Re D B A
[2008] VSCA 138
•7 August 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 696 of 2006
| IN THE MATTER of the Bail Act 1977 DBA |
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JUDGES: | MAXWELL P and NETTLE JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 July 2008 | |
DATE OF REASONS: | 7 August 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 138 | |
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CRIMINAL LAW – Bail – Pending appeal – Whether exceptional circumstances – Whether appeal ‘bound to succeed’ - Likelihood that half of non-parole period will have expired before appeal heard – Bail refused – Re Zoudi (2006) 14 VR 580 referred to.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R L Gibson | Mr S Ward, Solicitor for Public Prosecutions |
| For the Respondent | Mr P G Priest QC with Mr S Gillespie-Jones | Ferraro Pruscino & Co |
MAXWELL P
NETTLE JA:
Following a trial in the County Court at Melbourne, on 22 May 2008 the applicant was convicted of two counts of incest. After a plea in mitigation of penalty, on 10 June 2008 he was sentenced to a total effective sentence of four years’ and six months’ imprisonment with a non-parole period of two years and three months.
On 20 June 2008 he filed notice of appeal against conviction alleging, inter alia, that:
1) The judge erred in preventing the applicant from leading evidence intended to impugn the character of the complainant.
2) A motive to lie having been put to the complainant in the course of her cross-examination, the judge erred in failing to direct the jury in accordance with the approach endorsed in Palmer v The Queen[1] that, if the jury rejected the motive to lie, it did not necessarily follow that the complainant was telling the truth; the prosecution still had to satisfy the jury of the truth of her testimony.
3) The judge erred in excluding evidence of a psychologist, Dr Gibb, called to prove that the complainant was prone to fantasizing about sexual matters.
[1](1998) 193 CLR 1, 10 [10].
Bail pending appeal will only be granted where exceptional circumstances are shown. In Re Zoudi[2] this Court held that, for the purposes of determining whether exceptional circumstances exist, it is relevant to consider the likely expiry of the non-parole period before the appeal is heard.[3] The Court went on to say:
Axiomatically, whether bail will be granted in a particular case will depend on all of the circumstances, of which the expiry of the non-parole period will only be one. There may be countervailing considerations, of the “unacceptable risk” variety, which mean that bail will be refused despite the fact that the non-parole period (or the suspended portion of a partly suspended sentence) will have expired before the appeal is heard. The question of whether the applicant can establish that he or she has reasonable prospects of success is another factor that must be considered. That is not to say that an application will fail because of the applicant’s inability to demonstrate the existence of such prospects. In some – perhaps many – cases, it will be difficult to make any meaningful assessment of the prospects of success.[4]
[2](2006) 14 VR 580.
[3]Ibid [4].
[4]Ibid [27] (citations omitted).
In Zoudi, unless bail pending appeal was granted the applicant would have served the entire non-parole period before his application could be heard and determined.[5] Taking into account a concession by the Crown that the appeal ‘was not without prospects of success’,[6] the Court concluded that the circumstances were sufficiently exceptional to warrant the grant of bail.[7]
[5]Ibid [38].
[6]Ibid [35]–[36].
[7]Ibid [40].
In the present case, the applicant relies on a different combination of factors. In the ordinary course of events, he will have served only about half of his non-parole period by the time his appeal against conviction is heard. He contends, however, that his appeal ‘will almost inevitably succeed’ and that this, together with the expiry of that portion of the non-parole period, is sufficient to render the case exceptional.
For reasons which follow, we have concluded that the application for bail should be refused.
Prospects of success
As to the chances of success on appeal, counsel puts as his strongest point that the trial judge refused to allow defence counsel to call the complainant’s former employer, Mrs B, to say that she had knowledge of the complainant’s general reputation for telling the truth and that she would not believe the complainant on her oath. In counsel’s submission, that evidence was admissible under the common law rule in R v Watson,[8] or at least under the rule as restated by the English Court of Appeal in Reg v Richardson,[9] as follows:
1. A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony.
2. The witness called to impeach the credibility of a previous witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving evidence merely of general reputation.
3. But whether his opinion as to the impugned witness’s credibility be based simply upon the latter’s general reputation for veracity or upon his personal knowledge, the witness cannot be permitted to indicate during his examination-in-chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them.
[8](1817) 2 Stark 116, 171 ER 591.
[9][1969] 1 QB 299, 304 (per Edmund Davies LJ).
