Dunstan v The State of Western Australia - [2008] WASCA 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BSD -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 270

CORAM: MILLER JA

HEARD: 18 DECEMBER 2008

DELIVERED : 18 DECEMBER 2008

FILE NO/S: CACR 175 of 2008

BETWEEN: BSD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 692 of 2008

Catchwords:

Criminal law - Application for bail pending appeal - Whether exceptional reasons shown

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Ms B J Lonsdale
Respondent: Ms J Porter

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)

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

Ex parte Maher [1986] 1 Qd R 303
Robinson v The Queen (No 2) (1991) 180 CLR 531
Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303

MILLER JA: The applicant for bail is the appellant in appeal proceedings which have been commenced in this court. He was convicted on 8 October 2008, in the District Court at Perth, of three charges of sexual penetration of a child whom he was alleged to have known to be a lineal relative and a child under the age of 16 years, and two charges of indecent dealing with a child whom he was alleged to have known to be a lineal relative and under the age of 16 years. He was sentenced on 25 November 2008 to a term of imprisonment of 4 years with eligibility for parole. He will be eligible for parole 2 years from 25 November 2008.
The appellant has filed a notice of appeal against his conviction which contain six grounds. The appellant makes an application for bail pending the hearing of his appeal, by application dated 12 December 2008. To be granted bail, the appellant must show exceptional reasons. The governing authority which sets out the principles to be applied is Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303. Murray J, at [24], set out what I consider to be the appropriate considerations. He said:
[S]peaking generally, ... it will be difficult to find exceptional reasons where there are not strong grounds for concluding that the appeal will be allowed; nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence will be substantially served before the appeal is finally determined. But if those things can be shown it may yet be necessary to demonstrate additional circumstances in a particular case before the Court will exercise its discretion to grant bail on the basis that it is satisfied that exceptional reasons justifying that course exist. The Court will take a cautious approach, having regard to the terms in which the statutory power is framed, and considerations of the kind expressed by Brennan J in Chamberlain, by Thomas J in Ex P Maher, and by the High Court in Cabal.
I note that at [22] Murray J cited Ex parte Maher[1986] 1 Qd R 303, where Thomas J, at 310, noted that to allow a prisoner bail pending an appeal may make the conviction appear contingent until confirmed. It would place the court in an invidious position if the appeal were unsuccessful and if the appellant had to be returned to prison.
In the present case, it is quite clear that the appellant will not have substantially served the custodial term before the appeal is finally determined. He was sentenced to 4 years' imprisonment. His minimum term was 2 years. It is the case that an appeal, in the ordinary course of events, will be heard in April or May next year. If an application is made for an expedited trial, it may be heard earlier.
The real question is whether the appellant can show that the grounds of appeal are strongly arguable. I consider that each one of them is arguable, but the question is whether they are strongly arguable. That involves a consideration of the trial judge's directions to the jury and a consideration of the grounds of appeal which have been formulated.
The first of the grounds of appeal is that the trial judge erred in contravening the principle in Robinson v The Queen (No 2) (1991) 180 CLR 531, when her Honour said:
[F]amily members do come forward to give evidence on behalf of members of the family when accused of offences and you would appreciate that they are all doing their best on behalf of their loved one.
It is said that this was compounded by a failure to give a similar direction in respect of members of the complainant's family. It is true that, in general terms, it would be wrong for a trial judge to give a direction that the evidence of the accused or his witnesses was to be scrutinised more carefully than that of any other witnesses. In Robinson, the court considered that it was a serious misdirection, but at 536 the court said:
Nothing ... is intended to suggest that the evidence of an accused person is not subject to the tests which are generally applicable to witnesses in a criminal trial. Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings.
In the present case, I apprehend that what her Honour was saying was, 'Members of the family of the accused person have come forward and given evidence. You look at that evidence carefully, but you bear in mind that people sometimes do their best for their loved one.' She did not say, 'You scrutinise that evidence with any particular care.' She did not say, 'You look at it carefully and separately from other evidence.' In my opinion, she balanced it, when you look at the totality of the charge, with the general statement:
[Y]ou must carefully scrutinise [the complainant's] evidence about counts 1, 2 and 3 before you accept and rely on it. The passage of time has deprived [the accused] of the opportunity to test her evidence and he can do little but deny those charges
I do not consider that the ground of appeal is so strongly arguable that it is bound to succeed, but it is certainly arguable.
The second ground of appeal is that, in the alternative, the trial judge did not make a similar comment in relation to witnesses called for the prosecution. This ground relates to the first, and for the reasons I have given I do not consider that it is so strongly arguable as to constitute exceptional circumstances.
The third ground of appeal relates to the onus of proof and it is contended that the trial judge reversed the onus of proof in directing the jury about the incidents the subject of counts 4 and 5. The particulars highlight the learned judge's directions and they quote this passage:
[I]f, as [the complainant] said, her grandfather picked out this underwear and bought it for her birthday in April, then that casts considerable doubt on the evidence of [the accused's] wife ...
A second passage is also referred to in part (b) of the grounds. It reads:
The learned Trial Judge, after reminding the jury about there being a conflict in the evidence as to the date of the incident, told the jury, 'there was evidence that all this happened in April, not May'.
