AC v The Queen

[2003] WASCA 280

AC -v- THE QUEEN [2003] WASCA 280

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 280
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:127/2003	Heard:	23 OCTOBER 2003
Coram:	HASLUCK J	Delivered:	23/10/03
No of pages:	15	Judgment Part:	1 of 1
Result:	Bail refused
Category:	B
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Parties:	AC THE QUEEN
Catchwords:	Criminal law and procedure Bail Application for bail pending hearing of appeal Need for exceptional reasons Prospects of success on appeal Appeal must be most likely to succeed
Legislation:	Bail Act 1982, s 13, s 14, s 22, cl 1, 3 & 4 of Pt C Sch 1 Child Welfare Act 1947, s 20B Criminal Code, s 189
Case References:	Caratti v The Queen [1999] WASCA 91 Chamberlain v The Queen (No 1) (1983) 153 CLR 514 Marotta v The Queen (1999) 73 ALJR 265 Stalker v The Queen [2002] WASCA 364 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : AC -v- THE QUEEN [2003] WASCA 280 CORAM : HASLUCK J HEARD : 23 OCTOBER 2003 DELIVERED : 23 OCTOBER 2003 FILE NO/S : CCA 127 of 2003 BETWEEN : AC

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending hearing of appeal - Need for exceptional reasons - Prospects of success on appeal - Appeal must be most likely to succeed

Legislation:

Bail Act 1982, s 13, s 14, s 22, cl 1, 3 & 4 of Pt C Sch 1

Child Welfare Act 1947, s 20B
Criminal Code, s 189

Result:

Bail refused

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Category: B

Representation:

Counsel:

Applicant : Mr B S Hanbury
Respondent : Mr I S Jones

Solicitors:

Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Caratti v The Queen [1999] WASCA 91
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Marotta v The Queen (1999) 73 ALJR 265
Stalker v The Queen [2002] WASCA 364

Case(s) also cited:

Nil


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HASLUCK J:

The application

1 The applicant has applied for bail after being convicted of certain offences before the District Court on 12 December 2002. He is presently serving a term of 4 years' imprisonment with eligibility for parole as from 12 December 2002. He has applied for leave to appeal against conviction in the terms of an amended application for leave dated 1 October 2003. The details of the application for bail are set out in the same application form.

2 The applicant seeks an order for bail pending the determination of the application for leave to appeal on such terms and conditions as this Honourable Court thinks fit to impose. I have been informed by defence counsel that the hearing of the application for leave to appeal will probably be brought before the Court in February 2004.

3 The application for bail comes before me pursuant to provisions of the Bail Act 1982. By s 14 a Judge of the Supreme Court may exercise a power to grant bail which is conferred upon any other judicial officer. An application for bail after conviction is to be dealt with in accordance with cl 4 of Pt C of Sch 1 of the Bail Act, which I will come to later.

4 The criminal procedure rules require that an application to the Supreme Court of this kind be supported by an affidavit unless the Court orders otherwise. In the present case, the application for bail is supported by the affidavit of Beau Stanley Hanbury, sworn 19 August 2003, who is counsel for the applicant, and the affidavits of the applicant's wife sworn 20 August 2003 and 13 October 2003.

5 Section 22 of the Bail Act allows a judicial officer to receive and take into account such information as he thinks fit whether or not the same would normally be admissible in a court of law. It was on this basis that I received further information at the hearing.

6 It appears from the materials and submissions before me that the applicant was charged on indictment with four charges of unlawfully and indecently dealing with the complainant on dates unknown in the year 1985, being a girl under the age of 13 years. In the District Court at Perth on 12 December 2002 he was convicted of counts 1, 3 and 4 and was acquitted in relation to count 2. Put shortly, he was convicted of three counts of unlawfully and indecently dealing with a girl under the age of 13 years.

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7 On 17 January 2003 he was sentenced to 2 years' imprisonment with eligibility for parole as to count 1; 1 year's imprisonment with eligibility for parole as to count 3 to be concurrent with the preceding term; 2 years' imprisonment with eligibility for parole as to count 4 to be cumulative on the other term of imprisonment. He was, therefore, sentenced to 4 years' imprisonment in total with eligibility for parole. The sentence was back-dated to commence from 12 December 2002.

