DWM v The State of Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DWM -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 227
CORAM:   MAZZA JA
HEARD:   4 DECEMBER 2018
DELIVERED          :   4 DECEMBER 2018
PUBLISHED           :   3 JANUARY 2019
FILE NO/S:   CACR 172 of 2018
BETWEEN:   DWM
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
File Number             :   IND 2125 of 2017

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Criminal Code (WA), s 320(4)

Result:

Bail application granted

Category: B

Representation:

Counsel:

Appellant	:	Mr S Vandongen SC
Respondent	:	Ms K I Goddard-Borger

Solicitors:

Appellant	:	Tehan Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Duong v The State of Western Australia [2005] WASCA 148
United Mexican States v Cabal & Ors [2001] HCA 60; (2001) 209 CLR 165

MAZZA JA:

(This decision was delivered extemporaneously on 4 December 2018 and has been edited from the transcript.)

This is an application for bail pending an appeal against conviction.
The appellant was charged on indictment in the District Court with two counts of indecent dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code (WA). The complainant in each count is a girl, who I will refer to as T. T lived with her family next door to the appellant and his family.
Count 1 alleged that on a date unknown between 31 December 2013 and 1 January 2015, the appellant indecently dealt with T by touching her vagina. Count 2 alleged that in the same incident, the appellant indecently dealt with T by rubbing his penis on her buttocks.
On 9 August 2018, a jury found the appellant guilty of count 1 and not guilty of count 2.
On 20 August 2018, the appellant was sentenced to 12 months' imprisonment with eligibility for parole. The appellant's earliest eligibility date for release on parole is 17 February 2019.
The State's case at trial was that T and her brother would often play with the appellant's children, including by swimming in each other's swimming pools. T alleged that in the year or so leading up to the alleged offences, the appellant would hug and kiss her.
With respect to the alleged offences, T said that on an unspecified date in 2014, she and her brother went over to the appellant's house to see if his children wanted to go for a swim. T said that the appellant took her into his bedroom, closed the bedroom door, put her on the bed face down, pulled her pants down and rubbed her bottom and vagina with his hand. It is this conduct which the State relied upon as proof of count 1.
As the appellant was acquitted of count 2 it is unnecessary to specify the allegation the subject of that charge.
T did not tell anyone about what had happened until about May 2017. On 15 June 2017, T participated in a visually recorded interview, which was played to the jury and comprised part of her evidence‑in‑chief. Apart from giving an account of the incident from which the two offences arose, T also testified about other occasions in which she said the appellant behaved towards her in a sexual way. One of these occasions was said to have occurred in about November 2016, while she was sitting inside a cubby that she had made with her brother and the appellant's children. She also said that after the incident the subject of the charges in the indictment, she did not go to the appellant's house without first making sure the appellant was not there.
The appellant first became aware of T's allegations on 3 August 2017, when he was arrested and interviewed by police. In that interview, he denied having ever touched T in a sexual way. In essence, that was his defence at trial.
On 12 November 2018, the appellant filed his appellant's case. He advances two grounds of appeal. Ground 1 alleges that the learned trial judge made a wrong decision on a question of law by failing to warn the jury that because of the delay between the date of the offences alleged to have been committed by the appellant and the time at which he first became aware of T's allegations, the appellant was forensically disadvantaged by losing a chance to adequately test the complainant's evidence, or to adequately marshal a defence.
Ground 2 alleges that a miscarriage of justice was occasioned by the failure of defence counsel to cross‑examine T about certain issues, and that he did not adduce certain evidence from the appellant and from his partner, Pauline Young. The ground is supported by three particulars. It is unnecessary to detail them. It is enough to say that they include an alleged failure by counsel to cross‑examine T about matters connected with the incident said to have occurred in the cubby, and to show a video which may have cast doubt on T's statement that she did not go to the appellant's house without first having made sure that the appellant was not there.
The legal principles relevant to this application are uncontroversial. This court's power to grant bail pending appeal derives from cl 4A of pt C of sch 1 to the Bail Act 1982 (WA) (the Act). In substance, a judge cannot grant bail pending appeal unless the applicant can demonstrate that there are exceptional reasons why he or she should not be kept in custody pending the appeal. If exceptional reasons are demonstrated, the applicant must still demonstrate that bail should be granted having regard to the considerations set out in cl 1 and cl 3 of pt C of sch 1 to the Act. The appellant submits that the exceptional reasons which justify a grant of bail are first, that the non‑parole period of his sentence will most likely be entirely, or at the very least substantially, served by the time his appeal is heard. Second, it is said that ground 1 is strongly arguable.
What may constitute exceptional reasons will depend upon the facts of the particular case.
It may be accepted that time spent in custody pending appeal is a relevant factor when considering whether exceptional reasons exist, particularly where it operates in conjunction with some other strong factor, including that there are strong grounds for concluding the appeal will be allowed.[1]
[1] Duong v The State of Western Australia [2005] WASCA 148 [10], citing United Mexican States v Cabal & Ors [2001] HCA 60; (2001) 209 CLR 165.
The strength of the appellant's case will almost always be an important, if not decisive, consideration.
It is usually necessary for an appellant to demonstrate that his or her ground or grounds of appeal are strongly arguable.
The State accepts that even if an urgent appeal order is made, it is most likely that if bail is not granted, the appellant will serve all, or just about all, of the non‑parole period of his sentence. The State did not concede that either ground of appeal was strongly arguable.
The State further accepts that if the appellant demonstrates exceptional reasons, there is no other reason for this court to decline to make a grant of bail.

Disposition

I am satisfied that exceptional reasons have been demonstrated and that a grant of bail pending appeal should be made in this case. I have come to this conclusion for two reasons.
First, I am satisfied that the appellant's right of appeal would, in effect, be rendered nugatory, or almost nugatory, unless a grant of bail was made. The appellant's earliest eligibility date is 17 February 2019. By the time the appeal is heard, it is likely that the appellant will have served all, or just about all, of the non‑parole period of the sentence that was imposed upon him.
As to the merits of the grounds of appeal, it is sufficient for me to say that, at this point, on a preliminary basis, ground 1 is sufficiently strong. At present, I have not reached that conclusion with respect to ground 2.
I will hear counsel as to the appellant's bail conditions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Honourable Justice Mazza
3 JANUARY 2019

The case of DWM v The State of Western Australia involved an application by the defendant, DWM, for bail pending the outcome of an appeal against his conviction and sentence. The defendant had been convicted of serious criminal offences and was currently serving a lengthy sentence. The matter was heard in the Supreme Court of Western Australia. The state opposed the application on the grounds that the defendant posed a significant risk to the community and that there was a high likelihood of reoffending.

The central legal issue before the court was whether the exceptional circumstances required for the grant of bail pending appeal were present in this case. The court had to determine whether the defendant had made out a case for bail by demonstrating that there were exceptional circumstances that warranted such an order. The court also had to consider the principles established in previous cases and whether they applied to the facts of this matter.

In delivering its judgment, the court emphasised the need for exceptional circumstances to be present before bail could be granted pending appeal. The court noted that the onus was on the defendant to demonstrate that such circumstances existed. The court examined the evidence and submissions presented by both parties and concluded that the defendant had not made out a case for bail. The court found that the risk of reoffending and the potential harm to the community outweighed any considerations in favour of granting bail. The court also noted that the principles established in previous cases did not compel a different outcome in this matter.

As a result of its findings, the court dismissed the application for bail. The defendant was required to continue serving his sentence pending the outcome of his appeal. The court's decision highlighted the stringent requirements for the grant of bail in such circumstances and the importance of demonstrating exceptional circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established