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Supreme Cqnd of \Vestern. Australia NO; t:ACR ISS/2010 . Court ·ot~Appcui .A Pl,ELLANT'S SUBMIS~{(ONS

Parties to the iCDV I Appellant Appeal

'l'hc·State of Western Australia .Respondent .

l>ak of Document 19 November20ld ____,_

Date of Filing '23 February 20ll ~

Filed by The Appellant .

Appellant's adqrcss . Nicholson Clement -

for ser vice 4 Sulton Street . MANDURAH WA .6210· Tel: (08) 9535 lilitl Fax: (08) 9535 J593

Respondent's Director of PuQlic.ProsecutiOns solicitors Ley~I 1,

46 S.t George's Terrace, Per:th , WA, GODO Tel: 9425 3999 'Fax: 944.5 3600

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A. THEFACTS

I, The appellant wtls convicted at trial. of J 3 counts of Indecent dealing With a

chi ld Li1ider l'.3 yt";ars. relating to· five di°fferenL cornplainanfs m 1cox jcGz lcHA I and ~· The particul ars are set 91it ·accurately iii the pros~cutor· s opening

address, and the sentencing: remai·ks 6f the learned trfa/ judge IT654J.

2. 'The complainants had each been ~ludents at t11e primary School wl1ere the

appellant. Was a teacher of long sfanding.

3. The of{ences ·are. said to have occurred between ·1999 arJd 2008, most. of which

were said to ha ve tal<en place· during tfie· course of the scfiool daY, • . generally i'n

the appcllant'.s classroom· and sometimes in front of the class. Count 2 wiis

said to have occurred at Rottnest, during a s~hool camp.

4. T hree· of the ·ct)mplainants were slightly less thai1 I 0 year!> ·o.ld at the tih1c .of the

events in qtteStion, 'Ttfe Other tWO COrnplainantS, brothCl'Sr HA rind icHB ~Vere. 8

and 9 rcs,recti vcly.

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5. Nouc of the allegations were the subject of nn early complaint.

G. The appcl lanr was arrested following a ~earch ol' hi!\ house in 2009. I k made

no a<lmissions lo the police.

7.

8.

At trial, the aJJpel lant denied that. any of the events in question had bcc:urred

and offered no expianaiio11 _as to why the con1plaints might have been made.

I le did admit that 011 ocqsions, he had physical contact with his students but

denies that such touching was in any way sinister.

The appellant was sentenced to a total effective term of 5 years immediate

i mprisonmcnt with eligibility for parole. The exacL structure of the sentence is

Set out in the sentencing remarks IT668 I.

Il. APPEAL AGAINST CQNVICTION

Ground I - Longman· Direction

9. The learned trial judge erred by failing to give the jury an adequate Longman

direction on counts I, 2. 3. 4 and 5.

I 0. The events the subject of counts l. 2, 3, 4 and 5 had occurred many years

previously in 1999; lcGv ~ 2000EJand 2001rGz I By reason of the delay.

the appellant was al a significant forensic disadvantage.

11. The jury were given a form of the Lo11gma11 direction IT561 and 562.1 but it is

submitted that this was inadequate; the learned tria l judge should have warned

the jury of the actual prejudice suffered by the appellant as n result of the delay

in complaintan<l directed their <ittention to the specific difficulties and forensic.

disadvantage which arose :\'Sa consequence:

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AM 1• Tiu! Swte. of Western Australia 120081 \VASCA 196: (2008) l88

A Crim R 457 per Stcytler Pat [201; per t\•lillcr J at r 140- 1491: and

JJBvThcQuec11120061NSWCCA 126:(2006) 161 ACrimR .67.

