Zha v The State of Western Australia - [2019] WASCA 160

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ZHA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 160
CORAM:   MAZZA JA
HEARD:   2 OCTOBER 2019
DELIVERED          :   2 OCTOBER 2019
PUBLISHED           :   17 OCTOBER 2019
FILE NO/S:   CACR 102 of 2019
BETWEEN:   ZHA
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number             :   IND X of 2018

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional reasons - Urgent appeal order

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 4A

Result:

Application for bail pending appeal dismissed
Expedited appeal order granted

Representation:

Counsel:

Appellant	:	Mr A O Karstaedt
Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	NR Barber Legal
Respondent	:	The Director Of Public Prosecutions (WA)

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

Debono v The State of Western Australia [2019] WASCA 109
Durani v The State of Western Australia [2012] WASCA 172
KWLD v The State of Western Australia [No 2] [2013] WASCA 129

MAZZA JA:

On 2 October 2019, I made the following orders with respect to the appellant's application for bail pending appeal:
(1)The application for bail pending appeal filed 16 September 2019 is dismissed.
(2)An expedited appeal order is granted.

I then made various procedural orders with a view to the appeal being heard on 3 December 2019. I said that I would publish my reasons for dismissing the appellant's application for bail pending appeal and the making of an expedited appeal order at a later date. These are my reasons.
The appellant was charged on indictment in the District Court with three counts of sexually penetrating his son, whom I will refer to as X. Each count alleged that the appellant sexually penetrated X by introducing his penis into X's mouth and, at the time, X was a child under the age of 16 years. Each offence is contrary to s 329(2) of the Criminal Code (WA).
On 9 April 2019, after a two‑day trial before Lonsdale DCJ and a jury, the appellant was convicted as charged. He was later sentenced to a total effective sentence of 6 years' imprisonment with eligibility for parole.[1]
[1] ts 165.
On 1 July 2019, the appellant filed his notice of appeal against conviction.
On 16 September 2019, his appellant's case was filed. On the same day, the appellant filed his application for bail pending appeal.
In the appellant's case, the appellant advances two grounds of appeal. Ground 1 alleges that he suffered a miscarriage of justice as a result of the conduct of his trial counsel. This ground is supported by 16 particulars which, in general terms, allege a number of failures on the part of his trial counsel and conduct said to be prejudicial to the appellant's case.[2] As the appellant's counsel put it in oral submissions in this court, by ground 1, the appellant contends that trial counsel's representation of the appellant was inadequate 'from start to finish' and affected the outcome.[3]
[2] Appellant's case, 1 - 3.
[3] Appeal ts 8.
Ground 2 alleges a miscarriage of justice by reason of the trial judge failing to direct the jury to disregard an aspect of the evidence given by the victim's mother,[4] whom I will refer to as S.
[4] Appellant's case, 3.
Further, also on 16 September 2019, the appellant applied for leave to adduce additional evidence in the appeal in the form of an affidavit sworn by the appellant on 10 September 2019.
In support of the appellant's application for bail pending appeal, the appellant filed a further affidavit sworn by him on 10 September 2019, an affidavit sworn by his partner Marilyn Balois, on 9 September 2019, and an affidavit sworn by his solicitor, Neville Robert Barber, on 12 September 2019.
Each party has filed an outline of submissions with respect to the application for bail pending appeal, which I considered.
In addition, I had regard to the transcript of the trial including the closing addresses of counsel.

