Eastley v The Queen
[2001] WASCA 227
•30 JULY 2001
EASTLEY -v- THE QUEEN [2001] WASCA 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 227 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:264/2001 | 20 JULY 2001 | |
| Coram: | WHITE AUJ | 30/07/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| PDF Version |
| Parties: | ROBERT DARREN EASTLEY THE QUEEN |
Catchwords: | Application for bail after conviction and pending the hearing of an appeal against conviction Necessity for exceptional reasons why the defendant should not be kept in custody Strength of the appellant's case on appeal Likelihood that the appellant will have served a substantial part of his custodial sentence before the appeal is dealt with Turns on own facts |
Legislation: | Bail Act 1982 (WA), Pt C, cl of Sch 1 |
Case References: | Crampton v R (2000) 176 ALR 369 Crofts v The Queen(1996) 186 CLR 427 In Re Cooper's Application for Bail (1961) ALR 584 Longman v The Queen (1989) 168 CLR 79 Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999 Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992 Caratti v R [1999] WASCA 91 Chamberlain v The Queen [No 1] (1983) 153 CLR 514 Edwards v R (1993) 178 CLR 193 Marotta v The Queen [1999] HCA 4 Mullally v The Queen [2000] WASCA 26 Nguyen v The Queen [2001] WASCA 137 Norton v The Queen [2001] WASCA 164 Pearce v Stanton [1984] WAR 359 Robinson v R (1991) 65 ALJR 519 Sinanovic v The Queen (No 1) [2001] HCA 35 W (1994) 73 A Crim R 532 WCVB v The Queen (1989) 1 WAR 279 Willers v The Queen, unreported; SCt of WA; Library No 950284; 9 June 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : EASTLEY -v- THE QUEEN [2001] WASCA 227 CORAM : WHITE AUJ HEARD : 20 JULY 2001 DELIVERED : 30 JULY 2001 FILE NO/S : CCA 264 of 2001 BETWEEN : ROBERT DARREN EASTLEY
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Application for bail after conviction and pending the hearing of an appeal against conviction - Necessity for exceptional reasons why the defendant should not be kept in custody - Strength of the appellant's case on appeal - Likelihood that the appellant will have served a substantial part of his custodial sentence before the appeal is dealt with - Turns on own facts
Legislation:
Bail Act 1982 (WA), Pt C, cl of Sch 1
Result:
Bail refused
(Page 2)
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr J Mactaggart
Solicitors:
Applicant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crampton v R (2000) 176 ALR 369
Crofts v The Queen(1996) 186 CLR 427
In Re Cooper's Application for Bail (1961) ALR 584
Longman v The Queen (1989) 168 CLR 79
Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999
Case(s) also cited:
Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992
Caratti v R [1999] WASCA 91
Chamberlain v The Queen [No 1] (1983) 153 CLR 514
Edwards v R (1993) 178 CLR 193
Marotta v The Queen [1999] HCA 4
Mullally v The Queen [2000] WASCA 26
Nguyen v The Queen [2001] WASCA 137
Norton v The Queen [2001] WASCA 164
Pearce v Stanton [1984] WAR 359
Robinson v R (1991) 65 ALJR 519
Sinanovic v The Queen (No 1) [2001] HCA 35
W (1994) 73 A Crim R 532
WCVB v The Queen (1989) 1 WAR 279
Willers v The Queen, unreported; SCt of WA; Library No 950284; 9 June 1995
(Page 3)
1 WHITE AUJ: This is an application by the applicant to be released on bail pending the hearing of his appeal against conviction.
2 The application is opposed by counsel for the Crown.
3 The applicant was presented before the District Court on Monday 13 November 2000 on an indictment containing 12 counts of offences against the same complainant, 11 counts being sexually-related offences, together with one count of unlawful detention. The applicant was convicted by the verdict of the jury on two counts, being the first and last counts in the indictment.
4 Count 1 was of penile sexual penetration of the complainant's vagina without consent with the aggravating feature that the applicant then did bodily harm to the complainant. Count 12 was of indecent assault.
5 There are six grounds of appeal. The applicant's counsel submitted that the most cogent of those grounds was the failure of the learned trial Judge to give the jury a sufficiently strong warning in terms of the decision in Longman v The Queen (1989) 168 CLR 79. Another of the grounds of appeal was that the learned trial Judge had failed to give a direction in terms of the decision of the High Court in Crofts v The Queen(1996) 186 CLR 427.
6 The requirements of the Bail Act in relation to an application to be released on bail after conviction and pending an appeal were not in dispute. Clause 4 of Sch 1 of the Bail Act provides, in effect, that in deciding whether or not to grant bail to a defendant who is in custody after conviction and pending the disposal of appeal proceedings, the judicial officer shall only grant bail to him if he is satisfied that there are exceptional reasons why the defendant should not be kept in custody.
7 Counsel for the applicant argued that there are exceptional reasons why the applicant should not be kept in custody, namely:
(1) the applicant has a strongly arguable case on appeal;
(2) the applicant's personal history and circumstances whilst on bail indicate that there can be little risk of his not appearing at the appeal; and
(3) there is a risk that a substantial part of the non-parole period of the sentence will have been served before the appeal comes on for hearing on 11 September 2001 or before a decision is handed down.