8 I pause to note that on the submission of counsel for the applicant, there would be prospects in the normal course for someone of the applicant's background to be released on parole upon the expiry of 16 months of the term. Counsel makes the point that if the appeal be heard in February 2004, the applicant will, by that time, have served 14 months' imprisonment. That is said to be a factor weighing in support of the application for bail which is before me.

Grounds of appeal

9 The applicant has lodged an application for leave to appeal against conviction, as I have indicated. On 6 October 2003 a minute of proposed amended grounds of application for leave to appeal against conviction was approved by Pullin J with the result that the grounds of appeal are now framed in these terms, omitting the supporting particulars: First, the applicant was not advised by his solicitors that on the charges preferred against him, he could have elected to have been dealt with by the Children's Court Western Australia and this was an error of law and there has been a miscarriage of justice.

10 Second, having regard to the fact that the complainant was aged more than 18 years at the time of making the complaints against the applicant of indecent dealing, the prosecution of the offences was statute barred, having regard to s 189(6) of the Criminal Code, as it was in 1985, and there has been a miscarriage of justice.

11 Third, the applicant did not receive a fair trial and there has been a miscarriage of justice. The particulars presented in support of the third ground of appeal include a plea in 3.1 that there was an error of law in permitting the prosecution to cross-examine a daughter of the applicant as to her credibility.

12 The particulars continue as follows:

"3.2: There was an error in law in permitting the Prosecution to re-open the Prosecution case for the purpose of calling

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rebuttal evidence about [the daughter] as to her credibility.

3.3: There was an error of law in allowing the trial to proceed without sufficient particularity as to the allegations against the applicant that may have left the impression that the allegations against the applicant were representative of more incidents than were charged.

3.4: The trial should not have proceeded after certain disclosures were made by the applicant in the course of him giving evidence as the prejudicial effect of the evidence could not be overcome by any warning to the jury from the learned trial Judge.

3.5: The applicant's trial Counsel did not cross examine the complainant or other Prosecution witnesses as to matters that he ought to have and that he was instructed to do by the applicant."

Bail Act

13 I come now to the relevant statutory provisions. Section 13 of the Bail Act provides that the jurisdiction to grant bail is to exercised subject to and in accordance with the provisions in Sch 1 of the Act.

14 Clauses 1 and 3 of Pt C of Sch 1 require that the questions to be considered by the judicial officer handling the bail application include whether the applicant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. The judicial officer is also obliged to take account of the prosecutor's position and the applicant's personal particulars, including the history of previous grants of bail and the strength of the evidence against the applicant.

15 Clause 4 of Pt C of Sch 1 states that in deciding whether or not to grant bail to an applicant who is in custody awaiting the disposal of an appeal the judicial officer shall consider whether there are exceptional reasons why the applicant should not be kept in custody and shall only grant bail if he is satisfied that he may properly do so, having regard to the provisions of cl 1 and cl 3.

16 Put shortly, the requirement of exceptional reasons in cl 4 should be regarded as a threshold issue and once that threshold issue is crossed as an

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essential requirement, one must then turn to the more general criteria in cl 1 and cl 3.

17 In the present case, I take account of the fact that the Crown is opposed to the grant of bail. Counsel for the Crown submits that exceptional reasons for the grant of bail pending appeal have not been demonstrated.

Legal principles

18 The legal principles bearing upon an application of this kind were recently reviewed at some length by Roberts Smith J in Stalker v The Queen [2002] WASCA 364. This was a case concerning five counts of indecent dealing and one count of rape in respect of a young complainant and events occurring many years before the trial. Roberts-Smith J noted in Stalker (supra) that the general principles in respect of grants of bail pending appeal were explained by Brennan J in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 at 519 - 520. The grant of bail in such circumstances was said to derogate from the effect of the jury's verdict, a view which was subsequently doubted by Callinan J in Marotta v The Queen (1999) 73 ALJR 265 at 265.

