Har v The State of Western Australia - [2015] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 160

CORAM: MAZZA JA

HEARD: 4 & 10 AUGUST 2015

DELIVERED : 10 AUGUST 2015

PUBLISHED : 24 AUGUST 2015

FILE NO/S: CACR 142 of 2015

BETWEEN: HAR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STEVENSON DCJ
File No  :IND KAL 52 of 2013

Catchwords:

Criminal law - Application for bail pending appeal against conviction - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1
Criminal Code (WA), s 171(2)
Evidence Act 1906 (WA), s 25
Young Offenders Act 1994 (WA), s 55(2), s 189, s 190

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: Mr C Miocevich
Respondent: Mr L M Fox

Solicitors:

Appellant: C & G Miocevich Law Offices Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Bennett v The State of Western Australia [2012] WASCA 70; (2012) A Crim R 419
Ness v The State of Western Australia [2012] WASCA 273
MAZZA JA:
(This judgment was delivered extemporaneously on 10 August 2015 and has been edited from the transcript.)

Before the court is the appellant's application for bail pending appeal against conviction pursuant to cl 4A of pt C sch 1 to the Bail Act 1982 (WA). The application was filed on 27 July 2015 and is supported by the affidavit of the appellant's solicitor, Christian Leith John Miocevich, sworn on 27 July 2015. Written submissions have been filed by the parties.
Briefly, the background to the appeal is as follows. The appellant was charged on indictment in the District Court with 13 sexual offences involving four complainants. After a trial before a judge and jury, the appellant was convicted of only counts 5 and 6. Count 5 charged that the appellant indecently dealt with a child over the age of 13 years and under the age of 16 years. Count 6 charged that the appellant sexually penetrated a child over the age of 13 years and under the age of 16 years. These offences were said to have taken place on separate occasions between 1 May 2008 and 30 June 2008 (count 5), and 1 May 2008 and 25 December 2008 (count 6), respectively.
The victim in each case is a female, who I will refer to in these reasons as S. S was born in February 1993. S was 15 years of age at the time of the offences, and 22 years of age at the time of trial.
On 24 July 2015, the appellant was sentenced to a total effective sentence of 5 years' immediate imprisonment, backdated to 15 May 2008, with parole eligibility. A notice of appeal against conviction was filed on 27 July 2015.
At this early stage of the appeal, no appellant's case has been filed, although a draft appellant's case was attached to the appellant's submissions filed in support of the present application. I was informed by Mr Miocevich on 4 August 2015 that senior counsel had been briefed to prepare the appellant's case; matters in addition to those set out in the draft appellant's case before the court were likely to be included; and this document would be filed in approximately 14 days.
The notice of appeal sets out three draft grounds of appeal. The crux of those grounds is that the learned trial judge made an error of law by prohibiting defence counsel from cross‑examining S with respect to a conviction recorded against S in the Children's Court essentially for making a false complaint of a sexual assault.
The factual background to the offences and the grounds of appeal may be dealt with briefly in this way. The appellant was in a relationship with V. V had two sons, ST and B, from another relationship. S was, at the time of the offences, ST's girlfriend. Count 5 concerned an occasion when the appellant entered a bedroom and interrupted S and ST who were having sex. The appellant remained in the bedroom and fondled S's breasts. Count 6 concerned an occasion, said by the State to be representative of other occasions, when the appellant, having provided S with sleeping tablets, sexually penetrated her vagina with his penis.
Prior to the trial, the State disclosed that S, in August 2007, when she was 14 years old, made a complaint that she had been sexually assaulted by G during a period when she was residing with G and her grandmother. In November 2007, S told her mother that the allegation was false, and that she had made it up because she was unhappy with G insisting that she perform domestic chores. On 17 April 2008, S pleaded guilty, and was subsequently convicted, in the Children's Court of creating a false belief contrary to s 171(2) of the Criminal Code (WA). S was placed on a 6‑month good behaviour bond.
In a deposition prepared for the appellant's trial, S explained that she did not complain about the offences committed by the appellant because, '… I was too scared to. I have a past history of similar things happening'. In respect of the allegation made against G, she said 'I was later blackmailed by my mum to tell the police it was all a lie. I had to do that in order to keep a house over my head'. The implication of these statements was that the allegations that S made against G were, in fact, true.