Reading the charge as a whole, it is clear to me that the trial judge made the point to the jury that there was a sharp conflict in testimony between the complainant and the witnesses called for the prosecution on the one hand, and the accused and the witnesses called for the defence on the other in relation to the issue of date. Her Honour began at 183 of the transcript:
Now, ladies and gentlemen, there is some dispute in the evidence about the date of these offences. You may recall that [the complainant] originally said it happened sometime around her birthday; that is, April of 2007. Under cross‑examination, after defence counsel had put those rather frightening things about perjury, she agreed by just saying, 'Yes' that it was May, around the time of her grandfather's birthday and Mothers Day, but you may wish to recall the evidence of ... [the complainant's] mother. She told you she saw the underwear when [the complainant] brought it home and she was adamant that this happened in April, around Easter time, she said, around [the complainant's] birthday. She said it did not happen in May so there is a conflict on the evidence.
[The accused] and all his family were focused on 12 May as the date in giving their evidence and you can see that the date could be important in your consideration of the evidence because if, as [the complainant] said, her grandfather picked out this underwear and bought it for her for her birthday in April, then that casts considerable doubt on the evidence of [the accused's] wife, that she told him to buy the underwear when he was purchasing her Mother's Day perfume.
Then her Honour added:
These are matters in the evidence that I'm sure you will consider carefully but I just wanted to remind you that there was a conflict and there was evidence that all of this happened in April, not in May.
The words 'there was evidence that all of this happened in April, not in May' were not a statement by her Honour that it did happen in April. She was not saying, 'You may well find it happened in April, not May'; she was saying, 'There was evidence', which there was, but she pointed out that there was also evidence that it happened in May.
It seems to me that her Honour defined the distinction in the evidence between the two separate groups. Although I think it is arguable that in so doing she referred to the appellant's wife's evidence, the way in which it is contended in the ground of appeal, I do not think it is strongly arguable that that ground will necessarily succeed.
The fourth and fifth grounds relate to the evidence of uncharged acts. In relation to this, the trial judge gave a short direction, in which she made it clear that there was evidence which was adduced during the course of the trial to establish the relationship between the parties. In this passage she said:
[L]adies and gentlemen, all of that is behaviour by the accused man that could be the subject of charges but it is not the subject of charges.
This passage is criticised because it is said that, in telling the jury there could have been charges in relation to some matters that would have prejudiced the appellant. It seems to me that it was obvious that the behaviour which was complained of was behaviour which could have been the subject of charges, but was not. His Honour told the jury that 'It is what we call relationship evidence', which is correct. Her Honour went on to say:
You can only rely on this evidence if you find it reliable, if you believe [the complainant] that this happened.
Again that is correct. It was necessary for the jury to be satisfied that the conduct occurred.
The trial judge then added:
This evidence, if you accept it, is relevant only to show the nature of her relationship with her grandfather.
That direction was correct because that was the only purpose for which it could be used.
Her Honour then said:
It would put her evidence on the other charges in a realistic light.
That is correct, because otherwise the evidence would be seen in a vacuum. It was necessary to establish whatever the relationship might have been.
Her Honour then said:
You can't use it as evidence of mere propensity.
I agree with counsel for the appellant that the words 'mere propensity' should not have been used. It had nothing to do with propensity evidence. It was relationship evidence. There was no need for any propensity warning and indeed, a warning was not given, but the word 'propensity' was used in circumstances in which it should not have been. The question is whether the use of that word was such that it infected the charge to the jury. I do not think it did myself because her Honour went on to say:
You can only use it as evidence of relationship. What the state says [is that] the accused man had an inappropriate sexual interest in his granddaughter.
It seems to me that the passage itself is unobjectionable, apart from the use of the word 'propensity'. I do not think that makes it so strongly arguable that it infected the charge in relation to relationship evidence and thus created a miscarriage of justice. Nor do I think (1) that it is strongly arguable that by highlighting what the relationship was, this gave it undue prominence, (2) that the fact that the trial judge said it could be the subject of charges infected the direction that was given.
The trial judge did not direct the jury that they could not reason that, simply because he may have done something wrong on another occasion, then he must have done so on another occasion. That is one of the criticisms which is made. That direction I think could well have been given. Whether it was necessary in relation to relationship evidence is a different question from whether it was necessary in relation to propensity evidence. If the evidence was propensity evidence, the direction would have been required. In relation to relationship evidence, I am not so sure that it is required. It is certainly arguable, but, in my view, it is not strongly arguable.
In essence, I am of the conclusion all these grounds of appeal are arguable, but I do not consider they are so strongly arguable that they would constitute exceptional reasons for bail. Further, this is clearly not a case in which the appellant will have served a substantial period of his sentence prior to the hearing of the appeal.
For those reasons, I do not consider that exceptional reasons have been shown which would justify a grant of bail. As I have previously said, the court adopts a cautious approach to granting bail pending appeal and this is not a case in which, in my view, sufficient has been shown to justify the view that the appellant should be released on bail. I would dismiss the application.