19 Nonetheless, Roberts-Smith J clearly accepted that the release of an applicant to bail from a sentence of imprisonment on conviction pending appeal will always be exceptional if, for no other reason than, at the very least, the presumption of innocence before trial no longer applies. His Honour noted also that the jurisdiction of this Court to grant bail pending appeal has a statutory basis in which respect the power to grant bail is necessarily conditioned by the terms of the relevant statutory provisions, being essentially the provisions set out in cl 4 of Pt C of Sch 1 of the Bail Act.

20 His Honour observed that the provisions in question indicate clearly enough that there is a presumption against granting bail in that exceptional reasons must be shown as to why the applicant should not be kept in custody. His Honour eventually concluded after a review of the relevant authorities, including Caratti v The Queen [1999] WASCA 91, that if the matters raised by the grounds of appeal are said to give rise to exceptional reasons, then something more than an arguable ground of appeal must be shown. It must be shown without detailed argument that the appeal is most likely to succeed. That is the sense in which the phrase "strong prospects of success" referred to in some of the decided cases should be construed.

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21 The application for bail in Stalker (supra) was refused because the appeal could not be said to be most likely to succeed. The other matters relied on, including an alleged detriment to the applicant's business position, could not be characterised as exceptional reasons.

22 It is contended by the applicant in the present case that there are exceptional reasons sufficient to justify the grant of bail following a conviction pending appeal in that there is a likelihood the appeal will succeed combined with facts and matters bearing upon the applicant's personal circumstances and state of health.

The applicant's circumstances

23 Let me now turn to the applicant's personal circumstances. They are reflected in the evidentiary materials before me. It seems the applicant was born on 28 July 1935. He was married in 1956 and came to Australia in 1972. Upon arrival in Australia he worked as a labourer-cum-handyman. Subsequently he was involved in boat building, painting and decorating. It seems that his health began to deteriorate in 1989, at which time he went on an invalid pension. Prior to the trial in the District Court he was on the aged pension.

24 As to his medical situation, it seems that he is a diagnosed diabetic. Some years ago he was diagnosed with a bowel cancer and it seems as a consequence of that and prostate problems, he is on a variety of medication. According to the Hanbury affidavit, the applicant suffers from a variety of serious illnesses and was recently admitted to the Royal Perth Hospital for the effects of a recent illness. He was required to undergo an operation on his neck on or about 28 August 2003.

25 The first affidavit of the applicant's wife sworn 20 August 2003 refers to her husband suffering from numerous ailments. She says that her husband requires a colostomy bag for rectal cancer illness that he has suffered from in the past. She goes on to say if bail were granted to her husband, he would reside with her at their home at 3/64 Outram Road, Armadale. It is said that a surety can be arranged on the same terms as were set previously and it is said that her husband will abide any conditions of bail that might be set.

26 I pause to say that counsel for the applicant has affirmed the position I have just described concerning residence and the surety. It is apparent to me from papers on the file that there was a declaration by a proposed surety, who is the sister in law of the applicant. That suggests there is indeed a basis for an adequate surety being provided.

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27 Before I leave these evidentiary materials, I should turn to the second affidavit of the applicant's wife sworn 13 October 2003, being the affidavit handed up in the course of the hearing today.

28 She says in her second affidavit that she was present at the time of the three trials concerning her husband and gave evidence in his defence on each of those occasions. She was also present on occasions when her husband instructed his solicitors. She said that her husband speaks Spanish as well as English and Spanish is his first language. She says her husband has recently had a medical procedure performed on him and for a time he was a patient at Royal Perth Hospital in the said State, but is presently again incarcerated at Acacia Prison.

29 Exhibited to the affidavit is a copy of the discharge letter concerning the medical condition of her husband. She affirms that she supports the application for bail pending the outcome of the application for leave to appeal against conviction and sentence. I notice in passing that the discharge letter does indeed confirm the picture I have described in a summary form that the applicant is suffering from a number of ailments and is presently on the medication which is described in more detail in the discharge letter.