At the appellant's trial, defence counsel sought leave from the trial judge to cross‑examine S 'regarding that issue of having made an earlier complaint about another person and retracted it' (ts 223). After hearing submissions from trial counsel, his Honour refused to allow defence counsel to cross‑examine S as defence counsel had proposed. His Honour later delivered oral reasons for decision (ts 454 ‑ 458).
From those reasons, it is clear that his Honour regarded the proposed cross‑examination as relevant only to S's credibility. His Honour based his decision to refuse the cross‑examination upon s 25 of the Evidence Act 1906 (WA), which reads:
25.Cross examination as to credit
(1)If any question put to a witness upon cross examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.
(2)In exercising this discretion, the court shall have regard to the following considerations -
(a)such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(b)such questions are improper if the imputation they convey relates to matters so remote in time, or of such character, that the truth of the imputation would not affect, or would affect in a slight degree only, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c)such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.
(3)Nothing herein shall be deemed to make any witness compellable to give evidence upon any matter he is now by law privileged from disclosing.
His Honour said that he had regard to the considerations set out in s 25(2) of the Evidence Act and, having done so, he exercised his discretion to refuse to allow defence counsel to cross‑examine S with respect to her prior false complaint and conviction.
His Honour's reasons for decision appear to be based, in part, upon an assumption that, had the cross‑examination been allowed, a collateral issue as to whether S was truly guilty of the offence to which she had pleaded guilty could be ventilated. His Honour was not referred in argument, and did not refer in his reasons, to this court's decision in Bennett v The State of Western Australia [2012] WASCA 70; (2012) A Crim R 419.
The legal principles with respect to bail pending appeal are well known. Bail may only be granted if an appellant demonstrates that exceptional reasons exist as to why an appellant should not be kept in custody, and it is otherwise proper to release the appellant on bail. The threshold question to be answered in this application is whether the appellant has demonstrated exceptional reasons why he should be released on bail. The appellant submits that bail should be granted because the draft grounds of appeal have a very high prospect of success.
In order to demonstrate exceptional reasons by virtue of the strength of the proposed ground(s), it is necessary for the appellant to demonstrate that the grounds are strongly arguable. Put another way, the prospects of success must be sufficiently likely so as to give rise to a real concern that the appellant would suffer an injustice by having been kept in custody as a result of an unsound conviction. See Ness v The State of Western Australia [2012] WASCA 273 [9].
As I have said in other cases, any assessment of the strength of the grounds of appeal at this early stage in the proceedings must be tentative. This is particularly so here, as the appellant's case has not been finally formulated, and the materials that have been provided to me are far from complete. Both parties to this appeal describe the issues that have been raised as complex.
The oral argument before me focused upon the proper construction of s 25 of the Evidence Act. Counsel proposed different constructions of the section. Section 25 does not appear to have attracted detailed examination in the past by this court or its predecessor, the Court of Criminal Appeal.
The State has raised submissions as to the status of S's Children's Court conviction. The State argues that, in fact, it is not a conviction at all having regard to s 55(2) of the Young Offenders Act 1994 (WA); and that, in any event, it was not admissible for any purpose having regard to s 189 and s 190 of the Young Offenders Act. The State further submitted that, if s 25 of the Evidence Act was enlivened, his Honour did not wrongly exercise the discretion to refuse the proposed cross‑examination. Counsel for the State referred, among other things, to the fact that, at the time S made the false complaint, she was a young child and, in truth, her actions then had no material bearing upon the credibility of the evidence she gave at trial as a 22‑year‑old adult.
Generally, it would be permissible to cross‑examine a complainant whose credit was in issue about a previous false complaint. However, there are some factual and legal issues in the present case which may take it outside of the usual run of cases. While I have come to the conclusion that the proposed grounds of appeal appear reasonably arguable, I have not reached, at this early stage in the proceedings, the state of satisfaction as to the prospects of success of the appeal which enable me to find that exceptional reasons exist for a grant of bail.
Having said this, I have been persuaded that it is appropriate in the circumstances of this case to expedite the hearing of the appeal. The orders that I propose to make are as follows:
1.The application for bail pending appeal be dismissed.
2.An expedited appeal order be made.