Shrivastava v The State of Western Australia - [2010] WASCA 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SHRIVASTAVA -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 96

CORAM: MAZZA J

HEARD: 12 MAY 2010

DELIVERED : 18 MAY 2010

FILE NO/S: CACR 10 of 2010

BETWEEN: AVINASH CHANDRA SHRIVASTAVA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
File No  :IND 1097 of 2009

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional reasons - Prospects of success on appeal - Appellant's health - Turns on its own facts

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 4A
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(5)
Juries Act 1957 (WA), s 56A(1), s 56B(1), s 56B(2)(a), s 56D(2)(b)(iii)

Result:

Bail refused

Category: B

Representation:

Counsel:

Appellant: Mr L Levy SC
Respondent: Mr M A Perrella

Solicitors:

Appellant: Pynt & Partners
Respondent: Director of Public Prosecutions (WA)

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

Baker v The Queen (2004) 78 ALJR 1483
BSD v The State of Western Australia [2008] WASCA 270
Caratti v The Queen [1999] WASCA 91
Domican v The Queen (No 3) (1990) 46 A Crim R 428
Ex parte Maher [1986] 1 Qd R 303
I v The State of Western Australia [2006] WASCA 204
R v K (2003) 59 NSWLR 431
Stalker v The Queen [2002] WASCA 364
Tieleman v The Queen (2004) 149 A Crim R 303
TKWJ v The Queen (2002) 212 CLR 124
Webb v The Queen (1994) 181 CLR 41

MAZZA J:

Introduction

On 17 December 2009, the appellant was convicted after trial of one count of indecent dealing of a child between the ages of 13 and 16 years, four counts of unlawful and indecent assault and two counts of sexual penetration without consent. The first mentioned offence involved one complainant, the others involved a second complainant. He was acquitted of two offences involving two other complainants.
On 21 December 2009, the appellant was sentenced to a total term of imprisonment to 4 1/2 years and made eligible for parole.
By notice filed on 22 January 2010, the appellant has appealed against his convictions.
Before me is an application for bail pending the determination of the appeal.

Schedule 1 pt C cl 4A of the Bail Act

The application for bail must be decided in accordance with sch 1 pt C cl 4A of the Bail Act1982 (WA) which provides:
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody and shall only grant bail to the accused if satisfied that:
(a)exceptional reasons exist; and
(b)it is proper to do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
The decisive issue is whether the appellant has demonstrated exceptional reasons why he should be released on bail. If exceptional reasons exist, it has not been suggested that the appellant not be granted bail having regard to cl 1 and cl 3 of sch 1 pt C of the Bail Act.

The ground of appeal

The ground of appeal upon which the appellant relies is as follows:
1.The trial of the appellant miscarried as a result of some or all of the jurors being told information by another juror during the course of their final deliberations that was not the subject of evidence in the trial and was, in any event, inadmissible irrelevant false and prejudicial to the appellant's case.
Particulars
(a)false information that the appellant had divorced his wife;
(b)false information that there is a difference in the social and educational status of the appellant and his wife;
(c)false information regarding the appellant's interest in other women.

Context of the alleged irregularity

The alleged irregularity came to light after the conclusion of the trial. It is unnecessary to canvass the evidence and issues at the trial in detail. What follows is sufficient to understand the context of the alleged irregularity and any significance it has.
The prosecution case was that the appellant was a registered occupational therapist who specialised in the areas of pain treatment and stress management. Amongst the methods of treatment he used were acupuncture, laser therapy and physical manipulation. It was alleged that the appellant committed sexual offences against four separate female patients while he was treating them. The appellant denied any improper conduct towards the complainants. He testified, amongst other things, that he had been married for many years. This was not disputed. The crucial issues for the jury to determine were the credibility of each complainant and the appellant. Plainly, in relation to the offences for which he was convicted, the jury rejected the appellant's denials and was satisfied beyond reasonable doubt that each complainant's testimony was true.
At the beginning of the trial, the learned trial judge instructed the jury that they were not to discuss the case with family and friends. At various points in the trial her Honour reminded the jury of this instruction.

