MEN v The State of Western Australia
[2019] WASCA 219
•13 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MEN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 219
CORAM: MAZZA JA
HEARD: 29 NOVEMBER 2019
DELIVERED : 6 DECEMBER 2019
PUBLISHED : 13 MAY 2020
FILE NO/S: CACR 142 of 2019
BETWEEN: MEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 143 of 2019
BETWEEN: TNN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1380 of 2018
Catchwords:
Criminal law and procedure - Bail - Applications for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Children and Community Services Act 2004 (WA), s 28(1)
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 40(1)(h)
Criminal Code (WA), s 333
Result:
Applications dismissed
Category: B
Representation:
CACR 142 of 2019
Counsel:
| Appellant | : | T F Percy QC |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Butcher Paull & Calder |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 143 of 2019
Counsel:
| Appellant | : | M T Trowell QC |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Monaghan Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
MAZZA JA:
On 6 December 2019, I dismissed MEN's application, filed 8 November 2019, for bail pending appeal and, in the alternative, an urgent appeal order. I also dismissed his application, filed 29 November 2019, seeking a report from the trial judge pursuant to s 40(1)(h) of the Criminal Appeals Act2004 (WA). Also on 6 December, I dismissed TNN's application, filed 4 November 2019, for bail pending appeal and, in the alternative, an urgent appeal order. I said that I would publish my reasons for doing so at a later date. These are my reasons.
Background
The appellants are a married couple. They have three adult children and two adopted daughters. At all relevant times, the adopted daughters lived with the appellants on a property. The complainant is one of their adopted daughters. On 21 June 2019, after a 12‑day trial before Troy DCJ and a jury, the appellants were both found guilty of one count of engaging in conduct knowing that it may result in the complainant suffering harm as a result of emotional abuse or neglect, contrary to s 28(1) of the Children and Community Services Act 2004 (WA) (count 1), and unlawfully detaining the complainant, contrary to s 333 of the Criminal Code (WA) (count 3).
On 4 September 2019, his Honour sentenced each of the appellants to 4 years' immediate imprisonment on count 1 and 12 months' immediate imprisonment on count 3, to be served concurrently. Thus, the total effective sentence imposed on each appellant was 4 years' immediate imprisonment. Each appellant was made eligible for parole. Their earliest date for release on parole is on or about 4 September 2021.
The appellants have only appealed against their convictions. MEN relies on one ground, being that the verdicts of guilty were unreasonable and cannot be supported on the evidence: s 30(3)(a) of the Criminal Appeals Act.[1] TNN originally relied on three grounds. At the hearing before me, ground 3 was abandoned.[2] The two remaining grounds respectively allege that the verdicts were unreasonable and cannot be supported on the evidence (ground 1) and that the trial judge erred in law by failing to give an adequate Liberato[3] direction (ground 2).[4]
[1] MEN WAB 2.
[2] Bail ts 21.
[3] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[4] TNN WAB 2 - 3.
The State's case at trial relied, in large part, upon the evidence of the complainant. It was alleged that, between 1 February 2016 and 11 September 2017, the appellants abused and neglected the complainant, who suffered physical and emotional harm as a result. The State's case on count 1 relied on seven particulars. The trial judge took special verdicts in relation to these particulars. The jury found that all of the particulars, save for particular 6, had been proven. The proven particulars were to the following effect:
(a)The appellants repeatedly physically assaulted the complainant with and without objects.
(b)The appellants required, directed or permitted the complainant to largely live outside the family home, including by requiring her to periodically be locked in a sea container overnight without adequate bedding, lighting and heating. Further, the complainant was required on occasions to eat meals outside the family home and was not provided with adequate bathing or toilet facilities so as to enable an acceptable level of personal hygiene.
(c)During 2016, the appellants required or permitted the complainant to attend school wet with urine or smelling of urine.
(d)The appellants excluded the complainant from family, recreational or social outings.
(e)The appellants did not permit the complainant to talk to her adopted sister.
