Ferry v The Queen - [2003] WASCA 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: FERRY -v- THE QUEEN [2003] WASCA 64

CORAM: SCOTT J

HEARD: 24 MARCH 2002

DELIVERED : 26 MARCH 2003

FILE NO/S: CCA 251 of 2002
CCA 252 of 2002

BETWEEN: COLIN GRAEME FERRY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Bail - Bail pending appeal - Custodial part of term substantially served before appeal hearing - Applicant facing other charges

Legislation:

Nil

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr M Mischin

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Caratti v The Queen [2000] WASCA 279
R v Bernt (1994) 70 A Crim R 1
R v Tran, unreported; CCA SCt of WA; Library No 990117; 11 March 1999

Case(s) also cited:

Nil

SCOTT J: On 6 December 2002 the applicant was convicted after trial by jury of one count of indecently dealing with a child under the age of 13 years by touching her breasts. He was sentenced to a term of 2 years' imprisonment and made eligible for parole.
The applicant has applied for bail pending appeal.
This was the second trial that the applicant faced in relation to the charge. Originally he had been acquitted on other counts and the jury was unable to agree upon a verdict on the remaining count concerning this complainant. This was the retrial of that count.
The trial was somewhat unusual in that the complainant's evidence had been pre‑recorded in circumstances where counsel for the applicant had the opportunity of cross‑examining the complainant on video before trial. Following the first trial, an edited version of the pre‑recording, deleting inadmissible material relating to the other complainant, was used for the purposes of the second trial and played to the jury.
In addition to the complainant's evidence, the Crown relied upon a tape‑recording of discussions between the applicant and the complainant's mother made after the alleged offence. Following a complaint made by the complainant to her mother, the complainant's mother arranged to meet the applicant and discuss the allegation with him. The mother was well known to the applicant and had been in a relationship with him. The tape‑recording of the discussion formed a significant part of the prosecution case.
In broad terms, the Crown's case was that the applicant had indecently dealt with the complainant when he was alone with her in a computer room in her house. The complainant had told the applicant that she had a sore shoulder and the applicant, who had some experience in massage, massaged her shoulder. He was sitting next to the complainant as she was working on the computer. The Crown's case was that the applicant put his hand under her top, lifted her bra over her breasts and fondled her breasts for a while. He then stopped. The complainant re‑adjusted her clothing and the applicant continued to massage the complainant's neck and shoulder until leaving shortly afterwards.
The applicant gave evidence at trial and, as to the incident the subject of the charge, he agreed that he had rubbed the complainant's shoulder and then was sitting on the computer stool with his arm around her. He said that his arm was on her belly. The applicant said that the complainant was wearing two T‑shirts and a sort of boob‑tube, tank top. He said that halfway through the computer game the complainant dropped down and, as she did so, he said, his hand grabbed her breast. He said that he then gave her "a pinch" "to let her know that she had gone just a little bit too far that time".
The applicant said that, so far as he was concerned, "It wasn't a grope, it was a grab, it was a pinch."
The applicant also said that he did that to let her know that she had stepped over the boundary.
Necessarily the summary of the Crown case and the defence case, for the purposes of these reasons, has been abbreviated to distil the essence of each case.
The applicant has appealed both against his conviction and sentence.
The grounds of appeal against conviction are:
"1.There were errors made in the trail [sic] process:
(a)The learned Prosecutor made an error by introducing inadmissible evidence. (Spent NSW convictions).
(b)The learned Defence made an error by not presenting all the facts. (The last week complaintant [sic] worked for me).
(c)The learned Trial Judge made an error by misdirecting the jury in his summing up. (Misdirected the jury when he said both versions of events were Indecent Dealings).
(d)The learned Trail [sic] Judge made an error by imposing a manifestly excessive sentence. (Compared to the prosecutors offer of a non‑custodial sentence for a guilty plea).
(e)There was a Miscarriage of Justice because my defence was not looking after my best interests. (Ensuring all and every avenue of defence was bought [sic] to bear).
(f)The jury erred by. (Unfairly using the fact that I had lied to police to assist its verdict).
(g)The learned Trail [sic] Judge made an error by (Not directing the jury to return a not‑guilty verdict due to inconsistencies in the victim's testimony.)"
The applicant has also appealed against sentence. The grounds of appeal against sentence are:
"2.The Learned Sentencing Trail [sic] Judge imposed a sentence that was excessive because:
(a)Failed to take into account, (my lack of previous convictions against 'person').
(b)Failed to take into account, (my community services and works record).
