appeal book and I noted that parts of the transcripts of the trial were missing they were - Gadenne, O'Reilly, Wrenstead, Mrs Yeo and Mrs [B], approx 287 papers are missing.
7. In 1987 football season [B] failed to turn up to games to umpire. He was stood down on other times when was late to games to umpire. In May 1987 I terminate [sic] his umpire duties.
8. Simon are you going to put up also gadenne matters from [sic] 1998 trial.
9. On the 7th July 2004 my name appeared in the West Australian newspaper. I then received complaint from 1970 re-Jones (ex Police Officer) and also from Froudist 1973. This matter is now with Mr Paul Meyer of Thames Legal, I am due in the District Court on Thursday 21st December 2006.

1. Correspondence from Bayly & O'Brien
2. Correspondence from Gunning Young

1. Opinion from Josephine Pepe
2. Draft letters to Law firms (February 2006)
3. Correspondence to Gunning Young
4. Correspondence to Josephine Pepe
5. Correspondence District Court (Transcript Officer) hand written dates 26/9/06 9/10/06 17/10/06 22/10/06 for missing transcripts paper of trial 2004."

20 Leave to appeal is required for each ground of appeal (s 27(1) Criminal Appeals Act 2004 (WA)). The court must not grant leave unless satisfied the ground has a reasonable prospect of success (s 27(2)). The application of this statutory test was explained in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [50] - [60]). That is the approach I take here.

21 It was patently clear on 2 March 2007 that the appellant's sole ground of appeal had absolutely no prospect of succeeding on the material then before the court. Following further submissions from Mr Watters, and on his application, I accordingly ordered that the applications be adjourned until 28 March 2007 and relisted on notice to the respondent; that leave to file an application to adduce additional evidence be granted; that leave to file any affidavit in support of such application be granted; that any such affidavit or affidavits to be filed and served by 21 March 2007; and that any affidavits in reply by the State were to be filed by 4 pm on 27 March 2007.

22 On 21 March 2007 the appellant filed an application supported by an affidavit of Valma Doreen Taylor, sworn 16 March 2007 and an affidavit by the appellant dated 14 March 2007. This latter document has not been sworn - the jurat is not completed. For present purposes however, I will treat it as a proper document.

23 The application seeks an order that in this appeal the appellant be permitted to rely upon additional material, being the "Subiaco/Wanneroo Umpires Grand Final Lists" for each of the years 1985, 1986 and 1987.

24 On 28 March 2007, I gave leave to the appellant to amend his ground of appeal by deleting from particular (3), the references to counts 20 - 24 and substituting a reference to counts 19 - 23 and to include a particular specifying that the new evidence sought to be relied upon was the affidavit of the appellant and Ms Taylor dated 14 and 16 March 2007 respectively. I also ordered that the appellant file an amended ground of appeal, and having heard submissions from Mr Watters in support of the applications, I reserved my decision.

25 In fact, an amended ground of appeal was filed on 29 March 2007, but the only amendment made was the reference to the counts. Nonetheless, it is at least clear now upon what new evidence the appellant seeks to rely.

26 It is convenient - and sufficient - to set out at this point the relevant parts of the appellant's affidavit. They are as follows:

"3. From 1985 - 1988 I was the Umpires adviser for the Subiaco Junior football district ('the district'), which district came under the umbrella of the Subiaco Football and Sporting Club Inc ('Subiaco Club').

