Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Bail pending appeal - Appeal against conviction - Manufacturing methylamphetamine - Prospects of success on appeal - Financial hardship to applicant's business, family and employees from his incarceration - Whether exceptional reasons

Bail Act 1982 (WA), Sch 1, Pt C, cl 4

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Fermanis v The State of Western Australia [2005] WASCA 212

Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316

R v Hoar [1981] HCA 67; (1981) 148 CLR 32

R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303

R v Zheng (1995) 83 A Crim R 572

Stalker v The Queen [2002] WASCA 364

Zoneff v The Queen (2000) 200 CLR 234

Carr v The Queen [1988] HCA 47; (1998) 165 CLR 314

Director of Public Prosecutions (Cth) v Abbott (1997) 97 A Crim R 19

Ex parte Maher [1986] 1 Qd R 303

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Masters v The Queen (1992) 26 NSWLR 540

R v Anthony [1962] VicRp 63; [1962] VR 440

R v Bernt (1994) 70 A Crim R 1

R v Ireland [1970] HCA 21; (1970) 126 CLR 321

R v Jellard [1970] VicRp 98; [1970] VR 802

R v Lowery & King (No 2) [1972] VicRp 63; [1972] VR 560

R v Renzella [1997] 2 VR 88

R v Walser (1994) 73 A Crim R 154

R v Whitehouse [1977] EWCA Crim 2; [1977] QB 868

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Walsh v Sainsbury [1925] HCA 28; (1925) 36 CLR 464

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

Wilson v The Queen (1994) 34 NSWLR 1

1 ROBERTS-SMITH JA: This application for bail pending appeal was heard on 24 November 2005.

2 On 3 October 2005 the applicant was convicted following a trial before his Honour Judge O'Sullivan in the District Court at Perth on one count of manufacturing methylamphetamine and sentenced to imprisonment for 40 months with an order that he be eligible for parole.

3 The appeal notice was filed on 25 October 2005. It sets out five grounds of appeal against conviction. I shall return to them below.

4 The applicant's case has not yet been filed in accordance with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA).

5 The application is strongly opposed by the respondent.

6 The applicant relies upon an affidavit of Belinda Jane Hayley, sworn and filed on 4 November 2005. She is the applicant's de facto partner. She deposes that she and the applicant were jointly charged with manufacturing methylamphetamine on an indictment dated 18 June 2004. Each was convicted following trial. Ms Hayley was sentenced to 40 months imprisonment also, but his Honour made an order that the sentence be suspended for a period of 2 years. She too has filed an appeal notice seeking leave to appeal against conviction.

7 She and the applicant have been in a de facto relationship for approximately 12 years and of that relationship they have four children (all boys) who presently live with her. They are aged between 4 and 10 years.

8 The family live in Geraldton where the applicant had a concrete and shed manufacturing business. The structure of the business is that the applicant is the sole director of B. Co Rural Pty Ltd ("the company"). Ms Hayley performs secretarial duties for the company and the applicant, amongst other duties, drove the company's concrete truck and delivered concrete as ordered.

9 Ms Hayley deposes that the applicant was also formerly the director of B. Co Welding Services Pty Ltd ("the welding company") that operated from the same premises, but as a result of the time and money spent by the two of them preparing for their trial, the welding company suffered financially and went into liquidation approximately three months ago. At that time, in addition to the applicant and Ms Hayley, the welding company employed two people on a full-time basis.

10 Ms Hayley is currently 32 years of age and the applicant is 48 years of age.

11 There is no dispute about the legal principles which apply to the determination of this application. A single Judge of the Court of Appeal has power to grant or refuse an application for bail pending an application to the Court of Appeal for leave to appeal (s 13(1) and Item 4(1) of Pt A of Sch 1 (previously Item 4(d)) to the Bail Act 1982 (WA); s 28(4) of the Acts Amendment (Court of Appeal) Act 2004 (WA)).

12 By cl 4 of Pt C of Sch 1 to the Bail Act, in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings, the Judge must consider whether there are exceptional reasons why the offender should not be kept in custody, and if there are, even then shall grant bail only if satisfied bail may properly be granted having regard to the ordinary considerations relevant to any application for bail.

13 The "exceptional reasons" relied upon by the applicant here are said to be a combination of the strong prospect that the appeal will succeed, and the serious consequences (essentially financial) which the applicant and his business enterprise and employees will suffer should he remain in custody pending the outcome of his appeal.

14 Where the prospect of success of an appeal is one of the matters relied upon as establishing exceptional reasons, the law is that something more than an arguable case must be shown; it must be shown without detailed argument that the appeal is most likely to succeed (Stalker v The Queen [2002] WASCA 364 at [19] - [40]; R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303). In Fermanis v The State of Western Australia [2005] WASCA 212, I said with respect to this:

"15 There is, in my view, no particular distinction between expressions such as 'most likely to succeed' and 'strong grounds for concluding the appeal would be allowed'. Neither purports to set some specific threshold of potential success. In context, each is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the applicant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.

