Noormets v The State of Western Australia - [2021] WASCA 90

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NOORMETS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 90
CORAM:   BUSS P
MAZZA JA

HEARD:   3 MAY 2021
DELIVERED          :   3 MAY 2021
PUBLISHED           :   21 MAY 2021
FILE NO/S:   CACR 83 of 2020
BETWEEN:   LUKE EDWARD NOORMETS
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SWEENEY DCJ
File Number            :   IND 1851 of 2018

Catchwords:

Criminal law - Appeal against conviction - Bail pending the hearing of the appeal - Whether exceptional reasons why the appellant should not be kept in custody - Whether appeal strongly arguable - Turns on own facts

Legislation:

Bail Act1982 (WA)
Criminal Code (WA), s 304(2)(a)

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr M Gumbleton
Respondent	:	Mr B Murray

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74

REASONS OF THE COURT:

The appellant was charged on indictment with three counts.
Count 1 alleged that, on or about 12 June 2017, at Bayswater, the appellant, Steven Wayne Taylor and Jessica Lee Atkinson unlawfully detained Jack Ryan Tonta, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as count 1, the appellant, Mr Taylor and Ms Atkinson unlawfully assaulted Mr Tonta, and thereby did him bodily harm, contrary to s 317(1)(b) of the Code.
Count 3 alleged that, on the same date and at the same place as count 1, the appellant, Mr Taylor and Ms Atkinson, with intent to harm Mr Tonta, did an act as a result of which bodily harm was caused to Mr Tonta, contrary to s 304(2)(a) of the Code.
The appellant pleaded not guilty to each count.
On 12 August 2019, after a trial in the District Court before Sweeney DCJ and a jury, the appellant was convicted as charged on all counts.
On 20 September 2019, the trial judge sentenced the appellant to 3 years' immediate imprisonment on count 1, 2 years 6 months' immediate imprisonment on count 2, and 4 years' immediate imprisonment on count 3. The sentence for count 3 was ordered to be served cumulatively upon the sentence for count 1, and the sentence for count 2 was ordered to be served concurrently. The total effective sentence was therefore 7 years' imprisonment. The total effective sentence was backdated to 13 June 2017. A parole eligibility order was made.
The appellant has appealed against his conviction on count 3.
The appellant requires an extension of time within which to appeal. His appeal notice was filed on 17 June 2020, being 250 days out of time. The application for an extension of time has been referred to the hearing of the appeal.
The appeal has been listed for hearing on 27 August 2021.
By an application in an appeal dated 29 March 2021, the appellant applied for bail pending the hearing of his appeal. The application was heard on 3 May 2021. At the conclusion of the hearing, the court dismissed the application. We said that reasons for decision would be published at a later date. These are the reasons.

The grounds of appeal

The appellant seeks to appeal on two grounds.
Ground 1 alleges that the jury's verdict in relation to count 3 is unreasonable and not supported by the evidence. The State's case at trial on count 3 was that the appellant had doused Mr Tonta in petrol and had set him alight for about 30 seconds and had thereby caused burns to his legs. The appellant asserts, relevantly, in support of ground 1 that the evidence at the trial could not have satisfied a jury beyond reasonable doubt that the appellant set Mr Tonta alight, thereby causing him bodily damage.
Ground 2 alleges that there has been a miscarriage of justice because additional evidence, which the appellant seeks leave to adduce in the appeal, establishes that the appellant could not have committed the act necessary for a properly instructed jury to convict on count 3.

The State's case at trial

The State's case at trial was, in summary, as follows:
(a)The appellant arranged to meet Mr Tonta in Ashfield.
(b)The appellant struck Mr Tonta on the head with a torch, causing bleeding and blurred vision.
(c)The appellant forced Mr Tonta into the boot of a car.
(d)The appellant drove Mr Tonta to a factory in Bayswater.
(e)The appellant struck Mr Tonta multiple times on the head with the torch, while demanding money.
(f)The appellant tied Mr Tonta's hands and feet together with cable ties.
(g)The appellant doused Mr Tonta in petrol and set him alight for a short period (according to Mr Tonta for about 30 seconds), thereby causing burns to his legs (being count 3).
(h)The appellant used a fire extinguisher to extinguish the fire.
(i)The appellant placed a towel over Mr Tonta's mouth and 'waterboarded' him.
(j)The appellant left Mr Tonta in the boot of the car overnight.
(k)The following morning, Mr Tonta escaped. He was captured on CCTV footage leaving the factory.
(l)Mr Tonta sought assistance from a passer-by and was given assistance by another person.
(m)Police were called and Mr Tonta was taken to hospital. He was treated in hospital overnight. Count 3 was allegedly supported by photographs of burns to Mr Tonta's legs, especially behind his left knee.
(n)Mr Tonta's jeans were cut off after he suffered the burns. Photographs of the jeans, especially a black mark on the back of the jeans above the left knee, allegedly supported count 3.
The State did not tender the jeans as an exhibit. They were not tested for the presence of accelerant, fire damage or chemicals consistent with a fire having been extinguished.
Police located a fire extinguisher in the factory in Bayswater. However, the fire extinguisher was not analysed forensically.

