Bropho v The State of Western Australia
[2006] WASCA 39
•23 FEBRUARY 2006
BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 39 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:13/2006 | 23 FEBRUARY 2006 | |
| Coram: | ROBERTS-SMITH JA | 23/02/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused Application for urgent appeal order under r 46 Supreme Court (Court of Appeal) Rules 2005 dismissed Order made that the application for leave to appeal be reserved to the Court of Appeal and that the hearing of the appeal be expedited | ||
| B | |||
| PDF Version |
| Parties: | ROBERT CHARLES BROPHO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail pending appeal Appeal against conviction Indecent dealing with a child between 13 and 16 years Prospects of success on appeal Applicant's medical condition Whether exceptional reasons Appeal Application for urgent appeal order under r 46 Supreme Court (Court of Appeal) Rules 2005 Nature of order Requirements Whether appeal should be expedited Turns on own facts |
Legislation: | Bail Act 1982, s 13 Supreme Court (Court of Appeal) Rules 2005, r 46 |
Case References: | Bolton v The State of Western Australia [2005] WASCA 232 Fowkin v The State of Western Australia [2006] WASCA 10 Samuels v The State of Western Australia (2005) 30 WAR 473 Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999 Hull v The State of Western Australia [2005] WASCA 107 Liberato v The Queen (1985) 159 CLR 507 Longman v The Queen (1989) 168 CLR 79 R v Tieleman & Anor (2004) 149 A Crim R 303 Stalker v The Queen [2002] WASCA 364 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BROPHO -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 39 CORAM : ROBERTS-SMITH JA HEARD : 23 FEBRUARY 2006 DELIVERED : 23 FEBRUARY 2006 FILE NO/S : CACR 13 of 2006 BETWEEN : ROBERT CHARLES BROPHO
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY DCJ
File No : IND 1688 of 2003
(Page 2)
Catchwords:
Criminal law and procedure - Bail pending appeal - Appeal against conviction - Indecent dealing with a child between 13 and 16 years - Prospects of success on appeal - Applicant's medical condition - Whether exceptional reasons
Appeal - Application for urgent appeal order under r 46 Supreme Court (Court of Appeal) Rules 2005 - Nature of order - Requirements - Whether appeal should be expedited - Turns on own facts
Legislation:
Bail Act 1982, s 13
Supreme Court (Court of Appeal) Rules 2005, r 46
Result:
Application for bail refused
Application for urgent appeal order under r 46 Supreme Court (Court of Appeal) Rules 2005 dismissed
Order made that the application for leave to appeal be reserved to the Court of Appeal and that the hearing of the appeal be expedited
Category: B
Representation:
Counsel:
Applicant : Mr R Richardson
Defendant : Ms A L Forrester
Solicitors:
Applicant : Aboriginal Legal Service
Defendant : State Director of Public Prosecutions
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Case(s) referred to in judgment(s):
Bolton v The State of Western Australia [2005] WASCA 232
Fowkin v The State of Western Australia [2006] WASCA 10
Samuels v The State of Western Australia (2005) 30 WAR 473
Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999
Case(s) also cited:
Hull v The State of Western Australia [2005] WASCA 107
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen (1989) 168 CLR 79
R v Tieleman & Anor (2004) 149 A Crim R 303
Stalker v The Queen [2002] WASCA 364
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1 ROBERTS-SMITH JA: By application filed 10 February 2006, the applicant seeks an urgent appeal order pursuant to r 46 of the Supreme Court (Court of Appeal Rules) 2005 (WA) ("the Rules"), and bail pending appeal pursuant to s 13 of the Bail Act. The application is deficient in that it does not state any grounds for the making of it.
2 On 2 December 2005 the applicant was convicted in the District Court at Perth on two counts, that on 2 May 2003 he indecently dealt with a female child aged between 13 and 16 years. Those convictions followed a trial before his Honour Judge Wisbey sitting without a jury.
3 On 20 January 2006 the applicant was sentenced to 12 months immediate imprisonment on each count to be served concurrently. The appeal notice filed 10 February 2006 notes also, "Suspended sentence activated."
4 Although the applications were supported by the affidavit of Christian Leith John Miocevich, filed 10 February 2006, which annexes a number of documents including the indictment; the transcript of the pre-recording of the complainant's evidence on 12 November 2004; the transcript of the hearing before his Honour on 28 and 29 November 2005; his Honour's reasons for conviction dated 2 December 2005, and as a further annexure the police statement of Marie Ann Baker. The Judge's sentencing remarks are not before me and nor were, at that stage, any details provided of the suspended sentence which the appeal notice mentions.
