Hickey v The Queen
[2002] WASCA 221
•16 AUGUST 2002
HICKEY -v- THE QUEEN [2002] WASCA 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 221 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:75/2002 | 6 AUGUST 2002 | |
| Coram: | WHEELER J | 16/08/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW CHRISTOPHER HICKEY THE QUEEN |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | Caratti v The Queen [1999] WASCA 91 Hoch v The Queen (1988) 165 CLR 292 Rechichi v The Queen [2001] WASCA 319 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HICKEY -v- THE QUEEN [2002] WASCA 221 CORAM : WHEELER J HEARD : 6 AUGUST 2002 DELIVERED : 16 AUGUST 2002 FILE NO/S : CCA 75 of 2002
- CCA 124 of 2002
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr B G Illari
Respondent : Mr W J C De Mars
Solicitors:
Applicant : Bruno Illari
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Caratti v The Queen [1999] WASCA 91
Hoch v The Queen (1988) 165 CLR 292
Rechichi v The Queen [2001] WASCA 319
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: The applicant applies for bail pending the hearing of his appeals against conviction. He was convicted on 18 April 2002 of two counts of sexual penetration without consent, one relating to a Ms Cooper and one relating to a Ms Jackman.
2 Since this is an application for bail pending appeal, the applicant must demonstrate "exceptional reasons" why bail should be granted. The matters relied upon are the alleged strength of the grounds of appeal against conviction, together with certain matters personal to the applicant. So far as the personal matters are concerned, they are not in themselves exceptional. He is of prior good character. His de facto partner is due to give birth shortly; because of a prior injury, a caesarean birth is recommended, and she would naturally wish to have his support. Finally, he has been experiencing episodes of headache and brief episodes of loss of consciousness, which are as yet undiagnosed although certain investigations have been performed. All of these would point in favour of bail being granted if this were an application for bail prior to trial, and I accept that the applicant is a person to whom bail would be granted, were it not for his conviction and for the need which arises in that event to demonstrate exceptional reasons.
3 As I understood it, the Crown's submission was that strongly arguable grounds of appeal would not in themselves be sufficient to constitute an exceptional reason. Reliance was placed upon the decision of the Full Court in Rechichi v The Queen [2001] WASCA 319 at [10], where Murray J, with whom Steytler and Roberts-Smith JJ agreed, said:
" ... Where one has a combination of a strongly arguable case on appeal and in addition if bail is refused so much of a sentence would be served as to make the resolution of the point of the appeal in favour of the applicant rather a hollow victory, then bail may be granted and the test may be regarded as satisfied. It is not the case that bail in those circumstances must be granted. ... It is to be noted that where the matter is approached in that way the courts have been careful to emphasise that one is concerned both with the presence of a strongly arguable case in the mind of the court hearing the application of bail and the service of time in custody if bail is refused."
- Here the applicant was sentenced to two cumulative terms of 5 years' imprisonment with eligibility for parole. On 22 July McKechnie J referred his appeal to the next available sitting of the Court of Criminal
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- Appeal, so that it is unlikely that he will have served the greater portion of the term imposed by the time his appeals are heard and determined.
4 In Caratti v The Queen [1999] WASCA 91 Miller J reviewed the authorities relating to the weight to be afforded a strongly arguable ground of appeal. Although there is a need for caution at this stage, when any view which is formed as to the likely success of the grounds of appeal is of a very provisional nature, and argument in relation to that question has necessarily been brief, I would accept the conclusion reached by Miller J at [11] that if there are strongly arguable grounds of appeal, which have "strong prospects of success" that may be enough on its own to justify a grant of bail pending appeal.
5 The applicant relies upon five grounds of appeal. I deal first with those which appear to me to be of lesser significance, and upon which the applicant placed less reliance at the hearing of this application. Before I turn to the particular grounds, it is desirable to note that the allegations against the accused made by each of the complainants involved a somewhat similar pattern of behaviour. It was said in each case that he would offer to massage the complainants, that on their accepting this offer they would in due course fall asleep, and that they awoke to find the accused sexually assaulting them. In addition, there was evidence that the accused had behaved in a similar way to other young women, offering to massage them and then sexually assaulting them when they were asleep or sleepy.
6 The first ground of appeal deals with the failure of the learned Chief Judge of the District Court to sever the indictment dealing with the two complainants. It was accepted for the purpose of argument that the accounts given by the complainants were sufficiently similar to constitute "similar fact" evidence, but it was asserted that there was a possibility of concoction. The difficulty this argument faces is twofold. First, the learned Chief Judge in terms concluded that the applicant had not shown any reasonable possibility of concoction. The second is that, even if one goes behind that finding, it is difficult to see upon what facts a reasonable possibility of concoction could have been found. There was evidence given by the accused, but disputed by the complainants, that the complainants had previously met on at least one occasion. There was evidence that Ms Jackman was aware of the broad outline of the allegations against the applicant in respect of Ms Cooper, having learned them from the applicant. There appears however to have been no evidence of any motive or reason to concoct such allegations. It does not seem to me that this ground is strongly arguable.
