KMT v The State of Western Australia
[2017] WASCA 33
•20 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KMT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 33
CORAM: MAZZA JA
HEARD: 16 FEBRUARY 2017
DELIVERED : 16 FEBRUARY 2017
PUBLISHED : 20 FEBRUARY 2017
FILE NO/S: CACR 2 of 2017
CACR 8 of 2017
BETWEEN: KMT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND ALB 15 of 2016
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms K C Cook
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ness v The State of Western Australia [2012] WASCA 273
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Before me is the appellant's application for bail pending his appeal against conviction (CACR 8 of 2017) and sentence (CACR 2 of 2017). The application was filed on 24 January 2017. The brief background to the application is as follows.
On 25 November 2016, the appellant was found guilty by a District Court jury of five counts of sexual offending against his biological daughter. On 22 December 2016, he was sentenced by Goetze DCJ to a total effective sentence of 6 years and 8 months' imprisonment with eligibility for parole, backdated to commence on 25 November 2016.
The appellant was represented by counsel at his trial. However, so far in these proceedings, the appellant is self‑represented. He is doing so with the assistance of his mother. It is clear enough that he is finding the process difficult and that it is causing his mother stress and anxiety. It is to be hoped that the appellant will seek assistance from the Legal Aid Commission in respect to the future conduct of these appeals.
The appellant's application for bail pending appeal is supported by his affidavit sworn on 19 January 2017. With the consent of the respondent, I have also taken into account 57 pages of material that was faxed to the Court of Appeal Office on 10 February 2017. Within that material is a 10‑page document headed 'Grounds of Appeal', which sets out 13 grounds of appeal that relate to the appeal against conviction. The respondent opposes the application for bail. I have read the respondent's written submissions opposing bail.
The appeals are at an early stage. In neither appeal has the appellant filed his appellant's case. Clause 4A of pt C sch 1 to the Bail Act 1982 (WA) provides that bail pending appeal shall only be granted if the appellant demonstrates that exceptional reasons exist why he or she should not be kept in custody. Even then, bail can only be granted if the court is satisfied that it is proper to do so, having regard to the provisions of, relevantly, cl 1 and cl 3. The respondent does not argue that if the appellant gets over the exceptional reasons threshold it would not be otherwise proper to grant bail.
What constitutes exceptional reasons has been discussed in many cases decided by this court over the years. To demonstrate exceptional reasons, an appellant must at least demonstrate that the appeal has strong, arguable grounds. Put another way, the prospects of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer an injustice by remaining in custody as a result of either an unsound conviction or sentence: see Ness v The State of Western Australia [2012] WASCA 273 [9]. There may be factors in addition to the assessment of the merits which potentially come into play.
The appellant submits that having regard to the strength of his proposed grounds of appeal and the difficulties that he and his mother are having conducting his appeal while he is in custody, exceptional reasons have been established.
Any assessment of the grounds of appeal at this early stage in the proceedings must be tentative. This is particularly so in the present case where, as I have mentioned, I do not have an appellant's case in either appeal.
I have carefully considered the material which has been provided to me by the appellant and I have listened to his submissions this morning. However, I am unable at this point to conclude that any of the proposed grounds of appeal in either appeal are strongly arguable. I acknowledge the difficulties being experienced by the appellant and his mother in the preparation of these appeals. Despite these difficulties, it is the experience of this court that appeals can nevertheless be prepared by self‑represented appellants. Here, this factor does not constitute exceptional reasons.
I have not been persuaded that exceptional reasons exist for a grant of bail in either appeal. As exceptional reasons have not been demonstrated, this court has no jurisdiction to release the appellant on bail pending his appeals. Accordingly, the appellant's application for bail pending appeal filed on 24 January 2017 must be dismissed, and I so order.
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