16 I would accept the submissions made by Mr Scott on behalf of Fermanis that as a general proposition the authorities reflect that exceptional reasons in this context primarily involve a consideration of the strength of the grounds of appeal and the effect of the applicant serving a substantial portion of his sentence thus rendering a successful appeal a hollow victory (AC v The Queen [2003] WASCA 280; Hickey v The Queen [2002] WASCA 221; R v Walser (1994) 73 A Crim R 154; R v Bernt (1994) 70 A Crim R 1; Johansen v The Queen, unreported; CCA SCt of WA; Library No 980087; 23 February 1998)."

15 In that case the second factor which was said to constitute an exceptional reason was the likely delay before the hearing of the appeal.

16 So far as the financial hardship aspect of this application is concerned, Ms Hayley deposes to specific instances of lost jobs or contracts which the company would otherwise have been able to perform, but which it was not able to do because of the applicant's incarceration. I need not set out those details here. In summary, she deposes that the total cost of work lost by the company since 27 September 2005 is approximately $186,253. She states that since their trial commenced on 27 September 2005, and subsequently, as a result of the applicant's incarceration, the fabrication side of the company has closed down and unless the applicant is granted bail pending appeal so that he can resurrect the failing business, she believes the concrete side of the company will very soon need to close down. She deposes that because of the applicant's absence, the company now has only a minimal income flow as it is able to produce only some concrete troughs rather than the significant fabrication construction and manufacturing work it was previously doing. She says the only employee now working for the company is one James McCleary who is 22 years of age and has only recently obtained his driver's licence, which licence is not of a category which allows him to drive the company's concrete truck. Ms Hayley deposes that as at the date of her affidavit she was unable to give work to any of the other former workers employed by the company as she was unable to pay them at the end of the week and consequently had to stand down five full-time workers and two part-time employees.

17 Consideration of the proposition that the applicant has a good prospect of success on appeal to such an extent as, either by itself or in combination with some other factor, to constitute an exceptional reason why he should not be kept in custody pending that appeal, calls for consideration of the grounds of appeal. That consideration must necessarily be capable of leading only to an interim or prima facie view.

"Ground 1

The charge was that the Appellant, with another, manufactured a prohibited drug contrary to s 6(1)(b) of the Misuse of Drugs Act 1981.

The learned trial Judge erred and there was a miscarriage of justice when, on one basis he put the charge to the jury as a conspiracy to manufacture when the Appellant and his co-defendant entered into an agreement or what amounted to an agreement (t-s 317E)

Ground 2

The learned trial Judge erred when he put the position of the Appellant and his co-accused, regarding their standing as parties to the offence, in a conflicting way;

(i) Initially His Honour stated that either one of them was the principal and the other gave assistance (t-s 3 1 9A).

(ii) Conversely, the learned trial Judge later stated in his summing up that either they were each principals or, alternatively, they were each aiders (t-s 328B).

Ground 3

The learned trial Judge erred when he failed to give a lies direction to the jury during his summing up. However, counsel for the Respondent raised the issue of lies by the Appellant's co-defendant (t-s 248E-249B) and, further, it was also suggested the Appellant was also lying (t-s 298D).

Ground 4

Notwithstanding that the Appellant's co-defendant gave evidence that implicated, to a degree, the Appellant, the learned trial Judge did not direct the jury at all as to how the evidence of one co-accused could be used against the other.

Ground 5

If not sufficient so as to individually found a miscarriage of justice, the above four grounds, when viewed cumulatively, are such that a miscarriage of justice occurred." (Emphasis in original)

19 On 14 August 2002, police and customs officers went to the applicant's home in Geraldton and executed a search warrant. They found items which on the State case were ingredients and equipment for making methylamphetamine. They included Sudafed tablets and the remains of Sudafed packaging, methylated spirits, caustic soda and acetone. In two separate glass jars was found a white residue which when later examined was identified as comprising a mixture of pseudoephedrine and methylated spirits. That is the end of the first of a three stage process for the manufacture of methylamphetamine. The next stage is to cook that product with iodine and hypophosphorous acid. That is the second stage. The third and final stage involves purification of the product to the prohibited drug in a powder form.

20 The equipment found included a five litre glass flask, a blender attachment and a large white plastic funnel, all found in the kitchen cupboard of the premises. In the same cupboard the police found three glass pasta sauce jars, two other glass jars, two electric frypans, a rubber stopper in a drawer next to a kitchen oven and two face respirators (masks) and three electric scales. Traces of methylamphetamine and pseudoephedrine were found in or on some of these items. Quantities of Sudafed and similar types of tablets were found in other places in the house, as was empty packaging for tablets of that kind.

21 On a later occasion police returned to the property with a chemist from the Chemistry Centre. He took swabs from the kitchen and other parts of the premises with a view to analysing them to determine whether or not traces of relevant chemicals were present. According to the State case, none were detected. The prosecution position with respect to that was that the result was equally consistent with either manufacturing not having occurred or that it had occurred but the surfaces swabbed had subsequently been cleaned.