1. Prior to my commencing in this position Mr James Turley had been the umpires advisor for approximately three years.
2. On the district grand-final days (held over the Saturday and Sunday in a weekend in late September each year), the grand-final was held for teams competing in grades from under-13 through to under-17 ('grand final weekend').
3. On the grand-final weekend there would be a publication available for purchase from the gate, published for sale by the district ('booklet').
4. The booklet would be funded by advertising and through financial assistance from the Subiaco Club.
5. The booklet would contain information such as the team list of clubs competing during the grand final weekend and general information about the junior league. Printed on the back of the booklet (published in an A4 size footy-budget style) would be the Umpires List, together with the logo of HBF, who sponsored the umpires.
6. The Umpires List would state the names and respective numbers (worn on the clothing) of all people who had umpired during the year and who were eligible to umpire in the finals series of games, which culminate in the grand-final weekend.
7. As the umpires advisor I was in charge of everything to do with umpires in the district, from hiring and firing umpires during the course of the season, conducting training and generally arranging all matters relating to umpires during the football season.
8. From 1985 to 1988 I stored all relevant umpiring information (such as names, the allocated umpires' number, contact details, addresses, phone numbers) on a computer I had at home ('the computer'). Bearing in mind this was approximately 20 years ago, the computer I had between 1985 and 1988, by today's standards, was cumbersome in size and basic in operation.
9. Information, such as that referred to at paragraph 11 above, was stored on floppy discs that were black in colour and approximately 5¼ inches in diameter, these were used with the computer.
10. Each year between 1985-1988, from the information stored on my computer, I provided the Umpires Lists to the editor of the booklet who, as far as I was aware, would then provide this material to the publisher. For my own records, I also retained a copy of the Umpires List that I printed each year from the computer. These copies are attached as 'PNS1-3' above.
11. I also kept a copy of each of the booklets that were sold in each of the years 1985, 1986, 1987 and 1988.
12. Various material relating to the district, including documents retained by me and including that referred to in paragraph 14 above, together with other printed matter provided to me and generated in my capacity as Umpires' adviser, was kept in a lever arch file in the store room of my former premises at Unit 5, 32 Wattle Street, Tuart Hill.
13. Whilst at Unit 1 [sic], 32 Wattle Street, I also placed a large number of loose documents, relating to various matters, in a plastic storage box (about the size of a standard milk crate) that had a clip on lid ('storage box'). The documents I placed in the storage box included the copies of the Umpires Lists referred to in paragraph 13 above. Each of my copy [sic] of the Umpires Lists was placed in the storage box around the time of year I provided the information to the editor, namely late August of each year.
14. On 26 April 1991 I moved to Unit 1, 60 Wattle Street, Tuart Hill. When I moved I disposed of a large amount of material I no longer required. This included the lever arch file and its contents, referred to in paragraph 15 above.
15. However, when I changed residence the storage box and its contents were moved from Unit 5, 32 Wattle Street to Unit 1, 60 Wattle Street. When I moved I noticed the storage box was filled to its capacity with various documents, papers and other such material.
16. I got rid of the computer and floppy discs (referred to in paragraph 12 above) in 1992 and purchased a new computer. I kept no record, nor transferred from the computer to the new one, any information stored or retained in the computer or on the floppy discs.
17. I was initially charged in relation to these offences in February 2001 and went to trial in May 2004. I was on bail from the time I was charged up until the time the jury commenced its deliberations. I have remained in custody since that time in May 2004.
18. Aware of the importance of the Umpires Lists to my defence, in 2003, whilst on bail, I searched through the storage box, looking for the copy I had retained of each of the Umpires Lists. However, I was unable to locate them. I therefore thought I must have thrown them out at the time of my move, referred to in paragraph 17 above.
19. In an attempt to obtain a copy if the Umpires Lists for 1985-1988 I requested, also in 2003, after my unsuccessful search of the storage box, a friend of mine, Mr Anthony Edward Reed (who gave evidence on my behalf before the primary court; t-s 533 anon), to attend at the Subiaco Club and seek a copy of the booklet for the years 1985-1988. I asked Mr Reed to contact the Subiaco Club as, given the nature of the charges I was facing, I was embarrassed to attend or contact in person the Subiaco Club.
20. I understand in 2003 Mr Reed did so attend at the Subiaco Club and, as he informed me at the time, he was told by the Subiaco Club they did not retain any copies of booklets from 1985-1988, some 15-18 years prior to him attending.
21. At the time of my trial Mr Reed lived in Noranda. However, he no longer lives in Perth and I believe he now resides in Harvey, south of Perth. Despite my best endeavours, I have been unable to locate or contact him to obtain an affidavit to support paragraphs 22-23 above.
22. Once Mr Reed informed me in 2003 that he had not been able to obtain copies of the booklets from Subiaco Club I personally attended shortly thereafter at the offices of the publisher of the booklet, namely M&M Print, in Edwards Street, Osborne Park, to see if they could furnish me with a copy.
23. Unfortunately I was told by the publisher they only retained copies of documents and material for seven years. As I was seeking material from some 15-18 years prior they could not assist me. I therefore formed the view copies of the Umpires Lists could not be located prior to my trial.
24. ...
25. ... I further state:
    1. . The items I packed into large plastic storage bins included the storage box. As I had been advised during the latter stages of my trial by my counsel, Mr Gerard Edwards, to prepare for possible guilty verdicts and probable imprisonment I had begun to pack up my unit. The large plastic storage bins and small cases were kept in the store-room at my unit.
    2. My possessions, including the large plastic storage bins and small cases, were later placed in a storage unit at the Removalists Man in Osborne Park.
    3. In September 2006 I requested that my friend, Ms Val Taylor, retrieve from the storage unit legal papers from Bayly & O'Brien (my solicitors prior to trial). I also asked Ms Val Taylor to send to me any football related material, such as photographs and information about my involvement in umpiring that she could find in the storage unit. The reason I requested all this documentation was so I could send it to counsel, Simon Watters, to advise me on the merits of a possible appeal against conviction.
    4. The material I received on 23 September 2006 from Ms Val Taylor included the Umpires Lists, which I understand she located in the storage box which she removed from one of the large plastic storage bins at the Removalists Man and then searched at her home in City Beach. However, this material did not include the 1988 Umpires List, a copy of which I did keep, but which must have either been discarded, misplaced or lost by myself. The handwritten note at the bottom of the 1985 Umpires List was made by me after I received the material from Ms Val Taylor and prior to sending it to Mr Watters.
    5. A friend of mine, Mr Shane Halnan, attended at the Battye Library on my behalf.
    6. I confirm that in May 1987 I terminated the services of [B] as an umpire for the district.
26. Annexure 'PNS2', the 1986 Umpires List, shows [B] at number [X]. He umpired through the 1986 year. However, as 'PNS3' shows (the 1987 Umpires List), [he] was not available to umpire in the 1987 finals series.
27. At paragraph 24 of the Meyer affidavit it refers to 'PLRM19' (the 1986 Umpires List). That is not correct. It should be 'PLRM20' (the 1987 Umpires List) - which is the list not containing [B's] name, that Mr Meyer referred to.
28. The 1987 Umpires List, now sought to be relied upon, relates to Counts 10-12. I was found not guilty by the jury on each of these three counts. But the credibility of the complainant [B] was crucial to the prosecution case regarding all charges.
29. Without his evidence there was weak, circumstantial evidence as to the chargers [sic] from, for example, his mother, who testified as to times [B] had been in my car. There was also similar fact evidence (see paragraphs 26-30 of the Appellant's Submissions, contained within the Appellant's Case dated 12 December 2006), but this evidence did not go to proof of the elements of the charges.
30. I understand from my legal representatives that should the convictions regarding [B] be quashed and a new trial ordered, there would be fertile ground for him to be cross-examined upon concerning his credibility given the fact he signed a statement dated 18 October 2000, served as part of the prosecution brief, that stated various offences occurred during the 1987 season (at paras 36-60). The additional evidence sought to be relied upon shows this could not have been the case as he was not umpiring from May 1987 onwards and the passages in his statement seem to refer to the second half of 1987.

