Loh v The State of Western Australia
[2023] WASCA 150
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LOH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 150
CORAM: VANDONGEN JA
HEARD: 6 OCTOBER 2023
DELIVERED : 17 OCTOBER 2023
PUBLISHED : 17 OCTOBER 2023
FILE NO/S: CACR 83 of 2023
BETWEEN: RAINIE T LOH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : IND 1994 of 2021
Catchwords:
Criminal law - Application for bail pending appeal against conviction - Whether exceptional circumstances are established - Whether conditions could be imposed to overcome risk of appellant not appearing
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Bail refused
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
RKT v The State of Western Australia [2017] WASCA 13
Serukai v The State of Western Australia [2020] WASCA 127
VANDONGEN JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Introduction
Before the court is an application for bail pending an appeal against conviction. The application is supported by an affidavit sworn by the appellant on 10 July 2023.
On 6 April 2023, the appellant was convicted in the District Court by the majority verdicts of a jury of one count of unlawful detention contrary to s 333 of the Criminal Code (WA) (Code) and one count of sexual penetration without consent in circumstances where he pretended to be armed with a dangerous weapon, namely a replica firearm, contrary to s 326 of the Code. The trial judge, Lemonis DCJ (as his Honour then was) found the appellant not guilty of a further charge of aggravated sexual penetration on the basis that he had no case to answer, and the jury also acquitted the appellant of a charge of attempting to steal a motor vehicle.
On 10 July 2023, the appellant filed a notice of appeal seeking leave to appeal against conviction. Attached to the notice of appeal was a document that set out 40 grounds of appeal. On the same day the appellant filed an application for bail, accompanied by an affidavit and a document entitled 'Declaration & Affirmation', which takes the form of submissions in support of that application.
The appellant originally appeared before me on 21 July 2023. At that time, he had not yet been sentenced. The appellant had been remanded in custody and was due to appear in the District Court on 21 August 2023 for sentencing. I explained to the appellant that I was of the view that while this court has the power to grant bail to an appellant to appear in this court in relation to proceedings connected with an appeal, it does not have jurisdiction to grant bail for an appearance in the District Court for sentencing after trial. Accordingly, I indicated to the appellant that even if he were to be successful in a bail application relating to an appearance in this court, he would not automatically be released. This is because the decision that was made by the trial judge to refuse bail in respect of the appellant's appearance for sentencing in the District Court would remain unaffected, unless he appealed against that decision. In those circumstances the application for bail was adjourned to enable the appellant to consider his position.
Evidently the appellant chose not to proceed with his application for bail pending the hearing and determination of this appeal, at least in the short term, and chose not to appeal against the trial judge's decision to refuse bail as he was sentenced in the District Court on 19 September 2023. The appellant was sentenced to a total effective sentence of 7 years and 3 months' immediate imprisonment, and an order was made that he be eligible for parole.
On 3 October 2023 the Acting Court of Appeal Registrar issued an amended notice to attend for the purpose of considering the appellant's adjourned application for bail pending the hearing and determination of his appeal. The hearing of that application was listed to take place on 6 October 2023. Shortly before the hearing the appellant attempted to file a document that purported to be an appellant's case. Although that document was not accepted for filing at that time as it failed to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) in several respects, it has now been accepted for filing and I have had regard to its contents in forming my conclusions about whether it is appropriate to grant bail to the appellant.
After the hearing of the appellant's application for bail, the court received two unsolicited emails, one which purported to be from the appellant's brother, and one which appeared to have been sent by his father. My associate sent copies of those emails to the prosecutor who represented the State at the hearing of the appellant's application. He then advised my associate that he did not have any difficulty with me reading those emails, and taking them into account in considering whether to grant bail.
The State opposes a grant of bail and has filed written submissions which explain why it has adopted that position. In short, the State submits that the appellant has not demonstrated that any of his grounds of appeal have strong prospects of success. Further, and in any event, the State submits that even if a ground of appeal was strongly arguable it would not otherwise be appropriate to grant bail having regard to the appellant's history while on bail.
Relevant principles
The relevant principles to be applied in the context of an application for bail pending an appeal to this court are well established. Pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA), in deciding whether or not to grant bail to an accused who is in custody awaiting the disposal of appeal proceedings, bail may only be granted if the court is satisfied that exceptional reasons exist, and it is proper to do so having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of that Act. Although the test to be applied has been expressed in different ways, the essential question is whether the appellant has demonstrated a strongly arguable case on appeal, giving rise to real concern that the appellant would suffer injustice by having been kept in custody on an unsound conviction.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
Background
As I have already observed, the appellant was convicted after trial of one count of unlawful detention and one count of aggravated sexual penetration without consent. The jury returned majority verdicts in relation to both charges. The nature of the prosecution case emerges from the trial judge's sentencing remarks, which can be summarised as follows.
