Smith v The State of Western Australia

[2023] WASCA 137

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 137

CORAM:   HALL JA

HEARD:   18 SEPTEMBER 2023

DELIVERED          :   18 SEPTEMBER 2023

FILE NO/S:   CACR 7 of 2023

BETWEEN:   BRADLEY WILLIAM DEREK SMITH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PETRUSA DCJ

File Number            :   IND 729 of 2021

Catchwords:

Criminal law - Bail pending appeal against conviction - Whether exceptional reasons for granting bail established - Whether grounds of appeal have strong prospects of success - Whether difficulties appellant has in representing himself whilst in prison justify grant of bail

Legislation:

Nil

Result:

Application for bail refused

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Fermanis v The State of Western Australia [2005] WASCA 212

Serukai v The State of Western Australia [2020] WASCA 107

HALL JA:

(This judgment was delivered extemporaneously on 18 September 2023 and has been edited from the transcript.)

1. This is an application for bail pending the determination of an appeal against conviction.

2. The appellant was tried on an indictment alleging 17 sexual offences against a female complainant who was aged between 13 and 15 years at the relevant time. Counts 1 ‑ 16 were charges of specific acts. Count 17 was a charge that the appellant had persistently engaged in sexual conduct with a child under the age of 16 years, contrary to s 321A of the Criminal Code (WA).

3. At the close of the prosecution case, the trial judge entered judgments of acquittal on two counts (counts 7 and 11).  At the conclusion of the trial, the jury returned unanimous verdicts of not guilty with respect to all of the remaining counts, other than count 17.  The jury returned a unanimous verdict of guilty in respect of count 17.  On 5 August 2022, the appellant was sentenced to a term of imprisonment of 6 years, with an order that he be eligible for parole.

4. On 18 January 2023, the appellant filed a notice of appeal seeking leave to appeal against his conviction on count 17.  The last date for appealing was 26 August 2022.  As the notice of appeal was filed out of time, the appellant has also filed an application for an extension of time.  The appellant's application for leave to appeal and his application for an extension of time have been referred to the hearing of the appeal.  The appeal is listed for hearing on 10 October 2023.

5. On 30 August 2023, the appellant filed an application for bail pending the determination of his appeal.  He also filed an affidavit in support of that application.  In essence, the appellant submits that a grant of bail pending appeal is justified based on the strength of his grounds of appeal and the difficulty he faces in preparing his appeal and in obtaining legal assistance whilst incarcerated.  The latter issue arises because, at least presently, the appellant does not have a lawyer acting for him.

Relevant law

1. The principles applicable to bail pending an appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail having regard to the considerations in sch 1 pt C of the Bail Act 1982 (WA).[2]  What constitutes exceptional circumstances may vary according to the circumstances of the case.  The word 'exceptional' implies that the reasons for granting bail must be unusual or out of the ordinary.  

   [1] Serukai v The State of Western Australia [2020] WASCA 107 [12] - [15].

   [2] Bail Act cl 4A pt C sch 1.

2. If the appellant asserts that the exceptional reasons include the merits of the appeal, something more than a reasonably arguable case must be shown.  It must be shown that the appeal is strongly arguable or that the prospects are such that there is a real concern that the appellant would suffer an injustice by having been kept in custody on the basis of an unsound conviction. 

3. On a bail application the opportunity to conduct a comprehensive consideration of trial evidence is relatively limited and any assessment of the grounds can only be preliminary.  Thus, if it is suggested that the grounds have strong prospects of success that will generally need to be readily apparent without the benefit of detailed argument or analysis.[3]

   [3] Fermanis v The State of Western Australia [2005] WASCA 212 [14].

4. In this case, as noted, one of the grounds on which the appellant submits that bail should be granted is that his grounds of appeal have strong prospects of success.  In assessing the merits of that claim, it is first necessary to summarise the prosecution case at trial.

The prosecution case

1. The prosecution case was that the appellant commenced a sexual relationship with the complainant shortly after her 13th birthday, in December 2008.  The complainant had recently arrived in Western Australia from New Zealand to live with her mother, who I will refer to as AW.  The appellant, who was then aged 27, was a friend of AW.

