R v Aroub

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Burns J
• Judgment Date: 23 April 2018
• Docket Number: File Number: ACTCA 48 of 2017
• Date: 23 April 2018

[2018] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Burns J

File Number: ACTCA 48 of 2017

Mr Ozogow Aroub

(Applicant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr D Adut (Applicant)

Ms K McCann (Respondent)

Cases Cited:

SV v The Queen [2017] ACTCA 41

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 5402, 5506

Evidence Act 2011 (ACT) ss 135, 137

Human Rights Act 2004 (ACT) s 22

APPEAL — Application for leave to appeal out of time — convicted by a jury — sentenced to period of imprisonment — draft notice of appeal — amended draft notice of appeal — appeal against conviction and sentence — consideration of merits of proposed appeal — ground relating to failure to call witness — ground relating to failure to disclose material — grounds relating to whether potential for prejudice regarding explanations of DNA evidence — whether unfairness to accused in representing himself at trial — identity not in issue

Decision:

See [26]

Burns J

1 The applicant, Ozogow Aroub, was convicted by a jury on 15 March 2017 of one count of sexual intercourse without consent and one count of committing an act of indecency without consent. These offences occurred on 19 April 2015. On 14 July 2017 the applicant was sentenced by the Chief Justice to an effective term of imprisonment of two years, to be served by way of full-time imprisonment for a period of six months, with the balance suspended with a Good Behaviour Order for a period of 18 months. The effect of these orders was that the applicant would have been entitled to be released from custody on 12 January 2018. The applicant was not represented by a legal practitioner in the course of his trial, although he had been so represented until shortly before the trial commenced.

2 On the 29 September 2017 the applicant lodged an application pursuant to r 5506 of the Court Procedures Rules 2006 (ACT)(the CPRs) applying to the Registrar of the Court for leave to appeal out of time against these convictions and sentences. The application was accompanied by a document which purported to be a notice of appeal pursuant to r 5402 of the CPRs, rather than a draft notice of appeal as required by r 5506. I will nevertheless refer to this as the draft notice of appeal. The application was supported by an undated affidavit of the applicant. All of these documents were prepared by the applicant personally. The proposed grounds of the appeal, as set out in the draft notice of appeal, were expressed as “errors in introduction of evidence, interviewed by police while under the influence”. Annexed to the affidavit in support of the application was a letter apparently written by the applicant, stating:

I am writing this letter in relation to any court case appeal on 14/7/17. The reasons I want to appeal my case is I believe I was unjustly judged on the matter. So I would like to appeal the sentence as I believe I was innocent of the charges, also because my permanent visa has been revoked because of the charges. The reason for not applying sooner my lawyer was informed to [sic] late in the matter. My emotions were running very high I lost hope of the situation because of the sentence.

3 By letter dated 4 December 2017, addressed to the applicant at the Alexander Maconochie Centre, the Registrar advised the applicant that she had refused his application for leave to appeal out of time. The Registrar stated that she was not persuaded to grant leave in the absence of any acceptable reason as to why the time within which the appeal may be brought should be extended, or any material to sufficiently establish the merits of the proposed appeal. The letter went on to advise the applicant that he had a right to apply for his application for leave to appeal out of time to be heard by the Court of Appeal, and that if he wished to follow that course he needed to file the application together with any affidavits upon which he intended to rely not later than 14 days after he received the letter.

4 By an application lodged 10 January 2018, the applicant sought that the Court of Appeal grant him leave to appeal out of time from the convictions and sentences. This application was supported by an affidavit affirmed by the applicant on 10 January 2018. These documents were, once again, completed by the applicant personally. In the affidavit supporting this application the applicant gave the following reasons for failing to lodge an appeal within time:

1) Prior to and post my trial I had no competent legal advice. 2) I have only just had legal advice as to my position. 3) This conviction if it stands will result in my deportation. 4) My prior legal advice was incompetent. 5) I was denied legal aid for the trial and my rights under s 22 of the Human Rights Act 2004 (ACT).

