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

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Johansen v The Queen, unreported; CCA SCt of WA (Wallwork J); Library No 980087; 23 February 1998

Peacock v The Queen [1911] HCA 66; (1911) 13 CLR 619

Penney v The Queen [1998] HCA 51; (1993) 155 ALR 605

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

R v Clarke (1995) 78 A Crim R 226

R v Maleckas [1991] VicRp 30; (1991) 1 VR 363

1 ROBERTS-SMITH J: This is an application for bail pending appeal following the applicant's conviction in the District Court of one count of attempting to pervert the course of justice. I will return to the details of that shortly. The applicant is unrepresented. He has been before different Judges of this court on several occasions. There has been considerable confusion about this matter and it has taken a deal of sorting out. It is necessary to set out briefly the circumstances leading up to the hearing of this application today.

2 In March 2002 the applicant was convicted before his Honour Judge A Jackson and a jury in the District Court of one count of fraud involving the fraudulent use of a Ministry of Justice SIM card. A fine of $2000 was imposed. The applicant instituted an appeal against that conviction. That became file CCA 52 of 2002 in this court. I understand it was sent through to the Court of Criminal Appeal for hearing on 15 November last year but the applicant filed an application on 12 November to vacate that hearing and it has gone through to March for mention.

3 On 26 August 2002 the applicant was convicted after trial by Judge H H Jackson and a jury in the District Court at Perth on the count of attempting to pervert the course of justice. He was remanded in custody for sentence. By application dated 13 September 2002, and apparently filed on that date, the applicant applied for bail. That was expressed to be "to enable the applicant to properly prepare and conduct his appeal." The document made no mention of what appeal that was. The application was given file number MCS 58 of 2002, which has also been shown on occasion as MCR 58 of 2002.

4 It was from this point that confusion began to appear. By notice dated 13 September 2002 and filed in this court on 17 September 2002, the applicant applied for leave to appeal against conviction for attempting to pervert the course of justice and also appeal against sentence. That document was given file number CCA 172 of 2002.

5 On 26 September 2002 on file CCA 172 of 2002, the registry received a letter from the applicant dated 18 September enclosing particulars of grounds of appeal. An affidavit dated 10 October in support of the application for bail on file MCS 58 of 2002 was received on 18 October 2002. The applicant appeared before Miller J on 22 October. A transcript of that appearance was on file MCS 58 of 2002. His Honour was dealing with the application for bail.

6 In the course of the hearing it was ascertained that the application was in respect of the conviction on 28 August. Counsel for the respondent on that occasion pointed out that the applicant had not been sentenced at that stage. He had been remanded in custody to 1 November 2002 for sentence.

7 Miller J pointed out that to succeed on an application for bail pending appeal against conviction the applicant would have to demonstrate exceptional circumstances. He referred to his decision in Caratti v The Queen [ 1999] WASCA 91. He said the same would apply if the application were to be treated as one pending sentence.

8 The applicant described the difficulties he was experiencing in attempting to prepare his appeal whilst in prison. Having heard what the applicant then put, Miller J cited Ex parte Maher [1986] 1 Qd R 303, as authority for the proposition that release on bail to enable a convicted person to instruct counsel or solicitors in criminal appellate proceedings did not constitute exceptional reasons why bail should be granted, and held that what the applicant had put forward did not constitute exceptional circumstances. He refused the application for bail.

9 On 1 November 2002 the applicant was returned to the District Court where Judge Jackson sentenced him to 3 years' imprisonment with effect from 26 August 2002 with an order that he be eligible for parole. On 8 December 2002 the applicant filed a document entitled "Statement in Support of Application for Bail". Probably at the same time, although that is not clear, he filed a document entitled "Particulars of Grounds of Appeal". On examination, it is apparent these relate to CCA 172 of 2002, although that was not specifically expressed.