2. The prosecution case was that on 16 identified occasions, the appellant had engaged in sexual acts with the complainant.  That number was subsequently reduced to 14 when the complainant, in her evidence, failed to give evidence regarding two of the incidents.  The period over which the offending was alleged to have occurred was December 2008 to February 2011.

3. The offending was alleged to have occurred at four different addresses.  On her arrival in Western Australia, the complainant initially lived with her mother at an address in Cloverdale.  In April or May 2009, the complainant and her mother moved to a house in High Wycombe.  In November 2009, the complainant and her mother moved to a house in Morley.  In November 2010, the complainant and her mother moved to a second house in Morley.  Counts 1 ‑ 3 were alleged to have occurred at the Cloverdale house.  Counts 4 ‑ 6 were alleged to have occurred at the High Wycombe house.  The remaining specific counts were alleged to have occurred at one of the two Morley houses, with the exception of counts 12, 13, 15 and 16.  Count 12 was alleged to have occurred at a reserve in Bassendean, count 13 was alleged to have occurred at a house in Thornlie, count 15 was alleged to have occurred in a car parked at South Perth foreshore, and count 16 was alleged to have occurred in a motel.[4] 

   [4] ts 45 - 51.

4. Since the appellant was acquitted of counts 1 ‑ 16, it is unnecessary for the purposes of this application to detail the allegations relating to those counts.  What is relevant is that, in her evidence, the complainant referred to other sexual acts that were not the subject of any of those counts.

5. With respect to the High Wycombe house, the complainant gave evidence that in addition to counts 4, 5 and 6, she and the appellant were having penile/vaginal sex three times a week, after her mother had gone to sleep.[5]  With respect to the first Morley house, the complainant gave evidence that counts 8, 9, 10 and 14 had occurred at that house and, during the period that she was living there, the frequency of sex between her and the appellant was around three times per week.  As the complainant lived in that house for approximately one year, this evidence, if accepted, indicated the occurrence of sexual acts on many more occasions than those that were referrable to specific counts in the indictment.[6]  With respect to the period that the complainant was living at the second Morley house, she referred to the specific incidents that were the subject of counts 12, 13, 15 and 16, but also said, more generally, that she and the appellant never had sex at the second Morley house but, rather, 'it was always in the car'.[7]

   [5] ts 90.

   [6] ts 117.

   [7] ts 109.

The grounds of appeal

1. There are three grounds of appeal.  Ground 1 is that the verdict on count 17 was unreasonable and cannot be supported having regard to the evidence.  Ground 2 is that the guilty verdict on count 17 is inconsistent with the not guilty verdicts on the other counts.  Ground 3 is that the trial judge misdirected the jury as to what was required in order to establish count 17.

2. All three grounds relate to the same issue.  The appellant asserts that there was either no, or insufficient, evidence of other sexual acts, beyond those that were specifically identified in counts 1 ‑ 16.  In those circumstances, the appellant submits, it was not open to the jury to find count 17 proven in the absence of finding that at least three of the other counts were proven.  The appellant also submits that the verdict of guilty on count 17 is inconsistent with the verdicts on the other counts, both because count 17 relied on proof of three or more of the other counts or, alternatively, that it was not open to the jury to accept the complainant's evidence in regard to count 17 in circumstances where they were not satisfied as to her evidence on the other counts.[8]

   [8] Appellant's case, pages 2 - 4.

The trial judge's directions

1. Before turning to a consideration of the merits of the grounds, it is necessary to refer to the directions given by the trial judge to the jury in regard to count 17 and the position taken by trial counsel to those directions.

