ANDERSON -v- the STATE of WESTERN AUSTRALIA

[2014] WASCA 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 225

CORAM:   BUSS JA

NEWNES JA

HEARD:   2 DECEMBER 2014

DELIVERED          :   2 DECEMBER 2014

FILE NO/S:   CACR 197 of 2014

BETWEEN:   MICHAEL ANDERSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DAVIS DCJ

File No  :IND 1258 of 2013

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal against conviction - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1

Result:

Application for bail dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr L M Fox

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Anderson v The State of Western Australia [No 3] [2014] WASCA 190

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

Palumbo v The State of Western Australia [2014] WASCA 55

Timbrell v The State of Western Australia [2013] WASCA 74

Vella v The State of Western Australia [2006] WASCA 129

1. BUSS JA:  This is an application for bail pending the determination of the appellant's application for an extension of time to appeal against conviction and his application for leave to appeal against conviction.

2. On 28 January 2014, the appellant was convicted in the District Court, on his plea of guilty, of one count of fraud, contrary to s 409(1)(c) of the Criminal Code (WA).

3. On 17 April 2014, Davis DCJ sentenced the appellant to 3 years 6 months' immediate imprisonment.  A parole eligibility order was made.

4. The appellant applied for leave to appeal against sentence.  The application was heard and dismissed by Mazza JA and Hall J.  They published written reasons for their decision.  See Anderson v The State of Western Australia [No 3] [2014] WASCA 190. The facts of the offending, as found by the primary judge, and the course of the proceedings before her Honour, are set out in Anderson [No 3] [4] ‑ [26].  It is unnecessary to repeat those details.

5. The appellant filed his appeal notice in relation to his conviction, and an affidavit in support of his application for an extension of time, on 13 November 2014.  The draft grounds of appeal, as set out in the appeal notice, read:

   New evidence has become available that shows that at the very least P&N Bank (The Complainant) acted incorrectly, unethically, recklessly and dishonestly in incurring the loss, in the calculation of the loss and in relation to the evidence it provided to substantiate the loss.

   This has resulted in errors in the Express Material Facts that are fundamental to this action and formed the basis of the complaint on which this charge was laid, the plea entered, conviction recorded, restitution ordered and the sentence imposed making the Conviction and Sentence Unsound, Flawed and representing a substantial Miscarriage of Justice.

6. On 13 November 2014, the appellant also filed an application in the appeal for bail and for leave to adduce new evidence in the appeal.

7. The application for bail is supported by another affidavit of the appellant filed 13 November 2014.  The material annexed to that affidavit includes a document described as an 'outline of submissions' and a document described as 'grounds of appeal against conviction'.  These documents do not, however, set out any proper grounds of appeal.  The so‑called grounds are argumentative.

8. The appellant has not yet filed his appellant's case.

1. The principles relating to the granting of bail pending the determination of an appeal against conviction are well‑established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99; Timbrellv The State of Western Australia [2013] WASCA 74.

2. As I have mentioned, the appellant pleaded guilty to the offence in question and was convicted on that plea.  An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.  That is no easy matter.  See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J). See also Vella v The State of Western Australia [2006] WASCA 129 and Palumbo v The State of Western Australia [2014] WASCA 55.

3. I have read and considered the material relied on by the appellant in support of his application for bail, including his written submissions, his affidavits and the proposed new evidence.  I have also taken into account the oral submissions he has made today.

4. I am not satisfied, at this stage, that the merits of the appellant's proposed grounds of appeal, and the merits of his proposed submissions in the appeal, are of sufficient strength to justify a grant of bail.  Also, I am not satisfied, at this stage, that the appellant has adequately explained the delay in commencing his appeal against conviction.  Further, the hardship suffered by the appellant's family is insufficient to justify his release on bail.

5. In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his application for an extension of time to appeal against conviction and his application for leave to appeal against conviction.

6. I am therefore of the opinion that the appellant's application for bail should be dismissed.

7. NEWNES JA:  I agree with Buss JA.