Annexed hereto and marked with the letters 'PNS5' is a copy of [B's] deposition dated 18 October 2000.

1. The new evidence sought to be relied upon regarding [B], being the 1986 and 1987 Umpires Lists, so undermines his credibility that, notwithstanding my acquittal on Counts 10-12, the convictions entered on Ct's 1-4, 6-9, 13-14 cannot be said to be sound and, on that basis, those convictions should be quashed and a new trial ordered.
2. Concerning [K], I was convicted on Counts 19-23 and 25-26 (I was found not guilty on Count 24), which were said to have occurred in 1985. The additional evidence sought to be relied upon, being the 1985 Umpires List, shows the complainant was not involved in umpiring in 1985 and could not have been associated with me through that activity, as he alleged.
3. It is not the case that he was umpiring in 1985 and was removed from the list prior to the preparation of the 1985 Umpires List. He began umpiring in 1986. His name is at number [X] on the 1986 Umpires List. He continued umpiring in 1987 and his name is at number [X] on the 1987 Umpires List.
4. The new evidence sought to be relied upon regarding [K], being the 1985 Umpires List, so undermines his credibility that, notwithstanding my acquittal on Count 24, the convictions entered on Ct's 19-23 and 25-26 cannot be said to be sound and, on that basis, those convictions should be quashed and a new trial ordered ..." (Emphasis in original).