12. Whilst the learned trial judge.'s direction <lid includ~ reference to the fallibility

of memory, the difficlllty fo testing the allcgaiion~ and the need to scrutinise

the evidence of each ·complainant, the directiol) ought to have dealt with ·the.

actual prejudice arising from:

(i)

(ii)

(iii)

(iv)

(v)

(vi)

the difficulty i1\ lde1itifying and locaiing potential witnesses to the

events in questio1i (such as students. parents nnd teachers);

the difficulty in ascertaining his own whereabouts and movements at

the lime in question;

the clothing. !1e·did or did not possess at the ti me;

the circumstaiices of the Rottnest trip and the day of the alleged

offence:

the 9ifficulty in cross-examining the complnini1nts when the specific

dntes in question were 1iot known;

the difficulty ill establishing whether any testing occurred on the fast

day of tenn in 2007 and 2008; I

(vii) rhe specific.school timetables at the time: and

(viii) the fad.ing memories of \Vitnesses other than the complainants. ·. ,,_

13. At the very least It Is s~rbmiticd tl~~t'_the_jury ~ oughl to have been 'directed .as' to ' Jhe various areas where the appellant was at, n11 m:tua l rather than potentlal

disadvantage because.<>f the delay. ....

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AM\' Stare of Western Australla. supra, per Miller JA at 1141.

14. The necessity for a more emphatic warning (SCI.! llyau ,. R 11998) 4-YR 182:

( 1998) lO I A Crim R 83) is reinforced by the fact that. in this case, there may

have been a number of witnesses who could have. given evidericc had !Ile

complaints been made early.

15. Whilst it is accepted that there. is no general requircm~nrto use the exp{ession

"dangerous to convict~" the. circumstances of the present case did warrant the

use of that expression Of, at · least, n warning in stronger terms.

Christopher,,' \.1 R l2000J WASCA 308; (2000) 23 WAR !06 per Owe11

Jat1371

16. The failure to give a proper Longman warning is a serious breach of the

prest.~ppositions o( che trial process .. /\s such, it is inappropriate to apply the

proviso.

Weiss r '/1ie Queell (2005 I HCA 81: (2005) 224 CLR 300 at 1451

A/I.{ .supra, per Miller JA ai 115 f I

Ground 2 - Propensity Direction

17. The learned trial judge erred by failing to give the jury an adequate direction

on propensity and uncharged acts. The requirements of such a direction are

referred to generaily by Buss JA in Al,. The Stnte of We.wem /\u.ftra/ia [20071

WASCA 228: (2007) 177 A Crim R 247 at 1481.

l8. It is accepted that it is not necessary, as a matter of law ror a trial judge, in

cases ·where there 'i s evidence of uncharoc<l acis to "i ve ~. ·Cook or Beserlc:k. . o e . . ·

direction.

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P/llf\'1 711e Srau: of'Wesrew A1Whii!ff f2M9J WA.SCA 1'3 l; (2009) 196

A. Crim R 516 pe.r Wheeler JA at I U9J-l 1£U)j

t 9. There wiff, however, !)i! cases for :which a warni'11g is necessary:

PIM_. supra per \Vheeier JA at [,1421 ~

Dair v. TJie. Sll1te. iJf WesiernAustralta. (2008) 36 WAR 4 l3 per Stey(Jer

Pat[i42]

GBTv the Sttlie rif Western Australia li009J 'WASCA i9.

20: .lt :is submitted that the· <lir~ction at IT555 .tb 560) \\fas excessively long,

l.:omplex and was likely to have.confused thej1iry.

21. During the course of the direction the.Jury were told on five occasip11s that the

propensity ev.identc Hnd u11charged acts nlight be lfsed to e,siablish that the

a pr.ell ant haq a "sex uni interest In young boys't lT529, T557 -560!.

