Duckworth v The State of Western Australia [No 2]

[2015] WASCA 228

DUCKWORTH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 228

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 228
Court:	THE COURT OF APPEAL (WA)	Published:	16/11/2015
Case No:	CACR:98/2015	Heard:	6 NOVEMBER 2015
Coram:	MAZZA JA	Delivered:	6/11/15
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	NEIL JAMES DUCKWORTH THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Stealing as a director or officer of a company Appeal against conviction Application for bail pending appeal Turns on own facts
Legislation:	Bail Act 1982 (WA), s 14(2a)
Case References:	Anderson v The State of Western Australia [No 2] [2014] WASCA 126 Duckworth v The State of Western Australia [2015] WASCA 137 Hunter v The State of Western Australia [2014] WASCA 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUCKWORTH -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 228 CORAM : MAZZA JA HEARD : 6 NOVEMBER 2015 DELIVERED : 6 NOVEMBER 2015 PUBLISHED : 16 NOVEMBER 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 company - Appeal against conviction - Application for bail pending appeal - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 14(2a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr P N Bevilacqua

Solicitors:

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

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

Anderson v The State of Western Australia [No 2] [2014] WASCA 126
Duckworth v The State of Western Australia [2015] WASCA 137
Hunter v The State of Western Australia [2014] WASCA 184

MAZZA JA:

(This judgment was delivered extemporaneously on 6 November 2015 and has been edited from the transcript.)

1 Before me is the appellant's application filed on 15 October 2015 for bail pending his appeal against conviction. The application is supported by an affidavit sworn by the appellant on 14 October 2015. The appellant filed written submissions in support of the application on 21 and 29 October 2015. On 30 October 2015, the respondent filed submissions in response. The appellant attempted to file a further affidavit, which he sent to the Court of Appeal office by facsimile on 4 November 2015. This affidavit was not accepted by the Court of Appeal office, but I have read it.

2 This is the appellant's second application for bail pending appeal. I dismissed his first application on 29 June 2015. My reasons for doing so are set out in Duckworth v The State of Western Australia [2015] WASCA 137. Most of the necessary background is set out in that decision and I will not repeat it. These reasons should be read in conjunction with what I wrote earlier.

3 Once bail pending appeal has been refused, this court's jurisdiction cannot be invoked again unless new factors have been discovered, new circumstances have arisen or circumstances have changed since the dismissal of the first application, or the applicant demonstrates that he or she failed to adequately present his or her case for bail on the first occasion: s 14(2a) of the Bail Act 1982 (WA) and Anderson v The State of Western Australia [No 2] [2014] WASCA 126 [7]. The appellant, in substance, submits that circumstances have changed since the refusal of his first bail application or he did not adequately present his case on that occasion because the strength of his appeal, as revealed in his appellant's case filed on 16 October 2015, is much clearer than emerged in his first application for bail pending appeal.

4 In addition, he says that he will be eligible for parole on 19 December 2015, but, because he is a prisoner pursuing an appeal, he alleges he has not been provided with a 'Think First' treatment program, participation in which, he claims, is a necessary precondition to his release on parole. Consequently, he will not be considered for release on 19 December 2015 by reason of him pursuing his appeal rights.

5 The appellant submits that the grounds of appeal are very strong and, alone or in combination with the denial of the pre-release treatment program, amount to exceptional reasons for a grant of bail pending appeal.

6 Without deciding the point, I will assume in the appellant's favour that it is appropriate for me to consider the appellant's second application for bail pending appeal.

7 It is inappropriate for me, at this stage of the proceedings, to comment in detail about the grounds of appeal. It is sufficient for me to say that I am not yet persuaded that the grounds are sufficiently strong so as to justify a grant of bail pending appeal.

8 I am concerned about the appellant's alleged denial of access to a treatment program regarded as a precondition to a grant of parole. In Hunter v The State of Western Australia [2014] WASCA 184 [83], McLure P said that she could not conceive of any justification for barring a sentenced prisoner from participating in a treatment program which is a precondition to the grant of parole because of a pending appeal. I agree with those comments. They are apt to this case if the appellant has, in fact, been denied access to the relevant program.

9 However, I have not been persuaded that any denial of access to a treatment program is, in this case, sufficient, either by itself or in combination with the merits of the grounds of appeal, to grant bail.

10 For these reasons the application filed on 15 October 2015 must be dismissed and I so order.