JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: HOUGHTON -v- THE QUEEN [2002] WASCA 363
CORAM: PULLIN J
HEARD: 19 DECEMBER 2002
DELIVERED : 24 DECEMBER 2002
FILE NO/S: CCA 191 of 2002
BETWEEN: RONALD HOUGHTON
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Application after conviction - Whether exceptional reasons
Legislation:
Bail Act, cl 1, cl 4, Pt C sch 1
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant: Mr R W Richardson
Respondent: Mr J Randazzo
Solicitors:
Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992
Caratti v The Queen [1999] WASCA 91
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Edwards v The Queen (1993) 178 CLR 193
Ex parte Maher [1986] 1 Qd R 303
Johansen v The Queen, unreported; Library No 980087; 23 February 1998
Kuczynski v The Queen (1989) 2 WAR 316
Leary v R [1975] WAR 133
Mickelberg v R [2000] WASCA 163
Mraz v The Queen (1955) 93 CLR 493
Murray v The Queen [2002] HCA 26
Nguyen v R [2001] WASCA 137
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Norton v R [2001] WASCA 164
Rechichi v The Queen [2001] WASCA 319
Ugle v The Queen [2002] HCA 25
Wedd v The Queen [2000] WASCA 273
Zoneff (2000) 200 CLR 234
Case(s) also cited:
Azzopardi v R (2001) 205 CLR 50
Bernt v R (1994) 70 A Crim R 1
Campbell v R [1981] WAR 286
Dyers v R [2002] HCA 45
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Hickey v The Queen [2002] WASCA 221
M v The Queen (1994) 181 CLR 487
McCreed v The Queen [2002] WASCA 225
Pemble v R (1971) 124 CLR 107
R v Clarence (1888) 22 QBD 23
R v Falconer (1990) 171 CLR 30
R v Knutsen [1963] Qd R 157
Royal v R (1991) 172 CLR 378
Vallance v The Queen (1961) CLR 56
Van Den Hoek v R (1986) 161 CLR 158
Wilde v The Queen (1988) 164 CLR 493
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
PULLIN J:
The Application for Bail
The applicant was convicted in the District Court of Western Australia on 3 October 2002 of the offence that on a date unknown between 1 June 1999 and 30 September 1999 at Swan View, he unlawfully did grievous bodily harm to the female complainant. The conviction followed a trial which had commenced on 1 October 2002.
For the offence, the applicant was sentenced by the trial Judge to 7 years jail and made eligible for parole. He will be eligible for parole on 3 June 2005.
The applicant has appealed, and it is likely that if all goes smoothly, the appeal will be heard in April 2003.
The applicant applies to…
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- Houghton v The Queen [2002] WASCA 363
- Case
- [2002] WASCA 363
- Decision Date
CaseChat Overview and Summary
The court examined the applicant's arguments regarding the exceptional nature of the case, particularly focusing on the evidence presented at trial. The applicant's case was that he had a strong prospect of success on appeal due to the potential for a patent error in the proceedings below. The court considered whether the applicant's failure to disclose his HIV status was irrelevant to the charge of grievous bodily harm and whether the evidence could support a finding that the applicant was not the source of the complainant's infection. The court also assessed the expert evidence provided by Professor French, an immunologist, which was central to establishing the source of the complainant's HIV infection.
In its reasoning, the court concluded that the applicant had not demonstrated that the appeal was likely to succeed. The evidence presented did not clearly indicate a patent error in the trial court's proceedings that would suggest a high probability of success on appeal. The court found that the applicant's arguments did not establish strong prospects of success on appeal, and therefore did not constitute exceptional reasons for granting bail. The appeal against conviction was dismissed, and the application for bail was denied.
The final orders of the court were that the application for bail pending the outcome of the appeal against conviction was dismissed. The court found that the applicant had not met the threshold for exceptional reasons and that there were no other grounds to grant bail. The conviction and sentence remained in place, and the applicant was required to continue serving his sentence pending the outcome of any further appeals.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The ordinary meaning of the words prima facie is "at first sight; on the face of it; as appears at first sight without investigation"; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615‑616. In Ex parte Maher [1986] 1 Qd R 303 at 311, Thomas J said:"In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail.Sometimes the converse will appear upon a summary examination of the material. But in the majority of cases any attempt to act as a preliminary court of appeal will be a fruitless and superficial exercise. (R v Giordano (1982) 31 SASR 241, 243)." In Caratti v The Queen [1999] WASCA 91, Miller J reviewed the authorities and expressed the view that in demonstrating that prima facie the appeal is likely to be successful, it is not necessary for the Court to be convinced that the arguments would almost certainly succeed before the Court of Appeal, as was stated by Franklyn J in Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992. Rather, what has to be shown is that the applicant has strong prospects of success on appeal. The stronger the apparent prospects of success the more significant is the factor. See also Rechichi v The Queen [2001] WASCA 319 at [10]. The applicant submits that this is one of the exceptional cases where it can be discerned immediately that the applicant has strong prospects of succeeding on appeal. The evidence led in the case was that the applicant and the female complainant first made contact with each other via an internet chat line. From that initial contact, the female complainant met the applicant and in due course a sexual relationship commenced. The applicant was at the time HIV positive. He had been married, and in the past his wife and he had taken precautions to avoid his wife becoming infected with the virus. The Crown case was that the applicant, without disclosing to the female complainant that he was HIV positive, had unprotected anal and vaginal sexual intercourse and ejaculated during those events. While the failure to disclose that he was HIV positive was despicable conduct, that was not the issue at the trial. At the trial in the District Court, the question was whether the applicant had committed a criminal offence. The charge against him was not one of having sexual intercourse without warning his partner. It was a charge of grievous bodily harm. The female complainant is now HIV positive. That was not so before she began her relationship with the applicant. Evidence was led from other witnesses and from the female complainant to negate the possibility that she was infected by someone or some source other than the applicant. The case raises important and difficult questions of fact and law. The Crown called Professor French as an expert witness. He is a Professor of Immunology. He gave evidence which is set out in the next paragraph.