Bropho v The State of Western Australia
[2009] WASCA 12
•23 DECEMBER 2008
BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 12 | |
| THE COURT OF APPEAL (WA) | 12/01/2009 | ||
| Case No: | CACR:38/2008 | 23 DECEMBER 2008 | |
| Coram: | MILLER JA | 22/12/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ROBERT CHARLES BROPHO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail Illness Whether exceptional circumstances shown |
Legislation: | Bail Act 1982 (WA), sch 1, pt C, cl 4 Criminal Appeal Rules 2005 (WA), r 68(2) |
Case References: | Dodd v The Queen [2002] WASC 282; (2002) 135 A Crim R 545 Donatelli v The State of Western Australia [2004] WASC 168 Ex Parte Maher (1986) 1 QR 303 Hull v The State of Western Australia [2005] WASCA 107 Lim v Gregson [1989] WAR 1 R v Jeffers (1895) 1 ALR 71 R v Kennedy [1941] QWN 49 R v Kleinert (1928) 49 ALT 137 Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 12 CORAM : MILLER JA HEARD : 23 DECEMBER 2008 DELIVERED : 23 DECEMBER 2008 PUBLISHED : 13 JANUARY 2009 FILE NO/S : CACR 38 of 2008 BETWEEN : ROBERT CHARLES BROPHO
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File No : IND 1689 of 2003
Catchwords:
Criminal law - Application for bail - Illness - Whether exceptional circumstances shown
(Page 2)
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 4
Criminal Appeal Rules 2005 (WA), r 68(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S A Walker
Respondent : Ms L Petrusa
Solicitors:
Appellant : Kim Farmer
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dodd v The Queen [2002] WASC 282; (2002) 135 A Crim R 545
Donatelli v The State of Western Australia [2004] WASC 168
Ex Parte Maher (1986) 1 Qd R 303
Hull v The State of Western Australia [2005] WASCA 107
Lim v Gregson [1989] WAR 1
R v Jeffers (1895) 1 ALR 71
R v Kennedy [1941] QWN 49
R v Kleinert (1928) 49 ALT 137
Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303
(Page 3)
1 MILLER JA: This is an application for bail pending appeal against conviction.
2 There is also an application to excuse noncompliance with r 68(2) of the Criminal Appeal Rules 2005 (WA). The affidavit in support of the application is not from the applicant or his solicitor, but from a helper. There is no objection to this affidavit and that order will be made.
3 The notice of appeal in this matter was filed on 19 March 2008. There are five grounds of appeal. They relate to the admission of DNA evidence relevant to the paternity of the children of the complainant.
Material in support of application for bail
4 The application for bail pending appeal is primarily based on the ill-health of the applicant. An affidavit of Margaret Joanna Jeffery sworn 17 December 2008 annexes numerous records of telephone conversations between the applicant and Ms Jeffery about his health. Mr Phil Chlorine has also recorded or transcribed some of these conversations.
5 The documents attached to the affidavit of Ms Jeffery reveal that, on 14 June 2008, the applicant was taken to the coronary care unit at Royal Perth Hospital for treatment.
6 There are medical reports of a number of doctors. Dr Glen Brand reported on 17 November 2008. He sets out the applicant's illnesses for which he has treated the applicant over a number of years. Dr Oscar D'Souza reported on 4 November 2008. He sets out the medical history and the medication of the applicant, whom he has seen since 1994. Dr Mark Ireland reported on 17 November 2008 and he sets out the cardiological history of the applicant since 1990. He last saw the applicant on 13 September 2007 at which time he noted that he had improved with new medication. Neither he nor any other doctor expresses any opinion on the level of treatment which is available at Acacia Prison.
7 In essence, the applicant complains in this case that he is not getting the care that he needs whilst in prison. The submission is that the applicant's case is well outside the normal case and the unusual circumstances of his case, that is his medical condition, require that he be treated outside the prison. It is submitted by the applicant that the reports of the treating doctors support the view that his condition cannot improve in the prison environment. The submission is that the court can fairly conclude from Mr Bropho's account of his symptoms that there is a
(Page 4)
- general worsening of those symptoms and, further, the level of care in prison is well below that which would be available to him outside prison. There is evidence in one of the reports that his condition has suffered during an earlier period of imprisonment.