5 The substance of the affidavit of Mr Miocevich is brief. As to the basis of these applications, it states simply:
"7. The Appellant applies for an urgent appeal order and bail pending appeal on the following grounds:-
i. Medical condition of the appellant, (a medical report will be filed as soon as it is received).
ii. By the time an appeal is heard in the ordinary course, the appellant is likely to have served most if not all of his sentence. The sentence was one of 12 months with parole."
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- concurrently, and a suspended sentence for unlawful assault was activated by his conviction in respect of which he was required to serve two months and 15 days concurrently. A further suspended sentence for assault occasioning bodily harm was also activated by that conviction resulting in a sentence of five months' imprisonment, also to be served concurrently, so that the total sentence imposed was 12 months with eligibility for parole.
7 Mr Miocevich deposes to having telephoned the Sentence Information Unit on 21 February 2006, and being informed that the applicant is eligible for release on parole on 20 July this year. He annexes to his affidavit medical reports regarding the applicant, which were before his Honour the sentencing Judge, they being a report from Dr D'Souza dated 24 November 2005, a report from Dr Ireland dated 9 December 2005 and a report from Dr Brand dated 9 December 2005.
8 He further deposes to having spoken to the Supervisor of the Court of Appeal's office on 22 February 2006, who informed him that the average time an appeal is heard is two to three months from the date of lodging the appeal books, but that if this appeal were expedited, it could be heard as early as the third week in March, depending upon the filing of the documents, and there are dates available in April onwards, again depending upon the filing of documents and the availability of counsel.
9 Finally, he deposes that if granted bail, the applicant would reside at a nominated address and that he could obtain a surety in the sum of $10,000, which was the surety amount required prior to trial.
10 The applicant has not yet filed his Appellant's Case under r 32 of the Rules. There has accordingly not yet been any determination whether leave to appeal should be granted. Leave is required for each ground of appeal and such leave must not be granted unless the court or a single Judge is satisfied the ground has a reasonable prospect of success (s 27 of the Criminal Appeals Act 2004 (WA) and see Samuels v The State of Western Australia (2005) 30 WAR 473).
11 I understand the position to be that if the ordinary timetable for the filing of the Appellant's Case, and if leave be granted, the Respondent's Answer, were to be followed, the former would not have to be filed until the end of March and the latter would not have to be filed until the end of April.
12 I turn to address the two grounds upon which the applications are made and I shall do so first in relation to the application for an urgent
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- appeal order. That application is not opposed by the respondent if I come to the conclusion that bail should be refused.
13 As to the medical condition of the applicant, as I have already indicated, the medical reports annexed to Mr Miocevich's affidavit filed this morning were those reports which were before the trial Judge. There is one further report from Dr Brand dated 22 February 2006 which was handed to me today.
14 The reports which were before the trial Judge indicate (and I state this briefly and not comprehensively), that the applicant has a number of serious medical conditions which are, of course, more so because of his age. Dr D'Souza has been personally looking after the applicant since 1992 and states in his report that his medical history includes worsening ischaemic heart disease, poorly controlled Non-Insulin Dependent Diabetes Mellitus, as well as chronic stresses and depression, which at the date of that letter made 24 November 2005, he described as having got worse recently, "greatly affecting his Diabetes control."
15 The applicant was admitted to Sir Charles Gairdner Hospital on 4 November 2005, with left-sided chest pain. He was recovering from that and was due to have an angiogram two weeks later and, because of his worsening diabetes control, had been put on insulin. Dr Brand, in his report of 9 December last year, also referred to the applicant's multiple medical problems, which he said included:
"o Poorly controlled Diabetes,
o Ischaemic Heart Disease with several myocardial infarcts, including a recent one,
o Hypertension,
o Oesophageal reflux and
o Hypothyroidism."
16 He said the applicant's:
"Diabetes is complicated by early chronic renal failure, retinopathy and severe peripheral neuropathy.
His Diabetes has always been very poorly controlled until recently when he had been commenced on insulin.
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- [His] other major problem is that of a depressive illness which had become increasingly significant over the previous 12-18 months."