2. In this context, the terms of s 321A of the Criminal Code are relevant. Section 321A requires that the jury be satisfied that the accused did a sexual act in relation to the child in question on three or more occasions, each of which was on a different day. For the purposes of s 321A, a sexual act means an act that would constitute a prescribed offence. A prescribed offence includes an offence of sexually penetrating a child over the age of 13 years and under 16 years, contrary to s 321(2), and an offence of indecently dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4). A charge of persistently engaging in sexual conduct with a child must specify the period during which it is alleged the sexual conduct occurred but need not specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct. If in a trial by jury of a charge of persistently engaging in sexual conduct with a child there is evidence of sexual acts on four or more occasions, the jury members need not all be satisfied that the same sexual acts occurred on the same occasions, as long as the jury is satisfied that the accused person persistently engaged in sexual conduct in the period specified. In effect, where there is evidence of sexual acts on four or more occasions, the jury need not be unanimous as to which sexual acts constitute the three occasions required to prove that the person persistently engaged in sexual conduct. However, each juror must be individually satisfied that the accused did a sexual act in relation to the child on three or more occasions, on different days.

3. After the close of the defence case, and in the absence of the jury, the trial judge invited submissions from counsel as to the appropriate jury directions.  The trial judge confirmed with the prosecutor that, for the purpose of count 17, the sexual acts relied on were any three of the 14 acts that were the subject of the specific counts 'and/or [the complainant's] evidence of the generalised sexual contact, being that there was sex happening three times a week on average at the [High Wycombe] residence, and then continued at [the first and second Morley residences] albeit at [the second Morley residence] it was happening in the car'.[9]

   [9] ts 436.

4. Later in the discussion with counsel, the trial judge foreshadowed various pathways to conviction on count 17.  These pathways included one whereby the jury could find the appellant not guilty on all of the specific counts but be satisfied of three or more sexual acts by acceptance of the generalised evidence, that is, the evidence relating to uncharged sexual conduct.[10]  Both the prosecutor and defence counsel accepted that the pathways outlined by the trial judge were open.[11]  In particular, it was not suggested by defence counsel that it was not open to the jury to convict the appellant on count 17 in circumstances where they had found him not guilty of all of the remaining counts.

   [10] ts 438 - 439.

   [11] ts 439 - 440.

5. In regard to count 17, the trial judge directed the jury that the offence required that a person do a sexual act in relation to a child on three or more occasions, each of which occurred on a different day.  The jury were then instructed that a sexual act in this case could be an indecent dealing with, or sexual penetration of, a child of or over the age of 13 years and under 16 years.[12]

   [12] ts 473.

6. The judge then directed the jury that to find the appellant guilty on count 17, all of the jurors had to be satisfied beyond reasonable doubt that on at least three occasions, each of which occurred on a different day, the appellant did a sexual act in relation to the complainant.  The jury were directed that the jurors did not have to agree on the same three acts or occasions, provided that individually each juror was satisfied that there were at least three occasions where sexual acts occurred within the relevant date range.[13] 

   [13] ts 472 - 473.

7. Relevantly to this appeal, the jury were directed that if they found the appellant not guilty on the 14 specific counts but were satisfied that there were three other occasions arising from the evidence of other regular sexual activity, they could find the appellant guilty of count 17.  The judge also directed the jury that if they were not satisfied beyond reasonable doubt of any of the specific counts, and, accordingly, returned a verdict of not guilty on that count, the conduct the subject of that count could not be used by any juror to constitute one of the three sexual acts necessary to prove count 17.[14] 

   [14] ts 473 - 476.

Merits of the application

1. It is not appropriate on an application of this type to reach a final conclusion as to whether any of the grounds of appeal will succeed.  All that is required, and appropriate, is an assessment of whether it is apparent that the grounds of appeal are not merely reasonably arguable but have a strong prospect of success.  It must be apparent that the prospects of success are sufficiently high to justify a conclusion that it would be unjust to allow the appellant to remain in custody pending determination of the appeal. 

2. The appellant is self‑represented and has prepared his own appellant's case.  Making every allowance for the fact that the appellant is not a lawyer, I have had regard to his written submissions, and his oral submissions, in assessing the strength of the appellant's grounds of appeal.  I will summarise my understanding of his submissions.  

