ISN v The State of Western Australia
[2020] WASCA 132
•18 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ISN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 132
CORAM: BUSS P
HEARD: 18 AUGUST 2020
DELIVERED : 18 AUGUST 2020
FILE NO/S: CACR 27 of 2020
BETWEEN: ISN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 12 of 2019
Catchwords:
Criminal law - Appeal against conviction - Application for bail pending the hearing of the appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Result:
Application for bail dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A G Hammond |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74
BUSS P:
The appellant was charged on indictment with four counts of sex offending against a child.
The appellant pleaded not guilty to each count.
On 31 October 2019, after a trial in the District Court before Birmingham DCJ and a jury, the appellant was convicted of all counts.
On 22 January 2020, the trial judge sentenced the appellant to a total effective sentence of 4 years 6 months' immediate imprisonment. A parole eligibility order was made. The total effective sentence began on 22 January 2020. The appellant will be eligible for release on parole as from 22 July 2022.
The appellant has appealed against conviction.
On 12 February 2020, the appellant filed his appeal notice. On 4 June 2020, the appellant filed and served his appellant's case. On 15 July 2020, the State filed and served its respondent's answer.
The appellant relies upon four grounds of appeal. Ground 1 alleges that the trial judge erred in law by directing the jury that the complainant's evidence amounted to recognition evidence in circumstances where the complainant's evidence relied upon inferential reasoning and did not rely upon any form of sensory perception. Ground 2 alleges that his Honour erred in law by failing to give an adequate Domican direction. Ground 3 alleges that his Honour erred in law by failing to provide fair and balanced directions to the jury as to the weakness of the complainant's inferential identification of the appellant. Ground 4 alleges that the verdicts of guilty were unreasonable and not supported by the evidence.
By an application in the appeal filed on 28 July 2020, the appellant has applied for bail pending the determination of his appeal. The application is supported by an affidavit of the appellant sworn 4 August 2020 and an affidavit of the appellant's mother, Roslyn Maree Wills, sworn 17 July 2020. Each of the affidavits refers to the significant emotional impact that the appellant's imprisonment has had upon his 14 year old daughter.
The principles relating to the granting of bail pending the determination of an appeal are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, I will consider the appellant's application for bail having regard to whether his grounds of appeal are strongly arguable.
I have examined the material relied upon by the appellant in support of his application for bail, including his appellant's case, his affidavit, the affidavit of his mother and the submissions made by his counsel.
I am not satisfied, at this stage, that the merits of the appellant's grounds, and the merits of his submissions in support of the grounds, are of sufficient strength to justify a grant of bail.
Also, I am not satisfied, at this stage, that the impact of the appellant's imprisonment on his daughter is a sufficient reason, either by itself or in combination with the degree of strength of the appellant's grounds of appeal, to justify releasing the appellant on bail.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail will therefore be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
19 AUGUST 2020
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