8 In response to this, there is an affidavit of Linda Petrusa sworn 22 December 2008. It annexes a report of Dr John Hardy dated 19 December 2008. That report relates to the current medical condition of the applicant.
9 Dr Hardy practises from Acacia Prison and his report indicates that the applicant is 78 years of age with multiple complex medical problems. They include diabetes; cardiovascular disease; oesophageal reflux; hypothyroidism; depression; L4 and L5 (that is, level 4 and level 5 of the lumbar spine) stenosis, with associated back pain; poor eyesight and obesity. Dr Hardy records that the applicant is on multiple medications.
10 He concludes in the final paragraph of his report:
In conclusion, Mr Bropho is a 74-year-old [sic 78] man with a history of multiple complex medical problems that seriously compromise his health. Although his medical conditions are stable at the moment, he is suffering an inevitable slow progression in all of his conditions. His diabetes-related complications, such as chronic renal failure, will inevitably continue to progress and will require an increasing level of medical input in the future.
He is on a complex medical regime including self-administered insulin injections. He has severe coronary artery disease that is not amenable to operative intervention and is at significant risk of having another myocardial infarction. With particular regard to the medical implication of his continued residence in custody at Acacia Prison any medical outcome, should a patient such as him suffer a further coronary event, would potentially be influenced by the rapidity that he can present to the coronary care unit. The advantage of close proximity to such a unit would have to be balanced against the potentially more rapid availability of defibrillation whilst residing in an institution.
11 I read this as meaning that all aspects of the applicant's medical condition can be managed in prison. I consider that the doctor is saying that a rapid response to a coronary problem is available in the prison.
12 There is no evidence, other than the fact that the applicant will live in Guildford if released on bail, as to how close he would be to a coronary care unit. The applicant may be closer to such a unit in Guildford than he would be at Wooroloo Prison, but at the same time he would not have the rapid availability of defibrillation to which Dr Hardy refers.
(Page 5)
13 Ms Petrusa's affidavit adds some other interesting observations. The first is that Dr Hardy has advised that the applicant is not waiting for any medical appointments, his care is adequate for his needs and the prison could manage his current medical condition adequately for 18 months to two years. Secondly, there are special dietary requirements which are catered for within the prison, by both a dietician and a nutritionist. Thirdly, the applicant's last consultations with medical personnel appear to have been on 7 January and 27 February 2008 when he was seen at the Lockridge Medical Centre and the Brook Medical Centre. In addition to that, of course, he has been seen at the coronary care unit at Royal Perth Hospital.
14 It is submitted that it is evident that the applicant receives treatment outside the prison when it is required and it is argued that the medical reports submitted for the applicant show that the condition of the applicant was deteriorating in any event, not in consequence of imprisonment. The cardiac condition was the subject of review in October 2008 and he was discharged from the Royal Perth Hospital outpatient clinic at that time.
Legal principles
15 I turn to the legal principles which relate to these applications. The Bail Act1982 (WA), sch 1, pt C, cl 4 provides that, in deciding whether or not to grant bail to an applicant in custody, who is awaiting disposal of appeal proceedings, it must be shown that there are exceptional reasons why the applicant should not be kept in custody before bail can be granted.
16 The leading authority is Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303. There, Murray J, at [24], said:
... speaking generally ... it will be difficult to find exceptional reasons where there are not strong grounds for concluding that the appeal will be allowed, nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence will be substantially served before the appeal is finally determined.
17 Murray J pointed out the court would take a cautious approach and referred in particular to the observations of Thomas J in Ex Parte Maher (1986) 1 Qd R 303, at 310, where Thomas J said that to allow a prisoner bail pending an appeal made the conviction appear:
contingent until confirmed, placed the Court in an invidious position if the appellant was unsuccessful and had to be returned to prison, encouraged unmeritorious appeals, undermined respect for the judicial
(Page 6)
- system by having the appellant at liberty although recently sentenced and undermined the public interest in having convicted persons serve their sentences as soon as practicable. [Tieleman [22]]
18 The requirement for exceptional circumstances before grant of bail is also present when persons are seeking bail when charged with very serious crimes. Charges of wilful murder have traditionally required exceptional circumstances before bail could be granted.