30 Reference is made also to the issue concerning the applicant's neck and spinal compression. It does not appear, however, from the discharge letter that there is a state of acute medical crisis concerning the applicant. I accept that his medical condition and his age undoubtedly give rise to a state of discomfort which must be constantly monitored.

31 Counsel for the applicant draws together the various considerations which are relied upon in support of the application in his written submissions. These were expanded upon in the course of argument. Counsel submitted that, first, the applicant had no previous relevant record of offending after 66 years of life; secondly, he has very poor health; third, he is a first time prisoner; fourth, the appeal is prima facie likely to be successful; fifth the applicant will serve a substantial prison term before the appeal is resolved.

32 I have already commented on that latter aspect of the matter. Upon the information presented to me, if the appeal be heard in February, that will mean that the applicant will have served 14 months of imprisonment. That must be considered against a background that there is a prospect of his release on parole at the expiration of 16 months of his term.

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Prospects of success

33 Let me now turn to the crucial question of whether the applicant has sufficient prospects of success on appeal for the Court to be satisfied that exceptional reasons have been demonstrated for a grant of bail. Counsel for the applicant made these points in his written submissions, commencing at par 3:

"The applicant was charged with 4 offences under s 189(2) of the Code (as the Code then was in 1985). It was alleged that he committed offences against a girl under the age of 13 years. S 189 was repealed in 1992."

34 It is said in par 4 that s 189(6) provided in 1985 that:

"A prosecution under this section for the offence of unlawfully and indecently dealing with a girl under the age of sixteen years must, if she is of or over the age of thirteen years, be commenced within three months after the offence has been committed."

35 The submission is made in par 5 that at the time the applicant was charged, which was in about 2001, the complainant was then aged in her twenties. It is said further in par 6 that in 1985 under s 20B of the Child Welfare Act 1947 indictable offences set out in the third schedule to that Act against or in respect of children could be dealt with summarily at the election of the defendant.

36 The complainant was aged more than 18 years at the time the offences were allegedly committed. It is said in par 7 of the applicant's submissions that s 189(2) was then a listed offence, item 6, and by virtue of s 20B(3) a person summarily convicted was liable to gaol for 18 months. It is said further that the applicant has already served almost 12 months of his term of imprisonment.

37 In regard to those submissions, I take account of what has been put to me to the contrary by counsel for the Crown in submitting that there is not a strong likelihood of success in regard to these grounds of appeal. I draw together the submissions bearing upon that aspect of the matter in this way: the statutory amendments effecting changes to procedural requirements generally result in the procedural position being governed by the law in force at the time the proceedings are instituted or otherwise at the time of the trial.

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38 On that view of the matter, the removal of the limitation period and the right of election prior to the commencement of the proceedings in this case would mean that it was open to the Crown to proceed on indictment as it did.

39 I give weight to and am persuaded by the Crown's submission that in any event the thrust of s 189(6) as it stood in 1985 appears to have been directed at a time limit designed to deal with the situation of girls in the category of between 13 years and 16 years of age rather than representing a broadly described limitation period.

40 On that view of the matter, having regard to the case of the complainant in the present case, who was a girl under the age of 13 years at the time, and not within the special category, I do not consider that there is a strong likelihood of this ground succeeding. This further argument weakens the prospect of the appeal being allowed.

41 I note in passing also, as Roberts Smith J noted in Stalker (supra), that in regard to a bail application, a line of argument based on a technical point tends to be less forceful than an argument leading to an assertion of innocence, especially in regard to an application for bail after conviction.

The fair trial issue

42 Let me now turn to ground 3 and the assertion that the applicant did not receive a fair trial.

43 Counsel for the applicant did not press grounds 3.1 and 3.2 which I described in summary outline earlier. He commenced by referring and placing some emphasis upon ground 3.3 of the grounds of appeal. In that ground it is asserted there was an error of law in allowing the trial to proceed without sufficient particularity as to the allegations against the applicant being an error that may have left the impression that the allegations against the applicant were representative of more incidents than were charged.

