MEAGHER JA: On 27 March 2009 the applicant was found guilty, following a trial in the District Court before his Honour Judge Frearson SC and a jury, of wounding Troy Clough with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW). That offence occurred on 29 May 2008 in a boarding house at Kirrawee. The applicant was sentenced on 24 June 2009 to imprisonment for 7 years and 3 months, with a non-parole period of 5 years. That non-parole period expired on 26 March 2014 and the applicant was released on parole on 26 March 2015.
On 17 July 2009, the applicant filed a notice of intention to appeal against his conviction and sentence. The time for which that notice had effect was extended until 26 February 2010. There have been no further applications for an extension of that time. Since late 2009, the applicant has been self represented and has filed a large volume of material in support of his appeal. On 12 June 2014, he filed a notice of application for an extension of time in which to file a notice of appeal or notice of application for leave to appeal. On the same day, he filed a notice of appeal and notice of application for leave to appeal. By that time the grounds of appeal referred to in the various documents filed exceeded 50 in number and the applicant's submissions extended to about 4500 handwritten pages.
On 13 March 2015 the proceedings were mentioned before R A Hulme J who directed that the applicant file and serve the following documents by 10 July 2015:
(1) Reformulated grounds of appeal that clearly set out in a single document, without repetition, the asserted errors giving rise to an appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW);
(2) A document not exceeding 20 typed pages, or 40 handwritten pages, containing submissions in support of the grounds that are set out in a succinct summary fashion.
On 22 July 2015 the applicant filed a 20 page typed document headed "Summary of Grounds - In Sucinct [sic] with Submissions". That document contains 15 numbered grounds of appeal, each expressed in very general terms. For example, grounds 1 and 2 are:
1. The crown had intentionally (maliciously) pursued an illegal course of action against an accused person, without probable cause, when knowing the accused person to be innocent of the offence alleged.
….
2. The conviction were unsafe due to expert evidence considered to be reliable at the time of the trial is subsequently shown to be unreliable. It remains unsafe irrespective of the force of other "circumstantial evidence" pointing to the guilty of the accused. The principal applies to any evidence critical to the prosecution case that is subsequently shown to be unreliable [sic].
The applicant subsequently filed a further document containing an additional seven grounds of appeal numbered 16 to 22. He has also filed with those grounds and submissions copies of documents, only a limited number of which were exhibits in the trial.
Each ground of appeal is followed by a series of paragraphs, most of which in turn refer to documents. Not all of those documents are attached to the submissions. The submissions themselves do not always bear a recognisable relationship to the ground they purport to address and some subject matter is often dealt with in relation to more than one ground.
In general terms the applicant makes complaints about the conduct of the investigating police, the Crown, his legal representative, the witnesses called in the prosecution case and the trial judge. He alleges fabrication of evidence and of police records, corruption on the part of the investigating police, failures of the prosecution to disclose evidence, breaches of duty on the part of his counsel, perjury by witnesses called for the prosecution and errors of the trial judge.
The most efficient way of dealing with the applicant's arguments is to address them by reference to the 22 grounds of appeal which he relied on. An understanding of some of those arguments is assisted by a short summary of the principal issues at the trial, and of the investigation and events which preceded it.
[2]
The issues at trial
The applicant was charged with wounding Mr Clough with intent to cause grievous bodily harm, contrary to s 33(1) of the Crimes Act. Sub-section 33(3) provided for the entry of an alternative verdict of reckless wounding contrary to s 35, meaning that if the jury was not satisfied that the offence against s 33 had been committed, but were satisfied that he was guilty of an offence against s 35, a verdict of guilty could be entered in respect of the latter offence.
The victim, Mr Clough, and the applicant resided at the Dameeli Lodge at Kirrawee. The lodge provided single room accommodation for men and consisted of 12 rooms. Each room had a small bathroom and an external and internal entrance. The internal entrance was via a tiled hallway. There were six rooms on each side of the hallway. Mr Clough lived in unit 5 and the applicant lived in unit 6. The internal entrances to units 5 and 6 were directly opposite each other, across the hallway.
On 29 May 2008, following a verbal argument between them which occurred on a lawn outside the Lodge, there was a further confrontation inside the Lodge in which the applicant glassed Mr Clough in the face, causing a large laceration to his forehead and a small laceration below his nose. The wounding was not in issue at the trial as the applicant had signed an admission pursuant to s 184 of the Evidence Act 1995 (NSW) stating that Mr Clough was wounded as a result of a glass held by him impacting with Mr Clough's forehead.
