Herbert v The Queen

[2002] WASCA 256

HERBERT -v- THE QUEEN [2002] WASCA 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 256
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:20/2002	Heard:	12 SEPTEMBER 2002
Coram:	SCOTT J	Delivered:	16/09/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Bail refused
Category:	B
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Parties:	ERIC JOHN HERBERT THE QUEEN
Catchwords:	Criminal law and procedure Bail Bail pending appeal Substantial portion of custodial term served before appeal hearing
Legislation:	Bail Act 1982, Sch 1 Pt C cl 4
Case References:	Caratti v R [1999] WASCA 91 Re Coopers Application for Bail [1961] ALR 584 Walser v R (1994) 73 A Crim R 154 MacKenzie v The Queen (1996) 190 CLR 348 Quang Tung Tran, unreported; SCt of WA; Library No 990117; 11 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HERBERT -v- THE QUEEN [2002] WASCA 256 CORAM : SCOTT J HEARD : 12 SEPTEMBER 2002 DELIVERED : 16 SEPTEMBER 2002 FILE NO/S : CCA 20 of 2002 BETWEEN : ERIC JOHN HERBERT

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Bail pending appeal - Substantial portion of custodial term served before appeal hearing

Legislation:

Bail Act 1982, Sch 1 Pt C cl 4

Result:

Bail refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr S I Gallacher
Respondent : Mr P J Urquhart

Solicitors:

Applicant : Dwyer Durack
Respondent : State Director of Public Prosecutions

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

Caratti v R [1999] WASCA 91
Re Coopers Application for Bail [1961] ALR 584
Walser v R (1994) 73 A Crim R 154

Case(s) also cited:

MacKenzie v The Queen (1996) 190 CLR 348
Quang Tung Tran, unreported; SCt of WA; Library No 990117; 11 March 1999

(Page 3)

SCOTT J:

Application for bail

1 On Thursday, 12 September 2002 the applicant applied for bail pending his appeal against convictions in the District Court at Perth following his trial on an indictment containing six counts. The indictment alleged:

"(1) On a date unknown between 31 December 1989 and 18 January 1991 at Girrawheen ERIC JOHN HERBERT sexually penetrated 'C', a person under the age of 16 years, by introducing his penis into the mouth of 'J'.

(2) AND FURTHER THAT on a date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT procured 'M', a child under the age of 13 years, to unlawfully and indecently deal with him, by procuring 'M' to lick milk from the penis of ERIC JOHN HERBERT.

(3) AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT unlawfully and indecently assaulted 'M', a person under the age of 16 years, by touching his buttocks.

(4) AND FURTHER THAT at the same time and at the same place as in Count 3 ERIC JOHN HERBERT procured 'C', a child under the age of 13 years, to unlawfully and indecently deal with him, by procuring 'C' to touch the penis of ERIC JOHN HERBERT.

(5) AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT sexually penetrated 'C', a person under the age of 16 years, by introducing his penis into the mouth of 'C'.

(6) AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT sexually penetrated 'C', a person under the age of 16 years, by inserting his penis into the anus of 'C'."

(Page 4)

2 The applicant was convicted on counts 1, 4 and 5 of the six count indictment and found not guilty on the remaining counts.

3 On 5 March 2002, the applicant was sentenced to a term of three years imprisonment to run from 8 February 2002. A parole order was made. The applicant is, therefore, eligible to apply for parole on 5 March 2003.

4 The applicant's appeal has been listed for hearing in the Court of Criminal Appeal on 18 October 2002. As the application is for bail pending appeal, it is common ground that exceptional circumstances must be demonstrated: Sch 1 Pt C cl 4 Bail Act 1982.

5 The exceptional circumstances upon which counsel for the applicant relies in this case are:

1. The strength of the appellant's case on appeal.

2. The fact that the appellant will have served eight months of a possible 12 months non-parole period of his sentence prior to the hearing of the appeal.

3. The applicant's personal circumstances and those of his family.

4. The applicant's good record in relation to complying with bail conditions.

6 It is necessary to examine each of those aspects of this application in turn.

7 Dealing with the ground of appeal, it is difficult at this stage of these proceedings to make any accurate assessment of the merits of the applicant's case on appeal until the matter is fully argued. A copy of the appeal book has been provided to the Court and that material has been examined. However, until all of the arguments are developed, at best, only tentative views can be formed as to the strength of the appellant's case.

8 The ground of appeal contained in the appeal book is:

"The verdicts on counts 1, 4 and 5 were unsafe and unsatisfactory for the following reasons:

1) The jury's verdict on the remaining counts indicated that they considered the complainant's evidence was unreliable.

(Page 5)

2) The evidence of the complainant was entirely uncorroborated.

