McCreed v The Queen - [2002] WASCA 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: McCREED -v- THE QUEEN [2002] WASCA 225

CORAM: PULLIN J

HEARD: 6 AUGUST 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: CCA 71 of 2002

BETWEEN: WILLIAM SAMUEL McCREED
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending hearing of appeal

Legislation:

Bail Act 1982, Sch 1 Pt C cl 14, cl 1, cl 3

Criminal Code (WA), s 702

Sentencing Act 1995, Pt 13, s 93

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms V A Prentice

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Black v The Queen (1993) 179 CLR 44
Caratti v The Queen [1999] WASCA 91
Ex parte Maher [1986] 1 Qd R 303
Mullally v The Queen [2000] WASCA 26
United Mexican States v Cabal [2001] HCA 60

Case(s) also cited:

Nil

PULLIN J: This application for bail comes before me as a single Judge exercising the powers of the Court of Criminal Appeal under the Criminal Code (WA), s 702. The applicant is a convicted person who has before the Court an application for extension of time for leave to appeal against his conviction. The application is therefore to be dealt with under the Bail Act 1982 Sch 1 Pt C cl 14, which requires the Judge who is to deal with such an application to consider whether "there are exceptional reasons why the defendant should not be kept in custody". Bail is only to be granted if the Judge is satisfied that that is so, and also that bail may properly be granted having regard to matters ordinarily applicable to the question of the grant or refusal of bail under cl 1 and cl 3 of the Schedule. In United Mexican States v Cabal [2001] HCA 60, the High Court said that it would only grant bail pending appeal if there were exceptional circumstances, and that this required two conditions to be satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal would be allowed. Second, that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. These are also the conditions which must be satisfied under cl 14. See Mullally v The Queen [2000] WASCA 26 at par 18, where the Court said:
"One matter raised is the fact that given the time of the year and the timing of the appeal against conviction, it would be unlikely to be disposed of, even if listed expeditiously, before the expiration of the major portion of the non-parole period of the appellant's sentence. That alone cannot be enough to constitute an exceptional circumstance: Robinson v R (1991) 65 ALJR 519 per Gaudron J at 519 - 520, but it may be enough in a case where it is possible for the court considering the grant of bail to conclude that there are such strongly arguable grounds of appeal as to enable the court, without finally determining the matter, to conclude that there are good prospects that the appeal against conviction is likely to be successful."
The application is supported by two affidavits by the applicant, the first dated 12 July 2002 and the second dated 29 July 2002.
In the latter part of the first of those affidavits, the applicant says that he is representing himself in his appeal as he has no money or assets to brief counsel. He states that if he were granted bail, he would be able to seek employment allowing him to earn an income which would allow him to engage counsel to represent him better than he believed he could himself. He says that he has no assets of any substantial value which would allow him to raise moneys to brief counsel.
This contention, namely that the applicant needs to be at liberty in order to be able to earn moneys to instruct counsel, is not one that in my view can weigh heavily in the determination of whether or not there are exceptional circumstances why the applicant should not be kept in custody. There will undoubtedly be inconvenience occasioned by the fact that the applicant is in custody whilst proceedings are on foot, but this fact of itself does not, in my view, amount to an exceptional reason why he should not be kept in custody: see Caratti v The Queen [1999] WASCA 91, per Miller J at [8]; Ex parte Maher [1986] 1 Qd R 303, per Thomas J at 313.
The applicant has served a substantial portion of his sentence. The applicant points out that he has served the non‑parole period of his sentence. The applicant says that must afford strong grounds for the application. It is to be noted, however, that although he has served his non‑parole period, he has not been granted parole.
It is at this point that I should refer to the convictions, the details of the sentences, and the reasons why he has not been granted parole.
In March 1996, the applicant was convicted of two groups of offences. The applicant was first tried in March 1996 in relation to indictment number 233 of 1995. The jury returned a verdict of guilty on all counts.
The applicant was then tried by Murray J and a jury in relation to indictment 153 of 1995. The applicant was found guilty on the counts referred to below.
On 29 March 1996, the applicant was sentenced to the following terms of imprisonment, all commencing on 29 March 1996:
Indictment number 233 of 1995
Count 1 – administering a drug with intent - 3 years' imprisonment
Count 2 – indecent assault - 1 year imprisonment to be served concurrently with count 1
Count 3 – aggravated sexual assault - 5 years' imprisonment to be served cumulatively on counts 1 and 2