Background

The State's case was explained by the prosecutor in her opening address to the jury as follows. The appellant was married to S. Together, they had three sons, the eldest of whom is X. Although the children had their own bedrooms, they would frequently sleep with their parents. The appellant's and S's marriage was an unhappy one. In October 2013 they separated, but remained living under the same roof in different bedrooms. When the appellant and S separated, the children would sleep with one or other of their parents in their respective bedrooms.[5]
[5] ts 52 - 53.
In December 2014, the appellant moved out of the family home into other accommodation, but later returned in April 2015. S then moved out and rented her own accommodation. The appellant and S equally shared custody of the children; the children would spend one week with one parent and the next week with the other and so on.[6]
[6] ts 53.
The State alleged that while X and his siblings were living with the appellant in the family home, the incidents the subject of the first two counts on the indictment occurred.[7]
[7] ts 53.
X said, on 10 July 2017 in a visually‑recorded interview, that when he was 11 years of age, he and his two younger brothers were with their father in bed in the master bedroom. They had been watching the Simpsons on the television in that room. The two younger boys and the appellant fell asleep. X said that he was woken some time later in the middle of the night by his father pushing him down the bed until he was at the bottom of the bed. X said that his father forcefully shoved his penis into X's mouth, pushing it in and out. X said he pretended to be asleep and slowly climbed his way back up the bed (count 1).[8]
[8] ts 53 - 54.
About three or four months later, on another occasion when X and his brothers were in their father's bed at the family home, the appellant once again pushed his penis into X's mouth (count 2).[9]
[9] ts 54.
On neither of these occasions did X confront his father, nor did he immediately complain to anyone about what had happened.[10]
[10] ts 54.
Eventually, the family home was sold and the appellant moved to his own house. It was at this location that count 3 was alleged to have occurred. This time, X was alone at the house with the appellant. According to X, after he had gone to sleep, he had woken because he was scared of the dark. X then got into his father's bed and hugged him. X said that, while he was asleep, the appellant pushed him underneath the quilt and put his penis into X's mouth. X said, in the visually‑recorded interview, that he was awoken to the sensation of something in the back of his lungs and a feeling that his throat was hurting. X did not make an immediate complaint about this incident.[11]
[11] ts 55.
The State's case was that on 9 July 2017, when X was due to go the appellant's house for the week, X told his mother that the appellant 'sexually abuses me'.[12] S contacted the police and the appellant was arrested on 13 July 2017.[13]
[12] ts 56.
[13] ts 56.
The State foreshadowed calling three witnesses: X, S and Detective Senior Constable Alison Burns, the police officer in charge of the investigation. X's evidence was pre‑recorded on 25 October 2018.[14] On that occasion, X essentially confirmed what he had said in the visually‑recorded interview and was cross‑examined by defence counsel.
[14] ts 65.
The State's case against the appellant relied upon X's evidence. There was no forensic or other evidence which corroborated X's account of what the appellant did to him in respect of the charges on the indictment.
The prosecutor encapsulated the State's case in her opening address in this way:[15]
Members of the jury, the State's case simply put is this. Both when [the appellant] and S were together and after they had separated, it was a common occurrence for [the appellant's] son, [X], to sleep with him in bed. On three such occasions [the appellant] took the opportunity to seek sexual gratification. The first two occasions occurred at what had been the family home after [S] had moved out. [X] was then nine years of age. His two younger brothers were asleep in the bed at those times.
The third occasion occurred at [the appellant's] new home when [X] was 11 years of age. No one else was home on that occasion. Each of the three occasions started in almost exactly the same way. In the middle of the night when [X] had been fast asleep, [the appellant] pushed him down the bed underneath the covers until his head was somewhere around [the appellant's] waist level. On each of those three occasions [the appellant] then put his penis into [X's] mouth.
So I have told you what the trial is about.
[15] ts 60.
