LBH v The State of Western Australia - [2022] WASCA 154

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LBH -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 154
CORAM:   HALL JA
HEARD:   15 NOVEMBER 2022
DELIVERED          :   15 NOVEMBER 2022
PUBLISHED           :   17 NOVEMBER 2022
FILE NO/S:   CACR 55 of 2022
BETWEEN:   LBH
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   BUS IND 23 of 2020

Catchwords:

Bail pending appeal - Whether exceptional reasons exist - Whether grounds strongly arguable - Urgent appeal order

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)

Result:

Bail refused
Urgent appeal application refused

Category: B

Representation:

Counsel:

Appellant	:	D S Johnson
Respondent	:	R P Arndt

Solicitors:

Appellant	:	Tasic Legal
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Serukai v The State of Western Australia [2020] WASCA 127
Wheeler v The Queen [2010] WASCA 2

HALL JA:

(This matter was delivered extemporaneously. It has been edited from the transcript of proceedings.)

This is an application for bail pending the determination of an appeal. In the alternative, the appellant seeks an urgent appeal order.
On 10 June 2022, the appellant was convicted after trial in the District Court of one count of indecent assault contrary to s 323 of the Criminal Code (WA) and three counts of indecently dealing with a child under the age of 13 years contrary to s 320 of the Criminal Code. The jury were unable to reach a verdict in respect of two other counts on the indictment.
On 26 August 2022, the appellant was sentenced to a total effective sentence of 3 years' imprisonment. The sentence commenced on that day. An order for eligibility for parole was made. Accordingly, the appellant will be eligible for parole after serving 18 months of the sentence.
On 18 July 2022, the appellant filed an appeal notice in respect of his conviction. There are two grounds of appeal. Ground 1 alleges that the trial judge erred by ordering that the indecent assault count should remain joined with the other counts on the indictment. Ground 2 alleges that the trial judge erred by ordering that the evidence relating to the indecent assault count was admissible in respect of the other counts as propensity evidence.
The principles applicable to bail pending an appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be appropriate to grant bail having regard to the considerations in sch 1, pt C, of the Bail Act 1982 (WA). If the appellant asserts that the exceptional reasons include the prospects of the appeal, something more than a reasonably arguable case must be shown. It must be shown that the appeal is strongly arguable or that the prospects are such that there is a real concern that the appellant would suffer an injustice by having been kept in custody on the basis of an unsound conviction.
[1] See Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
The prosecution case was that the offending occurred over a 3 1/2‑year period between July 2016 and December 2019 and involved three complainants who I will refer to as 'C', 'A' and 'M'. C and A are sisters and the appellant was a close friend of their father. M is the daughter of the appellant's then‑de facto partner.
It was alleged that, on 16 July 2016, the appellant indecently dealt with C by touching her inner thigh. C was aged 13 at the time. It was alleged that on 1 December 2016, the appellant indecently assaulted A by pressing his penis against her body. A was aged 18 at the time. It was alleged that on three occasions between 31 August and 24 December 2019, the appellant indecently dealt with M by placing her hand on her vagina on one occasion, by rubbing her vagina on another occasion, and by placing her hand on his penis on another occasion. M was aged 12 at the time.
The defence case was that none of the alleged acts had occurred. As regards C, the appellant accepted that he may have brushed the outside of her leg as he was assisting her with a seatbelt, but denied touching her inner thigh. As regards A, the appellant accepted that he may have hugged her, but denied pressing or rubbing his groin against her. As regards M, the appellant denied ever touching her in the way alleged.
The only issue at trial was whether each alleged act occurred. There was no real suggestion that if the acts occurred in the manner alleged there was any issue as to whether any of them was indecent.
Prior to the trial, the prosecution made an application seeking to rely on the evidence in respect of each count as being cross-admissible in respect of the other counts. The basis for this application was that the evidence of other counts was in each case capable of establishing that the appellant had a tendency to sexually offend against girls with whom he had a family or family-like relationship. It was also submitted that the evidence demonstrated that the appellant had a particular attitude towards a class of persons, namely, girls with whom he had a family or family-like relationship. Further, it was submitted that the appellant had an unnatural sexual interest towards girls with whom he had such a relationship and that the evidence showed that he was prepared to act upon that interest. For these reasons, the prosecution submitted that the evidence on each count was cross-admissible pursuant to s 31A of the Evidence Act 1906 (WA) as being both propensity and relationship evidence.