There was an issue as to which of Mr Clough and the applicant was the principal aggressor in the incident outside the Lodge and, more significantly, as to the circumstances of the glassing incident. It was the Crown case that after the first confrontation Mr Clough re-entered the Lodge via a common entrance and walked along the short hallway to the entrance to his room, which was on the left as he approached from the laundry. In his evidence in chief (tcpt 23/03/09, p 8) Mr Clough described what happened next:
As I went to open my door Donovan come out again and started yelling abuse saying that I was working in the railways and I was working against him and I was in a political organisation. I told him to go away. He just kept on going on and as I went to turn, put the key in the door, I turned the key and I looked left, I looked right, I looked left again and then before I know it I got smashed in the face with a glass. Then I reacted, after five seconds after that. And then I punched him on the side of the face out of self-defence because he was going for something. I don't know what else he was going for. So he fell on the ground. I picked him up and I punched him twice again in the head and then John [Zafiris, the owner of the Lodge] come down and stopped it and said, "You go to your room, Donovan, and Troy you go to your room" and that's what happened there.
The applicant disputed that version of events. On his account, he returned to his room from outside and made himself a drink of bourbon with ice in a clear glass. His evidence continued (tcpt 24/03/09, p 55-56):
A. … I'm a little [bit] vague because I'm unsure if there was a knock at the door or if I just happened to be near the part of the room at the time but I'm almost certain there was a knock at the door and I remember very clearly being near the door and the door burst open and I don't even remember really getting hit but I do remember being grabbed and falling backwards into my room and the door banging as he did that on the TV and the drawers that were - the TV was sitting on.
…
A. We just went backwards, went straight backwards. He landed on top of me and I remember, once we hit the ground, he just looked at me and didn't - you know like for a split second and I just whacked him straight in the face.
…
A. I just whacked him straight away because I just feared him.
The door providing access from the hallway into the applicant's unit was hinged on its left side (viewed from the hallway) and opened inwards. The floor of the bedroom was covered with carpet except for three rows of tiles which ran along the wall on the left side of the bedroom as it was entered through the door. That tiled area extended to a little less than half of the width of the door when closed. A small chest of drawers (with a television set on top of it) was positioned on that tiled area just beyond the swing of the door when opened inwards.
Mr Zafiris drove Mr Clough to Sutherland Hospital and asked him not to call the police, saying that "Donovan will be thrown out" and would be "gone by tomorrow" (tcpt 23/03/09, p 12). At the hospital five stitches were used to close the laceration on the right side of Mr Clough's forehead above his eyebrow and a small laceration below his right nostril was cleaned. Mr Clough told the doctor that he had "tripped and fell and hit a glass" (tcpt 23/03/09, p 13).
When he returned to the Lodge that evening, Mr Clough observed blood near the lock mechanism on the side or edge of his door; little bits of blood on the floor inside his room and in the hallway; and some blood on the applicant's door frame (tcpt 23/03/09, pp 14-15). He had earlier seen Mr Zafiris cleaning up the floor of the hallway "where the glass was" immediately after the incident.
Early on the following morning, Mr Clough saw the applicant leaving the Lodge to go to work. He asked Mr Zafiris when the applicant was going to be evicted and was told that that might not happen straight away because he had nowhere to go. Mr Clough then decided to report the matter and did so at Sutherland Police Station that same morning.
[3]
The police investigation
The officer in charge of the police investigation was Senior Constable Janet Wilkinson (SC Wilkinson). On the morning of 30 May 2008, when Mr Clough presented at the station, she interviewed him with Constables Parish and Reyes. Photographs of clothing said to have been worn by Mr Clough at the time of the assault were taken by Constable Ward. In the afternoon of the same day, Constable McSwan took a statement from Mr Zafiris, who heard the glassing incident, did not see any fighting but did see Mr Clough and the applicant standing in the hallway, the former with "blood all over him" and blood on the floor (tcpt 24/03/09, pp 6-7). At about 4.35pm on 30 May, Sergeant Webb (Sgt Webb), SC Wilkinson and Constables Parish and Reyes attended the Lodge. Sgt Webb and SC Wilkinson inspected the applicant's room. He identified the clothes that he was wearing the day before as having been washed and "hanging over the shower". Photographs were taken and three items of clothing (a blue t-shirt, a pair of shorts and a singlet) were secured. Photographs also were taken of the accused's room, Mr Clough's room and the hallway. Mr Bates, the occupant of unit 4, was identified as a potential witness, and later gave a statement.