(c)Took into account irrelevant facts, (I lied to Police during the record of interview).
(d)Imposed a greater sentence than sentences usually imposed for similar 'one off' offences.
(e)Imposed a sentence so manifestly excessive as to constitute an error in itself."
It is also of significance to note that the applicant was a carer who, together with the complainant's mother, looked after disabled people. The applicant testified that he employed the complainant on a part‑time basis helping with his gardening round. He was at that time in a relationship with her mother. It is apparent from the applicant's evidence at trial, that he occupied a position of trust in relation to the complainant. It was that trust which enabled him to be in a position where the offence could be committed.
The applicant points out that he will be eligible for parole on 6 August this year, if parole is granted to him. His appeal has been listed in the June sessions of the Court of Criminal Appeal and orders have been made for the preparation of appeal books in electronic form as the applicant is unrepresented.
It is also important on this application to note that the applicant faces a further trial in the District Court at Geraldton which, I am told, is scheduled to take place in May of this year. That trial involves a further allegation of a sexual nature said to have been committed against another complainant who, I am told by counsel, is a person with some intellectual disability. In relation to that matter, I am told that the applicant is presently remanded in custody to a directions hearing to be heard in the District Court in the near future.
Because the application is for bail pending appeal, under Sch 1, Pt C, cl 4 of the Bail Act 1982, the applicant is required to demonstrate exceptional reasons why he should not be kept in custody.
In this case the applicant contends that his primary reason for seeking bail is that the custodial portion of his sentence will all but be served when his appeal is heard.
A further consideration arises out of the fact that during the trial in the District Court in Geraldton the learned trial Judge granted the applicant overnight bail on certain stringent conditions, including a condition that he go straight to his place of residence. The Judge noted on transcript that after he concluded his day's work at the court, he bumped into the applicant at the supermarket next door to the court, which, as his Honour expressed it, "was clearly in breach of [his] bail undertaking".
The trial Judge said that he was recording that observation so that if the applicant got into any trouble in the future and the question of overnight bail arose, it might well be a matter that impacted on the discretion to grant bail. His Honour also observed that had the applicant breached bail earlier in the trial, as distinct from the last night of the trial, he would have refused to grant overnight bail.
All of these matters require consideration, including the strength of the applicant's appeal. In that respect, I have read the summing up by the learned trial Judge and, whilst there are some grounds of appeal which are clearly arguable, there is no matter which, in my view, clearly demonstrates a miscarriage of justice: Caratti v The Queen [2000] WASCA 279.
It is not possible to evaluate all of the appeal grounds upon which the applicant relies. As I have said earlier, the complainant's evidence was pre‑recorded and, following the earlier trial, edited to remove irrelevant material. The applicant has not particularised ground 1(e) of the grounds of appeal and the merit of that ground cannot be assessed.
The applicant was extensively cross‑examined about his prior record. That was done with leave of the trial Judge and without objection. The learned trial Judge explained to the jury the use that could, and could not, be made of that material. It will be for the Court of Criminal Appeal to examine that aspect of the summing up by the trial Judge and that area of the evidence generally. There is not, however, any ground of appeal which, in my opinion, is so strong as to justify the grant of bail: Caratti v The Queen, above, at [11].
The fact that the applicant will have served all, or a substantial part of, the custodial portion of a sentence is a significant matter in considering bail in these circumstances: R v Bernt (1994) 70 A Crim R 1; R v Tran, unreported; CCA SCt of WA; Library No 990117; 11 March 1999.
The matter, however, needs to be looked in its totality and all of the circumstances to which I have referred in the course of these reasons need to be considered. In particular, it is significant that the applicant is to appear before the District Court on a directions hearing in the near future and that a second trial is likely to be concluded before this matter is heard in the Court of Criminal Appeal. All of those matters need to be taken into account.
In the circumstances, I have come to the conclusion that the applicant has failed to demonstrate exceptional circumstances when all these matters are taken into account. It may be possible for the matter to be revisited after the remaining trial in the District Court is concluded, depending upon the outcome of that trial.
In the present circumstances, however, I am not persuaded that the applicant should be granted bail pending appeal in relation to this matter.