The affidavits in support of the application

The application is supported by affidavits from the appellant's solicitor, Cassandra Claire Paterson sworn 29 April 2010, and the appellant sworn 27 April 2010.
Ms Paterson deposes to the matters that give rise to the appeal. On 22 December 2009, the associate to the learned trial judge wrote to the appellant's then counsel, enclosing an email which the learned trial judge had received, apparently from a juror who had deliberated on the appellant's case. The version of the email provided to the appellant's counsel deleted the juror's telephone number and juror number. The material parts of that email are as follows:
I am writing to advise of a matter which occurred during the jury deliberation for the case presided over by you being 1097/2009 State of Western Australia v Avinash Shrivastava.
I am writing this as best I am able whilst remaining in compliance with my duty not to disclose matters of jury deliberation.
In the latter period of deliberation yesterday a member of the jury asked the jury if their decisions would be affected by knowledge of matters related to Mr Shrivastava's marriage. The jury member advised she had had a discussion with her mother during the course of the trial where her mother who I think worked in a hospital had knowledge of Mr Shrivastava. The jury member told the jury that Mr Shrivastava had divorced his wife in the Supreme Court as well as associated matters of the difference in education and social status of Mr Shrivastava and his wife. Later, after we had finalised the verdicts, but before they were delivered to the court, she spoke of gossip associated with Mr Shrivastava relating to his interest in other women.
I raise this matter only because it seemed extraordinary and I thought it should be put to your Honour for consideration.
I will not speak of this matter again unless requested to by yourself or another relevant official. I will also delete this email after it has been sent.
If there is a need to contact me please ring [number deleted].
Yours sincerely
Juror [number deleted].
Counsel for the appellant and the respondent have agreed that I should, for the purposes of this application, assume that the email is genuine and comes from a juror who deliberated on the case.
Ms Paterson's affidavit also refers to a post made on the website The post is identified in Ms Paterson's affidavit by the name of the sender and the date and time on which it was placed on the website. The appellant's submission is that the post refers to the appellant's case and the person who wrote the post was the juror who wrote the email or was another juror in the case. Counsel acknowledged that while posts made to websites are very frequently made under a pseudonym, it is also the case that from time to time individuals post things on websites in their real names. I will not identify the name used in the post, nor will I set out the date and time on which the message was posted. The post is in the following terms:
I sat on a jury fairly recently which found a person guilty of some sex related charges and the person was sentenced to prison. The disturbing thing was one member of the jury revealed late in the case that they had significant prior knowledge of the defendant as well as sensitive information relating to the defendant's marriage as well as extra marital matters. The process seemed to raise no opportunity for other members of the jury to raise their concerns with the judge. I am not sure if it affected the verdict but I remain concerned about the integrity of the jury. What I am certain of is that the rest of the jury knew the juror in question had acted deceitfully and presumably illegally.
Counsel for the respondent has submitted that the contents of the post should not be taken into account in this application, or indeed at the hearing of the appeal.
I am prepared, for the purposes of this application, to assume that the post came from a juror in the appellant's trial. I have come to this view because the details disclosed in the post have obvious similarities to the contents of the email. This assumption is not to be taken as binding this court at the hearing of the appeal. I will leave the question of the admissibility of the post to the hearing of the appeal.
I pause to observe that the information contained in both the email and the post constitutes 'protected information' as defined in s 56A(1) of the Juries Act 1957 (WA) in the sense that the documents refer to statements made in the course of jury deliberations. Section 56B(1) of the Juries Act prohibits the disclosure of protected information if the person who discloses the information is aware that the information will or is likely to be published. However, relevantly to this case, prohibited information may be disclosed to a court: s 56B(2)(a) of the Juries Act. It may be published in a fair and correct report of appeal proceedings in which the jury deliberations are an issue relevant to the appeal: s 56D(2)(b)(iii) of the Juries Act.
Ms Paterson's affidavit also refers to various health problems from which the appellant suffers. Attached to her affidavit (annexure A) is a report from Dr Thomas Woods dated 4 December 2009. Dr Woods is a consultant physician who has treated the appellant since 1987. In his report, Dr Woods summarises the appellant's health as follows:
All told, Mr Shrivastava has a well established diabetic condition and known eye, cardiac and renal complaints. He requires a special vegetarian diet, diabetic diet and remains able to self‑medicate his various tablets in accordance with his self‑monitored blood glucose and blood pressure levels from day‑to‑day.
The appellant in his affidavit deposes that since his imprisonment he has not had the opportunity to self‑monitor his blood glucose and blood pressure levels from day‑to‑day and there have also been occasions where he has not received his daily medication. He also stated that his diabetic medication has been administered at one time, where, prior to his incarceration, its administration was spread over the course of the day. However, since his arrival at Casuarina Prison on 18 February 2010 where he is currently accommodated, he has been permitted to self‑administer his diabetic medication and his other medication is now administered in the morning and the evening.
The appellant deposes that it has not been possible for him to adhere fully to a diabetic diet in prison. He states that he is allergic to cigarette smoke and has developed an allergic reaction to it since his imprisonment.
The respondent does not challenge these parts of the appellant's affidavit.