(Page 4)
- The second of those reasons was not argued before me.
8 Counsel for the applicant submitted that the delay on the part of the complainant to make complaint meant that the learned trial Judge was obliged to give a full Longman direction to the jury. The delay in relation to the first count was some two months. The offence was alleged to have been committed on a date unknown between 22 January and 1 February 1999. The complaint took place on or about 17 or 22 March 1999.
9 In relation to count 12, which referred to an offence committed on 14 March 1999, there was a delay of only a few days, it seems.
10 In Longman,the delay between the date of the alleged commission of the offence and the date of first complaint was to be measured in decades. In Crofts the delay was for periods of six months to six years.
11 In the decision of Brennan, Dawson and Toohey JJ in Longman, at 90, their Honours said, in part:
"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of the sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial Judge."
- At 91, their Honours said:
"Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubts upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) …) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutenizing the evidence with great care, considering the circumstances relevant
(Page 5)
- to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy."
12 Counsel's submission was that, because of the history of the relationship between the parties, apparently one which counsel described as "on again, off again", a direction in accordance with Longman was called for. Counsel referred to the question whether there was any animosity or violence or otherwise in the relationship as relevant to the need for such a direction. Crofts was a more recent decision of the High Court which re-affirmed the importance in appropriate circumstances of a Longman direction. Counsel submitted that it was necessary, in the circumstances, for the learned trial Judge to inform the jury that it would be dangerous to convict the accused on the uncorroborated testimony of the complainant, unless satisfied that the evidence was truthful, reliable and accurate in all of its essential aspects. Counsel referred also to Crampton v R (2000) 176 ALR 369.
13 In the course of her summing-up to the jury, the learned trial Judge said, at page 445 of the transcript:
"Since the burden of proof is upon the crown, the crown case depends on you accepting the complainant's evidence; that she was sexually penetrated as she said and she did not consent. The crown case depends on you accepting that evidence beyond reasonable doubt, notwithstanding the denial by the accused.
So you can't convict unless you're satisfied of the truth and reliability of the complainant's evidence. The complainant told you, as you know, of three separate incidents: the first one is at the Booragoon house before she shifts out; the ones in the middle where there is the allegation of the knife are when she goes back; and the final one she says is an indecent assault. She said that, really, his behaviour toward her went on until she broke down and cried uncontrollably in a classroom."
14 Mr Mactaggart submitted that her Honour's directions were entirely appropriate and adequate in the circumstances.
15 Mr Moen for the applicant conceded that, in relation to count 1 in the indictment, the evidence of the applicant might be found to provide some corroboration of the complainant's account of what occurred, in which case, a Longman direction might be inapplicable in any event. He said (T 35):
(Page 6)
- "Yes, in relation to count 1, we may have somewhat a difficulty in respect of that. That's probably, on reconsidering, not the strongest one, but on count 12 we say that there still is an obligation upon her Honour to give that direction."
16 With respect to counsel, I am not persuaded that the strength of the applicant's case on appeal is such as to constitute exceptional reasons why he should not be kept in custody.
17 In relation to the fact that, by 11 September 2001, the date upon which the appeal has been listed for hearing, the applicant will have served a substantial proportion of his pre-parole sentence is a factor of importance. I am informed from the bar table that the earliest date upon which the applicant might be released on parole would be in early 2002 if his appeal fails.
18 There is an apparent contradiction in the submissions on behalf of the applicant. Paragraph 17, par 18 and par 21 of those submissions read:
"17. It is submitted that the matter would not be disposed of even if decided expeditiously after 11 September 2001, before the expiration of the major portion of the non-parole period of the applicant's sentence.
18. It is submitted that the above fact in paragraph 17 alone cannot be enough to constitute an exceptional circumstance, but it may be enough in a case where it is possible for the Court considering the grant of bail to conclude that there are such strongly arguable grounds of appeal as to enable the Court without finally determining the matter, to conclude that there are good prospects that the appeal against conviction is likely to be successful: Robinson v R(1991) 65 ALJR 519 @ 519-520; Mullaly v The Queen [2000] WASCA 26, 22 December 1999.
21. It is submitted that in a case where a substantial portion of a custodial part of a sentence will be served before an appeal is disposed of, that fact alone can be a proper basis for a Court granting bail: Tran v The Queen,unreported, SECWA Lib No 990117, 11 March 1999, per Scott J."
19 In Tran v The Queen, unreported; SCt of WA; Library No 990117; 11 March 1999 Scott J said that the fact that an applicant would serve a substantial portion of the custodial part of his sentence before the appeal
(Page 7)
- was disposed of could alone be a proper basis for a court granting bail: see In Re Cooper's Application for Bail (1961) ALR 584. His Honour added:
"That is however, only one of a number of factors that need to be taken into account. Consideration must also be given to the merits of the appeal and the likely strength of the applicant's case on appeal. Whilst no final judgment can be reached on the merits of the appeal until the matter is fully argued before the Court of Criminal Appeal, in my view it cannot be said that the applicant's case in this instance is particularly strong."
21 For these reasons, the application must be dismissed.
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