The applicant was then taken to Sutherland Police Station. He participated in a video recorded interview with Detective Black and SC Wilkinson. That interview concluded before 8pm. The applicant completed a form headed "Occupier's Consent to Crime Scene Examination", which recorded that the following examinations, written by hand, may result in damage to the premises: "swabs, photographs, section of carpet removal". Detective Black then proceeded to the Lodge and met Crime Scene Officers, Philip Austin and Michael Power. Officer Austin took a series of photographs and collected swabs of material for examination. Four items were collected and described as follows:
Item 1 - Swab of apparent blood from the Unit 5 door.
Item 2 - Swab of apparent blood from the Unit 6 door frame.
Item 3 - Swab of apparent blood from the tiles inside Unit 6 behind the main door.
Item 4 - Two trace swabs from the carpet in the middle of the main room in Unit 6.
On 18 June 2008 a buccal sample was taken from Mr Clough. The Forensic Examination Request Form P377 in relation to the four items collected by Officer Austin is dated 1 July 2008. The heading of that form wrongly describes the offence date as 30 May 2008. However, the correct date (29 May 2008) is stated in the narrative of the relevant events, which follows. On 1 July 2008 a Person DNA Sample Examination Form was also completed in respect of the buccal sample taken from Mr Clough.
The analysis of these items was undertaken by Mr Walton, a qualified biologist employed at the Division of Analytical Laboratories, NSW Health. He issued a Certificate of Analysis dated 19 March 2009. That Certificate reported that Mr Clough had the same DNA profile as the DNA recovered from the swab described as item 1 and that he had the same DNA profile as the partial DNA profile recovered from item 2. No DNA was detected in the remaining swabs from items 3 and 4.
[4]
The events preceding the trial
On the evening of 30 May 2008 committal proceedings were commenced against the applicant in respect of two offences. Those proceedings were commenced by the issue and filing of a Court Attendance Notice returnable before Parramatta Local Court on the following day. The two offences charged were:
001 On 29 May 2008, maliciously inflicting grievous bodily harm on Troy Clough with intent to do so contrary to s 33 of the Crimes Act.
002 On 29 May 2008, recklessly wounding Troy Clough contrary to s 35(4) of the Crimes Act.
The relevant charge numbers were H34968816/1 and H34968816/2. On 31 May the applicant was granted bail. The proceedings were then before the Court for mention on 11 June, 7 August, 4 September, 25 September and 23 October 2008.
In July 2008 the New South Wales Police brief of evidence was delivered. That brief identified as outstanding items the statements of Constable Reyes and Officer Austin. By this time the applicant was legally represented by a solicitor of the Legal Aid Commission of New South Wales. Before the hearing on 23 October 2008 the applicant consented, under s 68 of the Criminal Procedure Act 1986 (NSW), to waive his right to a committal hearing in respect of the two offences with which he was charged. On 23 October 2008 an order was made in the Local Court that the applicant be committed for trial in the District Court and to appear before that Court on 31 October 2008.
In November 2008, counsel was briefed to appear for the applicant at his trial. At that time, the Legal Aid Commission had not been served with a copy of the indictment. Later in November 2008 the Office of the Director of Public Prosecutions identified the Crown witnesses to be called at the trial which was originally scheduled for 12 December 2008. The trial eventually commenced on 23 March 2009. The indictment charging an offence under s 33(1) of the Crimes Act was presented to the Court and read, and a plea of not guilty was entered (tcpt 23/03/09, p 2).
[5]
The application to lead fresh evidence
The circumstances in which this Court will allow further evidence to be led on appeal are limited. However, in the present case, so as to allow the hearing of the appeal to proceed with expedition and to assist an understanding of the arguments which the applicant seeks to make, six folders of documents tendered by him were marked as exhibits.
Those folders contained material produced by Corrective Services NSW in response to an application made by the applicant under the Government Information (Public Access) Act 2009 (NSW) (GIPA) (Ex A); copies of the exhibits at the trial (Ex B1); a copy of the brief to counsel to appear for the applicant at the trial (Ex B2); a copy of the District Court file made available to the Legal Aid Commission following the bringing of the appeal (Ex B3); documents produced by the New South Wales Police Force in response to an application by the applicant under GIPA (principally being two copies of the original brief of evidence prepared in July 2008) (Ex B4); and copies of the transcript and of some exhibits in the trial, in each case containing the applicant's original notations (Ex B5). In addition, the applicant tendered a copy of his consent to the crime scene examination (Ex D) and a copy of what was described as "a blackened out photograph" (Ex C).
All of these documents, with the exception of Ex A, were admitted subject to a general objection by the Crown as to their relevance. It was accepted that Ex A might become relevant in the event that this Court was to re-sentence the applicant.