The appellant's submissions

Mr Levy SC, on behalf of the appellant, submitted that the matters raised in the email and post amount to 'a significant irregularity' and that there is a significant possibility that it affected the outcome of the trial. Mr Levy submitted that the email and the post revealed that a juror had, contrary to the instructions given by the learned trial judge, discussed the case with her mother. The juror's mother then provided the juror with irrelevant and prejudicial information about the appellant which was imparted to the jury. This information, Mr Levy submitted, may well have impacted on the jury's assessment of the appellant's credibility. He submitted that the matters contained in the email and post give rise to a reasonable apprehension that the jury had not discharged its duty impartially. The appellant's case is that, for these reasons, there has been a miscarriage of justice and the appellant's convictions must be set aside: s 30(3)(c) and s 30(5) of the Criminal Appeals Act 2004 (WA).
Mr Levy submitted that the prospects of the appeal succeeding were strong and that, for this reason alone, exceptional reasons exist which justify a grant of bail pending appeal. Mr Levy submitted that the appellant's ill health strengthened the appellant's position. Alternatively, if the court came to the view that the merits of the appeal were not, in themselves, sufficient to constitute exceptional reasons, the merits of the appeal combined with the appellant's ill health constituted exceptional reasons for a grant of bail.

The respondent's submissions

Mr Perrella, on behalf of the respondent, accepted that the contents of the email amounted to an irregularity. Nevertheless, he submitted that the irregularity did not give rise to a miscarriage of justice because whatever the juror said could not have affected and did not affect the verdicts and would not give rise to a reasonable apprehension that the jury had not discharged their duty impartially.
The respondent submitted that the ground of appeal is not strong and cannot amount to exceptional reasons, whether by itself or in combination with the appellant's health problems.

What is meant by 'exceptional reasons'?

By sch 1 pt C cl 4A of the Bail Act, Parliament plainly provided that bail pending an appeal against conviction by jury is exceptional.
There are good reasons why bail pending appeal should be exceptional. In Ex parte Maher [1986] 1 Qd R 303, Thomas J said that to grant bail pending appeal would:
(1)give the appearance that the conviction was contingent until confirmed;
(2)place the court in an invidious position if the appellant was unsuccessful and had to be returned to prison;
(3)encourage unmeritorious appeals;
(4)undermine respect for the judicial system by having the appellant at liberty although recently sentenced; and
(5)undermine the public interest in having convicted persons serve their sentence as soon as practicable.
While I acknowledge there has been some debate as to the validity of Thomas J's first point, I respectfully agree with his reasoning.
In Tieleman v The Queen (2004) 149 A Crim R 303 [15], Murray J said that the word 'exceptional' denoted that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.
Both Murray and Steytler JJ pointed out in that case at [24] and [46] that what might constitute exceptional reasons will depend upon the facts in each particular case.
The words, 'exceptional reasons', like the words 'special reasons' or 'special circumstances' are used where 'it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition' Baker v The Queen (2004) 78 ALJR 1483 [13].
As the context of the application for bail is an appeal against conviction, the focus must be on the merits of the appeal. However, because each case must be considered in light of its own circumstances, there may be factors in addition to the assessment of the merits which potentially come into play. Whatever the circumstances, it must never be overlooked that the appellant must demonstrate exceptional reasons why he or she should be granted bail pending the determination of the appeal.
The cases have used a number of formulations as to the merits of an appeal which may constitute 'exceptional reasons'. Some of the formulations which have been used are 'strong grounds for concluding that the appeal will be allowed' (Tieleman [24]); 'It must be shown without detailed argument that the appeal is most likely to succeed' (Stalker v The Queen [2002] WASCA 364 [40]); 'Whether there are strongly arguable grounds of appeal which have strong prospects of success' (Caratti v The Queen [1999] WASCA 91 [11]; and 'Whether they [the grounds] are strongly arguable' (BSD v The State of Western Australia [2008] WASCA 270 [5]). This list is by no means complete. Having considered these and other cases, it seems to me that a common thread through the cases is that to demonstrate exceptional reasons, an appellant will, at least, have to demonstrate that the appeal has strong arguable grounds. Both counsel in this case were content to proceed on this basis.
The task of assessing the strength of the grounds of appeal must necessarily, at this early stage of the proceedings, be tentative. It is not for me to make any final determination about the appeal. I have not had the benefit of full argument as to the merits of the appeal, nor do I have all the material that will be before the Court of Appeal.

