Mitchell v The State of Western Australia
[2016] WASCA 15
•15 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MITCHELL -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 15
CORAM: MAZZA JA
HEARD: 23 DECEMBER 2015
DELIVERED : 23 DECEMBER 2015
PUBLISHED : 15 JANUARY 2016
FILE NO/S: CACR 167 of 2015
BETWEEN: STEPHEN ALFRED MITCHELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 411 of 2014
Catchwords:
Criminal law - Sexual offences - Appeal against conviction - Application for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Result:
Application dismissed
Expedited appeal order made
Category: B
Representation:
Counsel:
Appellant: Mr A P Skerritt
Respondent: Ms S E Wisbey
Solicitors:
Appellant: Andrew P Skerritt
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
MAZZA JA:
(This judgment was delivered extemporaneously on 23 December 2015 and has been edited from the transcript.)
Before the court is the appellant's application for bail pending his appeal against conviction filed on 9 December 2015. The application is made pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA).
The appellant was charged on indictment in the District Court with five counts of indecently dealing with a child under the age of 13 years. The complainants were his step‑grandchildren, boys A and B, and a girl G.
On 28 July 2015, following a seven-day trial before Fenbury DCJ and a jury, the appellant was convicted of counts 1, 3 and 5. He was acquitted of counts 2 and 4. Counts 1, 3 and 5 concerned the complainants A and B.
On 28 August 2015, the appellant was sentenced to a total effective sentence of 16 months' imprisonment with eligibility for parole. By my calculation, he will be eligible for parole on or about 28 April 2016.
On 16 September 2015, the appellant filed his appeal notice.
On 9 December 2015, the first appellant's case was filed.
A second appellant's case was filed on 22 December 2015. The second appellant's case relies upon three proposed grounds of appeal. They are as follows:
Ground 1
The failure of the appellant's counsel to fully cross-examine the complainants resulted in a miscarriage of justice.
Ground 2
The learned trial judge erred in law in refusing to allow the complainants to be recalled for further cross-examination.
Ground 3
The learned trial judge issued an inadequate direction to the jury in regard to the use of character evidence.
Leave to be appeal has not yet been granted in respect of these proposed grounds, although I intend to deal with the question of leave after I decide this application.
The legal principles with respect to bail pending appeal are well known and uncontroversial.
Clause 4A of the Bail Act 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 exists exceptional reasons why the appellant should not be kept in custody and it is otherwise an appropriate case for the grant of bail.
The decisive issue to be determined in this application is whether exceptional reasons exist for a grant of bail. What constitutes 'exceptional reasons' has been discussed in many cases decided in this court. The focus of the inquiry must be on the merits of the appeal.
The appellant must demonstrate that his proposed grounds of appeal are strongly arguable. However, there may be other factors, in addition to the assessment of the merits, which come into play. One such factor relevant to this case is where the appellant received a relatively short term of immediate imprisonment and, by the time the appeal is heard, it will be rendered nugatory, or substantially nugatory, if the appeal is successful.
Of course, it is not my function to decide the appeal and any assessment that I make as to the proposed grounds of appeal is a tentative one. However at the present time, based upon the arguments that have been put to me, and having read all of the materials referred to the court by counsel, I am not satisfied that any of the proposed grounds of appeal are strongly arguable. I would, therefore, dismiss the application for bail pending appeal. However, I am satisfied, because of the relatively short sentence that the appellant has to serve, that the appeal should be expedited.
0
0
1