Bail Act, cl 1, cl 4, Pt C sch 1

Bernt v R (1994) 70 A Crim R 1

Campbell v R [1981] WAR 286

G J Coles & Co Ltd v Goldsworthy [1985] WAR 183

Hickey v The Queen [2002] WASCA 221

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

McCreed v The Queen [2002] WASCA 225

Pemble v R [1971] HCA 20; (1971) 124 CLR 107

R v Clarence (1888) 22 QBD 23

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Knutsen [1963] Qd R 157

Royal v R [1991] HCA 27; (1991) 172 CLR 378

Vallance v The Queen (1961) CLR 56

Van Den Hoek v R [1986] HCA 76; (1986) 161 CLR 158

Wilde v The Queen (1988) 164 CLR 493

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

1 The applicant was convicted in the District Court of Western Australia on 3 October 2002 of the offence that on a date unknown between 1 June 1999 and 30 September 1999 at Swan View, he unlawfully did grievous bodily harm to the female complainant. The conviction followed a trial which had commenced on 1 October 2002.

2 For the offence, the applicant was sentenced by the trial Judge to 7 years jail and made eligible for parole. He will be eligible for parole on 3 June 2005.

3 The applicant has appealed, and it is likely that if all goes smoothly, the appeal will be heard in April 2003.

4 The applicant applies to me to be released on bail pending the hearing of the appeal. It is important to record immediately that the respondent concedes that there are four strongly arguable grounds of appeal and that there is possibly a fifth strongly arguable ground.

Relevant Provisions of the Bail Act

5 Clause 4 of Pt C in sch 1 to the Bail Act states that in deciding whether or not to grant bail to a defendant who is in custody awaiting the disposal of appeal proceedings, the judicial officer shall only grant bail to the applicant if the court is satisfied that there are exceptional reasons why the defendant should not be kept in custody and if the Court may properly do so having regard to the provisions of cl 1 in Pt C in sch 1. Clause 1 states the principles which govern the grant of bail before conviction. It is not in dispute that a grant of bail would properly be made if the matter had to be considered under cl 1 alone. The applicant was on bail before the trial and he complied at all times with the conditions then imposed. One of the relevant factors to be taken into account under cl 1 is whether the prosecutor has put forward grounds for opposing the grant of bail. The Crown does not put forward any such grounds for opposing bail. The Crown merely requires the applicant to satisfy me as to whether exceptional reasons exist for the grant of bail.

6 In Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514, Brennan J explained that exceptional circumstances must exist before there is grant of bail pending appeal, because to grant bail is to whittle away the finality of the jury's finding and to treat the verdict merely as a step in the process of appeal. In Brennan J's opinion, exceptional circumstances or reasons for granting bail pending an appeal will exist only where:

(a) it appears prima facie that the appeal is likely to be successful, or

(b) there is a risk that the sentence will have been served by the time the appeal is heard.

7 The decision of Brennan J in Chamberlain's case has been referred to and applied in many decisions of this Court. See, for example, Norton v R [2001] WASCA 164; Nguyen v R [2001] WASCA 137; Mickelberg v R [2000] WASCA 163; Johansen v The Queen, unreported; Library No 980087; 23 February 1998, to name just a few.

8 In this case, it is not suggested that there is a risk that the sentence will have been served by the time the appeal has been heard. The applicant was sentenced to 7 years' imprisonment for the offence of grievous bodily harm, and the non-parole period does not expire until June 2005. The application for leave and the appeal should be heard in the first half of 2003.

9 The applicant submits that this is a case where it can be shown prima facie that the appeal is likely to be successful.

10 The ordinary meaning of the words prima facie is "at first sight; on the face of it; as appears at first sight without investigation"; North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 615-616. In Ex parte Maher [1986] 1 Qd R 303 at 311, Thomas J said:

"In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail.

Sometimes the converse will appear upon a summary examination of the material. But in the majority of cases any attempt to act as a preliminary court of appeal will be a fruitless and superficial exercise. (R v Giordano (1982) 31 SASR 241, 243)."

11 In Caratti v The Queen [1999] WASCA 91, Miller J reviewed the authorities and expressed the view that in demonstrating that prima facie the appeal is likely to be successful, it is not necessary for the Court to be convinced that the arguments would almost certainly succeed before the Court of Appeal, as was stated by Franklyn J in Bond v R, unreported; SCt of WA; Library No 920322; 12 June 1992. Rather, what has to be shown is that the applicant has strong prospects of success on appeal. The stronger the apparent prospects of success the more significant is the factor. See also Rechichi v The Queen [2001] WASCA 319 at [10].

12 The applicant submits that this is one of the exceptional cases where it can be discerned immediately that the applicant has strong prospects of succeeding on appeal.

13 The evidence led in the case was that the applicant and the female complainant first made contact with each other via an internet chat line. From that initial contact, the female complainant met the applicant and in due course a sexual relationship commenced. The applicant was at the time HIV positive. He had been married, and in the past his wife and he had taken precautions to avoid his wife becoming infected with the virus. The Crown case was that the applicant, without disclosing to the female complainant that he was HIV positive, had unprotected anal and vaginal sexual intercourse and ejaculated during those events.