Merits of the application

If the email and post are genuine and accurately reflect what occurred during the jury's deliberations, it appears that one juror, contrary to the learned trial judge's instruction, discussed the case with someone other than a fellow juror. Moreover, the juror acquired information about the appellant which was not the subject of evidence at the trial. I do not think that there is any doubt that such conduct is misconduct by the juror and amounts to an irregularity in the trial. I acknowledge that because the irregularity came to light after the trial concluded it could not be dealt with by the trial judge.
Not every irregularity will result in the quashing of a conviction: TKWJ v The Queen (2002) 212 CLR 124 [67]; and Domican v The Queen (No 3) (1990) 46 A Crim R 428, 448. In R v K (2003) 59 NSWLR 431 [74], Wood CJ, after referring to other decisions in New South Wales in cases where jurors had acquired inadmissible information about an accused, identified the relevant test as being:
[W]hether we can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred.
I would, with respect, adopt this test.
On my reading of the email, it appears that the juror asked her fellow jurors a rhetorical question whether their decisions would be affected by knowledge of matters relating to the appellant's marriage. It does not appear, either from the email or the post, that any juror answered in the affirmative. While it seems that the juror proffered the information she acquired, there is nothing in either document which indicates that any juror sought that information or that it was discussed by the jury. There is nothing in the material which positively demonstrates that the jury took the information into account in its deliberations or was influenced by it. The juror or jurors who sent the email and post were obviously not influenced by what they heard.
It must be remembered that the jury unanimously acquitted the appellant on the charges relating to two of the four complainants. This strongly suggests that, notwithstanding the information imparted by the juror, the jury was not influenced by it and decided the case on the evidence presented at trial.

There are three matters directly raised in the email which are arguably alluded to in the post. These are the appellant's supposed divorce, matters associated with the difference in education and social status of the appellant and his wife, and discussion about the appellant's interest in other women. The first matter may have had some relevance because of the appellant's evidence that he had been married to his wife for many years but I do not perceive this to have been a matter of great significance in the case. The second matter, I think, had very little, if any, bearing on the jury. The third matter, which may have been the most prejudicial of the three to the appellant, was not revealed until the jury had decided its verdicts.
I am not convinced that this part of Mr Levy's submission is strongly arguable, having regard to the test in R v K.
I now turn to the submission concerning jury bias.
Mr Levy submitted that I should apply a test, as he put it, 'analagous' to the well‑known test set out by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41, 53. In that case a question arose in the course of the trial about a juror's impartiality. Their Honours said that the test to be applied by a trial judge was:
[W]hether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.
Mr Levy's submission is that in a case such as this where the irregularity becomes evident post‑verdict, the conviction should be quashed if the incident gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury did not discharge its task impartially. I am content to adopt this test for the purposes of this application.
I am mindful of the 'insidious quality' of bias and that it can infect the mind of a person acting in good faith: I v The State of Western Australia [2006] WASCA 204 [14].
The juror should not have behaved in the way she did. Yet, at this tentative stage, having regard to all of the circumstances I have already referred to and especially in light of the mixed verdicts, I am not convinced that this aspect of the appeal is strongly arguable.
My overall view, at this stage of the proceedings, is that while the ground of appeal is arguable, it is not strongly arguable.
With respect to the appellant's health problems, the evidence before me indicates that, at the present time, those problems are being treated in prison by and large in a satisfactory way. The situation may not be ideal but it seems to me that the appellant's health problems are being adequately managed. These factors, alone, or in combination with the merits of the ground of appeal, are not enough, in my view, to constitute exceptional reasons.
For these reasons the application for bail pending the determination of the appeal must be refused.