27 In her affidavit Ms Taylor deposes that sometime in approximately September 2006 the appellant contacted her and asked her to go to the "Removal Man" in Osborne Park where he had various personal possessions stored. He asked her to retrieve and forward to him various legal documents and football-related material. She deposes that she went to the storage unit, located the requested material, took it home and shortly thereafter, sent it to the appellant by post.

28 It is beyond question that the evidence now sought to be relied upon by the appellant is "new" evidence and not "fresh" evidence. The distinction between the two was explained in Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 at [411] - [416] per Steytler J (as his Honour then was). "Fresh" evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. "New" evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered. In this case the appellant, as the person in charge of the umpires during the relevant years, according to his own affidavit, was well aware of the availability of this evidence. Even if the umpire lists themselves were not physically available to him because he had (just) put them in storage, he could have given evidence to the same effect and surely could, with reasonable diligence, have obtained evidence to support the facts (if they were so). Where the evidence is "fresh", a conviction will be set aside having regard to it, if it established that there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the appellant (Mickelberg (supra) [417] per Steytler J, Malcolm CJ concurring at [31]). However, as was explained by Pullin JA in de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 at [158]:

"... if the evidence is 'new' evidence, then it is not enough merely to show an increased chance of acquittal, Tkacz v Western Australia [2005] WASCA 108 at [49]. The 'new' evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the court concludes that the accused 'should not have been convicted'; Lawless (at 676); Mickelberg v The Queen (2004) 29 WAR 13 at [413]; Nolan (at 62 - 63); Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 at [371]; Hillstead v The Queen [2005] WASCA 116 at [61]."

29 A trial will not be unfair because the accused of his own volition did not call evidence which was available to him at the time (Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 per Barwick CJ). In relation even to an application to adduce "fresh" evidence, the Court of Appeal has some responsibility to examine its probative value to ascertain whether the evidence is cogent, plausible and relevant (Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439). In undertaking that exercise, it is necessary for the court to keep in mind the possibility that a jury, acting reasonably, might come to a different view than the court on the credibility of the witness or the cogency of the fresh evidence (Pileggi v The Queen [2001] WASCA 260 at [49] per Parker J (Malcolm CJ and Wallwork J agreeing); White v The Queen [2006] WASCA 62 per Wheeler JA at [146] - [147]).

30 There is a real issue here about the cogency and potential evidentiary value of the evidence. These are not original documents. The only explanation of their provenance comes from the appellant himself. They are not otherwise supported by any evidence. Rather than the umpire lists supporting the evidence of the appellant (which he did not give at trial but now says he would), acceptance of them as genuine documents and of what (he says) they mean, depends entirely on acceptance of the appellant's evidence about them. He gave evidence at his trial. The jury clearly disbelieved him. They rejected his testimony. It did not occasion the jury to entertain a reasonable doubt.

31 The umpire list for 1985, which is said to go to the counts concerning B, has two gaps. There is no name against two of the numbers. That is entirely unexplained.

32 Furthermore, on the appellant's own affidavit, these documents were produced at the end of each football season (in late August each year) and show those persons who had umpired during the season and who were qualified to umpire for the grand final. The necessary implication therefore is that there were (or may have been) persons who umpired during the year but did not qualify to umpire for the grand finals and so were not on the umpire list for that year. There was evidence at trial, for example, that B did umpire in the 1987 season, but did not qualify for the finals. The documents therefore do not show the offences could not have occurred at the times alleged.

33 In addition, in his evidence at trial, the appellant accepted that B finished umpiring in the mid-1987 season - which is the time at which B said the offences occurred during that year.

34 Likewise, in relation to K, although the appellant now seeks to argue the umpire lists show the offences in relation to him could not have happened because he was not umpiring in 1985, that is contrary to the evidence the appellant gave at trial. There, he accepted that K began umpiring in 1985 (t/s 433).

35 In short, the new evidence now sought to be relied upon, does not "show" either that counts 10 - 12 were alleged to have occurred at a time when B was not involved in umpiring football with the appellant, nor that counts 19 - 23 had occurred at a time when K would not have known the appellant.

36 The evidence lacks cogency in any relevant sense.

37 There is no reasonable prospect that the Court of Appeal would conclude that this "new" evidence establishes a miscarriage of justice, in that it shows the appellant is innocent of those offences or raises such a doubt that the court would conclude that he should not have been convicted. That being so, leave to appeal would have to be refused.

38 Given that conclusion, the application for extension of time must be dismissed.