17 The doctor stated that "[w]ith so many major medical problems it is clear that a custodial sentence would impact on [the applicant's] health and his mental state in a significant way."
18 In his opinion his depression would be the most affected component, but his diabetes was likely to deteriorate with reduced exercise as well. In his report dated 22 February 2006, Dr Brand reiterates in a little more detail the applicant's medical conditions. He goes on to say:
"[The applicant] suffers from Type 2 diabetes, which requires insulin for optimal control. His current management includes twice daily insulin plus oral medications. His tablet is Metformin at a dose of 500 mgs twice a day and this should be given with breakfast and the evening meal. The insulin that he has been using is Novomix and he takes a dose of 42 units in the morning and 38 in the evening. It is imperative that Novomix is injected just as he begins to eat his breakfast and again in the evening just as he begins to eat the evening meal. If the insulin is given significantly before the meal it will lead to hypoglycaemia and it may do a similar thing in an unpredictable fashion if given after the meal.
Diabetic management also includes attention to diet and exercise. The optimal diet is low in fat and high in fibre and he requires a small to moderate sized breakfast, lunch and evening meal. Snacks are not essential at morning, afternoon tea or supper but can be taken if desired. Exercise is another beneficial part of diabetic management but should not be intense, particularly in the first few hours after an insulin dose as this could lead to hypoglycaemia. Low to moderate exercise however can be incorporated into the daily routine.
The dosage of insulin will be affected by changes in diet and exercise, which will inevitably occur while in prison as the home environment cannot be mimicked. Robert should therefore check his blood sugar on about two days per week and it should be checked before breakfast, before lunch, before the evening meal and before bed. The aim is to have these readings between 5 and 10. If a significant number are below 5, then
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- medical attention should be sought with regard to lowering the appropriate insulin dose and if a large number of readings are greater than 10 similar attention needs to be given to increasing the dosage. I would be happy to liaise with your Visiting Medical Officers if they wish to have my advice for dosage modification.
If the above is followed, hypoglycaemia should be rare but glucose tablets should be available to reverse hypoglycaemia if required."
19 It is not wholly unusual for offenders to suffer medical problems, sometimes quite serious ones. Whilst that may be a relevant consideration going to the harshness of imprisonment on the particular offender and hence to the length of any term of imprisonment or, indeed, whether imprisonment should be imposed at all, that is not the issue before me. It would be rare for a sentencing court to conclude that an offender should not be imprisoned at all, when imprisonment would otherwise be required.
20 No proposition of that kind was urged upon his Honour here, nor has any evidence been put before me as to the applicant's actual experience in custody in relation to his medical condition or treatment. There is no material before me to suggest that the prison authorities are not able to provide suitable medical care for the applicant in the custodial setting. In the absence of evidence to the contrary, I think I am obliged to assume that they can. One would certainly expect so; indeed, that would be a requirement for the State to discharge its duty of care to prisoners in custody.
21 Nonetheless, the applicant's medical condition is not good and that is a factor to which some weight should be given in relation to the issue of expedition.
22 I think it is apt to turn now to the issue of time in custody before the appeal. When this ground asserts that the applicant is likely to have served most, if not all, of his sentence before his appeal is heard, I take that to be referring to him serving the non-parole portion of it.
23 I am informed by the Registrar that we are currently listing for May and June this year with possibly some listing opportunities in April. As I have observed, if the applicant and respondent adhere to the statutory time lines, the appeal could not be listed before approximately late April. I would expect it to be listed for hearing in the period 15 to 23 May 2006. If the applicant were prepared to file his Appellant's Case in a time shorter
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- than the 35 days allowed by the rules then the appeal, if leave to appeal were granted, could be heard earlier, possibly even between 8 or 15 March 2006.
24 It is necessary to be clear about the order which is actually being sought. An urgent appeal order under r 46 of the Rules is an order of a particular kind. That rule provides:
"(1) An urgent appeal order in relation to an appeal is an order that the appeal is an urgent appeal that must be heard as quickly as practicable consistent with the proper administration of justice.
(2) An urgent appeal order must include an order setting a timetable for the various requirements of these rules and may include –
(a) an order dispensing with or modifying any such requirement;
(b) any order that will or may facilitate the appeal being heard as quickly as practicable consistent with the proper administration of justice."
26 There is nothing in the affidavit material before me which would enable me to reach any degree of satisfaction about that. There has apparently been no discussion, much less agreement, between the parties about a timetable.