44 In that regard, counsel for the applicant placed some emphasis upon passages appearing at page 63 of the transcript and onwards which reflect the evidence-in-chief of the complainant. One finds towards the top of page 63 a passage of evidence in which the question is asked:

"Were there any occasions in which you found yourself and your sister alone in the house with your grandfather?---Yes.

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How often did that happen, that is, that you found yourself alone?---I don't recall.

Once or more than once?---More than once.

Several times?---Yes."

45 I pause there to say that passage appears to be setting the scene for the more specific evidence that was subsequently led rather than endeavouring to establish in the minds of the jurors that there was a host of incidents, some of which might be unrelated to the counts the subject of the indictment.

46 However, counsel for the applicant went on to refer to other passages. Towards the top of page 65, as discussion commenced to focus upon the subject matter of the indictment, a question was asked about a particular incident. The relevant exchange was as follows:

"During this one incident or during other incidents?---During most of them that I remember."

47 This is another passage which might be arguably relied on to suggest that in a prejudicial manner unspecified incidents beyond those specifically relied upon by the Crown found their way into the presence of the jury in a manner that arguably supports a contention that the applicant did not receive a fair trial. However, in my view, passages of that kind must be considered within the framework of the trial as a whole. In that regard I give weight to the way in which the case was first described to the jury in the prosecutor's opening address.

48 The opening address is to be found at page 29 of the transcript and onwards. I will not traverse the full detail of what was said, but it is apparent as one looks at the opening address that the Crown identified that it proposed to rely upon specific incidents which were said to be those the subject of the indictment. I am of the view that the passages relied upon by the applicant are not sufficient to create a notion that the Crown was bringing before the jury, either in its opening address or otherwise in its submissions or in the evidence led from its witnesses, a sense of various random occurrences which might have been arguably prejudicial against the accused and which went beyond the incidents said to comprise the events underlying the counts in the indictment.

49 I am not persuaded on this ground that there was a real risk of prejudice of the kind contended for or that in regard to this ground there is

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a strong likelihood that an appeal will succeed upon the basis that a fair trial was not received by the applicant.

Further issues

50 As to ground 3.4, the applicant relies upon certain disclosures made by the applicant in the course of giving evidence which were said to prejudice the value of his evidence and to be of a kind which could not be overcome by any warning to the jury from the learned trial Judge.

51 Broadly described, these references are reflected in the passages of the transcript which are to be found at page 106 and onwards. Again, I will not traverse the full particularity of what appears at that part of the transcript, but certainly, while under cross-examination, it seems that the applicant gave vent to some of his feelings. What he said might be described as a general outburst in which he characterised his accusers as being evil persons and proceeded to repeat that characterisation on a number of occasions.

52 As the ground of appeal suggests, the argument to be advanced on appeal is that this had a prejudicial effect and resulted in a fair trial not being received. However, again, it seems to me that this matter must be seen in proportion. As I indicated in the course of debate with counsel, one has to recognise that inevitably in the course of a criminal trial cross-examination may have the effect of unsettling a party to the proceedings and exposing to the view of the jury the nature of his thought processes and the nature of his character. Indeed this is a familiar part of the cross-examination process.

53 Revelations of this kind are a possibility that must be allowed for when defence counsel makes a strategic decision in conference with his client as to whether the accused will give evidence or not. There could be, of course, one can well imagine, extreme cases in which the Judge might feel obliged to intervene in order to prevent overly prejudicial views being ventilated. However, I am not persuaded that this was such a case. It lay within the role of the cross-examiner to expose to view the nature of the thought processes of the accused. To my mind, this was a matter that could be dealt with by the trial Judge in the course of his directions to the jury as he gave them a sense of direction as to what evidence they should rely upon in coming to their final conclusion.