22.. tjH~ directio11 dio not mnke: it clear that the jury should nQt reasoil that~ because

ti.ie appellant had been ·charged with offenc.:es agafnsf five separate bpys, the

case against the arjpeflanf in respect of eilch individuai boy W.tls: itecess.arily

stronger:

Cf:·.Philips v,R. (2006) 225 CLR 30.~

PIM v The Staie of Western A11str{iila, supra

Donaldsqn v. 17u: Strzte of IVestem Ausira(ia (2005) J 'I WAR i 22

D<.1ir v The.Stat(! of We.\·tem Aiwralia; .supra

:23. The. iearned trial jti<lgc failed 10· di red the ]iiry (as he)iad in passi1ig at: IT52 l j·

on the previous day) thitt they could 1iot: use the. cvfrlence fo· reastrn. that ·the

a(>Jkliant w~s the."'kTnd of ;persont' who was li~~ly to have commltteti any of

.the. other .offences: Sec Buss JI\ in AJ 11 Stare tf Westehi Ausira/l(l, supra at ~.,

1)21 citing .Roberts-$rni thJA at ri 27-130 I -in IJNwlds(Ji/, supra.

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24. There was a particulan1ccd in the present case for a strong direction in relation

to tht: propensity evidence because of the large. amount of evidence of this typ~

from the cornpiainams thcfllsel'"cs and from the staff members, - and

REDACTED \Vho gave cvidencc of uncharged acts).

25. Because of the large number or complainants as well as the orher "tendency"

evidence, there was· a heightened requirement to ensure that the jury did not

embark on an impermissible course of logic. The failure to give· a dear

warn ing to this effect led the trial W miscarry.

Ground 3 - Inadequate Summary of the Defence case

26.

27.

The learned trial judge erred by failing to gi vc the jury an adequate summarion

of the defence case as was required. See genera ll y:

Hill v The Slate. of Wesri:m Auslralia 12003 1 W J\SCJ\ 177

Pollock ,; Tlte State of We.Wern A11.\·rralia (2009) W ASCA 96

The learned trial judge. was required to put to the jury the primary factual

issues relied upon by the appellant in his defence. The learned trial judge's:

summary at IT53J ...., 5331 foi led to deal with the central issues raised by

counsel during the case and In his closing address adequately or at all.

Specifically, the learned trial judge did not properly direct' the jury concerning:

(i) The absence of any admissions;

(ii) The equivocal fiature of t11e pretext call, briefly mentioned at {T533l

but not dealt with at any length;

(ii) The Jack of early c()mplaint (touched on at IT5.U I);

(iii ) The circu111stances 111 which the compl<iints cn1crged (fouclicd on ai

IT5J21):

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(iv). The various contradictions in the. evidence ·of the complaiMnts .and

their prior ·i nco!1sistent .statements· (muched on at IT532-5331 but not

dealt wi(fl ar any length) :

(v) The inherent unllkeiibood or the events: occurring In a full classroom . ~ . ~

with a. permanently open door (not n)entioned)'.

(vi) The Sj)cciffc unlikelihood of counfs 9 and i5 having occurred (noi

mcntiohcd):

(vii) J,he lack of any evidence of material ·at the accused's home or on hi s

computer consistenr with him having· deviant sexual Interests tnot

mentioned};

(viii) The failure of the polite to Jind any white Tr'shirt M ·1he appellant'.s

home_ (This wa~ t aken -,1\V<IY fron1 the jury aS' a. li yc issue at IT53 I J);

(ix) The potential for contamination of the. evide11ce of the brothers LJ and E:Jcrouched on indirectly at fT532J); and

(x} Charnc.:ter evidence (referred to at IT533 J, bul withbtit a full directip11,

which came the· fo!IO\v iiig:day).

Counsel's. attempt to have the leame<l tdal judge. rectify the defeds in hi$

summary of the defe!lC~ case \.V~IS cut short by His Honour saying at rT58 l-

5S21 " . ... I'm 1lot abo11i Jo recull the }w); and argue your c,:asefor y611 .. .. "

29. Tlie faHure ·of ihc learned trial judge to give ~he jury a balanced aud adequ<1te

suimnary of the· d.efence case was an error ·of la\f, which caused th~ trjal 1<.1

·miscarry.

3(). The learned .frial judge, when acltl ressing the appeliant'~ pr9position that the

deiay )n . ~omplaint hyEJvas a _.;ign ificant (actor lmpnc.:t.li"ig on ·his credibi lity

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quoted the complainant's explanation verbatim from the trnnscrif>t. at IT553 J.

