DCM v The State of Western Australia - [2024] WASCA 6

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DCM -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 6
CORAM:   BUSS P
HEARD:   12 JANUARY 2024
DELIVERED          :   Ex tempore
FILE NO/S:   CACR 134 of 2023
BETWEEN:   DCM
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 1977 of 2021

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of seven counts of child sex offending - Application for bail pending the hearing and determination of the appeal

Legislation:

Bail Act 1982 (WA)

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr R P Arndt

Solicitors:

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

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

Serukai v The State of Western Australia [2020] WASCA 127

BUSS P:

(These reasons were delivered extemporaneously on 12 January 2024 and have been edited from the transcript.)

The appellant has appealed against conviction.
On 8 June 2023, the appellant was convicted after a trial before Bowden DCJ and a jury, of seven counts of sex offending against his daughter, being a child under the age of 16 years. The counts comprised four offences of sexual penetration, two offences of indecent dealing and one offence of procuring the complainant, being a child whom the appellant then knew to be his lineal relative, to engage in sexual behaviour.
On 21 July 2023, the trial judge imposed a total effective sentence of 8 years imprisonment. The sentence began on that date. His Honour made a parole eligibility order.
On 30 November 2023, the appellant filed his appeal notice in respect of the convictions. The appellant requires an extension of time to appeal. The last date for appealing was 11 August 2023.
The appellant has not yet filed his appellant's case.
The appellant has indicated in a document filed on 21 December 2023 that he proposes to rely upon two grounds of appeal. Proposed ground 1 alleges, in essence, that a miscarriage of justice occurred at the trial because the prosecution failed to disclose an interview between police and Jo‑Anne Parker. Proposed ground 2 alleges, in essence, that the verdicts of guilty on which the convictions were based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.
On 13 December 2023, the appellant filed an application in an appeal for bail pending the hearing and determination of the appeal. The application is supported by the appellant's affidavit sworn 29 November 2023.
In his affidavit, the appellant asserts, relevantly and in essence, that:
(a)In 2023 the appellant was diagnosed with attention deficit hyperactivity disorder.
(b)Subsequently, the appellant was assessed by a psychiatrist at Perth Clinic and prescribed Lisdexamfetamine to treat this condition.
(c)The medication improved significantly the appellant's ability 'to research, work complex problems, continue work through negative mental health episodes, and generally operate in a social setting'.
(d)Since his imprisonment on 21 July 2023, medical practitioners at Hakea Prison and Acacia Prison have refused to prescribe Lisdexamfetamine.
(e)The only alternative treatment that has been offered to the appellant is sedation.
(f)A lack of treatment for the appellant's condition has impacted significantly upon his ability 'to engage with legal resources, complete paperwork, and lodge [his] Appeal notice, and would impact upon [his] ability to do the same with following appeal matters'.
(g)The appellant is being held in protected custody and that limits his access to legal resources within the prison.
(h)There are delays within the prison in the provision to the appellant of case law, legislation and other printed material.
(i)In the circumstances, the appellant should be granted bail pending his appeal because if he is able to reside in the community his capacity to prepare his appellant's case and other documents relevant to the appeal and to prepare for the hearing of the appeal will be enhanced significantly.
The appellant has set out in the document he filed on 21 December 2023 submissions on his proposed grounds of appeal and on his application for bail. The document includes five typewritten pages which set out the proposed grounds of appeal, draft submissions on those grounds and submissions on the bail application. The document filed on 21 December 2023 annexes a letter dated 16 October 2023 from the Complaints Office of Health and Disability Services to the appellant and a medical record dated 13 December 2023 in relation to the appellant. The appellant has supplemented his written submissions on the bail application with oral submissions at the hearing today.
The State opposes the appellant's application for bail.
The principles relating to the granting of bail pending the hearing or determination of an appeal 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).
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown. See Serukai v The State of Western Australia.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
In the present case, I have considered the appellant's bail application having regard to whether either or both of his proposed grounds of appeal are strongly arguable. I have taken into account the material and considered the submissions relied upon by the appellant in support of his application. I am not satisfied, at this stage, that the merits of the appellant's proposed grounds of appeal, and the merits of his submissions in support of the proposed grounds, are of sufficient strength to justify a grant of bail.
Further, I consider that the alleged difficulties to which the appellant has referred in his affidavit, in the document he filed on 21 December 2023 and in his oral submissions about preparing for the appeal, including preparing his appellant's case and other documents, while in custody, do not constitute an exceptional reason why the appellant should not be kept in custody pending the hearing and determination of the appeal. Those alleged difficulties may constitute a reason for extending the time within which the appellant must file and serve his appellant's case and other documents. They are not a proper basis for releasing the appellant on bail pending the hearing and determination of the appeal.
It is not unusual in this State for a person who has been imprisoned to be unable to possess electronic exhibits or to have limited access to electronic resources. It is not within the power of this court to vary those restrictions if, in a particular case or generally, any variation were considered to be appropriate.
Further, there is no evidence before this court from a medical practitioner concerning the appellant's current mental health. The medical record dated 13 December 2023 notes the appellant's diagnoses, allergies and medications. The diagnoses comprise asthma, risk of self‑harm, anxiety with depression, attention deficit hyperactivity disorder and dermatitis. An allergy is noted in respect of shellfish. However, the medical record does not deal with the severity of any of the conditions mentioned in the record.
The letter dated 16 October 2023 from the Complaints Office of Health and Disability Services states, relevantly:
(a)On 30 August 2023, the appellant asked a nurse practitioner about being prescribed Lisdexamfetamine. The appellant was referred to a medical practitioner for his treatment to be assessed.
(b)On 8 September 2023, a medical practitioner saw the appellant. The medical practitioner explained to the appellant that Lisdexamfetamine is not used or prescribed in the prison environment. The appellant was offered Amitriptyline and he agreed to trial this medication.
(c)On 27 September 2023, the medical practitioner saw the appellant again. The appellant asked for the Amitriptyline to be terminated because '[he] felt [he] no longer required it'.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the hearing and determination of the appeal.
The appellant's application for bail will therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
WH
Research Associate to the Honourable President Buss
17 JANUARY 2024