[6]
Ground 1
The applicant says that the original brief of evidence prepared by the New South Wales Police in July 2008 related to different offences for which he was not tried. As a result he says that there was no brief of evidence served in relation to the indictable offence with which he was charged. That complaint misunderstands the nature of the committal proceedings in the Local Court.
The first offence described in the Court Attendance Notice (Charge H34968816/1) is the same as the offence of which he was found guilty. The second offence in the Court Attendance Notice (Charge H34968816/2) is the offence under s 35 in relation to which the jury was entitled to find an alternative verdict (see [9] above). More significantly this ground does not describe anything that was done or not done at the trial, which was capable of demonstrating any miscarriage of justice in relation to the applicant's conviction.
[7]
Grounds 2 and 4
These grounds contain several complaints about aspects of the evidence at the trial. None of those complaints suggest that any miscarriage of justice occurred. First, it is said that the photographic evidence was unreliable and that the Crown did not disclose photographic evidence which was "exculpatory in nature". The photos of the scene; of the complainant's injuries and blood-stained t-shirt; and of the applicant's clothing were admitted without objection. The Crown had previously served the statements of the police officers and investigators who took those photographs. At the trial it was made clear that evidence as to the outcome of those investigations and the items gathered (including the photographs), would be led from SC Wilkinson. The jury was told (tcpt 23/03/09, p 7):
There were a number of police who went to the premises and did various things but there is no issue about their evidence so it is not necessary for you to have them all come along and tell you what they individually did. Senior Constable Wilkinson will tell you more what the police officers did.
No further direction was requested or required. The exhibits were clearly relevant and admissible.
Secondly, it is said that the investigating police "illegally replaced the track pants worn by [the] accused at the time of the incident with the beige shorts". That is not correct. The fact that the applicant was wearing long tracksuit pants at the time of the glassing and that those pants had not been subjected to any forensic analysis was made clear in the evidence. Mr Clough described the applicant as wearing a black tracksuit with zips down the side and a blue short sleeve top (tcpt 23/03/09, p 27). The applicant also said that he was wearing tracksuit pants, that the police did not collect them and that sometime later he took the pants in a plastic bag to Sutherland Police Station so that they could be forensically examined (tcpt 24/03/09, p 59). SC Wilkinson agreed in cross examination that the police did not take possession of any tracksuit pants on 30 May 2008 and that the applicant had attempted to deliver them to the police "several months" later. That subject was not taken any further by the applicant's counsel in cross-examination (tcpt 24/03/09, p 50). The suggestion that the police "illegally replaced the track pants" with a pair of beige shorts finds no support in any of the evidence either admitted at the trial or tendered on this appeal.
Thirdly, it is complained that the Crown did not call five police witnesses (Sgt Webb, Constables Parish and Reyes, Officer Austin and Detective Black) at the trial. This is correct. However it was not necessary that those witnesses be called in view of there being no issue about their evidence and no request on behalf of the applicant that they be made available for cross-examination.
Fourthly, it is suggested that the prosecution failed to disclose the "blackened out photo", which was said to show a "large red blood stain inside the accused's unit 6, on carpet, near doorway entry". Ex C was said to be a copy of that photo. When it was tendered the applicant made clear that no copy of that document was in evidence at the trial or contained within any of the six folders which were tendered in the appeal. The evidence led on the appeal and at trial provides no support for the assertion that there was any such blood-stain inside unit 6. The evidence of SC Wilkinson was that the only blood-stain found in unit 6 was on the tiled area immediately behind the closed door, where a small piece of glass was also found (tcpt 23/03/09, p 15). None of the photographs taken of the interior of unit 6 showed any other blood-stains. SC Wilkinson also gave evidence that Officer Austin examined the carpet inside unit 6, including by white light and UV light testing. He reported that there was no staining of that area of the carpet and no sign that the carpet had been cleaned (tcpt 24/03/09, pp 40-41). Officer Austin also took a swab from the carpet in the middle of unit 6 which did not test positive to the presence of blood or DNA.
Fifthly, the applicant says that his legal representative did not object to SC Wilkinson's evidence concerning the crime scene examination, forensic analysis and results. That is correct but does not mean that there was any miscarriage of justice. What was done was consistent with the applicant's counsel acting in accordance with his instructions. The evidence of SC Wilkinson was consistent with that which would have been given by the relevant police officers and investigators, had they been called, and that which was contained in their statements. There is nothing either in the transcript of the trial or in the evidence to suggest, even remotely, that there was any disobedience of instructions or incompetence on the part of the applicant's counsel. That any error was made which led to a miscarriage of justice that would warrant appellant intervention, has not been established: see R v Ignjatic (1993) 68 A Crim R 333 at 336.