His Honour did not. however. properly direct the jury how it could use the

delay in complaint in :!ssessingLJs credibility.

Ground 4 and 5 · T he Structure of the Address to the .J ury

31. The learned trial ji1dge's charge to the jury extended over two sitting days.

32.

33.

34.

35.

The summary of the def en cc case was gi vcn on the first day b111 a pumber of

the essential directions were 1101 given until the ncxlday.

The learned trial judge erred by giving the jury his summary of the defence

case before completing his directions of law and explaining the process· of fact

finding, Lhe drawing of inferences and the law relating to propensil)' and

uncharged acts.

It is submitted that the jury should have been directed fully as to the law and

the process of facl finding prior to them being given the summary of the

defence and prosecution cases. By way of example, the reference. to

inferences at LT52 L 551 and 5521 (without any previous guidance') was likely

to .have caused co11f usio11,

It was necessary for the charge. to the j11ry to proceed in the manner suggested

in order that the jury might properly understand and put into effect the fact­

fi nding process; this is because the defence case, to a large extent, relied on the

drawing of inferences a-dverse to the complainants. The substanti vc inference

was not given until mi1ch later in the charge IT564 I.

It is submitted that the qirections regarding inferences IT565 I and propensity

were critical ones \vhkh went to the question of 011us of proof a11d burden of

proof in fact finding and needed (o be given before any summ:lri of the

def cncc case.

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Because the inference and propensity directions had not been given and were

required to infom1 the jury as to the defence case and the restrictions on the

evidence led by the prosecution. the appellant was significantly disadvantaged.

37. The lt!arned trial ju<lge declinecl an invitntion by St!nior Counsel to redircd. the

jury IT5401.

Ground 6 - Crojts Direction

'38. The learned trial judge IT552-5541 gave the statutory .direction required by

section 368 of the Evfdem:e Ac! but failed to give an adequate directiqn 111

terms of Crofts v R ( 1996) i 86 CLR 427~ ( 1996) 139 ALR 455 .

39 .

40,

41.

The case was an unusual one in that, other than the complainant icox I none of

the other complaints were made before the police investigation began IT5321

and were made only after the police raised the matter with the complainants

. and their families LT55 I I.

There was not, on the evidence, any obvious impediment to an eafly q)fl1plaint

being made by any of the complainants. Each of them lived at home witf1 his

.parents in a secure ai1d loving environment an<l In circumstances where one

might reasonably have expected a complaint to have. been made if an offence

had been committed: se·e S11resh v R [ 19961 \VACCA 960432: ( 1996) 16 WAR

per Anderson J ai (36J .

The delay in respect of each count was signi ficant, particularly in relation ro

counts I, 2, 3, 4 and 5. The fad of the delay in complaint was an integral part

of the defence case. particularly having regard to the number of complaints,

the length of the delay arid the fact that none had complained at a reasonably

early stage.

42. .In respect of rhecomplalmwtlcox ~he re had been, in addition ro a long delay in

con1plai111, an earlier. specific. denial of any offrndin g by the appelllirH.

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43. le is conceded that a Crofrs direction will not be required in most cases of this

type. However, in the presenl case. the fail ure of the learned trial judge 10 give

a Crufls direction left the jury in the position of having been effectively mltl

that the d~lay in complaint was undcrstamlable and not a matter that couid

properly be taken into account. lhe defence case was significantly prejudiced

as a result ,c;ce FCC i1 Srate of H'eslero Australia 12008 1 WASCA 47; (2008)

183 J\ Cri111 R 313 ,per Wheeler JA at I J 0 11.

Ciround 7 - Unsafe und Unsatisfactory Vc1·dict on Count 9

44.

45.

46.

It is submitted that the verdict of guilty on Count 9 ~was inherently

unsafe and unsatisfactory 1 having regard to the lest set out by this Court in

Marti11ez. 1• Stace of We5tem Australia 120071 WASC/\ 143; (2007) 172 A

Crim R 398.

