Houghton v The Queen

Case [2002] WASCA 363


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

  1. 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.

  2. 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.

  3. The applicant has appealed, and it is likely that if all goes smoothly, the appeal will be heard in April 2003.

  4. 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 decision in Houghton v The Queen involved the applicant, who was convicted of grievous bodily harm, applying for bail pending the outcome of his appeal against conviction. The applicant argued that there were exceptional reasons to grant him bail, given the likelihood of success on appeal. The court was tasked with determining whether the applicant had demonstrated that the appeal was likely to be successful, and if so, whether this constituted an exceptional reason to grant bail. The case hinged on the interpretation of "prima facie" and the strength of the evidence suggesting that the appeal would be successful.

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.