Sixthly, it is said that the trial judge erred in summing up by stating that the blood-stains on the hallway wall shown in photos 7 and 8 of trial Ex C had been tested and that the result was a partial DNA profile that was consistent with Mr Clough's blood (tcpt 25/03/09, p 23). It is correct that those blood-stains were not tested. However, the swab taken from the nearby doorframe of unit 6 did test positive in the relevant respect. Accordingly, although the trial judge misstated the evidence, he did so in a very minor respect which was of no significance given the evidence that DNA matching that of Mr Clough was found on the doorframe of unit 6.
Finally, the applicant asserts that the trial judge erred in failing to disallow any cross-examination of him concerning the evidence arising from the crime scene analysis. Once that evidence was admitted, cross-examination of the applicant in respect of what it showed was justified and not unfair. The cross-examination was not objected to and did not result in any miscarriage of justice.
[8]
Ground 3
The applicant says that the video recording of his police interview, which became trial Ex E, was "illegally edited". When that evidence was tendered, the following exchange occurred between SC Wilkinson and the trial advocate (tcpt 24/03/09, p 43):
Q. But there was some things discussed between you and Mr Turner, which are not relevant to this case before the court?
A. Yes.
Q. And you understand that some of that material has been removed from the DVD by my instructing solicitor?
A. Yes.
It is apparent, as the Crown submits was the case, that an agreement was reached with the applicant's legal representatives that those answers should be removed as they were irrelevant to the central issues in the trial, prejudicial to the applicant or inadmissible. On the hearing of the appeal, this Court was provided with the edited and unedited transcript of that interview. Reference to the matters which were edited confirms that they have one or other of those characteristics. Their editing or removal from the DVD recording that was tendered was in no sense illegal and did not result in any miscarriage of justice.
[9]
Ground 5
The applicant asserts that SC Wilkinson perverted the course of justice. In particular, reference is made to the evidence concerning the applicant's clothing (principally, the black tracksuit pants), the "blackened out photo" and the absence of any forensic analysis of the "section of carpet removed". The first two of these matters have already been addressed (see [32] and [34] above). The reference to the removal of carpet is based upon the applicant's consent form completed on 30 May 2008 (see [19] above). Although that consent form refers to "section of carpet removal", it does so in the expectation that such an examination might be undertaken. The evidence does not show that any such examination was in fact undertaken, either by Detective Black or anyone else.
As the Crown submits, there was no suggestion during the trial that the police committed any corrupt acts in the gathering of evidence. Nor was there any challenge to the way in which the police dealt with the witnesses, the exhibits or the applicant. This ground is without substance.
[10]
Grounds 6 and 7
These grounds raise three matters. First, the applicant says that SC Wilkinson gave false evidence when she said (tcpt 23/03/09, p 12) that Mr Turner attended the Lodge at 9pm on 30 May 2008. That involves a misunderstanding of the evidence. The reference to "Mr Turner" (as distinct from Officer Austin) is in the question and not in the witness's affirmative answer. The questioner was plainly to be understood as referring to Officer Austin. At the relevant time, the applicant was in custody.
Secondly, it is said that the date of the alleged offence was "manufactured" because the Forensic Examination Request Form refers to an offence occurring on 30 May 2008 (see [20] above). That date also is plainly an error, as the following narrative in that document shows.
Separately, the applicant says that the police records indicate that a swab was taken from the hallway of the Lodge and was not subsequently received or analysed. That assertion is made on the basis of the narrative in the Forensic Examination Request Form, which refers to a swab "taken by crime scene from the hallway" and to SC Wilkinson's reference in para 22 of her statement dated 23 June 2008 to the obtaining of "swabs from the hallway and carpet". Neither of those documents was written by Officer Austin who took the four swabs on the evening of 30 May 2008. Swab items 1 and 2 were taken from the door to unit 5 and the doorframe of unit 6, in each case reasonably answering the description of being from the hallway. The four swabs which Officer Austin took were received and analysed.
[11]
Ground 8
The applicant claims that the trial was "unconstitutional" because it involved "falsified court file numbers". It is said that there was more than one court process but only one "brief of evidence" delivered by the prosecutor. This complaint is dealt with in relation to ground 1 above. The applicant appears to misunderstand the relationship between the committal proceedings commenced in the Local Court and his trial in the District Court on the offence which was the subject of the one indictment presented at the beginning of the hearing (see tcpt 23/03/09, p 2).