The judge who heard the propensity application, who was not the trial judge, relevantly concluded that the evidence in respect of the indecent assault against A was admissible in relation to the other counts and vice versa. He came to that conclusion notwithstanding defence submissions that the offending in relation to A was different in nature, in part due to her age at the time of the offence. His Honour said that the evidence revealed a tendency on the part of the appellant to develop a relationship of trust with young females he came into contact with through his friends or his partner and to then use opportunities thereby created to sexually offend against them.
His Honour held that the evidence was significantly probative because it showed a determination to develop the relationships over an extended period of time and because it showed a tendency to act on his sexual interest when opportunities arose. For the same reasons, his Honour dismissed a defence application for an order that the relevant count be separately tried.
At the trial, the trial judge directed the jury that they could use the evidence of other counts as propensity evidence if they were satisfied that it established that the appellant had a sexual interest in pre-teenage or teen girls who were known to him and a tendency to act on that interest by touching girls in an indecent way when the circumstances permitted.
In the outline of submissions filed with the appellant's case which has been supplemented by oral submissions by appellant's counsel today, it has been submitted that the identified tendency was at too high a level of generality in the sense that the way in which the appellant was willing to give effect to the tendency was not specified. The appellant supports this submission by referring to conversations with A that are said to be better described as 'inappropriate' than as demonstrating a sexual intent. Reference is also made to the fact that A was an adult at the time of the offence, that the appellant did not send her any explicit messages or other material, that he had not attempted to act on any sexual interest when A was a child, and that the physical act was different to those alleged in the other counts. Essentially, the appellant submits that the evidence in respect of A does not show a willingness to act on a sexual interest in respect of her when she was a child.
The State submits that the nature of the offending alleged against each of the complainants was not materially different. The fact that A was significantly older than the other complainants at the time of the offending is accepted as being relevant, but it is said that it needs to be viewed in the context of grooming behaviour in respect of all of them and that the grooming in respect of A commenced when she was of a similar age to C and M. It is also relevant that the appellant was in a close relationship with a parent of each of the complainants. The State says that the evidence in relation to C and A was capable of establishing that the appellant had a sexual interest in both girls over a number of years, but only acted on it at a later time when the opportunity presented itself. Further, the evidence of each of the complainants was capable of removing doubt as to whether the conduct occurred as alleged.
Both grounds of appeal critically depend on the admissibility of the evidence of A in respect of the other counts in the indictment. It was on the basis of cross-admissibility that the joinder of the counts was justified. The question then is whether it is strongly arguable that the judge who made the ruling as to cross-admissibility was in error. In essence, that depends on whether the evidence had significant probative value. That, in turn, depends on a detailed consideration of the nature of the facts in issue to which the evidence is relevant and all of the other evidence adduced at the nine-day trial. In particular, in this case it will require detailed consideration of the alleged grooming behaviour in respect of each of the complainants. It is not possible at this stage to predict with any degree of certainty what the outcome of such an assessment will be.
Whilst the matters raised in the appellant's submissions are clearly arguable, they are not so plainly assured of success as to amount to exceptional reasons for the granting of bail. Put another way, the grounds do not raise a real concern that the appellant will suffer an injustice by being kept in custody on the basis of unsound convictions.
As to an urgent appeal order, the State notes that the appellant's case was due on 22 August 2022 and that it was only filed on 24 October 2022, after three extensions of time which were agreed to by the State. In these circumstances, the State submits that it is not appropriate for the appellant's case to be given priority over that of others.
The principles relevant to the making of an urgent appeal order were referred to in Wheeler v The Queen.[2] The granting of an urgent appeal order will necessarily delay the disposition of other appeals. Relevant factors as to whether such an order should be made include whether a significant period of the sentence will be served by the time the appeal will be heard if an order is not made. Delay by an appellant in commencing or progressing the appeal will be a factor against the granting of an urgent appeal order.
[2] Wheeler v The Queen [2010] WASCA 2.
In this case, the sentence is not so short that it is likely that a significant period of it will be served before the appeal is heard. Furthermore, the delay in filing the appellant's case counts against his appeal now being given priority over that of others.
The applications for bail and an urgent appeal are both refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
17 NOVEMBER 2022