10 On 13 December 2002, the applicant filed a document entitled "Statement 2 in Support of Application for Bail". Again, that made no reference to any particular conviction, nor any particular appeal. On the same date, the registry received a letter from the applicant dated 9 December 2002, referring to CCA 172 of 2002 and enclosing a document entitled "Further and Better Particulars of Grounds of Appeal".

11 The applicant appeared before Wheeler J on CCA motions day on 16 December 2002 in respect of his appeal CCA 172 of 2002. He expressed concern about his application for bail. Her Honour noted it was to come before Miller J again on 19 December; otherwise, he was remanded to the CCA motions day on 18 March 2003.

12 On 19 December 2002, the applicant did appear before Miller J. There is no document about that appearance on either court file CCA 172 of 2002 or MCS 58 of 2002. There was no transcript of that appearance on those files. After the applicant informed me on 10 January 2003 that he had been before Miller J on 19 December, I caused inquiries to be made. The transcript for that day was subsequently located. I have now ensured that the transcripts of all appearances are on both these files.

13 To return to what happened on 19 December, the application for bail was argued. Miller J refused it, holding that the fact that the applicant may have served almost all of his term before eligibility for parole by the time the appeal would be heard was not sufficient of itself to constitute an exceptional circumstance and although it may be so in combination with strongly arguable grounds of appeal, his Honour was not satisfied the grounds advanced were strongly arguable. His Honour did refer several times to some difficulty in assessing that factor because he did not have the trial transcript available to him.

14 A third application for bail dated 3 January 2003 was filed on 6 January. It came before me that day. It was at that point that the confusion became apparent. The application was on file CCA 172 of 2002.

15 It appeared from that document to be the first and only application for bail; the transcript of the applicant's previous appearances in this court other than that before Wheeler J on 16 December were not on that file. I acceded to a prosecution request for an adjournment and to the applicant's request that all the relevant transcripts be consolidated. The application was adjourned to today.

16 To summarise the position as it now stands, this is the applicant's third application for bail pending appeal against his conviction in the District Court on 26 August 2002. At this point it is, I think, useful to give a brief outline of the nature of the case upon the applicant's trial.

17 The Crown case was that on 25 January 1995 the applicant was photographed by a Multanova speed camera whilst exceeding the speed limit along Hutton Street, Osborne Park. An infringement notice eventually issued. That was sent initially to the vehicle's owner, who at that time was the applicant's friend. When she received it, she advised the police that he was the driver and provided an address for him. Some weeks later an infringement notice was issued to him at that address. Subsequently he wrote to the traffic camera section and advised that he wanted the infringement determined by a court.

18 It is unnecessary for me, I think, to canvass what happened thereafter in any detail. Suffice to say there was some correspondence and contact between the applicant and the police, and it did include him attending at the police radar section to view the Multanova camera manual.

19 On 30 June 1995, the complaint and summons for that speeding offence was sent to Morley police for service at the Dianella address of the applicant but he no longer lived there. The complaint and summons was returned as not able to be served.

20 In November 1998, some three years later, the applicant, according to the Crown case, was caught by a police officer with a roadside radar whilst driving a motor cycle in excess of the speed limit along Scarborough Beach Road. He was issued a traffic infringement notice. In respect of that, he gave an Inglewood address.

21 When that information was entered onto the police computer, it brought up the previous unserved summons. The applicant, however, immediately made a complaint about the officer who had issued the notice to him in November 1998.

22 The Police Department responded to his complaints about the police officer and advised that they were investigating the complaint. In the meantime the earlier summons was activated and served on him on 16 December 1998. Subsequently the applicant telephoned the police about the earlier infringement notice and made an allegation that it was being preferred as a result of a conspiracy by police against him.

23 Again there was further communication and correspondence. Ultimately the applicant told the police that he had earlier received a letter from them advising that the 1995 infringement matter was being withdrawn. He was later asked to produce that together with a letter he told them he had written to the police about the withdrawal of the 1995 infringement.

24 The Crown case was that he fabricated those items. He subsequently presented them, according to the Crown case, in support of his complaint to the Anti-Corruption Commission against the police. It was essentially the complaints and the production of those letters which were said to constitute the attempt to pervert the course of justice.