In our view, there is force in counsel’s submission. (This is not the appeal and, consequently, we have not had the benefit of full argument on the point. Nothing we say about it, therefore, is intended to be final.) Cross[10] notes that the rule R v Watson can be traced back as far as 1664. Although ‘it became very rare, in practice, for this cumbersome, anomalous and unconvincing exercise to be conducted’, its continued availability was endorsed by a unanimous House of Lords in Toohey v Metropolitan Police Cmr[11] and expressly noticed by McHugh J in Palmer v The Queen.[12] (This appeal will, we were told, be the first occasion on which the scope and applicability of the rule will have fallen for appellate consideration in Australia.)
[10]Heydon, Cross on Evidence, 7th Aust Ed, [19045].
[11][1965] AC 595.
[12](1998) 193 CLR 1, 21 [48].
Counsel for the applicant further contends that, because Mrs B’s evidence was thus admissible, the applicant is bound to succeed on appeal. He submits that, inasmuch as the evidence related to the credibility of the complainant and this was a case which came down to oath against oath, it is impossible to gainsay that the evidence could have tipped the balance in favour of the applicant. Furthermore, counsel says, because that determination was so much one for the jury, there can be no possibility of any application of the proviso.
In our view, that submission is less persuasive. Once again we have not had the benefit of full argument, and hence nothing we say is intended to be final. But as at present advised, we think that a cogent argument can be mounted for the application of the proviso. The view might well be taken that Mrs B’s evidence was so insignificant, and so likely to be treated as such by the jury, that it could not have made the slightest difference. As appears from what occurred on the voire dire, Mrs B had no knowledge of the complainant’s general reputation for honesty and her only reason for doubting what the complainant might say on her oath was that she and the complainant had had a falling out over whether she had ‘manhandled’ the complainant in the course of her employment. In effect, as the judge said, all this amounted to was a dispute between an employer and employee which could not be resolved.
Of course, allowance must be made for the inevitable advantages of the jury in the assessment of a witness who is subjected to cross-examination. But a conclusion about the insignificance of Mrs B’s evidence could well be reached without the benefit of having seen her give evidence. The transcript speaks for itself. As counsel for the Crown submitted, the English Court of Appeal had no hesitation in applying the proviso in Reg v Richardson. Although the application of the proviso is now subject to the considerations adumbrated in The Queen v Weiss,[13] we doubt that that would make any difference in the present case.
[13](2005) 224 CLR 300.
Counsel for the applicant conceded that the chances of succeeding on appeal on the ground of the judge’s failure to give a Palmer direction were less than upon the exclusion of Mrs B’s evidence. In effect, counsel acknowledged that, if the latter ground were not sufficient to warrant a grant of bail, the former would not either. We agree that, while it is at least fairly arguable that such a warning should have been given in this case, it cannot be said that the ground would inevitably succeed.[14]
[14]See R v TLK [1999] 3 VR 567, 572 and 574.
The same may be said of the chances of success upon the exclusion of Dr Gibb’s evidence. That ground, too, is at least fairly arguable. Evidently, the judge excluded Dr Gibb’s evidence as going only to the complainant’s credit. On one view of the matter, however, it went also to motive, in the sense that motive ‘extends to all matters which affect the motive, temper and character of a witness with reference to feelings towards one party or the other.’[15] And that finds support in the observations of Charles JA in R v Harrington.[16]
[15]Attorney General v Hitchcock (1847) 1 EX 91, 106; Heydon, Cross on Evidence [19045].
[16][1998] 3 VR 531, 539.
As counsel for the applicant properly conceded, however, it is not enough for a grant of bail pending appeal merely to show that one or more of the grounds of appeal is fairly arguable. We turn therefore to the question of how much of the non-parole period the applicant is likely to serve before the hearing and determination of the appeal.
The non-parole period
According to the evidence, it will likely take another twelve to fourteen months before the appeal is heard and determined. By then the applicant will have served a little over half the non-parole period of two years and three months.
On its face, there is nothing exceptional about this circumstance. The contrast with Zoudi – where the whole of the non-parole period would have expired – is obvious. It was that circumstance to which the Court’s conclusion was addressed.[17] No occasion arose to consider the (likely) expiry of less than the whole of the non-parole period, though it is tolerably clear from the Court’s reasons in Zoudi, and from the other authorities there considered, that the expiry of something less than the full non-parole period may warrant consideration in this context. But not much less. We note the use of phrases such as ‘the whole or a very substantial part’[18] and ‘expired or very nearly expired’.[19]
[17](2006) 14 VR 580, [4].
[18]Re Jackson [1997] 2 VR 1, 2 (Callaway JA).
[19]Re Pennant [1997] 2 VR 85, (Winneke P).
We leave for another day the question of what view might be taken if the applicant established – as the present applicant sought to do – that his appeal was ‘bound to succeed.’[20]
[20]Cf W (1994) 73 A Crim R 532, 536 (Kirby P) and 537 (Hunt CJ at CL).
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