54 It is customary in the course of directing a jury to urge them to put to one side entirely matters of bias, prejudice or emotional circumstance that might affect their calm deliberation and resolution of the issues. In this

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case, as appears at page 221 of the transcript, the trial Judge gave some directions to the jury bearing upon matters of the kind I have just described. It might be said that he ought to have given greater emphasis to those passages containing the outburst of the accused. However, on balance, I am not persuaded that this aspect of the trial will give rise to a strong likelihood of the appeal succeeding. It is a matter of proportion and degree. Weight must be given to the discretion of the trial Judge as to what kind of direction should be given in order to ensure that an appropriate balance is struck between the right of cross-examining counsel to endeavour to expose to view the nature of the thought processes and related actions of the witness under cross-examination and the entitlement of the witness to be confined to what are relevant matters.

55 I must now turn to ground 3.5. This is the assertion that the applicant's trial counsel did not cross-examine the complainant or other prosecution witnesses as to matters that he ought to have and that he was instructed to do so by the applicant.

56 The particulars of the alleged failure to cross-examine are set out in the grounds of appeal. They are lengthy and I will not run through all of them, but essentially the point being made here is that a previous out of court statement had been made by the complainant. It is said that cross-examining counsel did not pursue the inconsistencies and vagaries which might be said to have emerged from a thorough consideration of this statement as compared with the evidence given by the complainant at trial.

57 It is important to understand in regard to this matter that there was cross-examination concerning the previous statement. This is reflected at page 69 of the transcript and onwards. It is at that page that cross-examining counsel commences to take the complainant through a statement made to the police on 11 October 2001. In the following pages it is quite apparent that there was a fairly lengthy series of questions asked in relation to that statement.

58 It emerges, then, that the real question being raised by this ground of appeal is whether the cross-examination, which admittedly addressed the complainant's previous out of court statement, was conducted with sufficient vigour, penetration and thoroughness.

59 There can, of course, be room for argument about the efficacy of the cross-examination and, doubtless, that is a matter which will be explored in greater detail on the appeal. However, for present purposes, as I

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attempt to evaluate the prospects of success on appeal, I am obliged to take account of the rule that an accused is normally bound by the conduct of his counsel at trial. One immediately understands in regard to a cross-examination concerning an earlier statement, there may be strategic considerations as to why some point or another was not pressed. I therefore find it difficult to be persuaded that in circumstances where there was clearly some cross-examination about the statement in question, the cross examination can be said to have been so inadequate as to have meant that the applicant did not receive a fair trial.

60 As I draw the considerations bearing upon this ground together I am not persuaded that there is a strong likelihood of success on appeal.

Other matters

61 Let me now return to the question of whether there are reasons other than the prospects of success on appeal which would be characterised as exceptional reasons justifying a grant of bail pending appeal. I have already indicated that a degree of emphasis has been given to the poor health of the applicant, his lack of any prior record and the prospect that he will serve a substantial term and perhaps the greater part of his term in real terms before the appeal is resolved.

62 As to these matters, I have to say I am not satisfied that the poor health of the applicant has led to such a state of acute crisis, that such a matter of itself, should be sufficient to be accepted as exceptional reasons for the grant of bail. It is clear from what has occurred to date, including his recent visit to hospital, that even while in custody his health can be monitored and it has not been put to me that the required medication is not available to him.

63 As to the matter of his lack of any prior record, I must take account of some of the principles I mentioned earlier. The situation after conviction is not quite the same situation as before trial where the presumption of innocence is properly accorded a real significance in the scheme of things. This is a case in which the conviction has taken effect.

64 The question of the amount of the term served is indeed a matter of real concern, but I am of the view that a consideration of that kind has to be considered essentially as a matter linked to the prospects of the appeal succeeding. For the reasons I have previously given, I am not satisfied that there is a strong likelihood of success and that persuades me that I should not treat the question of serving a substantial term as a factor to be considered in isolation. It is not a factor which, of itself, would be

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sufficient to comprise exceptional reasons within the meaning of cl 4 of Pt C of Sch 1 in the circumstances of the present case.

Summary

65 When I draw all these matters together, the conclusion I have arrived at concerning the application for bail is that the application for bail should be refused. I am not persuaded that exceptional reasons have been demonstrated in the manner required by cl 4 of Pt C of Sch 1 of the Bail Act.