Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Bail pending appeal - Whether exceptional reasons for grant of bail - Turns on own facts

Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3, cl 4A

Road Traffic Act 1974 (WA), s 59(1)(a), s 59B(6)

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

Milenkovski v The State of Western Australia [2011] WASCA 99

Shrivastava v The State of Western Australia [2010] WASCA 96

1 McLURE P: This is an application for bail pending appeal against conviction. On 30 March 2012 the appellant was convicted after trial of driving a motor vehicle involved in an incident occasioning death while under the influence of alcohol and drugs to such an extent that she was incapable of having proper control of the vehicle, contrary to s 59(1)(a) of the Road Traffic Act 1974 (WA).

2 The appellant has lodged an application for leave to appeal against conviction on two grounds. Ground 1 is that there was a miscarriage of justice when the trial judge failed to adequately direct the jury on the causation defence in s 59B(6) of the Road Traffic Act. Ground 2 is that the trial judge erred when he failed to direct the jury on the defence of unwilled act in s 23A(2) of the Criminal Code (WA) (the Code).

3 On 20 November 2012 the appellant's application for leave to appeal was heard by the Court of Appeal which reserved its decision. Subsequent to the hearing, but on the same day, the court granted leave on ground 2. The application for leave on ground 1 has been referred to the hearing of the appeal.

4 The facts of the offending are as follows. The incident occurred on 1 November 2010 in the course of a journey from Derby to Broome. Ms Bin-Hitam and her four children, including the 17-month-old deceased, were passengers in the appellant's vehicle.

5 Ms Bin-Hitam was in the front passenger seat with the deceased in her lap. The three other children were in the back seat. Before leaving Derby the appellant had smoked cannabis and consumed alcohol. She continued to consume alcohol throughout the journey.

6 About seven kilometres from a roadhouse at which they had stopped, the vehicle went to the left and off the road. It rolled and came to a rest in bushes. The roll caused the deceased to be thrown from the vehicle which resulted in his death.

7 The appellant's blood alcohol reading was .12 at the time of the incident. Her THC reading was 2.9 mg per litre. A clinical pharmacologist gave expert evidence that no-one could safely drive a vehicle at the appellant's level of intoxication from alcohol and cannabis.

8 Broadly speaking, the primary factual issue at trial was whether Ms Bin-Hitam had pulled the appellant's arm and thereby caused the incident. The issue was framed in terms of s 59B(6) of the Road Traffic Act. Counsel did not request a direction on the defence of unwilled act in s 23A(2) of the Code and no such direction was given. This issue was raised for the first time in the application for leave to appeal.

9 Clause 4A of pt C of sch 1 of the Bail Act 1982 (WA) provides, in substance, that a judicial officer shall only grant bail pending appeal if he or she is satisfied there exist exceptional reasons why the appellant should not be kept in custody, and it is otherwise appropriate having regard to cl 1 and cl 3 of pt C of sch 1. See Milenkovski v The State of Western Australia [2011] WASCA 99 [37].

10 The test to be applied where the prospects of success of the appeal is one of the matters relied on in establishing exceptional reasons has been expressed in various ways. 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].

11 The appellant says exceptional reasons exist because ground 2 is strongly arguable. Although ground 2 is arguable, the court having given leave on that ground, I am not currently persuaded that it is properly described as strongly arguable. A review of the evidence at trial, the Appellant's Case and the Respondent's Answer suggests there is a real question as to whether there is sufficient or any evidence to support the conclusion that the appellant's act of driving the vehicle at the time of the incident occurred independently of the exercise of her will.

12 There is also the question whether, as a matter of statutory construction, s 23A(2) of the Code can have any operation in the context of s 59(1)(a) and s 59B(6) of the Road Traffic Act. That is especially so where the offence is premised on the accused's lack of capacity to properly control the vehicle.

13 I am not presently persuaded that the appellant's grounds are strongly arguable. It follows that she has failed to establish exceptional reasons why she should not be kept in custody. Accordingly, the application for bail pending appeal is dismissed.