Pollard v The State of Western Australia

[2017] WASCA 198

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   POLLARD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 198

CORAM:   MAZZA JA

HEARD:   20 OCTOBER 2017

DELIVERED          :   20 OCTOBER 2017

PUBLISHED           :  26 OCTOBER 2017

FILE NO/S:   CACR 168 of 2017

BETWEEN:   ANGELA JANE POLLARD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND 1255 of 2016

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 4A

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms F A Cain

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Felicity Cain Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

Edwards v The Queen (1993) 178 CLR 193

Muller v The State of Western Australia [2014] WASCA 81

MAZZA JA: 

(These reasons were delivered extemporaneously and have been edited from the transcript.)

1. Before me for determination is the appellant's application filed 10 October 2017 for bail pending her appeal against conviction pursuant to cl 4A pt C sch 1 of the Bail Act 1982 (WA). Bail pending appeal can only be granted if exceptional reasons exist and it would otherwise be appropriate to grant bail.

2. The appellant was convicted after trial before a judge and jury in the District Court of two counts of robbery in company.  On 8 February 2017 she was sentenced to a total effective sentence of 3 years' immediate imprisonment with eligibility for parole, to commence on 19 January 2017.  Accordingly, the earliest date upon which the appellant could be released on parole is 19 July 2018.

3. The appeal was filed approximately 5 1/2 months out of time.  On the same day that the appellant filed the application for bail pending appeal she also filed her appellant's case.  The appellant relies on one ground of appeal.  In essence, it is alleged that fresh evidence shows that she has suffered a miscarriage of justice.  This evidence is contained in affidavits sworn by the appellant, Karla Ugle, Candice Robins, and O'Shea McCullim-Perawiti.  The appellant has applied to adduce this material as additional evidence in this appeal. 

4. The effect of the claimed fresh evidence is that the appellant, Ms Ugle, Ms Robins and Ms McCullim-Perawiti, all heard Alysha Allen, a State witness at the appellant's trial, say that the evidence she gave at that trial was false.  Further, Ms Allen has allegedly written a note stating that she lied in her testimony and that the appellant was not, as she put it, 'part of the robbery'.  The note, said to have been written by Ms Allen, is annexed to the affidavits of the appellant and Ms Ugle.  No affidavit has been sworn by Ms Allen.  The evidence adduced at trial has not yet been analysed in detail by the appellant in any of the material filed, other than in a fairly general way. 

5. According to the appellant, the State's case against her was that she knowingly aided Ms Allen, Douglas Howard and an unidentified co‑offender in the robbery of two complainants, MB and WA. 

6. The State's case was that MB was invited to the appellant's house to engage in sexual contact with Ms Allen for payment via an online dating application.  WA drove MB to the appellant's house.  There, WA was threatened with violence by Mr Howard and the unidentified co‑offender and items of property were stolen from him.  Mr Howard or the unidentified co‑offender punched MB and stole property from him.  According to the State, MB and WA were forced to leave the appellant's house on foot.  The appellant and the three co‑offenders then drove away in WA's car and used the complainant's credit cards to buy goods at a service station.

7. The State's case was that the appellant's role in the offences was to prevent MB and WA from leaving her house during the course of the robberies.  Ms Allen testified to the effect that the appellant physically prevented MB from leaving.  She also said that she and the appellant had been involved in the planning of the alleged robberies.  Ms Allen further testified that she and the appellant had previously engaged in a ruse to refuse to return the money of men who were about to take up the offer of Ms Allen's prostitution services.  The appellant claims that Ms Allen was a significant prosecution witness. 

8. The defence case at trial was that the appellant was not an aider.  Before me, the State submitted that its case against the appellant did not rely on the testimony of Ms Allen alone.  The State contended that its case against the appellant also comprised the testimony of Mr Howard, the two complainants, a witness present during the alleged offending, Ms Rebecca Greco, photographs, CCTV footage, mobile telephone downloads, bank documents, as well as admissions against interest made by the appellant by police during the course of interviews, including Edwards lies.[1]  The State asserted that Ms Allen's evidence was consistent with the other evidence that it had adduced. 

   [1] Edwards v The Queen (1993) 178 CLR 193.

9. The appellant submitted that the exceptional reasons which justify a grant of bail are the strength of the proposed ground of appeal and that a substantial part of the sentence would be served prior to the determination of the appeal.

10. As to the merits of the appeal, both parties referred to the decision of this court in Muller v The State of Western Australia.[2]  While there are some features of Muller which bear some similarity to the present case, there are also some significant differences.  What is evident from Muller is that, to ascertain the merits of an appeal such as the one brought by the appellant, this court is required to assess the cogency of the fresh evidence, as well as give close consideration to all of the evidence that was adduced at the trial.

    [2] Muller v The State of Western Australia [2014] WASCA 81.

11. This can only practically be considered after an appeal hearing at which the relevant witnesses testify and the trial record is examined.  At this early stage, and on a preliminary basis, it is not possible for me to conclude that the proposed ground of appeal has strong prospects of success.  As to the submission made by the appellant that a substantial part of her sentence will be served prior to the hearing of the appeal, assuming this to be so, I do not regard this factor as sufficient to grant bail pending appeal. 

12. For these reasons, the application for bail pending appeal, filed 10 October 2017, must be dismissed, and I so order.