25 I have already referred to the documentation which has been provided in support of the applicant's application for bail. There is only a brief affidavit. The other documentation is in the form of "statements in support", which are simply documents asserting matters of fact and argument. I nonetheless deal with the application on the basis of that material.

26 The grounds of appeal were initially expressed as simply being that:

(2) the prosecutor made errors of law and fact, and

27 The application for leave to appeal also indicates that the applicant is applying for an order that further evidence from Derek Spray and Kurt Schmidtke be heard. The appeal is also against sentence.

28 Most, if not all, of the grounds of appeal and grounds of the application for bail are set out in the applicant's document entitled "Statement in Support of Application for Bail". There is a contention contained in the earlier particulars of grounds of appeal which were attached to the applicant's letter dated 18 September 2002 that he was not medically fit to stand trial because he was suffering from a depression disorder that, apart from many other symptoms, caused him frequent short-term memory loss and frequent memory blocks, and he sets out some particulars of arrangements made, he says, at about the time of his trial for the purpose of obtaining psychological testing and diagnosis.

29 Because the applicant has already been refused bail twice by Miller J, the present application falls within cl 4 of Pt B of Sch 1 to the Bail Act 1982 (WA). That is because cl 2 of Sch 1 stipulates that except where cl 4 applies, once a judicial officer has granted or refused bail for an appearance, the power of that judicial officer or his or her peers to grant bail for that appearance ceases. So far is pertinent here, cl 4 provides:

"Notwithstanding clause 2, where a defendant has been refused bail for an appearance, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co-extensive with his has power to grant bail for that appearance if the defendant makes application and satisfies him that -

(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance;

(b) he failed to adequately present his case to bail on the previous occasion when it was considered."

30 I am not satisfied that this application falls within cl 4(a) but I am satisfied on what appears from the transcript of the hearings on 22 October and 19 December 2002 that the applicant failed to adequately present his case to bail on those occasions and I, accordingly, have jurisdiction to consider it afresh.

31 At this point the principles applicable to the application then are those contained in cls 4(b) and (c) of Pt C of Sch 1 to the Bail Act:

"In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether -

(a) ...

(b) ... there are exceptional reasons why the defendant should not be kept in custody,

and shall only grant bail to him if he is satisfied that -

(c) in the case of a defendant waiting to be sentenced, at least one of those reasons exists and, in the case of an appellant, the reason mentioned in paragraph (b) exists; and

(d) he may properly do so, having regard to the provisions of clauses 1 and 3. ..."

32 Clauses 1 and 3 are provisions which apply to any application for bail. In the case of Stalker v The Queen [2002] WASCA 364 I dealt with an application for bail pending appeal and concluded there, after a consideration of the authorities, that something more than an arguable ground of appeal must be shown in order to establish an exceptional circumstance for the purposes of cl 4 of Pt C of Sch 1 to the Bail Act. It must be shown without detailed argument that the appeal is most likely to succeed.

33 As I said there, that is the sense in which I would construe the phrase "strong prospects of success".

34 I acknowledge at once that appellants are subject to considerable difficulty and often serious disadvantage as a consequence of the restrictions to which they are subject and the lack of facilities and resources to prepare appeals in the prison environment. At the same time it is clear that this is not a factor which could ordinarily or generally be regarded either alone or in combination with other factors as an exceptional circumstance justifying a grant of bail pending appeal.

35 As Miller J pointed out in refusing bail to the applicant on 22 October 2002 (Ts 20):

"In the case of Caratti v The Queen [1999] WASCA 91 I pointed out in paragraph 8 that in the decision of Ex parte Maher [1986] 1 Qd R 303 Thomas J made it clear that release on bail to enable a convicted person to instruct counsel or a solicitor in criminal appellate proceedings did not constitute an exceptional reason why bail should be granted. By similar reasoning, the great difficulties which do confront appellants in person who are in custody would not, as I understand the law, lead to exceptional circumstances which would justify their release from prison for the purpose of getting their appeal together."