14 While the failure to disclose that he was HIV positive was despicable conduct, that was not the issue at the trial. At the trial in the District Court, the question was whether the applicant had committed a criminal offence. The charge against him was not one of having sexual intercourse without warning his partner. It was a charge of grievous bodily harm. The female complainant is now HIV positive. That was not so before she began her relationship with the applicant. Evidence was led from other witnesses and from the female complainant to negate the possibility that she was infected by someone or some source other than the applicant.

15 The case raises important and difficult questions of fact and law.

16 The Crown called Professor French as an expert witness. He is a Professor of Immunology. He gave evidence which is set out in the next paragraph.

17 The human imuno deficiency virus (HIV) is transmitted from one person to another by blood or some other body fluid, particularly semen or vaginal fluid. The virus gains entry to the body through breaks in the skin or mucus membranes lining the rectum, vagina or mouth. Transmission may also occur through injection of infected blood into the blood stream, for example by the use of blood contaminated needles and syringes, or through a blood transfusion. He explained that once the virus had entered the body by passage through a break in the skin or mucosal surface, or through injection into the bloodstream, it infects cells of the immune system, mainly CD4 T-cells. These cells are constantly moving around the body, and therefore the infection spreads and eventually it will involve most compartments of the immune system. Cells of the immune system are present in many parts of the body, for example the brain, gut, lungs, etc, as well as the bloodstream. Following an initial infection by HIV, there is a vigorous immune response which may make the infected person very unwell. This is known as a seroconversion illness or primary HIV infection syndrome. Over a period of many years, the immune system attempts to control the HIV infection, but with time there is usually a change in the viral structure such that it can evade the immune response. Long term consequences of these processes are dysfunction and depletion of cells of the immune system, particularly the CD4 T-cells. In time, this results in impairment of immune function leaving the person open to a variety of very serious infections. Infection of cells in the brain may also result in damage to the nervous system.

18 Professor French explained that HIV is one of a number of viruses that cause chronic infections over many years. He also said:

"The end result of the chronic infection is often damage to the organ that is infected. For example, chronic hepatitis C virus infection or hepatitis B virus infection often leads to severe liver damage and liver failure. Likewise, chronic HIV infection may over many years result in severe damage to the immune system." (I have added the underlining for emphasis).

19 He also gave evidence that it was unclear if the female complainant would require therapy for the HIV infection. His report also stated that if tests determined that the amount of HIV replication was increasing "and if that is damaging the immune system by depleting the blood of CD4 T-cells ... [the female complainant] will be offered antiretroviral therapy."

20 Then at page 49 of the transcript, Professor French said that HIV is a relatively new virus and that there is a category of people who do have the virus who, so far, have shown no ill effects from it whatever. He also said that he could not predict whether the persons infected with HIV will ever suffer any ill effects from it.

21 From that evidence, it can be seen that there was a live issue at trial about whether or not the complainant suffered any "bodily harm".

22 Section 297 provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime. Section 1(1) of the Criminal Code states that in the Code, the term "bodily harm" means any bodily injury which interferes with health or comfort.

23 The term "grievous bodily harm" is defined to mean "any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health".

24 At the conclusion of the prosecution case, the applicant's counsel made a no case submission on the basis there was no evidence that HIV was a disease based on the evidence of Professor French. The trial Judge accepted that submission but ruled that the Crown case could succeed on the basis that Professor French's evidence should establish an "injury" as opposed to a "disease". His Honour considered that HIV, if transmitted, could constitute a bodily injury and that there was a case to answer on that basis. The trial proceeded, and the applicant was convicted.

25 One of the proposed grounds of appeal (not numbered) is that:

"The learned trial Judge erred in law in failing to direct the jury that the prosecution was required to prove a willed act of the accused which was contrary to law and not excused and that the consequences which did in fact occur were such that an ordinary man would reasonably have foreseen them."

26 The respondent conceded that the trial Judge was required to direct in those terms. The part of the proposed ground of appeal which states what direction should have been given, follows what was said by the Full Court in Kuczynski v The Queen (1989) 2 WAR 316 at par 45. Counsel for the respondent conceded that no direction was given in those terms and that such failure means that this affords a strongly arguable ground of appeal.

27 Ground 1 of the proposed grounds of appeal reads:

"The learned trial judge erred in law and in fact in directing the jury, at p215 trial transcript, in the following terms:

'It would be open to you, ladies and gentlemen, to conclude from this evidence that the infection of the immune cells by the virus is itself a bodily injury...';

in that, on a true construction of the term 'bodily harm' as defined in s 1 of the Criminal Code, the infection of the immune cells by the virus, without more, is not a bodily injury."

28 Counsel for the respondent conceded that it is strongly arguable that the direction was a misdirection as to law and fact.

29 Ground 9 of the proposed grounds of appeal is that:

"9. The learned trial judge erred in law in his direction to the jury on 'lies by the accused', in that:

...