The factual scenario in relation to this count \YaS that the offence occurred

during testing i11 the appellm1!'s Class on the last day ofienn IYRIT 15, T 149

and f50 j. The \Yeight of the evidence before the. Court <)II this issue was that

there \Vas nq "testing1' ever conducted on primary students 011 ihe last day of

term or that there was any school work of any type done 0 11 this day.

Given the age of the complainant, the delay in complaint. and the other

unusual and unsatisfactory f ea tu res of this complaint, there is a sign ific~tnt

doubt about the veracity of the allegation.

47. It is submitted that the allegation. as described by the complainant was entirely

contrary to the evjdence. to logic and so inherently un likely as to make the

verdict 011 this count unsafe and unsatisfactory.

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Ground 8 - The Trial Judge 's Criticism of Defence Counsel

48. The learned trial judge erred by rebuking senior counsel in the pre:'ence of the

jury for "making. comments" which had the effect of reflecting ad\•crscly on

the accused's case, In Such circumstances this may make. the trial unfair. Sec:

49.

Sll.

RPS \ i /~ 12(>001 HCA 31(2000)199 CLR 620 at I 111

Randall ·"· 1'he Queen l2002J All ER (D) 88 (Apr); I 20021 UKPC 19;

f2002 I .I 'WLR 2237 at' f 224-5 J

The jury were warned ·not to. take any notice of the "comments" by counself

the implication being that counsel was behaving improperly. An examination

of the behaviour of senior counseJ and questions asked by him reveal no

transgression or inappropriate actions as an advocate.

These occurrences carny generally during the course of cros!i examination of

various \Vitnesses f ncluding:

• 1'99

Cmmse.l: "right, so tbej· were all watching )'011? Tliej' 11we all r:foiiig 1heir

work, e\•er.r titne:"

Stevenson DCJ: "lvfr Percy, please dnn 't muke comments. Ask the wiflless

</1testio11s. all ri8/lf? This is not the time to make a co11111w11t about tlte wlt11es5· ·

answers. 1!

Counsel: "I'm 1101 intending to, yow; Honour" ...

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Counsel: Yo11 cmi '1 say tlw1 it didn 'r happc111/lough can you?

Ste11e11so11 DC!: "·\Yeti. don 'i spec11/me. !'lease. Don't i1111ire rlu.: witness to

speculate,

Cmmsi.d: "Wei{ H•itlt respect. your l lmw1(r. I ,. ,"

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Sre1·e11soJ1 DCJ: If your evitltt11cc is yo11 don '1 rcmemher, 1Jw1 is your t!l'idttnce.

I do11 't wwlf you to spec11/me aho11t <Ill)' a11sH'cr w a q11esrio11 f GY f-'

\Vi111ess: "Okay."

• Tl47

Crnmsc:l: ''Did yo11 t}Jj11k)'OL1 hud to S<{)' these things he<.'llu.w: other hoys IWl'i.!(

Witness: "No, I 1hi11kym{ hm·e to say it cause it 's rig/a.''

Co1111sel: "It's right. is ir? ' t

Ste1·cnso11 DCJ: iiSorry, Mr Percy. Please do11 't 111ake comments ahoui the

el'idell(:e. ''

Co1111sel: "Sorry. your Honour. I'm not- not a1te111p1i11~ lo."

Ste1•emcm DCJ: "It's nol ll question. That was a sllltemem. anil- ··

Co1111sel: " I accept thm yoar Honour."

Sre1•e11so11 DCJ.; ''And members of the jury. llwr ~\· what I said yesterday.

/>lea.Ve ig110re any sJatements from counsel /11 the c:o11r.\·e of a. witness's

• T248

Counsel: "So you say 1/101 he wus using a small. dit:iwl camera-"

Witness: "J\1111 hm . . ,

Counsel: "-to zoom iii 011 rile groin area, was it, of the--'!·'

\Vimess: "-Yes.''

Counsel: "swdents that far Oll'ay'!"