36 Although it is obviously extremely difficult, and unsatisfactorily so, for the applicant to properly prepare for his appeal from prison, the fact is he is a convicted and sentenced prisoner and I am not persuaded that his case is so difficult or complex and nor are the difficulties confronting him such, as to constitute an exceptional circumstance for the purposes of this application.

37 The fact that an applicant will probably have served most of the non-parole portion of their sentence may, but will not necessarily, be enough to constitute exceptional circumstances. I accept that if in a particular case there is a probability that the appeal will succeed combined with the prospect that a substantial part of the non-parole portion of the term will have been served before the appeal comes on for hearing, that combination of circumstances may constitute exceptional circumstances: see Mullally v The Queen [2000] WASCA 26 and Walser (1994) 73 A Crim R 154. Whether that will be so will depend upon the force of those two factors. The nature of the offence can also be a relevant consideration: Weston v The Queen [1999] WASCA 203.

38 Here the applicant was sentenced to 3 years' imprisonment with effect from 26 August 2002. He will be eligible for parole after having served 12 months. His appeal could possibly be listed in April. That would be 8 months, but it could be as late as June and it may not be determined until later than that depending upon when the court is able to give its decision.

39 I am prepared to accept that if there is a strong prospect the appeal against either conviction or sentence would succeed, then that, combined with the period of imprisonment the applicant would be likely to have served, would constitute an exceptional circumstance, and so I come to consider the prospects of success on the appeal.

40 For the purposes of this application and this exercise I am required to make some assessment of the applicant's prospects of success on the appeal proper. That exercise is necessarily a limited one. A Judge in this situation does not have the benefit of detailed argument and submissions from the applicant and respondent, nor the opportunity to consider the trial transcript in detail.

41 It is important to emphasise that I am neither able nor required to make any determination of the grounds of appeal. That will be for the Court of Criminal Appeal following a full hearing in due course. The hearing of the present application is not a preliminary determination of the appeal and nor is it a rehearsal of the appeal itself.

42 I think the grounds may be grouped into five categories:

(1) errors of law and fact by the learned trial Judge;

(3) the applicant was not medically fit to stand trial;

(4) errors in respect of the admission into evidence of exhibits, and

(5) the learned trial Judge erred in failing to abort the trial and direct a verdict of not guilty on the grounds of insufficient evidence and/or unfairness.

I might conveniently describe that last as the Stalker ground.

43 It is convenient to deal with the third of these first; namely, that the applicant was not medically fit to stand trial. It may be shortly disposed of. There is no evidence of that before me. The applicant's mere assertion is certainly not enough. No application for an adjournment was made at the trial on the basis the applicant was not medically fit to stand trial. Nothing was put to the learned trial Judge in that regard. As matters stand, such a ground would have absolutely no prospect of success.

44 I come now to the first category: errors of law and fact by the trial Judge. In substance this appears to be a complaint, as argument developed, that the learned trial Judge failed to consider, and effectively, to grant, the applicant's application for an adjournment of the trial.

45 On 16 August 2002 the applicant's counsel applied to the learned trial Judge for an adjournment. At that stage the trial was due to commence on 19 August.

46 The position of the applicant in relation to this essentially is that he was seriously prejudiced because until a few days before the trial a different prosecutor had been allocated or, perhaps to put it more accurately, the prosecutor who appeared on his trial was not allocated until a few days before the trial itself.

47 Defence counsel had in the meantime been dealing with some other officer of the DPP and there had been some discussions and/or correspondence about evidence which would or would not be led. Apparently there was some agreement reached in respect of various documents and witnesses. When the prosecutor who did eventually conduct the trial was allocated, she made some different decisions in relation to those matters. The way the applicant puts it is that the prosecutor "reneged" on agreements which had previously been made in relation to the evidence which would be led and he says the problem snowballed from there.

