TWR v The State of Western Australia
[2021] WASCA 155
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TWR -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 155
CORAM: BUSS P
HEARD: 26 AUGUST 2021
DELIVERED : 26 AUGUST 2021
FILE NO/S: CACR 69 of 2021
BETWEEN: TWR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 706 of 2019
Catchwords:
Criminal law - Appeal against conviction - Application for bail pending the determination of the appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3, cl 4A
Criminal Code (WA), s 320(2), s 320(4)
Result:
Application for bail granted
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Balmoral Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74
BUSS P :
The appellant was charged on indictment with four counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA), and three counts of indecent dealing with that child while she was under the age of 13 years, contrary to s 320(4) of the Code.
The appellant pleaded not guilty.
After a trial before Troy DCJ and a jury, the appellant was found guilty on all of the counts.
On 21 May 2021, the trial judge sentenced the appellant to a total effective sentence of 7 years 9 months' imprisonment.
The appellant has appealed against conviction. His appellant's case contains two grounds of appeal. Ground 1 alleges that the trial judge made a wrong decision on a question of law by directing the jury that they were entitled to take into account evidence of what the complainant said to her mother in mid-2017 and/or on 17 June 2018 in judging her credibility and the truthfulness of her evidence, in circumstances in which that evidence was not admissible as evidence of recent complaint, alternatively such a direction occasioned a miscarriage of justice. Ground 2 alleges that his Honour made a wrong decision on a question of law by ruling that it was permissible for the prosecution to adduce evidence of the content of part of an exchange of WhatsApp messages, which passed between the complainant's mother and the appellant's wife on 18 June 2018, as evidence of an implied admission by the appellant.
By an application in an appeal filed on 19 August 2021, the appellant has applied for an order that he be released on bail pending the determination of his appeal.
The State proposes to concede ground 2 in its respondent's answer. The State does not oppose a grant of bail pending the determination of the appeal.
The principles relating to the granting of bail pending the 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). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospect 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,[3] 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].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, I will deal with the appellant's application for bail by considering whether he has a strongly arguable case that the appeal should be allowed, the judgments of conviction set aside and a new trial ordered.
I am satisfied at this stage (based on the information before me and having regard to the submissions made on behalf of the appellant and the State) that the appellant has a strongly arguable case, on the basis of ground 2, that the appeal should be allowed, the judgments of conviction set aside and a new trial ordered.
I consider that the merits of the appeal, based on ground 2, are of sufficient strength to justify a grant of bail. Also, I consider that the strength of ground 2, combined with the appellant's personal circumstances and antecedents, constitute exceptional reasons why he should not be kept in custody pending the determination of his appeal. Further, I am satisfied 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. I note that the appellant was released on bail prior to his trial in the District Court and there is no evidence before the court that the appellant breached any of the conditions of his bail.
The appellant's application for bail should be granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AHM
Research Associate to the Hon President Buss
27 AUGUST 2021
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