Costa v The State of Western Australia

[2018] WASCA 167

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   COSTA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 167

CORAM:   MAZZA JA

HEARD:   31 AUGUST 2018

DELIVERED          :   31 AUGUST 2018

PUBLISHED           :   26 SEPTEMBER 2018

FILE NO/S:   CACR 17 of 2018

BETWEEN:   PETER RAYMOND COSTA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

File Number            :   IND 795 of 2016

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts

Legislation:

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

Result:

Bail application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	In Person
Respondent	:	The Director of Public Prosecutions (WA)

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

Nil

MAZZA JA:

(This judgment was delivered extemporaneously on 31 August 2018 and has been edited from the transcript.)

1. Before the court is an application for bail pending appeal, filed on 13 August 2018. 

2. On 10 August 2017, the appellant was convicted after trial of three counts of sexual penetration without consent.  On 12 January 2018, Gething DCJ imposed a total effective sentence of 6 years' imprisonment, with eligibility for parole.  On 30 January 2018, the appellant, in person, filed notices of appeal against conviction and sentence. 

3. No appellant's cases have been filed.  In this regard, the appellant is in default of the rules and of an order made on 8 June 2018.  However, I note that in relation to the appeal against conviction, the appellant has provided the court with a draft appellant's case dated 6 August 2018.  The draft appellant's case contains five grounds of appeal.  It appears to have been prepared with the assistance of a lawyer, although Mr Costa tells me this morning it is with the assistance of non‑lawyers.  It is nevertheless a coherent document, and the grounds of appeal are readily comprehensible. 

4. Bail pending appeal can only be granted if the conditions in cl 4A of sch 1, pt C of the Bail Act 1982 (WA) are met. In essence, cl 4A provides a rebuttable presumption against the granting of bail pending appeal. The presumption can only be rebutted if the appellant demonstrates exceptional reasons for the grant, and it is otherwise proper to grant bail having regard to the provisions in cl 1 and cl 3.

5. The appellant's application is unusual.  He seeks bail for one month for the sole reason of enabling him to complete the preparation of his appellant's case in his conviction appeal.  In his affidavit in support of his application, the appellant emphasises that he is acting in person and has encountered difficulties while incarcerated preparing his appellant's case. 

6. I do not underestimate the difficulties encountered by appellants like Mr Costa who act in person in accessing legal resources.  The court will often accommodate those difficulties, as has occurred in this case.  The experience of the court is that appellants manage to file documents in accordance with the rules and conduct their appeals, even though they are in custody and acting in person.  Of course, it would be better if the appellant is legally represented, but at this stage that does not seem likely. 

7. In my opinion, the difficulties the appellant has encountered, including the difficulties that he has described to me today in his oral submissions, do not constitute exceptional reasons for a grant of bail.  The application must therefore be dismissed, and I so order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA

26 SEPTEMBER 2018