[12]
Ground 9
Similar arguments are made in relation to this ground. The applicant also claims that his trial "miscarried" because his counsel did not seek to quash the allegedly defective indictment. For the reasons already given there was no basis on which such an application could or should have been made.
[13]
Grounds 10 and 11
In a related argument, the applicant asserts that the police and the prosecution failed in their disclosure obligations. The misguided basis of this claim appears to be an assertion that there were at least two separate charges brought against him, each of which attracted a disclosure obligation.
It is asserted also that there was an abuse of process and a perversion of the course of justice occasioned by the Crown having improperly obtained evidence and by the trial judge failing to provide an "adequate warning" to the jury in respect of that impropriety. The statement made by Detective Black dated "23 June 2007" is relied on as an example of the Crown manufacturing evidence. This suggestion appears to fix upon the incorrect year appearing at the top of that statement, which is recorded correctly as 23 June 2008 at the foot of each page, where it has been signed. Even assuming that any impropriety or irregularity was established, the directions that ought to have been given to the jury by the trial judge are not explained or apparent. These grounds were not established.
[14]
Ground 12
The applicant repeats his claim that the trial "miscarried" because several police witnesses were not called. This submission has been dealt with above at [33]. Unsurprisingly, given what was in issue in this trial, his counsel did not require any of the witnesses to be called and none of their evidence could have assisted the applicant's case. Dr Brownlea treated Mr Clough's injuries at Sutherland Hospital. The fact of those injuries was not in issue. Detective Black attended the Lodge on the evening of 30 May 2008. Constable McSwan obtained the witness statements of Messrs Zafiris and Bates. Each of those witnesses was called to give evidence. Constable Ward took custody of Mr Clough's blood soaked t-shirt and took photographs of him. None of that was controversial. Officer Power attended the scene with Officer Austin. He did not make a statement, although he witnessed the statement of Officer Austin. Constable Harrington also attended the crime scene on the evening of 30 May and transported the four exhibit bags, containing the forensic swabs, to Sutherland Police Station. Finally, Senior Constable Bridge obtained the buccal DNA sample from Mr Clough.
[15]
Ground 13
In a related submission, the applicant says that SC Wilkinson was "NOT qualified to give expert evidence upon the Certificate of Analysis". That is likely to be correct, but not to the point. At the trial SC Wilkinson summarised the crime scene and forensic evidence in circumstances where the applicant's counsel had been served with the underlying evidence and did not require any of the witnesses for cross-examination. It also is not suggested that any of those witnesses could have given evidence which would have assisted the applicant's defence. There was no miscarriage of justice in what occurred.
[16]
Ground 14
It is said that the trial judge misdirected the jury in observing (tcpt 25/03/09, p 23) that "Photograph 29 shows the door handle to room 5 and not unexpectedly the DNA matched Mr Clough". That summary was consistent with SC Wilkinson's evidence (tcpt 24/03/09, p 42). That evidence was that a swab taken from "before the door handle on room number 5" had a DNA profile which matched that of Mr Clough. That evidence, in turn, was consistent with the statement of Officer Austin that the swab referred to was of "blood stains on the adjacent door frame" to the lock of unit 5. Given that Mr Clough was the only person who was bleeding during the incident and the narrow issues at trial, any minor mis-description of the precise place from which the swab was taken was not material and did not result in any miscarriage of justice.
[17]
Ground 15
The applicant makes at least four arguments. First, it is said that the failure to call the forensic biologist, Mr Walton, resulted in a miscarriage of justice because there were "numerous inconsistencies" in the results recorded in the Certificate of Analysis that required explanation. Exactly what those inconsistencies are is not explained, and for that reason the argument falls away.
Secondly, it is said that there was a "non disclosure" of fingerprint evidence. Neither the transcript of the trial nor the evidence tendered in the appeal suggests that any relevant fingerprint examination was undertaken.
Thirdly, the applicant repeats his argument that a section of blood-stained carpet removed from his unit was not submitted for analysis. That submission has been dealt with above at [40].
Finally, the applicant submits that the trial judge erred in allowing the Crown to question him about the glass pieces found inside and outside his room, as well as about the other crime scene evidence. This has also been dealt with above at [37]. There was nothing irregular about that cross-examination. It was based upon matters that were in evidence and uncontroversial. Considerations of fairness required that the applicant have the opportunity to respond to evidence which was adverse to his version of events. Furthermore, there was no objection to any of that cross-examination by the applicant's counsel.