(f)Both appellants verbally abused the complainant by threatening her and calling her names.
In addition to the complainant, the State called 12 witnesses, including persons who corroborated one or some of the particulars referred to above, as well as officers from the Department of Child Protection and the investigating police officers.
The appellants effectively ran a joint defence. Each of the appellants testified in their defence, denying all of the allegations made by the complainant. They alleged that the complainant did not bond very well with their family and was very troubled. Evidence was adduced from the appellants' adult children and the complainant's adopted sister to contradict aspects of the complainant's testimony. Character witnesses were called, who attested to the good character of each appellant. The appellants claimed that the evidence of the case workers from the Department of Child Protection was inherently unreliable. Ultimately, the defence case for each appellant was that the complainant's testimony was simply incapable of belief to the requisite standard, having regard to the totality of the evidence.
The appellants' submissions in support of bail
In support of MEN's application for bail pending appeal, senior counsel submitted that the convictions were 'perverse'.[5] Senior counsel submitted that an examination of the complainant's evidence revealed that her testimony was inherently implausible, marked by internal contradictions and contradictions between her testimony, on the one hand, and the testimony of the appellants and other family members, on the other.[6] In the course of submissions, senior counsel for MEN drew my attention to observations by the trial judge, after the pre‑recorded evidence of the complainant had been shown to the jury and later in the trial. These were said, on behalf of MEN, to amount to an invitation to the State to review and reassess whether it was appropriate for it to proceed further with the prosecution.[7]
[5] Bail ts 3.
[6] Bail ts 4.
[7] Trial ts 269, 863 ‑ 864.
Senior counsel for TNN, in substance, echoed the submissions made on behalf of MEN. He asserted that a unique or, as he put it, 'unusual' feature of the case was that the complainant's testimony was not only directly contradicted by the appellants, but also by her siblings.[8]
[8] Bail ts 16.
In addition to the internal conflicts in the complainant's evidence and the conflicts between the complainant's evidence and the evidence of the witnesses called by the defence, both appellants submitted that the demeanour of the complainant, as shown in her pre‑recorded evidence, demonstrated a lack of credibility.
Further, it was submitted that there was in fact limited evidence which corroborated the complainant's allegations. For example, it was submitted that there was no evidence that the complainant was malnourished or mistreated, nor any medical or other evidence to support the allegations that she was assaulted.
Both counsel submitted that the ground alleging that the verdicts were unreasonable and could not be supported on the evidence was strongly arguable and constituted an exceptional reason for a grant of bail pending appeal.
Senior counsel for TNN also submitted that ground 2 in her appeal was strongly arguable, although he did not strongly press this point.[9]
[9] Bail ts 18 - 20.
On behalf of the respondent, it was submitted that, while at times the complainant's presentation in her pre‑recorded evidence was 'idiosyncratic',[10] there was nothing about the manner in which she gave her evidence, or the evidence itself, which must have compelled the jury to entertain a reasonable doubt as to the guilt of each appellant. The respondent submitted that, contrary to the submissions put on behalf of each appellant, there was significant evidence at trial which (1) corroborated the complainant's account generally, and (2) was inconsistent with the appellants' evidence. Further, it was said, on behalf of the respondent, that there were significant internal inconsistencies in the evidence of the appellants where that evidence extended beyond bare denials. Moreover, counsel for the respondent submitted that there were significant inconsistencies in the evidence of the appellants' adult children. As to the evidence of the complainant's sister which was contradictory to that of the complainant, it was submitted, in effect, that her credibility was adversely affected by her dependency upon the appellants and other aspects of their relationship.
[10] Respondent's submissions, par 13.
The respondent submitted that the appeal ground common to each appellant, namely, that the verdicts were unreasonable and could not be supported on the evidence, was not strongly arguable. The respondent made the same submission in respect of ground 2 of TNN's appeal.
