DCM v The State of Western Australia [No 2] - [2024] WASCA 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DCM -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 89
CORAM:   BUSS P
HEARD:   26 JULY 2024
DELIVERED          :   26 JULY 2024
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 - Further application for bail pending the hearing and the determination of the appeal

Legislation:

Bail Act 1982 (WA)

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	B M Murray

Solicitors:

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

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

DCM v The State of Western Australia [2024] WASCA 6
Serukai v The State of Western Australia [2020] WASCA 127

BUSS P:

(These reasons were delivered extemporaneously on 26 July 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.
On 13 December 2023, the appellant filed an application for bail. On 12 January 2024, I heard and dismissed the application. See DCM v The State of Western Australia.[1]
[1] DCM v The State of Western Australia [2024] WASCA 6.
On 30 April 2024, the appellant filed and served his appellant's case.
The appellant's case contains two grounds of appeal. Ground 1 alleges, in essence, that the State's failure to call as a witness at the trial the police officer who initially investigated the original complaint against the appellant in 2017, and who decided not to proceed with charges against the appellant, occasioned a miscarriage of justice. Ground 2 alleges, in essence, that the verdicts of guilty on which the convictions are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.
On 2 May 2024, I referred the question of leave on the grounds of appeal to the hearing of the appeal.
On 4 June 2024, the State filed and served its respondent's answer.
On 5 July 2024, the appellant filed and served another application for bail. The appellant asserts, in essence, that bail should be granted pending the hearing and determination of the appeal because the grounds of appeal are strongly arguable.
The State opposes the appellant's second 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.[2]
[2] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15] (Buss P).
In the present case, the appellant's defence at the trial was that none of the alleged offending had occurred and that the complainant was not a credible or reliable witness.
As to ground 1, the police officer who was responsible for the investigation into the second complaint against the appellant, namely Detective Senior Constable Ian Yendell, was cross‑examined at the trial about why the appellant had not been charged in 2017. Officer Yendell read from a running sheet in the initial investigation in 2017 including an entry that '[c]orroboration was not able to be obtained to support the allegation but rather what was found supported [the appellant's] version of events. Released without charge'. Officer Yendell gave evidence to the effect that he did not find anything in the summary of the initial investigation that supported the appellant's version of events (ts 190). Officer Yendell also said that he did not make enquiries of the police officer who made the entry in the running sheets of the 2017 investigation or ascertain what was found in the initial investigation that supported the appellant's version of events (ts 191). The prosecutor did not call the police officer who carried out the initial investigation in 2017. No statement from that police officer was disclosed to the defence.
After the close of the defence case, the jury asked the trial judge in a note why the charges did not proceed in 2017 (ts 348). The jury also asked the trial judge in the note whether they could see the running sheet from which Officer Yendell had read and also whether they could see the video‑recorded interviews of the appellant and his wife that were made during the initial investigation (ts 348). Prior to answering the jury's questions, the trial judge read the jury's note to the prosecutor and defence counsel and indicated that his Honour proposed to tell the jury that they could not see the running sheets or the video‑recorded interviews from the 2017 investigation because they were not exhibits and that the jury should focus upon whether they were satisfied beyond reasonable doubt of the appellant's guilt on each of the counts in the indictment, rather than upon why the initial investigation in 2017 did not result in charges (ts 349). The appellant's very experienced defence counsel indicated that he did not have 'any problem' with how his Honour proposed to proceed (ts 349). The trial judge then answered the jury's questions in the manner he had proposed (ts 349 ‑ 350).
Further, as to ground 1, the appellant asserts, based on extracts from the running sheet of the 2017 investigation that are set out in the respondent's answer, that statements from the complainant's maternal grandmother that were recorded in that running sheet were inconsistent with the complainant's evidence at the trial and were supportive of the appellant's version of events. However, the appellant's assertion does not appear to be borne out by the extracts from the running sheet that are set out in the respondent's answer. In any event, the maternal grandmother was not called as a witness at the trial.
Further, as to ground 1, the appellant relies upon information obtained from records of the Department of Child Protection and Family Services (as it was then called) during the initial investigation in 2017. A note dated 12 December 2014 in those records stated, 'Community Resource Info: Police request for interview after [the complainant] was approached by a man at Bunnings who grabbed her arm. [The complainant] managed to break free. No further action'. It is not apparent that the police officer who was responsible for the initial investigation could have given relevant evidence of the Bunnings incident beyond the account contained in the running sheet. At the trial, defence counsel cross‑examined the complainant in relation to the Bunnings incident. She maintained that the incident had occurred and that she had not made an allegation of sexual offending in relation to that incident. Extracts from the running sheet in the respondent's answer do not contain any evidence to the contrary. The complainant gave evidence to the effect that the staff at Bunnings had examined their CCTV footage and nothing of relevance was shown (ts 55 ‑ 56).
The appellant submits, based on ground 1, that a miscarriage of justice occurred at the trial because of the State's failure to call the police officer who was responsible for the initial investigation.
As to ground 2, the appellant argues that the jury, acting reasonably, were unable to accept the complainant's evidence as credible and reliable because of a number of inconsistencies in her evidence. It appears that there were inconsistencies in the complainant's evidence. Defence counsel focused in his cross‑examination of the complainant and in his closing address on matters which defence counsel said demonstrated that the complainant's evidence was incredible and unreliable.
The appellant gave evidence at the trial. Defence counsel also called the appellant's wife as a witness. The appellant's version of events was supported in significant respects by his wife's evidence.
The appellant submits, based on ground 2, that, having regard to the whole of the evidence at the trial, it was not open to the jury to convict on any of the counts in that the jury must have had a reasonable doubt about the credibility and reliability of the complainant's evidence.
I have considered the appellant's current bail application having regard to whether either or both of the 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 grounds of appeal, and the merits of his submissions in support of the grounds, are of sufficient strength to justify a grant of bail.
At the hearing of the current bail application, the appellant said that he proposes to add new grounds of appeal, including a ground alleging that there was material non‑disclosure by the State at and before the trial which occasioned a miscarriage of justice.
If the appellant decides that he wants to add new grounds, the appellant must file and serve an application in an appeal seeking leave to amend. The application should be accompanied by an affidavit in support and a minute setting out the proposed new grounds.
It is not appropriate, having regard to the late raising of the proposed additional grounds, to take the proposed additional grounds into account in considering the appellant's current bail application. The new grounds must be reduced to writing and be the subject of an application for leave to amend. If leave is granted, the new grounds must be the subject of written submissions in an amended appellant's case. The State will then have a proper opportunity to consider the new grounds and to respond in writing in an amended respondent's answer. The court will then be in a position to evaluate properly the apparent merits of the new grounds.
The appellant's application for bail filed on 5 July 2024 must be dismissed.
Finally, I note that at this stage the appeal is likely to be listed for hearing in the November or December 2024 sittings of the court. However, that is likely to change if the appellant applies for and is granted leave to amend his grounds of appeal by the addition of new grounds.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable President Buss
29 JULY 2024