[18]
Ground 16
The applicant complains that his trial "miscarried" because of the different records associated with the four swabs taken by Officer Austin on 30 May 2008. This argument appears to fix upon the different descriptions of the relevant COPS entry for the incident in the police Exhibit Book records. Whereas the record for the four swabs refers to COPS event No E34294543, the entry for the three items of clothing taken by Sgt Webb from the applicant's bathroom refers to COPS event No 34292543. This argument is without any merit whatsoever.
[19]
Ground 17
The applicant describes this as a "fresh evidence" ground. He asserts that the trial miscarried because Mr Clough suffered from a diagnosed mental health condition at the time the offence was committed. Reference is made to medical records from Sutherland Hospital Emergency Department, dated 18 December 2002, which are said to disclose that Mr Clough was suffering from a "drug psychosis mental illness". It is unclear what precise records the applicant is referring to.
However, it is not necessary to take this matter further because even assuming that those records indicate that Mr Clough was diagnosed with some form of mental illness in 2002, they do not establish that any such condition continued in 2008 or that it related to the likelihood that he might have behaved in any particular way in the circumstances that confronted him on 29 May 2008. The evidence referred to provides no support for a conclusion that the applicant was innocent or that his guilt was not established beyond reasonable doubt, such that the verdict could not be allowed to stand: cf Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 520.
[20]
Grounds 18 and 19
Neither of these grounds has any substance. The first is that the trial was "unconstitutional and unlawful" because some documents wrongly referred to the trial as having being held on 24 June 2009 (the date of sentence) and not on 23-25 March 2009. The second claims that there was an abuse of process because of a mistaken reference during a preliminary mention before the District Court to the matter being "governed by Practice Note 6". That mistake was corrected at the time by the applicant's solicitor. Neither of these matters have any effect on the conduct of the trial.
[21]
Grounds 20 and 21
Neither of these grounds is directed to material in evidence at the trial or to anything that happened during the trial. Each fixes upon mistakes in the description of an exhibit, or in the transcript, or is based on a misunderstanding of the relationship between the Court Attendance Notice issued on 29 May 2008 and the subsequent indictment presented to the District Court at the commencement of the trial. None of these matters had any effect on the trial.
[22]
Ground 22
This ground is completely unfounded. The applicant claims that there was an abuse of process because the prosecution failed to disclose "illegally installed listening devices and telephone intercepts". Neither the transcript of the trial nor any of the material tendered by the applicant suggests that any listening device and telephone intercept material existed or was relied on with respect to the prosecution of the applicant.
[23]
Unreasonable verdict
Although there is no ground of appeal which squarely raises this ground, the Crown has addressed it in its written submissions and I propose to do so for completeness.
When determining whether a verdict was unreasonable this Court must make its own assessment of the sufficiency and quality of the evidence. The question for this Court was described by Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. [emphasis in original]
In addressing that question the Court should not disregard or discount either the fact that "the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen [1994] HCA 63; 181 CLR 487 at 493.
The issues for the jury were whether the Crown had established that the applicant intended to cause grievous bodily harm to Mr Clough and whether the Crown had excluded self-defence as a reasonable possibility. In the end those questions depended upon whether the jury accepted Mr Clough's account of what happened. On that version of events the applicant was the aggressor and "smashed [him] in the face" without warning.
Mr Clough's version of events was strongly supported by the evidence of what was observed at the scene and the forensic evidence. His version accounted for the absence of any evidence of blood on the applicant's carpet inside unit 6. In addition the evidence of Mr Bates was that when he first looked up the hallway, he saw Mr Zafiris in the middle of the corridor keeping Mr Clough and the applicant apart. He also saw pieces of glass on the hallway floor between the two doors. Those pieces included the base of a glass (tcpt 24/03/09, pp 24-25).
In the light of this evidence and the absence of evidence which raised the reasonable possibility that the incident had happened inside the applicant's room, and after Mr Clough had "landed on top of the applicant", the jury was well able to be satisfied beyond reasonable doubt that the glassing incident had occurred in the manner described by Mr Clough. This is not a case in which the jury must have entertained a doubt about the applicant's guilt. Accordingly this ground, if it arises, is not established.
[24]
The sentence appeal
The applicant has made no written submissions in relation to his foreshadowed sentencing appeal. However, in oral argument he said that the sentencing judge had made an error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. In Muldrock, the High Court held that, in relation to an offence for which a standard non-parole period was specified, a sentencing judge should not commence the exercise of sentencing by asking whether there are reasons for not imposing the standard non-parole period or proceed to an assessment of whether the offence is within the mid-range of objective seriousness: at [25].