Legal principles - bail pending appeal
The legal principles applicable to an application for bail pending appeal are well established. Clause 4A of pt C of sch 1 of the Bail Act 1982 (WA) creates a rebuttable statutory presumption against a grant of bail pending an appeal. A judicial officer shall only grant bail if he or she is satisfied that there are 'exceptional reasons why the appellant should not be kept in custody' and it is otherwise an appropriate case for the grant of bail. What constitutes 'exceptional reasons' in a particular case may vary according to the facts and circumstances of that case. In respect of these applications, as in most cases, the focus of the inquiry must be on the merits of the appeal. An appellant must show, without detailed argument, that the grounds are strongly arguable. This formulation is predicated on the notion that the prospects of the appeal succeeding must be sufficiently high to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction.
Disposition
The principles governing a ground of appeal which alleges that a guilty verdict is unreasonable or cannot be supported by the evidence are well‑established and have been stated on many occasions in this court. Such statements derive from the High Court authority of M v The Queen[11] and other cases decided by that Court, including such recent cases as SKA v The Queen[12] and R v Baden‑Clay.[13]
[11] M v The Queen [1994] HCA 63; (1994) 181 CLR 487.
[12] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400.
[13] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308.
It is enough for present purposes to say that it is a serious step, which is not to be taken without regard to the advantage enjoyed by the jury over an appeal court which has not seen or heard the witnesses called at trial, to set aside a jury's verdict on the ground that it is unreasonable or cannot be supported by the evidence. The question for an appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. This question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt as to the accused's guilt.
It is clear from the parties' submissions that the merit of the ground of appeal which alleges that the verdicts were unreasonable or cannot be supported by the evidence will require a very detailed analysis of all of the evidence adduced in the trial. As the parties accepted, it is inappropriate in an application for bail pending appeal to undertake the kind of granular analysis which occurs at the hearing of an appeal. At present, the submissions amount to little more than assertion and counter‑assertion as to the merit of the ground. In these circumstances, I am not persuaded that the ground of appeal alleging that the verdicts were unreasonable is strongly arguable. This is not to say that I have formed a view that the ground is without prospects of success. It may be that the merit of the ground will become more apparent once the appeal is fully argued.
With respect to ground 2 of TNN's appeal, I am not presently persuaded that it is strongly arguable.
Given that the grounds of appeal do not reach the requisite threshold of being strongly arguable, I am not satisfied that exceptional reasons exist for a grant of bail pending appeal. Accordingly, the applications for bail pending appeal were dismissed. I also refused the applications for an urgent appeal order in each appeal. I see no reason to prioritise these appeals over other matters awaiting a full hearing.
MEN's application for a report by the trial judge
In the course of oral argument with respect to MEN's application for bail pending appeal, senior counsel foreshadowed an application for an order requiring the trial judge to supply a report to this court. As no notice of the application had been given to the respondent, I informed senior counsel that, if the application was to be maintained, a written application had to be filed. It was agreed that the application could be determined on the papers.
On 29 November 2019, an application was filed on behalf of MEN, seeking the following order:
An order that the Court request a report from the learned trial judge pursuant to section 40(1)(h) of the Criminal Appeals Act2004 (WA) seeking the learned trial judge's observations on:
(a)The outcome of the trial generally;
(b)The credibility of the witnesses, including the complainant and [the complainant's sister]; and
(c)Any other relevant observations that his Honour considers might be of assistance to the Court of Appeal.
The application was supported by an affidavit sworn by Stephen Butcher on 29 November 2019.
On 6 December 2019, I dismissed the application for a report. I said that I would publish my reasons at a later date. Here are those reasons.
Section 40(1)(h) of the Criminal Appeals Act provides that an appeal court may require the person or persons who constituted the lower court to supply a report about the decision, the case in which it was made or any aspect of either.
The question of whether the verdicts of guilty were unreasonable or cannot be supported on the evidence is a matter to be determined solely by this court on the record of the primary court. The views or opinions of the trial judge as to the outcome or the credibility of witnesses are irrelevant. There would be no purpose in requiring the trial judge to provide such a report. Accordingly, the application was dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza13 MAY 2020
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