The appellant's case at trial

The appellant gave evidence at the trial in his own defence.
The appellant's case was, in summary, as follows:
(a)The appellant met Mr Tonta in Ashfield to purchase drugs.
(b)The appellant did not strike Mr Tonta on the head at the meeting.
(c)Mr Tonta agreed to hide in the boot of the car.
(d)The appellant drove Mr Tonta to a factory in Bayswater.
(e)The appellant struck Mr Tonta with a piece of wood, after Mr Tonta had advanced upon the co-accused, Ms Atkinson.
(f)Mr Tonta tied his own hands and feet together with cable ties, after the appellant had threatened him with a piece of wood.
(g)The appellant never doused Mr Tonta in petrol and never set him alight (being the allegations in count 3).
(h)The appellant never used a fire extinguisher.
(i)The appellant never placed a towel over Mr Tonta's mouth.
(j)The appellant cut the cable ties from Mr Tonta before the appellant left the factory. Mr Tonta was asleep in the car.

The issues at trial in relation to count 3

At the trial, the appellant attacked Mr Tonta's credibility. The appellant adduced evidence of Mr Tonta's criminal convictions and his prior inconsistent statements.
A crucial fact in issue was whether the appellant had set Mr Tonta alight, after dousing him in petrol.
The appellant contended that photographs of Mr Tonta's jeans did not reveal any fire damage. The appellant also contended that the totality of the evidence did not support a finding that the jeans had been damaged by fire as alleged by Mr Tonta.
The appellant attacked the absence of any forensic testing of the jeans. He asserted that, in the absence of any forensic testing, the offence charged in count 3 could not be proven. It was impossible for the burns suffered by Mr Tonta to have been caused while Mr Tonta was wearing the jeans.
The appellant raised an alternative theory as to how Mr Tonta could have suffered the burns. Evidence was adduced that Mr Tonta was a convicted drug manufacturer. The appellant contended that Mr Tonta could have suffered the burns while manufacturing methylamphetamine.

The applications for leave to adduce additional evidence in the appeal

By an application in an appeal dated 15 February 2021, the appellant has applied for leave to adduce additional evidence in the appeal, being a report from James Munday.
By an application in an appeal dated 13 April 2021, the State has applied for leave to adduce additional evidence in the appeal, being the reports of Robert Dunsmore, Dr Kari Pitts, and Detective Sergeant Christiaan De Bruin.
Mr Munday concludes in his report, in effect, that Mr Tonta's jeans had not been ignited. The appellant contends that if Mr Tonta's jeans were not ignited, it was impossible for the appellant to have done the act which caused the bodily harm (namely, the burns to Mr Tonta's legs).
Detective Sergeant De Bruin's report states, in effect:
(a)In a scenario where petrol is poured onto denim jeans, ignited and immediately extinguished, it would not be unreasonable for there to be no evidence of combustion detectable on the material, as only the petrol vapours would have combusted on the initial ignition. The denim material would certainly quickly rise in temperature once ignited.
(b)The correct exhibit collection protocol for ignitable liquid accelerant samples is to store them in a cryovac bag to retain any form of ignitable liquid accelerant. In the present case, the jeans were not stored in this manner.