In his short opening address, defence counsel focused on the pre‑recorded evidence of X. Defence counsel suggested that once the jury had seen and listened to his evidence, they should conclude that it 'can't be real'. Defence counsel observed that X's allegations arose in the context of 'a matrimonial breakdown' and that X was unhappy with his living arrangements. Defence counsel suggested that X made his 'claims' to solve the problem X had with those arrangements. Defence counsel made clear that the appellant denied 'anything happened'.[16]
[16] ts 61.
The trial proceeded swiftly. The evidence of X comprised his visually‑recorded interview, which was played to the jury,[17] and his pre‑recorded evidence of 25 October 2018.[18] S gave brief evidence, including as to the separation between the appellant and her on 30 October 2013[19] and their respective living arrangements from that time. She testified that she and the appellant reached a shared custody arrangement with their children. As she put it:[20]
[The appellant] and I both decided that it was for the best of our kids if they had both their father and their mother. So it was fair that they saw both their father and their mother.
[17] ts 65, MFI 1.
[18] ts 66, MFI 2.
[19] ts 71.
[20] ts 72.
She said that the shared custody arrangement was maintained until X disclosed to her the appellant's alleged sexual abuse.[21]
[21] ts 72.
When asked about her relationship with the appellant while they were together, S described him as 'a good father to his children'.[22] She testified that the appellant gave the children a smack to the face or 'their behind' if they misbehaved.[23]
[22] ts 73.
[23] ts 74.
At the end of her examination‑in‑chief, S described how X disclosed the allegations to her and that, before she contacted the police, she:[24]
… contacted my friend Janice, who also works for the Department of Education, and asked her to come over because I needed a second set of ears that's unbiased to hear it and determine whether it was the truth … and then I called the police.
It is this evidence which is the subject of ground 2.[25]
[24] ts 77.
[25] Appellant's case, 3.
In cross‑examination, S agreed that she told X that he could not live with her full‑time as the custody arrangement which had been made required him to live with both S and the appellant. S agreed with the proposition put to her by defence counsel that X did not like the shared custody arrangement and wanted to live with her full‑time.[26]
[26] ts 77.
S also agreed that it was quite normal for her children to sleep either with her or the appellant.[27]
[27] ts 78.
S agreed that, after X had spoken to the police about the allegations against the appellant, X told her that he believed the appellant did what he did while he was asleep and that the appellant did not know what he was doing.[28]
[28] ts 79.
The last witness for the State was Detective Burns. It is unnecessary to summarise her evidence other than to note that, in cross‑examination, she confirmed that the appellant had no record of any kind of offending, including assaults and 'child molesting'.[29]
[29] ts 81.
The State's case finished at 2.57 pm on the first day of the trial.
The appellant elected to give evidence. His examination‑in‑chief was very brief and is recorded in half a page of transcript.[30] In addition to confirming his name and providing the jury with information as to his age and address, the appellant denied that he had sexually penetrated X or that he had ever committed any indecent act towards X.[31]
[30] ts 82.
[31] ts 82.
The appellant was cross‑examined by the prosecutor. The prosecutor focused on the appellant's use of corporal punishment and discipline of his children, including X. The appellant admitted that he had used corporal punishment on his children, including X.[32] He denied propositions put to him by the prosecutor to the effect that he had, in fact, sexually penetrated X as he had alleged.[33]
[32] ts 94 - 96.
[33] ts 96, 98.
The appellant called no other witnesses in his defence. Counsel closed the defence case at approximately 3.31 pm on the first day of the trial.
On the second day of the trial, 9 April 2019, counsel made their closing addresses, following which the trial judge summed up the case to the jury. The appellant makes no complaint about her Honour's summing up.
For present purposes it is unnecessary to summarise the closing addresses. The appellant pointed out in his written submissions in support of ground 1 that, when compared to the prosecutor's closing address, defence counsel's closing address was very brief.[34] In this regard, the transcript reveals that the prosecutor addressed the jury for approximately 52 minutes, while defence counsel addressed for approximately 15 minutes.
[34] Appellant's case, [91].