3) The verdict on count 3 was inconsistent with the verdict on count 4 because:


a) the evidence in relation to those two counts were inextricably linked in that they were said to have taken place simultaneously.

b) once the jury had concluded there was a reasonable doubt about the accused's guilt on count 3 they must necessarily have concluded that there was a reasonable doubt as to his guilt in relation to count 4.


4) The verdict of not guilty in count 6 was inconsistent with the verdict of guilty on the remaining counts because:

a) the jury, having found there was a reasonable doubt in relation to count 6 must have concluded that there was a reasonable doubt as to the truth, accuracy or reliability of the complainant's evidence.

b) the jury's question in relation to count 6 on the indictment indicated that it had not understood the issues in the case."

9 In developing the submission in relation to the ground of appeal, counsel for the applicant pointed to the evidence of the complainant on counts 1, 4 and 6 (hereinafter called "C"), who gave eyewitness evidence concerning the events the subject of counts 2 and 3. The complainant in relation to counts 2 and 3 ("M") was not called to give evidence because, at the time, he was a child aged between one year and 18 months. As a consequence, the only eyewitness who could give evidence on count 3 was "C", who testified that he saw the incident concerned.

10 The evidence of "C" was that he went into the applicant's master bedroom where he was told to lay down next to the applicant. "C" then testified about the incident that occurred in relation to himself (count 4) and as to what he saw the applicant do to "M". His evidence on count 3 was "while I did that he put his hand down the inside of 'M's' nappy and held his bottom".

(Page 6)

11 The jury acquitted the accused on count 3 concerning "M", but convicted the applicant in relation to count 4.

12 It was contended by counsel for the applicant that these two verdicts were inconsistent. As I understand the submission, it is said that either "C" was a credible witness or he was not. If he was a credible witness and his evidence was accepted by the jury, then the jury should have convicted in relation to both counts. If he was not a credible witness, then the jury should have acquitted on both counts.

13 As I have emphasised earlier in these reasons, it is not possible to make any final judgment on the issues the subject of the appeal until the matter is fully argued: Caratti v R [1999] WASCA 91 per Miller J at [15]. It is also, of course, not possible to determine the reasoning of the jury in deciding each of these counts. In my view, however, it was open to the jury to consider that "C" may have had a better memory of the incident concerning himself than he would have had of the incident concerning "M". In that respect, it is to be noted that these incidents occurred approximately 10 years before the trial, so that the power of recollection of the witness was a critical aspect of the case.

14 The other aspect of the ground of appeal, as emphasised by counsel for the respondent, is that the incident described by the witness concerning "M" may have been one that did not amount to indecency, bearing in mind that "M" was then aged between one year and 18 months. In other words, even if the incident occurred, the touching by the applicant may not have been indecent. For example, the applicant may have been trying to ascertain if "M's" nappy was wet and required changing. In those circumstances, it was at least open to the jury to distinguish between the events the subject of counts 3 and 4.

15 In relation to count 6 on the indictment, this was the only count of anal penetration and was a separate and distinct event in that this was the only count in which that allegation was made. The jury during its deliberation asked the trial Judge:

"Could we please have a ruling on the definition of sexual penetration in relation to charge number 6."

16 Again, in relation to the contention that the verdict of guilty on this count was inconsistent, it is not possible to analyse the submissions that may be put when the appeal is heard. It is possible, however, that the jury wanted to ascertain the degree of penetration sufficient in law for that charge to be made out. It is not possible to know what difficulty the

(Page 7)

members of the jury were encountering that caused them to ask the question. One possibility was that they did not know what degree of penetration was sufficient in law to constitute the offence. Alternatively, it may well be, as counsel for the respondent suggests, that the absence of medical evidence concerning "C" and the absence of any complaint by "C" shortly after that incident, in circumstances where a complaint may have been expected, was enough to distinguish that count from the others on the indictment.

17 It is sufficient, for the purposes of these reasons to say that, in my view, there is no strongly arguable ground of appeal or one which will obviously succeed: Caratti v R (supra) at [11]. In addition, as I indicated at the commencement of these reasons, the appeal is listed for hearing on 18 October 2002 so that the period during which bail would run would be approximately five weeks. Whilst I accept the contention that the applicant will have served a substantial portion of the custodial component of his sentence before the appeal is heard, that is only one of the circumstances that need to be taken into account in considering whether exceptional circumstances have been made out, Re Coopers Application for Bail [1961] ALR 584 per Fullager J: Walser v R(1994) 73 A Crim R 154.

18 I have taken into account the appellant's personal circumstances as deposed to in his affidavit, together with the evidence concerning the health of his wife. I note that the applicant cares for seven children. In addition, I have taken into account the applicant's good history in relation to bail and accept the submission that there is nothing to suggest that he would not honour bail if it was granted to him.

19 In the end, however, I am not persuaded that sufficiently exceptional circumstances have been demonstrated to justify the grant of bail for the five-week period.

20 It is, of course, possible for the applicant to renew his application for bail when the appeal is heard by the Court of Criminal Appeal.