Duckworth v The State of Western Australia
[2015] WASCA 137
•30 JUNE 2015
DUCKWORTH -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 137 | |
| THE COURT OF APPEAL (WA) | 30/06/2015 | ||
| Case No: | CACR:98/2015 | 24 & 29 JUNE 2015 | |
| Coram: | MAZZA JA | 29/06/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEIL JAMES DUCKWORTH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Stealing as a director or officer of a corporation or company Appeal against conviction Application for bail pending appeal Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A Criminal Code (WA), s 378(8) |
Case References: | Ness v The State of Western Australia [2012] WASCA 273 Shrivastava v The State of Western Australia [2010] WASCA 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUCKWORTH -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 137 CORAM : MAZZA JA HEARD : 24 & 29 JUNE 2015 DELIVERED : 29 JUNE 2015 PUBLISHED : 30 JUNE 2015 FILE NO/S : CACR 98 of 2015 BETWEEN : NEIL JAMES DUCKWORTH
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 888 of 2012
Catchwords:
Criminal law - Stealing as a director or officer of a corporation or company - Appeal against conviction - Application for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Criminal Code (WA), s 378(8)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms P A Aloi
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Ness v The State of Western Australia [2012] WASCA 273
Shrivastava v The State of Western Australia [2010] WASCA 96
- MAZZA JA:
(This judgment was delivered extemporaneously on 29 June 2015 and has been edited from the transcript.)
1 This is an application for bail pending the appellant's appeal against conviction.
2 On 14 November 2013, the appellant was convicted after a four-week trial in the District Court of 20 counts of stealing as a director, contrary to s 378(8) of the Criminal Code (WA). The total sum of money allegedly stolen was in excess of $800,000.
3 On 20 December 2013, the appellant was given a total effective sentence of 4 years' imprisonment with eligibility for parole. That sentence commenced, as I understand it, on 20 December 2013. Thus, the appellant will be eligible for parole on or about 19 December 2015.
4 The appellant represented himself at trial as he does in these proceedings. The appellant filed his notice of appeal on 21 May 2015, some 17 months out of time.
5 The notice of appeal contains 42 grounds. I will not enumerate them nor describe them in detail. In very general terms, they allege:
(a) the indictment was defective;
(b) his Honour (Derrick DCJ) erred in allowing an amendment to the indictment;
(c) various other errors by the trial judge, including wrongful admission of propensity evidence; and
(d) various miscarriages of justice, including that the trial should have been adjourned because he (the appellant) was, at that time, an indigent person without counsel; and that evidence was improperly withheld from him by the State.
6 On 8 June 2015, the appellant filed his application for bail pending appeal. Subsequently, I directed the parties to file written submissions in relation to this application. I have received those submissions and taken them into account. I have also taken into account the contents of the appellant's affidavit in support of his application for bail, sworn 20 May 2015. Further, I have considered the oral submissions made by the parties on 24 and 29 June 2015 and the written materials put before me between these hearings. I am now better informed about why the appellant did not have counsel at trial, a matter about which I expressed some concern on the last occasion the matter was before me.
7 The appellant's application for bail must be decided in accordance with sch 1 pt C cl 4A of the Bail Act 1982 (WA), which relevantly provides:
4A. Bail after conviction for accused awaiting disposal of appeal
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody, and shall only grant bail to the accused if satisfied that -
(a) exceptional reasons exist; and
(b) it is proper to do so having regard to the provisions of clauses 1 and 3 …
8 The threshold question to be answered in these proceedings is whether the appellant has demonstrated exceptional reasons why he should be released on bail.
9 The appellant submits that bail pending appeal should be granted because:
(a) his appeal has 'extraordinarily high prospects of success' which will bring about, he says, a full acquittal. In this respect, he emphasises the grounds which allege that the indictment was defective and that the trial should have been adjourned because he was indigent and without counsel;
(b) he has served a substantial part of the custodial portion of his sentence and if he is not granted bail by the time his appeal is heard and determined, it will be, in effect, nugatory;
(c) the appellant's ability to prepare for his appeal is hampered by the limited resources he has available to him in prison; and
(d) he requires medical attention in respect of a hernia and his eyes.
10 What constitutes 'exceptional reasons' has been discussed in many cases decided in this court. As the context of this application for bail is an appeal against conviction, the focus must be on the merits of the appeal. However, there may be factors in addition to the assessments of the merits which potentially come into play. As I pointed out in Shrivastava v The State of Western Australia [2010] WASCA 96, the cases have used a number of formulations as to the merits of an appeal which may constitute 'exceptional reasons'.
11 I think it is fair to say that, to demonstrate exceptional reasons, an appellant must, at least, demonstrate that the appeal has strong arguable grounds. Put another way, the prospects of success must be sufficiently likely so as to give rise to a real concern that the appellant would suffer an injustice by having been kept in custody as a result of an unsound conviction: Ness v The State of Western Australia [2012] WASCA 273 [9].
12 Of course, any assessment of the strength of the grounds of appeal at this early stage in the proceedings must be tentative. This is particularly so in the present case where, as I have commented upon in argument, the materials that have been provided to me are far from complete. I do not have an appellant's case, and I have not been referred to all of the relevant parts of the (lengthy) transcript of the proceedings.
13 The submission made by the appellant that the appeal has 'extraordinarily high prospects of success' is, at this point, no more than an assertion. The appellant regards the merits of the appeal as obvious, and its success a foregone conclusion. With respect to him, I am unable to conclude, on the material that has been given to me at this stage, that any of the grounds of appeal are strongly arguable.
14 The other matters relied upon by the appellant do not, either of themselves or in combination, constitute exceptional circumstances. It may be accepted that the appellant's incarceration could have a negative effect upon his ability to prepare his appeal. However, the experience of this court shows that appeals can nevertheless be prepared in those circumstances. While it is true that the appellant has served much of the custodial component of his sentence, this must be balanced against the fact that the appellant has brought his appeal grossly out of time. So far as the appellant's medical conditions are concerned, there is no evidence before the court of the precise nature and severity of these conditions. In any event, it must be borne in mind that it is the duty of prison authorities to properly manage and treat any medical condition(s) the appellant may have.
15 For these reasons, I have not been persuaded that exceptional reasons exist for a grant of bail. As exceptional reasons have not been demonstrated, this court has no power to release the appellant on bail pending his appeal against conviction.
16 Accordingly, the appellant's application for bail pending appeal filed on 8 June 2015 must be dismissed and I so order.
2
2
2