VRL v The State of Western Australia
[2023] WASCA 47
•23 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VRL -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 47
CORAM: BUSS P
HEARD: 23 MARCH 2023
DELIVERED : Ex tempore
FILE NO/S: CACR 18 of 2023
BETWEEN: VRL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 454 of 2021
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of indecent dealing with a child under 13 years - Application for bail pending the determination of the appeal, alternatively for an urgent appeal order
Legislation:
Bail Act 1982 (WA), cl 1 and cl 3 of pt C sch 1, cl 4A of pt C sch 1
Criminal Procedure Act 2004 (WA), s 115
Result:
Application for bail dismissed
Application for urgent appeal order dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr C M Townsend |
| Respondent | : | Mr R P Arndt |
Solicitors:
| Appellant | : | Timpano 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
Timbrell v The State of Western Australia [2013] WASCA 74
BUSS P:
(This judgment was delivered extemporaneously on 23 March 2023 and has been edited from the transcript.)
The appellant has appealed against conviction.
The appellant was convicted, after a trial before Burrows DCJ and a jury, of one count of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA). The trial began on 29 August 2022 and ended on 31 August 2022.
On 15 November 2022, the trial judge sentenced the appellant to two years' immediate imprisonment with eligibility for parole. The sentence commenced on that date. The appellant will become eligible to be considered for release on parole on 15 November 2023.
On 3 February 2023, the appellant filed his appeal notice in respect of the conviction. The appellant requires an extension of time. The last date for appealing was 6 December 2022.
On 22 February 2023, the appellant filed the appellant's case.
The appellant relies upon two grounds of appeal. Ground 1 alleges, in essence, that a miscarriage of justice occurred because the trial judge failed to enquire, at the first opportunity or at all, as to the nature of the relationship between Juror 642 and the interviewer in the child witness interview with the complainant. Ground 2 alleges, in essence, that a miscarriage of justice occurred because her Honour failed to enquire of Juror 642 or the other jurors whether anything had transpired which may influence the other jurors in the discharge of their duty.
On 24 February 2023, I ordered that the appellant's application for an extension of time to appeal and for leave to appeal be referred to the hearing of the appeal.
On 20 March 2023, the respondent filed the respondent's answer.
On 2 March 2023, the appellant filed an application in the appeal. The appellant has applied for bail pending the hearing of the appeal; alternatively, for an urgent appeal order. The application is supported by an affidavit sworn on 1 March 2023 by the appellant's lawyer, Ms More.
The State opposes the appellant's application.
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 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 judgment of conviction set aside and a new trial ordered.
The indictment alleged that the charged offence occurred on an unknown date between 11 May 2012 and 10 May 2014, when the complainant was aged 6 or 7 years.
The appellant did not give evidence at the trial, but he denied the allegations in an electronic record of interview with police. The appellant's case was that the incident during which the indecent dealing allegedly occurred did not happen.
On 29 August 2022 (being the first day of the trial), when the complainant's child witness interview was played to the jury, Juror 642 disclosed in open court that she thought she knew the child witness interviewer (ts 126). The trial judge enquired whether Juror 642 thought that her knowing the interviewer would affect her objectivity and impartiality (ts 126). Juror 642 said she did not think it would (ts 126). No submissions were made at the time by the prosecutor or defence counsel (ts 126). The interaction between the trial judge and Juror 642 took place in the presence of the other jurors.
After the complainant's child witness interview was played to the jury, a juror provided a note to the trial judge (ts 128). The precise contents of the note and the identity of the juror who provided the note are unknown.
After the complainant's child witness interview was played to the jury, defence counsel submitted that the trial judge should make enquiries of Juror 642 as to how well Juror 642 knew the interviewer, what the nature of the relationship was between Juror 642 and the interviewer and whether that relationship would impact upon Juror 642's ability to be a member of the jury (ts 129).
The trial judge questioned Juror 642, in the absence of the other jurors, as to whether she could remain true to her oath or affirmation by virtue of the knowledge she had of the interviewer (ts 129 – 130). Juror 642 said she could continue to sit on the jury and be true to her oath (ts 130). Her Honour did not ascertain whether Juror 642 was the author of the note provided by a juror to her Honour. Defence counsel was satisfied with the enquiry made by her Honour (ts 130).