5 In the same affidavit, the applicant expressed the proposed grounds of his appeal as:

1. The Honourable Court erred in not giving proper instructions to the jury with regards to “non-available witnesses” and with regard to expert evidence that was called. 2. As a self represented litigant I was denied legal assistance under section 22 Human Rights Act to 2004 (ACT). 3. In all circumstances I was denied a fair trial.

6 The matter came before me for hearing on 5 April 2018. Mr Adut appeared for the applicant, and sought an adjournment of the proceedings to enable the applicant's case it to be properly prepared and presented. I noted at that time that there were deficiencies in the material that had been filed, and that if the application were to proceed on that day it was unlikely that the merits of the application could be properly addressed. The application was therefore adjourned until 23 April 2018. I directed that by 4 pm on 18 April 2018, the applicant was to file and serve any affidavits upon which he proposed to rely and also to provide a written outline of submissions. I further directed that the Crown was to provide a written outline of submissions by the close of business on 20 April 2018. The Crown had previously filed submissions on 25 January 2018, which it ultimately relied upon at the hearing of the application on the 23 April 2018.

7 The applicant did not comply with the directions that I gave on 5 April 2018. The applicant's submissions were received by email on the morning of 23 April 2018. During the hearing of the application, Mr Adut was permitted to file in court a document headed “amended notice of appeal”, which was, in fact, an amended draft notice of appeal. That document was undated. The proposed grounds of appeal, as finally formulated in this document, were:

• (a) the failure of the Crown to make adequate enquiries as to availability of Ms Nana Owusu-Tieka [sic] and all other civilian witnesses

• (b) a miscarriage of justice by failure of the Crown to compel Ms Owusu-Tieka [sic] to give evidence.

• (c) failure of the Corwn [sic] on first day of trial, to disclose all material that it considers relevant to the proof or to the defence of the charge

• (d) the learned trial judge erred in failing to apply s 135 or 137 of the Evidence Act (ACT) to exclude DNA statistical evidence expressed in inclusion percentage terms

• (e) in relation to the mixed DNA evidence found on the victim's back the learned trial judge did not consider the topic of transfer and persistence.

8 Although the Crown's written submissions had addressed the earlier proposed grounds of appeal, it was able to adequately address the amended proposed grounds of appeal during the course of the hearing on 23 April 2018.

9 Drawing upon the sentencing remarks of the Chief Justice, a brief description of the evidence at the applicant's trial is as follows. The complainant, FB, met the applicant for the first time on 19 April 2015. On the night of 18 April 2015, FB and her friends went out nightclubbing. FB and her friends consumed alcohol at various places, following which they went to the applicant's house. The applicant, who had not previously met FB, was introduced to her as “Nelson”. FB eventually went into a room in the applicant's house and went to sleep. She woke up and found the applicant “touching her”. The applicant digitally penetrated the vagina of FB, and kissed her on her back. Once FB realise what was happening, she pushed his hand away. As she did this, the applicant told her to “relax, relax”. FB told the applicant she needed to go to the bathroom. FB left the room and made immediate complaint to her friend, Ms Nana Owusu-Tieku, about what had occurred, although at that time she mistakenly believed that the person who had committed the offence was not the applicant but was another person named “Ding”. FB and her friend telephoned the police and called a taxi. A few hours later, the police spoke to FB. Police obtained a mixed DNA profile from FB's back that appeared to contain saliva, and DNA consistent with being that of the applicant.

10 The applicant participated in a recorded interview with police in which he denied FB's allegations. At trial, the applicant gave evidence. He stated that he went into the room where FB was, observed someone laying on a mattress and decided to go to sleep next to them. He stated that he passed out, and the next thing he remembered was FB saying that she wanted to go to the toilet. The applicant is said that he recalled going back to sleep and then being confronted by FB's friend about sexually harassing FB. This evidence was consistent with the version of events that he gave to the police in his recorded interview.

11 There was no dispute as to the relevant principles governing the present application. Those principles were conveniently summarised by Penfold J in SV v The Queen [2017] ACTCA 41, where her Honour said at [7]:

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