9.4 he failed to identify what statements by the applicant constituted lies and failed to identify to the jury the relevant evidence."

30 During his directions to the jury, the learned trial Judge said: "I need not actually outline the alleged lies because that has been done ...". This was a reference to the fact that the Crown prosecutor in his closing address had identified some lies. Counsel for the respondent conceded that it was strongly arguable that the learned trial Judge's direction was inadequate, taking into account decisions of the High Court including Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 and Zoneff (2000) 200 CLR 234.

31 Ground 12 of the proposed grounds of appeal reads:

"12. The learned trial judge erred in law in directing the jury, at p219 trial transcript, on s24 of the Criminal Code in the following terms:

"The issue is whether the Crown has proved beyond reasonable doubt that an ordinary person in the accused's position did not honestly believe or could not reasonably have believed that it was safe to do what he did with the complainant.';

in that, the honesty of the applicant's belief was subjective and not to be judged on the objective basis of what an ordinary person would believe.

32 Counsel for the respondent conceded that the direction in those terms was not in accordance with the law, and therefore conceded that this ground is possibly strongly arguable. The respondent concedes that if it is correct to read that part of the direction in isolation, then the ground of appeal is strongly arguable. Counsel for the respondent, however, submitted that if it is correct to read this in conjunction with what was said by the learned trial Judge at transcript page 218 in the second and third paragraphs on that page, that there was no misdirection. It was submitted that on those pages, the correct direction was given.

33 In reply the applicant refers to Murray v The Queen [2002] HCA 26. In that case, it was clear that the trial Judge had correctly instructed the jury with respect to the onus of proof in the early part of her directions but then erred in directions further on in the direction to the jury. See par 23. The appeal in that case was allowed because of the error. I can see that there must be a strongly arguable case that if during the course of a direction to the jury, a correct direction is given on the law and in another place an incorrect direction is given, then this is likely to lead to confusion in the mind of the jury. For that reason, I consider that the ground is strongly arguable.

34 Ground 8 of the proposed grounds of appeal is that:

"8. The learned trial judge erred in giving an 'inferences direction' at p203 trial transcript, in that he:

8.1 failed to identify for the jury the relevant evidence.

8.2 failed to direct the jury in relation to the use of inferences in respect to the lies of the applicant.

8.3 failed to direct the jury that the prosecution was obliged to prove the guilt of the applicant beyond reasonable doubt and that an inference of guilt may not be drawn from circumstantial evidence unless the circumstances found by the jury excluded any reasonable hypothesis consistent with innocence.

8.4 erred in directing the jury, at p203 trial transcript, that:

'In a criminal trial, however, you may not draw an inference against an accused person unless it is the only reasonable inference consistent with the true facts.

This means that if there are competing inferences that you can properly draw from established facts, it would not be proper for you to draw an inference adverse to the accused ... and in the event of any ambiguity in the evidence or if it be the case that more than one reasonable inference can be drawn from the same established facts, the accused is entitled to the resolution of that ambiguity in his favour or the drawing of the inference which is more favourable to him'."

35 It was submitted on behalf of the accused that the last three lines of the above quoted direction was an error of law. It was submitted that this is established by reference to Wedd v The Queen [2000] WASCA 273, particularly at [40] and [41]. At that point in the submissions, counsel for the respondent intervened to concede that this also was a strongly arguable ground.

36 It is also necessary to consider whether the Court, when hearing the appeal, would decide under the proviso to s 689(1) of the Code that notwithstanding success by the applicant on the above grounds of appeal, that the appeal should be dismissed on the basis that no substantial miscarriage of justice has actually occurred. In this case, the grounds of appeal include one which is concerned with directions relating to an element of the offence. If the grounds are made out, then it is strongly arguable that the applicant has lost a fair chance of acquittal, and that therefore there has been a miscarriage of justice. See Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514; Ugle v The Queen [2002] HCA 25. An "aggregate" of faults may properly lead to a conclusion that a trial as a whole has miscarried: Leary v R [1975] WAR 133.

37 Where the Crown has conceded that there is a strongly arguable ground of appeal, I have not embarked on any assessment of the issue. For present purposes, the fact of the concession is what is important.

38 In my opinion, the fact that bail would be warranted under cl 1 of Pt C and the concession by the Crown that there are four strongly arguable grounds of appeal (and possibly five), leads me to the conclusion that, prima facie, the appeal is likely to be successful. That being so, and given also that the Crown has not opposed bail, I consider that there are exceptional reasons why the applicant should not be kept in custody pending the appeal.

39 I therefore grant bail on the same conditions which applied when the applicant was on bail awaiting trial, but with three additional conditions, namely that:

1. The applicant surrender to the police any passport he holds. If the applicant declares in writing that he does not hold any passport, then it will be a condition of bail that he give a written undertaking not to apply for a passport.

2. The applicant will make no contact directly or indirectly with any of the persons who gave evidence at the trial.

3. The applicant must report once a week to the officer in charge of the Fremantle police station between the hours of 9.00 am and 4.00 pm.