48 There were, as I understand his submissions, two areas of concern: the first was which witnesses would be called or not, and the second, which appears to be his greater concern, was what documentary evidence would be relied upon.

49 The fact is, as appears from the transcript p 13, counsel on 16 August had brought the matter on to make an application on behalf of the applicant that the trial date be vacated and the matter be adjourned. That application was said to be because a police witness who the defence sought to call was not available and would not be available at any time during the week set aside for the trial apparently because of some medical condition.

50 The applicant says that this was not the only basis upon which the application for the adjournment was made. He says that it was also made because there were serious issues about a large number of documents and other exhibits which had not been resolved and which needed to be resolved before trial. This is referred to by counsel at the trial (Ts 15), where he referred to the "voluminous brief" and said there was another problem in that he was not clear on the Crown case at that time whether all of the documents were going to be relied upon and that there were issues about admissibility and so on, although he went on to say: "But that's another issue."

51 As events transpired there were then discussions between the learned trial Judge and counsel for both the applicant and the Crown and, as a result of that, agreement was reached as to the calling of the particular witness referred to by the defence.

52 That was resolved apparently by an agreement that certain matters would be agreed by the Crown and defence so far as evidence before the jury was concerned. In any event, the problem was resolved. It is also apparent from the transcript that other evidentiary issues which had been referred to were discussed by counsel over the following weekend with the result that by the following Monday, 19 August, counsel for the defence was able to inform the learned trial Judge that it appeared they were able to proceed that day with the trial, and in fact that is what occurred.

53 It seems to me that the Court of Criminal Appeal, in considering this ground and, in particular, insofar as it concerns the adjournment point, might well take the view that the application for the adjournment was in truth made only in respect of the attendance of the witness, and that although difficulty in relation to other evidentiary issues had been raised, those matters were resolved by discussions between counsel and indications from the learned trial Judge with the result that it was not necessary for the learned trial Judge ultimately to rule on the application for the adjournment because the relevant issues had been resolved. If at that point there was still prejudice or unfairness to the applicant, counsel could and no doubt, would, have made that clear to the learned trial Judge and pressed the application for the adjournment. He did not do so. In effect, the application for the adjournment lapsed.

54 The same point goes to the applicant's concern that the problem as he saw it with the documents, was not sorted out and that that was something which preoccupied his counsel in the course of the trial and that there were lost opportunities to object to exhibits.

55 Subject to some exceptions which do not appear to have any bearing here, an accused is bound by the way his case is conducted by counsel. In fact, as I have mentioned, if counsel had been concerned that the applicant's position was untenable or there was significant unfairness to him, then counsel could and should and, no doubt, would have applied for the adjournment.

56 So far as this ground expresses concern that the learned trial Judge's directions came at the end of the case rather than the beginning, (which is a submission which was made to me in the course of argument today by the applicant), it is true that the practice of some Judges is to give general directions to a jury at the outset of a case, but not all Judges do so and there is not necessarily any requirement of law that that be done. A Judge's directions to the jury as to what approach is to be taken to the addresses of counsel, what is evidence and what is not and the like, are directions ordinarily and appropriately given at the conclusion of the trial and immediately before the jury retires to consider its verdict.

57 In this regard the applicant says the Crown case here depended on inferences to find facts from which other inferences were drawn and that was wrong. His submission, as I understand it, was the Crown had to prove facts beyond reasonable doubt from which inferences only then could be drawn.

58 It does not work like that. A primary fact may be proved beyond reasonable doubt or on the balance of probabilities, depending upon the circumstances. Once that fact is found, it can then properly be used as a basis for the inference of some further fact. There is no substance in the applicant's contention about this.

59 As to the grounds which go to misdirection of the jury by the learned trial Judge, which are that his Honour erred by failing, as it is put, to properly and adequately direct the jury to regard the prosecutor's accusations as speculation and not to regard them as evidence of any fact and that the defence lawyer erred by failing to object to the prosecutor's speculative accusations, his Honour in fact did direct the jury that they were not bound by anything counsel might say or which was not supported by the evidence. Indeed he directed the jury that counsel's opinion about the evidence and the facts was irrelevant.