19 It has been said that the grant of bail is, however, always a matter of discretion and the exceptional circumstances which may be required should not be regarded as a closed list. See Lim vGregson [1989] WAR 1 particularly Malcolm CJ at 13, R v Kleinert (1928) 49 ALT 137 and Dodd v The Queen [2002] WASC 282; (2002) 135 A Crim R 545 per McKechnie J, at [20].
20 In Dodd, the exceptional circumstance relied upon was the extreme ill-health of the accused. He was near death in consequence of a gunshot wound he inflicted upon himself after allegedly wilfully murdering a woman. The reasons why bail was sought were unusual. The Director-General of the Ministry of Justice had legal custody of the accused under s 16 of the Prisons Act1981 (WA). The accused was in Royal Perth rehabilitation unit. The treating physicians wanted to withhold any further attempts at resuscitating him in the event of life-threatening complications arising from his injuries. The Ministry of Justice considered that it was inappropriate to consent to this course of action. It was a decision for Dodd's family to make. It was thus thought that if Dodd could be released on bail, the family could make that decision.
21 McKechnie J refused to grant bail. He said, at [25], that the categories of exceptional circumstances were not closed, but he did not consider that the facts fitted that description. He said that it would be a distortion of the principles underlying the grant of bail to grant bail in the circumstances.
22 In Donatelli v The State of Western Australia[2004] WASC 168, the applicant's health issues were put forward as one of the circumstances said to constitute exceptional circumstances. However, the ill-health related only to a cartilage tear in the right knee and a tendon disorder of the right wrist and forearm. Surgery was proposed for him. Roberts Smith J said:
(Page 7)
- I would have to say that on the material [the medical evidence] the applicant's own health is not a circumstance which either by itself of in combination with any other factor would seem to me to constitute exceptional circumstances. The term exceptional circumstances in this context clearly means some circumstance out of the ordinary; something which is unusual to a degree, and it must be something obviously in the context which is out of the ordinary or unusual and which does bear upon the issue whether or not the applicant should be kept in custody pending trial.
As I say, there is nothing of that kind in the applicant's medical treatment in the conditions presently before me. [20] - [21]
23 In Hull v The State of Western Australia [2005] WASCA 107, Roberts-Smith J was concerned with an application for bail pending appeal. One of the grounds advanced was that the applicant's mother's medical condition was not good and the applicant's father was in poor health, with his survival time expected to be of the order of 6 to 18 months. Roberts-Smith J said:
One of the most significant considerations in this case is the effect on the applicant of the ill-health of her parents, and her father in particular. The Appeal Court may well take the view that there is a real prospect that her father may not survive her imprisonment even to the extent of the expiration of the nonparole period. Furthermore given his prognosis to deprive her of time with him in the last period of his life would make imprisonment a disproportionate punishment is also a view the Court may take on the hearing of the appeal. [37]
24 The question of ill-health was here related to the grounds of appeal and Roberts-Smith J considered there were exceptional reasons why bail should be granted. The reason was that there was a strongly arguable ground of appeal, not the ill-health of the applicant himself.
25 Two older cases are referred to by Malcolm CJ in Lim v Gregson at 13. Malcolm CJ said, in R v Kennedy [1941] QWN 49 and in R v Jeffers (1895) 1 ALR 71, that exceptional circumstances were held not to exist where the applicant was of advanced age and in poor health.
26 In Kennedy, E A Douglas J was asked to grant bail to a person charged with unlawful killing. The prisoner was 70 years of age and suffered from ill-health. Two medical certificates said that he suffered from asthma, cardiac trouble and a hernia and had the use of only one eye. E A Douglas J said:
I do not think the accused's health is so bad that he cannot safely be trusted to the care of the gaol authorities ... unless the position is that the prisoner
(Page 8)
- is really almost unable to go to gaol I think he should be kept in custody. 65
27 E A Douglas J referred to the King vByrne, a report which appeared in the Courier Mail newspaper and (see also 50 BCR 371), and said that this was a distinguishable case. The man was in a dying state, suffering from cancer. E A Douglas J said he knew of no case in which an applicant had been granted bail except in that case. In Jeffers, bail was refused to a prisoner charged with carnal knowledge of a girl under the age of 16 years but I can find no reference in the case to the health of the prisoner.
