Fullgrabe v The State of Western Australia
[2013] WASCA 75
•15 MARCH 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FULLGRABE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 75
CORAM: MAZZA JA
HEARD: 28 FEBRUARY 2013
DELIVERED : 5 MARCH 2013
PUBLISHED : 15 MARCH 2013
FILE NO/S: CACR 197 of 2012
BETWEEN: GUY STEPHAN FULLGRABE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EDELMAN J
File No :INS 221 of 2011
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms G M Cleary
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ness v The State of Western Australia [2012] WASCA 273
Shrivastava v The State of Western Australia [2010] WASCA 96
MAZZA JA:
(These reasons were delivered ex temporaneously and have been edited from the transcript.)
This is an application for bail pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA). The appellant was charged on indictment with three counts, being stealing a motorcycle, aggravated armed robbery and aggravated burglary. He stood trial before Edelman J and a jury. He was acquitted of the counts of stealing a motor vehicle and aggravated armed robbery but convicted of the aggravated burglary.
On 28 August 2012 he was sentenced for the aggravated burglary and three other offences on a s 32 notice. He was sentenced to a total effective term of 4 years and 7 months' imprisonment. On 13 September 2012, the appellant filed a notice of appeal against conviction.
On 5 February 2013 he filed his appellant's case with one ground of appeal which alleges that the conviction after trial for the aggravated burglary was unreasonable and cannot be supported by the evidence because, first, the conviction is said to be inconsistent with his acquittals for the charges of stealing a motor vehicle and armed robbery, and second, because he says there were significant deficiencies in the credibility of key prosecution witnesses.
Since the filing of the appellant's case, the appellant has filed an affidavit in which he seeks to adduce new evidence at the hearing of the appeal. Upon examination of that affidavit it appears that not only does the appellant allege that the new evidence shows that he is innocent, but he also alleges that the State did not properly comply with its pre‑trial disclosure obligations.
At the hearing of this bail application I pointed out to the appellant that there were no grounds of appeal concerning the new evidence or the allegation about pre‑trial disclosure. I also pointed out to him that as the merits of his appeal were an important factor in this application for bail, he may wish to adjourn the application in order to amend his appellant's case. He indicated that he wished to proceed with the application on the basis of the appellant's case as it presently stands.
Clause 4A in substance provides that bail pending appeal cannot be granted unless the appellant demonstrates exceptional reasons for doing so. Even if exceptional reasons are demonstrated bail must be appropriate having regard to the matters contained in cls 1 and 3 of pt C of sch 1 of the Bail Act.
There are many decisions of this court concerning the meaning of the words 'exceptional reasons' in cl 4A: see Shrivastava v The State of Western Australia [2010] WASCA 96 [32].
The focus in any such application is on the grounds of appeal. It must be demonstrated that the appeal has strong arguable grounds. This formulation, like others, is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by being kept in custody on an unsound conviction: see Ness v The State of Western Australia [2012] WASCA 273 [9]. In deciding whether the appeal has strong arguable grounds it is important for it to be understood that any opinion formed as to the merits of the appeal is by no means final. It is an opinion formed without the benefit of detailed argument and one that may change in due course.
Although the appellant is not legally represented, it is obvious from the content of the appellant's case that he had legal assistance in its preparation. In that document and in his oral submissions the appellant has ably argued that his ground of appeal has sufficient merit to justify a grant of bail. I have also taken into account the submissions of the respondent, particularly in respect of the argument that the verdicts were inconsistent.
It is unnecessary and undesirable to comment in detail about the ground of appeal. It is sufficient for me to say that, based on the arguments and the material presently before the court, I am not persuaded that the ground of appeal is so strongly arguable as to constitute exceptional reasons for granting bail.
In any event, it would be inappropriate, having regard to the matters in sch 1 and 3, to grant the appellant bail. During the hearing of this application I was provided with a copy of the appellant's criminal history. The appellant himself conceded that he has a very bad criminal record. It gives rise to a real concern that if he was released on bail there would be an unacceptable risk that he would commit further offences.
I have come to this conclusion notwithstanding the appellant's submissions that prior to the commission of the aggravated burglary he had not been convicted of an offence for three and a half years and that he had, based on the materials annexed to his affidavit in support of his application, a number of people who attest positively to his qualities as a father, family member and friend.
For these reasons I am not persuaded that a grant of bail would be appropriate in this case and I dismiss the appellant's application.
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