60 It would appear from an examination of the transcript that the Court of Criminal Appeal could well be satisfied that his Honour's directions to the jury concerning circumstantial evidence were adequate and appropriate, and likewise his Honour's directions concerning the drawing of inferences (Ts 708 to 709). In those circumstances it could not properly be argued, should the Court of Criminal Appeal come to that conclusion, that there was any relevant error by the defence counsel, and not one in any event which would have led to a miscarriage of justice.

61 The same approach I think must be taken in relation to the contention that there were errors of law and fact made by the prosecutor. Essentially what this comes to, it seems to me, is quite possibly no more than argument on the part of the applicant. That is to say, an argument that his view of the facts ought to have been accepted and that anything said by the prosecutor which was in conflict with that ought not.

62 So far as the point goes to the jury relying upon anything that may have been said in submissions or address by the prosecutor, the point is met - or could well be found to be met - by the directions given by the learned trial Judge to which I have already referred.

63 The grounds which are marked as (c) in the applicant's papers go to the admission into evidence of, in particular, exhibits 1, 2, 45 and 46.

64 I note that in the course of the trial when those items were tendered, no objection was taken to the tender by counsel for the defence. Exhibits 45 and 46 were fragments of a letter retrieved by police from the hard drive of a laptop computer found in the applicant's home. Those fragments were, on the Crown case, strikingly similar to some of the contents of exhibit 2, which was the letter alleged by the applicant to have been sent to him by the police and which on the Crown case was said to have been forged or created by him.

65 I accept the submissions of the respondent on this application that the Court of Criminal Appeal might well find that even if objection had been taken to this evidence, there is no ground on which it could be said it was not admissible. Certainly it is not a ground which has a strong prospect of success.

66 The identity of the applicant was not in issue. The issue was rather whether the applicant did what was alleged. So far as exhibits 1 and 2 are concerned I appreciate and understand the applicant's explanation that although he said when exhibit 2 was first presented to him in the course of his evidence-in-chief that it looked like a letter he had printed, he thought then there was something strange about it but it was only afterwards he realised that for various reasons to do with the paper and printing it could not have been his letter and that accounts for the explanation he gave then in cross-examination.

67 Again, it is neither necessary nor appropriate for me to canvas all of the evidence, suffice to say that it seems to me that the Court of Criminal Appeal could accept that it was open on the evidence for the jury to be satisfied beyond reasonable doubt that the applicant had produced the original documents. That being so, they were certainly admissible.

68 So far as the point is taken that the documents said to have been received by the police were not proved to have been so received by officers who gave evidence about that fact, again the evidence was such that in the circumstances the Court of Criminal Appeal might well be satisfied that the jury could have in turn been satisfied that the documents tendered were indeed the documents delivered by the applicant.

69 The applicant says he had no opportunity to examine the documents before trial and if he had he would have had them forensically tested and a number of them would have been objected to. There is no evidence before me that opportunity to examine the documents was denied. It appears to be no more than that no request to examine the documents was made before trial.

70 Finally, I come to what has been described as the Stalker ground; essentially, that because of the late change of the prosecutor and the changes to the Crown case, the applicant suffered extreme prejudice and as a result the trial was unfair.

71 Once again though, although defence counsel did raise concerns about the difficulties arising from those circumstances, he at no stage told the learned trial Judge that those difficulties were such as to prevent the trial proceeding or to make the trial unfair. That, of course, does not foreclose the point but it is a significant consideration. I am not persuaded that this ground either is so strong that it is likely to succeed.

72 Overall, accordingly, I have come to the conclusion that none of the grounds sought to be advanced are so strongly arguable as to be likely to succeed and I conclude that the applicant has not demonstrated exceptional circumstances. That being so, the application for bail must be refused. The application will be dismissed.