Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Application for leave to appeal against conviction and sentence - Whether time constraints caused unfair trial - "Splitting of Crown case" - Whether misdirection on burden of proof - Reasonable prospects of success - Whether circumstances warrant a lesser sentence

Criminal law - Bail - Fraud - Application for bail pending appeal against conviction and sentence - Previous application pending appeal refusing by Judge of Supreme Court - Whether new circumstances or circumstances changed - Applicant's partner diagnosed with terminal cancer - Turns on own facts

Leave to appeal against conviction granted on ground 2

Leave to appeal against sentence granted on grounds 1, 2 and 3

1 ROBERTS-SMITH JA: There are three applications before me. The first is an application for leave to appeal against conviction. The second is an application for leave to appeal against sentence, and the third is an application for bail pending appeal.

2 The applicant was convicted in the District Court at Perth on 15 July 2005 following trial before her Honour Judge Yeats and a jury, of two counts of fraudulently obtaining a benefit contrary to s 409(1)(c) of the Criminal Code (WA). On 2 September 2005 the Judge sentenced the applicant to immediate imprisonment for 12 months and ordered that he be eligible for parole. He will, therefore, be eligible for parole, I am told, on 26 February 2006.

3 By separate appeal notices filed on 12 September 2005 the applicant sought leave to appeal against conviction and sentence. By application also filed on 12 September 2005 he applied for bail pending appeal. The bail application was supported by the affidavit of the applicant sworn 8 September 2005 in which he deposes that he is the sole caregiver for his de facto partner with whom he has been in a relationship for 13 years, that she has cancer which has spread and is now in her spine near her brain stem.

4 To that affidavit he annexed a number of documents, they being a letter from clinical professor David Joseph, the director of the Radiation/Oncology Medical Unit at Sir Charles Gairdner Hospital dated 30 August 2005, a letter from Ms Caroline Atkinson of Caroline Atkinson Body Time dated 11 September 2005, a further letter from Professor Joseph and a long letter from Ms Underdown, the applicant's partner.

5 The appellant's case on both appeal applications was filed on 26 October 2005. The bail applications came before Wheeler JA on 27 October 2005. The applicant was, on that occasion, represented by counsel, Mr A Monisse. In the event her Honour declined to grant bail. The applicant subsequently filed a further application for bail pending appeal. I shall return to that later.

6 It is necessary first to deal with the applications for leave to appeal against conviction and sentence.

7 That application sets out one ground with particulars. They really are three grounds and I will deal with them in that way. Each asserts there was a miscarriage of justice, first in that the trial was conducted in an unfair manner to the appellant, secondly that the State split its case when cross examining him, and thirdly that her Honour misdirected the jury when directing them on the burden of proof.

8 The particulars in respect of what I shall call the first ground are that the trial was conducted in a manner unfair to the applicant, that he was required to commence giving his evidence-in-chief after 4 pm on the second day of trial in circumstances which he says included him not having any sleep from the night before, that the closing addresses by counsel should have immediately followed each other (as it was, he says the State had the advantage of the jury retiring for lunch on the third day of trial with only its closing address to reflect upon, that to be contrasted with defence counsel to deliver his closing address after the luncheon adjournment on a Friday afternoon), that the jury was sent out late on Friday afternoon to consider their verdicts and, in summary, the trial was rushed with insufficient court time available for it to be fairly conducted and/or completed.

9 In his written submissions, supplemented by his oral submissions to me today, the applicant makes a number of references to the trial transcript going, for example, to observations made by the trial Judge about the trial having to be finished on Friday and various other references of that kind.

10 The particulars in respect of ground 2, the "splitting of the case", concerned the tendering into evidence by the prosecution of what has been described as the Esanda file, which became trial exhibit 39, and also questioning the applicant as to his current name which is apparently different to his birth name.

11 Finally, the particulars in relation to the claimed misdirection on the burden of proof, ground 3, assert that her Honour's charge to the jury was relevantly, "You can look at the evidence and decide which you accept," and, "You will want to look at the scratch pad and the evidence of Mr Dropulich as to how much money was owing on the contract and consider whose evidence you accept."

12 It would be necessary for the applicant to demonstrate that there was a miscarriage of justice arising out of the circumstances described.

13 In relation to ground 1 the matters raised are not unusual incidents of many trials. They do not, of themselves, involve any unfairness, nor do they reveal any. The applicant, in the course of his submissions to me today, sought to canvass things he says passed between him and his counsel, but there is no evidence of that and it is unlikely that leave to adduce it would be given.

14 It has not been suggested to me that counsel at trial made any complaint to the trial Judge that the presentation of the applicant's case was in any way prejudiced by pressure of time. As the submissions for the respondent indicate, the applicant was represented at trial by experienced trial counsel who raised no objection to her Honour regarding the scheduling of the course of the trial. Both prosecuting counsel and her Honour confirmed that the applicant should have every opportunity to present his case without pressure of time (see t/s 261, 262 and 263).

