Mna v The State of Western Australia
[2020] WASCA 12
•30 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MNA -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 12
CORAM: MAZZA JA
HEARD: 15 JANUARY 2020
DELIVERED : 15 JANUARY 2020
PUBLISHED : 30 JANUARY 2020
FILE NO/S: CACR 55 of 2019
BETWEEN: MNA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 36 of 2018
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Evidence Act 1906 (WA), s 31A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr A G Elliott |
| Respondent | : | Ms M M Yeung |
Solicitors:
| Appellant | : | Timpano Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Palmer v R (1998) 193 CLR 1
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Before me is the appellant's application filed on 19 December 2019 for bail, pending his appeal against conviction. The application is made pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA).
The relevant background is as follows. The appellant stood trial before Birmingham DCJ and a jury in the District Court on an indictment alleging two counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA), and two counts of indecently dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Criminal Code.
The appellant was found guilty of one count of indecently dealing with a child under the age of 13 years (count 2) and one count of indecently dealing with a child over the age of 13 years and under the age of 16 years (count 4). He was acquitted of counts 1 and 3.
The victims are sisters. The appellant was a trusted family friend. Count 2 concerned M, who was 12 years of age at the time of the offending. It was alleged that the appellant touched her on the vaginal area while they were sitting together in the theatre room of M's house.
Count 4 concerned B, who was 14 years of age at the time of the offending. It was alleged that while the appellant was sitting next to B in the theatre room, he crossed his arms and touched the victim on the side of her breast.
Both M and B gave evidence of uncharged occasions when the appellant had indecently touched them. In addition to this evidence, the prosecution led evidence of complaints by both M and B to their parents. The prosecution also adduced propensity evidence, pursuant to s 31A of the Evidence Act 1906 (WA), being the appellant's convictions in 2014 for two offences of using electronic communication with the intent to procure a person he believed to be under the age of 16 to engage in sexual activity. In his evidence, the appellant denied all of the allegations against him.
On 5 April 2019, his Honour sentenced the appellant to 2 years' immediate imprisonment on count 2, and 6 months' (reduced from 9 months for totality) immediate imprisonment on count 4. The sentences were ordered to be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 2 years and 6 months' immediate imprisonment. The appellant was made eligible for parole. This sentence commenced on 5 April 2019. The earliest date upon which the appellant could be released on parole is on or about 5 July 2020.
The appellant filed his notice of appeal on 26 April 2019. His appellant's case was not filed until 18 October 2019. The appellant seeks to advance four grounds of appeal. Ground 1 alleges that the learned trial judge erred in law by admitting the complaint evidence of M and B as evidence of recent complaint. Ground 2 alleges that the learned trial judge erred in law by failing to give the jury a direction in accordance with Palmer v R.[1] Ground 3 alleges that the learned trial judge erred in law by admitting the appellant's prior convictions as propensity evidence, and by directing that the propensity evidence could be used in the same manner as the appellant's uncharged acts. Ground 4 alleges that, even if the court is not persuaded that any of the matters set out in grounds 1 to 3 have individually led to a miscarriage of justice, the accumulation of them should lead to that conclusion.
[1] Palmer v R (1998) 193 CLR 1.
In support of the application for bail pending appeal, the appellant essentially relies upon two propositions. First, that the grounds of appeal, in particular, grounds 2 and 3, are strongly arguable. Secondly, that if bail is not granted and his appeal succeeds, given the date of the hearing, 6 April 2020, and that the appellant's earliest eligibility date for release on parole is in early July 2020, the appeal would be largely, if not completely, nugatory.
The respondent opposes the application for bail. The respondent submits that none of the grounds of appeal are strongly arguable. Further, it is submitted that there are no further exceptional reasons why bail should be granted. The respondent notes that the appellant substantially delayed filing his appellant's case, and if the appellant was successful in his appeal, the fact that he has served a significant portion of the non‑parole period of his sentence is largely a situation of his own making.
The legal principles applicable to this application are uncontroversial. Clause 4A of pt C sch 1 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 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 of that case. But in this case, as in the ordinary case, the focus of the inquiry must be on the merits of the appeal. The appellant must show, without detailed argument, that the grounds are strongly arguable. This formulation is predicated on the notion that the prospects of an 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.
At this point in the proceedings it is not appropriate that I attempt a detailed analysis of the merits of the grounds of appeal. This is particularly so with respect to ground 2, which counsel for the appellant has described as an 'unorthodox' application of the principles in Palmer v R.
At this point in time, and on a preliminary basis, I have not been persuaded that the grounds meet the test of being strongly arguable. This, I stress, is a preliminary view, which may ultimately change after hearing full argument.
In relation to the argument that by the time the appeal is heard and determined the appellant would have served or largely served the non‑parole period of his sentence, I accept the respondent's submission that this is largely a situation of the appellant's own making. On the facts, it does not by itself, or in combination, constitute an exceptional circumstance. No doubt, when the appeal is heard on 6 April 2020, the court will be aware of the appellant's earliest eligibility date and will endeavour to deliver judgment as quickly as possible.
For all of these reasons, I am not satisfied that exceptional reasons exist for a grant of bail pending appeal. The application must be dismissed.
The order that I make is as follows:
(1)The application for bail pending appeal filed on 19 December 2019 is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza30 JANUARY 2020