(Page 5)
7 Grounds 3 and 4 relate to cross-examination of the applicant in relation to sexual encounters between him and a Ms Cornwall (in relation to ground 3) and a Ms Ernst (ground 4). That behaviour was not the subject of any charge or of any complaint, and it was alleged to be highly prejudicial. The relevant passages of cross-examination are brief. They involve suggesting to the applicant that he had massaged those young women prior to engaging in sexual behaviour with them. However, it does not appear to have been suggested that an offence was committed by the applicant on either occasion, it not being suggested that the sexual encounters were other than consensual (although one of the young women was alleged to have had said that she later regretted the incident). Establishing that the prejudice to the applicant outweighed the probative value of the cross-examination, and was such as to give rise to a miscarriage of justice, necessarily involves an examination of the cross-examination in the context of the trial as a whole. As I have noted, the passages in cross-examination were brief and it is as a matter of first impression difficult to see that they were of such significance that the trial miscarried, even if one assumes some prejudice.
8 Ground 2 involves the leading by the Crown of evidence from a Ms Goetze in relation to an incident which was not the subject of any complaint against the applicant. It was alleged to involve massage by the applicant, Ms Geotze falling asleep, and a sexual assault. It was suggested that because Ms Goetze was a close personal friend of Ms Cooper, the possibility of concoction was great. The motive was said to lie in the fact that Ms Goetze had terminated a relationship with the applicant in circumstances of some unpleasantness; further, she had encouraged Ms Cooper to make her allegations to police. The relevance of similar fact evidence was explained by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 295 – 296. There Honours said:
"Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings evidence of those similar facts may render it objectively improbable ... that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue.
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the
(Page 6)
- others. Similar fact evidence bears a different complexion if the issue is whether the acts which are said to be similar occurred at all. ... the better view would seem to be that it is relevant to prove the commission of the disputed acts ... Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred." (Citations omitted.)
- So far as Ms Goetze is concerned, it was apparently accepted by the applicant that there was an incident which involved the applicant's massaging of Ms Goetze followed by a sexual encounter. The difference between the applicant and Ms Goetze on that point related to whether the sexual encounter was one which commenced while she was asleep and not consenting, or whether it was consensual. The evidence therefore does not fall neatly into either of the two categories referred to by their Honours in Hoch. Rather, the happening of the matters said to constitute the similar facts was to an extent not in dispute, but aspects of those happenings were disputed.
9 So far as the possibility of concoction was concerned, Mason CJ, Wilson and Gaudron JJ observed in Hoch that:
" ... the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience." (at 297)
- Assuming the evidence here to be of disputed similar facts, Fenbury DCJ found that there was no reasonable possibility of concoction and that the evidence was admissible. However, one of the factors which his Honour took into account was that he considered it inherently unlikely that Ms Goetze would concoct such an allegation, apparently because the allegation was considered by his Honour to reflect badly on Ms Goetze as revealing naive or foolish conduct. It is arguable that this was not a relevant consideration, but that rather, once opportunity and motive to concoct had been found, the question of the inherent probability of concoction having regard to the nature of the allegation, was something which might only go to establish whether concoction had in fact occurred. The question of whether concoction had in fact occurred, rather than whether there was a reasonable possibility, was of course not one which his Honour was required to determine.
(Page 7)
10 However, there are certain difficulties in the way of the argument of the applicant in relation to this ground. One is that although there appears to have been a motive on the part of Ms Goetze to concoct such an allegation, there was no evidence of relevant contact between Ms Goetze and Ms Jackman, and no apparent motive on the part of Ms Jackman to concoct such evidence. The question arises as to whether similar fact evidence must be excluded if there is a reasonable hypothesis of concoction involving some of the similar fact witnesses only. Further, although it is arguable that the inherent likelihood of concoction of such an allegation may have been irrelevant, one can also see an argument that there must be circumstances in which, as a matter of "common sense and experience" the inherent unlikelihood of a person concocting such an allegation involving himself or herself may be considered. Although this ground certainly appears to be an arguable one, it does not in my view therefore have such strong prospects of success as to constitute an exceptional circumstance justifying a grant of bail to the applicant.
11 Ground 5 is of a different kind from the others. It appears that at some stage the jury had available to it a piece of paper containing excerpts from the Criminal Code with various passages highlighted in yellow. This was not material given to the jury by the trial Judge or authorised by him, so that the only inference which appears to be open is that one or more members of the jury had performed their own researches in relation to the law. It is argued that this necessarily gives rise to an inference that the jury may have acted upon a view of the law at variance with the directions given by his Honour. Again, it appears to me that this ground is arguable. However, so far as the two counts upon which the applicant was convicted are concerned, the only material on that piece of paper relevant to those counts consisted of the relevant sections of the Criminal Code. His Honour must necessarily have directed the jury precisely in terms of those sections. This was not a case of the jury having before it material which was irrelevant to its deliberations or at variance with what was said to them by his Honour concerning the law. Although the inference that one or more jurors must have been conducting their own researches is a troubling one, the nature of the material is not such as to suggest that there must necessarily have been a miscarriage of justice in this case.
12 It follows from what I have said above that, although there are certainly grounds of appeal which appear to have some merit, none appears so strongly arguable at this stage as to justify the grant of bail to the applicant, either alone or in combination with the personal circumstances to which I have referred. I would refuse the application.
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