The appellant met the complainant by coincidence a few months before the offences occurred, when the complainant's father offered the appellant a lift from a train station. On the morning of the day on which the offences were committed, the appellant obtained the complainant's telephone number from her father, and they exchanged several messages. Later that night the appellant offered the complainant a place to stay. They met at a train station and then walked back to where the appellant was living, which was a bedroom in a shed at the back of a property.
Shortly after arriving at the appellant's room, he began to behave strangely, including by swinging around a samurai sword that he had in his room. When the complainant asked to leave the appellant said 'no'. The complainant managed to send a message to one of her friends who offered to get her an Uber, but when the complainant told the appellant that this is what she was doing he grabbed the phone out of her hand.
While the complainant was in the appellant's room there was another woman who was asleep on his bed. The appellant demanded that the complainant go to bed and so she lay down next to the other woman. While she was lying on the bed the complainant could hear that the appellant was watching a violent film or films. At one point, the appellant picked up a replica gun and put it next to her head where she was lying on the bed. The complainant did not know whether the gun was real. The sentencing judge found that the appellant did this to facilitate his desire to sexually penetrate the complainant without her consent.
The appellant got into bed between the complainant and the other woman, who was still asleep. He pulled down the complainant's pants and underwear, and then started to rub her vagina with his hand. The appellant then penetrated her vagina with his penis. The complainant did not consent to this act of sexual penetration. The complainant was not sure whether the appellant ejaculated, but the trial judge found that he had not. The complainant was crying while this was occurring, but the appellant told her to be quiet. In the morning, after the complainant woke up, she again asked if she could leave and this time the appellant said that she could. She left and went to the train station, and the police were then called.
The trial judge was not prepared to find that the offending was planned. He considered that it was opportunistic and that the appellant took advantage of the complainant's vulnerability.
The appellant did not give evidence at his trial. His defence was, in essence, that the prosecution had not proved that he was guilty of any of the offences to the required standard. The defence argued that for several reasons the complainant was not credible or reliable, and that her evidence should not satisfy the jury of the appellant's guilt beyond reasonable doubt.
The appeal
The appellant is unrepresented. As I have already mentioned, there are 40 grounds of appeal set out in the appeal notice. However, in the purported appellant's case, the appellant relies on four grounds of appeal.
The first ground of appeal asserts that evidence was wrongly admitted at trial. Specifically, the appellant says that some photographs of an item alleged to have been a samurai sword, as well as medical evidence about bruises, were wrongly admitted.
By the second ground the appellant asserts that the jury's verdicts were unreasonable or cannot be supported having regard to the evidence. This ground is supported by approximately 46 particulars, most of which comprise detailed propositions about aspects of the evidence adduced at trial, with a particular focus on issues said to concern the complainant's credibility.
The third ground asserts that the trial judge made a wrong decision on a question of law by failing to direct the jury on a defence that was available to the appellant on the evidence. Specifically, by this ground the appellant contends that the trial judge failed to direct the jury to consider the defence of 'diminished responsibility' or insanity. In the alternative, the appellant complains that his counsel failed to raise these defences, which occasioned a miscarriage of justice.
In the context of the fourth ground the appellant complains that a miscarriage of justice was occasioned. Again, the appellant relies on several particulars in which he makes various allegations about the conduct of his trial counsel before and during his trial, and contends that he was provided with inadequate disclosure by the prosecution. He also complains that he did not give evidence at his trial, that he did not consent to majority verdicts, that certain evidence was wrongfully admitted at his trial. He also says that that the conditions under which he was detained after his bail was revoked rendered his trial unfair.
Merits of the application
As the appeal is yet to be heard, my ability to reach considered views about the merits of the appellant's grounds of appeal is obviously limited. Further, any opinions expressed by me at this stage can only be preliminary in nature. My assessment of the appellant's grounds of appeal is based on what is set out in the appellant's case that has now been accepted for filing.
Insofar as the appellant contends that certain evidence was wrongfully admitted at his trial, in particular, photographic evidence of some items that were found in his bedroom and evidence that was given by a doctor from the Sexual Assault Resource Centre about bruising that was observed on the complainant's body, on my review of the transcript of the trial none of that evidence was objected to. Accordingly, it is likely that it will be necessary for the appellant to demonstrate that not only was the evidence technically inadmissible, but also that there was no rational forensic reason for the absence of any objection. Further, the appellant will need to satisfy the court that the evidence occasioned him material prejudice.[2] Quite clearly, the resolution of all these issues will require this court to conduct a detailed examination of the trial record. It is not possible at this stage, in the context of a bail application, to reach any firm conclusions about what the outcome of that examination will be. In any event, I am not convinced that it is strongly arguable that the evidence relied on by the appellant was wrongly admitted at his trial or that a miscarriage of justice was thereby occasioned.