15 By s 27(2) of the Criminal Appeals Act 2004 (WA), "the court or a Judge must refuse leave to appeal on a ground unless that ground has a reasonable prospect of succeeding." The application of that test was explained in Samuels v The State of Western Australia [2005] WASCA 193 [56] - [59]. Ground 1 here does not have a reasonable prospect of succeeding before a court of three Judges. Leave to appeal on that ground is refused.

16 Ground 2 asserts, as I have said, there was a miscarriage of justice in that the State split its case. On the face of it, it seems to me there is a reasonable argument that at least the relevant parts of the file were admissible and could have been led as part of the prosecution case, and if that were so, the holding of that file in reserve for the purpose of cross examining the applicant or alternatively simply retaining it and using it for that purpose might, it could be thought, have involved a splitting of the prosecution case.

17 In addition, in terms of the material put to me today in relation to that, it appears that there may well be issues in respect of the admissibility of some documents on that file, but I do not know what they are and I can neither form nor express any view about that and I decline to do so. Nonetheless, in relation to the ground itself, it seems to me there is a reasonable prospect of that succeeding, and I would grant leave to appeal on that ground.

18 Ground 3 asserts misdirection by the trial Judge on the burden of proof. The reference to the evidence of Mr Dropulich, or rather to what her Honour said about that, is to be examined, I think, by reference to t/s 369 where her Honour, when speaking about the intent of the applicant, says:

"You will want to look at the scratch pad and the evidence of Mr Dropulich as to how much money was still owing on that contract and consider whose evidence you accept if you accept the accused's evidence clearly he is not guilty of any of these offences but it is not for the accused to prove his innocence you have to look at the evidence that the state [sic] brought and determine does it satisfy you beyond reasonable doubt, is the only reasonable inference open on all the facts that he did intend to defraud Mr Bailey".

19 Her Honour then went on to say that if there was any other reasonable inference open, the jury could not draw that inference against the applicant. Then she referred to the evidence that he had, in fact, given. That direction is perfectly apt and in light of it, it seems there is no substance in the complaint made in ground 3.

20 Her Honour made it quite clear to the jury in her directions generally that the onus and burden of proof was on the prosecution, and that whether or not they believed the applicant, it was necessary for them to be satisfied beyond reasonable doubt of the elements of the offences before they could convict. There is, therefore, in light of those directions, no reasonable prospect of ground 3 succeeding and I would refuse leave to appeal on ground 3.

21 The grounds of appeal against sentence are that her Honour failed to fully consider the penultimate sentencing option of a suspended sentence; that she gave insufficient or no weight to the applicant's partner's terminal cancer condition and that the sentence was manifestly excessive in that her Honour should have imposed no more than a suspended sentence of imprisonment.

22 Particulars are given to grounds 1 and 3. Specifically the applicant relies upon the remorse which he says is demonstrated by the substantial restitution he made to the two complainants, to apologies he made in the course of the trial, and he refers specifically also to his partner's terminal cancer condition which he says called for a merciful and compassionate sentence to be imposed.

23 It could be said that the three grounds of appeal against sentence are really reformulations of one ground. I note too that in the outline of submissions provided by the respondent today at par 7 the respondent observes that the real issue in relation to ground 3 is whether the failure to suspend the sentence demonstrates error. Counsel then says:

"It is conceded that such a ground has reasonable prospects although it is not conceded that it is strongly arguable."

24 That concession, I think, is fairly made and I am satisfied that those three grounds regarded as reformulations of, in substance one ground, have a reasonable prospect of success and I would accordingly grant leave to appeal against sentence on those grounds.

25 That brings me to the question of bail. The applicant has a threshold problem. Wheeler JA has already dealt with, and refused, an application for bail pending appeal. Clause 2 of Pt B of Sch 1 to the Bail Act 1982 (WA) provides that where a Judge has exercised jurisdiction and granted or refused bail then another Judge of a similar jurisdiction no longer has the power to consider any further application. That is subject to cl 4 of Pt B of Sch 1 which allows another Judge to deal with such an application in circumstances in which, and I express it broadly for present purposes, either there has been a change in circumstances, or alternatively, the second Judge is satisfied that the applicant did not, for whatever reason, adequately present his or her case before the first Judge.

26 On the present application the applicant has filed further documents. Wheeler JA stated in her reasons for refusing the first bail application that the material before her was insufficient and she expressly anticipated there might be a different outcome with further, more detailed, material to be provided. That has now been done.

27 The applicant relies upon a certification from Dr Joseph, to whom I have already referred, dated 7 July 2005. That is a certification that Ms Underdown's illness is terminal and death was likely to occur within 12 months. He certifies that she has metastatic malignancy and life expectancy is limited. She has breast cancer and he certifies in that document that survival in her situation was less than 12 months.