Are there strongly arguable grounds of appeal?
28 The grounds of appeal are certainly arguable because leave was granted on 5 November 2008. The question is whether they are strongly arguable.
29 It is difficult to answer this question. The applicant's case filed on 3 October 2008 is extensive. It raises a number of complex factual issues. However, in this case, the primary argument is not that the grounds are strongly arguable. It is that there are exceptional circumstances occasioned by the health condition of the applicant.
30 It is conceded that the evidence which surrounds the DNA evidence in the case is complex. The history of the proceedings leading to conviction were referred to. First, it was put that Goetze DCJ erred in excluding expert evidence. This ground turns on the question of expertise of the witness sought to be called. It relates to the need for qualification in the field of genetics rather than experience in DNA analysis generally. The question is whether the proposed expert had the expertise to testify. The submission is that there are real prospects on this ground.
31 The second main basis for the appeal relates to the conclusions of Nisbet DCJ which are said to reveal errors of law.
32 In my opinion, no firm conclusion can be reached about the strength of the grounds of appeal as the case presently stands. No case has yet been filed by the respondent answering the appellant's contentions.
33 The respondent submits:
(1) The evidence of the proposed expert, Dr McDonald, was essentially before the court through the evidence of another expert
- and the trial was not affected by the fact that Dr McDonald was not called.
- (2) The expert testimony went to establish that the applicant was the father of two children of the complainant. The acts said to have occasioned the complainant's pregnancies were outside the period of the charges. Counsel submits they went to relationship evidence. That evidence went to establish a sexual interest by the applicant in the complainant and it is said that in the end it was a matter of credit because the applicant denied any sexual involvement at all with the complainant.
(3) Even if the grounds of appeal were upheld, the applicability of the 'proviso' (Criminal Appeals Act, s 30(4)) would be an important aspect of the appeal.
34 These submissions cannot be finally resolved at this level, but they do indicate that, as matters presently stand, the applicant cannot make out strongly arguable grounds of appeal.
Will a custodial sentence be likely to be substantially served before the appeal is heard?
35 The applicant was sentenced to imprisonment for 3 years. The term began on 28 February 2008. He was made eligible for parole. He will be eligible to be considered for parole 18 months after the commencement of the term. That date will be 27 August 2009.
36 The applicant's appeal is listed for hearing in the Court of Appeal on 19 March 2009. He will then have served a little over 12 months of his term and he will be within 6 months of eligibility for release on parole. The delay in hearing the appeal, however, is largely due to the applicant's own delay in the filing of documents. Further, there is a prosecution appeal against the adequacy of the sentence that will be heard with the conviction appeal on 19 March 2009.
37 It therefore seems to me that this is not a case in which it can be said that a substantial portion of the term will necessarily be served by the time of the appeal. The term itself is under appeal and the applicant, through his own delay, has allowed a considerable period of time to run whilst he had remained in custody.
38 Both of the criteria, namely strongly arguable grounds and the serving of a substantial term, are generally needed to be established before
(Page 10)
- exceptional reasons can be found in a case in which bail is sought pending appeal. In this case, I am not able to find either of those.
Are there any other exceptional reasons?
39 This raises the question of the applicant's health. I accept the opinion of Dr Hardy that the applicant could be well managed at Acacia Prison. Should he experience a coronary event, there is likely to be a more rapid response to any treatment than in the general community. At the same time, I appreciate that he is likely to be further from the coronary care unit than he is if he were living in Guildford.
40 The applicant's medication regime in prison manages his present problems. He is likely to require an increase in the level of medical input in the future but it would seem from Dr Hardy's report that all of this can be well provided in prison.
41 The applicant's complaints to Ms Jeffery relate to his serious medical condition. The prison authorities are aware of the condition and medical help is readily available to him. In my opinion, the applicant's serious health problems, disabling as they no doubt are, do not, in the circumstances of this case, constitute exceptional reasons for a grant of bail pending appeal. I would therefore dismiss the application.
0
5
2