WILLIAMS v The State of Western Australia
[2021] WASCA 184
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 184
CORAM: BUSS P
HEARD: 6 OCTOBER 2021
DELIVERED : 15 OCTOBER 2021
FILE NO/S: CACR 55 of 2021
BETWEEN: JOSEPH LUKE WILLIAMS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : ALB IND 19 of 2020
Catchwords:
Criminal law - Appeal against conviction - Bail pending the hearing of the appeal - Whether exceptional reasons why the appellant should not be kept in custody - Whether appeal strongly arguable - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA), s 24, s 319, s 325
Result:
Application for bail dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms E R Zillessen |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| 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 numerous counts of sexual offending.
On 4 March 2021, after a trial before Stevenson DCJ and a jury, the appellant was convicted of 11 counts of sexual penetration without consent, contrary to s 325(1) of the Criminal Code (WA) (the Code), and one count of unlawful and indecent assault, contrary to s 323 of the Code. The appellant was acquitted of one count of sexual penetration without consent and one count of unlawful and indecent assault. The offending occurred between 2010 and 2014.
The trial judge sentenced the appellant to 12 years' imprisonment. A parole eligibility order was made.
The appellant has appealed against conviction and sentence.
By an application in an appeal filed on 27 August 2021 in his conviction appeal, the appellant has applied for bail pending the determination of his conviction appeal. The application is supported by an affidavit of the appellant's lawyer, Emma Ruth Zillessen, sworn 27 August 2021.
I am of the opinion, for the following reasons, that the application for bail should be dismissed.
Relevant aspects of the State's case at trial
At all material times, the appellant was a member of the indigenous community in a country town in Western Australia.
The State's case was that the appellant used his professed cultural knowledge as a device to manipulate young women to submit to sexual acts under the false representation that it was part of a traditional Aboriginal ritual or ceremony.
The State alleged that:
(a)the appellant obtained the consent of the complainant in relation to counts 1 - 5 and the complainant in relation to counts 6 - 8 by deceit or fraudulent means; and
(b)the appellant sexually penetrated the complainant in relation to counts 9 and 10, the complainant in relation to count 11, the complainant in relation to count 12 and the complainant in relation to counts 13 and 14 without warning, and they did not consent to the penetration.
It was an aspect of the State's case that, in relation to counts 1 ‑ 8, the appellant had a propensity to engage in deceit for his own sexual gratification by inducing young women through deceit to engage in sexual acts under the false representation that the activity was part of traditional Aboriginal ritual or ceremony. It was also an aspect of the State's case, in relation to counts 9 and 11 ‑ 14, that the appellant had a propensity by deceit to penetrate women's vaginas with a stone under the false representation that it was part of traditional Aboriginal ritual or ceremony.
Relevant aspects of the appellant's case at trial
The appellant gave evidence at the trial.
The appellant admitted that some of the alleged sexual acts had occurred. However, he denied that most of the alleged sexual acts (including all of the acts the subject of counts 9 ‑ 14) had happened.
The appellant asserted that the sexual acts which had occurred were consensual.
The appellant denied that he had obtained any complainant's consent by deceit or fraudulent means. He also denied having made any false representation to procure consent.
However, the appellant admitted, in essence, that if he had made the alleged representations, they would have been false because the alleged sexual acts were not connected with any traditional Aboriginal ritual or ceremony. There was no suggestion at the trial that if the appellant had made the alleged representations, then he had done so for any other reason than to obtain consent.
The grounds of appeal
The appellant seeks to appeal against conviction on eight grounds.
Ground 1 alleges, in effect, that the verdict of guilty on count 1 was unreasonable and not supported by the evidence.
Ground 2 alleges, in effect, that the trial judge misdirected the jury in that his Honour failed to direct the jury that in order to find that:
(a)the appellant had obtained the consent of the relevant complainants by fraud; or
(b)the appellant had the alleged propensity to be fraudulent,
the jury had to be satisfied beyond reasonable doubt that 'the appellant intended by making the false representation to mislead the complainants for the purpose of obtaining consent (had an intent to defraud)'.
Ground 3 alleges, in effect, that the trial miscarried and was unfair because it was affected by the trial judge's 'implicit bias'; further or alternatively, by his Honour's 'lack of impartiality'.
Ground 4 alleges, in effect, that a miscarriage of justice has occurred because the State's case that 'an Aboriginal man obtained consent for sexual misconduct from non-Aboriginal women on the basis of implied representations that it was a traditional Aboriginal practice was predicated upon fundamental errors not adverted to by [the trial judge]', who failed to give a number of required directions on that issue.