27 Where an applicant or respondent applies for an urgent appeal order under r 46, the application should set out the precise details of the order sought with specific reference to any particular requirements of the Rules it is sought to have modified or dispensed with, the terms in which they are sought to be modified and a detailed timetable for compliance with the requirements of the Rules and the order.
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28 The applicant has filed a minute of proposed orders but the dates are all left blank and so that is of no practical assistance to me. In the absence of this material, I am not prepared to make an urgent appeals order under r 46. Nonetheless, I accept that there are circumstances in this case justifying an order that the appeal be expedited.
29 The evidentiary material required for the appeal is not great. Apart from actually preparing appeal books, all else that is required would be the Appellant's Case and Respondent's Answer. If the applicant considers the timetable embodied in the Rules can be shortened, the applicant may always file his Appellant's Case within the 35 days prescribed in r 32(2)(b).
30 Likewise, the respondent may file its Answer in a shorter time than the 21 days prescribed in r 33(3)(b).
31 I would be prepared to order that the application for leave to appeal be reserved to the Court of Appeal for hearing as the appeal and that the hearing of the appeal be expedited.
32 Subject to the parties filing their documents in a timely way, the appeal could be heard in March or April.
33 I turn now to the application for bail. The principles are clear enough. Clause 4 of Pt C of Sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings, a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and even if there are, then shall grant bail only if satisfied bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of that Part. Those are the provisions which set out the general considerations relevant to any application for bail.
34 Where such an application is founded upon the prospect of success of the appeal then it is well established now that there must be a high prospect of success, that is to say, a prospect higher than the threshold for the granting of leave to appeal. The distinction between the two and the reasons for it has been explained by me in Fowkin v The State of Western Australia [2006] WASCA 10, particularly at [6] – [11] inclusive. (See also Bolton v The State of Western Australia [2005] WASCA 232.
35 The applicant relies upon the case of Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999. That decision is relied upon for the proposition that the fact that an offender would serve a
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- substantial portion of the custodial part of his or her sentence before the appeal is disposed of, may alone be a proper basis for a court granting bail. However, as his Honour went on to point out at 5, that is only one of a number of factors that needs to be taken into account. His Honour said there that consideration must also be given to the merits of the appeal and the likely strength of the applicant's case on appeal.
36 The applicant here is a sentenced prisoner. That is not a status which is only provisional pending appeal. If his appeal were heard in March, he would still have some four months of the six months' non-parole period of his sentence to serve. The question of his release on bail could be revisited by the Court of Appeal upon the conclusion of the hearing of the appeal, at which time the court would have a much better appreciation of the likely outcome.
37 The applicant's submissions in relation to this emphasise that whether expedition of the hearing were to be granted or not, the sole ground to establish exceptional circumstances was the applicant's state of health as indicated in the medical reports. Mr Richardson states:
"It is not contended on behalf of the applicant that the appeal 'will' succeed. It is however submitted that a reading of the reasons for decision demonstrate a lack of detailed critical analysis of the issues and a lack of detailed reasoning for findings particularly in relation to issues of credibility."
38 The prospects of success was not a factor upon which the applicant sought to ground either application but as the oral submissions were presented today, they were almost entirely devoted to that factor, as well of course as to the factor of the applicant's medical circumstances. Mr Richardson drew my attention to a number of aspects of the reasons given by the trial Judge. It would not, I think, be a useful exercise to go through the complaints he makes about those reasons. It is sufficient to say no point raises an immediate reaction of actual or potential error indicative of a miscarriage of justice. By that, I am not saying that the grounds of appeal as particularised are not arguable. Some appear stronger than others. I express no view on whether this appeal will, or may, succeed except to the limited extent I am required by law to do so, for the purposes of this application.
39 I am not persuaded the applicant's medical condition and the period of his sentence he is likely to serve before the hearing of his appeal, either singly or in combination, constitute exceptional reasons why he should
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- not be kept in custody pending the hearing of his appeal, nor am I persuaded that his appeal has such a substantial prospect of success as to raise the apprehension of a real prospect that unless released to bail pending appeal, he would have to serve a significant term of imprisonment in respect of an unsound conviction, and an injustice would result (see Fowkin (supra) at [57]). With the applicant not having demonstrated exceptional reasons why he should be released from custody pending the hearing of his appeal, the application for bail will be refused.
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