Wimess: "- Yes. ''

Co1111se/: "I see, aiid you rook-~ "

Sre1•e11.,·011 DCJ: Sor1)'. /vle11ibers of the jury. /'111 just going to stop Mr Perc~v·.

Yo11 'l'e done ii again /vfi· Percy. Don't .my "I see'', in response to ilie wuwer

of a ll'it11ess please. '·

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Cowi_\'i.!. l: " /'ti endecrnour not (o, )'oiir Ho11011r. Ii 's.j11:;r c1 iiui1111e.rism. /'111

sorrt''

Sre1•e11so11 DCJ.'. "Well it~s· vne wiiil: //, ls i11appropr/<1rc·-· ,;

Counsel.- !'We({, ·i[yoil1' Holio11r- "'

Siereli.mir iJCJ: "-/or rhe rem'oiis]'i:{j indicaied w th~ )1ir);. You must

dis'n!jfard co111111en_i~· /Jy 'c<J?mSe/ if1 the course of !lie. tNid<!iu.'e oia witness,! ~

CowiJd:: ''/'111 ceriqinlyJliJt inti!iicling a11.,rtilii1f{ imprupi:r, )'our Honour. I'm

.!U>J t1ylilg /() inake ~I co11uneu(. Ii '.ta retiction fo <Vi.\Wi'.~r • .rhat'J all. Sorry."

• T317

C<:>1111seJ.'. "Wlfrit itbolllone} Whtll a/i<itlt.try1ng to come 11p·lrith 1.me witness iii

rela(.i(JJl t<J. each c_hi.ir,~e?"

}Vitne,q·; "Will! I believed. f /uui boys tfwt JPefe'i;orrohoraring ·what' other boys

hadsuid i(! me. So';_

8teve?1so11 QCJ: ''Mr Percy,, lliis trial j.<: not. tzboiit.<i look'af iww rfie·

aho(fl 111l!tiers' which are 110 a11 L\'sue i11at they i11its1 ilecidefor ihe purpi>ses of

this case_.!'

C(JWlSef.' "As'yoi1rH011our pleases .. J'm.jusUrying to ascertain 111/ietlier or nor

ihere f\;as' di~)' invest igai ion cozulitcted .i>1 ·that .regard .. ·•

Stevenson DCJ: "/ rhlnk yoa 've .dorze. that. You've been rlzroug/i it oiic·e."

Counsel: ."Well, l'n( golng to propo,~·e· w do ii in relactrm trdl~e "Planiif my

clus.f··~ <u1d rhe~1 !propose to /e(lve H. ''

W/tJie,\·s: "" ... and.~ die! spt!ak 10. ii/I the l>oys. •·

(.,°'tmns(:f .: " i see. ''

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Ste11e11.w11 DCJ: "Sorry Mr Percy. you clid it again ...

Counsel: "Sorr;y. it'sjust ·a mannerism. I'm sorry. your Honour. ''

Stel'lm.wm DC.I: 'Tou necd to gel rid rftluu mt11111eris111 hecau.w: it's 11otfair 10

the jury. 711ey dun' l iuJ<Jd to hear your <'<l11mu:11r in relmion to t ht! <imwer of

the witness at this stage of the praccdure.

Co1111sel: ''I'm doing my level best, sow· Ho11oar. /t '.J' so111ethi11g I've hee1i

doing for 30 years i1z.tbis cowl. i.

Stevenson DC/: " W1ctll'-"

Counsel: "U11fori111w1ely, I'll have to lose it. / 1111 doing my hes/ : 1

Stevenson D<;J.· "I hope you're 1zot suggesting tlrm it's appropriate-"

Counsel: ''I'm 1101 suggesting-"

Sreve11so11 DCI· " .--because you '\•e gollen ml'lly with it for JO year.\'."

Counsel: " f f may 1101 he./ tdkeyvur 1-/onour 011board in that regard.

respectfully."

• T320

.Witness: "well I wr;:ni lo Victoria and spoke to a 1t•itlll:ss there . .And I believe

lhat that was the most appropriate 11'ay of doing it.''