The appellant's application for bail pending the hearing of his appeal

As we have mentioned, by an application in an appeal dated 29 March 2021, the appellant applied for bail pending the hearing of his appeal.
The materials filed by the appellant in support of his application for bail included an affidavit of Georgia Rose Lyall affirmed 29 April 2021. However, at the hearing of the application, counsel for the appellant did not rely upon that affidavit in connection with the application.
Counsel for the appellant submitted that the application for bail pending the hearing of the appeal should be granted having regard to the following:
(a)The application for bail relies on ground 2 of the appeal; in particular, the assertion that a substantial miscarriage of justice has occurred assumes, for the purposes of the application, that the additional evidence sought to be put before this court on the appeal is new (as distinct from fresh) evidence.
(b)The focus of the application for bail is that 'if the [proposed additional] evidence be new evidence it would be received because [it is] so compelling and powerful that this court would accept it and accept that [the proposed additional evidence] identifies that an innocent person has been convicted' (ts 25).
(c)Counsel argued that, in circumstances where no fire damage had been caused to Mr Tonta's jeans, it was impossible that the burns he had suffered could have occurred as a result of his wearing those jeans when they were allegedly set on fire (ts 26 ‑ 27). Alternatively, there was no evidence to support the proposition that Mr Tonta's jeans could have been ignited, but not damaged by fire, and yet cause Mr Tonta's burns (ts 27).
(d)It was not an obstacle to the appellant's case on appeal that at the trial the appellant ran his case by relying upon the absence of any forensic examination of the jeans. According to counsel, the appellant's case on appeal is so cogent and reliable, and establishes that the appellant has been wrongfully convicted, so that the manner in which the appellant ran his case at trial does not stand in the way of this court allowing his appeal (ts 28).
(e)Counsel argued that 'there is no and there will be no expert opinion that the fumes or the vapour [of] the petrol could have combusted for a short period of time before being put out' (ts 29).
(f)In the absence of fire damage to the jeans, it could never have been proven that Mr Tonta's legs suffered burns in the manner alleged by the State (ts 31 ‑ 32).
(g)Accordingly, so it was submitted, the appellant's appeal is very likely to succeed because the burns suffered by Mr Tonta could not have been received when Mr Tonta was wearing the jeans.
(h)In those circumstances, irrespective of whether the additional evidence sought to be adduced by the appellant in the appeal is new or fresh evidence, and irrespective of the forensic decisions made by defence counsel at the trial, the appeal must be allowed because an innocent person has been convicted of count 3.
(i)The strength of the appellant's case on appeal constitutes an exceptional reason why he should not be kept in custody pending the hearing of the appeal.
(j)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 1982 (WA).
The State's case in the appeal and on the application for bail is, relevantly, as follows:
(a)The jury was entitled to reject the appellant's contention at the trial that Mr Tonta may have suffered the burns while he was manufacturing methylamphetamine.
(b)When Mr Tonta was observed by members of the public and by police officers on 13 June 2007, the burns were clearly visible. The police officers had to cut the jeans to prevent them from sticking to the burns. If the burns had occurred while Mr Tonta was not wearing the jeans, as the appellant alleges, Mr Tonta would have had to put the jeans on over his burnt legs.
(c)When the jeans were examined at PathWest, they were noted to have a very strong petrol odour.
(d)The jury had the benefit of hearing and seeing Mr Tonta give evidence, including his extensive cross-examination by each defence counsel representing each of the three co-accused. Although Mr Tonta said that he was alight for about 30 seconds before the appellant extinguished the flames, the jury was entitled to approach this evidence in a common sense manner, rather than treating Mr Tonta's evidence as a literal statement of the time the petrol was alight. Estimates of time in these circumstances are notoriously unreliable.
(e)Although the burns suffered by Mr Tonta would have been painful, they were not extensive.
(f)The jury, by their verdicts, regarded Mr Tonta's evidence as truthful and reliable.
(g)Despite the manner in which Mr Tonta's jeans had been stored, partially evaporated petrol residue was detected. It is true that there was no evidence of fire damage to the jeans. However, the absence of fire damage would not be unexpected if the petrol vapours were lit and quickly extinguished before the jeans reached ignition temperature.
(h)The absence of fire damage to the jeans is consistent with the ignition of the petrol vapours, followed almost immediately by the extinguishment of the fire.
Both counsel for the appellant and counsel for the State indicated that, at this stage, cross-examination of the other party's proposed expert witness or witnesses may not be required. However, both counsel reserved their position on this issue.
The principles relating to the granting of bail pending the hearing or determination of an appeal are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must 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. See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, we have evaluated the appellant's application for bail having regard to whether ground 2 of his appeal is strongly arguable.
We have examined the material and considered the submissions relied upon by the appellant in support of his application for bail.
We are not satisfied at this stage, and without the benefit of the full argument that will occur at the hearing of the appeal, that the merits of ground 2, including the merits of the appellant's submissions in support of ground 2, are of sufficient strength to justify a grant of bail.
In all the circumstances, we are not satisfied at this stage that there are exceptional reasons why the appellant should not be kept in custody.

Conclusion

For these reasons, the appellant's application for bail was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
21 MAY 2021