Rhu v The State of Western Australia
[2022] WASCA 54
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
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