Count 4 – aggravated sexual assault - 5 years' imprisonment to be served concurrently with counts 1, 2 and 3 (eligibility for parole in respect of each sentence imposed)
Total term of imprisonment – 8 years.
Indictment number 153 of 1995
Count 1 – aggravated sexual assault - 4 years' imprisonment to be served cumulatively upon sentences imposed on indictment number 233 of 1995
Count 2 – aggravated sexual assault - 4 years' imprisonment to be served concurrently with term imposed for count 1. (Eligibility for parole in respect of each sentence imposed).
Total term of imprisonment – 4 years.
This aggregate of 12 years' imprisonment, when subjected to the calculations to be carried out under Pt 13 of the Sentencing Act 1995, means that the release dates for the applicant in relation to the sentence would be as follows. The release date if he served the full term would be 28 March 2004. The eligible date for release on parole as a result of the application of s 93 of the Sentencing Act 1995 was 28 March 2002.
The applicant has exhibited two letters from the Parole Board of Western Australia indicating that the Parole Board has considered the applicant's case and has decided to defer release on parole. The first of the letters is dated 14 March 2002, which notes that the Board had deferred release on parole and decided to review that decision on receipt of an independent risk assessment by a psychologist no later than 11 July 2002. The Parole Board considered that there was a risk of re‑offending due to:
(a)criminal history including conviction for murder;
(b)history of substance abuse;
(c)unaddressed offending behaviour (sexual offending) – denial of two offences noted together with appeal;
(d)Judge's sentencing remarks noted which emphasised treatment needs prior to release;
(e)psychologist report of 1996 indicates a need for intensive sex offender treatment programme.
The next letter from the Parole Board dated 11 July 2002 revealed that the Board had considered the case and had again deferred release on parole. There would be a review on successful completion of a sex offender treatment programme no later than 13 March 2003. The reasons given for refusing to grant parole were that there was a risk of re‑offending due to the reasons given in the Board's decision of 14 March 2002, but in addition the Board referred to an independent psychological assessment stating the accused was "medium to high risk of re‑offending".
The main point repeated by the applicant in oral submissions was that he was made eligible for parole, that the parole release date had arrived, and that he should therefore be released on bail pending his appeal. The applicant did not seem to appreciate, however, that if the Parole Board had assessed him as being a proper candidate for release on parole, they would have made that determination and he would have been released on parole and there would have been no need for this application for bail.
The applicant argued strongly that among the reasons for the Parole Board's decision not to release him on parole was his denial of the two offences which are the subject of the appeal. However, even if that be ignored, the Board has given other reasons. Of most importance is the reason given by the Parole Board that it had an independent psychological assessment which revealed that there was a medium to high risk that the applicant would re‑offend if released on parole. That aspect militates against an order granting bail.
I now turn to consider whether there are strong grounds for concluding that the appeal will be allowed. In that regard, I note that an application for an extension of time in which to seek leave to appeal has been made because the applicant is more than five years out of time. The applicant explains his delay by saying that he suffered illness for part of the time, but that does not explain the long periods of time where nothing was done to consider whether an appeal should be instituted. He was represented by counsel at the trial. In effect, the applicant's only explanation, apart from delay caused by illness, is that early in September 2000 he came across a textbook, which led him to form the opinion that he might have grounds for appeal in relation to indictment number 153 of 1995.
After the applicant discovered the text book which led him to believe that he might have grounds of appeal, the applicant then moved with reasonable expedition, and he gives a detailed account of the reasons why there has been a delay since the year 2000 to the present time. However, that does not explain the lengthy period of time before he became ill in which he could have considered the possibility of an appeal.
Further, his application for an extension of time to appeal has to be considered against the background of a letter he wrote after conviction and before he was sentenced.
I have read the transcript of the proceedings on 29 March 1996, and it appears that the letter had not reached his Honour at the time submissions were made concerning penalty. The letter is still not on either of the files relating to the two indictments I have referred to. Counsel for the applicant handed up a facsimile, which is on file.
The letter commences:
"I have accepted the verdicts handed down and must now accept my fate."
Further down in the letter he says:
"I have prepared a submission to the Ministry of Justice requesting permission for a transfer to Bunbury after sentencing so that I may participate in the sex offenders course run there."
His counsel said about the letter:
"It does appear to fly in the face of everything that he said on the stand, that he pleaded not guilty and put these two women through the ordeal of coming to trial; but my instructions certainly are that it wasn't until that in fact happened – and until the verdicts came in and Mr McCreed went back to his cell on remand and thought about the matters – that he really realised that it was about time that he grew up and stopped trying to block out everything that had happened to him in the past, stopped trying to pass the buck and ignore what had happened." (See T168).
Counsel continue at T170 as follows:
"You will see that he expresses some feelings for what he has put these two women through and he is aware of the effect on them and the future effect on them and his suggestions as to how that might be fixed in the future. I think it is also significant that he has accepted that he does have not only a problem as such, but a problem in relation to women perhaps, in relation to the sexual nature of the offences and that he wishes to address those also."
As a result, the content of the letter and the long delay makes it unlikely, in my opinion, that an extension of time to appeal will be granted, and particularly so if the grounds of appeal are not strong
I now turn to consider the individual grounds of the proposed appeal. The first five grounds of appeal allege a reasonable apprehension of bias on the part of Murray J because he had in 1984, before he was appointed to the bench, acted as prosecutor of the applicant in relation to another offence tried in the Supreme Court at Kalgoorlie. This point was raised with Murray J before the trial of the counts in indictment number 153 of 1995. The applicant was represented by counsel, submissions were made, and his Honour dismissed the application asking that his Honour disqualify himself.
The applicant was therefore well aware of the issue, and it is unlikely that any extension would be granted to complain about his Honour's decision on that point. In any event, I consider that those grounds have no prospect of success – because his Honour's earlier involvement in another case as prosecutor could not, in my opinion, give rise to any reasonable apprehension of bias.
The fourth ground alleges actual bias because the trial Judge was said to have given an unfair and unbalanced summation "in favour of the complainant". This is not apparent on a reading of the transcript of his Honour's summing up.
Ground 5 complains about the Judge failing to warn the jury about lack of complaint at the first opportunity. In fact, the transcript reveals that his Honour did explain to the jury that they had to decide whether or not there had been delay in making the complaint and explained that a complaint was admissible if made at the first reasonable opportunity. In my view, that ground is unlikely to succeed.
As to his sixth ground, the applicant complains that the trial Judge erred when he directed the jury about majority verdicts at an inappropriate time in the proceedings. It seems that the jury had sent a message back to his Honour after two hours saying that they could not reach agreement and asking whether there could be any departure from unanimity. His Honour answered that question by telling them "at this stage of your deliberations the requirement of the law is that the verdicts which you reach must be unanimous, in which you all agree, whether verdicts of guilty or not guilty and in relation to each count on the indictment". His Honour then concluded "if the time does arrive and if the position does change so that there may be any relaxation to any degree of the requirement of unanimity, I would tell you about it, but the law requires at this stage of your deliberations that your verdicts be unanimous". In my view, that reveals no error.
In relation to grounds 7 to 9, there is a complaint about the trial Judge failing to give a direction in accordance with Black v The Queen (1993) 179 CLR 44. In my view, his Honour did give a direction along the lines of Black's case after he answered the questions of the jury which I have referred to above. In Black's case, the joint judgment sets out a model direction which a trial Judge should give. The High Court did not say it had to be precisely in accordance with the model set out in the judgment. It only has to be "along the … lines" of the model. In my view, Murray J's direction was a Black direction, even though the precise words of the model are not used.
Ground 10 claims a miscarriage of justice occurred because the applicant was depressed due to having been convicted on other charges in the Supreme Court the week before the trial, and due also to the dismissal of his application for his Honour to disqualify himself. The ground says that neither the trial Judge nor defence counsel "thought to enquire how the defendant felt … and whether the defendant was fit to continue". In my view, that ground is not likely to succeed.
Ground 11 is a repetition of the other grounds.
For all of the above reasons, I consider that there are no exceptional reasons why the defendant should not be kept in custody. As a result, the application for bail is refused.