The Crown contended that the offence in this case was within the mid-range of objective seriousness. However, the sentencing judge did not accept that submission. He addressed various matters personal to the applicant. Having referred to the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), he continued (tcpt 24/06/09, p 6):
There is a standard non-parole period and I am required to record reasons for departing from it if I intend to and I record the reasons as my finding, particularly that it is below the mid range of objective gravity, and I also propose to find special circumstances.
I acknowledge the non-parole period remains as a guide together with the maximum sentence and I do not oscillate or vacillate about it. I do take it into account as a guide. I have been referred to some comparative cases and whilst they are of some general assistance at the end of the day each case has to be determined on its own facts and that is what I propose to do.
In my view that stated approach of the sentencing judge did not involve what is referred to as Muldrock error. His Honour correctly identified the maximum sentence and standard non-parole period as "guides" and took them into account in that way: see Muldrock at [27]. He did not then undertake an exercise which proceeded simply to identify matters which justified a departure from the standard non-parole period. Indeed, his Honour expressly disavowed "oscillating" about it, which I take to mean seeking to impose a sentence which is to be justified by reference to an assessment of a relationship between the applicant's offence and an offence said to be within the mid-range of objective gravity.
Taking into account the seriousness of the offence and the aspects of the applicant's subjective circumstances identified by the sentencing judge, the sentence imposed of a non-parole period of 5 years with an additional term of 2 years and 3 months, whilst at the upper end of the range of sentences which might reasonably have been justified, was not so unreasonable or plainly unjust as to warrant this Court's intervention.
[25]
Conclusion
In the circumstances, the time for the applicant to file his notice of appeal against conviction and his notice of application for leave to appeal against sentence should be extended to 12 June 2014. The applicant has sought to conduct his own appeal since 2009. An apparent reason for his delay is his extensive attempt to gather information and documents, which he believed to be integral to his prospects of success on appeal. In this case the interests of justice are served by allowing the applicant the opportunity to put his arguments and finally disposing of them. The applicant's appeal against his conviction should be dismissed and his application for leave to appeal against his sentence refused.
The orders I propose are:
1. Extend time to file notices of appeal against conviction and leave to appeal against sentence to 12 June 2014.
2. Dismiss the appeal against conviction.
3. Refuse leave to appeal against sentence.
HALL J: I have had the benefit of reading in draft the judgment of Meagher JA. I agree with his Honour's reasons and the orders proposed by him. I briefly record my own reasons in respect of the question of unreasonable verdict. As Meagher JA has observed at [62], although there is no ground of appeal which squarely raises that question, it has been addressed by the Crown in its written submissions.
In determining whether a verdict was unreasonable or could not be supported having regard to the evidence, the Court is required to apply the test set down in M v R [1994] HCA 63; 181 CLR 487 at 493, re-stated in MFA v R [2002] HCA 53; 213 CLR 606. The Court is required to make an independent assessment of the evidence, both of its sufficiency and quality. The central question is whether this Court is satisfied that the appellant is guilty of the offence charged: SKA v R [2011] HCA 13; 243 CLR 400 [11]-[14], [20]-[22].
The two central issues at trial, as noted by the Crown, were self-defence and the applicant's level of intoxication. A pivotal factual dispute was the location of the incident - namely, whether it occurred in the hallway or inside room 6.
The Crown case principally relied upon the evidence of Mr Clough. It is apparent that the jury accepted his evidence which found strong support in forensic and other evidence. Such evidence included the piece of glass found in the hallway, the stains on the door to room 6 and apparent stains on the brick hallway next to the door to room 6 from which a partial DNA profile was recovered. That profile was consistent with Mr Clough's DNA profile. An apparent blood stain was found on the door frame adjacent to the lock of the door to room 5. Forensic analysis produced a DNA profile that was the same as Mr Clough's DNA profile.
There was other evidence which confirmed Mr Clough's account. This included the evidence of Mr Grahame Bates, a resident in room 4 who found Mr Zafiris separating the applicant and Mr Clough in the hallway.
As the trial judge correctly told the jury in his summing up, if Mr Clough's account of the attack as having occurred in the hallway was accepted, there would be no basis for a defence of self-defence: Summing Up at p 15.
The evidence, in my assessment, was sufficient for the jury to conclude, beyond reasonable doubt, that the applicant was guilty of the offence charged under s 33 of the Crimes Act 1900 (wounding with intent to do grievous bodily harm). Upon consideration of that evidence I am satisfied that he was guilty of that offence.
SCHMIDT J: I, too, agree with the reasons given by Meagher JA and the orders which his Honour proposes. I also agree with the additional observations of Hall J. Like their Honours I am also satisfied on the evidence that the applicant was guilty of the offence of which he was convicted.
[26]
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Decision last updated: 18 December 2015