3. In respect of ground 1, the appellant submits that the only evidence tendered at the trial related to the 14 substantive counts.  He submits that in circumstances where he was found not guilty of the 14 substantive counts, it was not open to the jury to find him guilty of count 17.  He submits that references by the complainant to her having sex with him three times per week could not support the verdict on count 17, as that evidence is inconsistent with evidence given by other witnesses regarding the appellant's work habits and living circumstances.  He submits that the frequency of the sexual acts suggested by the complainant was impossible. 

4. As to ground 2, the appellant submits that it was not open to the jury to convict on count 17 in circumstances where they found the appellant not guilty of all of the 14 substantive counts.  He also suggests that it is implicit in the jury's not guilty verdicts that they did not accept the complainant as a witness of truth in respect of the 14 specific counts.  The implication is that such a conclusion is inconsistent with a finding that the complainant was a truthful and reliable witness in respect of count 17. 

5. As regards ground 3, it would appear that the appellant is suggesting that it was a misdirection for the trial judge to tell the jury that it was open to them to find the appellant guilty on count 17, even if they were not satisfied as to his guilt on any of the other counts.  The submission appears to be that such evidence as there was of other sexual acts was not sufficient to provide a foundation for a conviction on count 17.

6. In the respondent's answer there is a detailed analysis of the evidence at the trial.  The respondent relies on evidence given by the complainant as to generalised sexual conduct, that is, sexual acts beyond those that were the subject of specific counts.  The respondent notes that there was evidence from other witnesses as to sexual conduct between the complainant and the appellant.  The respondent submits that the verdicts were consistent with the jury accepting beyond reasonable doubt the complainant's general evidence that she was in a sexual relationship with the appellant during the period alleged, whilst adopting a cautious approach to proof beyond reasonable doubt with respect to particularised accounts as to which there was no direct corroboration and as to which they might find the complainant unreliable in detail.[15] 

   [15] Respondent's answer [57].

7. The respondent submits that the verdicts are also explicable on the basis that the jury took a merciful view of the facts and acquitted the appellant on some counts of which, on the evidence, he could have been convicted.  The respondent submits that it was open to a jury, having convicted the offender of an offence involving persistent sexual behaviour over a period of time, to return not guilty verdicts in order to avoid what they may perceive as the inherent unfairness of a person being punished twice for the same act.  The respondent notes in this regard that the jury were not directed that any term of imprisonment for counts 1 ‑ 16, as a matter of law, would be required to be served concurrently with any sentence imposed on count 17.[16]

   [16] Criminal Code s 321A(13); respondent's answer [58].

8. Having regard to the evidence given by the complainant at trial regarding other sexual conduct and the directions by the trial judge on count 17, there would appear to be a rational basis for the conviction on that count.  That evidence was not abundant or detailed, but it was not entirely lacking.  Without the benefit of full argument and a detailed review of the relevant parts of the trial transcript (which will doubtless occur at the hearing of the appeal), I am not presently satisfied that the grounds of appeal have strong prospects of success.

9. As to the other matters set out in the appellant's affidavit, I accept that there can be significant difficulties for a self‑represented appellant preparing their case whilst in prison.  Having said that, it is not unusual for appellants who are in prison to be self-represented and the difficulties that they have are usually overcome.  I also accept that the appellant had difficulties in securing the services of a lawyer to represent him whilst he was in prison, whilst noting that he continues to have the support of his step‑father.

10. The appellant says that his difficulties are exacerbated because he has high blood pressure, acute anxiety, an obsessive‑compulsive disorder, and attention deficit disorder.  There is no medical evidence confirming the diagnosis and present existence of those conditions, or the impact that they have on the appellant's functioning, or whether (if currently present) those conditions can be effectively managed.  There was some information in the court below that OCD and ADD had been an issue for the appellant in childhood or at least in the past.  In any event, I am not satisfied that those conditions are of such a nature as would justify a conclusion that the appellant is incapable of preparing or presenting his case whilst in prison.   

Conclusion

1. I am not satisfied that the grounds of appeal have strong prospects of success.  Nor am I satisfied that the matters raised in the appellant's affidavit will prevent him from participating in this appeal.  Exceptional circumstances have not been established and for these reasons, the application for bail is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AZ

Associate to the Honourable Justice Hall

20 SEPTEMBER 2023