TWR v The State of Western Australia

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

The appellant, TWR, appealed against his conviction on multiple counts of sexual offences against a child under 13 years of age. The trial was held in the District Court of Western Australia, presided over by Troy DCJ, who found the appellant guilty on all counts. The appellant was sentenced to a total effective term of 7 years and 9 months' imprisonment. The grounds for appeal included allegations of errors in the trial judge's directions to the jury regarding the admissibility of certain evidence and the ruling on the admissibility of WhatsApp messages. The State did not oppose the appellant's application for bail pending the determination of the appeal.

The legal issues in the case revolved around whether the trial judge made errors in admitting certain pieces of evidence that potentially prejudiced the jury's decision. Ground 1 of the appeal argued that the trial judge wrongly allowed the jury to consider inadmissible evidence of what the complainant said to her mother, while Ground 2 argued that the judge improperly admitted evidence from WhatsApp messages between the complainant's mother and the appellant's wife. Additionally, the court needed to determine if there were exceptional circumstances justifying the appellant's release on bail pending the appeal's determination.

The Court of Appeal, presided over by Buss P, found that the appellant had a strongly arguable case on Ground 2, which concerned the admissibility of the WhatsApp messages. The Court considered the merits of this ground to be sufficiently strong to warrant the granting of bail. Additionally, the Court noted the appellant's personal circumstances and antecedents, which, combined with the strength of the appeal, constituted exceptional reasons for not keeping him in custody. The Court concluded that it was proper to grant bail under the provisions of the Bail Act 1982 (WA). The appellant's previous release on bail without any breaches of conditions further supported the decision.

The Court of Appeal granted the appellant's application for bail pending the determination of his appeal against conviction. The decision was based on the strongly arguable nature of Ground 2, the appellant's personal circumstances, and the precedent of prior adherence to bail conditions. The Court emphasized that the appellant's release on bail was justified under the exceptional circumstances presented in this case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established