Si v The State of Western Australia
[2013] WASCA 281
•3 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 281
CORAM: MAZZA JA
HEARD: 11 NOVEMBER 2013
DELIVERED : 11 NOVEMBER 2013
PUBLISHED : 3 DECEMBER 2013
FILE NO/S: CACR 211 of 2013
BETWEEN: SI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :CURTHOYS DCJ
File No :IND BUN 26 of 2013
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application granted
Category: B
Representation:
Counsel:
Appellant: Mr P J Urquhart
Respondent: Ms S Markham
Solicitors:
Appellant: Young & Young Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
This is an application for bail pending an appeal against conviction pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA).
On 26 September 2013, the appellant was convicted after trial of one count of sexual penetration of a child under the age of 13 years by digitally penetrating her vagina, contrary to s 320(2) of the Criminal Code (WA). That offence was count 1 on the indictment. The appellant was acquitted of three other charges of a sexual nature against the same complainant.
On 14 October 2013, he was sentenced to 3 years' imprisonment with eligibility for parole.
On 31 October 2013, he filed his notice of appeal. There are three draft grounds of appeal. The focus of today's proceedings is on the first two grounds which allege, in essence, that there has been a miscarriage of justice because the offence for which the appellant was convicted was not an offence known to the law. Section 320(2) of the Criminal Code was inserted into the Criminal Code by the Acts Amendment (Sexual Offences) Act 1992 (WA). It commenced operation on 1 August 1992.
The indictment originally alleged that count 1 was committed between 31 December 1992 and 1 January 1994. After the complainant gave evidence and at the end of the State's case, the prosecution, with the consent of defence counsel, amended those dates to allege that the offence was committed between 24 April 1988 and 1 January 1994. Plainly, during the period between 24 April 1988 to 31 July 1992, s 320(2) of the Code did not exist. Prior to 1 August 1992, the digital penetration of a child under the age of 13 would have constituted an indecent dealing with a child under the age of 16, contrary to s 189 of the Criminal Code.
It is accepted that the evidence was not capable of establishing when the act of sexual penetration was committed between 24 April 1988 and 1 January 1994. It appears therefore that it cannot be excluded that the act for which the appellant has been convicted occurred before the date on which s 320(2) came into force. It is trite to say that a person cannot be convicted of an offence that did not exist at the time it was committed.
Clause 4A provides that bail pending appeal can only be granted where exceptional reasons exist and then only if bail would otherwise be appropriate. Exceptional reasons may exist where the grounds of appeal are strongly arguable. The respondent concedes, in effect, that draft grounds 1 and 2 are strongly arguable because, in essence, the appellant may have been convicted of an offence that was not known to the law at the time it was said to have occurred. In my opinion, based on the materials before me, that concession is properly made and should, at the moment, be accepted. In these circumstances, exceptional reasons exist for a grant of bail pending appeal. There being no other reason why bail should be refused, I will grant bail.
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