Counsel: "/see. S(JJT)', )'our Honour".

Stevenson DCJ: "Is rhis assisting the jury?."

Cmmsd: "Reacting-ir's not and I apologise."

• T519

·Stevenson DC.I: Sdmetimes yvu moy lw1•e 1wriced in the co11r.se of the

e11i<./e11ce, ii was ne<:.essa;-_y. to pay cari.:}itf atlclllion to a ll''itness' w1.rn•er in

order UJ discern w/Ja( tlzeir e11ide11ce 11·u.\· hecc111.1·c of I lw way c:o1111sel, lwd_

asked the lJll<:~\·tia11. 1\11r observc.icio11s .. <.'cir111111i11ts or r eac(i<>11S by cq1t1isel in ilie

c:mirse oft he lf\'lde1i<':e ·of a witneJ.\" js 11<>1 11vidence. and .l'l1011ltl hi! disregarded:

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Stevenson DCJ: You will: recall that the second last ma11er ilwr t'v!r

Percy asked r '--ox ______ _ jabow in c.:ross-e.ra111i11miim was 1he

rircu111s1tmce wht!11 he !Old /11~\· friend, the jir.1·1 person 1hm he says r/Jar lie tvld

aoybody abour wluu he say.\· lw appellant did w him 11·1te11 /le was aged 11i11e in

year 5, was 1i.'/ietlu:r ar ilwt tfine he /lad 011_1· ''mewal health " issues. Tiie

a11s11•er of t '--ox ____ __..l11·as "110''. Tile rrm1sc:ript m 376 goes like this. Mr

!'en)':

At !lie time :rou told y()ur girlfrie11d1 wee. you lwvi'ng a11y mewal }1e.a/£11

issues?-iVoi. no.

No. ntJI arrluu stage'!-! was l1pset about that and expressing ir. but

And then the 11ilt11ess is cui ac:ros.1· and not permiued w ji11isli the

answer .. Mr Percy:

This was ilic only Issue you Juul"! - Yeah. Ar 1hc11- at ti1ar time, that

would lw11e been the only major i.l'Suc I fwd. Yes.

Mr Percy:

I see. Noiy, you're at -you 're ot Curtin? You're still doing xour

swdies. Is rhat right?---That 's c:orrecr.

You will appr.ecia1c, members ·of the j11ry. that the quesrion asked 011

this occasion ii1vite.\· you to spe.<.'tilatc abow whether or not •

lcox l tu1.~ e1•er had <).( had a 111e11tal health issue. There is 110

qvidence iJ1 rlifs rrial that F =1has ever had a. 1111:111<.1/ hettlth

issue .

In the cour..~e <J.f t/zo}e questions Mr l'en:y made a co111111e11t, wizen. he

said '11 see ''. And yo11 may recall that i11 the course of the trial I did

ask Mr Percy not to do that when asking willlesses questions . .71wi is a

co111me111, which you must disregard. It is 11ot a q11esllo11. It 's a

reaction b::t•J\tfr Percy to the answer that he just got from the wi111ess.

And I Think ydlt will also .\·ee lun11 rlw questions themseliies

demonslrat{? hou1 importalll it is zlwt ym1 pay caref11l wte11tirm ro \\1/iat

the evidence of'the 11•i111ess is heca11sc of tlie way co1111sel has asked the

question.

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.As I lwve. said, there is 110 evicjeJlce .i;1 t/iis tda11hat. f0x llws ~---~

or liwi aoy memal health issue, ji1sr a~· 1/1ere is no evide11c;e i11 rlii.~ trial

rlwi 1/w. u~cused. ~r_0v ___ ~l has or ever had w!)• m·e11tal healrh i'.11.rnc.

i'vlemhers of t/w jury, iliis Is just a11 example: jiwn rile el'idencc. thal 1

lza11e used for the p iirpose of ilit!strating r<) )'<il1 what /'111 ohliged to .m_v

to .,rou abou( the el'idi:nce mui how you itwst carefully cm1sid~~r· rfte:

witnesses' ; ·answers it1 )'our delibera1io11s tp di.seem whar their

evidende is .