22 The chemist, Dr Reynolds, gave evidence that the ingredients and equipment found by the police were consistent with them having been used in the manufacturing of methylamphetamine and that the tablets and white residue which were found, could have been used to manufacture approximately 24 grams of 80 to 90 per cent pure methylamphetamine powder.

23 Police officers also found documents at the house on 14 August 2002 relating to the purchase or attempted purchase of chemicals which could be used for the production of methylamphetamine. Further inquiries also led to the discovery of similar documentation from chemical supply businesses which had been approached by either the applicant or his co-offender, Ms Hayley. These purchases, or attempted purchases, included significant quantities of hypophosphorous acid and iodine.

"The state [sic] says that the accused both engaged in the manufacture of methylamphetamine. The exact extent of each of their involvement may be unclear. The state [sic] only knows what you will know by the end of this trial. The exact extent of each of the [sic: their] involvement may be unclear but the combination of the evidence, of what was found by police, where it was found in their house, but not only in the house but where in the house and where outside the house.

Thirdly, what was done by the accused by way of buying chemicals or trying to buy chemicals suggests that the manufacturing of methylamphetamine occurred and that each of them had some part to place in the manufacture. They may have had different parts to play but they were both involved. The state [sic] cannot say exactly where or when the manufacturing happened or exactly how many people were involved in the manufacturing apart from that the accused were involved.

The state [sic] cannot say exactly how many people were involved if others were even involved, but what the state [sic] does say is that it did happen and that at least these two were involved if not others that we don't know about. ..."

25 I remind myself that on this application it is not my function to determine whether or not any ground of appeal would or should be upheld. I am considering the merits of the proposed appeal at this stage only in a limited way and confined to making an assessment whether or not the prospect of the appeal succeeding is sufficiently strong, either of itself or in combination with other circumstances, as to constitute an exceptional reason why the applicant should not be kept in custody pending the hearing of his appeal.

26 Ground 1 clearly does not have that prospect of success. The prosecution case, relying upon two individuals committing an offence together, might well involve an actual agreement (express or implied) to commit it - as was the prosecution case here - or something much less, so long as it constitutes knowing participation, aiding or assistance in some way. That the mere agreement to commit the offence would itself constitute the offence of conspiracy, is of no moment. The authorities consistently make it clear that the substantive offence rather than a conspiracy ought to be charged where the offence is completed (R v Hoar [1981] HCA 67; (1981) 148 CLR 32). The trial Judge made no mention of the offence of conspiracy. His reference to the applicant and his co-offender entering into an agreement or what amounted to an agreement, was apt on the evidence to properly direct the attention of the jury to the need to be satisfied the applicant was criminally responsible under s 7(b) or (c) of the Criminal Code.

27 Ground 2: This ground does not have that prospect of success the applicant needs to demonstrate. The prosecution will frequently be unable to prove with particularity which of two or more co-offenders actually did what acts in the execution of an offence committed by them jointly. That was the situation here. The State put its case on the basis that although they could not prove those specifics, there were only two, or at most three, possibilities reasonably open and that no matter which one of those might actually have been the fact, the applicant was guilty. That was open on the evidence and the directions given by his Honour cannot be said to give rise in the way asserted by this ground, to a strong prospect of those directions being found to be in error.

28 Ground 3: In his submissions, counsel for the applicant put this as a ground that the trial Judge should have given a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. However, in Zoneff v The Queen (2000) 200 CLR 234 the High Court said (at [16] - [17]):

"As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 211, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. ...

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged. ..."

29 Here the State did not rely upon lies told by the applicant as evidence of guilt - nor could they, as what were said to be lies arose out of the proof of the prosecution case itself (see R v Zheng (1995) 83 A Crim R 572 per Hunt CJ at CL at 576 - 578). The Judge accordingly gave no direction to the jury at all about lies told by the two accused. If there is any question here, it would be whether the jury should have been told that evidence was relevant only to the applicant's credit (see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 at [44]).

30 In support of this ground, presented in that way, the applicant would have to satisfy the Court of Appeal that there was a real risk that without such a direction the jury may have relied upon alleged lies of the applicant as proof of his guilt, this giving rise to a miscarriage of justice. This ground has not been shown to have a strong prospect of success.

31 Ground 4: Counsel for the applicant was unable to identify any evidence given by the applicant's co-offender which implicated him. To the contrary, as Mr Meertens pointed out, the co-offender's evidence sought to exculpate both her and the applicant. That being so there was no reason for the Judge to give a direction in the terms expressed by this ground.

33 None of the grounds, either alone or in combination, has been shown to have a strong prospect of success. The adverse financial and other consequences being suffered by the applicant, his business and anyone else associated with or dependent upon him in any way, are the consequences of the offence of which he was convicted. In the absence of a strong prospect (to the extent I have indicated above) that his appeal against conviction would succeed, the adverse consequences his incarceration is having upon his personal and financial circumstances, do not constitute exceptional reasons why he should be released on bail pending the hearing of his appeal.