Ground 5 alleges, in effect, that a miscarriage of justice occurred at the trial because the trial judge failed to give a proper Longman direction to the jury.
Ground 6 alleges, in effect, that a miscarriage of justice occurred at the trial because the trial judge erred:
(a)in deciding that the question of whether part of the anticipated evidence of a witness, RM, was prejudicial did not need to be answered;
(b)in deciding that part of the anticipated evidence of RM was 'probably' admissible; and
(c)by admitting opinion evidence that was significantly prejudicial and not significantly probative.
Ground 7, in effect, alleges that a miscarriage of justice occurred at the trial because the trial judge erred by failing to direct the jury that 'if they were not satisfied that the appellant was guilty of fraud, that a possible defence of reasonable mistake of fact as to consent might be considered for the remaining counts even though the appellant denied the acts occurred'.
Ground 8 alleges, in effect, that a miscarriage of justice occurred at the trial because the trial judge erred 'by retaining a member of the jury after he made it known to the jury and the Court that his own father had been treated in the past by the appellant's father using a vibrating stone'.
The statutory meaning of consent
Section 325(1) of the Code provides that a person 'who sexually penetrates another person without the consent of that person' is guilty of a crime.
Section 319 and s 325 are in ch XXXI of the Code.
Section 319(2)(a) provides:
For the purposes of this Chapter ‑
(a)consent means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.
Section 24 of the Code
Section 24 of the Code provides, relevantly:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The trial judge's directions in relation to consent
At the trial, the trial judge directed the jury in relation to consent in connection with counts 1 ‑ 8, relevantly and in essence, as follows:
(a)Did the appellant expressly or impliedly represent to the complainant that the act was part of traditional Aboriginal cultural practice for the purpose stated (the Representation)?
(b)Did the complainant honestly believe at the time the Representation was made that it was a true statement?
(c)Did the complainant, based on her belief at par (b) above, only agree to the appellant doing the act because of the Representation?
(d)Did the appellant know, at the time he made the Representation, that it was not true and not part of traditional Aboriginal cultural practice for the purpose stated?
(e)If the jury was satisfied beyond reasonable doubt that the answer was 'yes' to pars (a) ‑ (d) above, then the jury's verdict would be guilty.
The appellant's submissions on the bail application
Counsel for the appellant contended in support of the application for bail that grounds of appeal 2, 3 and 7 are strongly arguable.
As to ground 2, counsel submitted that a miscarriage of justice occurred at the trial because the trial judge failed to direct the jury that they must be satisfied beyond reasonable doubt that the appellant had a fraudulent intent when he made the alleged representations for the purpose of obtaining consent. According to counsel, it was not sufficient for the jury merely to be satisfied beyond reasonable doubt that the appellant made the alleged representations and that he knew the alleged representations were false. It was submitted that a direction that the jury must be satisfied beyond reasonable doubt that the appellant had a fraudulent intent was necessary both in relation to consent obtained by fraud and in relation to the fraudulent propensity upon which the State relied.
As to ground 3, counsel submitted that:
(a)the trial judge's interventions when the witnesses were giving their evidence; and
(b)his Honour's summing up,
involved numerous statements, comments and omissions by his Honour which tended to overstate the prosecution case, understate the defence case and display opinionated comment about how issues of fact might be resolved.
As to ground 7, counsel submitted that the trial judge erred in not directing the jury about the possible application of s 24 of the Code in relation to counts 9 ‑ 14. It was submitted that a defence under s 24 should have been left to the jury despite the appellant having denied in his evidence that any of the alleged sexual acts the subject of counts 9 ‑ 14 had happened.
According to counsel for the appellant, the strength of grounds 2, 3 and 7, in combination with the appellant's personal circumstances and history, constitute exceptional reasons why the appellant should not be kept in custody pending the determination of his conviction appeal.
The merits of the bail application
The principles relating to the granting of bail pending the hearing or 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. 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 prospects 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 have evaluated the appellant's application for bail having regard to whether any or all of grounds 2, 3 and 7 are strongly arguable.
I have examined the material and considered the submissions relied upon by the appellant in support of his application for bail, including the material and the submissions relating to the appellant's personal circumstances and history.
I am not satisfied at this stage, and without the benefit of the full argument that will occur at the hearing of the appeal, that the merits of the grounds of appeal (in particular, the merits of grounds 2, 3 and 7), including the merits of the appellant's submissions in support of the grounds, are of sufficient strength to justify a grant of bail.
In all the circumstances, I am not satisfied at this stage that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his conviction appeal.
I note that the appeals are likely to be listed for hearing in the January 2022 sittings of the court.
Conclusion
For these reasons, the appellant's application for bail is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
15 OCTOBER 2021
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