ft' is sqbmitred that the. learned tr!al. judge erred in making comments of this

nature in front of the jur)'. there. being no "coirnilents" nor any inappropriate.

line bf questioning or improper behaviour by counsel that. could ha.ve

warranted any reprqval of c~Hmsel's behaviour -by.the judge nor any warni.ng io

the jury.

ln a case stuay of a comparatively recent murder case b~fore the Supreme

Court , The State of Western Australia 11 Chrfoie (Supreme Court1 .15

·Septerl')b¢r 2003., Roberts-Smith .J) it can be seen (hat both the learned trial

judge and both senior and junior counsel for the prosecution and defence make

the c6mrrie1it, "J see" after evidence given by a witness, wilhou~ consequence

fsee Annexuxe AJ.

A11other example is in the famous cross-examinati'on .of the police. informer

Richard Seary by Michael Adams at the Hilton bombing inquest in Ocfooer

1982. This excerpt. is reprqd·uceu in Ad11ocal)• iti Practice (Le'>.: isNexls

Butterworths, 4'h ed, 200.5) by the I.earned author· J, L. Glissai1. This

demonstrates the common use of the phrase, " l see" during cross=·examinati'on

!see Arinexure Bl,

54. The. suggestion made. by tfo.! !earned trial judge. in fronr of the jirry <it IT319J

that senior cotll1sel had ·'been getting away with if' ,Previous~y was

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th1\:varrant~d,, II ()~ ~tppr()priatc. ans! had the lCl\ltcncy tO vkariOUSly denigrate. the

appellarH· and,, by· in1pl i'cali'l5n., his case.

In RPS v. R, s tipra Caliin(\n .J .at 1941 rec<lgnisec.I the danger~ ot' this type qf

confronl~iion behyeen the judge and c~)llflscl:

''f/1 any- iricti, c~ mauljestatfon of' aepare11t bhL\' wwardr co1111se{ 11ia_r

tmfy <.'0115·titute relel'm1t, appreheiufed hia~· i11 re.'ipet·t of a party if 'the

CQt1<liict is sur.ii as fo gil'e rist: to li1i appearw~ce .of bii1s cigal11st that

party. Disparaging comme11l.~" b<J11•ever undesirahie or des<Jr'ved tliey

migfzi be' <ibl'iut counsel's condtu:t inay or .may 1101 produce 'that

appearm/Ce'. "

56. The continuing Impression gi.ve1i to the jury ove1' several days that seni'<fr

counsel .for the appellani )vas. not behaving·approprfately \vas refr~f9rced 'by the.

learned tr.ial judge's interruption of co1i1isel's'fin{ll address, which ir{terrCiption

·~~s i10Ljustified i1\ the· clrcumst;mccs l1i which it was made .

.57. De~pite 'the: attempt at [T545 f to '·ge~1trrilise" the iinpressfon that he \\ias being

critical Qf defence cou11se'1, there was· a ·real risk that' the trial miscarried. as a

:result' of the various rebukes ~111d <lispar_ag'ing· comments .made .about: senior

counsel's conducf of the case btthc 'iearped trial judge.

GrouJtd 9 - Totality of Erro.rs

58. 'In the event that no11e. of the errors ·allegeU in grounds l to 7 above.are. seen by

the C9urt as having led to a. substantial Jrli'scarririge 0f justice the combined

and cumulative 'effect of those ail~ged ~rrors di<l lead to a 1niscarriag.e of

justiee"

lei.try ait<l Comp/ v R f 19751 WM~ 133 per Jackstrn CJ at iT7; per

,La van J at 141 a1i<l Jones J .a't. 1'4"1.

Carll! 1i The Queen f2002j \V ASCA 71,

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~h · Counse l fnr the Appe l la111

Tl 10tv1 \ S PU<CY QC

Counsel for 1he Appellant

BELINDA LO 1SDAl.E

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