Rhu v The State of Western Australia

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   RHU -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 54
CORAM:   BUSS P
MAZZA JA

HEARD:   24 MAY 2022
DELIVERED          :   24 MAY 2022
FILE NO/S:   CACR 31 of 2022
BETWEEN:   RHU
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GILLAN DCJ
File Number            :   IND 1179 of 2021

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of numerous child sex offences - Application for bail pending the determination of the appeal

Legislation:

Bail Act 1982 (WA), cl 1 and cl 3 of pt C sch 1

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr K G Robson
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Evangel Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Peters v The State of Western Australia [2012] WASCA 274

REASONS OF THE COURT:

The appellant was charged on indictment with numerous counts of child sex offending.
On 17 March 2022, after a trial before Gillan DCJ and a jury, the appellant was convicted of nine counts.
On 8 April 2022, the trial judge sentenced the appellant to a total effective sentence of 7 years 6 months' imprisonment with eligibility for parole.
The appellant has appealed against conviction.
By an application in an appeal filed on 22 April 2022, the appellant has applied for bail pending the determination of his appeal. The application is supported by numerous affidavits and by written submissions.
The State opposes a grant of bail. The State's opposition is supported by two affidavits and by written submissions.
We are satisfied, for the following reasons, that the application for bail should be dismissed.
On 13 May 2022, the appellant filed and served his appellant's case. He relies upon three grounds of appeal. Each ground alleges that a miscarriage of justice occurred at the trial.
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 1982 (WA).
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,[1] 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].
[1] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, we have considered the appellant's application for bail having regard to whether any or all of his grounds of appeal are strongly arguable. We have examined the material and considered the submissions relied upon by the appellant in support of his application. The material and the submissions we have taken into account include those relating to the ill health, disabilities and personal circumstances of the appellant's grandmother and the care and assistance which the appellant has given and is willing to continue to give to her.
We are not satisfied at this stage, and without the benefit of the full argument and the detailed review of the relevant parts of the trial record that will occur at the hearing of the appeal, that the merits of the grounds of appeal are of sufficient strength to justify a grant of bail.
In all of the circumstances, we are not satisfied at this stage that there are exceptional reasons (including exceptional reasons in relation to the strength of the grounds of appeal and exceptional reasons in relation to the appellant's grandmother) why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail will therefore be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
27 MAY 2022

CaseChat Overview and Summary

The case of Rhu v The State of Western Australia involved an appeal against conviction for child sex offences. The appellant was convicted after a trial in the District Court of Western Australia and was subsequently sentenced to a total effective sentence of 7 years and 6 months' imprisonment. The appellant has appealed against his conviction and applied for bail pending the determination of the appeal. The State opposed the application for bail. The Court of Appeal was required to consider whether there were exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal, and whether it was proper to grant bail under the provisions of the Bail Act 1982 (WA). The Court of Appeal considered the merits of the grounds of appeal and the submissions relied upon by the appellant in support of his application for bail. The Court was not satisfied that the merits of the grounds of appeal were of sufficient strength to justify a grant of bail. The Court also considered the exceptional reasons relied upon by the appellant, including the health and personal circumstances of his grandmother. The Court was not satisfied that there were exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal. The application for bail was dismissed.

The Court of Appeal held that 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 and that it is 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 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. The Court of Appeal held that the formulation that the appeal is "strongly arguable" is sufficient for present purposes. The Court of Appeal considered the merits of the grounds of appeal and the submissions relied upon by the appellant in support of his application for bail. The Court was not satisfied that the merits of the grounds of appeal were of sufficient strength to justify a grant of bail. The Court also considered the exceptional reasons relied upon by the appellant, including the health and personal circumstances of his grandmother. The Court was not satisfied that there were exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal. The application for bail was dismissed.

The Court of Appeal dismissed the application for bail pending the determination of the appeal. The Court held that the merits of the grounds of appeal were not of sufficient strength to justify a grant of bail and that there were no exceptional reasons why the appellant should not be kept in custody. The Court emphasised that the test for the grant of bail is whether there are exceptional reasons why the appellant should not be kept in custody and that it is proper to grant bail having regard to the provisions of the Bail Act 1982 (WA). The Court of Appeal also noted that the formulation that the appeal is "strongly arguable" is sufficient for present purposes. The Court of Appeal's decision is consistent with the principles established in Peters v The State of Western Australia and other cases. The Court of Appeal's decision will provide guidance to practitioners in relation to the grant of bail pending the determination of an appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established