On 30 August 2022 (being the second day of the trial), the State adduced evidence from the investigating police officer, Detective Senior Constable Cecchele. At the beginning of the investigating officer's evidence, Juror 642 disclosed in open court that she knew the witness (ts 160). The trial judge enquired of Juror 642, in the presence of the other jurors, whether Juror 642 thought that her knowing the witness would prevent her from being impartial. Juror 642 said it would not (ts 160). Her Honour enquired of the prosecutor and defence counsel whether any further enquiry should be made (ts 160). Defence counsel submitted, in effect, that there should be further enquiry, given Juror 642's knowledge of the child witness interviewer (ts 161).
The trial judge then enquired of Juror 642, in the absence of the other jurors, about the nature of Juror 642's relationship with the witness. Juror 642 said she was aware that the witness worked for the child abuse squad. Juror 642 also said she had worked alongside the witness as a child protection worker (ts 161). Her Honour enquired whether, by virtue of her knowledge of the witness or her role as a child protection worker, Juror 642 would be able to be an impartial or objective juror (ts 161). Juror 642 said she could be impartial (ts 161). Her Honour did not enquire as to the time that had elapsed since Juror 642 had worked alongside the witness.
Defence counsel submitted that there was a risk of bias on Juror 642's part, by reason of her knowledge of the interviewer and the investigating police officer and by reason of her having previously worked alongside the investigating police officer as a child protection worker. Defence counsel submitted that Juror 642 should be discharged from the jury (ts 162).
The trial judge accepted that there could be a perception of bias (ts 162). Her Honour accepted defence counsel's submission and discharged Juror 642 from the jury (ts 162). Her Honour did not enquire, either of Juror 642 or of the remaining jurors, whether any communications had occurred between Juror 642 and the other jurors in relation to or based upon the facts and circumstances which culminated in Juror 642's discharge (ts 163).
After the discharge of Juror 642, the trial judge informed the other jurors that Juror 642 had been discharged and that the trial would continue with a jury of eleven members (ts 163). Her Honour did not enquire of the remaining jurors as to whether anything had transpired which may influence them in the discharge of their duty (ts 163).
The trial judge began her summing up to the jury on 31 August 2022, after input from the prosecutor and defence counsel (ts 220 ‑ 225). Neither the prosecutor nor defence counsel raised any issue with her Honour as to the content of her Honour's directions to the jury (ts 255).
The grounds of appeal raise for consideration whether a miscarriage of justice occurred at the trial as a result of the manner in which the trial judge dealt with the disclosure by Juror 642 during the trial that:
(a)Juror 642 knew the child witness interviewer; and
(b)Juror 642 knew the investigating police officer.
As to ground 1, it is necessary for the appellant to establish that the fact that Juror 642 knew the interviewer, who was not a witness and whose credibility was not in issue at the trial, gave rise to a reasonable apprehension of an absence of impartiality as between the State and the appellant. Further, it is necessary for the appellant to establish that a miscarriage of justice occurred because of the trial judge's failure to make further enquiries of Juror 642, even though Juror 642 was subsequently discharged.
As to ground 2, the discharge of one juror, and the continuation of the trial with the remaining jurors, is permitted by s 115 of the Criminal Procedure Act 2004 (WA). The appellant must establish that it was necessary for the trial judge to have done more than she did in order to ensure that the appellant received a fair trial. In particular, the appellant must establish that, where one juror is discharged on the ground of a reasonable apprehension of bias, the trial judge must undertake further enquiry of the juror who is to be discharged or of the remaining jurors to ensure that the remaining jurors are not 'infected' by the reasonable apprehension of bias in relation to the juror who is to be discharged.
I have considered the material relied upon by the appellant in support of his application for bail, including his appellant's case and his counsel's submissions.
I am not satisfied, at this stage, that the merits of the appellant's grounds of appeal, and the merits of his submissions in support of the grounds, are of sufficient strength to justify a grant of bail.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal.
The appellant's application for bail will therefore be dismissed.
I have considered the material relied upon by the appellant in support of his application for an urgent appeal order, including the affidavit sworn on 3 February 2023 by his lawyer, Mr Townsend, in support of the application for an extension of time to appeal, and the submissions made by the appellant's counsel.
The Court of Appeal listings for April, May and June 2023 have already been settled.
I am not persuaded, having regard to the delay of almost 2 months in filing the appeal notice and having regard to the date on which the appellant will become eligible to be considered for release on parole (namely 15 November 2023), that it is appropriate to make an urgent appeal order.
I will, however, direct that the appeal be listed for hearing during the July and August 2023 sittings of the court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YK
Associate to the Honourable President Buss
23 MARCH 2023
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