[2] RKT v The State of Western Australia[2017] WASCA 13 [50] ‑ [52].
A similar observation can be made in the context of the appellant's ground of appeal that the verdicts were unreasonable and cannot be supported. Resolution of that ground will require this court to carry out its own independent assessment of all the evidence that was adduced at the appellant's trial in order to determine whether it thinks that upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty, having regard to the advantages the jury had in seeing and hearing the evidence.[3] In that regard I note that the prosecution case at trial relied heavily on the jury's assessment of the complainant's credibility and reliability, and the jury had the advantage of having seen and heard her give evidence. Having considered all the matters raised by the appellant I am not currently persuaded that the appellant has demonstrated that it is strongly arguable that the jury's verdicts were unreasonable or that they cannot be supported by the evidence.
[3] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [16] - [17].
To the extent that the appellant complains that a miscarriage of justice was occasioned by the conduct of his counsel, including conduct that relates to the appellant's decision not to give evidence, and because of inadequate disclosure, many of the appellant's allegations are not currently supported by any admissible evidence and none of them have been tested by the respondent. In any event, when a ground of appeal asserts that a miscarriage of justice was occasioned by the conduct of counsel, the focus of inquiry is on whether the conduct deprived the accused of a fair trial, or whether it amounted to a material irregularity that caused or contributed to a miscarriage of justice. The court will also be concerned with whether there is any rational explanation for counsel's conduct. It is plainly not possible for me to reach views about how those issues are likely to be resolved in the context of a bail application.
The appellant also contends that a miscarriage of justice was occasioned because his counsel 'rejected [his] right to not entertain a majority verdict'. Based on my review of the transcript, the trial judge directed the jury that he would take verdicts from the jury if 10 or more of the members of the jury were agreed on those verdicts. My preliminary view is that this decision appeared to have been made in accordance with s 114 of the Criminal Procedure Act 2004 (WA), which effectively enables a verdict to be taken based on a decision of 10 or more jurors, provided they have deliberated for at least three hours and have not arrived at a unanimous verdict. Importantly, the operation of s 114 does not depend on the consent of either an accused or the prosecution. This ground is not strongly arguable.
The appellant's complaint that the trial judge, or his counsel, failed to 'raise' the defences of 'diminished responsibility' or insanity is not strongly arguable for at least two reasons. Firstly, the defence of 'diminished responsibility' is not available in this jurisdiction. Secondly, there was no evidence adduced at the appellant's trial that was capable of satisfying the appellant's onus of overcoming the presumption of sanity, provided for in s 26 of the Code, or that he was in a state of mental impairment for the purposes of s 27 of the Code.
I have considered all the material relied on by the appellant in support of this application for bail, including the two emails that were sent to the court after the hearing of the application for bail, and I have given close consideration to what the appellant said at the hearing. I have also taken into account the fact that the appellant is eligible for parole, and may be released in or about November 2026, but note that there is no risk that he may serve all or indeed a substantial proportion of his non‑parole period before the appeal is heard and determined. I also recognise that the appellant has experienced and continues to experience difficulties because of his incarceration, including difficulties in preparing the various documents that are necessary for his appeal. However, at this stage, I am not satisfied that there are exceptional reasons that justify a grant of bail. It follows from this that I would dismiss the appellant's application for bail.
Even if I were satisfied that the appellant had demonstrated that there were exceptional reasons that justified a grant of bail, it would be necessary for me to then decide whether it would 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. In that regard, I note that the appellant has a poor record of complying with bail. He breached a condition of his home detention bail in the lead up to his trial in the District Court, which meant that bail was then revoked. Bail was breached because the appellant provided a positive urinalysis result to methylamphetamine.
Further, as counsel for the respondent noted in his written submissions, the appellant has numerous prior convictions, including three convictions for breach of bail (including two breaches of protective bail conditions), three convictions for breaching a family violence restraining order, one conviction for breaching a community‑based order, and one conviction for breaching an intensive supervision order. He also has numerous convictions for giving false personal details to police.
Based on this history, I am far from persuaded that it would be proper to release the appellant on bail. Bearing in mind that the appellant has been convicted of serious offences and has now been sentenced to serve a substantial term of imprisonment, I am of the view there are no conditions that could be imposed that would sufficiently overcome the risk that the appellant may not appear at the hearing of the appeal or that he may commit an offence while on bail.
Conclusion
The application for bail is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Hon Justice Vandongen
17 OCTOBER 2023
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