28 There is a report from the Perth Radiological Clinic Magnetic Resonance Centre relating to an examination of 31 October 2005 indicating that following a CT scan on 14 October 2005 there is a T4 compression fracture apparently due to the breast cancer extending into the bone. There is a vertebral body crush fracture at T4 with a localised associated kyfosis. That has extended into the T4 pedicles more prominently on the left. It is not necessary to deal in detail with that report.

29 There is an affidavit from Ms Underdown which explains at some length her current situation and her relationship with the applicant. That affidavit is sworn 8 November 2005. It is a long affidavit and I do not propose to read it. Suffice to say in summary that she is 36 years of age and was initially diagnosed and operated on for breast cancer in October 2003; then undergoing some six months or so of intensive chemotherapy and radiotherapy.

30 During October 2003 to August 2004 whilst employed elsewhere, that is to say otherwise than where she is presently employed, she was unable to work due to complications, continually being violently ill, in severe pain and dealing with the lassitude of the treatment. In February 2004 she lost her grandfather to whom she was extremely close. She observes that she is completely estranged from her father since 1992. Her grandmother was too old and mentally incapable to make the funeral arrangements so they fell to Ms Underdown.

31 In August 2002, believing that she had beaten the cancer, she commenced a new job. This was also, of course, because she needed an income to live on and to pay for her substantial medical bills. However, in December 2004, having experienced severe back pain and being barely able to breathe owing to that, she again went to the doctor and was immediately referred to various specialists so that in March 2005 after what she describes as three months of excruciating agony, incessant testing and doctors unable to accurately diagnose the problem, she was finally diagnosed with a pathological fracture of the T4 vertebrae as a result of her metastatic breast cancer. She says the cancer has now spread to her bones.

32 It is stage 4 terminally ill cancer and she describes how that revelation has forced both her and the applicant to deal with questions of mortality and drastic changes to their life goals and plans. The spread of the cancer to her T4 vertebrae is particularly precarious due to its positioning on her spine and vital organs. She says that average life expectancy of cancer at this stage is less than 12 months worsened by her youth where apparently the statistics are even less favourable.

33 She has extreme sensitivity to and is violently ill and has a "horrible" - as she puts it - reaction to morphine patches and tablets and to most drugs in general and so pain relief is of a limited nature and she is forced to live with continuing pain. She describes the constant support the applicant has provided to her both emotionally and physically as well as in all other respects. Again I think it unnecessary to detail that to any extent.

34 She does say that she has currently been diagnosed as having severe depression and anxiety disorder all due to the incarceration of the applicant. She says that they had planned for a wedding on New Year's Eve 2005 and had paid deposits and made extensive arrangements. However, due to his incarceration that had to be cancelled indefinitely which also cost them, she says, thousands of dollars in non-refundable expenses.

35 I should observe that the affidavit in substantial part also contains hearsay opinion and argumentative material which at times is inflammatory, and in fact positively, or at least potentially, harmful to the applicant's case. I refer specifically to [24] to [34] without repeating them. I make the point that I have put all of that to one side for the purposes of the present application. The conclusion to which I come on this application is one to which I arrive in spite of what is in those paragraphs.

36 I am satisfied that the applicant did fail adequately to present his case for bail on the previous occasion when it was considered by Wheeler JA. That being so, cl 2 of Pt B of Sch 1 of the Bail Act does not apply to prevent me considering the application.

37 The next obstacle to the applicant is cl 4(1)(b) of Pt C of Sch 1. That stipulates that:

"Where an applicant seeks bail pending appeal following conviction and sentence the court or Judge may grant bail only if there are exceptional reasons why the applicant should not be kept in custody and if bail may properly be granted having regard to clauses 1 and 3 of part C, that is to say, to the ordinary considerations which govern a grant of bail."

38 The exceptional reason particularly relied upon here is Ms Underdown's medical condition, her dependence upon the applicant for support and assistance and the effect upon both her and upon him of his continuing incarceration pending his appeal, combined with the fact that he will virtually have completed at least the custodial part of his sentence before his appeal is heard.

39 In that regard I should observe that again the outline of submissions presented by the respondent Mr Dempster says that exceptionality (which I take to be a reference to this requirement of the Bail Act) may be reached by way of a combination of service of the non-parole term, the prospects of success on sentence, and the terminally ill partner's dependence respectively.

40 I am satisfied that there are exceptional reasons why the applicant should not be kept in custody under the circumstances. I am further satisfied, having regard to the criteria in cl 1 and cl 3 of the Bail Act that bail should be granted pending appeal. It must be appreciated that none of what I have said may be taken as meaning that the applicant's appeal against either conviction or sentence will succeed. If those appeals fail, which they could well do, then he would be required to return to prison to complete the custodial portion of the sentences imposed on him in the District Court.

41 I will hear counsel as to the terms of the orders and any conditions of bail.