Legal principles

Clause 4A of pt C of sch 1 of the Bail Act 1982 (WA) relevantly provides that a judicial officer shall only grant bail to an accused person who is in custody waiting for the disposal of appeal proceedings, if satisfied that (a) exceptional reasons exist; and (b) it is proper to do so, having regard to the provisions of cls 1 and 3 of pt C of the schedule.
In the present case, it was not suggested that it would not be proper to grant bail having regard to cls 1 and 3 of pt C of the schedule. Therefore, the decisive point is whether exceptional reasons exist for granting bail.
As I recently said in Debono v The State of Western Australia,[35] the use of the word 'exceptional' in cl 4A denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the circumstances of each particular case and can, of course, be constituted by a combination of factors. However, when considering whether exceptional reasons exist, the strength of the appellant's case will almost always be an important, if not decisive, consideration. It is usually necessary for an appellant to demonstrate that his or her grounds of appeal are strongly arguable and, without detailed argument, that the appeal is most likely to succeed. Put another way, the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction (or sentence). See KWLD v The State of Western Australia [No 2].[36]
[35] Debono v The State of Western Australia [2019] WASCA 109 [22].
[36] KWLD v The State of Western Australia [No 2] [2013] WASCA 129 [23] ‑ [25].

Disposition

In deciding whether or not to grant bail pending appeal, I have, in addition to the oral submissions which were ably put to me by both counsel, had regard to the materials referred to in [7] ‑ [12] of these reasons.
In support of the application for bail pending appeal, counsel for the appellant submitted that defence counsel's preparation for the trial and his representation of the appellant during the trial was completely inadequate. Counsel for the appellant focused on a number of alleged deficiencies, including:
(a)that in the pre‑recording of X's evidence, defence counsel cross‑examined on an incorrect factual basis, that is, on a factual basis different to the appellant's instructions;[37]
(b)defence counsel, without the appellant's knowledge, agreed to edits of X's visually‑recorded interview without the appellant's instructions, and in way which was prejudicial to the interest of appellant;[38]
(c)the case theory adopted by defence counsel in his opening address changed in his closing address;[39]
(d)defence counsel failed to adduce evidence of good character;[40] and
(e)defence counsel's closing address was inadequate, unclear and confusing.[41]
[37] Appellant's case, [1] 1; appeal ts 11 - 15.
[38] Appellant's case, [1] 1; appeal ts 27.
[39] Appellant's case, [1] 1; appeal ts 17.
[40] Appellant's case, [1] 2; appeal ts 19.
[41] Appellant's case, [1] 3; appeal ts 39.
As to ground 2, the appellant contended that the jury would have understood the impugned evidence given by S as that S's friend Janice had spoken to X and determined that the allegations were true. It was submitted that the evidence was inadmissible hearsay and opinion evidence. Further, it gave rise to significant prejudice to the appellant and therefore the learned trial judge should have directed the jury to disregard that part of S's evidence, but failed to do so.
In considering the merit of ground 1, the appellant faces some difficulty. Some of the particulars which support ground 1 involve assertions by the appellant that he provided defence counsel with certain materials and instructions which were either not used at the trial or were ignored or misunderstood. At the hearing of the bail application, no affidavit had been filed by defence counsel setting out his account of events. I note that, since the hearing, an affidavit sworn by defence counsel in answer to the factual assertions made by the appellant has been filed. At this stage, it is not possible, nor is it appropriate, to arrive at any conclusions with respect to the appellant's various factual allegations. That is a matter that will have to be resolved at the hearing of the appeal when, I have been told, the appellant and defence counsel will give oral evidence.
Counsel for the appellant submitted that even if the particulars in ground 1, which relied upon the factual assertions of the appellant, are put to one side, it is clear from a perusal of the transcript that ground 1 is strongly arguable.[42] It is enough at this point to say that I do not accept this submission.
[42] Appeal ts 15.
It might fairly be said that defence counsel adopted an approach in his cross‑examination of X and S which was brief and not confrontational. His opening and closing addresses were also brief. He did not assert that X was lying, nor did he directly assert that S manipulated X to give false evidence.[43] Such an approach may be forensically justified.
[43] Closing remarks ts 27 - 31.
Turning to the particular matters raised by counsel for the appellant and summarised at [43], I make the following observations:
(1)Until this court can find as fact the instructions the appellant gave to defence counsel, the strength of (a) cannot be ascertained.
(2)I have not been persuaded that (b), (c) and (e) are strongly arguable.
(3)While it is true that defence counsel did not call evidence of good character as pointed out in (d), the failure to do so does not necessarily give rise to a miscarriage of justice: see Durani v The State of Western Australia.[44] Further, as I have said, the jury had before it Detective Burns' evidence that the appellant had no record of offending and S's evidence that the appellant had been a good father.
(4)As to the impugned evidence the subject of ground 2, S's testimony did not go so far as to reveal whether Janice actually spoke to X, or if she did what he said or what Janice's opinion was. I have not been persuaded that this point is strongly arguable.
[44] Durani v The State of Western Australia [2012] WASCA 172.

Having considered all of the material and the submissions made on behalf of the appellant, I have not been persuaded that the grounds of appeal are sufficiently strong to justify a grant of bail pending appeal.
Along with the merits of the grounds of appeal, the appellant relied upon a further factor, namely, that his partner, Ms Balois, is pregnant with his child and, in his absence, has suffered psychological distress.[45] Annexed to Ms Balois' affidavit is a short letter from a psychologist, who attests to Ms Balois' distressed psychological state.[46] Ms Balois states that she has no support apart from the appellant and requires his support, particularly at the birth of their child.[47] I was told from the bar table that Ms Balois was due to give birth on 14 November 2019.[48]
[45] Appellant's affidavit sworn 10 September 2019, 2.
[46] MB 1, Ms Balois's affidavit sworn 9 September 2019.
[47] Ms Balois's affidavit sworn 9 September 2019, 2.
[48] Appeal ts 32.
For the purpose of this bail application, I accept Ms Balois' evidence that she is economically and psychologically distressed by the appellant's incarceration. I also accept that it will be distressing for both Ms Balois and the appellant if the appellant is not able to be at the birth of their child. However, I do not regard this evidence, by itself or in combination with the merit of the appellant's grounds of appeal, as being sufficient to justify a grant of bail pending appeal in this case.
To conclude, I was not persuaded that exceptional reasons existed for a grant of bail pending appeal. Accordingly, the application was dismissed.
However, having regard to the appellant's personal circumstances and to Ms Balois' position, I was prepared make an order for an expedited hearing of the appeal. I made inquiries and ascertained that the earliest day on which the court could hear the appeal is 3 December 2019. After making orders dismissing the application for bail, but granting an expedited hearing, I made programming orders to allow the appeal to proceed on that day.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
17 OCTOBER 2019